Starting an arbitration proceeding
What is needed to commence arbitration?
To commence arbitration, the claimant must serve a notice of arbitration on the respondent. The arbitral proceedings commence on the date on which notice of arbitration was received by the respondent, unless otherwise agreed by the parties.
Are there any limitation periods for the commencement of arbitration?
The Arbitration and Conciliation Act does not provide limitation periods for the commencement of arbitration. However, under Nigerian law, limitation periods generally exist for commencement of contractual actions, depending on the state where the action is to be instituted.
Are there any procedural rules that arbitrators must follow?
Generally, under the Arbitration and Conciliation Act, the parties have the autonomy to determine the conduct of the arbitral proceedings. However, for domestic arbitration, the rules in the schedule to the Arbitration and Conciliation Act are mandatory, including as follows:
- The arbitral tribunal must give adequate advance notice of the date, time and place of the hearings (Article 25 of the rules).
- The award or any decision made by a tribunal consisting of three members must be made by the majority (Article 31 of the rules).
- The award must be made in writing and, unless otherwise agreed by the parties, state the reasons on which the decision is based (Article 32 of the rules).
Are dissenting opinions permitted under the law of your jurisdiction?
There are no provisions in the Arbitration and Conciliation Act regarding dissenting opinions. It is sufficient for any decision made by a tribunal consisting of three members to be made by the majority (Section 24 of the Arbitration and Conciliation Act). In domestic arbitration, if one out of three arbitrators fails to sign the award, the award must state the reason for the absence of the signature (Article 32(4) of the Arbitration and Conciliation Act).
Can local courts intervene in proceedings?
A high court can intervene in arbitral proceedings governed by the Arbitration and Conciliation Act only where specifically provided for under the act (Section 34 of the Arbitration and Conciliation Act).
Can the local courts assist in choosing arbitrators?
Yes, the high courts can assist in choosing arbitrators. In domestic arbitration, if the parties fail to appoint arbitrators, the High Court is the default appointing authority (Section 7 of the Arbitration and Conciliation Act).
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
Where a respondent fails to state its defence as required under the Arbitration and Conciliation Act, the arbitral tribunal can continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations (Section 21(b) of the Arbitration and Conciliation Act). While the court cannot compel the parties to arbitrate, it may stay proceedings and direct the parties to arbitrate where a party to the arbitration agreement has commenced litigation instead of arbitration. The court may subpoena third parties within Nigeria to appear as witnesses or produce evidence (Section 23 of the Arbitration and Conciliation Act).
In what instances can third parties be bound by an arbitration agreement or award?
Under the Arbitration and Conciliation Act, a third party cannot be bound by an arbitration agreement.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
There is no default language for arbitration under the Arbitration and Conciliation Act. In the absence of parties’ agreement on language, the tribunal shall determine the language or languages to be used. The place of arbitration will be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
How is evidence obtained by the tribunal?
Subject to any agreement to the contrary, the arbitral tribunal will decide whether the arbitral proceedings will be conducted:
- by holding oral hearings for the presentation of evidence or oral arguments;
- on the basis of documents and other materials; or
- by both holding oral hearings and on the basis of documents.
The tribunal has the power to determine the admissibility, relevance, materiality and weight of any evidence placed before it.
What kinds of evidence are acceptable?
The tribunal determines the type of evidence that is acceptable by ensuring that the parties are accorded equal treatment in the presentation and acceptability of their evidence.
Is confidentiality ensured?
No provisions relate to confidentiality under the Arbitration and Conciliation Act. However, the arbitration rules in the schedule to the act make provision for proceedings to be held on camera, except where the parties agree otherwise. There is also an implied obligation on arbitrators and the parties to keep private and confidential all information regarding the proceedings.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
The Arbitration and Conciliation Act does not prevent information in arbitration proceedings from being disclosed in subsequent proceedings.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Nigerian lawyers conducting proceedings as counsel or arbitrators are bound by the Rules of Professional Conduct in the Legal Profession.
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