The Approach Of Nigerian Courts To International Commercial Arbitration: The Need For A Paradigm Shift In Judicial Thinking By Victor Obinna Chukwuma Esq.

Abstract: International commercial arbitration is
increasingly becoming the best method of settling international
commercial disputes.

Chief among the reasons why commercial disputants
opt for international arbitration include its inherent advantages
such as neutrality, privacy and confidentiality, speed,
cost-effectiveness, procedural flexibility and the universal
enforceability of the awards, to mention but a few. Due to the
incidence of globalization, the promotion of international
arbitration is now the quintessential tactics to attract foreign
investment since it is relatively cost-cutting and can be tailored
by the parties to suit their business interests.

Although in international arbitration, the courts
have minimal roles to play, judicial assistance to arbitration is
fundamental and cannot be ruled out. A positive and supportive
judicial approach to arbitration will go a longer way to increase
the growth international arbitration and vice versa. This research
work briefly criticizes the approach of the Nigerian courts in some
selected cases and argues for a paradigm shift in the approach of
the courts to the issues canvassed in those cases such as stay of
proceedings, anti-arbitration injunctions, limitation of time, etc.
This research concludes by stating that an arbitration-friendly
approach to those issues is paramount in order to make Nigeria a
pro-arbitration country and to attract foreign investment.[1]

Keywords: International commercial arbitration, Nigerian
courts, judicial approach.

1. What is International Commercial
   Arbitration?

Arbitration, according to Born G. B refers to the process by
which parties consensually submit a dispute to a non-governmental
decision maker, selected by or for the parties, who renders a
binding decision finally resolving the dispute in accordance with
neutral adjudicative procedures affording the parties an
opportunity to be heard.[2] The UNCITRAL Model Law provides
that arbitration is international if:[3]

1. the parties to an arbitration agreement have, at the time of
   the conclusion of that agreement, their places of business in
   different states; or
2. one of the following places is situated outside the State in
   which the parties have their places of business:
3. the place of arbitration if determined in, or pursuant to, the
   arbitration agreement
4. any place where a substantial part of the commercial
   relationship is to be performed or the place with which the
   subject-matter of the dispute is most closely connected; or
5. the parties have expressly agreed that the subject-matter of
   the arbitration agreement relates to more than one country.

Section 57 (2) of the Arbitration and Conciliation Act adopts
the above definition of international arbitration but provides in
addition that arbitration is international where the parties,
despite the nature of the contract, expressly agree that any
dispute arising from the commercial transaction shall be treated as
an international arbitration.[4] Therefore, international
arbitration is not tied only to cases where parties are from two
different countries. Section 57 (2) (d) of ACA has broadened the
scope by enabling the parties notwithstanding the nature of the
contract to decide whether or not the arbitration should be treated
as international. This intention may be implied from the content of
the arbitral clause especially where the parties have provided for
the application of international laws. Similarly, the commercial
scope of international arbitration is quite vast as it covers
matters arising from all relationships of commercial nature,
whether contractual or not. Relationships of a commercial nature
include, but are not limited to, the following transactions: any
trade transaction for the supply or exchange of goods and services;
distribution agreement; commercial representation or agency;
factoring; leasing; construction of works; consulting; engineering;
licensing; investing; financing; banking; insurance; exploitation
agreement or concession; joint venture and other forms of
industrial or business co-operation; carriage of goods or
passengers by air, sea, or road.[5] If one ignores its
tautologies and redundancies, this footnote conveys the idea that
all exchanges of property, services or assets will be commercial.
In other words, the definition includes all economic relations the
object of which is the production, transformation or circulation of
goods, services associated with those goods, financial and banking
activities.[6]

1. Why International Commercial Arbitration is
   Important:

The increased choice of commercial disputants for international
arbitration traces to several significant advantages. First,
international arbitration guarantees a neutral forum in which case
the dispute is not subjected to the home court of one of the
parties.[7] As Redfern A and Hunter M rightly noted: “it is
plainly more attractive to set up a carefully chosen tribunal of
experienced arbitrators, with knowledge of the language and
commercial intentions of the disputed contract, who will sit in a
neutral country and do their best to carry out the reasonable
expectations of the parties, than to entrust the resolution of the
dispute to an unknown and perhaps commercially inexperienced
foreign court, with its own particular, national procedural rules
and regulations.”[8] The second advantage why international
arbitration is important is that it offers procedural flexibility.
In this connection, parties enjoy the latitude to tailor-make or
shape the arbitral process in a way suitable to their private or
business interests. Pursuant to this procedural flexibility,
parties enjoy the following rights: freedom to choose arbitrators
of their choice, freedom to determine the laws and rules applicable
to the arbitration, freedom to choose the place of arbitration,
freedom to choose the language of the arbitration. Another
advantage which is a sequel to the procedural flexibility enjoyed
in international arbitration is that persons who are experts and
knowledgeable in the relevant field of dispute are usually
appointed as arbitrators. In comparing this advantage with what
obtains often times in litigation, Born G.B states that: “it is
harsh, but undeniable fact that some national courts are
distressingly inappropriate choices for resolving international
commercial disputes. In some states, local courts have little
experience or training in resolving international transactions or
disputes and can face serious difficulties in fully apprehending
the business context and terms of the parties’ dispute.”[9]
Furthermore, unlike litigation where hearings are generally held in
the public, arbitral proceedings are generally private unless
otherwise agreed by the parties.[10] Although there exists no
duty of confidentiality on the parties, they are free to enter into
a confidentiality agreement which will augment the statutory
requirement of privacy of the arbitral proceedings. Yet another
reason why international arbitration is important is that its
awards are universally enforceable under international conventions
such as the New York Convention.[11] In this connection, the
winner of an international arbitration award can approach the
courts of any member country where the other party is perceived to
have assets for the purposes of enforcing the award. There are
other advantages of international arbitration such as
cost-effectiveness and time-efficiency. What is left to say is that
in view of the above advantages, foreign investors will usually
prefer to invest in pro-arbitration countries, as opposed to
countries where arbitration is not promoted. This is because, apart
from element of neutrality and other advantages of international
arbitration, businessmen place much importance on the continuation
of their commercial relationship and the need for a speedy
determination of their disputes so that they can get on with their
business.[12] Simply put, therefore, while the promotion of
international arbitration will attract and keep foreign investors,
an anti-arbitration country will certainly record little or no
foreign investment which stunts the growth of the economic
sector.

1. The Role of the Courts in International
   Arbitration:

Generally, the principle of party autonomy in international
arbitration connotes minimal participation of the courts in matters
relating to the arbitration proceedings. In other words, it is the
parties that determine who their adjudicator should be and the
applicable procedure to be followed. To this end, most arbitration
laws specifically make provisions prohibiting the intervention of
courts in arbitration except in few circumstances provided by
statute.[13] However, it does not follow fundamentally that
the judiciary has no role to play in international arbitration.
Court assistance is, in fact, fundamental to international
commercial arbitration in that it ensures the due process and
fairness of arbitral proceedings and fills in the blanks in
arbitration agreements.[14] Apart from the issue of
ensuring fairness, Bantekas L justifies a compulsory relationship
between arbitration and the courts on the fact that since the
arbitrator’s authority is contractual, non-parties (such as
witnesses and experts, e.t.c) are not bound by his orders and thus
may require an injunction from the court to compel their
compliance.[15] The following are some of the cases where
the courts may come in:

1. Reference to arbitration of a matter which is subject to a
   valid arbitration agreement and the grant of stay of
   proceedings.[16]
2. Appointment of the arbitral tribunal upon the failure of the
   parties to so agree. It must be emphasized that apart from the
   condition that the parties must have failed to agree on the
   appointment or that the appointment procedure agreed to by the
   parties have failed, the court’s power to appoint the tribunal
   cannot be exercised suo motu. It must be based on the application
   of any of the parties.[17]

• Issuance of orders compelling the attendance of witnesses
  before the arbitral tribunal.[18]

1. Entertainment of applications challenging an arbitrator and the
   removal of the arbitrator on grounds of misconduct.[19]
2. Issuance of interim preservative orders pending the
   determination of the arbitration in order to facilitate the smooth
   conduct of the arbitration, or to preserve the status quo of the
   dispute.[20]
3. Enforcement and recognition of arbitral awards.

• Entertainment of applications for the setting aside of arbitral
  awards.[21]

There may be other roles for the courts in international
arbitration but what matters most is the approach of the courts to
arbitration in the enforcement of these roles. The role of the
courts in international arbitration is generally supportive rather
than interventionist. Therefore, the proper approach will be to
appreciate the importance of international arbitration and to
promote the primacy of arbitration agreements. The court in the
case of Benjamin v. Kalio,[22] captured this approach in
the following words:

Where a party repudiates and resiles from the decision of
arbitration he voluntarily submitted himself to, the conduct should
be regarded as arbitrary, unconscionable and reprehensible for
purpose of assessing awarded damages. Public policy, which favours
end to litigation seriously disapproves and condemns such conduct.
Ordinarily the conduct of the party should attract exemplary and
aggravated damages.

Although the court in the above case was dealing with customary
arbitration, there exists no basis why the same approach should not
apply to international arbitration as well. There is no basis why
international arbitration should be seen as that monster that robs
the court of its jurisdiction to decide matters affecting its
citizens. It is settled law that an arbitration clause does not
seek to oust the jurisdiction of a court as all it does is to allow
the parties the avenue and possibilities of settling disputes
amicably out of court.[23] However, what the courts seeks
to achieve by holding that an arbitration clause does not oust its
jurisdiction is paramount in determining whether the approach of
the court is “pro-arbitration” or “anti-arbitration.” A decision of
the court that an arbitral clause does not oust its jurisdiction
will be deemed “pro-arbitration” where it intends to protect the
arbitration agreement against any adverse legal provision like
section 20 of the Admiralty Jurisdiction Act[24] that renders
null and void, any agreement per se which seeks to oust the
jurisdiction of the court. On the other hand, such a decision will
be anti-arbitration where it seeks to encourage any of the parties
to litigate a matter which is subject to an arbitration agreement
and to imply the readiness of the court to entertain such claims.
For instance, in the case of Obembe v. Wemabod Estates
Ltd,[25] after the court noted that an arbitration clause
does not oust its jurisdiction, it went ahead to hold as a sequel,
that: “Therefore, each of the parties may before submission to
arbitration or an award is made, commence legal proceedings in
respect of any claim or cause of action included in the
submission.”[26] The fact that an arbitration clause does
not oust the jurisdiction of the court does not mean that the
courts should be willing to hear a claim brought in violation of a
valid arbitration agreement or a pending arbitral proceedings. In
such cases, the proper approach should be, not necessarily
dismissing the claim for want of jurisdiction, but freezing the
action and referring the parties to arbitration. The mere fact that
a dispute is of a nature eminently suitable for trial in a court is
not a ground for refusing to give effect to what the parties have,
by contract, expressly agreed to.[27]

1. A Succinct Critique of the Approach of Nigerian Courts
   in Some Selected Cases:
2. Mainstreet Bank Capital Ltd v. Nigerian Reinsurance
   Corp. Plc[28]

In this case, clause 7 of the Memorandum of Understanding
between the parties provided that any dispute arising therefrom may
be resolved in accordance with the provisions of the Arbitration
and Conciliation Act. When a dispute arose between the parties, the
appellant on the 26^th May 2014 ignored the arbitration
clause and went to court. Upon being served with the summons, the
respondent entered a conditional appearance to the suit and filed a
preliminary objection (dated 26^th August 2014) to the
jurisdiction of the court on the ground that the appellant had
ignored clause 7 of their MOU. On the 3^rd September
2014, the appellant filed a counter affidavit and written address
in opposition to the preliminary objection. On the 24^th
November 2014, the respondent further filed his counter affidavit
and written address in opposition to the originating summons. After
hearing the preliminary objection and originating summons together,
the trial court upheld the preliminary objection and referred the
matter to arbitration. The appellant was dissatisfied and appealed
to the court of Appeal. The gravamen of the appellant’s grouse was
that by subsequently filing processes in respect of the substantive
originating summons, the respondent had taken steps within the
meaning of section 5 of the Arbitration and Conciliation Act and
therefore cannot apply for a stay. The respondent stated that he
merely filed the processes in obedience to the trial judge’s order.
After hearing the parties, the appeal court allowed the appeal but
held that the respondent’s filing of processes in respect of the
substantive originating summons did not amount to taking steps in
the proceeding and will not prevent him from applying for stay. The
appeal court refused to refer the parties to arbitration on the
grounds that the respondent did not meet some other requirements
for a stay of proceedings to be granted. The court held that the
word “may” in the arbitral clause is optional or directory rather
than compulsory and that it does not impose on any of the parties
the obligation to resort to arbitration. The court however refused
to hear the originating summons on the merits but remitted same
back to the trial court for trial. The appellant was not satisfied
with the decision of the appeal court not to hear the matter on the
merits, hence it appealed to the Supreme Court. The apex court
dismissed the appeal but held that the appeal court erred when it
held that the respondent’s subsequent filing of processes in
respect of the originating summons did not amount to taking steps
in the proceedings and thereby waiving its rights. The apex court
refused to accept the argument of the respondent that he merely
filed those processes on the directive of the trial judge. The
arbitration proceedings could not therefore commence as the matter
was remitted to the trial court for commencement of trial.

The approach of the trial court, the court of appeal and the
supreme court in this case is somewhat strict. For instance, the
trial court ought not to have heard the preliminary objection and
the originating summons together. This is because such procedure
creates room for delay and may lead to issues during appeal, as we
have seen in the present case, where the party objecting to the
action may be deemed to have waived his rights to arbitrate. The
court of appeal found that the respondent had not taken any steps
in the proceedings but still refused to order for a stay of
proceedings. It also went ahead to hold that the appearance of the
word “may” in the arbitral clause meant that the arbitration was
not compulsory. The supreme court strictly interpreted the issue of
taking steps even though there was evidence that the respondent’s
preliminary objection was filed before he took any other step in
the proceedings. Although the provision of “any other steps in the
proceedings” as contained in section 5 of the ACA is arguably a
loophole against arbitration, the approach of the court in
interpreting that provision should be in favour of arbitration
given that section 4 of the ACA actually places a duty on the court
to refer such matters to arbitration. A pro-arbitration court
therefore will not usually rely on statutory loopholes or
misfortune of one of the parties to avoid its duty under the
law.

1. Shell Petroleum Development Company of Nigeria v.
   Crestar Integrated Natural Resources Limited.[29]

In this case, the respondent applications challenging the
jurisdiction of the federal high court and asking for a stay of
proceeding based on the arbitration agreement of the parties were
both dismissed at the federal high court and the respondent
appealed to the court of appeal. At the Court of Appeal, the
applicant applied for an order of injunction restraining the
respondents whether by themselves, their management, servants,
agents, privies, proxies, representatives, nominees or solicitors
or any other person howsoever called acting under or pursuant to
their authority from proceeding or continuing with or taking any
further steps in the arbitration proceedings with International
Court of Arbitration  (ICC No. 21012/TO) between the
respondents and the applicants which was commenced by the
respondents vide a request for arbitration dated 20^th
April, 2015 and issued by the respondent, pending the final
determination of the respondent’s appeal. The issue was whether the
court of appeal has the jurisdiction to issue an anti-arbitration
injunction as sought by the applicants. The court proceeded by
considering the provisions of sections 34 and 57 (2) of the
Arbitration and Conciliation Act. It is noted that by section 34 of
ACA, the court shall not intervene in any matter governed by the
Act except where so provided in the Act. After considering the
provision of section 52 (2) (b) (i) of the ACA, the appeal court
held that that the instant arbitration was an international
arbitration since the place of arbitration was situated outside
Nigeria (London) where the parties have their places of business.
Having found that the arbitration was international, the appeal
court suddenly held that the effect was that the provisions of
section 34 of the ACA will not apply to the instant case. In other
words, the appeal court held that it was not bound by the statutory
provision prohibiting the intervention of courts in arbitration
since the arbitration was not a domestic arbitration. Justifying
its stance, the appeal court considered section 58 of ACA which
provides that the Act is to apply throughout the federation of
Nigeria and held as a sequel that the provisions of the Act is only
applicable in respect of arbitrations which are domestic in the
country. Relying on the inherent power of the court to grant
injunctions in cases where it considers just and convenient (as
contained in section 13 of the Federal High Court Act), the court
granted the anti-arbitration injunction on grounds inter alia that
the applicant’s affidavit showed that it would be oppressive,
vexatious or unconscionable to allow the arbitral proceedings to
continue.

While we await the view of the Nigerian Supreme Court in
relation to the above case, it is submitted, with due respect, that
the approach of the court of appeal is strict and anti-arbitration.
There is no basis to justify an assertion which states that the
Nigerian Arbitration and Conciliation Act does not apply to
international arbitration. By clearly defining international
arbitration in section 57 (2), providing for the application of
international arbitration rules in section 53 and adopting the New
York Convention in section 54, the Act does envisage and apply to
international arbitration. In any case, it is not appropriate to
rely on statutory loopholes to deny a party a generally recognized
right.

• Zenith Global Merchant Limited v. Zhongfu
  International Investment (Nig.) FZE & 2 Ors[30]

In this case, the High Court relied on the Court of Appeal’s
decision in Shell v. Crestar[31] to issue an
anti-arbitration injunction restraining the parties from seeking
and or continuing with any step, action and or participating
directly or indirectly in the arbitral proceedings at the Singapore
International Court of Arbitration. However, in this case, it must
be pointed out that it was the party challenging the
anti-arbitration injunction that first instituted the action in the
High Court. Midway into the proceedings at the High Court, the
claimant suddenly sought to withdraw the action so as to proceed to
arbitration in Singapore in line with an existing arbitral clause
binding the parties to that effect. The high court did not only
reject the application but went ahead to make an order restraining
the commencement of the arbitration. It is submitted that the
claimant’s conduct by instituting the action only constitutes a
ground for refusal of stay of proceedings in keeping with section 5
of the ACA. The section does not provide that the court should in
addition to refusing stay, where the party has taken steps in the
proceedings, make an order restraining the commencement of the
arbitration. It is no wonder, therefore, that the court looked away
from that section when it sought determine its power to grant the
anti-arbitration injunction. In line with Crestar’s case,
it rather invoked the provisions of section 13 of the Federal High
Court Act which empowers the federal high court to issue
injunctions in circumstances where such orders appear to the court
to be just and convenient. Relying on Crestar’s case
above, the court listed two conditions upon which it will issue an
anti-arbitration injunction:

1. the applicant shows that the continuance of the foreign
   arbitration will be oppressive or vexatious and cause injustice;
   and
2. the injunction must not cause injustice to the other party

Although the court did not state any parameters for determining
whether or not an anti-arbitration injunction will cause injustice
to the other party, one wonders what injustice is greater than
court assistance to a party in defaulting a valid arbitration
clause. In the same vein, granting an anti-arbitration injunction
on grounds other than lack of jurisdiction of the arbitrator is not
fancied in international arbitration.[32] Self-restraint
by the courts in dealing with applications for anti-arbitration
injunction is the ideal approach. . For instance, in the case of
Mitsu Engineering and Ship Building Co. Ltd v Easton Graham
Rush,[33] a court in Singapore held
that it had no power to grant an anti-arbitration restraining an
arbitrator from proceeding with the arbitral proceedings, but that
it could set the award aside if circumstances warranted.

1. Obembe v. Wemabod Estates Limited[34]

This is a famous case usually cited by Nigerian courts when
dealing with arbitration cases especially as it relates to issues
of stay of proceedings, arbitration clauses and the court’s
jurisdiction. In this case, the plaintiff instituted an action
before the Lagos State High Court in breach of a valid arbitration
clause. The defendant also filed his defence to the action and did
not apply for a stay of proceedings. The learned trial judge found
that the plaintiff did not prove his case and therefore dismissed
the case. The judge further observed as follows: “Had I been in a
position on the facts to find any of the plaintiff’s claims proved
I would have been unable to enter judgment in his favour in view of
the Arbitration Clauses 17 in part 11 of Ex. 3 at page 37 which
parties had agreed would govern their contract.” The case went up
to the supreme court were the appeal was partially allowed. The
supreme court attacked the decision of the trial judge where it
held that it would have been unable to give judgment in favour of
the plaintiff, in view of the existing arbitration clause, even if
the plaintiff’s claims were proved. The supreme court’s view was
based on the fact that the defendant had taken steps in the
proceedings and did not apply for stay. However, the supreme court
stated that: “In order to get a stay, a party to submission must
have taken no step in the proceedings. Any party who makes any
application whatsoever to the court, even though it be merely for
application for extension of time, takes step in the proceedings.”
Although the conduct of the parties particularly the defendant
suggests a waiver of the right to arbitrate, the supreme court went
too far when it laid down the principle that a party applying for a
stay must have taken no step at all in the proceedings and that
mere application for extension of time constitutes a step. In the
Singapore case of Australian Timber Products Ltd v. Koh
Brothers Building & Civil Engineering Contractor
Ltd,[35] it was suggested that a step in the proceedings
is one which impliedly affirms the correctness of the court
proceedings and the willingness of the defendant to submit to a
determination of the courts of law instead of arbitration. It was
held that an application to extend time to file a defence pending
determination of stay application is not a step in the action.

Another principle which laid down in this case is division of
arbitration clauses into mandatory and non-mandatory arbitration
clauses. The court held that the non-mandatory class is where the
provision for arbitration is a mere matter of procedure for
ascertaining the rights of the parties with nothing in it to
exclude a right of action on the contract itself, but leaving it to
the party against whom an action may be brought to apply to the
discretionary power of the court to stay the proceedings so that
the parties may resort to that procedure to which they have agreed.
On the other hand, the mandatory class is where arbitration
followed by an award is condition precedent to any other
proceedings being taken. This classification is not obtainable in
international arbitration as it undermines the mandatory nature of
an arbitration agreement. The generally known classification of an
arbitration clause is the one which classifies arbitration
agreements into submission agreements and arbitration
clauses.[36] Classifying arbitration agreements into mandatory
and non-mandatory clauses undermines the hallowed principle of
separability whereby the arbitration clause is understood to be
self-existent and independent of the main contract.[37]
Furthermore, although many Nigerian courts have been endorsing the
classification in Obembe’s case,[38] the courts seem not to have
provided any parameters for determining when a clause is mandatory
or non-mandatory. In Transcoe Shipping v. MT Sea
Sterling,[39] for instance, relying on the above
classification, the court of appeal sought to determine whether the
following clause fell within the mandatory arbitration clause:

This Agreement shall be governed by and construed in accordance
with English law and any dispute arising out of or in connection
with this agreement shall be referred to arbitration in London in
accordance with the Arbitration Act of 1996 or any statutory
modification or re-enactment thereof save to the extent necessary
to give effect to the provisions of this clause.

After considering the above clause, the court of appeal found
that the clause is a matter of procedure and does not come within
the mandatory arbitration clause. This conclusion is rather
strange. The proper approach is to view valid arbitration clauses
as contractually mandatory and binding on the parties. Accepting
actions brought in breach of arbitration clauses, on the mere
grounds that the clause is not mandatory, is tantamount stricto
sensu to judicial aiding and abetting of the breach of contracts by
parties.

1. City Eng. (Nig.) Ltd v. Federal Housing
   Authority[40]

In this case, the supreme court per Ogundare, J.S.C (delivering
the leading judgment) held that the limitation period for enforcing
an award begins to run from the date of the original cause of
action on the basis of which parties went to arbitration and not
from the date of the award. The approach of the court in this case
is clearly inimical to the growth of arbitration. It has the effect
of forcing the parties to approach the court for a stay of the
proceedings before proceeding to arbitration. It also has the
effect of denying the winner of an award of not only the fruits of
the award but his entire right to enforce his claim. Happily,
section 35 of the Lagos State Arbitration Law now provides that in
computing the time for the commencement of proceedings to enforce
an award, the period between the commencement of arbitration and
the date of the award shall be excluded.

1. Process & Industrial Developments Ltd v.
   Federal Republic of Nigeria[41]

This is the popular case where the huge sum of 9.6 billion
dollars was awarded in damages against Nigeria for a breach of
contract. The discussion of this case will be streamlined to the
purpose of this work and the approach of the Nigerian court at the
early stage of the arbitration. It may be wondered whether the
Nigerian court played any role in this case since the bulk of the
issues were determined by the arbitral tribunal and the English
court. However, the facts of the case reveal that after the
tribunal found Nigeria liable for breach of contract, but before it
could proceed to the next stage of determining the quantum of
damages, the Nigerian party did approach both the English and
Nigerian courts to set aside the liability award. While the English
refused to accede to Nigeria’s request, the Nigerian Federal High
Court granted the request and further issued an anti-arbitration
injunction restraining the continuation and completion of the
arbitral proceedings. Perhaps it was this decision of the federal
high court that inspired the Nigerian party to ignore the
subsequent proceedings in the arbitration. Although, contrary to
the views of the arbitral tribunal and the English court, the
Nigerian court may arguably be the court with primary jurisdiction
over the arbitration, the court should not be a safe haven where
defaulters of arbitration agreements and proceedings run to for
protection. At least, in the instant case, the Nigerian court
should have allowed the proceedings to be finally determined before
it can entertain the application to set aside or enforce. This
could have been a better approach instead of interfering with the
completion of the arbitration proceedings. In fact, it is not
hazarding to guess that it was this approach of the Nigerian court
to the arbitration proceedings that signaled a threat to P & ID
Ltd and the tribunal that the Nigerian court will be biased in
enforcing the award, if Nigeria was to be the seat of the
arbitration.

1. Conclusion:

International commercial arbitration is fast growing as the best
means of resolving commercial disputes. Apart from other important
factors such as a solid legal and institutional framework in
support of arbitration, it cannot be gainsaid that a
pro-arbitration judicial gesture is a key factor to guarantee the
growth of international arbitration in any country. From a
pro-arbitration perspective, the approach of the Nigerian courts in
the cases considered above shows clearly that there is a need for a
paradigm shift in the judicial thinking of the courts towards
arbitration especially as it relates to those issues canvassed
above.

A hostile or jealous judicial approach to arbitration drives
away foreign investors, renders even the best of arbitration laws
toothless and handicaps the international arbitration centers
existing in the country as disputants choose to visit far away
countries to resolve their disputes. There is need for the courts
to be arbitration-friendly both in theory and in practice. For
instance, in a recent decision by the People’s Court of China, the
court enforced an arbitration agreement which designated a
non-existent arbitral institution notwithstanding that the Chinese
legal system invalidates such clauses. In order to give effect to
intention of the parties, the court reasoned that from the
surrounding circumstances, the parties intended that the Singapore
law was agreed to by the parties to govern the arbitration
agreement. The court saved the arbitration agreement by determining
the validity of the arbitration agreement based on the Singapore
law instead of the Chinese law.

[42] This approach is pro-arbitration and worthy of
emulation by the Nigerian courts. International arbitration will
not fare better in Nigeria if the courts continue to maintain
anti-arbitration approach. Therefore, there is need for the courts
to adopt a liberal approach when dealing with issues such as taking
steps in the proceedings, anti-arbitration injunctions, e.t.c.
Going forward, it is expected that several seminars on
international arbitration will be held for the judges. Worshippers
in the temple of justice (lawyers) are also expected to get
acquainted with the practice of international commercial
arbitration. These steps and many others are relevant to ensure
that Nigeria one day becomes the international arbitration hub of
Africa and the world at large.

[1] *Victor Obinna Chukwuma Esq. LLB
(Nnamdi Azikiwe University, Awka), BL (Nigerian Law School,
Victoria Island, Lagos) Counsel at Adekunle Ojo & Associates,
Ikeja, Lagos. The writer can be contacted through his email:
[email protected]^[1]
or his phone number: 07069182735

[2] Born, G.B “International Commercial
Arbitration” (Kluwer Law International, Leiden, 2014) pg.
291

[3] Article 3 of the United Nations Commissions on
International Trade Law on International Commercial Arbitration
(1985) with amendments adopted in 2006.

[4] Section 57 (2) (d) of the Arbitration and
Conciliation Act Cap A18 LFN 2004

[5] See footnote 2 page 1 of the UNCITRAL Model Law on
Int’l Commercial Arbitration, adopted on June 21^st,
1985

[6] G.F Goldman “International Commercial
Arbitration” (Kluwer Law International, 1999) pg. 10 (pp.
1-32)

[7] C.R Drahozal and R.W Naimark “Towards a Science of
International Arbitration: Collected Empirical Research” published
by Kluwer Law International BV 2005 pg. 31 (pp. 1-376)

[8] A. Redfern and M. Hunter “Law and Practice of
International Commercial Arbitration” published by Sweet and
Maxwell, London, 2004 pg. 25 (pp. 1-659)

[9] G.B Born “International Commercial Arbitration”
Volume 1 published by Kluwer Law International BV, 2009 pg. 78 (pp.
1-3303)

[10] See Article 25(4) of the UNCITRAL Arbitration
Rules; Esso Australia v. Plowman (1995) 183 C.L.R 10

[11] Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, New York, 1958 (Adopted by UNCITRAL on 7
July 2006); see section 51 (1) of the ACA

[12] M.L Moses “The Principles and Practice of
International Commercial Arbitration” Cambridge University Press,
2008 pg. 4 (pp. 1 – 360)

[13] Section 34 of the ACA

[14] See L.A Mistelis and J.D.M Lew “Pervasive
Problems in International Arbitration” published by Kluwer Law
International BV, 2006 pg. 156 (pp. 1-391)

[15] L. Bantekas “An Introduction to International
Arbitration” published by Cambridge University Press, UK, 2015 pg.
132 (pp. 1-392)

[16] See section 4 and 5 of the ACA

[17] See section 7 of the ACA

[18] See section 23 of the ACA

[19] See section 30 of the ACA

[20] See Article 9 of the UNCITRAL Model Law, Section
21 of the Lagos State Arbitration Law. Unfortunately,
the     Arbitration and Conciliation Act under
section 13 recognizes the tribunal’s power to make such orders but
is silent on the powers of the courts in that regard.

[21] Section 52 of the ACA

[22] [2018] 15 NWLR 38

[23] Messrs. NV Scheep v. MV’S Araz (2000) 12 SC
(Pt. 1) 164; Celtel Nigeria B.V v. Econet Wireless Ltd (2014) LPELR
(22430) 1 at 58;

[24] Cap A5 LFN 2004

[25] (1997) SC Reprint 70 at 79

[26] Ibid (per Fatayi Williams JSC at page 79)

[27] Re: An Application by the Phoenix Timber Company
Ltd (Appeal of V/O sovfracht) 1958 1 Lloyd’s Rep 305 at 308; Heyman
v. Darwins Ltd (1942) Vol 72 Lloyd’s Rep 65

[28] [2018] 14 NWLR 423

[29] (2016) 9 NWLR 300

[30] [2017] ALL FWLR 1837

[31] Supra

[32] See E. Gaillard “Anti-Suit Injunctions in
International Arbitration” IAI Seminar, Paris, November 21, 2003
published by Juris Publishing Inc. New York, USA, 2005 pg. 32 (pp.
1-372)

[33] (2004) SLR 14

[34] (1997) SC Reprint 70; (1977) ALL NLR 130

[35] (2005) 1 SLR 168

[36] See S. Petar “International Commercial
Arbitration” published by Graham and Trotman Limited, Sterling
House, London, 1989 pg. 52 (pp. 1-247)

[37] A. Redfern and M. Hunter Opcit pg. 162

[38] See Federal Ministry of Health v. Dascon Nig. Ltd
(2017) LPELR – 43621 (CA); Transcoe Shipping Ventures Private Ltd
v. MT Sea Sterling (2018) LPELR – 45108 (CA)

[39] Supra

[40] (1997) 9 NWLR (Pt 520) 224

[41] (2019) EWHC 2241

[42] ChinaLight International Trade Co Ltd v. Tata
International Metals (Asia) Ltd, Beijing No.4 Intermediate People’s
Court (2017)

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