A Critical Appraisal of the Role of National Courts in the Arbitral Process: A Case Study of Nigeria

Abstract

Using the illustrative example of the Nigerian Arbitration and Conciliation Act 1988, this research undertakes a comprehensive analysis of the concept of judicial intervention in the arbitral process from a Nigerian law perspective. The research approaches the study from the standpoint that despite the well documented successes of international commercial arbitration as a means of dispute resolution especially those arising from cross border transactions, one recurring controversy has been the question of the necessity or otherwise of the intervention of national courts in the arbitral process. Against that backdrop, the research, after interrogating the necessity for the intervention of national courts in the arbitral process and deciding that there is need for limited intervention by national courts to facilitate rather than impede the arbitral process, then proceeds to examine the correct extent of and the instances when such intervention is required. Very importantly too, the research poses for itself, the question of what extent is the current Nigerian arbitration legal framework a barrier to the observance of the doctrine of non-intervention of national courts in the arbitral process and what are the prospects for reform. To answer that, the relevant provisions of the Nigerian Arbitration and Conciliation Act relating to the question of judicial intervention in the arbitral process are examined in detail to highlight their imperativeness or otherwise. In this regard, the provisions of the Act are considered in three broad stages of the arbitral process: after the institution of the arbitration; the stage of the arbitration proceedings proper; and at the post award stage of recognition and enforcement of awards. In the final analysis, the work proffers some policy recommendations. Specifically, the need for an urgent amendment of the Nigerian Arbitration and Conciliation Act, the Bill for which has been pending before the Nigerian National Assembly for years was stressed.

Key words – Arbitration, Arbitral process, Arbitral awards, judicial interference, judicial non-interference, jurisdiction, National courts, Nigerian courts.