DRAFT FEDERAL ARBITRATION AND CONCILIATION BILL
ARRANGEMENT OF SECTIONS
PART 1
ARBITRATION
Arbitration Agreement
SECTION
1. General Provisions
2.
Form of arbitration agreement.
3.
Arbitration agreement
irrevocable except by agreement or leave of court.
4.
Death of party.
5.
Power to stay court proceedings
on the same substantive claim.
Composition of Arbitral Tribunal
6.
Number of arbitrators.
7.
Appointment of arbitrators.
8.
Umpire.
9.
Grounds for challenge.
10.
Challenge procedure.
11.
Removal of arbitrator by court.
12.
Termination of mandate due to
failure or impossibility to act.
13.
Appointment of substitute
arbitrator.
Immunity and Jurisdiction of
14.
Immunity of arbitrator.
15.
Competence of arbitral tribunal
to rule on its jurisdiction.
16.
Rules applicable to substance
of dispute.
17.
Power of court and arbitral
tribunal to order interim measure of protection.
Conduct of Arbitral Proceedings
18.
Equal treatment of parties.
19.
Arbitral proceedings.
20.
Place and Time of arbitration.
21.
Commencement of arbitral
proceedings.
22.
Application of Statutes of
Limitations to arbitral proceedings.
23.
Language to be used in arbitral
proceedings.
24.
Points of claim and defence.
25.
Remedies.
26.
Hearing and written
proceedings.
27.
Consolidation and Concurrent
hearing.
28.
Default of a party.
29.
Power of arbitral tribunal to
appoint expert.
30.
Power of court to order
attendance of witness.
Making of Award and Termination of Proceedings
31.
Decision making by arbitral
tribunal.
32.
Settlement.
33.
Interest.
34.
Form and contents of award.
35.
Termination of proceedings.
36.
Notification of award and power
to withhold award for fees and expenses.
37.
Correction and interpretation
of award and additional award.
Costs
38.
Costs of the arbitration.
39.
Deposit of costs.
40.
Security for costs.
41.
Joint and several liability of
the parties for arbitrator’s fees and expenses.
Recourse against Award
42.
Application for setting aside
an arbitral award.
Recognition and Enforcement of Awards
43.
Recognition and enforcement of
awards.
44.
Refusal of recognition or
enforcement of awards.
Provisions applicable only to international arbitration
45. Appointment in default
46. Application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
General
47.
Waiver of right to object.
48.
Extent of court intervention.
49.
Extent of application of this
Act to arbitration.
50.
Extension of time.
PART II
CONCILIATION
51.
Right to settle dispute by
conciliation.
52.
Request to conciliate.
53.
Commencement of conciliation
proceedings.
54.
Appointment of conciliators.
55.
Action by the conciliation
body.
56.
Terms of settlement.
57.
Impartiality of conciliator.
58.
Disclosure of Information.
59.
Confidentiality of information
and proceedings.
60.
Admissibility of evidence in
other proceedings.
61.
Conciliator acting as
arbitrator.
62.
Enforcement of Settlement
Agreement.
63.
Conciliation Rules.
PART III
MISCELLANEOUS
64.
Receipt of written communication.
65.
Interpretation.
66.
Short title and application.
SCHEDULES
FIRST
SCHEDULE
Arbitration
Rules
SECOND
SCHEDULE
Convention on the Recognition and Enforcement of
Foreign Arbitral
Awards
THIRD SCHEDULE
FOURTH SCHEDULE
Conciliation Rules
_____________________
CHAPTER A18
BILL
To reform the law relating to commercial arbitration and conciliation
BE
IT ENACTED by the National Assembly of the Federal Republic of Nigeria, as
follows:
CONTENTS
OF BILL
PART I
ARBITRATION
Arbitration agreement
1. General Principles and Scope of Application
The provisions of this Part are founded on the following principles,
and shall be construed accordingly -
(a)
the object of arbitration is to
obtain the fair resolution of disputes by an impartial tribunal without
unnecessary delay or expense;
(b)
the parties should be free to
agree how their disputes are resolved, subject only to such safeguards as are
necessary in the public interest.
2. Form of arbitration agreement
(1) ‘Arbitration
agreement’ is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not. An arbitration
agreement may be in the form of an arbitration clause in a contract or in the
form of a separate agreement.
(2) The
Arbitration agreement shall be in writing. ‘Writing’ means any form, including,
without limitation, a data message that provides a record of the arbitration
agreement or is otherwise accessible so as to be useable for subsequent
reference.
(3) ‘Data
message’ means information generated, sent, received or stored by electronic,
optical or similar means, including, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy.
(4)
Furthermore, an arbitration agreement is
in writing if it is contained in an exchange of points of claim and defence in
which the existence of an agreement is alleged by one party and not denied by
the other.
(5)
For the avoidance of doubt, the
reference in a contract or a separate arbitration agreement to a writing
containing an arbitration clause constitutes an arbitration agreement in writing,
provided that the reference is such as to make that clause part of the contract
or the separate arbitration agreement, notwithstanding that the contract or the
separate arbitration agreement has been concluded orally, by conduct or by
other means not in writing. In such a
case, the writing containing the arbitration clause constitutes the arbitration
agreement for the purposes of Section 43 of this Act.
3. Arbitration
agreement irrevocable except by agreement or leave of court
Unless a contrary intention is expressed therein, an arbitration
agreement shall be irrevocable except by agreement of the parties or by leave
of the court or a judge.
4. Death
of party
An arbitration agreement shall not be invalid by reason of the death
of any party thereto but shall, in such an event, be enforceable by or against
the personal representative of the deceased.
5. Power
to stay court proceedings on the same substantive claim
(1) A
court before which an action is brought in a matter which is the subject of an arbitration
agreement shall, if a party so requests not later than when submitting his
first statement on the substance of the dispute, refer the parties to
arbitration unless it finds that the agreement is null and void, inoperative or
incapable of being performed.
(2) Where
an action referred to in subsection (1) of this section has been brought before
a court, arbitral proceedings may nevertheless be commenced or continued, and
an award may be made by the arbitral tribunal while the matter is pending before
the court.
Composition of Arbitral Tribunal
6. Number
of arbitrators
(1) The parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire.
(2) Unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or any other even number shall be deemed as requiring the appointment of an additional arbitrator as chairman of the tribunal.
(3) If there is no agreement as to the number of arbitrators, the tribunal shall consist of a sole arbitrator.
7. Appointment of arbitrators
(1) Subject
to subsections (2) and (3) of this section, the parties may specify in the arbitration
agreement the procedure to be followed in appointing an arbitrator or they may designate
or agree to designate an appointing authority of their choice.
(2) If, or to the extent that the parties have not specified a procedure but they have designated an appointing authority, the provisions of paragraphs (a) to (i) of this sub-section shall apply, that is -
(a) If a
sole arbitrator is to be appointed, either party may propose to the other the
names of one or more persons, one of whom would serve as the sole arbitrator.
(b) If
within thirty days after receipt by a party of a proposal made in accordance
with paragraph (a) of this subsection, the parties have not reached agreement
on the choice of a sole arbitrator, the sole arbitrator shall be appointed by
the designated appointing authority.
(c) If three arbitrators are to be appointed, each party shall appoint one arbitrator; and two arbitrators thus appointed shall choose the third arbitrator who shall act as the presiding arbitrator of the arbitral tribunal.
(d) If
within thirty days after the receipt of a party’s notification of the
appointment of an arbitrator, the other party has not notified the first party
of the arbitrator he has appointed, the first party may request the appointing
authority previously designated by the parties to appoint the second
arbitrator.
(e) If
within thirty days after the appointment of the second arbitrator, the two
arbitrators have not agreed on the choice of the third and presiding
arbitrator, the third and presiding arbitrator shall be appointed by the
appointing authority in the same way as a sole arbitrator would be appointed
under subsections (c) and (d) of this section.
(f) When
the appointing authority is requested to appoint an arbitrator pursuant to the
provisions of this section, the party which makes the request shall send to the
appointing authority a copy of the notice of arbitration, a copy of the
contract out of or in relation to which the dispute has arisen and a copy of
the arbitration agreement if it is not contained in the contract, and the
appointing authority may require from either party such information as it deems
necessary to fulfil its functions under this Act.
(g) Where the names of one or more persons are
proposed for appointment as arbitrators, their full names, addresses and
nationalities shall be indicated, together with a description of their
qualifications.
(h) Except as otherwise agreed by the parties, no person shall be disqualified from being appointed as an arbitrator by reason of his nationality.
(i) In making the appointment, the appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well, the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.
(3) Subject
to section 45 of this Act, Where no procedure is specified under subsection (1)
of this section and no appointing authority is designated or agreed to be
designated by the parties -
(a) in
the case of an arbitration with three arbitrators, each party shall appoint one
arbitrator and the two thus appointed shall appoint the third, so however, that
-
(i) if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party, that other party, having duly appointed his arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator, and
(ii)
if the party in default does
not within 7 clear days of that notice being given, make the required
appointment and notify the other party that he has done so, the other party may
appoint his arbitrator as sole arbitrator whose award shall be binding on both
parties as if he had been so appointed by agreement.
(iii)
if the two arbitrators fail to
agree on the third and presiding arbitrator within thirty days of their
appointments, the appointment shall be made by the Court on the application of
any party to the arbitration agreement;
(b) in
the case of an arbitration with one arbitrator, where the parties fail to agree
on the arbitrator, the appointment shall be made by the Court on the
application of any party to the arbitration agreement made within thirty days
of such disagreement.
(4) Save as otherwise specifically provided
under this Act, where, under an appointment procedure agreed upon by the
parties -
(a) a
party fails to act as required under the procedure; or
(b) the
parties or two arbitrators are unable to reach agreement as required under the
procedure; or
(c) a
third party, including an institution, fails to perform any duty imposed on it
under the procedure,
any party may request the Court to take the necessary measure,
unless the appointment procedure agreed upon by the parties provides other
means for securing the appointment.
(5) A decision
of the Court under subsections (2) and (3) of this section shall not be subject
to appeal.
(6) The Court in exercising its power of appointment under subsections (2) and (3) of this section shall have due regard to any qualifications required of the arbitrator by the arbitration agreement and such other consideration as are likely to secure the appointment of an independent and impartial arbitrator.
(7) In this Part of this Act, all references to “third and presiding” arbitrator shall be construed as including an “additional” arbitrator appointed under section 6(2) of this Act.
8. Umpire
(1) Where the parties have agreed that there is to be an umpire, they are free to agree what the functions of the umpire are to be, and in particular-
(a) whether he is to attend the proceedings,
and
(b) when
he is to replace the other arbitrators as the tribunal with power to make
decisions, orders and awards.
(2) If or to the extent that there is no such agreement, the following provisions apply.
(3) The umpire shall attend the proceedings and be supplied with the same documents and other materials as are supplied to the other arbitrators.
(4) Decisions, orders and awards shall be made by the other arbitrators unless and until they cannot agree on a matter relating to the arbitration. In that event they shall forthwith give notice in writing to the parties and the umpire, whereupon the umpire shall replace them as the tribunal with power to make decisions, orders and awards as if he were sole arbitrator.
(5) If the arbitrators cannot agree but fail to give notice of that fact, or if any of them fails to join in the giving of notice, any party to the arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court which may order that the umpire shall replace the other arbitrators as the tribunal with power to make decisions, orders and awards as if he were sole arbitrator.
(6) The
leave of the court is required for any appeal from a decision of the court
under this section.
(7) The provisions of this part of this Act in relation to the appointment, challenge and removal of a third and presiding arbitrator shall also apply to the appointment of an umpire.
9. Grounds
for challenge
(1) Any
person who knows of any circumstances likely to give rise to any justifiable
doubts as to his impartiality or independence shall, when approached in
connection with an appointment as arbitrator, forthwith disclose such
circumstances to the parties.
(2) The
duty to disclose imposed under subsection (1) of this section shall, continue
after a person has been appointed as an arbitrator and subsist throughout the
arbitral proceedings, unless the arbitrator had previously disclosed the
circumstances to the parties.
(3) An
arbitrator may be challenged -
(a) if
circumstances exist that give rise to justifiable doubts as to his impartiality
or independence; or
(b) if he does not possess the
qualifications agreed by the parties.
(4) A
party may challenge the arbitrator appointed by him, only for reasons of which
he becomes aware after the appointment has been made.
10. Challenge
procedure
(1) The
parties may determine the procedure to be followed in challenging an arbitrator
or they may designate or agree to designate an appointing authority of their
choice for the purpose of challenging an arbitrator.
(2) Where
no procedure is determined and no appointing authority has been designated or
agreed to be designated under subsection (1) of this section, a party who intends
to challenge an arbitrator shall, within fifteen days of becoming aware of the
constitution of the arbitral tribunal or becoming aware of any circumstances
referred to in section 9 of this Act, send to the arbitral tribunal a written
statement of the reasons for the challenge.
(3) The
challenge shall be notified to the other party, to the arbitrator who is
challenged and to the other members of the arbitral tribunal and the
notification shall be in writing and shall state the reason for the challenge.
(4) When
an arbitrator has been challenged by one party, the other party may agree to
the challenge and the challenged arbitrator may also, after the challenge,
withdraw from his office; but the fact that the other party agrees to the
challenge or that the arbitrator withdraws does not imply acceptance of the
validity of the grounds for the challenge.
(5) Where
the other party agrees to the challenge or the challenged arbitrator withdraws,
the procedure provided in section 7 of this Act shall be used in full for the
appointment of the substitute arbitrator, even if during the process of
appointing the challenged arbitrator, a party had failed to exercise his right
to appoint or to participate in the appointment.
(6) Unless the arbitrator who has been challenged
withdraws from office or the other party agrees to the challenge, the arbitral
tribunal or where the parties have designated an appointing authority, the
appointing authority shall decide on the challenge.
11. Removal
of arbitrator by court
(1) A
party to arbitral proceedings may (upon notice to the other parties, to the
arbitrator concerned and to any other arbitrator) apply to the court to remove
an arbitrator on any of the following grounds-
a.. that
circumstances exist that give rise to justifiable doubts as to his
impartiality;
b. that
he does not possess the qualifications required by the arbitration agreement;
c. that
he is physically or mentally incapable of conducting the proceedings or there
are justifiable doubts as to his capacity to do so;
d. that
he has refused or failed to use all reasonable despatch in conducting the
proceedings or making an award, and that substantial injustice has been or will
be caused to the applicant.
(2) If
there is an arbitral or other institution or person vested by the parties with
power to remove an arbitrator, the court shall not exercise its power of
removal unless satisfied that the applicant has first exhausted any available
recourse to that institution or person.
(3) The
arbitral tribunal may continue the arbitral proceedings and make an award while
an application to the court under this section is pending.
(4) Where
the court removes an arbitrator, it may make such order as it thinks fit with
respect to his entitlement (if any) to fees or expenses, or the repayment of
any fees or expenses already paid.
(5) The
arbitrator concerned is entitled to appear and be heard by the court before it
makes any order under this section.
12. Termination
of mandate due to failure or impossibility to act
(1) The
mandate of an arbitrator shall terminate if -
(a)
he withdraws from office; or
(b)
the parties agree to terminate
his appointment by reason of his inability to perform his functions; or
(c)
for any other reason he fails
to act without undue delay.
(2) The fact that -
(a)
an arbitrator withdraws from
office under subsection (1) of this section or under section 10 (6) of this
Act; or
(b)
a party agrees to the
termination of the mandate of an arbitrator
shall not be construed as implying the existence of any ground or
circumstances referred to in subsection (1) of this section or section 9(1) of
this Act.
13. Appointment
of substitute arbitrator
(1) Where
the mandate of an arbitrator terminates –
(a)
under sections 10, 11 or 12 of
this Act; or
(b)
because of his withdrawal from
office for any reason whatsoever; or
(c)
because of the revocation of
his mandate by agreement of the parties; or
(d)
because of any other reason
whatsoever,
a substitute arbitrator shall be appointed in accordance with the
same rules and procedure that applied to the appointment of the arbitrator who
is being replaced.
(2) Where
an arbitrator fails to act or in the event of the de jure or de facto impossibility of his performing his functions, the
procedure in respect of the challenge and replacement of an arbitrator as
provided in sections 7 and 10 of this Act shall apply.
14. Immunity
of Arbitrator
(1) An arbitrator is not liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator unless the act or omission is shown to have been in bad faith.
(2) Subsection (1) applies to an employee or agent of an arbitrator as it applies to the arbitrator himself.
(3) This
section does not affect any liability incurred by an arbitrator by reason of
his resigning.
Jurisdiction of Arbitral Tribunal
15. Competence
of arbitral tribunal to rule on its jurisdiction
(1) An
arbitral tribunal shall be competent to rule on questions pertaining to
its own jurisdiction and on any
objections with respect to the existence or validity of an arbitration
agreement.
(2) For
the purposes of subsection (1) of this section, an arbitration clause which
forms part of a contract shall be treated as an agreement independent of the
other terms of the contract and a decision by the arbitral tribunal that the
contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.
(3) In
any arbitral proceedings, a plea that the arbitral tribunal -
(a)
does not have jurisdiction may
be raised not later than the time of submission of the points of defence and a
party is not precluded from raising such plea by reason that he has appointed
or participated in the appointment of an arbitrator;
(b) is
exceeding the scope of its authority, may be raised as soon as the matter
alleged to be beyond the scope of its authority is raised during the
proceedings,
and the arbitral tribunal may, in either case admit a later plea if
it considers that the delay was justified.
(4) The
arbitral tribunal may rule on any plea referred to it under subsection (3) of
this section, either as a preliminary question or in an award on the merits and
such ruling shall be final and binding. Where the tribunal rules upon its
jurisdiction as a preliminary question, it may continue with the proceedings
and make an award notwithstanding that a party has recourse to a court in
respect of such ruling.
16. Rules
applicable to substance of dispute
(1) The arbitral tribunal shall not decide ex aequo et bono or as amiable compositeur, unless the parties have expressly authorised it to do so.