Arbitration Agreement,jurisdiction and its enforcing nature.
INTRODUCTION
Over the years, contractual agreements now contemplate disputes between parties, hence dispute resolution clauses are couched into such agreement.
However in carrying out this term of contractual agreement, arbitration amongst other non-adversarial Alternative Dispute Resolution has taken the lead. Also despite the avalanche of arbitration agreement clauses in agreements, the issue of challenge of jurisdiction of the arbitrator(s) remains a recurring dispute for determination in the Nigerian courts. For instance, if the arbitrators sought to resolve an issue beyond their competence, they could be restrained from doing so by the courts on the plea of any of the parties.
The question of jurisdiction is typically a preliminary matter for the court to determine. This means whether it is valid and whether the matter lies within the scope of the arbitration agreement. Or whether as a matter of construction of the arbitration agreement, a tribunal possesses the jurisdiction to hear a dispute.
Following from the foregoing, to promote a hitch-free process, what then are the determinants of jurisdiction in arbitral proceeding in view of the Arbitration and Conciliation Act, 1988.Cap a18 Vol. 1. Law of the Federal Republic of Nigeria. 2004, case laws and literal reasoning of the courts and authorities?
OVERVIEW OF ARBITRATION AND ARBITRAL AGREEMENTS
Arbitration is an adjudicatory process or a private legal technique for the resolution of disputes outside the courts, in which a neutral third party (a person or panel) is empowered to decide to decide disputed issues referred to it, after hearing evidences and arguments from the parties.
In Nigeria, arbitration is now being preferred to litigation largely owing to the limited jurisdiction and enforceability of court judgements. This is evidential in the growing number of arbitration bodies relevant to national and international arbitration that are based in Nigeria.
ARBITRATOR’S JURISDICTION AND REFERENCE POWER
Jurisdiction of the arbitral tribunal has been a crux of interest. The Nigeria ACA (1988) in section 12 and 13 essentially requires the arbitral tribunal to possess jurisdiction. Rhodes-Vivour JSC in the case of NNPC v Clifco Nig Ltd (supra) succinctly described jurisdiction in judicial proceeding thus:
Jurisdiction is the heart and soul of a case. No matter how well a case is conducted and decide if the court has no jurisdiction to adjudicate, the whole exercise will amount to a nullity and mere academic exercise.
Hence pursuant to ACA (1988), the jurisdiction and powers of arbitrator(s) include:
To rule on its own jurisdiction.
To order interim measures of protection in respect of the subject matter of the dispute.
To determine the procedure to be admitted in arbitral proceedings.
To administer oaths and take affirmation.
To determine the language of the arbitral proceedings.
To appoint experts.
To record a settlement in form of an award.
The importance of jurisdiction has largely orchestrated most arbitration statutes and institutional rules to provide for the arbitrators to render a preliminary arbitration award on jurisdiction.
CHALLENGE OF JURISDICTION IN ARBITRAL PROCEEDINGS
It is not uncommon to find disputants through their counsel filing applications seeking arbitrators to disqualify themselves from commencing a case or rom further participation in a proceeding on grounds of likelihood of lack of jurisdiction. When this occurs, the position of the law?
Actually, jurisdiction is a threshold matter, and a question of law. There seem to be a universal position of the law and the issue of jurisdiction can be raised at any time of the proceedings in the court of first instance, on appeal, and even in the Supreme Court. However, this rule seem vacated in the NNPC v Clifco (Nig) Ltd on issue 1 for determination premised on the provision of ACA(1988) section 12(3) thus:
CANDIDATE NUMBER: 132467
In any arbitral proceeding, a plea that the arbitral tribunal (a) does not have jurisdiction may be raise not later than the time of submission of the point of defence and a party is not precluded from raising such a plea by reason that he had appointed or participated in the appointment of the arbitrator and (b) the arbitral tribunal may in either case admit a latter plea if it considers that the delay was justified. In that case, his lordships concurred with the lead judgment delivered by Rhodes Vivour that:
The interpretation of the above and the position on the issue in arbitral proceedings is that jurisdiction to hear and determine a dispute is raised before the arbitral panel within the time stipulated in the arbitral Act. It can only be raise after the stipulated period if the arbitral panel finds reason for the delay justified. An appeal on issue of jurisdiction can be entertained by the High Court provided there was no submission to jurisdiction. A party who did not raise the issue of jurisdiction before the arbitral panel is foreclosed from raising for the first time in the High Court. The reason being that the foundation of jurisdiction in an arbitration is submission.
FACTORS DETERMINING JURISDICTION IN ARBITRAL PROCEEDINGS
The position of the law applicable in the regular courts as related to jurisdiction seem largely in variance to and does not apply to arbitral proceedings. For instance, section 12(1) of the ACA 1988 act governs the issue of jurisdiction in arbitral proceedings in Nigeria. The arbitrator is only authorised to exercise the jurisdiction and powers by;
Details of the provisions of arbitration agreement
By the arbitration agreement, the parties mutually granted this authority to a tribunal and excluded states courts. Hence, the foundation of jurisdiction in arbitration is the voluntary submission by the parties to arbitrate. This is in accord with the contractual doctrine of party’s autonomy with national and international support. Following from this, a one off clause/ agreement cannot suffice for all types of disputes.
Issus conferred on the arbitrator(s) by the parties
This is the dispute at hand to resolve. For example, claims relating to contract, delay, variation, floatation and common issues are common source of for example construction disputes in Nigeria. Hence, disputants confer an arbitral tribunal to determine in event of their occurrence. However, if the arbitrators seek to or delve into extraneous issues beyond the pleas of the parties, it amount to not only exceeding its bounds and out of jurisdiction but could be restrained from doing so by the court. This position is aptly reinforced by Nigerian law.
Matters conferred by statutes and the law
The scope of the supervening law or rule clearly implicate the arbitrator’s jurisdiction. For example, arbitrators have no jurisdiction over issues, the parties did not agree, and otherwise upon those procedures not included within arbitration agreement. This rule is not premised in the main arbitration agreement but rather on the arbitration statute, rules/guidelines or laws of the state or institutions where the arbitration is held (known as les arbitri or the seat) and perhaps laws of any jurisdiction where the agreement will be enforced.
Under the ACA, where the parties otherwise agreed the arbitrator is at liberty to determine such issues related the jurisdiction thus:
1. The place (or seat) of Arbitration
2. Language of arbitration
3. Arbitration rules for example, power to determine admissibly, relevance materiality and weight of any evidence place before it
4. Conduct of arbitral proceedings.
5. Appoint one or more experts.
6. Make an award.
Intervention of the courts
Under the Nigerian law, arbitral jurisdiction can be conferred by the intervention of the court. This is achieved where the parties refer to the court to derive powers as may be conferred by the applicable laws. Specifically, courts in exercising its powers of appointment of arbitrators the arbitral panel concomitantly assume jurisdiction. However the section has laid responsibilities on the court to give due regard to
Conclusion
Determining the jurisdictional powers of the arbitral panels seems clear-cut except for the entrenched inhibiting factors midst an attendant limitations. Making the issues seeming more complex. The complexity is orchestrated by the determinant factors ranging from parties autonomy, divergent provision of arbitration agreement, issues conferred by the parties, matter conferred by statute, the role of national and international laws etc.
Ochilii Michael o.
INTRODUCTION
Over the years, contractual agreements now contemplate disputes between parties, hence dispute resolution clauses are couched into such agreement.
However in carrying out this term of contractual agreement, arbitration amongst other non-adversarial Alternative Dispute Resolution has taken the lead. Also despite the avalanche of arbitration agreement clauses in agreements, the issue of challenge of jurisdiction of the arbitrator(s) remains a recurring dispute for determination in the Nigerian courts. For instance, if the arbitrators sought to resolve an issue beyond their competence, they could be restrained from doing so by the courts on the plea of any of the parties.
The question of jurisdiction is typically a preliminary matter for the court to determine. This means whether it is valid and whether the matter lies within the scope of the arbitration agreement. Or whether as a matter of construction of the arbitration agreement, a tribunal possesses the jurisdiction to hear a dispute.
Following from the foregoing, to promote a hitch-free process, what then are the determinants of jurisdiction in arbitral proceeding in view of the Arbitration and Conciliation Act, 1988.Cap a18 Vol. 1. Law of the Federal Republic of Nigeria. 2004, case laws and literal reasoning of the courts and authorities?
OVERVIEW OF ARBITRATION AND ARBITRAL AGREEMENTS
Arbitration is an adjudicatory process or a private legal technique for the resolution of disputes outside the courts, in which a neutral third party (a person or panel) is empowered to decide to decide disputed issues referred to it, after hearing evidences and arguments from the parties.
In Nigeria, arbitration is now being preferred to litigation largely owing to the limited jurisdiction and enforceability of court judgements. This is evidential in the growing number of arbitration bodies relevant to national and international arbitration that are based in Nigeria.
ARBITRATOR’S JURISDICTION AND REFERENCE POWER
Jurisdiction of the arbitral tribunal has been a crux of interest. The Nigeria ACA (1988) in section 12 and 13 essentially requires the arbitral tribunal to possess jurisdiction. Rhodes-Vivour JSC in the case of NNPC v Clifco Nig Ltd (supra) succinctly described jurisdiction in judicial proceeding thus:
Jurisdiction is the heart and soul of a case. No matter how well a case is conducted and decide if the court has no jurisdiction to adjudicate, the whole exercise will amount to a nullity and mere academic exercise.
Hence pursuant to ACA (1988), the jurisdiction and powers of arbitrator(s) include:
To rule on its own jurisdiction.
To order interim measures of protection in respect of the subject matter of the dispute.
To determine the procedure to be admitted in arbitral proceedings.
To administer oaths and take affirmation.
To determine the language of the arbitral proceedings.
To appoint experts.
To record a settlement in form of an award.
The importance of jurisdiction has largely orchestrated most arbitration statutes and institutional rules to provide for the arbitrators to render a preliminary arbitration award on jurisdiction.
CHALLENGE OF JURISDICTION IN ARBITRAL PROCEEDINGS
It is not uncommon to find disputants through their counsel filing applications seeking arbitrators to disqualify themselves from commencing a case or rom further participation in a proceeding on grounds of likelihood of lack of jurisdiction. When this occurs, the position of the law?
Actually, jurisdiction is a threshold matter, and a question of law. There seem to be a universal position of the law and the issue of jurisdiction can be raised at any time of the proceedings in the court of first instance, on appeal, and even in the Supreme Court. However, this rule seem vacated in the NNPC v Clifco (Nig) Ltd on issue 1 for determination premised on the provision of ACA(1988) section 12(3) thus:
CANDIDATE NUMBER: 132467
In any arbitral proceeding, a plea that the arbitral tribunal (a) does not have jurisdiction may be raise not later than the time of submission of the point of defence and a party is not precluded from raising such a plea by reason that he had appointed or participated in the appointment of the arbitrator and (b) the arbitral tribunal may in either case admit a latter plea if it considers that the delay was justified. In that case, his lordships concurred with the lead judgment delivered by Rhodes Vivour that:
The interpretation of the above and the position on the issue in arbitral proceedings is that jurisdiction to hear and determine a dispute is raised before the arbitral panel within the time stipulated in the arbitral Act. It can only be raise after the stipulated period if the arbitral panel finds reason for the delay justified. An appeal on issue of jurisdiction can be entertained by the High Court provided there was no submission to jurisdiction. A party who did not raise the issue of jurisdiction before the arbitral panel is foreclosed from raising for the first time in the High Court. The reason being that the foundation of jurisdiction in an arbitration is submission.
FACTORS DETERMINING JURISDICTION IN ARBITRAL PROCEEDINGS
The position of the law applicable in the regular courts as related to jurisdiction seem largely in variance to and does not apply to arbitral proceedings. For instance, section 12(1) of the ACA 1988 act governs the issue of jurisdiction in arbitral proceedings in Nigeria. The arbitrator is only authorised to exercise the jurisdiction and powers by;
Details of the provisions of arbitration agreement
By the arbitration agreement, the parties mutually granted this authority to a tribunal and excluded states courts. Hence, the foundation of jurisdiction in arbitration is the voluntary submission by the parties to arbitrate. This is in accord with the contractual doctrine of party’s autonomy with national and international support. Following from this, a one off clause/ agreement cannot suffice for all types of disputes.
Issus conferred on the arbitrator(s) by the parties
This is the dispute at hand to resolve. For example, claims relating to contract, delay, variation, floatation and common issues are common source of for example construction disputes in Nigeria. Hence, disputants confer an arbitral tribunal to determine in event of their occurrence. However, if the arbitrators seek to or delve into extraneous issues beyond the pleas of the parties, it amount to not only exceeding its bounds and out of jurisdiction but could be restrained from doing so by the court. This position is aptly reinforced by Nigerian law.
Matters conferred by statutes and the law
The scope of the supervening law or rule clearly implicate the arbitrator’s jurisdiction. For example, arbitrators have no jurisdiction over issues, the parties did not agree, and otherwise upon those procedures not included within arbitration agreement. This rule is not premised in the main arbitration agreement but rather on the arbitration statute, rules/guidelines or laws of the state or institutions where the arbitration is held (known as les arbitri or the seat) and perhaps laws of any jurisdiction where the agreement will be enforced.
Under the ACA, where the parties otherwise agreed the arbitrator is at liberty to determine such issues related the jurisdiction thus:
1. The place (or seat) of Arbitration
2. Language of arbitration
3. Arbitration rules for example, power to determine admissibly, relevance materiality and weight of any evidence place before it
4. Conduct of arbitral proceedings.
5. Appoint one or more experts.
6. Make an award.
Intervention of the courts
Under the Nigerian law, arbitral jurisdiction can be conferred by the intervention of the court. This is achieved where the parties refer to the court to derive powers as may be conferred by the applicable laws. Specifically, courts in exercising its powers of appointment of arbitrators the arbitral panel concomitantly assume jurisdiction. However the section has laid responsibilities on the court to give due regard to
Conclusion
Determining the jurisdictional powers of the arbitral panels seems clear-cut except for the entrenched inhibiting factors midst an attendant limitations. Making the issues seeming more complex. The complexity is orchestrated by the determinant factors ranging from parties autonomy, divergent provision of arbitration agreement, issues conferred by the parties, matter conferred by statute, the role of national and international laws etc.
Ochilii Michael o.
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