Vol. I l l , No 1 2017 1 ISSN: 3851-3068 ABU AD JOURNAL OF PUBLIC AND INTERNA TIONAL LA W (AJPIL) C O N T E N T C y b e r W a r f a r e , I n t e r n a t i o n a l L a w a n d t h e E l i z a b e t h A m o 0 . P h . D e n d 1 P r o t e c t i o n o f C u l t u r a l P r o p e r t i e s : I b r a h i m S h e h u P h . D N e e d f o r S t i f f e r M e a s u r e s ? S u c c e s s i o n R i g h t s a n d L e g i t i m a t i o n in O l a r i n d e E . S m a r a n d a a n d 2 1 N i g e r i a : A n A p p r a i s a l o f t n e S t a t u s o f M a u r e e n N g o z i A g b a s i C h i l d r e n B o r n O u t s i d e a S u b s i s t i n g M a r r i a g e C o n t e x t u a l A n a l y s i s o f t h e P r i n c i p l e s a n d F a g b e m i S u n d a y P h . D 4 5 P r o c e d u r e s f o r M a k i n g R e c o u r s e a g a i n s t I n t e r n a t i o n a l A r b i t r a l A w a r d T h e 19 9 9 N i g e r i a n C o n s t i t u t i o n a s t h e S e s a n F a b a m i s e a n d 6 8 B a s i s f o r R e d e f i n i n g t h e C h o i c e o f L a w A d e b a y o F a b a m i s e R u l e s i n N i g e r i a S e x u a l H a r a s s m e n t a n d t h e L a w : M a n i f e s t E b e n e z e r T . Y e b i s i P h . D a n d 8 8 S o c i a l T r a j e c t o r i e s i n t h e N i g e r i a n L o n g e O l u k a y o d e P h . D O r g a n i z a t i o n a l E n v i r o n m e n t T h e R o l e o f I n s t i t u t i o n a l I n v e s t o r s i n A r o m e M . O k w o r i a n d 1 ) 4 C o r p o r a t e G o v e r n a n c e O m o l o w o A n t h o n y T h e D y n a m i c s o f L a b o u r E c o n o m i c s a n d J i m m y 0 . C h i j i o k e P h . D a n d 1 4 0 I m p a c t o n L a b o u r R e l a t i o n s i n N i g e r i a I j a c h i 0 . E z u m a h L L . B ( H o n s ) B . L A n A p p r a i s a l o f C h i l d N e g l e c t i n N i g e r i a : O l u s e g u n O l a i t a n 0 . a n d 1 6 5 A L e g a l P e r s p e c t i v e A d e g b i t e A d e r o n k e P i t f a l l s a n d t h e I m p e r a t i v e C l a r i t y i n t h e A s i a f i t i , C h r i s t o p h e r 1 8 7 C l o s e s t C o n n e c t i o n P r i n c i p l e : C o n f l i c t o f L a w R u l e s o f N i g e r i a i n F o c u s A p p l y i n g H u m a n R i a h t s - B a s e d A p p r o a c h t o H i l a r y O k o e g u a l e 2 1 4 C r i m i n a l J u s t i c e R e f o r m s i n N i g e r i a T h e L e g a l a n d P o l i c y F r a m e w o r k o n t h e P e r e k e d o u J a m e s F a w e i 2 3 6 C r i m e o f K i d n a p p i n g i n N i g e r i a : A C o m p a r a t i v e S t u d y T h e I n t e r n e t o f T h i n g s ( I 0 T ) a n d t h e M o n y e O g o c h u k w u 2 5 5 R i g h t s o f U s e r s : A N i g e r i a n P e r s p e c t i v e . L a w y e r s i n M e d i a t i o n : A N e c e s s i t y f o r E f f e c t i v e O g u n k o r o d e O l u w a y e m i 2 8 0 D i s p u t e R e s o l u t i o n T h e L e g a l i t y o f a F o e t u s a s a H u m a n B e i n g O m i p i d a n , B . A . P h . D a n d 3 0 7 O m i d o y i n , T a i y e J o s h u a T h e N a t i o n a l I n d u s t r i a l C o u r t o f N i g e r i a a n d i t s B a n k o l e F i s a y o A . , 3 1 7 R o l e i n t h e R e s o l u t i o n o f I n d u s t r i a l a n d A i n a I . T . a n d T r a d e D i s p u t e s i n P e r s p e c t i v e M u s o - A g b o n e n i 0 . A S e l e c t i v e A s s e s s m e n t o f t h e A n k a m a , R o s e c a n a G . 3 3 6 R e m e d i e s f o r W r o n g f u l T e r m i n a t i o n o f C o n t r a c t o f E m p l o y m e n t i n N i g e r i a A n I l l u m i n a t i o n o f t h e C o n c e p t s o f N n a m d i G e o r g e I k p e z e 3 4 8 C o r r o b o r a t i n g E v i d e n c e a n d C o r r o b o r a t i o n i n t h e N i g e r i a n E v i d e n c e A c t 2 0 1 1 IBADAN UNIVERSITY LIBRARY ABUAB JOURNAL OF PUBLIC AND INTERNATIONAL LAW AFE BABALOLA UNIVERSITY, ADO-EKITI, NIGERIA VOLUME III No. I 2017 IBADAN UNIVERSITY LIBRARY Print ISSN: 3851 - 3068 . i HI ’ 1D Journal o f Public m id International l*i\v is a publication ol'lhc Department of Public* and International Law, College of Uiw Ale Babalola University, Aclo-Ekili, k.M. 8.5 Ale Babalola Way, Ado-Ekili. llkiti Stale, Nigeria. E-mail: pilaw@abuad.edu.ng Tel: +281 7033112233 PRINTED BY: Afe Babalola University Press, Ado - Ekiti, Ekiti State Km 8.5, Afe Babalola Way, P.M.B. 5454, Ado - Ekiti, Ekiti State Nigeria E-mail: pressucabuad.edu.ng Tel: +2348168641975, +234806747495991. Website: www.abuad.edu.ng All rights reserved. No part of this publication may be reproduced or transmitted in any form or means, or stored in any retrieval system ol any nature without prior written permission ol the Department ol Public and International Diw, College of Uiw, Afe Babalola l niversily, Ado-Ekili, Ekiti Stale. Any unauthorized reproduction or adaptation ol this work will constitute a copyright infringement and will render the doer liable civil and criminal law. Citation Cite as (2017) 3 (1) ABUAD Journal of Public and International Law (AJPIL) IBADAN UNIVERSITY LIBRARY CONTENT Cyber Warfare. International Law and the Elizabeth Ama O. Ph. D and 1 Protection o f Cultural Properties: Ibrahim Shchu Ph. D Need for Stiffer Measure Succession Rights and Legitimation in Olarindc E. Smaranda and 21 Nigeria: An Appraisal of the Status of Maureen Ngo/i Agbasi Children Born Outside a Subsisting Marriage Contextual Analysis of the Principles and Fagbemi Sunday Ph. D 45 Procedures for Making Recourse against International Arbitral Award The 1999 Nigerian Constitution as the Sesan Fabamise and 68 Basis for Redefining the Choice of Law Adebayo Fabamise Rules in Nigeria Sexual Harassment and the Law: Manifest Ebenc/crT. Yebisi Ph, D and 88 Social Trajectories in the Nigerian Longe Olukayode Ph. D Organisation En\ironment The Role o f Institutional Investors in Aromc M. Okvvori and 114 Corporate Governance Omolowo Anthony The Dynamics of Labour Economics and Jimmy O. Chijioke Ph. D and 140 Impact on Labour Relations in Nigeria Ijachi O. Ezumah LL.B (Hons)B.L An Appraisal o f Child Neglect in Nigeria: Olusegun Olaitan O. and 165 A Legal Perspective Adegbite Adcronkc Pitfalls and the Imperative Clarity in the Asiafiti. Christopher 187 Closest Connection Principle: Conflict of Law Rules o f Nigeria in Focus Applying Human Rights-Based Approach to FI i lary Okoeguale 2 14 Criminal Justice Reforms in Nigeria The Legal and Policy Framework on the Perekedou James Fawei 236 Crime of Kidnapping in Nigeria: A Comparative Study The Internet o f Things (IOT) and the Monye Ogochukwu 255 Rights of Users: A Nigerian Perspective. Lawyers in Mediation: A Necessity for Ogunkorodc Oluwayemi 280 Effective Dispute Resolution Oluwadunsin The Legality of Foetus as a Human Being Omipidan. B.A. Ph.Dand 307 Omidoyin. Taiyc Joshua IBADAN UNIVERSITY LIBRARY The National Industrial Court o f Nigeria and its Bankole Fisayo A.. 317 Role in the Resolution of Industrial and Aina I.T. and Trade Disputes in Perspective Musa-Agboneni O. A Selective Assessment o f the Ankama. Rosecana G. 336 Remedies for Wrongful Termination of Contract o f Employment in Nigeria An Illumination of the Concepts of Nnamdi George Ikpeze 348 Corroborating Evidence and Corroboration in the Nigerian Evidence Act 2011 IBADAN UNIVERSITY LIBRARY CONTEXTUAL ANALYSIS OF THE PRINCIPLES AND PROCEDURES FOR MAKING RECOURSE AGAINST INTERNATIONAL ARBITRAL AWARD FAGBEMI SUNDAY1 Abstract An arbitral award once recognised by a court o f competent jurisdiction, is on the same pedestal as the judgment o f a court and therefore enforceable like court judgments. However, an award may be set aside on a good cause shown. The thrust o f this paper is, therefore, to undertake contextual analysis o f the principles and procedures for making recourse against arbitral award. The pertinent questions which the paper seeks to answer amongst others are: What are the requirements o f a valid award? What are the procedures fo r making recourse against an arbitral award? And what are the grounds fo r making recourse against arbitral award? Taking into cognisance that the essence o f successful recourse against arbitral award is to set it aside, this paper addresses the above questions and concludes with recommendation among others that parties and their legal representatives should ensure that both parties and arbitral tribunal comply with the provisions o f the law regulating the agreement o f parties and arbitral proceedings to avoid recourse against arbitral award. Keywords: Principles; Procedures; Recourse, and International Arbitral Award 1.0. INTRODUCTION An award is a Final decision or outcome of an arbitral process and it is binding on and enforceable against the parties named in it. It is the decision or determination rendered by a third party neutral called arbitrator(s) upon a controversy submitted to them, or a document embodying such decision. 1 1 LL.13 (Hons) llc-lfc. LL.M llc-lfe, Ph.D. Ibadan. BL. Senior Lecturer Department of Public Law. Faculty of Law. Inivcrsity4 5of Ibadan. Ibadan, Nigeria Telephone: 0S0347O9340; USI0IN002SO e-mail: sakinfagbemilawfa gmail.com IBADAN UNIVERSITY LIBRARY Parties who go to the trouble and expense of taking theirs disputes to international arbitration do so in the expectation that, unless a settlement is reached outside their submission, the proceedings will end with an award. They also expect that, subject to any right of appeal or recourse, the award will be final and binding on them.2 The award made by an arbitral tribunal has the same status in the adjudicatory process as the final judgment of a court of competent jurisdiction in determining issues brought before it with respect to litigation.3 A successful party in an arbitral proceeding, who has his award recognised for enforcement, assumes, as a matter of course, that the unsuccessful party will in good faith comply with the terms of the award. This is because, it is presumed that the parties having voluntarily submitted their dispute to arbitration also chose the arbitrators as the judge of their dispute for better or worse.45 Although an award is binding and enforceable against the parties named on it. However, the law has made provisions and created circumstances where an award may be challenged in court by way of recourse. The reason for this is not farfetched. For instance, Craig,3 observed that no one likes losing. So it is not surprising that when a client is disappointed with an arbitral award, the first question he asks his lawyer is; ‘How can I appeal?’ The answer to this question would depend on whether the relevant rules of arbitration establish an 2 Rcdfcm, A and Hunter, M. Law and Practice o f International Commercial Arbitration (4'h cd. London: Sweet & Maxwell, 2004) p. 405. 3 See the case of lias Pal Cazi Construction Company Ltd v FCPA. (2001) 10 NWLR (Pt. 722) page 559 at 572. In that case, Hon. Justice Katsina-Alu pronounced thus: “Arbitration proceedings as I have already shown are not the same thing as negotiations for settlement out of court. An award made, pursuant to arbitration proceedings constitute the final judgment on all matters referred to the arbitrator. It has a binding effect and it shall upon application in writing to the court be enforceable by the court... I must say nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. 4 Buba, T. M. 'Enforcement of Award Judgment in Nigeria' (May 2012) 2 (I) ('Diversity o f Ibadan Law Journal. 45-63:43. 5 Craig. 'Uses and Abuses o f Appeal from Aw4ar6ds' (19X8) 4 Arbitration International 74 at 177 IBADAN UNIVERSITY LIBRARY internal appeal procedure. Secondly, it would depend on whether the law of the seat of the arbitration contains any provisions for challenging an arbitral award; and if so, what provisions?6 Even where the relevant rules of arbitration provide that an award is to be final and binding on the parties and that the parties had agreed to carry it out without delay,7 the law of the seat of arbitration usually provides some ways of making recourse against an arbitral award. The thrust of this paper is to undertake contextual analysis of the principles and procedures for making recourse against arbitral award. The pertinent questions which the paper seeks to answer among others include: What are the requirements of a valid award? What are the procedures for making recourse against an arbitral award? And what are the grounds for making recourse against arbitral award? In answering these questions, this paper is divided into six sections. The first section is this introduction, while the second section of the paper examines the requirements of a valid arbitral award. Section three highlights the procedures for making recourse against arbitral award. In section four, the paper discusses the grounds for making recourse against arbitral award. Section five analyses the consequences of a successful recourse against an arbitral award, while the sixth section concludes the paper with recommendations. New York Convention on the Recognition and Enforcement of foreign Arbitral Award-. 1958 (New York Convention). Art.Yl (e); United Nations Commission on International Trade Law (l NCITRAL) Model Law on International Commercial Arbitration 1985 (Model Law), art. 56 (I) (a) (v). Or if the parties have chosen a different procedural law to govern the arbitration, under that law. International Chamber of Commerce (ICC) A4r7bitration Rules art 2s > IBADAN UNIVERSITY LIBRARY 1.1. The Requirements of a Valid Arbitral Award Parties resort to arbitration to obtain a final and binding resolution of their dispute. It is the arbitrators’ role to resolve the dispute by deciding all of the disputed issues and recording their decision in a document, called an arbitral award. The arbitrator must bear in mind the relevant legislation not only during the conduct of proceedings but also when he is writing his award and he must be guided accordingly. The relevant laws would be the provisions of the applicable law of the disputes referred to as the substantive law, which determines the rights and obligations of the parties under the contract, as well as lex arbitri, which is the law of the arbitration agreement. The arbitrator must also bear in mind the applicable procedural rules and ensures compliance with the mandatory requirement of lex loci arbitri} irrespective of the provisions of any other law stipulated by the parties as the law of the arbitration agreement* 10* 12. It is trite that an award must resolve a substantive issue, not merely procedural matter.11 Thus, purely procedural or administrative decisions are not considered awards by international arbitration conventions or national arbitration laws1-. Procedural issue should deal exclusively with matters regarding the conduct of the proceedings. However, the distinction between procedural and substantive issues may not always be clear-cut. For example, a decision on the burden of ' Tim Hardy and others. 'Drafting Arbitral Awards. Chartered Institute of Arbitrators, (Nov 22, 2016) . accessed on 22"d July. 2017. (> That is the arbitration law of the place where the reference is being held. 10 For instance, one of the principal advantages of arbitration over court proceedings is that arbitral awards can be enforced in over 150 jurisdictions around the world pursuant to the UN Convention for the Recognition and Enforcement of Foreign Arbitral Aw ards (195 -i. " However, it is accepted that decisions on jurisdiction constitute awards. See. eg. Philip Morris Asia Limited (Hong Kong) v The Commonwealth o f Australia. Award on I .risdiction and Admissibility. PCA Case No 2012-12. 15 December 2015. 12 Rouven Bodenheimer and Others. ' Toolkit for \ward Writing IBA Arb'. 4<> S' committee September 201 (>. International Bar Association4 8< .. W: • accessed on I Tine. 2017 IBADAN UNIVERSITY LIBRARY proof might not require the form of an award, whereas such an order would deal with a legal question that could have a major impact on the outcome of the substantive decision. It is also important to bear in mind that even where procedural orders deal with clearly procedural issues, such as setting dates for the submission of statements, dates for hearings and containing decisions on whether certain witnesses should testify at a hearing or decisions on requests for the production of documents, they are likely to have a significant impact on the conduct of the arbitration proceedings and on their outcome.13 In spite of the dichotomy between substantive and procedural requirements, it is settled that failure to comply with the agreed procedures and the requirements as to forms and contents may lead to challenges and create difficulties with enforcement.Usually, parties may agree on the form of the award and once this is done, the arbitrators are required to comply with the parties agreement. In summary, an award should be in writing;14 *contain reasons for the decision, unless the parties have agreed otherwise or if it is a consent award;13 state the date and the place of arbitration; signed by all of the arbitrators or contain an explanation for any missing signature(s). Award should also contains the following essential elements: the names and addresses of the arbitrators, the parties and their legal representatives; the terms of the arbitration agreement between the parties; a summary of the tacts and procedure including how the dispute arose; a summary of the issues and the respective positions of the parties; an analysis of the arbitrators’ findings as to See Trittmann. R. 'The Interplay between Procedural and Substantive Law in International Arbitration’ 12 0 16) ( I) Schicds l Z 7. See ss. 31 and 32 (2) e. o f the Indian Arbitration and Coneiliation Act. 1996: see also Maharashtra State Electricity Hoard l \ Malar Switchgears Ltd. 2003 (Sapp) Arb LR 39. ('3 (I tom). Dobson. P. Charlcswcrth'.s Easiness l.aw { I61'1 cd. London: S .act cc Maxwell. |9'>7) p 24. 1 •• Satwant Singh Sndhi v St a ■ o f I’unjah (1999) (3) S ( A ' |* .... ;1; |vJd that once an arbitiaior has signed an \ward. e becomes fu4n9ctus officio IBADAN UNIVERSITY LIBRARY the facts and application of the law to these facts; and operative part containing the decision(s).16 Apart from practical task of writing the award, the arbitrator must bear in mind the need to act and seen to have acted in accordance with the principle of natural justice. The arbitrator must act at all times in good faith during the proceedings and without bias, giving each party the opportunity of presenting his case, being aware of the opponent's case and contradicting that position with that of the opponent. The arbitrator must not have any interest in .the subject matter of the dispute. The law of the arbitration agreement would usually stipulates the general principles to be adhered to in the proceedings. For instance, section 14 of the Arbitration and Conciliation Act (ACA)17 * stipulates that in any arbitral proceedings, the arbitral tribunal is to ensure equal treatment of the parties and give to each party a full opportunity to present his case. The arbitrator must comply with the applicable principles from the commencement of the proceedings to the writing and publication of the award. 1 s 16 Gary B. Born, International Commercial Arbitration (2nd cd, Kluwer Law International. 2014). p. 3037; Philipp Peters and Christian Kollcr, ‘The Notion of Arbitral Award: An Attempt to Overcome a Babylonian Confusion in Christian Klauseggcr and others (eds). Austrian Yearbook on International Arbitration (2010), p. 162; Julian D. M. Lew and others. Comparative International Commercial Arbitration (Kluwer Law International, 2003). pp. 634-635. Bernardo M. Crcniadcs, 'The Arbitral Award’ in Lawrence Newman and Richard Hill (eds). The Leading Arbitrators' Guide to International Arbitration (Juris 2014). p. SIS. There is an exception where the parties have agreed upon the inclusion of a conditional element in the award. However, such awards should be avoided. See Peter Ash.ford. Ilamlbook on Internatiomil Commercial Arbitration (2nd cd. Juris 2014). p. 426. See generally Yikr.mt Sopan Yadax 'An Analytical Study o f Arbitral Awards in India’ (2015) 3. Issue 2 International doitrnal o f Advanced Research. S27-S32. 1 The Act wa promulgated in 19SS but has been incorporated into the 2004 of laws of the I’ede: ..'.ion o f dgcria as Cap AIS. I aws of the Federation of Nigeria 2004 See Rnicclcv h (I nket v. Metropolitan Hoar5d0 o f Works. ( 1870) L.R. 5 L\. 22.1 IBADAN UNIVERSITY LIBRARY According to Nwadialo,19 an award terminates an arbitral proceedings. Hence, an award once delivered creates rights in favour of the successful party and the parties to the arbitration are obliged to comply with the award of the arbitrator.20 21Furthermore, an award operates as res judicata1' Consequently, if any action or proceedings are commenced afterwards in respect of such matters, the defendant can plead the award as an estoppel.22* In the case of Cummings v. Heard,1' there was a dispute between the plaintiff and the defendant as to the amount of money owing from the defendant to the plaintiff. The matter was submitted to arbitration and the arbitrator awarded the plaintiff the sum of E145. Later, the plaintiff commenced another action in court claiming more than the said sum. It was held that the plaintiff was estopped from instituting such an action. In essence, the finality of an award is to bring an end to litigation.24 19 Nwadialo. F. Civil Procedure in Nigeria. (2nd cd. Nigeria: University o f Lagos Press, 2000) p. 1110. " Note that there arc several types of awards namely consent award, interim award, interlocutory award, default award, final award and additional award. However, the focus of this paper is to address a recourse to final award. Sec Fagbemi. S. A. “Recognition and Enforcement of Arbitral Awards: The Law and Practice' (2006) vol. 5, University o f Ibadan Journal o f Private and Business Law, 111, 115-118; Orojo, J. O and Ajomo, M. A. Law and Practice o f Arbitration and Conciliation in Nigeria (Lagos: Mbeyi & Associates, 1999) p. 241 and Blackaby, N., Patasides, C., Rcdfern, A and Hunter, M. Redfern and Hunter on International Arbitration. (5Ih cd. New York: Oxford University Press, 2009) p. 525. 21 That is, once a matter is adjudicated upon and decision reached, the claimant is barred, irrespective of whether it was successful or not in the proceeding, from bringing the same claim against the same party. *’ In the ease of,4. (7. River State v A. G. Akwa-lbom & Anor{2011) 2 SCM 1, it was held that the term estoppel means an admission or something which the law views as equivalent to an admission. See also the case of Philip Njoku v Felix Ekeocha & Other (1972) 2 ECSLR 199. Ratio 2. 2< 39 L.J Q.13. 9: 4 L.RQ.B. 669. 24 See further the cases o f Ras Pal Gazi Construction Company Ltd. V FCDA (2001) 10 NWLR (Pt. 722) 559 and Gucrct v. Audom ( 1S93) 62 L.J.Q.B 633. Note however that there are grounds on which the validity o f an award may be impeached These grounds are otherwise referred to as exceptions to "the finality o f award rule" a discourse of these grounds are the gr.i\amen of this paper. See also F/cjiofor G. The Law o f Arbitration in Nigeria. (Is1 cd. Ikeja Longman Nigeria Pic.. 1997) 104 See further P Binder. Amdytu a! Commentary to the ( 'Vi 'URAL Arbitration Rules (London. 2013); Biihler. M and Web-tcr. T Handbook of ICC \rb 'ration. Commentary. Prece.di nts. M51aterials (3rd cd., London. 2014); Fry. .1 and IBADAN UNIVERSITY LIBRARY 2.0. PROCEDURES FOR MAKING RECOURSE AGAINST AN AWARD The purpose or essence of challenging an award before a national court at the seat or place of arbitration is to have it modified in some ways by the relevant court, or more usually to have that court declare that the award is to be disregarded (set aside or annulled) in whole or in part. If an award is set aside or nullified by the relevant court, it will usually be treated as invalid and accordingly unenforceable, not only by the courts of the seat but also by national courts elsewhere. For instance, under Article V.I of the New York Convention and Article 36 (1) (e) of the UNCITRAL Model Law, the competent court may refuse to grant recognition and enforcement to an award that has been set aside by a court of the seat of arbitration.21' However, once the award is recognised by a court of competent jurisdiction, it is on the same pedestal as the judgment of a court. It is therefore enforceable by all ordinary means of enforcing court judgments.26 The relevant procedures provided for making recourse against an arbitral award are: ‘internal challenges to an award’ and ‘correction and interpretation of award’. These are considered briefly below. 2.1. Internal Challenge The mles under which an arbitration was conducted may contain provision for review of the procedure that was followed, or of the award itself. This is Other, The Secretariat's Guide to ICC Arbitration: a Practical Commentary on the 2012 ICC Rules o f Arbitration from the Secretariat o f the ICC (Paris 2012); Sutton, D and Others, Russell on Arbitration (24th cd., London 2015). p. 50; Rcdfcrn, A and Hunter, M. International Arbitration (6th edn, Oxford 2015 ) p. 05: C Purtasidcs. 'Secretaries to Arbitral Tribunals’ in Hanotiau, IS and Mourre, A ,eds). Players' Interaction in International Arbitration (Paris 2012). p. 23; Dossiers o f the ICC Institute of World Business Law 0; Rodncr, J "The Applicable Interest Rate in International Arbitration’ (2004) 15(1) ICC ICArb Bull 43 and Scherer. M Drafting the Award' in Berger. B and Schneider, M (cds). Inside the lilack Box: I low Arbitral Tribunals Operate am! Remit Their Decisions (1 luntington 2013), p. 42 ASA Special Series 27 35 See also AC A s. 32. 36 Commerce Assurance Limited v Alltaji Bura5it2noh llli SC'73 19S<> IBADAN UNIVERSITY LIBRARY frequently the case with maritime and commodity arbitrations, and other forms of arbitration established by trade associations.27 *For instance, the arbitration rules of the Grain and Feed Association (GAFTA) provide a useful example of ‘internal appeal procedures. Under this rules, a party who is dissatisfied with the award of the arbitrators has the right to appeal to a Board of Appeal.29 A time limit requires that notice must be given not later than 12noon on the 30Ih consecutive day after the date in which the award was made. The Board of Appeal consists of three members of the Association where the first tier award was made by a sole arbitrator, and five members where it was made by three arbitrators.30 *After submission of written statements and evidence, a date is set for the hearing of the appeal.'1 Upon hearing of the appeal, the Board of Appeal may confirm, vary, amend or set aside the award of the first tier tribunal/'2 The award of the Board of Appeal replaces that of the first tribunal and is expressed to be ‘final, conclusive and binding’.33 Accordingly, any further challenge to the award would have to be by recourse to a national court at the place of arbitration to set aside the award. A similar appeal procedure exists under the Rule of the Chambre Arbitrate Maritime cle Paris, which deals with most of the Maritime arbitrations in France/4 If a party is dissatisfied with an award, and the amount in dispute exceeds 30,000 euros, that party may ask for the case to be reconsidered by a new tribunal.35 It is also the case with the International Centre for Settlement o f Investment Disputes (ICSID). ' GAFTA Form 15 Arbitration Rules. The rules became effective on January 1, 2003. GAFTA Arbitration Rules, art 10.1 Ibid, art. 11.1 Ibid. an. 12 .1-3 '■ Ibid. art. 12.4 Ibid. art. 12.6 I’nder the 2003 Rules of the Chambre. a list of persons o f French and other nationalities. •a ho are considered to have the necessary experience to act as maritime arbitrators arc kept. A dispute is first referred to a tribunal of one or more arbitrators who make a decision upon it. Chambre Arbitralc Maritime Je Paris art. \VS3 (3). IBADAN UNIVERSITY LIBRARY 2.2. Correction and Interpretation of Awards It is usual for there to be some provisions either in the relevant arbitration rules, or in the law governing the arbitration, for an arbitral tribunal to correct any clerical or other errors in the award.36 This power is usually given to an arbitral tribunal to correct in the award any error in computation, any clerical or typographical error or any error of similar nature in any claims that were presented in the arbitral procedures but which the tribunal omitted to deal with.37 *Hence, if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.'38 Furthermore, under the International Convention on the Settlement of Investment Dispute (ICSID) Arbitration Rules, a party dissatisfied with the award of an ICSID tribunal may apply for the interpretation, revision or amendment of the award. The grounds for doing so-include excess of powers on the part of the tribunal, serious departures from fundamental rule of procedure and failure to state reasons on which the award is based.'1 If the application is for annulment of award, then an ad hoc Committee of three members is constituted to determine the application.40 If the award is annulled, in whole or in part, either party may ask for the dispute to be submitted to a new tribunal, which then delivers a new and final award.41 ,6 Rcdfcrn. A and Hunter, M (n 1) 408. 17 See for example ACA, s, 28; Model Law Art. 33; UNCITRAL Arbitration Rules art. 37 and English Arbitration Act 1996. ss. 57 and 68 (s) (d). IS Model Law art. 33 (1) (b); Arbitration Act of Korea (Amended by Act No 6083 as of Dec. 31, 1999) s. 35 10 ICSID Arbitration Rules, r.50. 40 Ibid. r.52. 11 Ibid. r.55. If the original aw ard has only been annulled in part, the new tribunal will not re­ consider any portion of the award that has n5o4t been annulled, ICSID Arbitration Rules, r. 55(3). IBADAN UNIVERSITY LIBRARY The above in simple terms are the procedures for making recourse against arbitral award. Where recourse is made to a national court against an award, the grounds upon which recourse may be made to court are provided under the various arbitration rules and this is the subject of the next section. 3.0 GROUNDS FOR MAKING RECOURSE AGAINST ARBITRAL AWARD The enabling statute regulating arbitration in Nigeria is the ACA. However, the Act did not define the meaning of recourse. Hence, an assistance is sought in Article 34 (1) of the Model law which states that a recourse to a court against an arbitral award may be made only by an application for setting aside of an arbitral award. Recourse, therefore, enables parties not satisfied with the outcome of an arbitral process to seek remedy in the national court of the seat of arbitration. The ACA makes provision for grounds for recourse against both domestic and international commercial arbitration award whose seat is Nigeria. In the case of domestic arbitration, section 29 (1) of the ACA provides inter alia that ‘a party who is aggrieved by an arbitral award may within 3 months from the date of the award or in a case hilling within sections 28 of this Act, from the date of request for additional award is disposed of by the arbitral tribunal, by way of an application for setting aside, request the court to set aside the award in accordance with subsection (2) of this section. The court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration so however that if the decision on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions >n matters not submitted t■ 55 IBADAN UNIVERSITY LIBRARY arbitration may be set aside.42 43*Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award has been subject of improper procured, the court may, on the application of a party, set aside the award.43 Premised on the foregoing provisions, it is submitted that where a party is not satisfied with an arbitral award, he may apply for the award to be set aside and this must be done within a time frame of 3 months. In other words, there is no provision for extension of time, hence, an application made after three months will not be entertained by the court. Section 30 of the ACA further gives the court unfettered discretion whether or not to set aside an award by imputation of the word ‘may’. The implication of this is that where an aggrieved party failed to proof any of the circumstances enumerated in section 29 (2), the court will refuse the application for setting aside of arbitral awa'd. The position of the law in the case of international commercial arbitration whose seat is Nigeria is that the national court is empowered to set aside an award upon a successful recourse. The grounds for making recourse to arbitral award is similar to what obtains in other jurisdictions. Hence, a party who wishes to challenge an award can apply to the court at any time after the award is made. It is however noteworthy to state that an application to set aside an award must be made before the successful party takes step to enforce the 12 ACA s.. 29(2). 43 Ibid. s. 30(2). 14 It is trite law that when the word 'may' is used in a statute or rule of courts, it implies possibility or probability. See Bryan A Garner. Black's Law Dictionary S'1' ed (United States of America: Thomwest Publishing Company, 2004) 1000; in the case o f Ejiogu v Qnyeagocha (2 )04) \ 11 f-AVLR (Pt. 204) 26 at 42. Para G. the Court o f Appeal held that the word 'may' can import discretion in some circumstances, but could be mandatory in others. In the ease ol vet ion 136 (3) o f the lileetoral Act. tl : word 5s6hould be read as connoting a discretion if only to ensure that a sensitive suit such as tl :. is not unduly aborted. IBADAN UNIVERSITY LIBRARY award.43 When a losing party has no other means of ventilating his grievance due to lack of provision for internal review of the award, for instance, it is a fertile ground on which a national court may review arbitral award at the place of arbitration. Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries, judges may also correct legal error or monitor an award's consistency with public policy.46 47In summary, the grounds upon which an aggrieved party may challenge arbitral award before a national court includes the issues of jurisdiction, arbitrability of subject matter of the award, incapacity of parties to arbitral proceedings , lack of due process and public policy' etc. These grounds are intertwined. However, for the purpose of clarity they are discussed hereunder. 3.1 Lack of jurisdiction An award may be challenged on jurisdictional ground. For instance, it is a requirement of a valid arbitration that there should be an enforceable arbitration agreement.48 Hence, if there is no valid arbitration agreement or if Imhanobc, S. O. Lawyers Deskbook, (2nd cd. Vol. 1, Abuja: Temple Legal Consult, 2010) p. 40 J,> Park, W. W. ‘Why Courts Review Arbitral Awards' (2001) Festschrift fur Karl-Heinz liockstiege! 595. See further U.S. Federal Arbitration Act s . ! 0; the 1996 English Arbitration Act s. 69 and UNCITRAL Model Law. Art 34<2)(b)(ii) 47 See ACA s. 4S: New York Convention art. V: I NCITRAL Model Law art. 34 (2); ACA s. 46: English Arbitration Act 1996 SOT and Arbitration Act of Korea (Amended by Act No. 6083 as of Dec. 31.1999) s. 36 " Although, the Nigerian ACA did not define arbitration agreement. However, section 1(1) and (2) list the ingredients o f a valid arbitration agreement. Article 7 of the I NCITRAL Model Law defined arbitration agreement as 5•7 . \n agreement by the parties to submit to aibitralion all or eeitain disputes which ha\e an cn or which may arise between them in IBADAN UNIVERSITY LIBRARY the matters submitted to arbitration do not fall within that agreement, whether for reasons of public policy or otherwise, there can be no valid arbitral award. An arbitral tribunal may only validly resolve those disputes that the parties have agreed that it should resolve. This rule is inevitable and proper consequence of the voluntary nature of arbitration. In consensual arbitration, the authority or competence of the tribunal comes from the agreement of the parties and there is no other source from which it can come. The tribunal must therefore take reasonable care to stay within the terms of the mandate expressly given by the parties. Also, for an award to be enforceable, it must comply with the law of the place of arbitration and that of enforcement and legal principles of fairness.49 * Two possibilities are open to a party wishing to challenge the jurisdiction of the arbitral tribunal. The first is to challenge jurisdiction at the outset of arbitration/0 The second is to wait until the award is made and then challenge it, or attempt to resist enforcement on the basis that the tribunal had no jurisdiction and so its award has no validity.''Parties that take part in an arbitration but fail to raise a jurisdiction issue when they may have been entitled to do so, risk losing the right to object. For example, English law requires an objection to jurisdiction to be raised at the earliest possible respect o f a defined legal relationship, whether contractual or not. An arbitration agreement may be in form of an arbitration clause in contract or in form of a separate agreement. In summary, the contractual basis for resolution o f disputes or differences that may arise between parties by arbitration process is tin arbitration agreement. See Owca/im. S. O. ‘An Examination of Arbitrability of Issues in Nigeria under the Arbitration and Conciliation Act. 1988' (2016) 3(1) . i\'asarawa Journal o f I’ublic and International Law (N.H'IL) 61. 67: Paul O. Idornigic, Commercial Arbitration and I'racticc in Ai^cria. (I aw birds Publication. 2015) P- 3. Idornigic P.O. T he Relationship between Arbitral and Court Proceedings'. (2002) 19 (5) Journal o f International Arhiimn'on. 443-459. Man Red fern. A ami Hunter. M (n I ' 1 I hid 411) 53 IBADAN UNIVERSITY LIBRARY opportunity:and provides that if this is not done, the right to object is lost.' 3 Accordingly, the award would be a valid award under the law of England (as the law of the seat of arbitration) and enforceable under the New York Convention. The risk of losing the right to object in this way does not only exist in England, and is not limited to jurisdictional objections alone. The Cow• d ' appel de Paris has also-rejected challenges based on objections that the challenging party failed to raise the issue of jurisdiction at the outset of arbitration and was therefore deemed to have waived during the arbitration itself.54 5* A similar provision to the effect that a plea as to lack of jurisdiction should be raised at an early stage is also in the provision of the UNCITRAL Rules and Model Law.” The implication is that if this is not done the right to object is lost unless the delay is justified. Under the doctrine of Competence/Competence, R the present practice is generally to regard an arbitral tribunal as being empowered to decide for itself whether or not it has jurisdiction over a particular dispute. If its jurisdiction is challenged, the arbitral tribunal may decide the point as a preliminary issue in an interim award,5' or as part of its awards on the merits. In either case, however, the decision of the arbitral tribunal is not necessarily the last word on the subject. CO That rests with the national courts.' English Arbitration Act 1996. s 31. M English Arbitration Act 1996. s 73. 'J Coin■ d ' appel dc Paris decision in SA Caisse Federate de credit mutual du Nord de la France v Banque De lubac et Compagnie. 2001 Revue d' Arbitrage 918. 55 UNCITRAL Arbitration Rules (as revised in 2010) art. 23(2); Model Law, art. 16(2). This is sometimes described in a form of shorthand as Competcnce'Competence; it is expressed in German as Kompctenz/Kompetenz. and in French as Competence de la competence. See generally UNCITRAL Arbitration Rules (as revised in 2010) an 23(1). The term ‘partial award' is usually reserved for decisions on substantive claims o f the parties. ,s Sec for instance. Model Law. art 16(3). 59 IBADAN UNIVERSITY LIBRARY 3.2. Arbitrability of the Subject-Matter of Dispute The Model Law provides that an award may bo set aside if the court of the place of arbitration finds that The subject-matter of the dispute is not capable of settlement by arbitration’ under its own law.56 Arbitrability involves determining which ty pes of dispute may be resolved by arbitration and which belongs exclusively to the domain of the national courts/”1 For instance, arbitral proceedings under the Nev\ York Convention and the Model Law as well as arbitration laws of various jurisdictions are limited to disputes that are capable of settlement by arbitration. In principle, any dispute should be just and capable of being resobed by a private arbitral tribunal as b\ the judge of a national court. The French Civil Code,62 for example, provides that ‘all persons may enter into arbitration agreements relating to the rights that they may freely dispose o f. Although it further provides that parties may not agree to arbitrate disputes in a series of particular fields (for example family law), and more generally in all matters that have a public interest.6' This limitation has been construed in a very restrictive way by the French courts. Similarly, the German Code of Civil Procedure6' provide that any claim involving an economic interest can be subject to arbitration, as can claims not involving an economic interest of which the parties may freely dispose. In Nigeria, disputes that can be referred must be justiciable issues which can be tried as civil matters ' The reason for the above position is due to the fact that arbitration is a private proceeding with public consequences. Hence, some types of *604 sg Model Law. Art.34(2)(b> See Model Law. Art.34(2)(b)(ii) Sl1 Godwin Obla. 'Arbitration as a Tool for Dispute Resolution in Nigeria: How Rele\ant Today’ in Jide Olakanmi & C’o.. ADR Alternative Dispute Resolution: Cases and Materials. (Is1 ed. Abuja: Law Lords Publication. 2013) p. 7 Sl AIR 2003 SC 2629 64 IBADAN UNIVERSITY LIBRARY constructed in the context it has been used and its definition may vary from generation to generation.82 4.0 THE CONSEQUENCES OF A SUCCESSFUL RECOURSE TO AN ARBITRAL AWARD The effects of a uccessful challenge differ depending on the grounds of the challenge, the relevant law and the decision of the court that dealt with it. This decision itself may take several forms. The court may decide: to confirm the award; refer it back to the arbitral tribunal for reconsideration, the award may be varied, the award may be set aside, either in whole or in part. ' For instance, under the Italian Law.' if the state court upholds a challenge for the annulment'of an award, it sets aside the whole award, unless it finds that there is no agreement to arbitrate, that is, the parties have not agreed to arbitration or the subject matter of the agreement to arbitrate relates to disputes that are not even theoretically capable of being referred to arbitration. If an award is set aside by a court of appropriate jurisdiction in the place of arbitration, then the award will no longer have any legal force and effect in ' Vikrant Sopan Yadav (n 16) p. 83 !; sec further the case of United Mexican States v Marvin Roy Feldman Karpa. File No. 03-CV-23500. Ontario Superior Couit o f Justice, December 3, 2003. In that case, the Ontario Superior Court of Justice refused to set aside an award rendered by a NAFTA tribunal on the ground that the applicant must establish that the awards arc contrary to the essential morality of Ontario'. ’ Rcdfcrn. A and Hunter. M. (n l )p. 429. see further Lagos State Arbitration Law 2009 s. 55. which provides inter alia that where one or more of the grounds have been proved and such has caused or will cause substantial injustice to the applicant, the court may adopt any o f the following three options: remit the award to the Tribunal in whole or in pan for i ^consideration: set the award aside in whole or in part: or render the award to be of no effect, in whole or in part. See Italian Civil Code Procedure, art.830 first paragraph; sec also Ferdinando Emanuclc and Milo Molfa .Recent developments in the challenge of arbitral awards under Italian law. Arbitration Newsletter. February. 2013 : "3\ wu .clean aotllied.com.'- media'ca-T j j jvs o;her-pi,ID av eni-dvw doom-,;6P5i-in-thc-cluiUcnec- ot-arbitral-aw- ards-under-1 u-kiw> accessed on 29th July. 2017. p. 67 IBADAN UNIVERSITY LIBRARY oc . . . • • that country. ' In this situation, the party who won the arbitration but lost the challenge is in an unenviable position. For instance, if the award has been set aside completely on the basis that the arbitration agreement is null and void, a further resort to arbitration on the basis of the void agreement would be out of question. The part}' may consider resort to litigation, but there could be problem of limitation law, or other substantive difficulties such as the absence of a valid contract. Similarly, if the award was set aside for procedural defects, the party who won the arbitration but lost the challenge is still in an unenviable position. Although the arbitration agreement will usually be effective, but the dispute must have to be submitted to arbitration afresh and the whole gamut of process started over again. This, according to Blackbay et al,86 is a daunting prospect for even the most resilient claimant. 6.0 CONCLUSION Ordinarily, an arbitral award rendered by a competent arbitral tribunal ought to constitute a binding and final decision upon parties to the arbitration as per the dispute between them. However, the law has created grounds by which party not satisfied with the decision of the arbitral tribunal can challenge such by way of recourse against the award in the national court, usually at the seat of arbitration. From the discussion and references to various jurisdictions in this paper, justice and strict adherence to law is germane to an arbitration process or proceedings. For instance, where the law is not follow to letter in terms of want of jurisdiction on the part of arbitral tribunal, or failure to follow due process in the course of arbitral proceedings, or where the subject matter of the dispute is not capable of settlement by arbitration or the award is contrary to s' Ibid; see also Jack M. Graves and Joseph F. Morrissey. ’International Sales Law and Arbitration: Problems, Cases, and Commentary. Chapter 10 - Arbitration as a Final Reward: Challenges and Enforcement (2008). Faculty Scholarship at Digital Commons (ti Touro Law Center. 458-484: 470 s" Blackbay. N. (n 19) 66 IBADAN UNIVERSITY LIBRARY public policy, then recourse may be made against the award. The essence of recourse against award is to set it aside either in whole or in part. Unlike other jurisdictions, once an arbitral award is successfully challenged, the courts in Nigeria has no power to vary the award or reconsider it under the provision of the ACA.87 Everything returns to the status quo and the parties are left with the option of commencing afresh arbitration proceedings. It must be stated that even though recourse to arbitral award has the tendencies to put the arbitrators on their toes in ensuring proper hearing of any dispute brought before them. It is recommended that parties and their legal representatives should at the onset of arbitration proceedings ensure that both the parties and arbitral tribunal comply with the provisions of the law regulating the agreement of the parties and arbitral proceedings in order to avoid recourse against the award. Parties should also ensure that the subject matter of their dispute is arbitrable. The courts should be cautious in delving into arena of arbitral proceedings to checkmate parties from bringing frivolous application to stall the enforcement of arbitration award unless it is manifestly shown that failure to set aside an award will result into irreparable substantial injustice to the losing party. Finally, it is recommended that the extant ACA, being a federal law should be amended to give Nigerian courts the opportunity to vary arbitral award in deserving cases to avoid cost of fresh arbitral proceedings. 87 This position had been taken care in Lagos S6t7ate by section 55 of the Lagos State Arbitration Law 2009 IBADAN UNIVERSITY LIBRARY