Dr Fabian Ajogwu, SAN
Law Firm of Kenna Partners, Lagos, Nigeria
Abstract
Proponents of a liberal approach to setting aside arbitral awards justify it on the ground that it is somewhat a guarantee against breach of fair hearing rights. Critics of that approach argue that it defeats the whole essence of arbitration as a means for the speedy resolution of disputes. This writer is of the view that it becomes an exercise in pretence if we downgrade arbitration (through action, inaction or indifference) to simply, a drama that precedes litigation. It is received wisdom that arbitration accords more with the time value of money in commercial disputes, and for this reason and more, a deferential view is recommended. With much of the discussion on arbitration being largely centred on definition, appointments, and pre-award stages; a discussion on awards and protection of integrity of awards will not only fill an important gap in literature, it will fill in the gaps of policy and attitude of the courts, counsel and parties to arbitration especially the loser or less nicely put, the sore loser.
Reducing the scope for setting aside arbitral awards in Africa and more specifically, Nigeria helps the argument for increasing Africa’s share of arbitration emanating from home generated disputes. Going by the relevant provisions of the Arbitration and Conciliation Act as well as decided cases, three major grounds for setting aside domestic arbitral awards exist namely, lack of jurisdiction; misconduct of the arbitrator(s); and improper procurement of arbitral proceedings or award. Grounds that are not sufficient to support setting aside the award include inadequate evidence; delay or misunderstanding of submission of counsel; error of law; and error of fact. This paper is set out to examine these issues among others. It submits that the role of courts ought to be facilitative and not disruptive of arbitral proceedings. Knowledge and institutional assistance become key factors in improving the quality of arbitration. Here lies the role and usefulness of an international body such as the Lagos Court of Arbitration.