The Arbitral Proceedings

  Arbitration in Nigeria is governed by the Arbitration and Conciliation Act of 1988, which is based on international standards set under the UNICITRAL Model Law on Arbitration and Arbitration Rules and the New York Convention.

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The substantive law in an arbitral proceeding is the law that governs the dispute between the party while the procedural law is the law or rules that govern the conduct of the arbitration, such as the Act. The Act provides that the parties should agree to the date of commencement of the proceedings. The date agreed upon by them is the effective date of commencement of the proceedings. But, where the date is not fixed by the parties, the arbitration proceedings shall commence on the date when the request by one party to refer the dispute to arbitration is received by the other party. The parties have the right to determine the language or languages to be used in the arbitration proceedings. Where this is not done, the arbitration tribunal is empowered by the Act to determine the language or languages to be used, giving consideration to the circumstances of the case.

The Arbitration Process

The following activities constitute the arbitration process: 1. Service of the notice of dispute: a party with a right to pursue arbitration based on an agreement may serve a notice of dispute on the other party. The party serving the notice is known as the Claimant and the notice is referred to as ‘the statement of claim or point of issue’, while the other party to whom the notice is addressed is called ‘the respondent’. The arbitration will be deemed to have commenced on the date the statement of claim or point of issue is received by the respondent. The statement of claim or point of issue must be sent to the respondent and to each of the arbitrators. The claimant is also required to attach to the notice a copy of the contract, the subject matter of the dispute, and a copy of the arbitration agreement. The submission of the statement of claim or point of issue statement of claim or point of issue is evidence that a dispute has arisen, and it is expected to include the following:

1. The names and addresses of the parties;
2. A statement of the facts supporting the claim;

• The point in issue;

1. The relief or remedy sought;
2. Any evidence that is required to be submitted;
3. All other documents deemed relevant.

2. Holing of the preliminary meeting prior to the hearing: before the commencement of the formal arbitral proceedings, the parties and the arbitrator(s) are expected to hold a preliminary meeting to discuss issues relating to the success of the proceeding, but not necessarily the substance of the proceedings. This meeting is meant to introduce the parties to the process and address any preliminary issues or concerns that they might have.

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3. Hearing of the dispute: hearing entails allowing the parties to the dispute the opportunity to present their statements of claim and defence. Generally, the parties are expected to make their presentations in writing and back these up with documents and any other material that may be relevant to the dispute. Verbal presentations are also taken into consideration in arriving at the decision. Verbal presentations and answers to the arbitration questions during cross-examination.

Nature, Type And Enforcement Of Arbitral Awards

The arbitral proceedings usually end in the grant of an award by the arbitrator or arbitral tribunal. An arbitral award has been defined as “the by-product of an arbitration proceeding. It is the decision(s) arrived at by the arbitrators or the arbitration tribunal”.

Types Of Award

1. Interim Award: this is granted by the arbitral tribunal during the course of the arbitral proceedings, pending the grant of a final award. It is usually made so that the parties will not perform an act that will render the arbitral proceedings nugatory.
2. Partial Award: this is an award that does not cover all the issues raised in the arbitration. The partial award is made when the arbitrators believe that they are able to address a limited number of the issues raised in the arbitration, or in some cases, where they inadvertently omit to make an award with respect to some matter raised in the arbitration. Where there is a partial award, the parties can either refer the remaining issues to arbitration or litigation, depending on the circumstances of the award.
3. Agreed Award: this is an award agreed upon by the parties and endorsed by the arbitrator, at the request of the parties. Therefore, rather than the arbitrator making the award for the parties, they come to an agreement on their own.
4. Default Award: this type of award is granted in the absence of a defaulting party who has refused to attend the arbitral proceedings. Therefore, where a party to the proceedings fails to attend or participate in the arbitral proceedings, a default award is made in the absence of such a party.
5. Additional Award: this award would usually arise where there has been a partial award and one or both of the parties to the arbitration require(s) the arbitral tribunal to address the issues which have been left out of the partial award or where the parties believe that the award with regard to a particular issue does not cover all the aspects of that issue. It gives the parties the opportunity to ensure that the arbitration addresses all the issues relevant to their dispute.
6. Final Award: this is an award made at the end of the arbitral proceedings, after the participation of all parties in the proceedings and which addresses all the issues raised in the claim.

Conclusion

The award of an arbitral tribunal can be enforced by a court of law. The court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters that are beyond the scope of the submission to arbitration, as long as if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. Featured Image Source: Shutterstock

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This article was first published on 8th May 2021

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