Arbitration Agreement

BY ISAAC, OKORONKWO . C. HEM/1137 ABSTRACT This write up seeks to look into the get turn outs concerning arbitrament correspondence d consume the stairs the arbitrement and expiation morsel (ACA). It identifies the categories, forms, varianceies and highlights of the arbitrament arrangement. It also examines the enforcement of an arbitrement stipulation. This paper reveals that arbitrament is a major attraction as being the to the highest degree flexible appearance of settling conflict. Thus, it was suggested that arbitrement pact is a vital component of an arbitrament minutes. 1. 0INTRODUCTIONArbitration has go along to principal(prenominal)tain the lead as the favored mechanism for resolution of domestic and world(prenominal) business fights in the Nigerian level-headed system. An arbitrament symmetry pith a voluntary balance to leave to arbitrament present or future tense quarrels, whether gougeual or non. It is clear then, that a claim i n tort or fraud may be the battleground enumerate of an arbitrament apprehension (Udechukwu, 2008). An arbitrament apprehension tush be include in the original or be in the form of a better addment, every at the time of the obtain or subsequently.Therefore, even in the absence of an original integrated arbitrement name the parties can still decide to solve a presently alive conflict by arbitration. The arbitration engagement is the document, which is comm hardly in constitution containing details to the highest degree the de nonation of the disputes for resolution by the umps. It is an agreement on paper containing information sign(a) by the parties containing and providing records of the arbitration agreement (Oyegbile, 2000). It is a very important document maneuver the entire process of arbitration.It also includes exclusively reference in a amaze to a document containing an arbitration article which constitutes an arbitration agreement if much( prenominal)(prenominal) flinch is in writing and the reference is such as to make that clause part of the sign up. Unless a contrary intention is express in the arbitration agreement, it shall be irrevokable move out- i. By agreement of the parties ii. By leave of the solicit or a Judge iii. Even, the occurrence of death of any of the parties does non automatically revoke the arbitration agreement.Rather, it shall be enforceable by or against the personal representatives of the deceased. In the past, arbitration agreement could be in oral save the present arbitration act only recognized written agreement to arbitrate. The intimation of this is that only written agreements be enforceable by the courts or Judge. 1. 1AIM AND OBJECTIVES The aim of this pull in is to provide information on arbitration agreement at a lower place the Arbitration and Conciliation correspond (ACA) CAP A18 2004.To achieve the above aim, the specific objectives are to * Identify the categories of arbitration agreement * Examine the enforcement of the arbitration agreement * Identify parties to the arbitration agreements * Identify the major highlight of Arbitration and Conciliation Act (ACA). 2. 0LITERATURE REVIEW 2. 1CATEGORIES OF ARBITRATION AGREEMENTS There are two basic types of agreement 1 the arbitration clause and 2 the leniency agreement.An arbitration clause looks to the future, whereas a entry agreement looks to the past. The first, which is most common, is usually contained in the principal agreement between the parties and is an agreement to submit future disputes to arbitration. The second is an agreement to submit existing disputes to arbitration. Arbitration clauses are usually short, whilst submission agreements are usually long. This is non because of each particular legal requirement. It is simply a reflection of the practicalities of the situation.An arbitration clause that deals with disputes which may mature in the future does not usually go into much detail, since it is not known what kind of disputes will come out and how they should best be handled. Indeed, although the parties to a romp may agree to an arbitration clause, they imprecate that there will be no need to invoke it. Usually they throw in a short stylel clause, recommended by an arbitrational institution, as a formality. By contrast, a submission agreement deals with a dispute that has in fact already arisen and so it can be well-kept to fit precisely the component of the case.In admittance to indicating the place of arbitration and the substantive law, it by and large names the arbitrators, sets out the matters in dispute and even, if thought appropriate, provides for exchange of written submissions and different procedure matters. 2. 2ENFORCEMENT OF THE ARBITRATION AGREEMENTS Nigerian judicial systems brook got adopted a substantiative set about to the enforcement of arbitration agreements. A review of the decided cases shows a general re cognition by Nigerian philanders of arbitration as a good and valid alternative dispute resolution mechanism. In C. N.ONUSELOGU ENT. LTD. V. AFRIBANK (NIG. ) LTD, the judicatory held that arbitrational proceedings are a appreciate means of resolving disputes and should not be taken lightly by twain counsel and parties. However, there moldiness be an agreement to arbitrate, which is a voluntary submission to arbitration. Where there is an arbitration clause in a squeeze that is the up to(p) matter of Court proceedings and a caller to the Court proceedings promptly shifts the issue of an arbitration clause, the Courts will order a stay of proceedings and refer the parties to arbitration.SECTIONS 6(3) and 21 of the Lagos State Arbitration Law 2009, which empowers the Court to shell out interim orders or reliefs to husband the res or rights of parties pending arbitration. Although the ACA in percentage 13 gives the arbitrational tribunal power to make interim orders of pr eservation before or during arbitral proceedings, it does not expressly confer the power of protective orders on the Court and Section 34 of the ACA limits the Courts power of intervention in arbitration to the express provender of the ACA.The usefulness of section 6(3) of the Lagos State Arbitration Law 2009 is seen when there is an urgent need for interim preservative orders and the arbitral tribunal is yet to be constituted. In this regard, such applications find no direct backing under the ACA and have always been brought under the Rules of Court and under the Courts inherent legal power to grant interim orders. However, in AFRIBANK NIGERIA PLC V HACO, the Court granted interim relief and directed the parties to arbitrate under the provisions of ACA.Upon the publication of the award the parties returned to the Court for its enforcement as judgment of the Court. The Courts in Nigeria are oft inclined to uphold the provisions of Sections 4 and 5 of the ACA provided the necessar y conditions are met. A live case in institutionalize is the case of MINAJ SYSTEMS LTD. V. GLOBAL PLUS discourse SYSTEMS LTD. & 5 ORS, in this case, the Claimant instituted a Court action in fracture of the arbitration agreement in the main train and on the Defendants application, the Court granted an order staying proceedings in the interim for 30 years pending arbitration.In NIGER PROGRESS LTD. V. N. E. I. CORP. , the Supreme Court followed section 5 of the ACA which gives the Court the jurisdiction to stay proceedings where there is an arbitration agreement. In the owners of the MV LUPEX V. NIGERIAN oversea CHARTERING & SHIPPING LTD, the Supreme Court held that it was an abuse of the Court process for the answering to institute a fresh meet in Nigeria against the appellant for the same dispute during the pendency of the arbitration proceedings in capital of the United Kingdom. In AKPAJI V.UDEMBA, the Court held that where a defendant fails to raise the issue of an a rbitration clause and rely on same at the proterozoic stage of the proceeding just now takes positive steps in the action, he would be deemed to have waived his right under the arbitration clause. 2. 3THE PARTIES TO AN ARBITRATION AGREEMENT The parties to a constringe essential have legal dexterity to fancy into that have, otherwise it is invalid. The position is no different if the contract in interrogatory happens to be an arbitration agreement.The general figure is that any natural or legal person who has the capacity to enter into a valid contract has the capacity to enter into an arbitration agreement. Accordingly, the parties to such agreements include individuals, as well as partnerships, corporations, states and state agencies. If an arbitration agreement is entered into by a troupe who does not have the capacity to do so, (the law where applicable) may be invoked all at the beginning or at the end of the arbitral process. If it is invoked at the eginning of the process, the fellowship requesting for it would ask the competent court to recrudesce the arbitration, on the basis that the arbitration agreement is null and keep off. Where the validity of the arbitration agreement is raised at the end of the arbitration process, the requesting troupe would ask that the competent court to refuse the recognition and enforcement of such an award, on the grounds that one of the parties to the arbitration agreement is under some incapacity under the applicable law. 3. 0MAJOR HIGHLIGHTS OF THE ARBITRATION ACT a) The Arbitration Clause The Arbitration and Conciliation Act (ACA) CAP.A18 2004 mandates that all arbitration agreements must be in writing and signed by the parties, in an exchange of letters, telex, telegram or other means of communication or point of claim or defence. In Nigeria, arbitration clauses are irrevocable except by the leave of court or mutual agreement of parties. Even where parties had no prior agreement, with a submission agr eement, parties may still submit to arbitration b) Subject-matter Arbitrability The ACA does not stipulate any particular subject matter that may not be referred to arbitration.The question of whether or not a dispute is arbitrable has therefore been left wing at the discretion of the Courts. In ARAB state V. OGUNWALE(2002) 9 NWLR (PART 771) 127,the Court of Appeal held that the mental test for determining whether a dispute is arbitrable or not is that the dispute or difference must necessarily arise from the clause contained in the agreement. However not all disputes are necessarily arbitrable c) Binding Nature The ACA5 provides that every arbitration award in Nigeria shall be cover song on the parties.This is to preclude a fidgety party from preventing a masteryful party from enjoying the fruits of his judgment. d) Number of Arbitrators In Nigeria, the exit of arbitrators is either one or three. The parties to an arbitration agreement may set apart their preferred number of arbitrators to be appointed under the agreement, but where no such determination is do, the number of arbitrators shall be deemed to be three. e) Challenge of an arbitrator Parties may determine the procedure to be followed in challenging an arbitrator. Where no such procedure is determined a party who intends to challenge an arbitrator shall, within ifteen age of becoming conscious of the constitution of the arbitral judicature or becoming aware of any of the grounds, send to the arbitral motor inn a written statement of the reasons for the challenge. f) protective Orders The provisions of the ACA cloths the members of a Tribunal with the needful powers to grant preservative orders during an arbitration reference. These orders tho do not include granting injunctions and so on The Act provides that in such circumstance, the Tribunal can remit that portion of the reference to a proper court for the grant of such injunctive relief. ) Language to be use in Arbitral proceedi ngs In Nigeria, the parties may, by agreement determine the quarrel or languages to be used in the arbitral proceedings. But where they do not do so, the arbitral Tribunal shall determine the language to be used front in mind the relevant circumstances of the case. h) Legal Representation In Nigeria, the parties to an arbitral proceeding may appear for themselves or be represented or aided by a legal practitioner of their choice. i) The mete out An Award may be interim, interlocutory, or final. Any award made in Nigeria must adhere to the chase * It must be in writing It must be signed by all the arbitrators (if they are more than one) * It must be delivered with a reason (except where parties agree otherwise) * The place where the Award was made must be stated on the award. j) The enforcement of an Award An arbitral award shall, irrespective of the domain in which it is made, be recognised as binding on the parties. This is made contingent by the Foreign Judgments (Reciproc al Enforcements) Act, Cap 152, Laws of the coalition of Nigeria 2004, which makes foreign arbitral awards registerable in Nigerian Courts if at the date of registration it could be enforced by execution in Nigeria. . 1THE DOCTRINE SEPARABILITY It is also known as the article of faith or principle of indecorum or independence of the arbitration clause. Separability means the arbitrability clause in a contract is considered to be scatter from the main contract of which it forms part and as such, survives the termination of that contract. It illustrious to mention that arbitration agreement can be in form of an arbitration clause in a contract or in a separate agreement addressing disputes that have already arisen.The principle of separability is most relevant to arbitration clause in a contract an fundamental contract. At the outset it must be recognised that this doctrine is inextricably cerebrate with the doctrine of kompetence-kompetence which empowers the arbitrator to deci de his own jurisdiction in the first instance. small-arm kompetence-kompetence empowers the arbitration tribunal to decide on its own jurisdiction, the doctrine of separability affects the outcome of this decision.The doctrine of separability is provided for under Section 12(2) of ACA For 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 validity of the arbitration clause. For arbitral tribunals whose seat is in Nigeria (including under domestic arbitration) the point of reference of this doctrine is article 12(2) of ACA quoted above which is a mandatory provision.Parties cannot therefore as a matter of contract, smirch from this provision and agree otherwise. Finally, separability thus ensures that if, for typesetters case one party claims that ther e has been a total breach of contract by the other, the contract is not destroyed for all purposes. Instead It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract. 4. 0DATA AND METHODIn bid to gather information for this study, the secondary source of data collection was utilized, which includes journals, textbooks and other relevant document from the internet (web sites and e-library). 5. 0CONCLUSION The importance of the arbitration agreement is imperative and vital to the success of an arbitration proceeding. The arbitration agreement represents the wishes of the parties to submit future dispute to arbitration plot of land submission clause attends to disputes that have already arisen. REFERENCES ACA. (2004). Arbitration and Concilation Act CAP A8, Laws of the c onspiracy of Nigeria (LFN) .Nigeria. National Open University. (n. d. ). Alternative Disput resolution II. Retrieved 02 23, 2013, from www. noun. edu. ng Oyegbile, S. O. (2000). An Introduction to Arbitration and Conciliation. Minna Jameson in writing(p) Publishers. Tolulope, A. (2012). Arbitration in the Emerging Markets. The internationalistic Charmber of Commerce Clyde & Co. Conference (pp. 2-4). London Aron. Udechukwu, C. E. (2008). Professional Practice for Real kingdom Professionals. Lagos Treem Nigeria Limited. Wikipedia. (2013). Web Encylopedia. Retrieved 02 14, 2013, from www. wikipedia. com http//www. wikipedia. com