Continued from yesterday
A practical consideration is whether the Nigerian courts are well situated with relevant information to select and appoint an emergency arbitrator within the specified deadline. Also relevant is the administrative bureaucracy of case filing in the registry and assignment to court.

However, the Act contemplates that attendant delays of the courts makes up for such situation by providing that the ‘court’ in relation to appointment of emergency arbitrators means the ‘Chief Judge of any of the courts referred to in this provision, sitting as a judge in chambers’. It is hoped that the filing system and assignment to court system can create a special category for matters as this, similar to the speedy case filing and assignment accorded Admiralty matters in the Federal High Court.

Finally, the decision of the emergency arbitrator shall be binding on the parties and can be enforced upon application to the court statute of limitation in reference to arbitration and mediation proceedings.

The computation of time in relation to the limitation period when arbitration and mediation proceedings were initially undertaken is a familiar topic within the Nigerian legal system. Nigerian courts have by a long line of authorities established that the period between the initiation of arbitration and the issuance of the final arbitral award is not considered when considering the statute of limitations.

The AMA codifies this and aligns itself with this established judicial precedent concerning the computation of time in relation to the limitation period for BOTH arbitration and mediation proceedings.

With respect to arbitration, the new Act specifically states that statutes of limitation, which are time limits set by law for initiating legal actions, will be applicable to arbitral proceedings in the same way as they apply to judicial proceedings. In other words, any time limits specified in statutes of limitation that apply to a particular legal dispute will also apply to arbitral proceedings relating to that dispute.

Regarding mediation, the Act explicitly states that when mediation proceedings commence, the running of the limitation period for the claim under mediation is suspended. Therefore, if the mediation process concludes without a settlement agreement, the limitation period resumes from the point at which the mediation ended without a settlement agreement. These provisions provide an additional statutory safeguard against the expiration of the limitation period in the context of arbitration and mediation proceedings conducted under the Act.

This has laid to rest the controversy that arose from the court decision in the case of City Engineering Nigeria Limited v Federal Housing Authority, and further reflects the judicial precedent in Messrs. U. Maduka Ent. (Nig.) Ltd v B.P.E.

Consolidation of arbitration proceedings
Whilst the repealed ACA does not include provisions for consolidation of arbitral proceedings, the new Act introduces this possibility. Under the new Act, parties have the option to agree that their arbitral proceedings can be consolidated with other ongoing arbitral proceedings, even if they involve different parties, if all parties concerned agree to such consolidation.

This provision on consolidation of multiple arbitrations benefits parties by providing efficiency, cost savings, consistency, judicial economy, settlement opportunities, and increased finality. It offers a streamlined approach to resolving complex disputes involving multiple parties and related issues.

The provision can also benefit the judicial system when court intervention is required. If the parties seek court assistance, consolidating multiple arbitrations can reduce the burden on the court system by consolidating related cases and avoiding duplicative proceedings. It enables the courts to allocate their resources more effectively and efficiently.

Joinder of parties
The new Act allows an arbitral tribunal to exercise discretion in including an additional party in the arbitration, provided there is prima facie evidence that the party is bound by the arbitration agreement.  The term ‘prima facie’ as used in section 40 of the new Act indicates the need for reasonable belief or evidence of the party’s obligation to the agreement. This provision aligns with the UNCITRAL Model Law on International Commercial Arbitration, 19 empowering the tribunal to consider factors like the legal interest of the additional party, rights of existing parties, potential conflicts of interest, and the timing of the request when deciding on joinder.20

As laudable as this provision is, in practical terms it is a missed opportunity and needs to go further, to allow joinder of parties that may have a stake in the dispute even if they are not parties to the arbitration agreement.

If Such a party agrees or applies to join the proceedings, and it is clear to the Tribunal that the party would be affected by their decision or is so bound to the dispute that its presence would serve to resolve all the issues arising from the dispute, it would serve all practical purpose to allow the joinder and avoid parallel proceedings.

As it were, the AMA failed to keep in step with international best practices and cure a situation where a party may litigate the effect of the Arbitral award in Court and maybe bring action that stifles the proceedings because he will be affected by a proceeding where he has no opportunity to be a party.

Power of court to grant interim reliefs
Under the repealed ACA, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The new Act however expands this power by allowing the court to issue interim measures of protection in relation to arbitration proceedings conducted in Nigeria or another country.

The new Act recognizes the importance of court intervention when necessary to protect the rights of parties or preserve the effectiveness of the arbitration process. The court can provide interim relief in the form of injunctions, orders for the preservation of assets, or any other measures it deems necessary to support the arbitration process. These interim measures aim to prevent irreparable damage, maintain status quo, or secure the effectiveness of the final arbitral award.
To be continued tomorrow