PATRÓN ACTIVIDAD EJERCICIO

An award that cannot be enforced at the end of the day is useless. The successful party in arbitration expects the award to be performed without delay. That is a reasonable expectation, once an award has been rendered, the arbitral tribunal becomes functus officio, unless on exceptional grounds. The losing party has some options, namely;

1. He may simply carry out the award voluntarily;

2. He may use the award as a basis for negotiating a settlement;

3. He may challenge the award; and

4. He may resist any attempt by the winning party to obtain recognition or enforcement of award.

102Ibid, s. 28 (4)

103Ibid, s. 49

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Where a court is asked to enforce an award, it is asked not only to recognize the legal force and effect of the award but also to ensure that it is carried out by using such legal sanctions as are available.

In Nigeria, once an award is registered in the court, it becomes enforceable as a judgment of that court. Thus section 31 of the Act provides:

1. An arbitral award shall be recognized as binding and subject to this section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.

2. The party relying on an award or applying for its enforcement shall supply- a. the duly authenticated original award or duly certified copy thereof;

b. the original arbitration agreement of a duly certified copy thereof.

3. An award may, by leave of the court or a judge, be enforced in the same manner as a judgment or order to the same effect¹⁰⁴.

Arbitration awards can also be enforced in most countries of the world provided that those on the recognition and enforcement of foreign arbitral award. Article 1.1 of the New York convention 1958 provides:" This convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a state other than the state where the recognition and arising out of differences between persons, whether physical or legal". It shall also apply to arbitral awards not considered as domestic awards in the state where their recognition and enforcement are sought. Despite the above provisions, a party may request the court to refuse recognition or enforcement of award¹⁰⁵.

104 The Act,s. 31 (2); See also the case of Ebokan v. Ekwenibe & Sons Trading Co. (2001)2 NWLR (Pt 696) P. 32

105The Act, s.32 provides that any of the parties to an arbitration agreement may request the court to refuse recognition or enforcement of the award. The circumstances under which the court will refuse to recognize and enforce and award are provided under section 52 (2) of the Act.

79 2.11.10 Setting Aside Award

An award is final and binding on the parties. The court cannot and would not inquire into the substance of the award. For this reason, it is always important that parties select arbitrator/arbitrators who is/are knowledgeable and skilled in the subject matters of the dispute, for even if an arbitral tribunal erred in law or in fact in making its award, the court will not set the award aside on that ground.

The Supreme Court in Kano state Urban Development Board vs. Fanz Construction Co.

Ltd¹⁰⁶, held on the power of court to set aside an award thus; “Parties take their arbitrator for better or worse both as to decision of fact and decision of law. However, by virtue of the provision of section 12 (2) of the Arbitration Law where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured, the court has the power to set the award aside”.

Thus, while an award cannot be set aside in substance, it can set aside on ground of misconduct, lack of jurisdiction or other procedural irregularity by the court¹⁰⁷. The term

‘misconduct’ is not defined in the Act and has been subject to very wide interpretation. The Supreme Court’s decision in Taylor Woodrow (Nig.) Ltd vs. Suddeutsche Enta Werk GMBH¹⁰⁸, held:

“Misconduct” has been stated not to land itself to an exhaustive definition and the term has been described to include “on the one hand that which is misconduct by any standard such as being bribed or corrupted, and on the other hand, more

“technical misconduct” such as making a mere mistake as to the scope of the authority conferred by the agreement of reference¹⁰⁹”.

106 (1990) 4 NWLR (pt 142) 1 @ 43

107 The Act, ss. 29 and 30

108 (2993) 4 NWLR (pt 286) p. 127

109 This decision has also be upheld by the supreme court in the case of Baker Marine Nigeria Ltd v. Chevron Nigeria Ltd (2000) 12 NWLR (part 681) p.393.

80 2.11.11 Role of the Court in Arbitration

The court intervenes in the arbitral process whenever it is necessary to assist the process.

Such intervention can arise in any of the following instances: -

1. To stay court proceedings brought in defiance of the arbitration agreement^110.

2. To order revocation of arbitration agreement¹¹¹

3. To appoint arbitrator where a party fails to appoint or the parties cannot agree¹¹². 4. To compel attention of witness or production of documents¹¹³.

5. To set aside or remit an award¹¹⁴.

6. To enforce or refuse the enforcement of an award¹¹⁵. 2.12 Conciliation

Conciliation is a process whereby a third party seeks to bring the disputants together to settle their dispute. Often conciliation will not necessary focus on settlement, rather it may focus on the sharing of formation and identification of issues and options for settlement.

To a large extent, conciliation shares the same character as mediation and in most jurisdictions both are used interchangeable. Sometimes attempt is made to distinguish mediation from conciliation by emphasizing the following attributes of conciliation;

a. A conciliation may give an opinion or suggest an agreement for the parties.

110 The Act, ss. 4 and 5.

111Ibid, s. 2.

112 The Act, s.7

113 Ibid, s.23

114 Ibid, ss. 29, 30, and 48.

115Ibid, ss. 31, 32, 51 and 52.

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b. It is usually statutory provided for. In Nigeria, conciliation is given by the Arbitration and Conciliation Act, 1988, now CAP 18 LFN 2004.

c. Often the conciliator is a government official who is require to act as an advocate of government policy and has a statutory obligation to further the objectives of legislation; e.g the Minister for Labour under the Trade Disputes Act.