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LITIGATION PREPONDERATES OVER ARBITRATION IN THIS INSTANCES

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No doubt, there are some instances where even though parties have submitted to arbitration, suitability of litigation preponderates over arbitration. These are instances among others: 1. Where the issue for resolution is essentially a legal one. 2. Where the issue turns largely on the credibility of the evidence. 3. Where immediate enforcement of a right is required. 4. Where one of the parties is intransigent. 5. Where there are multiparty disputes arising from a transaction e.t.c. Thus an arbitration agreement cannot and does not completely oust the jurisdiction of the Court. U

BA v Triedent Consulting Ltd. (SC.CV/405/2013, July 07, 2023)

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arbitration

FROM THE FACTS AND CIRCUMSTANCES OF THIS CASE IT SHOWS THAT ARBITRATION MAY BE MORE OPEN TO FRAUD

582. Regardless of my decision, I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved. 583. The risk is that arbitration as a process becomes less reliable, less able to find difficult but important new legal ground, and more vulnerable to fraud. The present case shows that having (as here) a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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P&ID DID NOT ENTER THE CONTRACT TO JUST GET A SETTLEMENT VIA ARBITRATION, WITH THE INTENTION OF NOT PERFORMING

490. Here, I am satisfied P&ID did intend to perform the GSPA when it entered into it, and that there were means by which it could have done so. Nigeria has characterised the GSPA as a sham and contended that P&ID as a BVI-registered company with no obvious assets, no relevant experience and few employees, had no genuine intention of performing the GSPA, and would never have been able to do so. However P&ID did not have to contemplate performing the GSPA itself with its assets, experience and employees. This is not, as it represented, because it could simply use the work on Project Alpha to perform the GSPA. It is rather because ICIL Group had shown in the past that they could contract in. 491. Whilst P&ID was prepared to bribe in the course of its business, I do not accept it was of the sophistication to conceive at the contract stage a plan to extract large sums of money from Nigeria by means of an arbitration or a corrupt settlement. Consistently, P&ID did not use the GSPA to move directly to arbitration at the first available opportunity. I have found it did not (as alleged by Nigeria) corrupt Mr Shasore SAN. And it appointed, in Sir Anthony Evans, an arbitrator of unquestioned experience, expertise and independence. 492. It is in these circumstances that I have reached the conclusion that the present is not a case in which, when the parties entered into the GSPA, P&ID’s intention was not to perform it but simply to use it as a device to get an award or settlement. However that is not the end of Nigeria’s section 68(2)(g) challenge.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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ARBITRATION AND LITIGATION ARE NOT MUTUALLY EXCLUSIVE

By the provisions of the Arbitration and Conciliation Act, parties to a contract can include an arbitration clause which allows for disputes to be settled by arbitration instead of litigation. At the end of the arbitration process, the agreement reached (i.e the award) will be enforced by the Courts after registration in Court. Where parties opt to arbitrate over disputes, it does not automatically oust the jurisdiction bestowed on the Court by the 1999 CRFN. Section 2(2) of the Arbitration Act states follows: “Unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement of parties or by leave of the Court or judge.” (emphasis mine) Although it is preferable in many cases to go to arbitration rather than go to Court, it should be noted that arbitration and litigation are not mutually exclusive. Indeed the Court often complements and supplements the functions and powers of the arbitrator. For example, by stay of Court proceedings in appropriate cases; by the issue of subpoena; by making appointments where the parties cannot agree or where a party defaults; for the enforcement of awards and for setting aside awards where necessary. In these cases, the Court intervenes to ensure the proper functioning of arbitration.

— H.M. Ogunwumiju, JSC. UBA v Triedent Consulting Ltd. (SC.CV/405/2013, July 07, 2023)

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CRIMINAL MATTERS & FRAUD ARE NOT ARBITRABLE

Disputes which are subject of an arbitration agreement must be arbitrable. Matters like criminal matters or where fraud is alleged and raised as a matter of public policy are not to be settled privately by arbitration. See B. J. EXPORT & CHEMICAL CO. LTD v. KADUNA PETRO-CHEMICAL CO. LTD. (Supra).

— H.M. Ogunwumiju, JSC. UBA v Triedent Consulting Ltd. (SC.CV/405/2013, July 07, 2023)

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TIME LIMIT TO SET ASIDE AN ARBITRATION AWARD

It can easily be observed that the provisions of Section 29 are complementary to the provisions of Section 32 in that they only provide the time limit and the discretion to set aside an award on proof that it contains decisions on matters beyond the scope of the submission to the arbitration. The provisions of the two (2) sections are therefore neither in conflict nor mutually exclusive of each other as erroneously argued by the learned counsel for the Appellant.

– Garba, JCA. Dunlop v. Gaslink (2018)

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ISSUE OF JURISDICTION CAN ONLY BE RAISED AT THE ARBITRATION PANEL

The law therefore is that although in the regular Courts, the issue of jurisdiction can be raised at all stages of the proceedings of a case; from the trial to the final appellate, where a statute prescribed the stage at which the issue is to be raised in the course of the proceedings of a case, the issue cannot be validly and properly raised at any other stage other than the one stipulated in the statute. The general principle applies only where there was no statutory provision as to the particular or specific stage of the proceedings of a case at which the issue of jurisdiction is to be raised by a party.

– Garba, JCA. Dunlop v. Gaslink (2018)

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