On 10th May 2022, the Senate passed the Arbitration and Mediation Bill. This bill shall repeal the Arbitration and Conciliation Act LFN 2004. Some of the key provisions of the Arbitration and Mediation Bill are as follows:
- By section 2(4) the requirement that an arbitration agreement must be in writing can now be satisfied by an electronic communication that is accessible to be usable for subsequent reference. This bill acknowledges electronic communication and conduct of electronic proceedings in Nigeria.
- By section 4(1) of the bill, the authority of an Arbitrator to act in an arbitration proceeding shall not be revoked by the death or bankruptcy of any party who appoints the arbitrator. The authority of an Arbitrator to act is only revoked on the death of the arbitrator. This provision encourages continuity of proceedings.
- Section 6: Where not agreed upon by the parties, the arbitral tribunal shall consist of a sole arbitrator and such arbitrator shall not be precluded by reason of his nationality unless agreed upon by the parties.
- The bill in section 12 also provides that the parties to an arbitration may agree on consequences of the withdrawal of an arbitrator from appointment.
- Section 13 of the bill states that an arbitrator has immunity in its discharge of functions unless it is shown to be in bad faith although this liability does not affect any liability incurred by reason of the Arbitrator withdrawal. Arbitrators just like litigators are now protected by law in the discharge of their duties without the fear of any imminent liability.
- The bill allows for the appointment of an emergency arbitrator where a party requires an urgent relief and such an emergency arbitration meeting can be conducted through video conferencing, telephone and other similar means of communication. This provision allows for arbitrators to fasten proceedings as required in Construction disputes.
- The Bill provides for improvement in the hearing of an arbitration proceeding. By section 39 of the bill, upon the agreement of the parties there can be a consolidated and concurrent hearing. The bill also gives the arbitral tribunal the power to allow an additional party to be joined to the arbitration, provided that the additional party is bound by the arbitration agreement giving rise to the arbitration.
- Section 61 of the bill makes elaborate provisions for third-party funding in arbitration.
- The bill provides that under an international arbitration where parties have not appointed an arbitrator or appointing authority, the Director of the Regional Center for International Commercial Arbitration Lagos shall be deemed to be the appointing authority designated by the parties,
This new bill is seen as a welcome development in the dispute resolution community as it clarifies certain issues presented by the Arbitration and Conciliation Act LFN 2004. This bill clarifies the computation of the limitation period as it excludes the commencement of proceedings and the date of the order. It specifies the period to enforce an arbitral award and excludes the commencement of the arbitration and the date of the award. This bill joins other contracting states in recognizing and enforcing the New York convention on foreign arbitration awards to any award made in Nigeria or in any contracting state arising out of international commercial arbitration.
Part II of the bill from Section 67 makes provision for mediation proceedings for the first time. Prior to this bill there were no extant legal provisions on Mediation and this bill if assented by the president will be a federal law that codifies explicit guidelines to govern the practice mediation in Nigeria which is a major development for growing the practice and popularity of mediation. Some key provisions are:
1.Provides for a time frame of 30days for a party to receive the acceptance of the invitation to mediate. Failure to respond may be treated as a rejection to mediate.
- Provides that there shall be one mediator unless the parties agree otherwise. Parties can also seek the assistance of a mediator provider to recommend or appoint a mediator.
- Mediation sessions can be carried out by electronic means, videoconference or other similar means of digital transmission of the voice and/or image, provided that the identity of the parties concerned are ensured and compliance with the principles of mediation laid down. This provision acknowledges and accept the use of technology in conducting mediation
- Provision on admissibility of evidence: Statements made by a party, admission made by a party, or proposal of the mediator shall not be admissible as evidence in other arbitral or judicial proceedings.
- The undertaking of the parties to mediate and not undertake any other arbitral or judicial proceeding during this period shall be effected by the court or arbitral tribunal. Also, settlement agreements following mediation are now binding on the parties and enforceable in court as a contract, consent judgment or consent award.
- This bill aims to enforce international mediation settlement agreement. The bill provides that where the enforcement of any international settlement agreement made in a State other than the Federal Republic of Nigeria is sought, the Singapore Convention shall apply to any such international settlement agreement, provided that: (a) the State is a party to the Singapore Convention; and (b) that the differences arises out of a legal relationship, whether contractual or not, considered commercial under the laws of Nigeria. This bill on Mediation shall apply where parties have agreed so in writing, in international commercial mediation, in domestic commercial mediation, in domestic civil mediation, domestic and in international settlement agreements resulting from mediation.
This bill provides more elaborate rules to guide alternative dispute resolution compared with the previous act. It adequately reflects the rise of technology and supports virtual hearings which became more widespread during covid19 pandemic and thereafter.
Mediation, as a form of alternative dispute resolution, received a form of elevation thanks to the bill, replacing conciliation which failed arguably to live up to its lofty status. Mediation, a more practical complement to arbitration, is already gaining popularity slowly with the opening of several High Court annexed Multidoor centres in Lagos, FCT, Oyo and Enugu. Perhaps we shall see an even more rapid uptake of mediation in the coming years.
Beverley Agbakoba-Onyejianya – Partner and the Head of Sports, Entertainment & Technology (SET) group at OAL
Nkechi Kalu – Associate Trainee