Olisa Agbakoba Legal played a key role in the National Policy on Arbitration and Alternative Dispute Resolution 2023 which aims to establish fundamental principles to guide the Federal and State government’s participation in arbitration references, and position Nigeria as an attractive arbitration hub for domestic, regional, and international commercial arbitration whilst protecting national interest.
The overall goal and objective of the policy is to make Nigeria the hub of arbitration in Africa and to ensure that Nigeria remains the venue of arbitration for transactions in respect of government contracts, especially with foreign entities. Dr Olisa Agbakoba SAN chaired the planning committee for birthing this policy in which OAL as a firm also played a major role.
The National Arbitration Policy is premised upon the concept that arbitration agreements in respect of all disputes arising from contractual relationships in Nigeria, will have Nigeria as the seat of arbitration. The thrust of the policy is represented by a two-pronged approach. The first is that the policy applies in circumstances where the transactions from domestic contractual relationships involve either only Nigerian parties or both Nigerian and foreign parties.
The second is that the policy applies in circumstances where the transactions arising from international contractual relationships involve Nigerian parties and foreign parties, provided that there are strong connecting factors or links warranting or justifying that Nigeria should be made the seat of arbitration.
The policy will be achieved by a statutory enactment providing that arbitration arising from all domestic contractual relationships and international contractual relationships, will be arbitrated in Nigeria as the seat of arbitration.
Nigeria generates a significant volume of domestic private commercial transactions. Unfortunately, a significant number of disputes arising from these transactions are ultimately arbitrated in foreign jurisdictions. Undoubtedly, the flight of domestic arbitration cases to arbitral venues outside Nigeria is unhelpful to our economic development as a country, and also to arbitration practitioners. This misnomer accounts for the loss of revenue on both levels, the national arbitration policy contains provisions that reverse the trend.
The National Arbitration Policy ensures that its roots are embedded in Nigeria’s domestic commercial relationships and dealings with foreign entities. This will require the statutory intervention of the established principle of arbitration that parties can mutually choose the seat and venue of their arbitration. This proposed statutory intervention would be represented by the enactment of a law that will expressly provide that arbitration in respect of private commercial transactions originating from Nigeria shall be determined in Nigerian institutions of arbitration. Ultimately, parties involved in any contractual agreements arising from any transaction performed in Nigeria will be bound to ensure that any arbitration provision in their agreements must comply with the proposed statute.
Under Part C, the Arbitration Community made seven (7) recommendations, viz Justice Sector Reform; Non-intervention in Private contracts; Reviewing Existing Treaties; Developing Capacity of the Federal Ministry of Justice; Strengthening Institutional Arbitration; Regionalizing Policy Intervention; and Speedy passage of the Arbitration and Mediation Bill 2022 which has now been passed into law.
In conclusion, the national arbitration policy should be seen as presenting an opportunity for Nigeria to devise legislative transformations that will position Nigeria as the seat of arbitration in respect of disputes emanating from Nigeria’s BITs and domestic private commercial transactions. We refer you to our earlier published National Policy on Arbitration.