Party autonomy and judicial participation in commercial arbitration: recalibrating the role of Nigerian courts.

Aduloju, Bamikole Martins

Abstract

Courts and arbitration tribunals aim to resolve disputes and make enforceable decisions in their distinctive way. However, unlike courts, tribunals lack state enforcement power to function independently. Consequently, arbitrating parties have had to approach the courts for various supports. However, while supporting arbitration, the Nigerian courts have been criticised for overwhelmingly undermining party autonomy. Thus, the determination of the extent to which Nigerian courts should participate in arbitration remains topical. This research reviewed the current regime governing the scope and limits to the court's roles in arbitration in Nigeria, aiming to find out the problematic areas where the court's roles have been a leeway to undermine party autonomy. The research found that the current practice in Nigeria generally observes party autonomy as an affirmative stance by the Nigerian courts and laws. It further found the areas where the Nigerian system has, nevertheless, created some leeway for the courts to undermine party autonomy. These include (i) the narrow phrasing and interpretation of Section 34 of the Act and some specific provisions, and their failure to set out a definite limit to courts' roles in arbitration, (ii) the application of the concept of constitutional supremacy which has been interpreted to allow Nigerian courts to participate in all cases including arbitration and override parties' agreement, (iii) absence of Institutionalised tracking and periodic recalibration of the relationship between the courts and arbitration, and (iv) judicialisation of administrative roles of the courts in arbitration. To this end, a legal and analytical review of these problematic issues was conducted, particularly using some elements of the legal comparative approach to analyse the problems in the light of the related practices in some similar or advanced jurisdictions such as the United Kingdom, Ghana and Malaysia. Lessons were drawn from the analysis. Short- and long-term recommendations were, therefore, made for law reforms in Nigeria, particularly towards recalibrating the court's roles in arbitration such as to wedge the loopholes in the system without which recalcitrant parties and jurists could take advantage to undermine party autonomy.

Citation

ADULOJU, B.M. 2023. Party autonomy and judicial participation in commercial arbitration: recalibrating the role of Nigerian courts. Robert Gordon University, PhD thesis. Hosted on OpenAIR [online]. Available from: https://doi.org/10.48526/rgu-wt-2270645

• Thesis Type: Thesis
• Deposit Date: Mar 12, 2024
• Publicly Available Date: Mar 12, 2024
• DOI: https://doi.org/10.48526/rgu-wt-2270645
• Keywords: Arbitration; Court systems; Judiciary; Tribunals; Autonomy
• Public URL: https://rgu-repository.worktribe.com/output/2270645
• Award Date: Oct 31, 2023