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Enforcement of Foreign Arbitral Awards in Nigeria

Enforcement of Foreign Arbitral Awards in Nigeria

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Published by Blackfriars LLP
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN NIGERIA


Commercial arbitration has become a major attraction in international transactions owing to its speed and effectiveness in resolving commercial disputes. Having obtained the award however, the successful party would have to enforce the award against his adversary.

The willingness of Nigerian courts to enforce foreign arbitration awards and the ease or difficulty of doing so and the likely timescale of the process of enforcement are issues of immense concern to any foreign person wishing to enforce an arbitral award in Nigeria. This is the focus of this short newsletter.

Foreign arbitral awards can be enforced in Nigeria through five principal ways, namely:

(a) By an Action upon the award

In Toepher Inc. of New York v. Edokpolor (trading as John Edokpolor & Sons) [1965] All N.L.R. 307, the Nigerian Supreme Court held that a foreign arbitral award could be enforced in Nigeria by suing upon the award, even where there is no reciprocal treatment in the country where the award was obtained. To succeed in the action, the plaintiff must prove the existence of the arbitration agreement, the proper conduct of the arbitration in accordance with the agreement, and the validity of the award.

The defendant may, however, resist the enforcement of the award by challenging the award, the conduct of the arbitration or the jurisdiction of the arbitral tribunal. However, the defendant cannot rely on misconduct or impartiality on the part of the arbitral tribunal, for those points can only be taken on an application to set aside the award. In Nigeria, this procedure could take about a year or more to conclude.

(b) By registration under the Foreign Judgment (Reciprocal Enforcement) Act 1990
Under the Foreign Judgment (Reciprocal Enforcement) Act 1990, a judgment or award obtained in a foreign country may be enforced in Nigeria within six years of the judgment or award.

The judgment or award would have to be registered first in a Nigeria court with jurisdiction to hear the dispute. The judgment must be final and conclusive as between the parties and there must be payable thereunder a sum of money, not being a sum payable in respect of a fine or other penalty. However, only countries, which accord reciprocal treatment to Nigeria, as designated by the Minister of Justice, would be recognized. Under Section 6 of the Act, the registered award or judgment may be set aside on the application of the defendant if the court is satisfied that:
• the Act has not been complied with, or
• the original court had no jurisdiction, or
• the judgment was obtained by fraud, or
• that the enforcement would be contrary to public policy, or
• on grounds of res judicata, or
• that the rights under the judgment are not vested in the person by whom the application for registration was made.

Ordinarily this is a fast process but of limited application due to the requirement that the award must be for the payment of a sum of money and the judgment must have become enforceable as judgment of a court according to the law of the place where it is made. If the registration is challenged, the process may become prolonged up to a year or more.

(c) Under Section 51 of the Arbitration & Conciliation Act, 1990

Section 51 of the Arbitration and
Conciliation Act, 1990 provides that:

“(1) An arbitral award shall, irrespective of the country in which it is made be recognized as binding and subject to this section and 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 a duly certified copy thereof; (b) the original arbitration agreement or a duly certified copy thereof (c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.”

Sec
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN NIGERIA


Commercial arbitration has become a major attraction in international transactions owing to its speed and effectiveness in resolving commercial disputes. Having obtained the award however, the successful party would have to enforce the award against his adversary.

The willingness of Nigerian courts to enforce foreign arbitration awards and the ease or difficulty of doing so and the likely timescale of the process of enforcement are issues of immense concern to any foreign person wishing to enforce an arbitral award in Nigeria. This is the focus of this short newsletter.

Foreign arbitral awards can be enforced in Nigeria through five principal ways, namely:

(a) By an Action upon the award

In Toepher Inc. of New York v. Edokpolor (trading as John Edokpolor & Sons) [1965] All N.L.R. 307, the Nigerian Supreme Court held that a foreign arbitral award could be enforced in Nigeria by suing upon the award, even where there is no reciprocal treatment in the country where the award was obtained. To succeed in the action, the plaintiff must prove the existence of the arbitration agreement, the proper conduct of the arbitration in accordance with the agreement, and the validity of the award.

The defendant may, however, resist the enforcement of the award by challenging the award, the conduct of the arbitration or the jurisdiction of the arbitral tribunal. However, the defendant cannot rely on misconduct or impartiality on the part of the arbitral tribunal, for those points can only be taken on an application to set aside the award. In Nigeria, this procedure could take about a year or more to conclude.

(b) By registration under the Foreign Judgment (Reciprocal Enforcement) Act 1990
Under the Foreign Judgment (Reciprocal Enforcement) Act 1990, a judgment or award obtained in a foreign country may be enforced in Nigeria within six years of the judgment or award.

The judgment or award would have to be registered first in a Nigeria court with jurisdiction to hear the dispute. The judgment must be final and conclusive as between the parties and there must be payable thereunder a sum of money, not being a sum payable in respect of a fine or other penalty. However, only countries, which accord reciprocal treatment to Nigeria, as designated by the Minister of Justice, would be recognized. Under Section 6 of the Act, the registered award or judgment may be set aside on the application of the defendant if the court is satisfied that:
• the Act has not been complied with, or
• the original court had no jurisdiction, or
• the judgment was obtained by fraud, or
• that the enforcement would be contrary to public policy, or
• on grounds of res judicata, or
• that the rights under the judgment are not vested in the person by whom the application for registration was made.

Ordinarily this is a fast process but of limited application due to the requirement that the award must be for the payment of a sum of money and the judgment must have become enforceable as judgment of a court according to the law of the place where it is made. If the registration is challenged, the process may become prolonged up to a year or more.

(c) Under Section 51 of the Arbitration & Conciliation Act, 1990

Section 51 of the Arbitration and
Conciliation Act, 1990 provides that:

“(1) An arbitral award shall, irrespective of the country in which it is made be recognized as binding and subject to this section and 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 a duly certified copy thereof; (b) the original arbitration agreement or a duly certified copy thereof (c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.”

Sec

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Published by: Blackfriars LLP on May 03, 2009
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03/23/2013

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WWW.BLACKFRIARS-LAW.COM
 
©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive adviceshould be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representativeoffice in Toronto, Canada.
ENFORCEMENT OF FOREIGNARBITRAL AWARDS INNIGERIAFebruary 2009 Vol. 22: Issue # 2
Commercial arbitration has become amajor attraction in internationaltransactions owing to its speed andeffectiveness in resolving commercialdisputes. Having obtained the awardhowever, the successful party wouldhave to enforce the award against hisadversary.The willingness of Nigerian courts toenforce foreign arbitration awards andthe ease or difficulty of doing so and thelikely timescale of the process ofenforcement are issues of immenseconcern to any foreign person wishingto enforce an arbitral award in Nigeria.This is the focus of this short newsletter.Foreign arbitral awards can be enforcedin Nigeria through five principal ways,namely:
(a) By an Action upon the award
In
Toepher Inc. of New York v.Edokpolor (trading as John Edokpolor & Sons) [1965] All N.L.R. 307,
theNigerian Supreme Court held that aforeign arbitral award could be enforcedin Nigeria by suing upon the award,even where there is no reciprocaltreatment in the country where theaward was obtained. To succeed in theaction, the plaintiff must prove theexistence of the arbitration agreement,the proper conduct of the arbitration inaccordance with the agreement, and thevalidity of the award.The defendant may, however, resistthe enforcement of the award bychallenging the award, the conduct ofthe arbitration or the jurisdiction of thearbitral tribunal. However, thedefendant cannot rely on misconduct orimpartiality on the part of the arbitraltribunal, for those points can only betaken on an application to set aside theaward. In Nigeria, this procedure couldtake about a year or more to conclude.
(b) By registration under the Foreign Judgment (ReciprocalEnforcement) Act 1990
Under the
 Foreign Judgment (ReciprocalEnforcement) Act 1990
 , a judgment oraward obtained in a foreign countrymay be enforced in Nigeria within sixyears of the judgment or award.The judgment or award would have to be registered first in a Nigeria courtwith jurisdiction to hear the dispute.The judgment must be final andconclusive as between the parties andthere must be payable thereunder a sumof money, not being a sum payable inrespect of a fine or other penalty.
 
WWW.BLACKFRIARS-LAW.COM
 
©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive adviceshould be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representativeoffice in Toronto, Canada.
However, only countries, which accordreciprocal treatment to Nigeria, asdesignated by the Minister of Justice,would be recognized. Under Section 6 ofthe Act, the registered award or judgment may be set aside on theapplication of the defendant if the courtis satisfied that:
 
the Act has not been compliedwith, or
 
the original court had no jurisdiction, or
 
the judgment was obtained byfraud, or
 
that the enforcement would becontrary to public policy, or
 
on grounds of
res judicata,
or
 
that the rights under the judgment are not vested in theperson by whom the applicationfor registration was made.Ordinarily this is a fast process but oflimited application due to therequirement that the award must be forthe payment of a sum of money and the judgment must have becomeenforceable as judgment of a courtaccording to the law of the place whereit is made. If the registration ischallenged, the process may becomeprolonged up to a year or more.
(c) Under Section 51 of the Arbitration & Conciliation Act,1990
Section 51 of the Arbitration andConciliation Act, 1990 provides that:“(1) An arbitral award shall,irrespective of the countryin which it is made berecognized as binding andsubject to this section andsection 32 of this Act, shall,upon application inwriting to the Court, beenforced by the Court.(2) The party relying on anaward or applying for itsenforcement shall supply(a) the duly authenticatedoriginal award or a dulycertified copy thereof; (b)the original arbitrationagreement or a dulycertified copy thereof (c)where the award orarbitration agreement isnot made in the Englishlanguage, a duly certifiedtranslation thereof into theEnglish language.”Section 52 provides a list of grounds forrefusing recognition or enforcementwhich are similar to the ones mentionedin (b) above. These grounds could also be a hindrance to an otherwise veryexpeditious method of enforcement.

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