APPOINTMENT OF ARBITRATORS
Appointment of arbitrators in Nigeria is the first step to commence an arbitration proceeding. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The law governing Arbitral proceedings in Nigeria is the Arbitration and Conciliation Act Cap A18 LFN 2004 (ACA). The purpose of this write up is to discuss how Arbitrators are appointed in arbitral proceedings.
By the provisions of the ACA, the appointment of arbitrators in an arbitral proceeding is contained in the arbitration agreement. The parties are free to specify how their arbitrator will be appointed. However, we would like to point out the two major ways by which an Arbitrator may be appointed:
- By the method agreed by the parties to the arbitral proceedings: This is usually stated in the arbitral agreement.
- By the court.
The parties may use the arbitral agreement to determine the number of arbitrators to be appointed under the agreement. The parties can also specify in the arbitral agreement the process by which an Arbitrator is to be appointed. Where the agreement does not state the procedure of appointing an Arbitrator, the parties may in accordance with ACA choose any of the following options:
- Where the arbitration is one that requires three (3) Arbitrators then each party may be allowed to appoint one Arbitrator each and then the two (2) Arbitrators so appointed will then appoint a 3rd arbitrator.
- Where the Arbitral proceeding is one that requires one Arbitrator then the parties will be allowed to agree on the Arbitrator to preside over the matter.
- The court can appoint an Arbitrator if the parties apply to the court to do so.
- The parties may provide an alternative procedure for appointing the Arbitrator which may not involve the court.
Failure To Appoint An Arbitrator
When the arbitral proceeding requires three (3) Arbitrators, the two Arbitrators selected by the parties are expected to pick a third Arbitrator. Where either of the party fails to appoint an Arbitrator after being asked by the other party to do so, then the court can appoint an Arbitrator upon an application by a party to the proceeding. Also where it is the two Arbitrators appointed by the parties to the proceeding who fails to appoint a third Arbitrator, then the parties to the proceeding may apply to the court to appoint the third Arbitrator. In a case where the proceeding requires one Arbitrator, if the parties fail to agree on an Arbitrator, upon an application to court, the Judge can appoint an Arbitrator.
Where a decision is made by the Court on the Arbitrator to be appointed, the decision made by the court is final and will not be subject to appeal.
In appointing an Arbitrator the court is expected to consider qualifications required of Arbitrators or any other qualification that is needed to secure the appointment of an independent and impartial Arbitrator.
Features and Qualification of An Arbitrator
- He must be someone who can work independently and be impartial to the parties in the arbitral proceedings.
- He must disclose any doubts, which he may have as to his impartiality during the proceedings.
- He must have requisite legal or any other professional expertise.
- He must have strong management skills
- He should have full mastery of the procedures to follow.
- He must be able to devote sufficient time to the proceedings
Finally, the appointment of an arbitrator is one critical stage in any arbitral proceedings. This is because an arbitrator when is appointed, determine the rights and obligations of parties like a Justice of the court. The most important features of any arbitrator are the knowledge, skills, and integrity. Above all, an arbitrator must be impartial and disclose any likely conflict of interest before undertaking any arbitral assignment.
By Arbitration & Dispute Resolution Team at Resolution Law Firm
Email: [email protected]