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As arbitration specialists (arbitrators and practicing lawyers) build their credentials, their paths often cross in scholarship, conferences, and arbitral proceedings. Depending on their relationships with one another, both professional and personal, an appearance of impropriety (conflict of interest) may appear. This appearance is often more an illusion than reality because to the uninitiated the arbitral process seems to be the domain of a secretive group of insiders. In fact, there is a high level of transparency in the selection of arbitrators. Required disclosures flesh out any potential conflict of interest between the arbitrators and the parties. Most arbitrators will voluntarily remove themselves from consideration in order to ensure their professional integrity in the arbitration community. This is especially the case when there are justifiable doubts as to their independence and impartiality. Also, parties may challenge the appointment or retention of an arbitrator in cases of apparent bias.
This chapter acts as a capstone to Part IV’s presentation of country reports. It presents the findings of a comparative analysis of arbitration laws in the different countries reported. This analysis focuses on the different issues presented in Parts I–III, including scope and interpretation of arbitration clauses, anti-arbitration laws and policies, arbitrator bias and misconduct, the public policy exception, and other limits on arbitrability. Thus, the country reports are reviewed here to determine areas of commonality and divergences across national laws relating to judicial intervention into the arbitration process. It will also assess possible trends in international commercial arbitration.
This chapter broadly reviews the relationship between the arbitration and judicial systems as well as substantive national laws that restrict the use of the arbitration process. The relationship is inherently in tension because two core principles are in conflict: independence of commercial arbitration and judicial intervention to ensure the fairness of the arbitration process. This chapter reviews and suggests how best to balance these two competing interests. This will include an analysis of the principle of separability (contract arbitration clauses are independent of the contract) and kompetenz–kompetenz (whether the arbitration panel or the courts are empowered to determine the jurisdiction of the arbitration panel and the scope of the arbitration clause). The chapter concludes by describing the structure and content of the chapters to follow and providing some final remarks. The editors would like to note that the scholarly contributors include some of the very best minds in legal scholarship. The list of contributors includes a diverse mix of scholars and practitioners from fifteen countries.
Nigeria1 has a mixed legal system consisting of common law, sharia law,2 and customary law.3 At the pinnacle of these laws is the 1999 Constitution.4 The judiciary powers are vested in courts established by the constitution.5 Arbitration in Nigeria is governed by the federal statute Arbitration & Conciliation Act 1988 (ACA),6 which incorporates the 1985 UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), with some minor modifications. Nigeria is a federal system where several states have enacted their own arbitration legislation. One example of this is the Lagos State Arbitration Law of 2009 (LSAL).7 It applies to all arbitration proceedings in the state of Lagos that are not specifically governed by any other law. As compared to the federal statute, the Lagos Arbitration Act is more modern, having been adopted in 2009.
A unique collaboration between academic scholars, legal practitioners, and arbitrators, this handbook focuses on the intersection of arbitration - as an alternative to litigation - and the court systems to which arbitration is ultimately beholden. The first three parts analyze issues relating to the interpretation of the scope of arbitration agreements, arbitrator bias and conflicts of interest, arbitrator misconduct during the proceedings, enforceability of arbitral awards, and the grounds for vacating awards. The next section features fifteen country-specific reviews, which demonstrate that, despite the commonality of principles at the international level, there is a significant of amount of differences in the application of those principles at the national level. This work should be read by anyone interested in the general rules and principles of the enforceability of foreign arbitral awards and the grounds for courts to vacate or annul such awards.
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