International Journal of Social Sciences and Humanities Reviews Vol.13 No.1, February 2023; p.

350 – 359 (ISSN: 2276-8645)

ARBITRATION AGREEMENT IN INTERNATIONAL COMMERCIAL ARBITRATION AND

THE JURISDICTION OF THE ARBITRAL TRIBUNAL

*DR. MGBEMENA EPHRAIM NWAJIOBI

Abstract
The basic rule is that, arbitrators/judges and/or umpires may decide on their own Jurisdiction. It is a
cardinal and trite rule of law wherein, judges or arbitrators/umpires must decide on their jurisdiction/power
over a case set before it before delving into such a case, if not, no matter how good the proceeding is, it goes
into nullity. This is a rule of law in the case of Madukolu v Nkemdilim1 - the Supreme Court in this
judgment decided that judges and umpires are allowed to determine its jurisdiction on the issue of its
jurisdiction. This is known and called kompetenz kompetenz in Arbitration Law. It bugs down to two
questions; one relating to timing and the other to the finality of the issue for determination in the Arbitration
Law. Also Judges called upon by any party to intervene in arbitral process to monitor the possible
jurisdictional excesses of the arbitral tribunal, rendering the process and proceedings null, void of being in
excess of its powers. Also Arbitration Agreement is one of widely discussed laws in contractual law; it is a
well known fact that every country has specific rules in their contractual obligations and regulations, which
governs her arbitration contract between the parties. The main objective of this paper is to discuss
jurisdiction and Arbitration agreement in International Commercial Arbitration. The paper is divided into
sections, the introduction, definition of what is Arbitration, the second part discusses the jurisdiction of
tribunal and competence of arbitral tribunal to make a binding decision and rule on its jurisdiction thirdly,
it discusses the nature of Arbitration Agreement. Fourthly, to discuss, the laws applicable to arbitration
agreement and finally, the recognition and enforcement of arbitral award in International Commercial
Arbitration.

Key Words: Arbitration, Agreement, International Commercial Arbitration and Jurisdiction

Introduction
Arbitration is one of the many means of settling and resolving conflicts/issues in a judicial manner other
than court. It is also an Alternative Dispute Resolution, which is similar to Reconciliation, Conciliation and
Mediation but it is more formal than reconciliation, Conciliation and Mediation. The difference between
Arbitration and Reconciliation Conciliation and Mediation is that Arbitration does not give room for
continuous collective bargaining and that its decision called an award when rendered is binding on all the
parties while Reconciliations, Conciliation and Mediation decisions are not binding but Reconciliations,
Conciliation and Mediation gives room for bargaining2.
There are several types of Arbitration they include:
i. Arbitration based on International Commercial Arbitration Laws,
ii. Arbitration based on National Laws

*DR. MGBEMENA EPHRAIM NWAJIOBI, FACULTY OF LAW, RENAISSANCE UNIVERSITY, UGBAWKA, ENUGU
STATE.
1
[1962] 1 All NLR 567 at 59 - per Justice Oputa JSC -when a court’s jurisdiction is challenged in any proceedings,
I think that it is neater and far better to settle that issue one way or another before proceeding to the hearing
of the case on merit…because if the court has no jurisdiction, the proceedings remains’ a nullity no matter how
well and brilliant the conduct was. The reason is, defect in competence is not intrinsic to but it is extrinsic to the
adjudication.
2
K.A Legal Review on principle of contract is the law of contract (2011) Al-Now ask
350
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iii. Jurisdiction Arbitration

iv. Arbitration between two conflicting parties.
An Arbitrator is appointed to handle or deal with disputes that arose in a contract. It is the duty of the arbitral
tribunal and/or the arbitrators to ascertain whether or not it has jurisdiction in the matter. The arbitrator will
ascertain this by obtaining from the parties and studying the arbitration agreements, the notice of arbitration
and any other documents which are relevant to the issue of the jurisdiction: once he is satisfied that he has
jurisdiction he can proceed with the arbitrators3.
Where an arbitrator exceeds this jurisdiction he may be challenged and the challenge may be partial or it
may be total that means affecting the whole process4.
The main objective of this paper is to discuss Arbitration Agreement and Jurisdiction in International
Commercial Arbitration.
1. To examine the competence of Arbitral Tribunal in making a binding decision of its jurisdiction,
2. To access the various ways for enforcing a valid arbitration agreement,
3. To examine the arbitration agreement and jurisdiction in International Commercial Arbitration.
The subject matter of arbitration agreement and jurisdiction in International Commercial Arbitration has
shown us changes in technology and in an international contractual practice and jurisdiction, these issues
always arise when settlement agreement is silent on arbitration issue, which is nevertheless caught by the
arbitration clause.
In the matter of arbitration agreement and jurisdiction, Arbitrators generally have authority over only those
parties who have agreed to arbitrate and those disputes that fall within the terms of the parties in a written
arbitration agreement.
Arbitrator should be aware that question whether challenges to jurisdiction and arbitrability are to be decided
on the rule of Kompetenz- Kompetenz in arbitration or by the court where any party is unsatisfied. The lines
between these questions are for court and that of the arbitrator depends on the issue and the party that can
appeal over the issue in the court. However, it is increasingly the authority of arbitrators to decide concerning
their own jurisdiction.
The first decision of an arbitrator is to determine the validity of arbitration agreement, a valid arbitration
agreement gives jurisdiction to an arbitral tribunal so when a case is submitted for arbitration, the first thing
that an arbitral tribunal does is to determine the validity of an arbitration agreement

The Tribunal Jurisdiction

An Arbitral Tribunal has no jurisdiction to do anything until it is fully and properly constituted. This is
specifically set out in the Domestic Acts and is implicit in the definition of the ‘arbitration tribunal’ in the
Model Law5.

Jurisdiction and Agreement

The jurisdiction of an arbitral tribunal is the first to be challenged by a way of preliminary objection by either
party to the arbitration. This brings up the issue of autonomy of arbitration clause in the contract agreement
between the parties. An arbitration agreement is said to be autonomous of the main contract between the
parties as it is severable from the same. The arbitral clause is considered autonomous from the contract; any
inquiry into the validity of the underlying transaction will not in any way put into question the validity of
the arbitral clause. It is a well known fact that an arbitral tribunal can determine its competence or jurisdiction
known as and called kompetenz - Kompetenz.

3
Section 16 of the Arbitration, Conciliation and Mediation Act, (ACM) 2023
4
Section 12 of Arbitration, Conciliation and Mediation Act (ACM), 2023 and article 16 of the Model
Law.

5
Arbitration Act Model Laws, 1996
351
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There is no inherent jurisdiction in an arbitral tribunal as is known in the regular courts of the Land. The
arbitral tribunal takes its jurisdiction to decide a particular dispute from the agreement between the parties.
An Arbitral Tribunal does not get its jurisdiction from any legislation6.
The scope of the tribunal’s jurisdiction will be determined by the scope of the arbitration agreement, subject
only to any mandatory legislative enactments governing the arbitration agreement, under the theory of party
autonomy. If two parties have the legal right to settle a dispute between them, they can give jurisdiction to a
third party to settle it for them.
A broadly drafted arbitration agreement gives an arbitral tribunal full power to decide matters not only
sounding in contract, but also tort, equity and trust either using the law the parties have agreed to or failing
agreement, applying the rules of law appropriately suited or closely connected to the terms of the contract7.
Any commercial remedy available at law and equity or capable of being granted by a court can be awarded
by the tribunal if the agreement to arbitrate is broad enough.
Competence of arbitral tribunal to make a binding decision on its own jurisdiction is known as and called
Kompetenz - Kompetenz. There was no provision under the Arbitration Act of 1940 which allowed the
Arbitral Tribunal to make a decision on its own jurisdiction and it was the job of the court to decide on the
jurisdiction of the arbitral tribunal8.
Arbitration and Conciliation Act 1996 the Arbitral Tribunal has been granted the power to make a ruling on
its own jurisdiction Section (69)9 of the Act states that the “Arbitral Tribunal may rule on its own jurisdiction
including ruling on any objection with respect to the existence or validity of the arbitration agreement”.
Where the arbitral tribunal takes a decision rejecting the plea that the arbitral tribunal has jurisdiction, the
intention appears to be that in such case; the arbitral tribunal shall continue with the arbitral proceedings and
make an award. This should be without delay and without interference by any court in their supervisory role
unless on an appellate level.

Jurisdiction of arbitral tribunal when contract containing arbitration clause is declared void
There may be an instance, where an arbitration agreement may not be made as a separate agreement, instead
it may be embedded or inserted as a clause, in the contract between the parties10. A contract may be declared
void at the tribunal, if the contract is invalid, the proper forum to determine whether the contract is void is
at the arbitral tribunal.

Competence of the arbitral tribunal to rule on its own jurisdiction

The respondent in a proceeding may raise the defence that the arbitral tribunal has no jurisdiction11. This
may happen during the proceedings or after the award or where the court has found that the arbitration
agreement was not “null and void inoperative or that the agreement is incapable of being performed pursuant
to Model Law or that the arbitration has commenced without minding the arbitration clause in the agreement
prior to any action in court.12 The issue may even arise during the course of the arbitration, if one of the

6
Section 16 sub 1 of the (ACM) Act, 2023
7
Sultan David St. John Kendall John & Gill, Judith, Russell on Arbitration, (London: Sweet & Maxwell
25th edn 1997) 71
8
Sanders Pieter ‘A Twenty-Year’s review of the Convention on the Recognition and Enforcement of
Freight Arbitral Awards
9
The international lawyer vol. 13 No.2 1979; section 69 ACA, 1996
10
Friedland Paul D and Hornick Robert Relevance of International Standards in the Enforcement of
Arbitration Agreements under the New York Convention. The American Review of International
Arbitration 42
11
The Parker School of Foreign and Comparative Law (Columbia: University New York (1995)
Vol.6 No.2 15
12
The Spanish Arbitration Law (N36 (1988) Capacity of the Parties to enter into an arbitration
agreement.
352
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parties alleged that the arbitral tribunal is exceeding the scope. The promise based on his argument, that the
claim put forth by the claimant is not within the arbitration agreement. This defence must be raised not later
than the submission of the statement of defence or as soon as the matter alleged to be beyond the scope of
the tribunal’s, authority is raised during the tribunal proceedings.
The Court always has last word, however if no appeal is made to the court from a decision of the tribunal
recognizing its own jurisdiction, which is permissible during the course of the arbitration, the court in the
place of arbitration would have the authority to set aside the eventual award13. Furthermore, if the court was
asked to recognise and enforce the award, the court would be authorised under New York Convention, article
a (i) (c) 14 to refuse the recognition and enforcement of an award “that the award deals with differences not
contemplated by or not falling within the terms or scope of the submission to arbitration.
This means that the parties would spend considerable time, effort and money to come to court, to rule on the
jurisdiction of the arbitral tribunal, or appeal to the court from the decision of the tribunal recognising its
own jurisdiction if allowed, the respondent would be allowed to ask for damages against applicant for
delaying the arbitral proceedings.
On the other hand, if an appeal to the courts from the decision of the tribunal recognising its own jurisdiction
is not permitted, there is the risk that the respondent will appeal on the ground of the rule of kompentenz -
kompentenz doctrine in the Arbitration Law.
The position taken in the Model Law Article - is that if the arbitral tribunal rules as a preliminary question
that has jurisdiction, any party may (appeal to the court) within thirty days after having received notice of
the ruling while the matter is pending in the court, the arbitral tribunal may continue the arbitral
proceedings15. The decision of the court is subject to no appeal.
In the determination of the arbitrator’s jurisdiction made by the said arbitrator pursuant to the Model Article
and also other case laws16.
Where the chamber judge granted the order of findings that the arbitrators jurisdiction is based on threshold
issue of contract. The decision and construction shall be decided by the court of competent jurisdiction. On
appeal the chamber judge’s order was reversed17.
The appellate court found that the chambers judge’s decision had been erroneously based on principles of
the Domestic Arbitration Act rather than those found in the Model Law was enacted by International
Commercial Arbitration Act that provides the arbitral tribunal with the power to rule on it’s own jurisdiction.
The court further noted that the court involvement, to a determination of whether the arbitration agreement
is null and void18.

Definition of Arbitration Agreement

Arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside the
court. Arbitration is matter of contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.
The Model Law defines the arbitration agreement as an agreement by the parties to submit to arbitration, all
or certain dispute that has arisen.
At common law, an agreement which refers to future dispute to arbitration is also referred to as arbitration
agreement. This is an arbitration agreement to refer a particular dispute to the authority of a named arbitrator
is known as an Agreement/Arbitration Clause containing in the agreement of the parties to the contract,
whereas Submission Clause is the actual submission of a particular dispute to the authority of a named

13
Case law on UNCITRAL Law texts, http/www.uncitral.org/case at 40
14
Article a (i) (c), New York Convention
15
Article 16(3) Model Law
16
Inc v Blount Brothers Constructions & Co 374 f D.C CIL 1967
17
ibid
18
Article 15 of the ICC Arbitration Rules
353
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arbitrator. Agreement between parties in the case of Scout v. Avery19, the clause makes arbitration a
condition precedent, to any court action, it is a principal of law that parties cannot by contract oust the court
of their jurisdiction, parties can agree that no right of action shall accrue in respect of any differences which
may arise between them, until such differences have been adjudicated upon by an arbitrator, see the case of
Osun State Government v Dalami Nig Ltd20.

The Arbitration Agreement, Arbitration Clause and Submission Agreement.

The arbitration agreement provides the basis21 for arbitration. It is defined as an agreement to submit, present
or future disputes to arbitration.
The generic concept comprises two basic types22.
(a) A clause in a contract, by which the parties to a contract undertake to submit to arbitration
the dispute that may arise in relation to the contract is known as Arbitration Clause or
(b) An agreement by which the parties to a disputes that has already arisen submit the disputes
to arbitration is known as Submission Agreement23.
The arbitration clause therefore refers to the dispute not existing when the agreement is executed such
disputes it must be noted, might never arise. That is why the parties may define the subject matter of the
arbitration agreement reference to the relationship out of which it derives24
The submission agreement refers25 to conflicts that have already arisen, it26 can include the accurate
description of the subject matter to be arbitrated, one of the purpose of submission agreement is to
complement the reference to disputes by a detailed description of the issues to be resolved.
3.00 Enforcement of an Arbitration Agreement
By entering into an arbitration agreement, the parties commit to submit certain matters to the arbitrator.
Thus the parties in the case of Faure Fairclough v Premiel 27agreed on (a) and (b) as follows:- that they
(a) Will waive their right to have these matters resolved by a court,
(b) The parties will grant jurisdictional28 powers to private individuals as umpires and/or the
arbitrators.

Enforcement of an Arbitration Agreement under the UNCITRAL Model Law and New York
Convention
The Model Law defines the arbitration agreement as an agreement by the parties to submit to arbitration, all
or certain disputes which have arisen or which may arise between them in respect of a defined relationship
legal or otherwise whether contract or not.
The Model Law established the enforcement of an arbitration agreement.
(1) Where an is action referred to as a court which is the subject of an arbitration agreement
shall, if a party so request not later than when submitting his first statement on the
substance of the dispute, refer the parties to arbitration, unless it finds that the
agreement is null and void, inoperative and incapable of being performed.

19
Scott v Avery
20
[2004] 3 FWLR (pt. 203) 923 at 928 ratio 2
21
ICC International Court of Arbitration and Conciliation
22
Section 12 of Arbitration, Conciliation and Mediation Act (ACM) 2923
23
Red fern and Hunter, 382 - 383
24
Section 33 (1) of U.K. Arbitration Act 1996
25
Article 18 of the UNCITRAL Model Law
26
Ibid
27
[1968] Lloyd’s Rep (237) 240 per Donaldson
28
Red fern and Hunter 299
354
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The provision of the Model Law is more specific, since it’s establish that the request must be made not later
than when submitting his first statement on the substance of the dispute. The New York Convention did not
state when the petition must be made29

The Model Law empowers the Arbitral Tribunals to render Award

The rule is meant to protect arbitration from dilatory tactics, preventing the mere filling of a legal action and
from postponing the commencement of the arbitration process while the issue is pending before the court30.
Summary in order to determine the enforcement of arbitration agreement, we need to look at the requirement
laid down by the applicable law See the case of Hayman v Darwin 31 - here the respondent claimed that the
action be stayed pursuant to Section4 of 1889 of Arbitration Act of England, also the case of Osun State
Government v Dalami Nig Ltd32.
If the applicable law is one of the modern arbitration laws based an arbitration clause, it may set the
arbitration proceedings in motion. upon the model law. The parties will not need to sign a new agreement,
if on the contrary, the applicable laws requires that a submission agreement be signed even if there is a
previous arbitration clause, it is necessary to see what the requirement for this new agreement are met and
how it can be executed in case of the parties refuses to comply.

The Laws Applicable to Arbitration Agreement

The law applicable to arbitration agreement govern the formation, validity, enforcement and termination of
the arbitration agreement. It deals with such aspects as the formal requirement of the arbitration agreement,
the abitrability of it’s subject matter see the case of Ethiopian Oilseeds and Pulses Corn v Pio Del Mar
foods Inc 33, it’s autonomy in relation to the contract in which it is contained, the arbitrator’s capacity to rule
on their own jurisdiction and the extent to which judicial review is admissible. The applicable law also
determine whether or not the submission agreement is required.
There are different criteria for determining the applicable law to the arbitration agreement which are as
follows:-
i. Law chosen by the parties
ii. The procedure law to the arbitration
iii. The law of the place
The law chosen by the parties – some laws allow the parties to choose the law applicable to the arbitration
agreement, irrespective of the law governing other question relating to the arbitration34, fundamental
principle in International Commercial Arbitration, which is party autonomy where the parties are free to
choose the laws or rules in according to their intentions in the disputes concerning their substantive rights
and obligations towards the dispute.
Sometimes parties do not expressly state in the agreement which laws that would apply, it would then fall to
the arbitrators and its authority to decide on what law that would apply, deciding on the choice of law that
closely connected to the contract or the law of the place of the contract, etc.

The Law Applicable to the Contract

Arbitral settlement is a private procedure in resolving disputes; as such the parties are allowed the freedom
and right to determine a wide range of issues in their arbitration agreements.

29
Broach Aaron Commentary on the UNCITRAL Law
30
The Parker School on Foreign and Comparative Law (Columbia: University of New Y, 1995 York) Vol. 6 No. 2
31
[1842] AC 356, Russell 26th edn, 26
32
[2004] 3 FWLR (pt. 203) 923 at 928 ratio 2
33
[1990] Lloyds Rep 86
34
Muststill & Boyd 122
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This autonomy of parties in arbitration practice extends to issues in respect of the applicable laws, applicable
procedure and venue of applicable procedures, language or languages “clause 18(1) of the rule35, which
stipulates that “the parties might by the agreement provide the languages in the arbitral tribunals trials and
when they fail, to do so, the arbitral tribunal would determine the vocabulary usage, realising the necessary
effects on the conflict”.
The parties are allowed to accept on a large number of issues, in order words apart from areas where courts
can intervene on basis of general polity, the parties are free to agree on the applicable laws being one of the
issues on which parties are allowed to accept36.
Parties can determine such applicable law and the arbitral tribunal can decide as Amiable Compositeur.
The panel would agree in line with the phrases of the agreement, to make explanations of the custom of the
business relevant to the relationship. In foreign arbitral settlement, several laws may be involved including
the rules of established arbitration institutions and conventions. The arbitration panel will agree on the issue
in line with the rule agreed upon by the parties and on any disagreement, such agreement by the arbitral
panel would determine applicable rule.

The Law of the Place /Venue of the Arbitration

The place/venue of arbitration will be a place chosen by the parties or a place determined for them by the
arbitral tribunal, and it is often designated by the parties in the arbitration agreement or on the terms of
reference or the minutes of the proceedings or some other way as the place of arbitration37.Also Clause 5 of
New York Convention38 is important as it would then determine the law applicable to the arbitration
agreement. The law of the place of the arbitration applies even where the parties have chosen to arbitrate
accordingly to a particular set of institutional rules; the major significance of the place of the Arbitration is
to determine the nationality and the place of arbitration which indicates a geographical choice as regards the
location for hearing.
In the International Commercial Arbitration, the place of arbitration is often considered, whether it is
international or parochial in nature, where the parties made an exclusive venue, the arbitral tribunal must
obtain the consent of the parties before it could change the forum and the change of venue should be based
on convenience. See the case of NNPC v Lutin Investment Ltd 39 - Where the Arbitral tribunal went to
London to obtain evidence from witnesses, whose safety was not guaranteed in Nigeria.

Requirement for the Arbitration Agreement

In order to determine the validity requirement of arbitration agreement, it is the ground for requesting, and
the setting aside of an arbitral award or challenging its enforcement notwithstanding other specific
requirements laid by specific legislation as ollows:-
(i) It must arise out of mutual consent
(ii) The parties must have legal capacity
(iii) The agreement must be made in writing
(iv) The subject matter must be arbitrable
(v) It must arise out of a defined legal relationship

Consequences of Capacity
The requirement of capacity to a contract is the same with the common law quality. The applicable rule is
the rule of the person involved, which is his own national law, the law that is applicable to corporations and

35
Section 18(1) of the Arbitration and Mediation Act 2023
36
The UNCITRAL Model Laws, Arts.3(1), 11(1) and 13(1)
37
Section 16(1) of the Arbitration and Mediation Act, 2023
38
Clause 5 of the New York Convention - that the venue of the would be necessy for rejection ad approval any
award under the New York Convention
39
[2001] 50 WRN 81 at 83
356
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companies, is the rule of their forum or the rule of their incorporation. Where an infant is to enter into an
arbitration agreement, it is his or her privilege to sign the arbitral agreement, which is limited like a common
law agreement.
The parties’ lack of capacity to submit to arbitration entails the invalidity of the arbitration agreement;
capacity is one of the general requirements to enter into any agreement. The arbitration agreement is subject
to the same rules applicable to the validity of the contract in general. Which means the lack of capacity,
usually make the whole contract void, arbitration agreement could be null and void on the grounds that the
party lacked capacity. This could happen and be declared in the following ways and stages.
(1) When a party is seeking for the recognition and enforcement of the arbitration award.
(2) When the arbitral award is challenged by a party to set aside proceedings.
(3) When the enforceability or recognition of the arbitral award is claimed by a party40

The Law Applicable to the Legal Capacity

The New York Convention establishes that the parties’ capacity is governed by the law applicable to them.
The legal capacity of any individual does not have any uniform understanding. It will depend on the system
of conflicts of laws of the forum called to consider the arbitration agreement, the prevailing criteria is the
legal capacity, should be governed by personal law of each party41 this is in turn open as a new range of
possibilities, since that personal law may be the one governing each of the parties’ nationality or domicile42.
The agreement must be made in writing; both the Model Law and New York Convention require that, the
agreement be made in writing. However the notion of writing is broad and includes situations in which the
agreement has not been printed on paper and signed by the parties.
The New York Convention provides: that the term agreement in writing shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in an exchange of letter or telegrams.
While the Model Law is even more precise “An agreement is in writing, if it is contained in a document
signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement or in an exchange of statement of claim and defence in which the
existence of an agreement is alleged by one party and not denied by another. The reference in a contract to
a document containing an arbitration clause constitutes an arbitration agreement provide that the contract is
in writing and reference is such as to make that clause part of contract43

RECOGNITION AND ENFORECMENT OF ARBITRAL AWARD IN INTERNATIONAL

COMMERCIAL ARBITRATION
Recognition and Enforcement of a foreign arbitral award/decision is always brought by an
application to the Judge of the place where the property of the defaulting party is situated. The applicant
should be the successful party against the defaulting party. This application is always made outside the
arbitral process, that is, it is made to a Judge of competent jurisdiction in a place or places that recognition
and enforcement is sought or demanded. Once the arbitral panel has given out its award, the task of the
arbitral panel is ended and concluded.
The most, that it could do, is to exert the moral pressure. The recognition and enforcement are
matters for the Judge, which is clothed with power of the nation, and possesses considerable power of
coercion. The extent of these powers to what, the courts are prepared to use them, vary from nation to nation.
Now the availability of foreign treaties, which ensures considerable uniformity of national laws
governing the recognition/approval and execution of foreign award/decisions, indeed more considerably,
than there is of the national laws, which govern the challenge of the said decisions.

40
Red fern and Hunter 137
41 Ibid
42 The Netherland Model BIT: riding the New Investment treaty waves (2019)
43 Russell on Arbitration, 26th edn
357
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Execution of a decision is usually directed at the defaulting party’s assets. If these assets are situated
in more than one country, the successful party demanding execution of the decision could have an option of
nation in where to proceed, as it is sometimes written, that the party might go shopping44.
However, the impeachment of an award or its annulment, and the recognition and enforcement of
an award are two distinct procedures, though closely interrelated in the achievement of justice and in the
fulfilment of legitimate expectation of the parties in international commercial arbitration. The grounds for
these procedures may be substantially the same in most states with the internationally accepted arbitration
laws. In most cases, an action to set aside a petition and to approve or execute a decision is filed in different
places and at different times.
They are pursued by different parties for different purposes. They are accordingly guided to different
policy consideration, for no two states or parties are identical45. The term Recognition is defined to mean46
– ratification, confirmation, an acknowledgement that something done by another person in one’s name had
one’s authority. Enforcement is defined by the said dictionary to mean “the act of putting something such
as law into effect: the execution of law; the carrying out of a mandate or command47.” Recognition and
Enforcement are often use interchangeably as if they mean the same thing but they are not the same.
Whereas recognition of an award is on its own a defensive process and arises where an unsuccessful party
commences suit regarding main issue of difference, as if nothing has been done to resolve the dispute in a
judicial manner. In such a situation the parties on which side the decision was rendered would apply to the
court to recognise the award and declare it valid and binding. The applicant must produce the authenticated
or certified true copy of the contract agreement or submission agreement to the court, where the award had
decided of all the matters and differences petitioned in the new action in court. The court on recognising the
award, would declare it valid and make an order putting an end to the new proceedings before it, on the basis
of res judicata but where the award dealt only with some of the issues raised in the new action, there would
be an order putting an end to the issue already dealt with in the arbitration on the basis of issue estoppels,
on the doctrine and policy of Ut sit finis litum interest rei publicae - meaning that it is in the interest
of justice that there be an end to litigation which is the rationale of res judicatam. For purpose of
estoppels it includes tribunal whether or not it is known by name of court at all.48 The Case of Chief
Odekoya Oke Olukoya v. Olufemi49 - where motion of approval for an adjudicatory arbitration decision is
sought in a court, it goes to its validity. A court invited to recognise an award, has a duty to determine only
the lawful compulsion and the result of the decision and not necessarily to assure that it is executed. Where
a Judge is invited to execute a decision, the duty of the court is not only to approve the lawful authority and
the result of the decision but also to assure that using all the legal sanctions at its disposal carries out the
award. A court which accepts to enforce an award does so since it approves the decision as being authentic
and ligature on the parties. Enforcement is a step from recognition. An award, which is refused recognition
by the court, will never be enforced as it not valid.

Conclusion and Recommendation

Arbitral settlement is a private procedure in resolving disputes; as such the parties are allowed the freedom
and right to determine a wide range of issues in their arbitration agreements. This autonomy of parties in
arbitration practice extends to issues in respect of the applicable laws, applicable procedure, and venue of
applicable procedures, language or languages, which they would faction out by themselves without any

44
Red fern A & Hunter M, ‘Law and Practice of International Commercial Arbitration’ (London: Sweet and
Maxwell, 2nd edn).450.
45
Greg Nwakoby, ‘The Law and Practice of Commercial Arbitration in Nigeria’ (Enugu: Iyke Ventures
Production 2004) 182
46
Black’s Law Dictionary 6th edn 1271
47
Ibid .528, Nwakoby .182
48
Greg Nwakoby op cit 13
49
[1996] 9-10 SCN J 1 at 2-3
358
International Journal of Social Sciences and Humanities Reviews Vol.13 No.1, February 2023; p.
350 – 359 (ISSN: 2276-8645)

interference by any person or law/legislation. This is one of the advantages of arbitration as it is consensual
for continuity of further business transaction, which safes the face of the parties for further transactions
In International Commercial Arbitration the best practice is to remove the applicable law from the law of the
Nation and base same on established Treaties and Conventions, such as ICSID UNCITARL Modern laws
and to a reasonable extent the New York Convention only to come back to national laws during the
execution and/or enforcement level of the International Arbitral Awards.
Therefore I strongly recommend arbitration both at the National level and in the International Commercial
Arbitration level as it is quicker, safes money and time and continuity of businesses.

Reference
1. American Bar Association 1991
2. Arbitration and Mediation Act 2023
3. Blessing Marc the ICC arbitral procedure under the 1988 ICC Rules.
4. Broaches Aaron, commentary on the UNCITRAL Model Law.
5. Case Law on UNCITRAL texts http//www.uncital.case 367 O.J No. 3134, UBLR (3d) 307
6. Donaldson M.R 1982 Arbitration
7. High Court Civil Procedure Rules of Lagos State. Order 46.R.1
8. Hollering Michael F. Arbitrability in Commercial Arbitration, 1990
9. ICC Arbitration Rules
10. ICC International Court of Arbitration Bulletin vol.8 No. 2. December 1997
11. Mustill & Boyd Mustill & Boyd
12. Red fern and Hunter London: Sweet and Maxwell, 2nd edn
13. Revenue de 1’ arbitrage 1993
14. Russell 26th Edn.
15. Report of the United Nations Commission on the work of its thirty-fifth Section 17-28 June 2002
16. The Netherland Model BIT: riding the New Investment treaty waves (2019)
17. U.K Arbitration Act 1996
18. UNCITRAL Model La
19. The Parker School of Foreign and Comparative Law Columbia University New York (1995) Vol.6
N.2
20. USA Supreme Court May 13 in 1991 Gilmor v. Interstate/Johnson Lane Corp 500 US 20 (1991)

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