BEYOND THE ARBITRATION AND MEDIATION ACT 2023: STRUCTURAL AND SUBSTANTIVE IMPERATIVES FOR MAKING NIGERIA AN INTERNATIONAL ARBITRAL HUB

Abstract

The 2023 Nigerian Arbitration and Mediation Act (AMA) is a notable piece of legislation. Though modelled upon modern arbitration laws, this article argues that the enactment is a superficial index of Nigeria's pro-arbitration stance. The true measure of a pro-arbitration jurisdiction depends on two critical factors: the institutional design of the supervisory jurisdiction of the national court and the substantive judicial elaboration of its laws, respectively. Through a comparative analysis of the successful regimes of the specialised commercial courts in Singapore, Dubai, Germany and the Netherlands, the article highlights a significant disparity in the Nigerian context. This is exemplified by the structural dysfunction of the Lagos State Commercial Court (LSCC)-a fast-track division that represents an isomorphic mimicry of the procedural flexibility and jurisdictional autonomy found in the successful international models. From a substantive perspective, the article reveals a finality paradox in the Nigerian version of Kompetenz-Kompetenz. It argues that the existing friction between Section 14(5) and Section 14(6) of the AMA leads to a race to the award, potentially prioritising efficiency over party consent and the legitimacy that consent fosters. To enhance Nigeria's global standing, the article recommends a national policy on Kompetenz-Kompetenz to maintain the finality of jurisdictional determination under Nigerian law. Learning from Section 1032(2) of the German Code of Civil Procedure (ZPO), it further recommends a model that permits early court review of arbitral jurisdiction before the constitution of the arbitral tribunal, while upholding the finality effect under Section 14 (5) after the procedure has begun.