AN APPRAISAL OF RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS BY THE INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID) IN NIGERIA


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TABLE OF CONTENTS

Title Page
Abstract
Table of Contents
Table of Statutes
Table of Cases
List of Abbreviations

CHAPTER ONE: GENERAL INTRODUCTION
1.1       Background to the Research
1.2       Statement of the Research Problems
1.3       Aim and Objectives of the Research
1.4       Justification of the Research
1.5       Scope and Limitations of the Research
1.6       Research Methodology
1.7 Literature Review
1.8       Organisational Layout


CHAPTER TWO: CLARIFICATION OF CONCEPTUAL TERMS AND NATURE OF COMMERCIAL ARBITRATION IN NIGERIA
2.1 Introduction
2.2 CONCEPTUAL CLARIFICATION OF KEY TERMS
2.2.1 Investor
2.2.2 Investment
2.2.3 Investment Arbitration
2.2.4 Arbitration Clause
2.2.5 Recognition and Enforcement
2.2.6 Arbitral Award
2.3 DOMESTIC COMMERCIAL ARBITRATION PROCEEDINGS
2.3.1 Commencement
2.3.2 Confidentiality
2.3.3 Place and Time of Arbitration
2.3.4 Substantive Law to Regulate Proceedings
2.3.5 Language of the Proceedings
2.3.6 Composition of Arbitral Tribunal
2.3.7 Costs in Domestic Arbitration
2.3.8 Security for Costs
2.3.9 Evidence
2.3.10 Awards
2.3.11 Discontinuation of Arbitral Proceedings
2.3.12 Challenging the Awards
2.3.13 Recognition and Enforcement of Domestic Awards
2.4 OTHER FORMS OF COMMERCIAL DISPUTE RESOLUTION MECHANISMS
2.4.1 Arbitration and Litigation
2.4.2 Negotiation
2.4.2.1 Interest Based Negotiation
2.4.2.2 Rights Based Negotiation
2.4.3 Conciliation
2.4.4 Mediation

CHAPTER THREE: AN ANALYSIS OF THE LEGAL FRAMEWORK GOVERNING INTERNATIONAL COMMERCIAL ARBITRATION IN NIGERIA
3.1 Introduction
3.2 LEGAL FRAMEWORK OF INTERNATIONAL ARBITRATION IN NIGERIA
3.2.1 The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
3.2.2 United Nations Commission on International Trade Law Model Law on international Commercial Arbitration (UNCITRAL Model Law)
3.2.3 United Nations Commission on International Trade Law Model Law Arbitration Rules (UNCITRAL Arbitration Rules)
3.2.4 Arbitration and Conciliation Act
3.2.5 Convention on the Settlement of Investment Disputes Between States and Nationals of other States, 1965 (ICSID Convention)
3.2.6 Nigerian Investment Promotion Commission (NIPC) Act
3.2.7 Foreign Judgments (Reciprocal Enforcement) Act, 2004
3.2.8 Bilateral Investment Treaty (BIT)
3.3 INTERNATIONAL COMMERCIAL ARBITRATION PROCEEDINGS
3.3.1 Appointment of International Arbitrators
3.3.2 Nationality of Arbitrator
3.3.3 Challenging the Tribunal
3.3.4 Setting Aside the Award
2.2.4.1 Scope of Submission
3.4 Costs in International Commercial Arbitration
3.4 Recognition and Enforcement of Foreign Award

CHAPTER FOUR: RECOGNITION AND ENFORCEMENT
4.1       Introduction
4.2       International Center for Settlement of Investment Disputes
4.2.1 Administrative Council
4.2.2 The Secretariat
4.2.3 ICSID Additional Facility
4.3       Arbitration Proceedings
4.4       Costs of Arbitration under ICSID
4.5       Recognition and Enforcement of Awards Rendered by ICSID
4.6       The Challenges Confronting ICSID Arbitration

CHAPTER 5: SUMMARY AND CONCLUSIONS
5.1       Summary
5.2       Findings
5.3       Recommendations
            Bibliography



ABSTRACT

Nigeria is in a continuous quest to attract foreign direct investment (FDI) in order to support and sustain a decent economic growth. These foreign investors being invited are as much interested in the methods available for dispute resolution as they are in every available guarantee on their investments. This dissertation appraises the recognition and enforcement of the International Centre for the Settlement of Investment Disputes (ICSID) Arbitral Awards in Nigeria. The dissertation has the ultimate aim of proposing ways through which Nigeria can re-affirm its commitment to ICSID, as well as foreign investors. The research adopts doctrinal methodology depending on both local and foreign literature on ICSID jurisprudence. The importance of recognition and enforcement comes from the fact that arbitration is considered to be of no value if its award is not enforceable. Bearing this in mind, the work argues that the more recognition and enforcement of arbitral awards are observed with minimal procedural delay, the more the confidence of parties‘ increases. The dissertation examines the Centre from inception, to Nigeria‘s accession to the ICSID

Convention, and the extent of commitment demonstrated so far. The research observed that arbitration under the ICSID is bedevilled by certain controversies resulting from conflicts of interest between the developed and the developing states as evidenced by the denunciation of the ICSID Convention by Bolivia, Ecuador and Venezuela. The analysis revealed the little consequences this has on the commitments of other states to the Convention. Disregarding these issues may be ultimately fatal to the future of the Centre and the commitment of other members, particularly from developing countries. Therefore, the need to embark on specific structural, procedural and functional reforms to give the developing nations more roles to play in running the centre is in emphasis. The dissertation revealed that the review mechanism of the Centre is inadequate, as annulment does not amount to appeal, thereby making it impossible to correct functional errors made by the tribunals. Leading to discontent and leaving the aggrieved parties with limited options; in the end lead to denunciation. Hence, there is the need to develop a system of appeal in order for parties to have recourse to a review mechanism in the light of the inconsistent decisions rendered by ICSID Tribunal. As the work further examines, arbitration under the ICSID is very expensive and complex. Parties are burdened with tribunal costs, professional and counsel fees, transportation, and so many other unforeseen costs. This is why the ICSID Schedule of Fees has to be reviewed to make tribunal charges proportionate to the amount involved in the claim. ICSID tribunals can also take advantage of the virtual world in filing of cases and exchange of pleadings. The work also bares a fundamental problem, that is, the inability of Nigeria to make rules of enforcement as prescribed by section 2 of ICSID (Enforcement of Awards) in order to give effect to the provisions of the Act. Nigeria must re-affirm its commitment to ICSID and the international investor-community, Nigeria must therefore, endeavour to make rules for the enforcement of ICSID award pursuant to section 2 of ICSID (Enforcement of Awards) Act.




CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the Research

Nigeria is blessed in terms of population1 and material resources.2 With a bristling economy that is twice the economy of many African countries put together. Nigeria remains number one destination for foreign direct investment (FDI) in Africa, with the highest inflow at $7.03bn3 as at 2012, but dipped by 21.4% to $5.5b in 2013.4 The size of the economy coupled with the scale of commercial, business and investment activities in various sectors including oil and gas, energy, banking and finance, development projects, construction, transportation, reconstruction of the railways, ports and airport concessions, aviation and international trade, and more recently the power sector, dictate the pace of growth and size of economic activities.

Since the return to democracy in 1999 it has been in the heart of the economic programs of successive administrations to encourage foreign direct investment (FDI). Nigerian business class is encouraged to also invest in other countries usually with direct support from the government. These investors compete for prime relevance in the Nigerian economy and are often faced with many obstacles in the conduct of their businesses. These obstacles include unforeseen change in.....


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