A Field Not Covered: Arbitration and The Nigerian Constitution

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ABSTRACT

A Field Not Covered: Arbitration and The Nigerian Constitution

Dr. Gbenga Bamodu*

This article addresses the issue of legislative competence over arbitration; it argues that both the federal and state legislatures have competence to enact legislation concerning interstate and international commercial arbitration. The article also contends that the doctrine of covering the field is inappropriate for resolving the issue.

INTRODUCTION

Since 1988 the law typically invoked in Nigeria as the framework legislation concerning commercial arbitration has been the federal Arbitration and Conciliation Act 1988 – although many states continue to have legacy arbitration legislation from Nigeria’s colonial era on their statute books. The introduction and enactment of the Lagos State Arbitration Law of 2009, as an alternative to the federal legislation, and that state’s contention that it has the necessary competence under the Nigerian Constitution of 1999 has ignited a serious constitutional debate about legislative competence over arbitration. This is especially so in relation to arbitration concerning transactions or disputes with connections to more than one state or beyond Nigeria.

The purpose of this short article is to summarise a generally overlooked line of argument,₁ based on a conceptual appreciation of arbitration and extant Nigerian judicial authority, that the 1999 Constitution is consistent with the conclusion that both the federal and states’ legislatures have competence to enact arbitration legislation in respect of transactions or disputes with connections to more than one state or beyond Nigeria.

The matter of constitutional legislative competence over arbitration has been the subject of an ongoing fierce and quite impressively stimulating academic debate. On the other hand, when presented with a recent opportunity to address or, in light of a previous decision, to revisit the issue the Nigerian Court of Appeal chose in the particular circumstances to exercise judicial economy saying that it would “refuse to be dragged down into a snake pit”.₂

THE ESSENCE OF THE CONSTITUTIONAL DEBATE
The constitutional debate centres around whether the current Nigerian Constitution of 1999 clearly determines which legislature, as between the federal legislature and states’ legislatures, has the competence to enact a framework arbitration legislation – especially as it relates to interstate and international commercial activities and disputes arising out of them.

The two legislative lists, the Exclusive and Concurrent Legislative Lists, through which the Constitution primarily sets out the respective legislative competences of the federal and states’ legislatures do not expressly mention arbitration. This has led to the question of whether legislative competence over arbitration is addressed in the constitution at all or whether it can be said to have been addressed as part of or incidental to another heading that is expressly mentioned.

* Ph.D., BL. Barrister & Solicitor, School of Law, University of Essex (UK) and Phillipsons Consultancy

1.  See further, Gbenga Bamodu, ‘Legislative Competence over Arbitration in Nigeria: Towards Resolving the Constitutional Controversy’ (2016) 1 International Arbitration Law Review 1
2. See Stabilini Visinoni Limited v Mallinson & Partners Limited [2014] 12 NWLR (Pt 1420) 134, 175