Arbitrators and judges have been described as partners in the business of dispensing justice. The courts often complement and supplement the functions and powers of the arbitrator. This is done by stay of court proceeding in appropriate cases or by issuing subpoena. The court also appoints arbitrators where the parties cannot agree on the arbitrator to be appointed. Also where a party defaults in its obligation to appoint an arbitrator the court will intervene. The court are also saddled with the enforcement of awards and the task of setting aside awards where necessary. In any case the court intervenes to ensure the proper functioning of the arbitral tribunal.
The rationale for the courts in the arbitral process cannot be overlooked as the courts have an interventionary role. In Nigeria, the High courts and Federal High courts have the powers to intervene in this process to help achieve the function of the arbitral tribunal. The courts have the power to refer a dispute to arbitration where an agreement has an arbitration clause and the parties take the matter to court without first exploring arbitration. The Act also empowers the court to order interim measures which are necessary till the dispute is resolved by an award. The court serves as an appellate body to the arbitral tribunal. The courts, therefore, are a major establishment in the arbitral process and have a vital role to play as a power or force pulling the wheel of the arbitral process. The courts intervene to support the arbitral process in areas where only a court can exercise power of enforcement or ensure fairness and justice.
Instances in which a court can intervene in the arbitral process are:
- Appointment of Arbitrators: Section 7(2) & (3) of the Arbitration and Conciliation Act gives the court power to appoint an arbitrator where the parties cannot agree on the appointment of a sole arbitrator. Also where two arbitrators cannot agree on a third arbitrator and this is delaying the arbitral process, the court will intervene and appoint an arbitrator. In section 7(4) of the Act where the court exercises this power of appointment the decision is not subject to appeal.
- Enforcement of Award: When an award is given by arbitrators, the award is enforced by the leave of court. This is provided for in section 31 of the Arbitration and Conciliation Act. An application is made to the court and the order is made giving it strength to be enforced like a judgment of the court. This is also the position in international arbitration when the courts enforce their awards.
- Setting Aside an Award: There are certain circumstances when an award can be set aside. The setting aside of an award can only be ordered by a court on application by an aggrieved party. Section 29(1) of the Act provides for this process. Also, awards in international arbitration can also be set aside as provided in section 48 of the Arbitration and Conciliation Act. There are various grounds such as misconduct of the Arbitrator or where the proceedings were not properly conducted.
- Attendance of Witness: In the arbitral process, parties are normally able to persuade their witnesses to attend and give evidence at the arbitral proceeding. There are cases in which the relevant witness has to be compelled to attend proceedings. The arbitrators do not have such powers and they have to rely on the courts as provided in section 23(1) of the Arbitration and Conciliation Act which gives power to the court to order that a writ of subpoena to testify or subpoena to produce a document be issued to compel the attendance of such vital witness before any arbitral tribunal.
Interim Measures of Protection under the Arbitration and Conciliation Act.
Section 13 of the Arbitration and Conciliation Act provides that:
‘’Unless otherwise agreed by the parties, the arbitral tribunal may before or during an arbitral proceeding
- At the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute; and
- Request any party to provide appropriate security in connection with any measure taken under paragraph (a) of this section’’
The two types of applications for interim measures of protection that can be made to an arbitral tribunal are:
- Application for Interlocutory injunction to protect property.
- Application for security for an order for cost or claims.
There are many circumstances where an Arbitrator will grant or refuse an application for an interim measure of protection such as:
- An order can be given by the tribunal, where there is need to preserve evidence that may be relevant and material to the resolution of the dispute. This might be in the form of preserving a building or goods and not allowing it to be destroyed or removed pending the Award. This was the case in Mareva Compania Naviora S.A V International Bulkcamers S.A. (1975) 2Lloyd’s.
- An interim order to maintain or restore the status quo can also be granted where a party may be required to take or refrain from specified actions. A party may also be ordered to perform a contractual obligation to preserve the subject matter of the dispute. In some cases the subject matter are perishable goods and the tribunal may order sale of such goods to preserve the proceeds until the Award is given.
- An arbitrator will grant an application for an interim measure of protection where the order will prevent damage to or loss of the subject matter of the dispute. Also where it will facilitate the conduct of the arbitral proceedings and the enforcement of the final Award. This is always necessary to ensure that the property or asset in dispute is not allowed to waste or be deplated to the detriment of either party, if the subject matter in dispute will be no more after the Award is made renders the whole process furtile, the interim measure will be granted. This prevention is made so as not to make the Award an empty or hollow one.
- The arbitrator will not grant an application for an interim measure of protection where they are not satisfied that there is any need for such orders and may decide to accept an undertaking made in good faith by the party against whom the measures are sought. They will not grant the application where all the requirements have not been satisfied for the grant. Also where the application was late and no good reason was given for the delay the arbitrators may not grant the application. Where the interim measure is tantamount to final relief the application will also be denied. Where the interim measure is incapable of the alleged harm there will be no use to grant such interim measure. Where the interim measure cannot be carried out the application will be denied as it will be of no consequence.