Olokotor, Prince Ndudi Councillor (2017) Judicial attitudes to enforcement of transnational awards under the New York convention : a critical assessment of the English and Nigerian courts. PhD Thesis. SOAS, University of London. http://eprints.soas.ac.uk/id/eprint/24950 Copyright © and Moral Rights for this PhD Thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This PhD Thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this PhD Thesis, full bibliographic details including the author, title, awarding institution and date of the PhD Thesis must be given e.g. AUTHOR (year of submission) "Full PhD Thesis title", name of the School or Department, PhD PhD Thesis, pagination. JUDICIAL ATTITUDES TO ENFORCEMENT OF TRANSNATIONAL AWARDS UNDER THE NEW YORK CONVENTION: A CRITICAL ASSESSMENT OF THE ENGLISH AND NIGERIAN COURTS Prince Ndudi Councillor Olokotor Thesis submitted for the degree of PhD in Law September 2016 School of Law SOAS, University of London Declaration I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: ____________________________ Date: _________________ Dedication This thesis is dedicated to my late father, H.R.H, Eze, Councillor Nwanadi Olokotor, (JP) who is presently in the morgue. 1 Acknowledgement The path to the research that produced this thesis was circuitous therefore, I am eternally grateful to God Almighty for giving me the strength to carry out this research to its logical completion. Without any shadow of doubt, to acknowledge the number of persons who have directly or otherwise made invaluable contributions to the writing of thesis would be a manifest impossibility. Thus, zillion thanks to all who challenged, supported and stuck with me to the end of my research that led to the writing of this thesis. Without you all, I would not have come this far. I am greatly fortunate to have Dr. Emilia Onyema as my supervisor, she brought a depth of knowledge that few could march. I am also opportune to have Prof. Peter Muchlinski, Prof. Philippe Cullet and Mr. Ian D. Edge as members of my supervisory committee. I thank them immensely for their academic support and generosity. Though, it was daunting to write for a committee whose academic works/contributions are highly regarded, their thoughtful feedback and feedforward kept me focused and spurred me to keep writing. My deepest appreciation goes to, my wife, Ijeoma, our son, Michael, my mum, Esther, my brother, Nwachukwu, my entire family members, which space and time will not allow me to mention their names one after the other, Hon. Welendu Chijemezu Mamhobu-Amadi & family and Barr. Collins N. Obulor & family, for your untiring support, financially, morally and in prayers. Also, my profound gratitude to my friends, Dr. Gift N. Obuzor & family, Dr. Justin M. Gabriel & family, Dr. Ikpe C. Okara & family, Dr. Monday E. Agi, Prof. Theophilus Gokah & family, Mr John Allen & family, Mr John MacAllen Okwukwu & family, Mrs Ingrid George & family and my colleagues, Dr. Peter Orji, Dr. Eghosa Ekhator, Dr. Jonathan Bashi Rudahindwa, Barr. Willams Ukonu, Barr. Gospel C. Agi, Ms. Chioma Ishiodu, Barr. Zeph. Onwuzulike, Barr. Frank Onyiri and Barr. Anthony Ayaogu, for their sincere interest and support during the writing of this thesis. Finally, I remain unendingly thankful to, Total for the various community scholarships awarded to me during my undergraduate, postgraduate and postgraduate research studies and Mr. Justice Marcus, Mr. Roland J. Ajie and Mr. Goodluck Ibara for facilitating the various Total community scholarships. You are all diamonds in the midst of stones! 2 Abstract Arbitration is considered the preferred mechanism for settling cross-border commercial disputes. A court can be an unusual setting for dispute resolution for a national of another country due to such individual’s foreignness with the practices, applicable laws and attitudes of the judges. The charm of arbitration is that it upholds party autonomy and underpins finality and certainty in dispute resolution. Arbitration allows parties to a contract to provide for a procedure which is mutually agreeable. National courts which uphold these rights are considered to be pro-arbitration, whereas courts that limit such rights are either considered as interventionist or hostile to arbitration. Attitudes of courts have implications for parties who select a seat or the laws of a particular country to regulate their arbitration process. This thesis relates to international commercial arbitration and examines the attitudes of courts towards enforcement of transnational arbitral awards. The significance of enforcement hinges on the fact that arbitration is considered to be inconsequential if its award is not enforceable. The primary focus of this thesis is to evaluate the attitudes of the English and Nigerian courts to enforcement of international commercial arbitral awards: based purely on transnational principles, or annulled at the seat of arbitration. The thesis offers a comparative evaluation and engages the law and policy considerations to enforcement of international commercial arbitral awards in both countries under review. To this end, an examination of the English and Nigerian legislation, case law and practice are undertaken. This thesis argues that international commercial arbitration and its awards transcends national frontiers as such, transnational in character. It concludes that the English and Nigerian courts in an appropriate case are ready to enforce arbitral awards based purely on transnational principles or annulled at the seat of arbitration. 3 Table of content Dedication .................................................................................................................... 1 Acknowledgement ........................................................................................................ 2 Abstract ........................................................................................................................ 3 Table of content ............................................................................................................ 4 List of Statutes ............................................................................................................. 9 List of Cases ............................................................................................................... 10 Chapter one................................................................................................................. 21 General Introduction................................................................................................ 21 1. Background ......................................................................................................... 21 2. The significance of the thesis ............................................................................... 23 3. Research questions .............................................................................................. 24 4. Research methodology ........................................................................................ 25 5. Choice of selected jurisdiction: England and Nigeria ........................................... 26 6. Chapter synopsis ................................................................................................. 27 Chapter two ................................................................................................................ 29 Historical overview of arbitration in England and Nigeria ....................................... 29 2.0. Introduction ...................................................................................................... 29 2.1. The concept of transnational law………………………………………………..30 2.1.1. The concept of transnational arbitral awards………………………………..34 2.2. Historical overview of arbitration in England................................................... 35 2.2.1. Common law arbitration ............................................................................. 35 2.2.2. Statutes of arbitration ................................................................................. 37 2.2.2.1. The Arbitration Act 1996 (the AA 1996).............................................. 42 2.2.2.2. The scope of application of the Act ...................................................... 43 2.3. Historical overview of arbitration in Nigeria .................................................... 45 2.3.1. Customary law arbitration .......................................................................... 45 2.3.2. Common law arbitration ............................................................................. 48 2.3.3. The ACA.................................................................................................... 51 2.3.3.1. The scope of application of the Act