INTRODUCTION

Disputes are an unavoidable occurrence in many local and international business and

commercial transactions. Different legal and commercial expectations, cultural approaches,

political posturing and geographical situations all form the sources for disagreement and

conflicts between contracting parties. As a tool, arbitration is one of several alternative means

to a speedy and efficient dispute resolution. As employed in conflict resolution, arbitration

has been described as the reference of a dispute between not less than two or more persons

for determination, after hearing both parties in a judicial manner by a person or persons other

than a court of competent jurisdiction1.

When parties enter into a contract or other legal relations, they often draw up and

incorporate into their agreements arbitration clauses or separate arbitration agreements to act

as a guide for the resolution of any dispute arising from such contracts or relations. In

Nigeria, the procedure of arbitration, particularly commercial arbitration is governed by the

Arbitration and Conciliation Act2. The provisions of the Act ensure that parties have

extensive influence over the arbitration, from the choice of the arbitrators to the procedure

that guides the entire arbitral proceedings.

It is trite that parties are bound to refer their dispute to arbitration where there is in

existence an arbitration agreement or arbitration clause in an agreement since this accord with

the principle of freedom to contract as restated in Kaduna Textiles Ltd v Umar3. The clause or

the agreement is therefore the foundation of any arbitration and there can be no arbitration

between parties who have not agreed to submit their dispute to arbitration. The only

exceptions to this are the instances of statutory arbitration. Where therefore such an

agreement for reference exists, it becomes irrevocable except by agreement of the parties or
1
Saunders (ed.), Words and Phrases legally defined (3rd ed., Butterworth’s 1988), 105.
2
Cap A18 LFN 2004
3
(1994) 1 NWLR Part 319 pg 143 at 155 paras D-F
by leave of a judge4. Where the agreement is revoked by a judge such a revocation is usually

made for a good reason e.g. that the matter being referred is one which ought not to be so

referred e.g. winding up, criminal offence or dissolution of marriage, or a matter contrary to

public policy.

Oftentimes, where a dispute arises for which a submission to arbitration has been

made, a party may ignore the arbitration agreement and take out a writ in court in order to

proceed by way of litigation for the enforcement of his rights under the contract. The other

party may challenge this move by entering a conditional appearance in answer to the service

of court processes on him. This appearance made in protest will incorporate a preliminary

objection in which the attention of the court will be drawn to the fact that there is a subsisting

agreement between the parties to refer their dispute first to arbitration and further praying the

court for an order staying the proceedings and to refer the parties and the dispute to

arbitration5. Where however upon the receipt of court processes the other party takes a step in

response without challenging the act of the other party, the courts have held that such a step

amounts to a waiver of the arbitration agreement to submit the dispute first to arbitration. In

Obienu v Okeke, the court held that a failure to object to the exchange of pleadings and to file

an application for a stay of proceedings amounts to a waiver of the right to challenge the non

submission of the litigating party to arbitration6. In Radio Publicity (Universal) Ltd v

Luxumbourgeouise Radio Diffusion7, the delivery of a counterclaim was also held to be a

waiver to the right to arbitration.

Where the matter has been properly referred to arbitration and the arbitrator(s) have

been duly appointed, the Act makes provision for the parties to challenge the mandate of the

arbitrators in the absence of any tailor-made procedure agreed to by the parties. Clearly, the
4
S. 2 of the Act
5
Section 4 and 5 of the Arbitration and Conciliation Act, Cap. A18 LFN
6
(2006) 16 NWLR Part 1005 pg 225 at 240 para A-B
7
(1926) 2 AER 721
intention of the statute is that since the parties have voluntarily availed themselves of this

means of dispute resolution, they should not be denied the right to challenge any act or

procedure which is at variance with terms laid down in the arbitration clause or other

underlying intentions bearing on impartiality, fairness and objectivity. Consequently, the

grounds for challenge are either tied to the conditions for arbitrators’ appointment, the

jurisdiction of the tribunal or the procedure adopted by the arbitrators during the proceedings

and the final award itself. Like litigation, the jurisdiction to act or preside over the arbitration

must be properly acquired by an arbitrator to satisfy the requirement of competence,

independence and impartiality. This jurisdiction once acquired must remain with the

arbitrators throughout the entire proceedings and until the delivery of the award. In line with

their special adjudicative function, the arbitrator has a duty to be and remain fair and disclose

all facts relevant to the arbitration. This adjudicative requirement therefore demands that the

arbitrator avoid bias and declare any form of interest in the subject matter of arbitration. The

courts have always been quick to intervene to safeguard the interests of parties where there is

the likelihood of bias or impartiality. In Shepherd v Brand8 the demand of money by the

arbitrators for certain charges was only heeded by one of the parties. The award was later set

aside when the court held that receipt of money from one party alone for any reason before

making an award was sufficient cause for bias.

OVERVIEW OF THE ARBITRATOR

Parties to arbitral proceedings generally expect an arbitrator to organize and control

the arbitration process efficiently, minimize costs, accord fair and equal treatment to the

parties, and to ultimately resolve the issues in dispute by making an effective and binding

award. To enable the arbitrator meet these expectations he has certain duties towards the

parties from whom he/she derives jurisdiction.

8
(1734) 2 Barnard. 463.
 APPOINTMENT OF ARBITRATOR

Primarily, parties are required to appoint the arbitral tribunal (which may consist of

one or three persons). Examples of third party sources of appointment include :

 Competent Courts,

 Existing arbitrators ( in instances where three arbitrators are to be appointed ),

 Arbitral institutions,

 Professional institutions.

Although Section 34 of the Nigerian Arbitration and Conciliation Ac t, 2004, which

accords with the arbitration principle of judicial non-intervention states: “A court shall not

intervene in any matter governed by this Ac t except where so provide d in this Ac t” (Re

stated in the case of Nigerian Agip Exploration Limited v. Nigerian National Petroleum

Corporation and Oando OML 125 & 134 Ltd: 2014: Nigeria n Court o f Appeal), There are

instances where the Court may intervene in arbitration. For instance , Section 7 of the Act

vests the Court with power to appoint arbitrators and also sets out the procedure , well

illustrated in the case of Compagnie General de Geo physique v. Etuk (2004) 1 NWLR

(pt.853) 20. A decision of the court in this regard shall not be subject to appeal - section 7(4).

Artic le 11(3) o f the UNCITRAL (United Nations Commission on International Trade Law)

Model Law 2006, vests power to appoint an arbitrator in the court. Clearly, Orde r 52 (2) o f

the Federal High Court (Civil Procedure ) Rule s, 2009 specifies that the Court ma y appoint

arbitrators, where parties cannot agree with respect to the nomination. Section 11 o f the

Arbitration and Conciliation Act of India (1996) empowers the Chie f Justice o f the High

Court or the Chie f Justice of India or any person or institution designated by him, upon

request by a party to appoint an arbitrator.

 DUTIES OF AN ARBITRATOR

I. Duties Imposed by Parties in the Arbitration Agreement

The parties may impose specific duties on the arbitrator either in the arbitration

agreement or in any subsequent agreement. Such duties may be imposed either before the

arbitrator is appointed or after her appointment. It is important for a prospective arbitrator to

look carefully at the agreement to ascertain whether it contains duties that she may not be

able to fulfil in the event that she is appointed arbitrator. As a matter of courtesy, parties

should consult the arbitrator prior to the imposition of any additional duty after appointment.

Where the arbitrator finds that she is unable to perform such a duty and the parties insist on

its performance, the arbitrator may have to offer her resignation.

II. Duties Imposed by Applicable rules or law

Where arbitration is conducted under international or institutional rules of arbitration,

the applicable rules impose specific duties on the arbitral tribunal in addition to those

imposed by the parties. Some of these duties are:

(a)Duty to Be and Stay Impartial and Independent:

The impartiality and/or independence of an arbitrator are essential features of this quasi-

judicial process. The long-standing norms that no one should be a judge in his own cause and

that justice should be seen to be done apply equally to arbitration. The arbitrator must avoid

communicating with one party without the knowledge of the other. Under section 8 of the

ACA and Articles 9 and 10 of the Arbitration Rules, arbitrators have a duty to be impartial

and independent. Impartiality requires that an arbitrator neither favors one party nor be

predisposed as to the question in dispute. Independence on the other hand requires that there
should be no such actual or past dependant relationship between the parties and the arbitrators

which may affect, or appear to affect the arbitrators’ freedom of judgment.

(b)Duty of Disclosure:

Section 8(1) of the ACA provides that the arbitrator has a duty to disclose all relevant

facts which are likely to give rise to any justifiable doubts about her independence and

impartiality9. The Arbitrator must discharge this duty of disclosure at the earliest opportunity,

usually at the time of her interview by the parties before the confirmation of her appointment.

The arbitrator’s duty of disclosure extends to all information which could be relevant. The

duty continues after the appointment of the arbitrator and subsists through out the

proceedings. Where an arbitrator has fulfilled her duty of disclosure, a party cannot challenge

the award on the basis of the fact disclosed as such party would be held to have waived his

rights and submitted to the jurisdiction of the Arbitrator. The threshold or test for what

amounts to lack of disclosure was decided in that case of AT & T Corporation vs. Saudi

Cable Company10 to be the “real danger of bias” as opposed to a “reasonable suspicion

threshold”. The court held that an inadvertent non disclosure of a fact which might have

affected the appointment process is not sufficient to lead to a real danger of bias.

(d)Duty to be Physically and Mentally Capable of Conducting the Proceedings

10
[2000] 1 All ER (D) 657
 An arbitrator must be physically and mentally capable of performing her duties in

relation to the reference. The parties may agree to terminate the appointment of an arbitrator

by reason of her inability to perform her functions11

(e)Duty to Adopt Procedures Suitable to the Circumstances of the Particular

Case

As part of the arbitrator’s duty to conduct the reference with reasonable skill and

diligence, she must adopt a procedure that is tailor-made for the particular type of dispute she

is confronted with. The duty to adopt procedures that are suitable for the circumstances of the

particular case is reinforced by provisions which give the arbitrator the power to determine

the manner in which the reference is to be conducted, subject only to any agreement of the

parties and mandatory provisions of law. Thus Article 15(1) of the First Schedule to the ACA

provides that the arbitral tribunal may conduct the arbitration in such manner as it considers

appropriate, provided that the parties are treated with equality and that at any stage of the

proceedings each party is given a full opportunity of presenting his case.

(f) Duty to conduct the arbitration fairly and without undue delay:

The first duty of the arbitrator under this head is the duty to treat both parties fairly

and equally and ensure that each party is given full opportunity of presenting his case.10

Section 14 of the ACA which is based on Article 18 of the Model law and Article 15(1) of

the UNCITRAL Arbitration Rules provides that: In any arbitral proceedings, the arbitral

tribunal shall ensure that the parties are accorded equal treatment and that each party is given

full opportunity of presenting his case. In the case of Umar v. Onwudiwe12 the Court of

Appeal held that the arbitrator’s duty to conduct the arbitration fairly means that the arbitrator

must, among other things, (a) hear both sides and consider all material issues in the case
11
Section 10(1) (b) of the Arbitration and Conciliation Act 1988
12
[2002] 10 NWLR Pt. 774 p. 150; African Assurance Corp. v. Aim Consultant Ltd. (2004) 12 CLRN p. 107-124
before reaching a decision and (b) give equal treatment, opportunity and consideration to all

concerned. The arbitrator’s duty to allow the other party to present his case is based on the

fundamental principle of audi alteram partem13 which must be observed by persons with

judicial and quasi-judicial functions. The best guideline that an arbitrator can follow in this

regard is to allow a party reasonable time to present his case and respond to the case of the

other party. Where existing workload will not permit an arbitrator to discharge his functions

expeditiously, he should either reject the appointment or at least disclose these facts to the

parties so that they can decide whether or not to appoint him.

(g)Duty to keep the arbitration confidential

It is an implied term of the arbitration agreement that the proceedings will be private

and confidential. Article 25(4) of the Arbitration Rules provides that hearings shall be held in

camera unless the parties agree otherwise. The arbitrator therefore has a duty to preserve the

confidential and private nature of the proceedings. She is not allowed to communicate any

details or names without the parties consent. Arbitrators must consider all aspects of an

arbitration to be confidential. These include the records of the arbitration hearing and the

award.

(h)Duty to consider relevant circumstances when determining the language to be

used at the arbitral proceedings.

It is important to specify the language of the arbitration in international commercial

arbitrations. This is because the parties may be nationals of different countries with different

languages. Section 18(1) of the ACA empowers the arbitral tribunal to choose the language

13
A latin phrase that means, literally, 'hear the other side' or 'hear both sides' and is deep-rooted principle of
natural justice
or languages for the arbitral proceedings bearing in mind the circumstances of the case in the

event that the parties do not agree on the language to be used in the arbitral proceedings14.

(i) Duty to communicate expert report to the parties15

Section 20(4) of the ACA imposes on the Arbitrator the duty to communicate to the

parties any expert report or evidentiary document upon which the arbitral tribunal

may rely in making its decision. Incidental to this duty is another duty to give the

parties reasonable opportunity to comment on any information, opinion or advice

given by experts or legal advisers. The essence of this duty is to further ensure that the

parties are treated fairly and equally.

(j) Duty not to decide ex aequo et bono or as amiable compositeur unless

authorised by parties16

By virtue of sections 22(3) and 47(4) of the ACA, the arbitral tribunal must not decide

“ex aequo et bono” or as amiable compositeur unless authorised by the parties. This means

that the arbitral tribunal must not waive the strict legal rules of interpretation except as

authorised by the parties. The essence of this provision is to discourage arbitrators from

resorting to extra legal arbitration and thus prevent arbitrariness in resolving disputes In the

case of Orion Espanola De Seguros vs. Belfort Maatshappy Voor Algemene

Verzeekgringeen17 it was held that arbitrators must in general apply a fixed and recognisable

system of law and that they cannot be allowed to apply some different criteria such as the

view of the individual arbitrator or umpire on abstract justice or equitable principles.

(k) Duty to draw up an award in the prescribed form18

14
Article 17 of the Arbitration Rules (1st Schedule) to the ACA also has similar provisions
15
Section 20(4) Arbitration and Conciliation Act, Cap. A18, LFN 2004
16
Section 22(3) Arbitration and Conciliation Act, Cap. A18, LFN 2004
17
[1962] 2 Lloyd’s Report 257, 264
18
Section 26 of the ACA
 An award must conform to the prescribed form as provided by the arbitral law of the

country where the arbitration takes place. Section 26 of the ACA provides the form for an

award.18. Section 26(4) of the ACA also makes it mandatory for the arbitrator to deliver

copies of the award to each party.

(l) Duty to take into account relevant consideration when fixing the arbitrators

fees19.

Section 49(2) of the ACA provides with respect to international commercial

arbitrations that the arbitral tribunal shall be reasonable in amount, taking into account the

amount in dispute, the complexity of the subject matter, the time spent by the arbitrators and

any other relevant circumstances of the case. International or institutional rules of the Arbitral

Tribunal also impose specific duties on the arbitral tribunal in addition to or as a complement

to the duties already imposed by the parties themselves and the arbitral laws of the country

where the arbitration takes place.

MISCONDUCT BY AN ARBITRATOR

Section 30(1) provides two additional grounds for setting aside an arbitral award. The first

ground is if an arbitrator has misconducted himself or herself. The instances of misconduct

have been stated by the Court of Appeal in the recent case of Polaris Bank v. Magic Support

(Nig) Ltd20 when the court held as follows: -

"Parties are in consensus with respect to the fact that there is nowhere in the Act where what

amounts to misconduct is defined. Resort will therefore be had to case laws on what amounts

to misconduct. In Taylor Woodrow (Nig) Ltd vs. Suddeutsche EtnaWerk GBMH (1993)

LPELR-3139 (SC), the apex Court held: "Paragraph 622 of Halsbury's Laws of England 4th

19
Section 49(2) of the ACA
20
(2020) LPELR-53106(CA
Edn. Vol. 2 at pages 330 - 331 sets out what constitutes misconduct and lists examples of acts

that have been held to amount to misconduct. "622. WHAT CONSTITUTES

MISCONDUCT, it is difficult to give an exhaustive definition of what may amount to

misconduct on the part of an arbitrator or umpire. The expression is of wide import, for an

arbitrator's award, unless set aside, entitles the beneficiary to call on the executive power of

the state to enforce it, and it is the Court's function to ensure that the executive power of the

Court is not abused. It is accordingly misconduct for an arbitrator to fail to comply with the

terms, express or implied, of the arbitration agreement. But even if the arbitrator fully

complies with those terms, he will be guilty of misconduct if he makes an award which on

grounds of public policy ought not to be enforced. Much confusion has been caused by the

fact that the expression 'misconduct' is used to describe both these quite separate grounds for

setting aside an award, and it is not wholly clear in some of the decided cases on which of

these two grounds the award has been set aside. However, on one or other of these grounds

the expression includes on the one hand that which is misconduct by any standard, such as

being bribed or corrupted, and on the other hand mere "technical" misconduct, such as

making a mere mistake as to the scope of the authority conferred by the agreement of

reference.”

The concept of “misconduct” is not defined in the ACA, and its scope has been developed by

judicial authorities on a case by case basis. The following is an illustrative list of what has

been held to constitute “misconduct” in the context of arbitral proceedings:

(i) Where the arbitrator fails to comply with the term, express or implied of the

arbitration agreement;

(ii) Where the arbitrator makes an award which on ground of public policy

ought not to be enforced;

 (iii) Where the arbitrator has been bribed or corrupted;

(iv) Where the arbitrator makes mistake as to the scope of authority conferred

by the agreement;

(v) Where the arbitrator fails to decide all the matters referred to her;

(vi) If the award is inconsistent or ambiguous;

(vii) Where the arbitrator breached the rules of natural justice;21

(viii) Where the arbitrator makes an error of law that is apparent of the face of

the award, but only if the point of law erroneously decided was not

specifically referred for the decision of the arbitrator;22

(ix) Where the arbitrator wrongfully admits and acts on evidence which goes to

the root of the question submitted to him23. However where, in deciding as

to admissibility, the arbitrator acts honestly and judicially, then if while so

acting he decides erroneously that evidence is or is not admissible, that in

itself is not misconduct and as with other mistakes his award will not be set

aside on that ground unless the error appears on its face24.

If the arbitrators exceed their authority the consequence may be that the award will be set

aside by an aggrieved party who can show that the award deals with a dispute not falling

within the terms of submission to the arbitrators. However, if the decisions on the matters

21
Arbico Nigeria Limited v Nigeria Machine Tools Ltd (2002) 15 NWLR 1
22
Taylor Woodrow Nigeria Ltd v Etina Werk GMBH (1993) 4 NWLR 127
23
KSUDB v Fanz Construction Company Limited (1990) 4 NWLR 1; Compt. Comm. & Ind. Ltd v OGSWC (2002) 9
NWLR 629
24
7 KSUDB v Fanz Construction Company Limited (1990) 4 NWLR 1; Compt. Comm. & Ind. Ltd v OGSWC (2002)
9 NWLR 629
falling within the arbitrators jurisdiction can be separated from those not submitted, only that

part of the award which contains decisions on matters not submitted may be set aside25

While an arbitrator has a duty to ensure the validity of an award, it is not one the arbitrator’s

duties to ensure the enforceability of an award. This is because the requirement for

enforcement differs from country to country and the arbitrator cannot know in which country

the award will be enforced.

CONCLUSION

The misconduct of an arbitrator is a well-crafted remedy for a victim of unfair and unjust

arbitration proceedings. If an arbitrator misconducts himself or the proceedings, they are

disentitled to receive the remuneration for their services. However, Nigerian courts are

inclined towards the doctrine of arbitral immunity and are motivated to shelter arbitrators

from criminal liability. Although the immunity protects arbitrators from undue harassment,

the same is not absolute, and a civil action for damages can be brought against an arbitrator

for misconduct

REFERENCES

1. Doyin Rhodes-Vivour, ‘Immunity of arbitrators’, (West Law India, 2017).

2. Fouchard, P.; Gaillard E.; Goldman B., Fouchard, Gaillard, Goldman on international

commercial arbitration Kluwer Law International’, (The Hague, 1999) 593.

3. Haq Nawaz Khan v the State 2005 YLR 1850 [5].

4. The English Arbitration Act 1996 (UK), Articles 25, 26 & 29

5. SB Greenwold v. NAI and arbitrators, LJN# BJ7834, 7 December 2009.

6. Federation of Pakistan Through D.G. National Training Bureau v James Construction

Company (Pvt) 2018 PLD ISL 1.

25
Bellview Airlines Limited v. Aluminium City Limited (2005) 7 CLRN pages 143 to 159