2nd April, 2024By Opeyemi Ojebode.

THE APPLICABLE ARBITRATION LAW TO A DEFECTIVE ARBITRATION CLAUSE

Introduction

Arbitration is a private dispute resolution mechanism constituted by a neutral third party, the arbitral tribunal. The parties’ agreement to arbitrate is the foundation of any valid arbitration from which the tribunal derives its power and authority. The arbitration clause is typically stated in the main contract between the parties but it can also be a separate agreement. Whether included in the main contract or a separate document, it is distinct from the contract or agreement, such that the arbitration clause survives and remains valid even when the main agreement or contract comes to an end.

Whilst the jurisdiction of a court is conferred by the 1999 Constitution of the Federal Republic of Nigeria (CFRN) or statutes, the jurisdiction of an arbitral tribunal has its roots in the parties’ agreement. Furthermore, one of the attractiveness of arbitration is that parties are at liberty to choose the applicable law, an arbitration clause usually names its applicable law.

An arbitration clause or agreement must satisfy the requirements of a contract such as consensus, capacity, and legal relationship. Like any other contract, the terms must be clear and certain.

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