GENERAL INTRODUCTION
International commercial arbitration provides an attractive alternative to the traditional method for the settlement of investment dispute. It avoids the demerits of litigation in domestic courts. It offers the parties the opportunity to select arbitrators who enjoy their confidence and have the necessary expertise in the material field.
Where an award debtor immediately carries out the terms of an arbitral award, the question of enforcement does not arise. However, as is mostly the case especially with respect to arbitral award made pursuant to the ICSID Convention between a state and a national of another state, the unsuccessful party may be unwilling to comply with the terms of the award or may even seek to challenge it. Unfortunately, the arbitral process cannot by itself enforce its own award, because the arbitrators do not have executive powers to enforce its award. As such, it often means that the successful party may have won the battle but is yet to win the war.
Therefore, in order to secure the enforcement of the award, the successful party must take steps after obtaining the award in a foreign jurisdiction to have the award enforced by Nigerian court so that the machinery of the court processes can be used to enforce it. In so doing, the first thing a successful party has to do is to decide which of the enforcement regime he wishes to adopt in having the award enforced.
However, most often than not, our courts are unwilling to pronounce in favour of an arbitral award especially award made pursuant to ICSID Convention. This work attempts to identify the reason for our courts’ unwillingness to influence the enforcement of ICSID awards and thereby proffering possible way out of this current quagmire.
The problem lies with the discretion of Nigerian courts to influence the enforcement of ICSID awards in deserving cases.
This work attempts to identify why our courts are passive with respect to enforcement of awards made pursuant to the International Centre for the Settlement of Investment Dispute (ICSID) Convention
This work is limited to identifying the limitation imposed on Nigerian courts in the enforcement of ICSID award.
The importance of this work is as follows:
The approach adopted in this work is a doctrinal approach, as this research work is based on information obtained from case laws, statutes, conventions, journals and textbooks.
1.7.1 Award
According to Black Law Dictionary, an award is defined as “the decision or determination rendered by arbitrators or commissioners, or other private or extra judicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision.”[1]
An award is the decision or “judgment” of the arbitration panel and thus the end product of the arbitral proceedings.[2]
1.7.2 Enforcement
According to the Black’s Law Dictionary, “Enforcement is making sure a rule or standard or court order or policy is properly followed.”[3]
[1]Black’s Law Dictionary(2
nd
ed.St. Paul, Minn.: West Publishing, 1891) p.149[2] C Ibe, Insight on the Law of Private Dispute Resolution in Nigeria (Ed ‘Demak Ltd. 2008)p.175
[3]Op.cit. p364