agree that the list-procedure should not be used or unless the Court determines in its discretion that the use of the list-procedure is not appropriate for the case, that is-
(a) at the request of one of the parties the Court shall communicate to both parties an identical list containing at least three names;
(b) within fifteen days after the receipt of this list, each party may return the list to the Court after having deleted the name or the names to which he objects and numbered the remaining names on the list in the order of preference;
(c) After the expiration of the above period of time, the Court shall appoint the sole arbitrator from among the names approved on the lists returned to it and in accordance with the order of preference indicated by the parties;
(d) If for any reason the appointment cannot be made according to this procedure, the Court may exercise its discretion in appointing the sole arbitrator.
4. In making the appointment, the Court shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as
well, the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.205
This section provides that where the parties have not reached an agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the appointing authority 206
It should be noted that the provisions of Article 6(1) and 6(2) of the Arbitration Rules is in pari-materia with Arbitration and Conciliation Act s. 44(1) (2) , the only difference is as regard the appointing authority. The Act in s. 44 does not provide for the appointing authority and the section nearly provides that the sole arbitrators shall be appointed by the appointing authority.
Since the Act in s. 44 has failed to provide for the appointing authority, s. 54(2) however attempts to remedy the short fall of s. 44. s.54 (2) provides that in this part of this Act “the appointing authority means the Secretary General of the Permanent Court of Arbitration at the Hague.”
While the Arbitration and Conciliation Act provides for both international and domestic arbitration it would seem that the Secretary General of the Permanent Court of Arbitration of the Hague would only seem to be applicable to only international arbitration.
The provisions of s.44 of the Act has come under heavy criticism by Orojo and Ajomo207 who are of the view that section 44 of the Act be amended and the parties be allowed to provide for an appointing authority of their choice.
205 This is in pari-material with s. 44 (1) (2) (3) of the Act.
206 S. 44(5) (7) of the Act provides for the procedure for appointing three arbitrators
S. 44 of the Act provides for the appointment of Arbitrator(s) in domestic arbitration. The procedure for the appointment of arbitrator(s) (the procedure) shall be followed by the parties.
However where the parties did not provide for the procedure in their agreement in the case of three arbitrators, each party shall appoint its own arbitrator and the two arbitrators appointed by each party shall appoint the third arbitrator who shall be the chairman of the arbitral tribunal.
In a case where a single arbitrator is to be appointed and the parties failed to appoint the arbitrator either of the parties may approach the Court for the appointment. In Compagne Generale De Geophysique v Etuk208 it was held that
In a situation where a sole arbitrator is to be appointed but there is no specific procedure in the arbitration agreement for the appointment and the parties fail to reach an agreement on the appointment, one party cannot unilaterally appoint the sole arbitrator to the detriment of the other party without recourse to Court.
Where parties fail to agree on the appointment of the arbitrator(s) within 30 thirty days of such disagreement any of the parties may approach the Court for the appointment.
The Court has no power to appoint arbitrator for the parties except where one party refuses to appoint an arbitrator. This position was re-echoed in EL-Assad v Misr (Nig) Ltd209 where it was held that:
207 Orojo and Ajomo, Law and Practice of Arbitration in Nigeria (Lagos: Mbeyi & Associates (Nigeria) Limited 1999) p. 127.
208 (2004) ALLFWLR (pt 235) p.59.
209 (1968) NCLR 173.
The Court has no inherent jurisdiction to appoint an arbitrator or umpire or to compel any party to the agreement of reference to do so “The authority for this proposition is the case of Re Smith &
Service and Nelson & Sons (1980) 25 QBD,545 (1886-90) ALLER Rep 1091. In that case their Lord Ships were dealing with the Arbitration Act 1889 and the head note of the Law Reports reads (25 Q.B.D at 545)
Where an agreement to refer disputes to arbitration provides for a reference to three arbitrators, one to be appointed by each of the parties, and the third by the two so appointed, and one of the parties refuses to appoint an arbitrators, the Court has no power either under or apart from the Arbitration Act 1889, to order him to do so”
Lord Esher M.R in his judgment (25 Q.B/D at 548-549 (1886-90) ALLER at 1092-1093) dealt at length with the jurisprudence of Common Law Courts of Equity with regard to the appointment by the Court of an arbitrator, and came to the conclusion that there was no power in law or at equity by which one party could be ordered to appoint an arbitrator. It is clear from the judgment of Lord Esher that in his view the Court had no inherent jurisdiction to appoint an arbitrator.
Again in Magbagbeola v Sanni210the Court held that;
The appointment of an arbitrator in conformity with the agreement of the parties where there is a dispute is a matter that is regulated by the Arbitration and Conciliation Act Cap 19 Laws of the Federal Republic of Nigeria. 1990. Section of (2) (b) of the Arbitration and Conciliation Act provides as follows “where no procedure is specialized under sub-section (1) of this Section :-(b) in the case of an arbitration with one arbitrator, where the parties fail to agree on
210 (2000) LPELR-10817 (CA). (2002) 4 NWLR (pt756) 193.
the arbitrator, the appointment shall be made by Court on the application of any party to the arbitration agreement Made within thirty days of such agreement.
The Court here means the High Court of a State, the High Court of the Federal capital Territory or the Federal High court 211
In Magbegbeola v Sannithe Supreme Court held that in explaining the meaning of court and judge in the appointment of arbitrator held that:
By section 57 of the Arbitration and Conciliation Act, “Court”
means the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court: and Judge means “Judge” of the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court.
Therefore in an action before the Court where parties seek the appointment of an arbitrator, both the State High Court and Federal High Court have jurisdiction to appoint an arbitrator.212
The Act has provided a check list of procedure for the Court to follow where an application is brought for the appointment of arbitrator. Article 6(3) of the Act provides for the procedure the Court is to follow in appointing a sole arbitrator, unless the Court in the exercise of its discretion is of the view that the procedure will not be appropriate for the particular case.
The procedure includes:
(a) At the request of one of the parties the Court shall communicate to both parties an identical list containing at least three names.
211 Arbitration and Conciliation Act s. 57.
212 (2005) ALLFWLR (pt 267) p.1367.
(b) Within fifteen days after the receipt of this list, each Party may return the list to the Court after having deleted the name or names to which he objects and numbered the remaining names on the list in the order of Preference.
(c) After the expiration of the above period of time the Court shall appoint the sole arbitrator from among the names approved on the list returned to it and in accordance with the order of preference indicated by the parties.
(d) If for any reason the appointment cannot be made according to this procedure, the Court may exercise its discretion in appointing the sole arbitrator.213
It must be emphasized that with Article (6) (3) (d) the check list is only to serve as a guide to the judge in making the appointment. The rule have made room for the exercise of discretion by the judge in making the appointment. In this regard, the judge is however enjoined to appoint an arbitrator that will be independent and impartial.
However where the arbitrators are stated to be three, the following are the check list or procedure to be followed by the Court: unless otherwise agreed by the parties or the judge in the exercise of its discretion thinks otherwise:
213Ibid
(a) A party fails to act as required under the procedure.
(b) The parties or two arbitrators, are unable to agree as required under the procedure.
(c) A third party, including an institution fails to perform the duty imposed on it under the procedure.214
The decision of the Court in the appointment of arbitrator is final and no appeal lies on it.
In Celtel Nigeria BV v Econet Wireless Limited & Anor215it was held that:
Even in matters of appointment into public office the appointing authority that appoints or removes or suspends a person from work may change its mind to reinstate the person removed. See section 11 (1) of the Interpretation Act Cap. 123 contained in volume 8 of the Laws of the Federation 2004. It is only after a decision is reached under section 7 (3) of the ACA that the point of no return is reached, at that stage the parties have crossed the Rubicon, if I may say so, and there is no going back to another body or person to make the appointment. The statutory machinery is therefore uncompromising. Once applied on full throttle leading to appointment of arbitrator (s), that would be the end of the matter.
That is why there is no right of appeal from the decision of the appointing authority in section 7 of ACA.
This is because allowing the decision of the Court in appointing an arbitrator to be a subject of appeal would rob the arbitral process of one of its cardinal attributes since speed has been one of the striking attributes of arbitration.
214 Article 7 (3), Arbitration and Conciliation Act s. 44 (5).
215 (2014) LPELR- 22430 (CA) p.57.
S. 44 of the Act provides for the procedure for appointment of arbitrator in international arbitration. By s. 44(1) of the Act one of the parties may propose the name of an arbitrator who will serve as a single arbitrator
An application to appoint an arbitrator can be brought by any of the parties. A judge cannot appoint an arbitrator unless there is a proper application made before him in this regard.
A proper application is made when both sides in controversy are heard only after a fundamental issue such as jurisdiction is heard and resolved
InKalagbor v General Oil Ltd 216 it was held that:
S. 6 of the Act does not give the trial judge the discretion to appoint an arbitrator. The provision make it mandatory for a judge to appoint an arbitrator when a proper application is made to him. In the instant case, it cannot be said that there was proper application before the trial court therefore as the fundamental issue of jurisdiction has not been heard and resolved, before the Court appointed, after hearing only one party.