International Construction Law Review
MULTI-PARTY ARBITRATION UNDER THE RECENTLY ENACTED ARBITRATION AND MEDIATION ACT 2023 – WHAT DOES THIS MEAN FOR CONSTRUCTION AND INFRASTRUCTURE DISPUTES IN NIGERIA?
Ngo-Martins Okonmah1
Partner, Aluko & Oyebode, Nigeria
Arbitration and Mediation Act 2023 ICC Rules 2021 – LCIA Rules 2020 – Swiss Rules 2012 – Construction; FIDIC – Multi-Party Disputes – Joinder – Consolidation – Concurrent hearing
INTRODUCTION
In recent developments, Nigeria has undertaken a significant amendment to its federal arbitration legislation, via repealing the Arbitration and Conciliation Act2 (“the ACA”) and introducing the new Arbitration and Mediation Act 2023 (“the AMA”).3 The AMA4 contains innovative provisions which, has been successfully passed into law and has brought about substantive reforms to arbitration law and practice in Nigeria (including the resolution of construction disputes),5 in line with international best practice. This article is focused on analysing the provisions in the AMA on joinder, consolidation and concurrent hearings with respect to construction disputes both in the context of international and domestic arbitrations. This analysis is critical considering the recent overhaul of the arbitration rules of major international arbitration institutions6 and the need to ensure that the Nigerian arbitration laws align with ongoing reforms in the international arbitration community as reflected by the rules of leading international arbitral institutions.
1 Ngo-Martins is a partner in the law firm of Aluko & Oyebode, Nigeria and oversees the firm’s construction and engineering practice. He holds an MSc Construction Law and Dispute Resolution from the prestigious King’s College London and has built specific expertise in the fields of construction law and arbitration. He has prior work experience acting as arbitrator and counsel in both domestic and international arbitration administered under the ICC Rules, with seats in Switzerland, London, Miami Florida and Nigeria. He is the Founder and Executive Director of Africa Construction Law and sits on the Board of Directors of Africa Arbitration Academy.
2 Arbitration and Conciliation Cap A18 Laws of the Federation 2004.
3 Arbitration and Mediation Act 2023.
4 The AMA was singed into law by Former President Mohammed Buhari on 26 May 2023.
5 Based on ICC Case Report 2019, construction and engineering disputes generated the largest number of ICC cases, which, as in previous years, accounted for approximately 40 per cent of all new cases (211) in 2019.
6 The LCIA Court recently adopted a new set of arbitration rules that came into force on 1 October 2020. Also, the ICC Court adopted a new set of arbitration rules which applies to cases filed from 1 January 2021.
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It is important to consider the effect of the changes to the arbitration regime on future disputes given Nigeria’s recent signing of the African Continental Free Trade Agreement (“AfCFTA”)7 as well as emerging statistics from the International Chamber of Commerce (“ICC”)8 and London Court of International Arbitration (“LCIA”)9 showing growing arbitration activity in Nigeria.
Some of the innovative provisions introduced by the AMA which have
been the subject of several discussions by scholars and arbitration practitioners include:10
- (i) Interim measures of protection – expressly empowers the court to issue interim measures of protection in support of arbitral proceedings and such power is to be exercised within 15 days from the date of the application.11 The absence of express provision in the ACA empowering the court to grant interim measures in aid of arbitration replace doubt as to ability of the court to grant such measures. This is because the Nigerian Supreme Court in NV Scheep v MV S Araz 12 determined that a court cannot grant interim measures in support of arbitration unless the substantive dispute itself is submitted to court. The AMA has provided clarity on the powers of the court to grant interim measures in aid of arbitration.
- (ii) Emergency arbitrator/relief – express provision permitting a party requiring urgent relief to submit an application for the appointment of an emergency arbitrator to the arbitral institution designated by the parties, or failing such designation, to the court. Unless otherwise agreed, the arbitral institution or the court shall appoint the emergency arbitrator within two business days from the date of the application.13
- (iii) Coherent grounds of recourse against an award – expressly abolishes the ground of “error of law on the face of the award” as a ground for nullifying awards.14 Although not expressly provided in the ACA,
7 On 7 July 2019, Nigeria signed the AfCFTA in Niamey during the 12th extraordinary session of the Assembly of the African Union.
8 Based on the ICC Case Report 2020, the number of Nigerian parties involved in cases file in 2020 rose from 22 from the 19 recorded in 2019. This represented the highest in Africa.
9 London Court of International Arbitration Casework Report 2022 states that cases where the LCIA acted as the appointing authority rose to 0.7% in 2022 from 0.5% in 2021.
10 See Abdulkareem, H, “The ACA Amendment Bill: A Much-Anticipated Coming”, (Africa Arbitration Blog), https://africaarbitration.org/2018/05/17/the-aca-amendment-bill-a-much-anticipated-coming-hamid-abdulkareem/ (last accessed 7 December 2022); Dr Ademola Bamgbose, “The proposed amendment of Nigeria’s Federal Arbitration Law could see the arbitration landscape in Nigeria improve significantly”, (Thompson Reuters’ Practical Law Arbitration Blog), http://arbitrationblog.practicallaw.com/the-proposed-amendment-of-nigerias-federal-arbitration-law-could-see-the-arbitration-landscape-in-nigeria-improve-significantly/ (last accessed 7 December 2022).
11 Sections 19, 20 and 21 of the AMA.
12 (2000) 15 NWLR (Pt 691) 622.
13 Section 16 of the AMA.
14 Section 55(2) of the AMA.
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- Nigerian courts have historically applied this common law rule as a ground for nullifying awards.15 The ACA expressly stipulates “misconduct” or “improper procurement” as grounds for nullifying awards.16 However, the application of these tests has been incoherent and unclear.
The AMA replaces the current grounds for nullifying awards with the clearer grounds contained in the Model Law. These are: legal incapacity; invalid arbitration agreement; lack of due process; exceeding the scope of the submission; procedural irregularity; arbitrability; and public policy.17 Also, establishing any of these grounds is insufficient to nullify an award. An applicant must in addition show that the existence of the ground “has caused or will cause substantial justice to the applicant”.18
- (iv) An award review tribunal – introduces a second tier tribunal which will consider any application to review an arbitral award based on the agreement of the parties. An application for the enforcement of an award may be made to the court notwithstanding a challenge to the award. However, the court is required to stay the enforcement proceedings pending the determination of the challenge by the Award Review Tribunal.19 A decision of the Award Review Tribunal nullifying an award will only be reversed by a court if the court takes the view that the decision is unsupportable, having regards to the ground on which it was made.20 Where the Award Review Tribunal affirms the arbitral award, its decision will only be reviewed by a court on the grounds of arbitrability and public policy.21 The award Review Tribunal process is aimed at insulating the arbitral award from the court given the perception of unpredictability and delays associated with Nigerian Courts.
- (v) Third party funding – expressly permits the recovery of the costs of obtaining third-party funding22 and abolishes the tort of maintenance and champerty as it concerns third-party funding.23
- (vi) Limitation periods – the ACA does not regulate the application of limitation periods to arbitration. The Nigerian Supreme Court in the case of City Engineering v FHA 24 determined that the cause of
15 Taylor Woodrow Nig Ltd v SEW GmbH (1993) NWLR 127 at 141; Arbico Nig Ltd v Nig Machine Tools Ltd (2002) 15 NWLR (Pt 789) 1 at 6–7 and A Savoia Ltd v A.O Sonubi (2000)12 NWLR (Pt 682) 539 at 547.
16 Section 30 of the ACA.
17 Section 55(3) of the AMA.
18 Section 55(5) of the AMA.
19 Section 56(7) of the AMA.
20 Section 56(8) of the AMA.
21 Section 56(9) of the AMA.
22 Section 50(1)(g) of the AMA.
23 Section 61 of the AMA.
24 (1997) All NLR 1.
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- action in an application to enforce an arbitral award is the same as the cause of action to the underlying dispute that gave rise to the arbitration. As a result, for the purpose of enforcing an award time begins to run not when the award was issued but when the cause of action accrued under the underlying contract. The effect of this decision is that parties in arbitration are in a race against time to arbitrate and enforce any ensuing award before the expiry of the limitation period for claims. The AMA eliminates this problem by excluding the period between the commencement of arbitration and the date the of the award for the purpose of computing time in the enforcement of an arbitral award.25
These provisions will undoubtedly have a positive effect on the resolution of disputes (including construction disputes) in Nigeria and enhance Nigeria’s quest to establish a reputation as an international arbitration hub in the west-African sub-region.
MULTI-PARTY DISPUTES
Construction projects usually involve multiple interested parties with independent contractual relationships often giving rise to multi-party disputes. Multi-party disputes arise in two different forms resulting in different conceptual meanings. In the first sense, it refers to a bipolar dispute involving multiple parties in two opposing camps. This would be the case where there are multiple parties to a single contract or two parties to multi-contracts.26
In the second sense, it refers to multipolar disputes where the parties’ interest diverges such that they cannot be grouped into two opposing
25 Section 71 of the AMA.
26 Hackman, N A, “The Problem of Arbitration and Multi-party/Multi-contract disputes: Is court ordered consolidation an adequate response?”, https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawcepmlp_car13_5_612306438.pdf (last accessed 7 December 2022).
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groups.27 This would be the case where there are multiple parties to multiple contracts all interlinked to the subject of the dispute (i.e., a multi-party, multi-contract dispute scenario).
On one hand, bipolar multi-party disputes are common in general commercial disputes, including construction contracts, and lend themselves easily to the application of the legal concepts of joinder, intervention and consolidation in resolving the disputes in a single arbitral reference. On the other hand, multipolar multi-party disputes present a unique challenge often associated with construction disputes due to their peculiarity. The scope of this article is limited only to discussing the second scenario, namely, the multipolar multi-party disputes. In this respect, multipolar multi-party disputes may arise under various project procurement models in the following ways:
(i) Build-Only Contract
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Build-only contracts represent the classic type of construction contract whereby the employer hires a design consultant comprising an engineer or an architect to design the project.29 There is usually a tender for the construction works after the design or part of it is completed by the employer’s design consultant.30 The contractor which is awarded the contract is then required to complete the works according to the design provided by the employer.31 In some cases, the contractor may be required to carry out some parts of the design but its liability for design errors would only be limited to the design portion it undertook responsibility for under the contract. Otherwise, the employer has responsibility for the designs provided to the contractor. Typical standard form build-only contract includes the FIDIC Red Book,32 FIDIC Pink Book,33 JCT SBC,34 FCDA Form of Contract35 and BPP Form of Contract.36
27 Kondev, Dimitar H, Multi-Party and Multi-Contract Arbitration in the Construction Industry, (Wiley-Blackwell 2017), page 23.
28 Graphic reproduced from Kondev, page 41.
29 See Kondev, page 40.
30 Ibid.
31 Ibid.
32 1999 and 2017 Editions.
33 2005 and 2010 Editions. The Pink Book is used on construction projects funded by Multilateral Development Banks (MDBs). It is based on the Red Book but incorporates changes made by the MDBs.
34 2016 Edition.
35 The Federal Capital Development Authority Standard Conditions of Contract for Engineering Works (Designed by the Employer) 2005.
36 The Bureau of Public Procurement General Conditions of Contract.
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According to Kondev, “Under this model, the employer has direct contractual relations with both the design consultant and the contractor. Typically, the employer has no contractual links with other participants in the construction project such as sub-contractors and suppliers”.37 The advantage of this model, from an employer’s perspective, is that it provides the employer with some level of control over the design prepared by the design consultant. If the design process is rather undertaken by the contractor, the employer would have less control over the process. The drawback, however, is that the employer is left with the responsibility to coordinate and ensure a seamless transition between the design phase and the construction phase of the project.38 This would typically not be a challenge had the contractor undertaken the design given that the contractor who had developed the design would be in a better position to implement those designs during the construction phase of the work.
In the context of disputes arising from build-only contracts, a noteworthy dynamic arises where employers may lack motivation to engage in multi-party arbitration when pursuing claims related to defects caused by poor workmanship or the use of substandard materials. Instead, employers often prefer to exclusively arbitrate their claims against the contractor, rather than entering into multi-party arbitral proceedings involving the contractor and its sub-contractors/suppliers.39 Likewise, if the dispute relates to a contractor’s claim (i.e., claims for delay and/or prolongation costs), the employer’s preference is to arbitrate the dispute with the contractor only, even though the contractor’s preference is a multi-party arbitration involving its sub-contractor who may have raised the claims against the contractor in the first place. The employer’s attitude is that involving such party in the arbitration proceedings will delay the dispute resolution process and aggravate the employer’s costs.40
On the other hand, the contractor’s preference is to resolve the dispute through a multi-party arbitration process. The contractor may seek indemnification from the employer in a claim against it for delay and/or prolongation costs by the sub-contractor. Likewise, the contractor may seek indemnification from the sub-contractor in a claim against it for delay liquidated damages and/or reimbursement costs for defects by the employer. In both scenarios, the contractor is keen to have the dispute resolved in a multi-party arbitration to avoid the issuance of inconsistent arbitral awards. Inconsistent arbitral awards may place the contractor in an unpleasant position where the sub-contractor succeeds against the contractor in a claim for delay and/or prolongation costs but the contractor is unable to pass on such liability to the employer under a separate arbitration
37 Kondev, Dimitar H, Multi-Party and Multi-Contract Arbitration in the Construction Industry, (Wiley-Blackwell 2017), page 11.
38 Ibid, pages 40 to 41.
39 Ibid, page 47.
40 Ibid, page 49.
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due to the inconsistent awards issued with respect to the issue of liability. The contractor may find itself in a similar position whereby the employer succeeds against the contractor in a claim for delay liquidated damages and/or reimbursement costs for defects but the contractor is unable to pass on such liability to the sub-contractor due to inconsistent arbitral awards issued with respect to the issue of liability.
The situation undergoes a complete transformation when the defects arise either entirely or partially from flawed designs supplied by the employer’s design consultant in accordance with the provisions of a consultancy agreement.41 In practice, it is usually difficult for the employer to determine if the designs caused or contributed to the defects or if the defect arose entirely from the contractor’s poor workmanship or inability to comply with the design specifications provided by the employer. As such, the employer’s preference is to pursue its claims against both the design consultant and the contractor. For the same considerations, the employer may seek to join the design consultant in an arbitration initiated by the contractor for delay and/or prolongation costs claims resulting from the late delivery of the designs for the project.42
With respect to sub-contractors, they are usually not interested in multi-party arbitration except in cases of arbitration concerning payment of the sub-contractor’s works under subcontracts containing “pay when paid” clauses. Likewise, suppliers and design consultants usually have no incentive to participate in multi-party arbitration.43
(ii) Design-Build or Turnkey “EPC” Contract
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Under the design-build contract, “the contractor takes responsibility for both the design and the completion of the construction works. There is a single contractual relationship between the employer and the contractor”.44 The contractor concludes separate contracts with the design consultants, sub-contractors and suppliers. The sub-contractors, suppliers and design consultants have no direct contractual relations with the employer. “The contractor is liable not only for the acts of his sub-contractors but also for the work of the design consultants and the suppliers”.45
The scope of the contractor’s liability depends upon the governing law and provision of the specific construction agreement.46 Under Nigerian law, the contractor, generally, assumes the duty to ensure that the work is fit for purpose as provided under the contract.47 This implied term may be discarded by express agreement under the contract. For instance, the JCT Design and Build contract imposes a “reasonable skill and care” obligation on the contractor.48 An obligation to use “reasonable skill and care” will generally be satisfied if a design is prepared to a standard that a reasonably competent member of the profession could be expected to have achieved. By contrast, “fitness for purpose” is an absolute commitment to achieve a result. If the design fails, it is no defence that other competent professionals, were they in a similar position, would have done the same.
The general position in design-build contracts is that the contractor is liable for defects in the work undertaken by the sub-contractor and the design consultant (i.e., defects due to poor workmanship or faulty designs). As such, unlike build-only contracts whereby the employer is incentivised to arbitrate claims for defects in a multi-party arbitration; in design-build contracts, an employer prefers to arbitrate its dispute against the contractor only. This is because the employer has no incentive to involve the sub-contractor or the design consultant in an arbitration against the contractor.
However, certain schemes, known as collateral warranties, have evolved in construction practice which enables the employer to hold sub-contractors and suppliers directly liable for their contractual breaches under their contract with the contractor.49 Where such schemes apply, the employer may prefer to resolve the dispute by multi-party arbitration to enhance its prospects of recovery (especially if the contractor is on the verge of going bust) by pursuing its claims against both the contractor and the sub-contractor on a joint liability basis.
44 Ibid, page 41.
45 Kondev, Dimitar H, Multi-Party and Multi-Contract Arbitration in the Construction Industry, (Wiley-Blackwell 2017), page 41.
46 Ibid.
47 Abuka, P and Edward, S, “Nigeria: Construction and Engineering Laws and Regulations 2020”, (ICLG 11 August 2020), https://iclg.com/practice-areas/construction-and-engineering-law-laws-and-regulations/nigeria (last accessed 7 December 2022).
48 See clauses 1.3 and 2.17.1.
49 See Kondev, page 40.
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Another exception to this general practice under the design-build contract is where the contract contains certain restrictions in cases of a nominated sub-contractor.50 For instance, under the FIDIC Red Book, the contractor is not obliged to employ a nominated sub-contractor against whom he has raised reasonable objections, unless the employer agrees to indemnify the contractor against the consequences of such an engagement.51 As a result, the employer may be unable to hold the contractor fully liable for the defaults of the nominated sub-contractor.52 This unsatisfactory position has led employers to enter into direct contractual relationships with nominated sub-contractors to avoid a situation whereby employers are left with no remedy against such a nominated sub-contractor. Where this applies, an employer’s preference is to pursue its claims against both the contractor and the nominated sub-contractor in a multi-party arbitration.
53
With respect to design-build contractors, their position is identical with a build-only contractor in that the contractor’s general preference is to resolve dispute by multi-party arbitration to avoid the unpleasant situation whereby the contractor is held liable for claims and unable to pass on such liability due to the issuance of inconsistent arbitral awards on the question of liability.
(iii) Construction Management Contract
50 See Kondev, page 48. The purpose of nomination of a sub-contractor by an employer is to ensure that certain specialists part of the works are carried out by a specific sub-contractor with relevant competence and experience and at the same time to retain the employer’s control over that part of the works. Nominated sub-contractor are often imposed on the contractor which usually results in certain limitations in the liability of the contractor for the nominated sub-contractors’ works.
51 Sub-clause 5.2 FIDIC Red Book.
52 North West Metropolitan Regional Hospital Board v TA Bickerton and Son Ltd (HL) [1970] 1 WLR 607; [1970] 1 All ER 1039. See also Kondev, page 49.
53 Kondev, Dimitar H, Multi-Party and Multi-Contract Arbitration in the Construction Industry, (Wiley-Blackwell 2017), page 49.
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Under a Construction Management Contract, “the employer concludes several bilateral contracts with different contractors and each contractor undertakes to complete a certain part of the works. The design is developed based on a contract executed between the design consultant and the employer”.54 The employer also appoints a project manager, sometimes called a construction manager, to oversee and coordinate the different activities concerning the project. The construction manager is not directly involved in the construction works.55 “Under the FIDIC Conditions of Contract, the construction management model occurs where the employer concludes FIDIC Red Book based contracts for different sections of the works with several contractors and separate contracts based on the FIDIC White Book with the design consultants and construction manager”.56
In a construction management contract, the position of the employer under this scheme is similar to an employer under the build-only contracts scheme, as the employer’s preference is to engage in a multi-party arbitration against the contractor and the design consultant when the claim is for defects in the works. This is because in both a construction management contract and a build-only contract, the designs are prepared by a design consultant who is engaged by the employer separately from the contractor. Therefore, while the employer would have greater supervisory control over design development, the employer would bear the responsibility for ensuring a seamless transition between the design phase and the construction phase of the project.
MULTI-PARTY ARBITRATION AND THE CHALLENGE OF ESTABLISHING CONSENT ACROSS PARTIES
The benefits of a multi-party arbitration are that it avoids the risk of having inconsistent or conflicting arbitral awards in cases that involve similar or identical points of law and/or facts. It decreases the risk of factual errors since the arbitral tribunal has a detailed and complete picture of the respective rights and obligations of the parties, having heard all parties connected to the dispute. Also, it involves less time and costs compared to the time and costs incurred in prosecuting separate arbitrations in respect of the same dispute. From the perspective of the party seeking multi-party arbitration, it is more cost efficient when compared to engaging in multiple separate arbitration cases.
Despite the above-mentioned benefits, there are certain challenges that come with the use of multi-party arbitration. The major challenge is how
54 Kondev, Dimitar H, Multi-Party and Multi-Contract Arbitration in the Construction Industry, (Wiley-Blackwell 2017), page 41.
55 Jenkins, J, International Construction Arbitration (2nd Revised Edition, Wolters Kluwer Law & Business, 2013).
56 See Kondev, page 43.
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to justify participation in a single arbitration of multiple parties when the parties have no direct contractual relations. This is particularly so in common law jurisdictions, such as Nigeria, where the doctrine of privity of contract operates to preclude non-signatories to a contract from enforcing claims or deriving benefits under the contract;57 and in respect of arbitration where Section 2 of the AMA requires an arbitration agreement to be in writing either signed or issued by a party. For instance, what is the jurisdictional basis to join a sub-contractor to a reference between the employer and the contractor when the sub-contractor is not a signatory to the arbitration agreement under the main contract? Similarly, how can joining the employer to a reference between the contractor and the sub-contractor be justified when the employer is a non-signatory to the subcontract agreement?
Such a justification would be available if the parties’ consent to multi-party arbitration by incorporating the same scheme in their respective arbitration agreements or enter a framework/umbrella arbitration agreement or submit to arbitration after the dispute crystalises via an arbitration submission agreement. These forms of consent are rarely available in practice.58 Relatively few of the standard forms of contract in use internationally and domestically address the question of multi-party arbitration.59 Also, where the dispute crystalises, parties are unlikely to agree to a submission agreement at that stage due to divergent interests. While the contractor may consider multi-party arbitration beneficial in order to avoid inconsistent arbitral awards, the employer may raise an objection to a request of joinder in a reference between the contractor and the sub-contractor under a subcontract agreement in order to avoid any liability or for some tactical reasons.
In light of the above, suitable arbitration rules for construction disputes are the ones that provide for a self-contained mechanism for multi-party arbitration that can be operated solely based on the provisions contained in the rules without further recourse to procure the consent of the parties.60 International arbitration institutions have in the past adopted a conservative approach to the subject of multi-party arbitration requiring universal consent (i.e., the consent of all parties) to multi-party arbitration through the use of legal techniques such as joinder, intervention, consolidation or concurrent hearing. Recently, major international arbitration institutions
57 Alfotrin Ltd v A G Federation (1996) 9 NWLR (Pt 475) page 634.
58 See Kondev, page 70.
59 Well-known international standard forms such as the FIDIC Suite of Contracts 1999/2017 Editions, IChemE International Suite of Contracts 2007, New Engineering Contract (NEC4) and domestic standard forms such as Joint Contracts Tribunal Standard Building Contract 2005/2016 editions, The Federal Ministry of Works published the Standard Conditions of Contract in 1999 (“FMW Form of Contract”), The Federal Capital Development Authority Standard Conditions of Contract for Engineering Works (Designed by the Employer) 2005 (“FCDA Form of Contract”), The Bureau of Public Procurement General Conditions of Contract (“BPP Form of Contract”) make no provision for multi-party arbitration.
60 See Kondev, page 118.
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which commonly administer disputes originating from Nigeria overhauled their arbitration rules, adopting flexible and liberal rules suitable to multipolar arbitration disputes.
For instance, the LCIA Court recently adopted a new set of arbitration rules that came into force on 1 October 2020 (“LCIA Rules 2020”). The LCIA Rules provide explicitly for limited consent on the question of joinder. It requires consent only from the third party and applicant party. There is no explicit requirement for the contractual counter party to consent to the joinder.61 In respect of consolidation, the LCIA Rules do not explicitly require consent from the parties. The tribunal, with the approval of the court, can order the consolidation of arbitrations under compatible arbitration agreements without the consent of the parties, provided that the dispute arose from “the same transaction or series of related transactions”.62 These provisions can be contrasted to those under the previous version of the LCIA Rules (i.e., LCIA Rules 2014) where disputes between different parties could not be consolidated unless all parties had consented to such consolidation.63
Similarly, the ICC Court adopted a new set of arbitration rules which came into force and applies to cases filed from 1 January 2021 (“ICC Rules 2021”). The ICC Rules provide for limited consent on the question of joinder. The tribunal, once constituted, may join additional parties at the request of any party subject to such additional party accepting the constitution of the tribunal and agreeing to the Terms of Reference. In deciding a joinder request, the tribunal must take into account the relevant circumstances, including: (i) whether it has prima facie jurisdiction over the additional party; (ii) the timing of the request for joinder; (iii) possible conflicts of interests; and (iv) the impact of the joinder on the procedure. There is no explicit requirement on the contractual counter party to consent to the joinder.64 By contrast, the previous version of the ICC Rules (i.e., the ICC Rules 2017) required the consent of all parties, including the third party, before a third party can be joined to the arbitration.
In respect of consolidation, the ICC Rules do not explicitly require the parties to consent.65 The ICC Court may consolidate two or more pending
61 See Article 22.1(x) of the LCIA Rules, which provides that “the Arbitral Tribunal shall have the power, upon the application of any party … to allow one or more third persons to be joined in the arbitration as a party provided any such third person and the applicant party have consent expressly to such joinder in writing”.
62 Also, Article 22.7 provides that “the Arbitral Tribunal shall have the power to order with the approval of the LCIA Court, upon application of any party … (ii) the consolidation of the arbitration with one or more other arbitrations subject to the LCIA Rules and commenced under the same arbitration agreement or any compatible arbitration agreement(s) and either between the same disputing parties or arising out of the same transaction or series of related transactions …”. Similar provision is made for concurrent hearing under Article 22.7(iii) permitting concurrent hearing in circumstances where the arbitrations relate to disputes “arising out of the same transaction or series of related transactions.”
63 See Article 22(1)(ix) and Article 22(1) of the LCIA Rules.
64 See Article 7(5) of the ICC Rules 2021.
65 See Article 10(b) of the ICC Rules 2021.
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arbitrations into a single arbitration, where the arbitrations involve different parties and the claims made under more than one contract, provided that the arbitration agreements are identical66 or “the dispute arises in connection with the same legal relationship and the arbitration agreements are compatible”.67 These provisions can be contrasted to those under the ICC Rules 2017 where consolidation of arbitrations based on more than one contract was only possible if the arbitrations involved the same parties.
Also, the Swiss Rules of International Arbitration 2012 (“Swiss Rules”) provide the most flexible and liberal approach to multi-party arbitration. They do not explicitly require the consent of the parties for joinder or intervention. The tribunal has the authority to decide a request for joinder or intervention by a third party after consulting with all the parties, including the person or persons to be joined taking into account all relevant circumstances.68 With respect to consolidation, there is no explicit requirement for consent or that the parties under the separate arbitrations should be identical. The court has the authority to decide questions of consolidation after consulting with the parties and any confirmed arbitrator. In deciding such questions, the court shall consider all relevant circumstances, including the links between the cases and the progress already made in the pending arbitral proceedings.69
Based on the above, it is safe to conclude that a literal reading of the consolidation provisions under the ICC Rules 2021, LCIA Rules 2020 and Swiss Rules 2012 authorise the arbitration courts of these institutions or the arbitral tribunal constituted under the rules of these institutions to unite an arbitration between an employer and a design consultant with another arbitration between the employer and the contractor concerning the same construction project even if all the parties involved in these arbitrations object to the consolidation. The relevant threshold is that the arbitration agreements must be compatible, and the dispute must arise out of interrelated contracts.
In relation to the provisions on joinder, where the relevant provisions of these institutional arbitration rules are applied literally, the arbitral tribunal can join a third party to the reference upon an application by a party even without the consent of the contractual counter party. The Swiss Rules take it a step further by not explicitly requiring the consent of the third party. In practice, however, it is very likely that the consent of the third party to the joinder (including the tribunal constituted by the original parties to the reference) would be required before an order of joinder is made,
66 Ibid.
67 See Article 10(c) of the ICC Rules 2021.
68 Article 4(2) of the Swiss Rules 2012.
69 Article 4(1) of the Swiss Rules 2012. See also the ICDR Arbitration Rules (concerning joinder of parties), the Vienna Arbitration Rules (concerning joinder only) DIA Arbitration Rules and CIAR Arbitration Rules.
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especially since the Swiss Rules do not envisage a waiver of parties’ rights in the appointment of arbitral tribunal and the possibility for revocation of appointments and confirmation of arbitrator. The practical effect of these institutional arbitration rules is that if a contractor requests the joinder of a sub-contractor to an arbitration commenced against the employer, the consent of the employer would not be required even where the employer objects to such joinder.
How these provisions interact with possible mandatory provisions of the AMA in the context of international arbitration are analysed below.
INTERNATIONAL ARBITRATION UNDER THE AMA
Where parties incorporate by reference into their arbitration agreement the arbitration rules of any of these institutions discussed above or other institutional arbitration rules with similarly flexible and liberal provisions, the validity of the application of those provisions (i.e., provisions on consolidation and joinder) will depend on the applicable law. If the applicable law is Nigerian law (because it is a Nigerian-seated arbitration or Nigerian law governs matters of procedure), there exists the risk that those provisions may be inoperable or otherwise breach mandatory Nigerian laws70 with ensuing awards refused recognition71 or nullified on such ground.72
The AMA expressly provides that parties may agree to consolidation or concurrent hearing73 and that “the arbitral tribunal shall not order the consolidation of proceedings or concurrent hearings unless the parties agree to the making of such an order”.74 This effectively means that should the parties be unable to agree to consolidation or concurrent hearing, the arbitral tribunal “shall” not order the consolidation or concurrent hearing of arbitral proceedings. The term “shall” is usually accorded an obligatory or mandatory correlation under Nigerian law.
This provision contradicts the consolidation provisions in the arbitration rules of the institutions discussed above considering it requires the agreement of the parties to make a consolidation or concurrent hearing order. The arbitral rules of the institution discussed above do not require
70 Section 31 of the AMA.
71 If consent is a mandatory requirement under Nigerian law, the enforcing court is empowered to refuse to recognise the awards by virtue of Article V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 1958.
72 If consent is mandatory requirement under Nigerian law, section 55(3)(a)(ii) and (b)(ii) of the Bill empower the court to nullify the award the ground that no valid arbitration agreement existed between the parties and on public policy.
73 Section 39(1) of the AMA.
74 Section 39(2) of the AMA.
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the consent of the parties to consolidate arbitrations conducted under compatible arbitration agreements.
In relation to joinder of parties to existing arbitration, the AMA provides that “the arbitral tribunal shall have the power to allow an additional party to be joined to the arbitration, provided that, prima facie, the additional party is bound by the arbitration agreement giving rise to the arbitration”.75 By this provision, the tribunal’s power to join a third-party to an existing reference is permissible only where the third-party is bound by (and therefore a party to)76 the arbitration agreement. In other words, the universal consent of the parties is required to make an order for joinder.
This provision contradicts the joinder provisions in the arbitration rules of these institutions in that the institutions do not require that the third-party be a party to the arbitration agreement upon which the dispute is based. It is sufficient that the third-party consents to the arbitration even though he is not privy to the arbitration agreement between the claimant and respondent in the arbitration. The consent of the contractual counterparty to the arbitration agreement (i.e., the respondent to the request for joinder) is not explicitly required in the arbitration rules of these institutions. In other words, while the AMA requires universal consent to make an order for joinder, this is not an explicit requirement under the arbitration rules of these institutions.
The practical effect is that in the absence of express agreement of the parties or universal consent as in the case of an order for joinder, the tribunal cannot order consolidation, concurrent hearing, or joinder even where parties agree to the arbitration rules of any of these institutions which are liberal in approach. The multi-party provisions of the AMA may be construed to impose basic standards on fair hearing (i.e., the obligation to treat the parties equally)77 in which case applying the rules on joinder and consolidation in these institutional arbitration rules would be in breach of these standards. This effectively means that an arbitration conducted in violation of the provision of the AMA risks ensuing award being challenged for being in breach of mandatory Nigerian law.
However, if multi-party rules are not legislated statutorily, there is the possibility that the multi-party provisions contained in the arbitration rules of these institutions would apply and ensuing awards would not risk being challenged for being in breach of mandatory laws. Nigerian courts78 recognise and apply the rule on incorporation by reference to
75 Section 40(1) of the AMA.
76 Under Nigerian law, only privies to a contract are bound by the terms of the contract. The recognised exception to the rule is the principle of representation and agency to the effect that an agency for a disclosed principal is not a party to, and is not personally bound by, a contract that he signs on behalf of a disclosed principal while he acts within the scope of his authority. Such contract is in law that of the principal and the principal is the party that is bound by the contract. See the cases of Bayero v Mainasara & Sons Ltd (2006) 8 NWLR (Pt 982) 391; UBA v Ogundokun (2009) 6 NWLR (Pt 1138) 451.
77 Section 30 of the AMA.
78 CA/IL/92/99 – Texaco Nigeria plc v
Alfred G Adegbile Kehinde.
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contracts and the same rule will ordinarily apply to provisions on joinder and consolidation contained in institutional arbitral rules incorporated by reference into the arbitration agreement. The parties will be presumed to have intended the application of the rules on joinder and consolidation, including the consequences of the application of those provisions, to their arbitration. However, the fact that the rules may violate mandatory laws (by introducing rules on joinder and consolidation into the AMA, that conflict with these institutional rules) raises the risk that ensuing awards may be refused recognition or nullified.
DOMESTIC ARBITRATION UNDER THE AMA
The repealed ACA made it mandatory for arbitration under the ACA (i.e., domestic arbitration) to be conducted in accordance with the ACA Rules. It provides that “the arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the first schedule to this Act”.79 By this provision, the ACA appears to violate the principle of party autonomy in legislating the applicable rules for domestic arbitration. It renders parties to domestic arbitration, governed under the ACA, incapable of deciding the arbitration rules of choice for their dispute.
This flaw in the ACA appears to have been addressed somewhat by the AMA. The AMA gives parties the option to choose rules, other than rules made pursuant to the AMA, to apply to their arbitration. It states expressly that “subject to the provision of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Failing such agreement, the arbitral proceedings shall be in accordance with the procedure contained in the arbitration rules set out in the First Schedule to this Act”.80 By this provision, it is only where parties fail to agree on the rules governing the arbitration proceedings that “the arbitration rules set out in the First Schedule to this Act” will apply.
The practical effect of this provision, is that parties to construction disputes (and indeed all specialised forms of arbitration) arbitrating under the new law will be free to adopt institutional rules of choice which appropriately suit their dispute.
Also, institutions will be encouraged to develop suitable rules for specialised disputes. For instance, the Society of Construction Arbitrators (SCA) published the Construction Industry Model Arbitration Rules (CIMAR) for construction disputes. CIMAR has been adopted by all construction institutions in the UK. The aim of the rules is to provide fair, impartial, speedy, cost-effective and binding resolution of construction disputes with
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each party having a reasonable opportunity to present his case. CIMAR deals with joinder of disputes and joinder of parties in related disputes and permits either party to raise disputes in addition to the initial dispute which is referred. In the absence of the parties’ agreement, the arbitrator is empowered to decide whether a further dispute should be consolidated with existing disputes after obtaining submissions from the parties. CIMAR sets out the factors which the arbitrator should consider in determining question of consolidation.81 The rules on joinder and consolidation in CIMAR provides some degree of self-contained mechanism in dealing with multi-party arbitration.
With the emergence of construction law initiatives in Africa such as the Africa Construction Law,82 bespoke rules could be developed to address the specifics of construction disputes in Africa to be adopted by construction institutions in countries such as Nigeria and other African countries with compatible legislations.
While the introduction by the AMA is welcomed (i.e., the fact that parties can adopt rules of choice for domestic arbitration), it is doubtful that this would have any significant effect in the context of multi-party arbitration given the mandatory multi-party provisions in the AMA. Self-contained measures developed in applicable institutional rules would not override mandatory provisions contained in the AMA.
CONCLUSION
While the AMA contains innovative provisions, which would no doubt improve the arbitral process, there is the need for a reconsideration of the multi-party provision contained in the AMA. It is widely accepted that interference by national legislation and state courts in arbitral proceedings should be kept to the minimum because of the private and consensual character of arbitration. As the subject of consolidation and joinder are regarded as procedural in character, it is suggested that the AMA, which is a federal legislation, should not legislate on such a subject. Those matters should be left for the parties to agree in their arbitration agreement in line with the principle of party autonomy. Such an agreement could be expressed in any form either by making express provision in the arbitration agreement itself or by reference to institutional arbitration rules.
In legislating on such a subject by requiring the universal agreement of the parties to enable the tribunal to make an order for consolidation, concurrent hearing or joinder, there exists the risk that those provisions
81 Construction Industry Model Arbitration Rules 2016, Rule 3.
82 www.africaconstructionlaw.org – a pan-African initiative set up by construction law practitioners across Africa and in the diaspora to promote thought leadership in the field of construction law and practice in Africa.
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may be inoperable or otherwise breach mandatory Nigerian laws with ensuing awards refused recognition or nullified. This will not be the case if multi-party arbitration rules are not legislated for in the national law as
the AMA intends, in which case parties can agree to adopt institutional rules suitable to their dispute, including self-contained rules on multi-party arbitration, with no interference from national laws.
Interestingly, the repealed ACA contains no provision regulating multi-party arbitration. Also, the UNCITRAL Model Law, based on which the AMA was adapted, makes no provision regulating multiparty arbitration. In England and Wales, however, while the Arbitration Act of 1996 is silent on the question of joinder and intervention, it deals with consolidation of parallel proceedings in section 35 requiring the parties to agree. However, there is no reason why a similar approach should be adopted in Nigeria considering the risk identified and Nigeria’s quest to become an arbitration hub in Africa.