Award review under the Arbitration and Mediation Act 2023, three years in

The Arbitration and Mediation Act 2023 repealed a statute that had governed Nigerian arbitration since 1988. Its most consequential change was not the one that attracted attention at the time.

The headline reform was the Award Review Tribunal: parties may agree that a second arbitral tribunal, rather than a court, reviews an award on the grounds that would otherwise found a set-aside application. It is an opt-in, and adoption has been slower than its drafters hoped.

The quieter change matters more. The Act tightened the language of the set-aside grounds, and in doing so removed some of the room Nigerian courts had used to review awards on what amounted to their merits.

The old problem

Under the repealed Act, a losing party with a determined counsel could often find a way to characterise a merits complaint as a procedural one. Misconduct was the usual vehicle. The result was that a Nigerian award was frequently the beginning of the litigation rather than the end of it, and that reputation cost the jurisdiction work.

What the courts are doing now

The pattern emerging from the decided cases is that first-instance courts are applying the narrowed grounds as written, and are declining invitations to reopen the tribunal findings of fact. That is the outcome the Act was drafted to produce.

Two points remain unsettled. The first is the interaction between the Award Review Tribunal and the court set-aside jurisdiction where the parties opted in and the review tribunal has already ruled. The Act contemplates a limited further recourse; its boundaries have not been tested at appellate level.

The second is public policy, which survives as a ground and which is doing more work than the drafters probably intended. A ground that cannot be defined precisely will attract every argument that fits nowhere else.

Practical consequence for drafting

Opt in to the Award Review Tribunal where the counterparty is sophisticated and the amounts justify a second tribunal. Do not opt in for smaller matters: the cost of a review tribunal can exceed the value of the certainty it buys.

Where you do not opt in, say so expressly. Silence is the default, but an express choice removes a preliminary argument that a determined losing party will otherwise make.