CHAPTER ONE
I N T R O D U C T I O N
1.1. Background of the Study
Arbitration is a reference of a dispute between not less than two parties for determination after hearing both parties in a judicial manner by a person or persons other than a court of competent jurisdiction.[1] Parties have the right to define the tenure of their agreement. The courts are enjoined to enforce such terms, and give effect to whatsoever rights the parties conferred on one another and the obligations they choose to impose on one another.Though the courts are available to them, parties may opt for arbitration out of their own volition to suit their peculiar business interests. In doing so, parties circumscribe their right to seek redress in a court of law if a dispute arises which comes under the terms of their arbitration agreement. Therefore, compliance with the arbitration contract becomes a sine qua non, a condition precedent for a party to seek redress in the court.[2]
In choosing arbitration instead of litigation, the intendment of the parties is to resolve their disputes privately and on their own terms. They choose arbitration to circumvent the usual delays, publicity, rancour and technicalities that pervade the formal court system. Rather, the parties seek to maintain and protect their privacy, business secrets and goodwill, and be in a position to mend fences in the interest of their mutual interests. Again arbitration affords the parties the opportunity to shun strife and ill-will which usually accompany formal litigation processes.
However, many a party toarbitration agreement, when a dispute arises which falls within the contemplation of the arbitration agreement, renege and go foul of the agreement. Where parties have chosen some persons they trust their skills, impartiality and fairness to determine issues arising between them, one wonders why either party is to be allowed to take steps in flagrant disregard of their extant agreement toarbitrate, except of course in deserving circumstances.
1.2. Statement of the Problem
Parties opt for arbitration to avoid litigation in the resolution of disputes between them. They prefer arbitration to avoid the time wastage and technicalities associated with litigation. However, some parties who are unwilling to honour arbitration agreements resort to the courts when disputes arise which fall within the contemplation of their agreement. Some parties submit to arbitration but resort to the courts later on the conviction that the arbitrators are biased against them or because of their indisposition to accept unfavourable awards.
Incessant judicial intervention impacts negatively on arbitration. Parties conduct the arbitral processes half-heartedly, knowing that they can later fall back on the courts. Arbitration which ought to be expeditious eventually drags on for many years. Control measures in the Arbitration and Conciliation Act are not adequate to curb judicial intervention in the arbitral process. Although section 34 of the Act provides that the courts shall not intervene except as provided by the Act, the Act provides for numerous circumstances where the courts can intervene. Parties find several excuses under these provisions to go to court. This inadequacy leads to continual resort to courts by parties, virtually at every stage of the arbitration process. While court intervention per se may not be the problem, it is notorious that the courts are neither pragmatic nor efficient.
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APPRAISAL OF JUDICIAL INTERVENTION IN DOMESTIC COMMERCIAL ARBITRATION IN NIGERIA
