Reexamining the Effect of Principles of Judicial Non-Interference and Kompetenz-Kompetenz on the Jurisdiction of Courts in Nigeria

Abstract

Even though the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) does not provide a universal standard on the authority of the arbitral tribunal to determine its jurisdiction, otherwise known as kompetenz-kompetenz, the Convention nevertheless does not permit national courts to review arbitral jurisdictional determination. Using the Nigerian Arbitration and Conciliation Act 2004 (ACA) and the new Arbitration and Mediation Act 2023 (AMA) as a starting point, this article investigates the effect of the principle of judicial non-interference within the context of the principle of kompetenz-kompetenz under the antecedent and the new legislation. From a doctrinal point of view, it discusses how the jurisdiction of the court in Nigeria can be ousted by specific provisions in a statute and thus rationalizes the combined effect of principles of judicial non-interference and kompetenz-kompetenz under the Nigerian statute(s) unlike in other national arbitration law. The article specifically finds that the effect of these principles is to oust the jurisdiction of the court from reviewing the arbitral jurisdictional ruling and this has a basis under the Convention, the arbitration legislation, and decisional laws in Nigeria. This serves practical ends. It fills the gap in scholarship and also provides doctrinal leadership that is regrettably lacking in case law in Nigeria. It also creates awareness of the efficiency and finality effect of arbitration seated in Nigeria. This, as a matter of course, is the reason why international businessmen prefer arbitration to litigation.