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A Field Not Covered: Arbitration and the Nigerian Constitution ’Gbenga Bamodu* Since 1988 the legislation typically invoked in Nigeria as the framework legislation concerning commercial arbitration has been the federal Arbitration and Conciliation Act 1988 – although many states continue to have legacy arbitration legislation from Nigeria’s colonial era on their statute books. The introduction and enactment of the Lagos State Arbitration Law of 2009, as an alternative to the federal legislation, and that state’s argument that it has the necessary competence under the Nigerian Constitution of 1999 has ignited a serious constitutional debate about legislative competence over arbitration – especially arbitration concerning transactions or disputes with connections to more than one state or beyond Nigeria. The purpose of this brief essay is to summarise a generally overlooked line of argument, based on a conceptual appreciation of arbitration and extant Nigerian judicial authority, that the 1999 Constitution is consistent with the conclusion that both the federal and states’ legislatures have competence to enact arbitration legislation in respect of transactions or disputes with connections to more than one state or beyond Nigeria. The matter of constitutional legislative competence over arbitration has been the subject of an ongoing fierce and quite impressively stimulating academic debate. On the other hand, when presented with a recent opportunity to address or, in light of a previous decision, to revisit the issue the Nigerian Court of Appeal chose in the particular circumstances to exercise judicial economy saying that it would “refuse to be dragged down into a snake pit”; Stabilini Visinoni Limited v Mallinson & Partners Limited [2014] 12 NWLR (part 1420) 134, 175. The constitutional debate centres around whether the current Nigerian Constitution of 1999 clearly determines which legislature, as between the federal legislature and states’ legislatures, has the legislative competence to enact a framework arbitration legislation - especially as it relates to interstate and international commercial activities and disputes arising out of them. The two legislative lists, the Exclusive and Concurrent Lists, through which the Constitution primarily sets out the respective legislative competences of the federal and states’ legislatures do not expressly mention arbitration. This has led to the question of whether legislative competence over arbitration is addressed in the constitution at all or whether it can be said to have been addressed as part of or incidental to another heading that is expressly mentioned. In the extant debate, the provisions of the 1999 Constitution which are usually invoked as capable of being treated as providing for legislative competence over arbitration are contained in items 62, 62(a) and 68 of the 1999 Constitution as set out below for ease of reference: 62 “Trade and commerce, and in particular (a) trade and commerce between Nigeria and other countries … and trade and commerce between the states” 68 “Any matter incidental or supplementary to any matter mentioned elsewhere in this list.” Naturally, viewpoints and opinions as to whether these provisions cover the question of legislative competence over arbitration are polarised. The prevalent and most common interpretation and invocation of the provisions in relation to legislative competence over arbitration holds that in light 1

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A field not covered arbitration and the nigerian constitution  

Based on conceptual understanding and Nigerian case law, both federal and states legislatures have constitutional competence to enact legisl...

A field not covered arbitration and the nigerian constitution  

Based on conceptual understanding and Nigerian case law, both federal and states legislatures have constitutional competence to enact legisl...

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