ESQ Legal Practice Magazine JUNE 2014 EDITION | Page 50

therefore mean that parties
could validly agree to treat
arbitrations arising out of their
commercial transactions as
"international"
notwithstanding that every
aspect of their contract is to be
performed in Nigeria, and by
Nigerians. If so, the crucial
question would then be: what
assistance would this
approach afford in avoiding
the provision of Article 4 of the
Rules? Or better still, what is
the correlation between an
international arbitration and
Article 4 of the Rules?
Section 53 appears to proffer
an answer to the above
questions. The provision
thereof gives parties to
international commercial
transactions the freedom to
determine the arbitration rules
that would regulate the
conduct of their proceedings.
The parties may agree to
arbitrate in accordance with the
Arbitration Rules..., or the
UNCITRAL Arbitration Rules or
any other international
arbitration rules acceptable to the
parties‟. This position may be
contrasted with the analogous
position in domestic
arbitration, where section 15
appears to have made
application of the Rules
mandatory in such
proceedings.
It follows therefore that where
parties have expressly
designated arbitrations arising
from their contract as
'international', the
internationalization‟of such
arbitrations would confer on
the parties a concomitant right
to designate the applicable
arbitration rules. Accordingly,
parties who comply with the
provision of section 56(2)(d),
and who are adverse to the
restriction on foreign counsel
contained in Article 4 of the
Rules, could nominate the
UNICTRAL Rules or any other
international rules to govern
their proceedings. Clearly,
there is no restriction on
foreign counsel where the

50 I EsQ legal practice

arbitration is international.
Further support for the
foregoing position may be
located in Section 56(5), which
in effect provides that where
the ACA refers to an
agreement between parties,
such agreement includes any
arbitration rules referred to in
the agreement. Therefore, if
parties agree to treat their
dispute as international
arbitration as permitted by
section 56(2)(d), any arbitration
rules designated by the parties
will be enforceable as part of
that agreement.
Going forward, the practical
point to note from the
provisions above may be
summed up thus: where
contracting parties are
uncomfortable with the
restriction on foreign counsel
representation contained in
Article 4 of the Rules, they
may be able to eliminate
same by including a
declaration in their contract
that arbitrations arising
thereof are international, and
are to be governed by any
international arbitration rules
of their choice.
For parties whose contracts
are already subsisting, similar
results may also be achieved
by execution of
supplementary arbitration