ARBITRABILITY AND THE DOCTRINE OF PARTY AUTONOMY UNDER

NIGERIAN ARBITRATION LAW: SAME OR STRANGE BED FELLOWS?

David Tarh- AkongEyongndi ⃰
Abstract
Over the years arbitration has become prominent amongst the various Alternative
Dispute Resolution (ADR) mechanisms. It has acquired a status that has made it
independent and unique as a dispute resolution mechanism as well as enjoys both
judicial and statutory recognition in Nigeria. This prominence of arbitration is due to
its advantages which includes, confidentiality, binding and self-enforcing outcome,
informality of the process, relative inexpensiveness and more particularly liberty of
the party to determine the whole procedure and the process of arbitration otherwise
known as the doctrine of party autonomy. This liberty of the parties makes arbitration
attractive. The issue however is, does the fact that parties are free to agree on the
procedure and process of arbitration give them the power to arbitrate any and every
dispute? The answer to this question is what is known as arbitrability which is to the
effect that, for the purpose of public safety, health, stability and security, the liberty of
parties to arbitrate is not sacrosanct, hence, certain disputes cannot be submitted to
arbitration. This paper examines the meanings of these doctrines as well as their
philosophical basis. It examines certain circumstances which arbitrability explicate
itself, it furthers analyzes the importance of the doctrine of arbitrability to
arbitration. The paper argues that, these doctrines are the same and not strange bed
fellows and have functioned together to safeguard arbitration as a dispute resolution
mechanism.
Key Words: Arbitrability, Party Autonomy, Arbitration, Public Policy, Alternative Dispute
Resolution (ADR)
1.0 Introduction
Dispute is an inevitable occurrence in human relations. Traditionally, man devised litigation as a
means of settling dispute and has used this over the years. Owing to certain inadequacies
associated with litigation such as, formality of court proceedings and procedure, technicalities, in
ability to foster relationship through a win-win outcome, lack of confidentiality, time consuming,
relative expensive nature, etc. there has been a search for an appropriate or complimentary
dispute resolution option(s). This search has led to the emergence of Alternative Dispute
Resolution (ADR)1 which is a non-adversarial way of resolving disputes that is being
increasingly used in the public and private sectors, especially in developed countries which is
1
⃰ LL.B (Hons.) Calabar, LL.M (IBADAN) BL, Department of Private and Commercial Law, Faculty of Law, Bowen
University, Iwo, Osun State, Nigeria. [email protected] or [email protected] +2347033252212.
His areas of research interest are International Commercial Arbitration, Labour and Industrial Relations Law,
Human Rights and Private International Law.

1
about solving problems rather than imposing solutions through litigation. The hallmark of
arbitration is the liberty of disputants to determine the procedure and process of the proceedings
with regards to the scope of the dispute, the number and qualification of the arbitrator (s), seat of
arbitration, the governing law also known as lex arbitri, the possible duration of the arbitration,
the mode of remuneration of the arbitrator and other matters incidental. This is known as party
autonomy.
Arbitrability on the other hand is to the effect that, though parties to arbitration are at liberty to
decide the process and procedure of the arbitration, this liberty is not absolute, sacrosanct or
untrammeled. If parties were free to submit every dispute to arbitration the safety and progress of
the society may be jeopardized. There are some disputes that by their nature cannot be the
subject of arbitration but can only be settled through traditional litigation. This doctrine of
arbitrability which is a limitation to party autonomy is not a tyrannous phenomenon that is meant
to do war with the liberty of the party to determine the incidence of arbitration but a safeguard to
the estate of arbitration which ensures that unscrupulous disputants in a bid to circumvent the
course of justice uses arbitration as an aid. It ensures that arbitration is not abused or used as an
engine of fraud or illegality thereby preserving the sanctity of the process.
This paper is divided into three parts. Part one which contains this general introduction
succinctly discusses the meaning of alternative dispute resolution, arbitration, arbitrability and
party autonomy. It further examines the philosophical basis of the principles of party autonomy
and arbitrability. Part two examines the circumstances through which the arbitrability explicates
itself and emphasized that, where parties are considering arbitration as a dispute resolution
option, they must take these circumstances into consideration to avoid acting in vain. Part three
contain some recommendations and the conclusion.
1.1 Alternative Dispute Resolution and Arbitration Defined
The acronym ADR means Alternative Dispute Resolution, a group of flexible approaches to
resolving disputes more quickly and at a lower cost than going through the tedious road of
adversarial proceedings. It is a term which has become associated with a variety of specific
dispute resolution options such as Negotiation, Mediation, Conciliation, Case Evaluation, and a
lot of other hybrid mechanisms.2 Alternative Dispute Resolution as the name implies, are forms
of disputes settlement mechanisms which have evolved as a result of business exigencies and the
?
Abimbola, A. O., “Prospects in Arbitration: An Overview”Diverse Issues In Nigerian Law, Essays in Honour of Hon.
Justice OkanolaAkintundeBoade,Olatunbosun, A. I., and Laoye, L., (Eds.) (Ibadan, Zenith Publishers, 2013) page 27.

2
short comings of litigation coupled with the demands of modern commercial and socio-political
agitations such as need for preservation of relationships at the end of dispute settlement,
confidentiality, informality, avoidance of technicalities, the desire for expeditious disputes
settlement, party autonomy, the need to minimize cost, unwillingness of a disputant to submit
himself to the rules and laws of a forum other than his. These mechanisms includes but are not
limited to the following; mediation, negotiation, mini trial, early neutral evaluation, mini judge,
arbitration and conciliation. Orojo and Agomo 3 opines that the term “Alternative Dispute
Resolution” (abbreviated as “ADR”) is generally used to describe the methods and procedures
used to resolve disputes either as alternatives to traditional disputes resolution mechanism of the
court or in some cases as supplementary to such mechanisms.
Arbitration is a private dispute resolution mechanism established for the settlement of disputes
by a neutral third party (the Arbitrator) or panel of neutrals referred to as the Arbitral Tribunal. 4
Arbitration is a procedure for settlement of disputes under which the parties agree to be bound by
the decision of an arbitrator whose decision is in general final and legally binding on both
parties.5Arbitration is the reference of a dispute or difference between not less than two parties
2
Dada, T.O. General Principle of Law, 3rd Ed., Lagos, Manure-Joe Production Ent., 2013, Page 528. See also Borokini,
A.A., “Is ADR the Death of Litigation” Vol. 4, No. 2, Fountain Quarterly Law Journal, 2006, page 43-55, at page 43.
“ADR is to supplement the available resources for justice by providing enhanced, more timely, cost effective and
use-friendly access to justice … the courts of this country should not be places where the resolution of disputes
begins. They should be the place where disputes end-after all means of resolving disputes have been considered.”
3
Orojo, J. O., and Ajomo, M. A., Law and Practice of Arbitration and Conciliation in Nigeria,Lagos, Mbeyi&
Associates (Nigeria) Limited, 1999, page 4. See also Akeredolu, E. A, Mediation: What it is and How it Works,
Ibadan, Carenter Associates, 2011, page 5.
4
The Court of Appeal in the customary arbitration case of RaphealAgu v. Christian OzurumbaIkwibe[1991] 3 NWLR
(Pt. 180) 385 at 417 gave the following definition to arbitration “Arbitration is a reference to the decision of one or
more persons, either with or without an umpire, of a particular matter in difference between the parties.”
5
Idornigie, P. O., and Adewopo, A., “Arbitrating Intellectual Property Disputes: Issues and Perspectives” Vol. 7, No.
1, The Gravitas Review of Business and Property Law Journal, (2016) pp. 1-19 at P. 1 posits thus “in modern
commercial environment, arbitration is no longer a new system of dispute resolution. Arbitration understandably
provides a special procedure by agreement, where parties agree to submit their dispute to a neutral arbitral
tribunal for a binding decision. While court proceedings are usually held in public, parties in arbitration have
chosen a procedure that is private and confidential for determining their commercial disputes... with notably for
fundamental features, arbitration continues to complement litigation as a dispute settlement mechanism: it is a
private mechanism for dispute resolution; It is an alternative to national courts; it is selected and controlled by the
parties (principle of party autonomy); and it is the final and binding determination by an impartial tribunal of
parties rights and obligations. Arbitration is also anchored on three other fundamental principles: principle of
separability (the arbitration clause in a contract is separate and independent of the main contract); the
competence of the arbitral tribunal to rule on its own jurisdiction (kompetenz-kompetenz); and the principle of
judicial non or minimal intervention.” See also Borokini, A.A., “Is ADR the Death of Litigation” Vol. 4, No. 2,
Fountain Quarterly Law Journal, 2006, page 43-55, at page 44 “This is a procedure for the settlement of disputes by
which the parties agree to be bound by the decision of an arbitrator whose decision shall be binding on the parties.
Arbitration is a product of a contract between the parties.” Ade-Ojo, L, “Arbitration Law and Practice in Settlement

3
for determination, after hearing both sides in judicial manner, by a person or persons other than a
court of competent jurisdiction.6 Arbitration, which maybe institutional or ad-hoc is usually the
referral of a dispute between at least two parties to a person or group of persons, chosen by them
to consider the dispute between them in an adjudicatory manner.7
1.2 The Principle of Party Autonomy Examined
Fagbemi posits that a fundamental principle governing international arbitration agreement is that
of party autonomy. It is the backbone or cornerstone of arbitration proceedings. 8It is the freedom
of the parties to construct their contractual relationship in the way they see fit. 9It is described by
Redfern and Hunter in the following terms, party autonomy is the guiding principle in
determining the procedure to be followed in an international commercial arbitration. 10 It is a
principle that has been endorsed not only in national laws, but by international arbitral
institutions and organizations.11 The legislative history of the Model Law shows that the
principle was adopted without opposition. Party autonomy is an intrinsic attribute of Alternative
Dispute Resolution which distinguishes it from traditional adversarial litigation. It is the
principle that gives the parties to an arbitration proceedings the power and authority to decide
within the confines of the law who, where, when and how the arbitral proceedings will be

of Industrial Disputes” Vol. 5, January, Igbinedion University Law Journal, 2007, pages 193-206 at 193 & 194,
“Arbitration is a quasi-judicial process in which the parties agree to submit an unresolved dispute to a neutral third
party for binding settlement. The parties submit their propositions and the arbitrators decides which party is
entitled to what types of reliefs.” Adenipekun, A., “Arbitration” Vol. 2, Journal of the Law Students’ Society,
University of Ibadan, 2008, page 11-28, at p. 11. “the reference of a dispute or difference between two or more
persons for determination by an umpire in a judicial manner...” Nicholas Gould, “The Mediation of Construction
Dispute: Recent Research” Vol. 3, N0. 2, The Journal of the Dispute Resolution Section of International Bar
Association, (2009) 185 – 197 at 185.
6
Halsbury’s laws of England, 4th ed., Vol. 2, page 256, Para. 501. See also Dada, T.O. General Principles of Law, 2nd
ed. (Lagos, T.O. Dada & Co., 1998) P. 342
7
Onigbinde, A., and Adesiyan, F., The Practice of Arbitration and Allied Alternative Dispute Resolution Mechanisms
in Nigeria being a paper presented at the Christian Lawyers Fellowship of Nigeria, (CLASFON) (DIRECTORATE OF
TRIAL AND ADVOCACY) on the 23rd day of May, 2015 at Reiz Continental Hotel, Abuja.
8
Fagbemi, S. A., “The Doctrine of Party Autonomy in International Commercial Arbitration: Myth or Reality ”? Vol.
6, Issue 1, Journal of Sustainable Development Law and Policy, 2015, Page 222 – 246 at 224
9
Abdulhay, S., “Corruption in International Trade and Commercial Arbitration, “London, Kluwer Law International,
2004, page 159.
10
Lew, D. M. J., etal, Comparative International Commercial Arbitration, New York,Kluwer Law International, 2003,
P. 187. “Party autonomy exposes the right of parties to submit any dispute to arbitration. It is the parties’ right to
opt out of the normal national court jurisdiction.”
11
Pryles, M., “Limits to Party Autonomy in Arbitral Procedure” Journal of International Arbitration, Vol. 23, No. 3,
2007. Available online at
<http://www.arbitration-icca.org/media/4/48108242525153/media012223895489410limits_to_party_autonomy_
in_international_commercial_arbitration.pdf or https://www.kluwerlawonline.com/abstract.php?
area=Journals&id=JOIA2007023> Accessed on 20 April, 2017.

4
conducted. The agreement of the parties to consensually execute the arbitration agreement with
regards to its content is described as party autonomy. This principle gives the parties the liberty
to decide the incidence of their arbitration such as the number of arbitrators to be seized of the
proceedings, the applicable law or lex arbitri, the seat of arbitration, the possible duration of the
arbitration, the sitting hours as well as the venue. Whenever the parties to an international
commercial arbitration exercise their right of autonomy, they are bound by such decision and can
only exculpate themselves through mutual agreement.12
Under the UNCITRAL Model Law which has been adopted in several jurisdictions with slight
modifications to suit local circumstances, the principle of party autonomy is well recognized. 13 In
Nigeria the certain provisions of the Arbitration and Conciliation Act (ACA) gives credence to
the principle of part autonomy. Sections 6 and 7 (1) 2 (a) (i) (ii) and (b) 14 give the parties the
power to choose the procedure for the appointment of arbitrators and the number of arbitrators.
Section 9 (1)15 gives the parties the right to determine the procedure to be adopted in challenging
an arbitrator. Section 1116 empowers the parties to appoint a substituting arbitrator in the event of
a successful challenge of an arbitrator. Section 16 (1) (2)17 permits the parties to choose the seat
of arbitration. Section 1818 bequeaths to the parties the power to determine the lingua franca of
the arbitral proceedings. Section 17 makes the commencement date subject to the date mutually
agreed upon by the parties.19 Section 20 makes the mode of hearing to be adopted by the
arbitrator or tribunal subject to that agreed upon by the parties and section 21 makes the powers
of the arbitrator or tribunal to appoint experts subject to the agreement of the parties.
1.3What is Arbitrability?

12
Cordero-Moss, G., “Limits to Party Autonomy in International Commercial Arbitration” Oslo Law Review Vol. 1,
2014, P. 47. Available online at <http://www.jus.uio.no/ifp/english/research/projects/choice-of-law/publications/
979-4604-1-sm.pdf> Accessed 20 April, 2017. See also Mbadugha, J. N. M, Principles and Practice of Arbitration,
Lagos, University of Lagos Press and Book Shop Ltd., 2015, P. 6 “the term arbitrability in the context of arbitration
connotes whether a dispute is capable of settlement by arbitration. If a dispute is incapable of settlement by
arbitration, any agreement to resolve the dispute by arbitration will be void. Whether a dispute is arbitrable
depends on the law or public policy of either the place of the agreement or enforcement.”
13
Article 19(1) UNCITRAL Model Law provides thus “subject to the provisions of this law, the parties are free to
agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.” Section 1 (b) of the
UK Arbitration Act, 1996 has same provision.
14
1988 Cap. A18 LFN, 2010.
15
Ibid.
16
Ibid.
17
Ibid.
18
Ibid.
19
Ibid.

5
Arbitrability20 is one of the issues where the contractual and jurisdictional nature of international
commercial arbitration meets head on. It involves the simple question of what type of issues can
and cannot be submitted to arbitration.21Arbitrability is concerned with whether a particular type
of dispute is amenable to settlement by arbitration, or if instead jurisdiction lies exclusively with
the domestic courts or state organs. These determinations are usually made by reference to
domestic statute law.22 The parties to a dispute, when considering whether its subject matter is
arbitrable, must ensure the said dispute is arbitrable not only in accordance with the law of the
lex arbitri23, but that it also conforms to the laws and public policy of the governing law of the
contract and of those states where enforcement of the award will be sought. It should be said that
some confusion exists with regard to the precise terminology associated with the concept of
arbitrability.24
Arbitrability determines the point at which the exercise of contractual freedom ends and the
public mission of adjudication begins.25 Arbitrability helps to preserve the jurisdiction of the
national courts to be the sole settler of certain disputes which are considered unsuitable by means
other than litigation.26For such unarbitrable disputes are usually considered to be of a sensitive
20
Bajpai, P., Law Mantra Journal, “Limitations of Party Autonomy in International Regime of Arbitration”Online Law
Mantra Journal. Available online at http://www.thecanvasscolumn.com/2015/04/party-autonomy-and-its-
limitation-in-dispute-resolution/ or http://journal.lawmantra.co.in/?p=162. Accessed on 21 April, 2017. Where it
was stated that: “Arbitrability means whether an issue is appropriate for subjecting it to be resolved by arbitration
or whether it is capable to be resolved by arbitration. However this is purely a concern for a legal domain,
therefore it is definitely a limitation on autonomy of the parties.  Suppose there is an issue which is non-arbitrable
then the arbitration agreement will lose its validity and will be void. Certain issues like family and criminal law are
subject to national courts and so can’t be subject matter of arbitration even if parties wish to.  Therefore the
tribunal will have no jurisdiction over it. Non- Arbitrability can be one of the reasons under the lex-arbitri for
setting aside the award.”
21
Lew, D. M. J., etal, Comparative International Commercial Arbitration, New York,Kluwer Law International, 2003,
P. 187. See also Dursun, G. S., A Critical Examination of the Role of Party Autonomy in International Commercial
Arbitration and an Assessment of its Role and Extent. Available online at
http://www.yalova.edu.tr/Files/UserFiles/83/8_Dursun.pdf> Accessed 20 April, 2017.
22
Bantekas, I., The Foundations of Arbitrability in International Commercial Arbitration. Available online at
<http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/2008/10.pdf> Accessed 20 April, 2017.
23
Mbam, C., “Resolution of Political Parties Disputes through Arbitration and Alternative Disputes Resolution
(ADR)” Journal of Arbitration, Vol. 11, N0. 1, April, 2016, P 228. States that “Lex arbitri is a body of rules which sets
a standard external to the arbitration agreement, and the wishes of the parties, for the conduct of arbitration.”
24
Ibid.
25
Carbonneau, J., “Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability” 2 Tul J
Int’L& Comp L 193, 1994, P. 194.
26
Lew, J. D. M., op. cit. P. 188. “National laws often impose restrictions or limitations on what matters can be
referred to and resolved by arbitration. For example, the states or state entities may into be allowed to enter into
arbitration agreements at all or may require a special authorization to do so. This is “subjective arbitrability.” More
important than the restrictions relating to the parties are limitations based on the subjective matter in issue. This is

6
nature that making them amenable to arbitration is capable of compromising the sanctity of the
state. This restriction on party autonomy is justified to the extent that arbitrability is a
manifestation of national or international public policy. Consequently, arbitration agreements
covering those matters will, in general, cannot be considered valid, will not established the
jurisdiction of the arbitrators and the subsequent award may not be enforced.27 Worthy of note is
the fact that challenge on the ground of arbitrability can be presented to the arbitrator and/or
tribunal and before the court.28 The issue of arbitrability can arise either at the inception of the
proceedings, during or at the stage of seeking it recognition and/or enforcement. Section 35 of
the Arbitration and Conciliation Act tacitly recognized the principle of arbitrability when it
provides that “this Act shall not affect any other law by virtue of which certain disputes may not
be submitted to arbitration; or may be submitted to arbitration only in accordance with the
provisions of that or another law.”
1.3 The Importance/Rationale of Party Autonomy
The importance of party autonomy as a corner stone of arbitration cannot be overemphasized.
The principle demonstrates beyond any iota of doubt the distinctive difference between
arbitration and litigation in the settlement of disputes. This principle wears on arbitration the
garment of informality and makes it devoid of technicalities which have plagued litigation
making same unattractive for settling dispute of commercial nature with the possibility of
continuity in relationship. The importance of party autonomy is more visible in section 1(c) of
the English Arbitration Act29which forbids the courts from interfering with the parties’
agreement. It affords the parties the opportunity to decide how they want their dispute to be
settled devoid of any rancorous display which characterizes litigation. Party autonomy helps the
disputants to settle their dispute without having to prejudice the possibility of continuous

“objective arbitrability.” Certain disputes may involve such sensitive public policy issues that it is felt that they
should only be dealt with by the judicial authority of state courts. An obvious example is criminal law which is
generally the domain of the national court. These disputes are not capable of settlement by arbitration.”
27
See generally section 32, 48 (a) (ii), 52 (1) (ii).
28
Kenneth, M., How Arbitration Works, 7ed., Arlington, BloombergBNA, 2012, P. 6-2.
29
English Arbitration Act, 1996. It is worthy to note that this ousting is not to be understood as depriving the
courts the right from interfering in arbitration proceedings as such will be inconsistent with the inherent
supervisory jurisdiction of the court. However, in Nigeria, such a provision will be inconsistent with the provisions
of Section 6 (6) (c) of the 1999 Constitution of the Federal Republic of Nigeria and therefore null and void to the
extent of its inconsistency. This affects section 34 of the ACA which contains the provision that a court shall not
intervene in any matter governed by this Act, except, where so provided. See Inakoju vs Adeleke  [2007] 4 NWLR
(pt.1025) 423; Dapialong vs Dariye [2007]8 NWLR (Pt. 1036) 289.

7
relationship. The doctrine affords the parties the opportunity to be active participants in the
whole process of arbitration and makes arbitration flexible.
Section 1(b) of the English Arbitration Act, 1996 contains provisions that the purpose of party
autonomy can be deduced from. It provides that the object of arbitration is to obtain the fair
resolution of disputes by an impartial tribunal without unnecessary delay or expense and as such
safeguard as are necessary the public interest. Fagbemi quoting Dursun summarized the rationale
of party autonomy in the following manner, the parties to an international commercial contract
do not want to resolve their disputes through litigation, since the court, which is national of a
party may be foreign of another, and in addition to this the parties do not want to deal with
procedural formalities. Consequently, the parties choose arbitration as a private dispute
settlement mechanism and thus, they can conduct all proceedings of arbitration by taking into
account their needs and desires such as they can arrange the timetable of hearing, choose anyone
as an arbitrator who have relevant expertise on specific requirements of the dispute.30
2.0 The Rationale of Arbitrability in Arbitration
If every dispute was allowed to be capable of settlement through arbitration or any other ADR
mechanism, the effect of this on the society will be adverse. 31 Thus, certain disputes by virtue of
their nature should be made incapable of settlement except through the courts of the particular
forum. Every state exist first to protect itself from undesirable outcome based on the actions of it
citizens or person living within its geographical territory or persons having any contact with it.
Hence, the need to protect the sanctity and sanity of the forum from harm is the basis for making
certain dispute non-arbitrable.32The sensitive nature of such disputes arising from causes such as
taxation, bankruptcy, criminal law, divorce, etc. and the effects their outcome would have on the
forum justifies the reason the government will grant exclusive right of settlement to its courts. 33

30
Fagbemi, S. A., op. cit. P. 230.
31
Mbam, C., “Resolution of Political Parties Disputes through Arbitration and Alternative Disputes Resolution
(ADR)” Journal of Arbitration, Vol. 11, N0. 1, April, 2016, P. 216.
32
Pamboukis, C., On arbitrability: the arbitrator as problem solver [Thoughts about the Applicable law on
Arbitrability. Available online at <http://www.a-law.gr/pdf/Applicable-law-on-arbitrability.pdf> Accessed 21 April,
2017. “Arbitrability in essence consists in putting limits to the power of the arbitral tribunal but also of the parties
as to what subject matter can be arbitrate. In that sense limitations can only arise from a state law tending to
protect its own general [social or economic] interest. They may concern either persons – subjective arbitrability‐ or
more properly, matters – objective arbitrability.”
33
Okonkwo v Okagbue[1994] 9 NWLR (Pt. 368) 301. See also Anekwe v Nweke [2014] 9 NWLR (Pt. 1412) 393 at
pages 421-422, 423, 425, 426-427, Nzekwu v Nzekwu (1989) SCNJ page 167.

8
Also, the courts of the forum if allowed to compete with arbitral tribunal in settlement of
disputes, the court would be brought to disrepute and this will open them to mockery and rivalry
2.1 Instances of Arbitrability in Arbitration
The doctrine of arbitrability explicates itself through various means. 34 Some of the means
through which arbitrability explicates itself are through the doctrine of Public Policy35. It is that
general and well-settled public opinion relating to man’s plain, palpable duty to his fellow man,
having due regard to all circumstances of each particular relation and situation.36Public policy or
ordre public international is the negation of private international law; it is the triumph of
nationalism over internationalism, of policy over uniformity or harmony 37. The doctrine of public
policy is to be invoked in clear cases where the harm to the public is substantially incontestable,
and does not depend upon the idiosyncratic inferences of a few judicial minds. 38Osemudiame
states that the doctrine of public policy concerns the body of principles that are the under laying
factors in the operation of the legal system of each state. It addresses the moral, social and
economic values that tie a society together. These values vary in different cultures and change
from time to time.”39The Supreme Court of Nigeria in the case of Okonkwo v
Okagbue40succinctly state that “the phrase public policy appears to mean the ideal which for the
34
Shore, L., “Defining Arbitrability: The United State v. The World” Available online at
<http://www.gibsondunn.com/publications/documents/shore-definingarbitrability.pdf > Accessed on 10th April,
2017.
35
Ikhariale, M. A., and Obadan, A., “Judicial Review of Arbitral Awards: Issues and Prospects” Journal of Arbitration,
Vol. 11, No. 1, April, 2016, p. 190. Asserts as follows: “the term public policy can be defined as the fundamental
legal principles and generally recognized values, which is the foundation of the legal order of a society. The
concept of public policy is very opened ended, depending on some socio-cultural notions prevailing in the society
and impossible to straightjacket. It is not possible to classify the elementary inclusive and exclusiveness of public
policy. In England public policy is interpreted to mean firstly, anything which does not go against the fundamental
conceptions and morality of the English system, secondly which does not prejudices the interests of the country or
its relations with foreign countries and lastly, which is not against the English conception of human liberty and
freedom of actions.”
36
Henry Campbell Black, Black’s Law Dictionary, 6th Ed., West Publishing Co. St. Paul MINN, 1990, page 1231,
37
Kahn-Freund in Yakubu, J. A. op. cit. 11.
38
Ibid.
39
Okpoko M. Osemudiame, ‘Public Policy and Evasion of the law (fruade a la loi)’ seminar paper presented to the
LLM Conflict of Laws Class of 2012/2013, University of Ibadan, Pp. 3-4.
40
[1994] 9 NWLR (Pt. 368)301. See also Corr, J.B., ‘Modern Choice of Law and Public Policy: The Emperor Has
the Same Old Clothes’ College of William & Mary Law School l Scholarship Repository, Faculty Publications,
London, 1985, page 649. State thus “For the purpose of choice of law, one may define public policy as that doctrine
which permits a court to reject a cause of action based on the law of a different jurisdiction on the ground that the
other jurisdiction's law is not only different from but also offensive to generally accepted values within the forum.
The doctrine is an especially useful vehicle for evaluating the merits of modern and traditional learning, because it
is one of the few features of the old learning to have survived the last generation's surge into modern choice of law
thinking. Indeed, it appears that no matter which variation of modern learning a state may have adopted, public

9
time being prevails in any community as to the conditions necessary to ensure its welfare, so that
anything is treated as against public policy if it is generally injurious to the public interest. It is
the community common sense and common conscience, extended and applied throughout the
state to matters of public morals, health, safety, welfare and the like.” 41 It is apposite to state that
every country decides which matters are arbitrable depending on its social, moral, economic and
political policy. Therefore, there will be no consensus as to what is arbitrable as this will vary
from country to country in so far as their public policy varies. In some countries, criminal,
divorce, bankruptcy and securities issues, as well as whether patent, trademarks and copyright
should be arbitrable and their validity, are not subject to arbitration but left to the exclusive
jurisdiction of the national courts.42 The Supreme Court of Nigeria in the case of Kano State
Urban Development Board v. Fanz Construction Co. Ltd 43 held that an indictment for an offence
of a public nature cannot be the subject of an arbitration agreement, nor disputes arising out of an
illegal contract, nor disputes arising under agreement void as being by way of gaming or
wagering. Equally, disputes leading to a change of status, such as divorce petition cannot be
referred, nor, it seems, can any agreement purporting to give arbitration the right to give a
judgment in rem.
The courts in other jurisdiction with regard to interpretation of public policy as a limitation to
party autonomy have adopted both broad and narrow interpretations. In the case of Renusagar
Power Co. Ltd. v. General Electric Co.44 the concept of public policy with respect to foreign
arbitral awards was construed in a narrow manner. In the case the Indian Supreme Court held
that an arbitral award would be considered as being in conflict with public policy of India if it is
contrary to (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or
morality. Also in Paper Workers International v. Misco45 the United State of America Supreme

policy is retained as an instrument for adjudicating choice of law issues. Public policy, therefore, is a rare point of
common ground upon which one may directly compare the actual operation of traditional and modern
approaches.” Available at http://scholarship.law.wm.edu/cgi?article=1852&context=facpubs. Accessed on 25
December, 2016.
41
Böckstiegel, K., “Public Policy as a Limit to Arbitration and its Enforcement” Being a Paper presented at 11th
International Bar Association, International Arbitration Day and United Nations New York Convention Day “The
New York Convention: 50 Years” in New York on 1 February 2008. Available online at http://www.arbitration-
icca.org/media/0/12277202358270/bckstiegel_public_policy...iba_unconfererence_2008.pdf> Accessed 20 April,
2017.
42
Mbadugha, J. N.M. op. cit. P. 6.
43
[1990] 4 NWLR (Pt. 142) 1 at 33.
44
MANU/SC/0195/1994.
45
484 U.S 29. (1987).

10
Court stated that public policy exception can be invoked only when that public policy is
explicitly well-defined, and dominant. To determine if an arbitral award infract the forum public,
the court must review existing laws and legal precedents in order to demonstrate that they
establish a well-defined and dominant policy. However, the Switzerland Supreme Court adopted
a broad meaning of public policy in the case of Francelino Silva Matuzalem v. FIFA46 when it
held that an arbitral award would violate the public policy of Switzerland “when it disregards
some fundamental legal principles and thus is wholly inconsistent with the essential, generally
recognized values, which should be the foundation of any legal order according to the prevailing
view in Switzerland.”
Furthermore, mandatory rules could expressly render certain disputes incapable of settlement
through arbitration.47 Considering arbitrability, it is argued that ‘party autonomy to arbitrate
contractual disputes traditionally does not extend to the arbitration of claims arising under
mandatory national laws.48 Thus, an arbitral award would be set aside if it is a product of a
dispute that under the law of the situs is declared unarbitrable.
Also a dispute will be unarbitrable if the arbitration agreement is null and void and therefore
of no effect whatsoever. The arbitration agreement is the fulcrum as was held by the Supreme
Court in the case of M. V. Lupex v. N .O. C. & S Ltd.49Section 52 (2) (a) (ii) of the Arbitration
and Conciliation Act provides that the court where recognition or enforcement of an award is
sought or where application for refusal of recognition or enforcement thereof is brought may,
irrespective of the country in which the award is made, refuse to recognize or enforce an award
if it is shown that the arbitration agreement is not valid under the law which the parties have
indicated should be applied, or failing such indication, that the arbitration agreement is not valid
under the law of the country where the award was made. 50 An arbitration agreement that
promotes immoral act, unconscionable or incapable of being performed is capable of being
declared null and void and of no effect whatsoever.

46
March 27 2012.
47
Mbadugha, J. N.M, op. cit. P. 8.
48
Mbam, C., “Resolution of Political Parties Disputes through Arbitration and Alternative Disputes Resolution
(ADR)” Journal of Arbitration, Vol. 11, N0. 1, April, 2016, P. 225.
49
[2003] 15 NWLR (Pt. 844) 469 at 487, paras. A-B; Celtel Nigeria BV v. Econet Wireless Ltd &Ors[2014] LPELR-
22430 (CA); In the case of Sino-Afric Agricultural & Industry Company Limited &Ors. v. Ministry of Finance
Incorporation &Anor.[2014] 10 NWLR (Pt. 1416) 515 at pp. 535-536.
50
Article ii (3) of the New York Convention, 1958 contain similar provision.

11
Mbadugha argues that an arbitration agreement could be incapable of performance or
unenforceable if, for instance, a designated appointing authority is non-existent, or is wound up
or dead and could no more appoint an arbitrator pursuant to the parties’ agreement. 51This
proposition have been given judicial approval in the case of Christian Imoukhuede v. Charles
Mekwunye52the arbitration agreement stipulated that “any conflict and/or disagreement arising
out of this present … shall be referred to a sole arbitrator that will appointed by the president of
the Chartered Institute of Arbitrators – London, Nigeria Chapter …” the Respondent challenge
the validity of the arbitration clause basing his objection on the ground that there is no Chartered
Institute of Arbitrators, London – Nigeria Chapter, the Court of Appeal in setting aside the award
held that:
It follows therefore that since there is in effect no body/organization known as the
Chartered Institute of Arbitrators (London) Nigeria Chapter then, the clause itself is
unenforceable. The 3rd Respondent (The Chartered Institute of Arbitrators (UK)
Nigeria Branch do not therefore possess the power to either recommend and/or
appoint the 2nd Respondent.53
2.2 Classification of Arbitrability
In formal treatment of the subject, arbitrability is typically divided into subjective and objective
arbitrability.54 It has been emphasized in the preceding part of this paper that, arbitrability
ensures that certain disputes are not capable or suitable of settlement through arbitration while
51
Mbadugha, J. N.M, op. cit. P.7.
52
Unreported Suit No. CA/L/314m/2012.
53
The issue of arbitrability may arise through or raised through the following means” (a) normally the issue of
arbitrability is invoked by a party at the beginning of the arbitration, before the tribunal, which will have to decide
whether it has jurisdiction or nor; (b) the issue of arbitrability may be also referred by a party to a state court
which will be requested to determine whether the arbitration agreement relates to a subject matter which is
arbitrable; (c) the issue of non-arbitrability can be raised in setting aside proceedings before the state court,
usually at the place where the arbitral tribunal has its seat; (d) non-arbitrability may also be invoked by the
defendant before the court deciding on the recognition and enforcement of the award.
54
Honotiau, B.,“The Law Applicable to Arbitrability” Singapore Academic Law Journal, Vol. 26, 2014, P.
875. Available online at http://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-
Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/336/Citation/JournalsOnlinePDF>
Accessed 21 April, 2017. He stated thus “arbitrabibility became probably the most fashionable subject in the field
of International Arbitration. One may say that actually is the corner stone of International Arbitration in the sense
that it ties up the pole of autonomy of the parties and the pole of state's mandatory area. In other words it is the
area of tension between these two poles representing the general and the individual interest.. Arbitrability in
essence consist in putting limits to the power of the arbitral tribunal but also of the parties to what subject matter
can be arbitrate. In that sense limitation can also arise from a state law tending to protect its own general [social or
economic] interest. They may concern either persons - subjective arbitrability or more properly, matters - objective
arbitrability.”

12
party autonomy gives parties the liberty prior to the commencement of the arbitral proceedings to
determine its incidence.55Whether under an applicable law, a particular entity particularly a state
or other public body may be a party to an arbitration agreement and thus whether a dispute to
which such entity is a party may be submitted to arbitration is referred by commentators as
‘subjective arbitrability’ (or arbitrability ratione personae). While many national laws contains
limitations
Subjective arbitrability (or “ratione personae”) means that the party willing to be subject to
arbitration agreement (for example, an individual, legal entity, state entity) must be allowed to
enter into such agreement, i.e. must obtain a special authorization. Thus, in order to make
subjective arbitrability come into existence, a person it refers to must be entitled either with
individual rights to enter into such legal relationship or, in case of state entity, it must be
endowed with legal capacity to enter into arbitration agreement. To put it in opposite terms,
subjective non-arbitrability generally relates to deficiencies in contractual capacity and thus,
affects the validity of the arbitration agreement.56 The issue of subjective arbitrability arises
when a state or public entity which has signed an arbitration agreement subsequently wishes to
exculpate itself from the agreement.57
Objective arbitrability on the other hand deals with the object of arbitration under the lex
arbitri.58 Whether under an applicable law, the particular subject matter of a dispute is capable of
resolution by arbitration, in the light of relevant public policy consideration or mandatory rules is
often referred to as ‘objective arbitrability’ or (arbitrability ratione materiae)59
2.3 The Nexus between Party Autonomy and Arbitrability
This part of this paper examines whether the concept of party autonomy has any nexus with the
doctrine of arbitrability in arbitration under Nigerian law. The principle of party autonomy and
arbitrability are two cardinal structures in arbitration. They both ensure that while the parties
55
It is noteworthy that parties’ liberty to decide on how the arbitration should be is more before the arbitration
commences at the stage of creation of the arbitration agreement. Once the parties have agreed on arbitration and
have kick started the process, the extent of party autonomy becomes limited especially as provided under the
Arbitration Rules annexed to the ACA.
56
http://www.sccinstitute.com/media/56097/arbitrability-problematic-issues.pdf > Accessed 21 April, 2017.
57
Hanotiau, B., “The Law Applicable to Arbitrability” Singapore Academic Law Journal, 2014, Vol. 26, P.876.
58
Article II (i) New York Convention, 1958 addresses objective arbitrability thus “each contracting state shall
recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual
or not, concerning a subject matter capable of settlement by arbitration.”
59
Aksen, G., Etal, Global Reflections on International Law, Commerce and Dispute Resolution, Paris, International
Chamber of Commerce Publishing,2005, P. 269.

13
right to determine how they want the arbitral proceedings to be or what should be the content of
the arbitration agreement, they do so in a way and manner that will not be injurious to the
generality of the public. Thus, arbitrability becomes a check in achieving this. Hence, it can be
rightly argued that there is no form of conflict between them. In fact, they co-exist harmoniously
to ensure that the sanctity of arbitration is maintained while the safety and sanity of the state is
also guaranteed. They are not strange bed fellows.
3.0 Conclusion
From the above it is trite that the principles of arbitrability which is to the effect that for certain
purposes such as public policy, internal security, need to preserve the jurisdiction of the national
court certain disputes are incapable of settlement through any other means other than litigation
and the principle of party autonomy which on the other hand has the effect that parties to an
arbitration agreement are at liberty to decide the incidence of the proceedings with regards to
matters such as the number and qualification of the arbitrator (s), the applicable law, the seat of
arbitration, venue and other matters ancillary thereto are not strange bed fellows but a symbiotic
phenomenon which coexist to ensure that the integrity of the arbitral proceedings is not
compromised just as the jurisdiction of the national court is not encroached upon.
Thus, arbitrability is a check to party autonomy and without it unscrupulous disputant will take
undue advantage of party autonomy to settle disputes that are capable of threatening the
tranquility of the nation’s polity. This is a situation which must never be allowed to occur. Thus,
the principle of arbitrability and the doctrine of party autonomy though they are different in
terms of their applicability, there is a symbiotic relationship between them which makes them
same and not strange bed fellows.

14