NIGERIA’S APPROACH TO STATE IMMUNITY IN INTERNATIONAL COMMERCIAL ARBITRATION: A CASE FOR THE ENACTMENT OF NIGERIA’S FOREIGN STATE IMMUNITIES ACT

Abstract

The concept of State or sovereign immunity had in the time past proceeded on the principle that every State was completely immune from the jurisdiction of the court or legal system of another system based on the principle of equality of States. This was expressed in the terms of absolute immunity theory. Over the years, States started getting more and more involved in commercial activities. This led to the consideration of issues of fairness in relation to investors with which States would go into commercial transaction in respect of which a State might claim immunity for any dispute that might arise. Thus the concept of relative immunity in customary international law began to spring up whereby a State might not be able to claim immunity in respect of its commercial transactions with private investors. Consequently, various States began to pass legislations codifying the concept of relative immunity. The United Nations General Assembly also in 2004 adopted the United Nations Convention on Jurisdictional Immunities of States and Their Property in order to regulate State immunity. This Convention though not yet in force as it had not yet garnered the required accessions by States, represented a codification of the rules of customary international law on relative immunity principles. The problem concerning the issue of State immunity in Nigeria was that Nigeria was yet to pass a legislation on it. The aim of this work was to examine the legal position of Nigeria on State immunity from the standpoint of case law. The objectives of this study were to criticize Nigeria’s approach to State immunity and to make recommendations on how to address it. This work used doctrinal method of legal research by consulting primary sources of law like the United Nations Convention on Jurisdictional Immunities of States and Their Property, domestic legislations of other States and case law. This study also consulted secondary sources like relevant law text books, journal articles and internet materials. This work found that Nigeria did not have a legislation regulating the issue of State immunity and that this had left the issue of State immunity to the courts which were still tended towards the obsolete absolute immunity theory. This paper therefore recommended for the enactment of a legislation on State immunity in Nigeria which would codify the established principles of customary international law on restrictive immunity doctrine in line with the global trend. The work also recommended that the Nigeria’s legislation on State immunity should equally make provision on reciprocal treatment of judgments or arbitral awards from Nigeria by other States.