OBLIGATION OF STATE PARTIES TO ENFORCE ARBITRATION AGREEMENT IN ACCORDANCE WITH THE NEW YORK CONVENTION

Abstract

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Award (Convention) permits national courts to rely on the more favourable regime under their national laws to determine the enforceability of arbitration agreement (clause). To this end, national arbitration laws have given a liberal meaning to the phrase ‘agreement in writing’ pursuant to Article II (3) of the Convention in order to accommodate modern means of contractual agreements such as arbitration clause in charter party bill of lading. Using the Nigerian Arbitration and Conciliation Act (ACA) as a starting point, this article investigates the extent Nigerian courts recognize arbitration clause in charter party bill of lading with the view to determining the degree at which Nigeria has fulfilled her treaty obligation under the Convention. In the light of the foregoing, this article through case law analysis, finds that Nigeria by and large may not have breached her treaty obligation under the Convention irrespective of few judicial decisions that were delivered per incuriam. However, this article recommends a comprehensive doctrinal framework that should guide Nigerian courts in determining the enforceability of arbitration clause in charter party bill of lading. The objective is to provide clarity, coherence and predictability at common law.