Doctrine of Covering the Field and Arbitration in Nigeria
The doctrine of covering the field continues to attract some attention in relation to arbitration law and practice in Nigeria. As has been discussed recently, its relevance is being raised in the particular context of whether a state arbitration legislation can be or remain valid in light of the existence of the federal Arbitration and Conciliation Act. The particular legislation that has been raising the dust is the Lagos State Arbitration Law of 2009 and suggestions continue to be made that the law either needs to be amended (or cannot even stand) in light of the federal legislation, owing to the doctrine of covering the field.
The constitutional aspect of legislative competence over arbitration in Nigeria, especially as between the federal and state legislatures, has already been discussed extensively. This present entry merely seeks to reiterate the point that the doctrine of covering the field is simply inappropriate for addressing the question of legislative competence over arbitration in Nigeria.
In the first place, it has just not been demonstrated how the federal legislature has shown an intention to legislate exhaustively and exclusively on arbitration – which is a prerequisite for the invocation of the doctrine of covering the field on that legislative subject matter. It is not enough to point out that the Arbitration and Conciliation Act is applicable throughout Nigeria when the Act clearly and, arguably, deliberately did not repeal the numerous state legislation on arbitration which already existed at the time of its own promulgation or give any indication that states cannot legislate on arbitration. A better way to approach the federal legislation is that it makes its own regime available optionally but not mandatorily throughout the federation.
The oft stated and repeated objective of making Lagos in particular and Nigeria generally an attractive venue for the conduct of arbitration proceedings also dictate a requirement of careful consideration when thinking of invoking the doctrine of covering the field. In order to achieve the aim of making Nigeria an arbitration venue all relevant parties (policy makers, legislature, judiciary, arbitrators, counsel, academics, among others) need to demonstrate understanding of important doctrines and principles underlying arbitration.
A key doctrine underlying and running through arbitration is the doctrine of party autonomy. One aspect of this is that the parties are free to choose the law(s) governing the various aspects of the arbitration including especially the lex arbitri. In order to make Lagos and Nigeria an attractive arbitration venue, it is necessary to demonstrate that if parties to arbitration wish to invoke the Lagos State Arbitration Law as the lex arbitri, the Nigerian legal system will respect that choice.
On the other hand, it is a sobering thought that the result of the invocation or application of the doctrine of covering the field would be to deny the arbitral parties of such a choice. And of course that would be the path to jeopardising the desired objective of making Lagos in particular and Nigeria as a whole an attractive arbitration venue.