Monthly Archives: March 2016

Sale of Goods and the Nigerian Constitution

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Sale of Goods and the Nigerian Constitution

‘It is hard to imagine a less well-defined boundary than that separating contracts which do from those which do not “affect” interstate commerce.’ (Robert Braucher, 1951)

In the last entry we started examining the extent of applicability of the sale of goods legislation of some of the states of Nigeria in light of the trade and commerce provision of the Nigerian Constitution. The trade and commerce clause confers exclusive legislative powers on the Nigerian federal legislature in respect of trade and commerce between Nigeria and other countries and between the states. It was noted that in Attorney General of Ogun State v Aberuagba (1985) the Nigerian Supreme Court did not confine the operation/application of the provisions to relationships between government entities. Instead the court considered the provisions as applicable in the particular case to the movement of products across the states or between Nigeria and another country. It was also noted that, taking account of the terms of the decision, the sale of goods would also fall within the meaning of trade and commerce.

Considering that, as the Supreme Court decided, international and interstate trade and commerce are within the competence of the federal legislature exclusively, the question then arises whether a state’s sale of goods law can be applied in respect of a sale transaction with connections to another state or country. This would be for example where a seller operating in Lagos State sells goods to a buyer based in another state and/or the goods have to be delivered from one state to another. Another example would be where a buyer resident in Lagos State purchases goods from an overseas seller and subsequently seeks redress from the Lagos courts in the event of a dispute.

The potential constitutional dimension of the applicability of sale of goods legislation is obscured by the fact that the sale of goods legislation of the states that have enacted one virtually all derive from the English Sale of Goods Act 1893. In addition to this, the English 1893 Act is also directly applicable in Nigeria – at least in the states that have not enacted their own legislation. Thus the statutory provisions that courts in different states will apply under Nigerian law to sale of goods contract disputes are virtually identical.

As a matter of doctrine and principle, it does matter that the constitutional dimension to the law of sale of goods is clarified. Secondly, the Nigerian Law Reform Commission is proposing reform of the Sale of Goods Act and its replacement with new legislation. The clarification of the constitutional dimension will help to forestall future constitutional controversy and help prevent or reduce potential waste of time and resources on expensive litigation for clarification. Thirdly, whatever the proposals of the Law Reform Commission, it is possible that one state’s legislature will revise its sale of goods law or introduce one which departs from the standard pattern and contains variant provisions. The current debacle over arbitration legislation demonstrates this possibility starkly.

On a practical level, as long as individual states have or are seen as being entitled to have their own sale of goods legislation, the courts are going to be confronted at some point inevitably with the question of whether a state legislation can be applied to a transaction that is not wholly an “intrastate” sale transaction. The first question that will arise is arguably whether a state has legislative competence to enact any form of sale of goods legislation at all. On one level, this is very easily answered i.e. as intrastate trade and commerce matters are not included in the Constitution’s trade and commerce clause, states are empowered to legislate on them since they will be ‘residual’ matters. Accordingly, a state would be entitled to enact a sale of goods legislation at least as far as intrastate sales are concerned.

An arrangement where state legislation applies to intrastate transactions and federal (or federally applicable) legislation applies to interstate transactions has its own advantages in terms of basic clarity and certainty. The federally applicable Sale of Goods Act 1893 of England would apply to interstate and international sale of goods whereas state sale of goods laws will apply to intrastate sale transactions. At present, it would not matter considerably since both sets of legislation are virtually identical. However, if and when the efforts of the law reform commission germinate the potential for constitutional controversy and even conflict of laws issues may become more apparent.

It appears that the Law Reform Commission is proposing a uniform sale of goods law for the entire country. Of course this is possible especially in respect of interstate and international sale of goods. On the other hand, it is not clear if the proposals intend that the various state sale of goods laws should become redundant. That would raise the question whether the federal legislature has the competence to extend the application of a future sale of goods legislation to intrastate sale transactions.

Another issue would be whether, if state sale of goods legislation are to continue in existence and operation, parties to an intrastate transaction can exercise freedom of choice and choose to subject their sale transaction to the federal legislation instead. Indeed the question also arises in reverse i.e. whether parties to an international or interstate sale transaction can exercise freedom of choice and choose to apply a state sale of goods legislation. As soon as there is significant disparity between federal sale of goods legislation and the legislation of at least one state, the questions being raised presently will no longer be purely academic as experience with arbitration legislation has now clearly shown.

It is interesting that Commonwealth and other countries with federal constitutions, comparable to Nigeria’s Constitution to an extent, tend to leave the question of sale of goods legislation specifically to their constituent states or provinces; compare for example the structure of sale of goods legislation in the United States, Australia and Canada. This is despite the presence similarly in the respective constitutions of a clause granting legislative power on commerce or trade and commerce to the federal legislature.

One other matter that does not seem to have exercised adequate consideration if any at all is whether Nigeria should adopt a separate regime for international sale of goods different from the regime(s) that may be made applicable to either interstate or intrastate sale of goods. Directly related to this is the question of whether Nigeria should consider ratifying and implementing the United Nations Convention on the International Sale of Goods 1980 (‘CISG’). Whether it be the ratification of the CISG or enactment of a fresh federal legislation specifically focused on international sale, this is one respect in which the government could deliberately and specifically make the legislation applicable mandatorily in respect of the transactions that it applies to – even by invoking the sometimes controversial doctrine of covering the field. In other words, if enacting federal legislation in respect of some international sale of goods transactions, the federal government could deliberately and expressly foreclose the possibility of state legislation on the same matters.

It is nevertheless to be noted that if the federal legislature goes with the option of implementing the CISG, there are some international sale transactions that will fall outside its regime. For example, consumer sale transactions are generally excluded from the purview of the CISG whereas consumer transactions with cross-border elements are a significant feature of the modern electronic and information technology age. Thus, if Nigerian law were to be the applicable law of such a transaction the question will yet arise whether federal or a state legislation would be the appropriate legislation to apply.

Trade and Commerce and the Nigerian Constitution

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Trade and Commerce and the Nigerian Constitution

In a previous entry we argued that despite the fact that “trade and commerce” is listed as an item on the Exclusive Legislative List of the Nigerian 1999 Constitution, state legislatures also have legislative competence to enact arbitration legislation even in respect of interstate and international commercial transactions.

In this entry, we examine the “trade and commerce” provision in the Exclusive Legislative List from another dimension. In particular, we are going to briefly raise a question concerning the validity of some of the extant state legislation on sale of goods in light of the trade and commerce provision in the Exclusive Legislative List.

Historically, during the colonial era Nigeria adopted the English Sale of Goods Act of 1893 (under the concept of ‘statute of general application’) as the law generally governing sale of goods transactions. Around the time of independence, the then Western Region enacted the provisions of the same statute which it reproduced in the form of its own Sale of Goods Law 1959. When states were later created out of the old regions, some of the states which emerged from the old Western Region also continued the reproduction of the Sale of Goods Act by again enacting it locally as the Sale of Goods Law of the state concerned. Presently, a number of Nigerian states now have a Sale of Goods Law while in the states or parts of Nigeria (e.g. the Federal Capital Territory) which do not have a local sale of goods law, the English Sale of Goods Act will continue to apply under the statute of general application concept.

The issue that arises for the purpose of this entry is that of the scope of the Sale of Goods Law of a state that has enacted one in light of the trade and commerce provision in the Exclusive Legislative List of the 1999 Constitution. The most directly relevant provisions of the 1999 Constitution are items 62 and 62(a) as follows:

62 “Trade and commerce, and in particular —

(a) trade and commerce between Nigeria and other countries including import of commodities into and export of commodities from Nigeria, and trade and commerce between the states”

From these provisions it would appear at first sight that as legislative power in respect of matters of “interstate” and “international” trade and commerce is exclusive to the federal legislature, a state legislation concerning trade and commerce must be confined in its application to trade and commerce with connections solely and entirely with the particular state. Thus it would at first appear that a state’s Sale of Goods Law can only apply in respect of sale transactions with connections solely to that state.

Are the conclusions or suppositions above truly correct or even practical, however?

Let us examine a few possible scenarios arising from the trading activities of an imaginary company – Johnson Cars Ltd which we take to be a company with its registered office and place of business in Lagos.

  1. The company sells a car to Mr Simpson who is an indigene and resident of Ogun State. Mr Simpson is unhappy with the condition of the car and commences legal action in Lagos.
  2. The company sells 10 lorries to Kaluka Ltd which is a company with registered office and place of business in Eboyin State. Kaluka Ltd is unhappy with the condition of the lorries and wishes to sue in Lagos.
  3. The company sells a car to Mrs Donald who is an indigene and resident of the Federal Capital Territory, Abuja. Mrs Donald is unhappy with the car and she wishes to sue in Abuja.
  4. The company buys some car parts from a UK based and registered company (Northern Parts) and the contract provides that disputes will be referred to the Nigerian courts and that Nigerian law will apply. Johnson Cars Ltd is unhappy with the parts delivered and wishes to sue Northern Parts in Lagos.

The ultimate question to be addressed is whether the Sale of Goods Law of Lagos State can be applied by the court dealing with the dispute in any of these given scenarios.

Each of the scenarios is a sale of goods transaction and each will almost certainly be held to be a matter of “trade and commerce”; (see Attorney General of Ogun State v Aberuagba (1985) 1 NWLR (part 3) 395). On the other hand none of the transactions is connected solely to one state – in particular, Lagos State. However, are scenarios (1)-(3) trade and commerce between the states and is scenario (4) trade and commerce between Nigeria and another country?

In Aberuagba, the Supreme Court did not treat provisions of the 1979 Constitution identical to item 62 of the 1999 Constitution’s Exclusive List as relating only to transactions between government entities. The lead judgment of Bello JSC, with which the majority of the court concurred, considered the movement of products across states as “interstate trade and commerce” and from another country into Nigeria as “international trade and commerce” and it considered that both of these fell within the constitution’s provisions under consideration. Indeed the court held that “international trade and commerce” and “interstate trade and commerce” are reserved for the federal legislature while trade and commerce within a state is left as a residuary matter to the states.

The Supreme Court’s understandable approach as summarised in the immediately preceding paragraph however helps to see in stark relief the conundrum that arises in relation to ascertaining the true scope, purpose and intention behind the “trade and commerce” provisions in the Constitution’s Exclusive Legislative List.

If the court’s decision as so far summarised were taken extremely literally without further careful consideration, the conclusion would have to be reached that the Sales Law of Lagos State cannot be applied to any of the four hypothetical scenarios presented in this essay. More alarmingly, it would mean that the Sale of Goods Law of Lagos State or any other Nigerian State for that matter would have to be declared null and void to the extent that it concerns “interstate trade and commerce” and/or “international trade and commerce”.

The matter of whether the Sale of Goods Law of a state in Nigeria cannot be applied in respect of a sale transaction with connections to another state or indeed another country in light of the allocation of legislative competence in the 1999 Constitution deserves further careful consideration. It is a matter that will be addressed further in a future entry on this blog.

Doctrine of Covering the field and Arbitration in Nigeria

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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.

Arbitration and the Nigerian Constitution

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Arbitration and the Nigerian Constitution

Since 1988 the legislation typically invoked in Nigeria as the framework legislation concerning commercial arbitration has been the federal Arbitration and Conciliation Act 1988 – although many states continue to have legacy arbitration legislation from Nigeria’s colonial era on their statute books. The introduction and enactment of the Lagos State Arbitration Law of 2009, as an alternative to the federal legislation, and that state’s argument that it has the necessary competence under the Nigerian Constitution of 1999 has ignited a serious constitutional debate about legislative competence over arbitration – especially arbitration concerning transactions or disputes with connections to more than one state or beyond Nigeria.

The purpose of this brief essay is to summarise a generally overlooked line of argument, based on a conceptual appreciation of arbitration and extant Nigerian judicial authority, that the 1999 Constitution is consistent with the conclusion that both the federal and states’ legislatures have competence to enact arbitration legislation in respect of transactions or disputes with connections to more than one state or beyond Nigeria.

The matter of constitutional legislative competence over arbitration has been the subject of an ongoing fierce and quite impressively stimulating academic debate. On the other hand, when presented with a recent opportunity to address or, in light of a previous decision, to revisit the issue the Nigerian Court of Appeal chose in the particular circumstances to exercise judicial economy saying that it would “refuse to be dragged down into a snake pit”; Stabilini Visinoni Limited v Mallinson & Partners Limited [2014] 12 NWLR (part 1420) 134, 175.

The constitutional debate centres around whether the current Nigerian Constitution of 1999 clearly determines which legislature, as between the federal legislature and states’ legislatures, has the legislative competence to enact a framework arbitration legislation – especially as it relates to interstate and international commercial activities and disputes arising out of them.

The two legislative lists, the Exclusive and Concurrent Lists, through which the Constitution primarily sets out the respective legislative competences of the federal and states’ legislatures do not expressly mention arbitration. This has led to the question of whether legislative competence over arbitration is addressed in the constitution at all or whether it can be said to have been addressed as part of or incidental to another heading that is expressly mentioned. In the extant debate, the provisions of the 1999 Constitution which are usually invoked as capable of being treated as providing for legislative competence over arbitration are contained in items 62, 62(a) and 68 of the 1999 Constitution as set out below for ease of reference:

62

“Trade and commerce, and in particular –

(a) trade and commerce between Nigeria and other countries … and trade and commerce between the states”

 68

“Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”

Naturally, viewpoints and opinions as to whether these provisions cover the question of legislative competence over arbitration are polarised. The prevalent and most common interpretation and invocation of the provisions in relation to legislative competence over arbitration holds that in light of item 68, arbitration is incidental or supplementary to trade and commerce mentioned in item 62. Accordingly, the argument goes on, the federal legislature has exclusive competence in respect of arbitration concerning international and interstate commerce (the latter being sometimes confusingly referred to as “inter-state arbitration”). Further, according to this line of argument, states’ legislatures would have legislative competence to enact arbitration legislation in respect of purely “intra-state arbitration” (i.e. an arbitration with connections solely to the concerned state) – as this would be a residual matter which, not being addressed in the constitution, falls within the legislative competence of the states.

On the other hand, it has been argued quite forcefully to the contrary that the provisions of items 62 and 68 of the Exclusive List of the 1999 Constitution cannot be invoked to determine legislative competence over arbitration in that they do not expressly or clearly address the matter. It is thus contended under this line of argument that the federal legislature does not even have legislative competence over arbitration at all; that as arbitration is not mentioned in the 1999 Constitution, it is entirely a residual matter left for the legislative competence of states’ legislatures to the exclusion of the federal legislature.

 At this point it is important to make the clarification that, under each of the lines of argument summarised so far, it is accepted that legislative competence to implement Nigeria’s international obligations concerning arbitration lies with the federal legislature. This is for example and in particular in relation to Nigeria’s commitments in respect of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It is also not in issue that the federal legislature has competence to enact arbitration legislation for the Federal Capital Territory or that states’ legislatures have competence to enact arbitration legislation concerning transactions and disputes with connections solely to the concerned state.

As things stand at present, the position of the courts in relation to the ongoing constitutional debate about legislative competence over arbitration is not entirely clear. In Stabilini, the Court of Appeal seemed to implicitly favour a middle course. Whilst the court decided the matter before it on the basis that the parties’ actions and the circumstances of the particular case dictated that the extant federal Arbitration and Conciliation Act 1988 should be applied, the court seemed to recognise that it could be open to parties to arbitration (in Lagos) to choose to invoke the Lagos State Law instead. The decision in Stabilini sits very uneasily with an older decision of the same Court of Appeal (albeit a different judicial division) in Compagnie Generale de Geophysique v Dr Jackson D Etuk [2004] 1 NWLR (part 853) 20. In the older case, the Court of Appeal held that by the Arbitration and Conciliation Act of 1988 the federal legislature has “covered the whole field of arbitration” and that ‘inconsistent’ provisions of state legislation on arbitration are null and void.

The doctrine of “covering the field” invoked by the court in the Etuk case also has some support in the academic literature. However, if the decision in Etuk and the “covering the field approach” were correct, the Court of Appeal in Stabilini could simply have held that the Lagos State Law of 2009 is null and void to the extent of inconsistency with the 1988 federal legislation. The Stabilini court did no such thing! Rather the court in fact commended the Lagos State legislation for making it possible for parties to arbitration within Lagos to choose either that law itself or another law – including of course the 1988 federal legislation. The court said this approach “makes sense because arbitration is a subject area that can be said to be ‘without borders’”.

In a recent contribution to the ongoing debate ((2016) 19(1) International Arbitration Law Review), it has been demonstrated that the “covering the field” approach is entirely inappropriate in the context of legislative competence over arbitration in Nigeria. More, specifically it was also demonstrated that the invocation of the doctrine by the Court of Appeal in Etuk did not even comply with the parameters for the invocation of the doctrine as laid down by the Supreme Court in cases such as, among others, Attorney-General of Ogun State v Attorney-General of the Federation (1982) 1–2 SC 13. More significantly the contribution demonstrated, in terms summarised below, that extant Supreme Court authority on the interpretation of the phrase “trade and commerce” in the equivalent exclusive legislative list of Nigeria’s previous 1979 Constitution and other related provisions as well as general doctrine support the conclusion that both the federal and state legislatures have competence to enact arbitration legislation concerning inter-state and international transactions.

In the first place, on a purely conceptual level, arbitration is actually part of and encompassed within the phrase “trade and commerce” and it is surprising that the debate has mostly focused on whether arbitration is “incidental” to trade and commerce. Arbitration itself is big business and is widely so regarded; it is not merely a dispute resolution mechanism but indeed a veritable business sector that many countries and cities wish to encourage and develop for revenue generation purposes. Recently, it was announced that the Bahamas planned to become an arbitration centre in “a bid to tap into a possible lucrative business sector for the country.” In similar vein, a commentator recently noted that “London, for example, handles in any given year international arbitrations with a combined value of £40-£50 billion ….” Once arbitration is seen as the big business that it is, apart from being merely a dispute resolution mechanism, it is not altogether difficult to see arbitration as within “trade and commerce” and thus within the legislative competence of the federal legislature to the extent constitutionally provided for.

The approach of regarding arbitration as within the phrase “trade and commerce” in the Nigerian Constitution is consistent with the decision of the Nigerian Supreme Court directly on that phrase in Attorney-General of Ogun State v Aberuagba & Ors, (1985) 1 NWLR (part 3) 395. In Aberuagba, the Supreme Court noted that the mere fact that an item is not specifically included in the Exclusive Legislative List does not automatically mean that the federal government has no legislative power on the matter. It was clear that all the members of the court considered that the phrase “trade and commerce”, as such, has a wide and embracing meaning. Eso JSC, borrowing from the American Supreme Court, observed that to restrict the word “commerce” merely to buying and selling would be to “restrict a general term, applicable to many objects, to one of its significations.”

In light of the conceptual consideration of arbitration as a business sector in its own right as well as the embracing approach to the interpretation of “trade and commerce” by the Supreme Court, it is entirely appropriate to conclude that arbitration is encompassed within the phrase “trade and commerce” in item 62 of the exclusive legislative list of the 1999 Constitution. It follows at the least that the federal legislature has legislative competence over arbitration at least as it concerns interstate or international trade and commerce.

As far as states’ legislatures are concerned, once again both the Aberuagba case and general doctrine provide insights consistent with the conclusion that states’ legislatures also have legislative competence over arbitration concerning interstate or international transaction disputes. Even whilst holding that the federal legislature has exclusive competence in respect of international and interstate trade and commerce, the Aberuagba case acknowledged that the federal legislature did not have completely exclusive power over trade and commerce and that state and even local governments “have their respective shares to control trade and commerce.” Further, the court also held, in light of item H paras 18 and 19 of the Concurrent List of the 1979 Constitution, that  a state legislature has competence to enact laws concerning trade and commerce within its borders; and that a state legislature has competence to enact laws for the industrial and commercial development of the state.

In light of the immediately foregoing, it would follow that to the extent that a state’s law on arbitration concerns trade and commerce within its borders, and/or has as one of its objectives the industrial and commercial development of the state, such a law would ordinarily be within the constitutional legislative competence of the state. On the other hand if such a state law were to also concern matters of interstate or international trade and commerce the question would still arise if this is not straying into an area of exclusive competence of the federal legislature. To address this particular difficulty, some supporters of the Lagos Law have invoked the common law doctrine of “pith and substance” (particularly associated with Canada).

Incidentally, a criticism of the Lagos invocation of the doctrine of pith and substance is that the approach did not clearly establish the state’s constitutional legislative competence over arbitration in the first place. As it happens, that criticism has been met in this essay and in the more detailed journal article in tracing a state’s power to enact arbitration legislation to its powers in respect of trade and commerce and for the industrial and commercial development of the state. Nevertheless, there is even so a need to address the matter of potential straying into an area of federal legislative competence. In this respect an extension of the pith and substance argument, by considering and invoking a further principle called “the concurrency principle” (also particularly associated with Canada), together with constitutional interpretation principles laid down by the Nigerian Supreme Court, as well as the private nature of and party autonomy principles underlying arbitration,  provide a sound doctrinal basis for accepting that both the Nigerian federal and states’ legislatures can have coexisting legislative competences over arbitration – even in relation to interstate and international disputes.

The concurrency principle is to the effect that where constitutional powers of the federal and state authorities overlap, the features of a law passed by one of them relating to its area of competence may be as important as those which touch upon the other’s areas of competence. In such case, it would not be possible to allocate legislative competence exclusively to either government. In other words, each of the legislatures concerned would be within its constitutional authority to enact such legislation. In respect of arbitration legislation in particular, this should not really pose a problem in a federal structure since separate federal and state legislation both extending to interstate commerce arbitration and international arbitration can coexist without conflict – even if they contain provisions differing in particular respects. As the Supreme Court has acknowledged, the mere existence of differing provisions does not alone ipso facto create inconsistency; see Attorney-General of Ogun State v Attorney-General of the Federation, especially per Fatayi-Williams CJN and Idigbe JSC.

In relation to constitution interpretation principles, the Supreme Court reiterated in Aberuagba that the fundamental principle is that such interpretation as would serve the interest of the Constitution and would best carry out its objectives and purpose should be preferred and that relevant provisions must be read together, not disjointly. On the private nature of arbitration and the principle of party autonomy, it is widely accepted that the parties should have the freedom to determine the law applicable to their arbitration not only in terms of substantive law but also in respect of the overarching lex arbitri. In that respect an approach which widens and enhances such choice is to be preferred to an approach which restricts choice. In the Nigerian context, the approach which enhances choice is that which allows a federal arbitration regime to exist side by side with state regimes, leaving informed parties with the ability to select the most suitable for their purposes. This much seemed to be acknowledged by the Court of Appeal in Stabilini and was commended as “making sense”. It is also the approach followed by the court of first instance in Etuk and, it is submitted, a far superior approach to the “covering the field” approach later invoked by the Court of Appeal in the same case.

As proposals for new arbitration legislation are still going through parliamentary processes, it is considered that a future federal arbitration legislation should not repeal or jeopardise state arbitration legislation. Rather, it should follow the approach of the Lagos State legislation which was commended by the Court of Appeal in providing that parties to arbitration arising out of an interstate or international transaction have the choice to select as between the federal legislation and an appropriate state arbitration legislation. It is submitted that this is the approach most suitable for advancing the causes of attracting trade and investment to Nigeria generally, of attracting arbitration business to Nigeria and specific Nigerian states, and for advancing the long pursued goal of presenting Nigeria as an arbitration friendly jurisdiction and viable arbitration centre.