AN APPRAISAL OF RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS BY THE INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID) IN NIGERIA

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ABSTRACT


Nigeria is in a continuous quest to attract foreign direct investment (FDI) in order to support
and sustain a decent economic growth. These foreign investors being invited are as much
interested in the methods available for dispute resolution as they are in every available
guarantee on their investments. This dissertation appraises the recognition and enforcement
of the International Centre for the Settlement of Investment Disputes (ICSID) Arbitral
Awards in Nigeria. The dissertation has the ultimate aim of proposing ways through which
Nigeria can re-affirm its commitment to ICSID, as well as foreign investors. The research
adopts doctrinal methodology depending on both local and foreign literature on ICSID
jurisprudence. The importance of recognition and enforcement comes from the fact that
arbitration is considered to be of no value if its award is not enforceable. Bearing this in
mind, the work argues that the more recognition and enforcement of arbitral awards are
observed with minimal procedural delay, the more the confidence of parties‘ increases. The
dissertation examines the Centre from inception, to Nigeria‘s accession to the ICSID
Convention, and the extent of commitment demonstrated so far. The research observed that
arbitration under the ICSID is bedevilled by certain controversies resulting from conflicts of
interest between the developed and the developing states as evidenced by the denunciation of
the ICSID Convention by Bolivia, Ecuador and Venezuela. The analysis revealed the little
consequences this has on the commitments of other states to the Convention. Disregarding
these issues may be ultimately fatal to the future of the Centre and the commitment of other
members, particularly from developing countries. Therefore, the need to embark on specific
structural, procedural and functional reforms to give the developing nations more roles to
play in running the centre is in emphasis. The dissertation revealed that the review
mechanism of the Centre is inadequate, as annulment does not amount to appeal, thereby
making it impossible to correct functional errors made by the tribunals. Leading to discontent
and leaving the aggrieved parties with limited options; in the end lead to denunciation.
Hence, there is the need to develop a system of appeal in order for parties to have recourse to
a review mechanism in the light of the inconsistent decisions rendered by ICSID Tribunal. As
the work further examines, arbitration under the ICSID is very expensive and complex.
Parties are burdened with tribunal costs, professional and counsel fees, transportation, and so
many other unforeseen costs. This is why the ICSID Schedule of Fees has to be reviewed to
make tribunal charges proportionate to the amount involved in the claim. ICSID tribunals can
also take advantage of the virtual world in filing of cases and exchange of pleadings. The
work also bares a fundamental problem, that is, the inability of Nigeria to make rules of
enforcement as prescribed by section 2 of ICSID (Enforcement of Awards) in order to give
effect to the provisions of the Act. Nigeria must re-affirm its commitment to ICSID and the
international investor-community, Nigeria must therefore, endeavour to make rules for the
enforcement of ICSID award pursuant to section 2 of ICSID (Enforcement of Awards) Act.

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