Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria

The effectiveness of a country’s justice system can be measured by the efficacy of the mechanisms provided for access to justice. These include national courts and alternative dispute resolution mechanisms (ADR) including commercial arbitration which provides a private avenue for resolving business disputes as a complement to state courts. The principle of party autonomy which enables a reasonable amount of procedural flexibility, and the international enforceability of agreements and awards accounts for the global popularity of arbitration. This procedural flexibility is particularly relevant for international construction and engineering projects where disputes are often technically complex requiring personnel with the requisite skill and expertise to resolve disputes. Nevertheless, the popularity of international commercial arbitration is seemingly circumscribed to certain seats outside Africa despite the region contributing a large percentage of disputes resolved by major international arbitration institutions. Nigeria features as a major African jurisdiction struggling to attract the international arbitration market despite its size and the critical role it plays in regional economic integration. Reasons for this include inefficient formal legal structures comprising of dated legislations, inconsistent judicial attitudes, and negative perceptions about the impartiality of legal systems. As recent surveys suggest more sector-specific arbitration would make international arbitration better suited to resolve construction disputes, this thesis investigates the extent to which a specialist construction arbitration framework can facilitate meaningful access to justice in emerging markets like Nigeria. The thesis proposes an Incremental Development Arbitration Framework that addresses arbitration and other issues that affect arbitration proceedings and parties’ choice of seat. The thesis argues that the establishment of a construction framework in Nigeria should have the twin effect of expanding the parameters of access to justice and promoting Nigeria to the international arbitration market as one with the expertise to resolve construction contract disputes with a positive domino effect on sustainable development. Keywords – Access to Justice, Alternative Dispute Resolution (ADR), Civil Justice, Commercial Arbitration, Construction Arbitration, Economic Integration, Nigeria, Sustainable Development