Nigeria: Is It A Mere Arbitral Procedural Order?

Last Updated: 10 October 2018
Article by Kolawole Mayomi and Busola Bayo-Ojo


Party autonomy and flexibility are one of the bedrocks of international arbitration. With no set rules on how proceedings are conducted, it is left to arbitrators to ensure that a well-organised approach is taken during arbitration proceedings. Procedural orders are one of the tools available to arbitrators to effectively manage proceedings and ensure that parties adhere to the agreed timeline. Procedural orders address issues such as the time table for pleadings, types of documents to be tendered and schedule of hearings, if any. Procedural orders are not designed to deal with substantive issues. However, they may become appealable when they become more than administrative tools. This article highlights the function of procedural orders and situations that may give rise to avoidable complexity.

  1. Nature and Usefulness of Procedural Orders

    Ordinarily, a procedural order does not address issues of fact or law. It is an administrative decision made by the arbitral tribunal which can be amended at any point during the proceedings. This extensive right to decide on matters of administration arises from the lex arbitri2 and the understanding reached between the parties.3 Procedural orders not only save time and costs but spur arbitrators to be as efficient as possible.

    The arbitration laws of most countries leave the conduct of proceedings to the discretion of the tribunal as long as parties receive fair treatment. For example, Section 14 of the Nigerian Arbitration and Conciliation Act 1988 states that in any arbitral proceedings, the arbitral tribunal shall ensure that the parties are accorded equal treatment and that each party is given full opportunity of presenting his case.4 A detailed analysis of the definition of full opportunity is beyond the scope of this article. Nevertheless, this provision can be a menace for the arbitral tribunal who have to balance both time and costs and ensuring that parties can exercise their legitimate procedural rights. Occasionally, parties may exploit this due process right by making different demands which delay the arbitration. Although there is a timetable, this is often not strictly followed in reality as parties may make requests such as an extension of time to file their pleadings, submission of additional pleadings after the deadline, submission of an entirely different claim after pleadings have closed or even requests to change the oral hearing date despite all the planning that would have gone on at the preliminary meetings to ensure all parties are available.
  2. Challenging Procedural Orders

    As the making of procedural orders to accede to parties' requests is at the discretion of the tribunal, arbitrators may fear that not granting certain administrative requests may infringe on a party's due process rights and this may render an award unenforceable. Nigeria is a signatory to the New York Convention5 and Article V of the convention on setting aside is incorporated into section 52 of the Arbitration and Conciliation Act 1988. Under section 52(2) (a) (iii), an award may be refused recognition and enforcement if a party was otherwise not able to present his case. An arbitrator's duty is to issue an enforceable award and the need to balance party's procedural requests with time, costs and a streamlined arbitration is somewhat difficult. However, looking at a spectrum of cases across various jurisdictions, courts seldom get involved when it comes to procedural decisions made by arbitrators.6

    Still, there are a handful of cases that suggest that procedural orders may be subject to setting aside proceedings. Usually, procedural orders are not subject to challenges except they reflect a decision on the tribunal's mandate. Furthermore, they are as mentioned earlier, managerial decisions formulated by the tribunal and do not usually indicate an agreement between the parties. The German case of Flex-n-Gate v GEA7 is a cautionary tale in this regard. In this case, at the commencement of the quantum stage, the parties were invited to make comments on the draft procedural order sent by the tribunal. The final version reflected the parties' input. Under the procedural order, the parties were to make known the documents they had given to their own experts. The tribunal's expert was also to carry out its calculations, independent of those made by the parties' experts. The preamble of the procedural order expressly stated that it was made with the agreement of the parties. The claimant neither complied with all the document disclosures nor did the tribunal's expert carry out its independent calculations as stipulated in the procedural order. Nevertheless, an award was rendered in favour of the claimant.

    The award was set aside by the Frankfurt Court of Appeals and a further application for review to the Federal Supreme Court of Germany was rejected on procedural grounds thereby leaving the Court of Appeal judgment as final. The reasoning of the Court of Appeal was based on party autonomy. The procedural order had been discussed and agreed with the parties and it now became a binding contract which the tribunal could no longer, at its discretion, deviate from.8 The Flex-n-Gate decision serves as a potential warning to tribunals when drafting hybrid procedural orders i.e. with the parties' agreement and discretion to expressly reserve their right to alter or deviate from the order.

    In the case of URETEK Worldwide Oy v Doan Technology Pty Ltd 9, the Svea Court of Appeal eschewed the major reason the claimant argued for the award to be set aside. One of the arguments put forward by the claimant was that the contents of a telephone conference to discuss procedural issues were subsequently reflected in the procedural order. Therefore, the tribunal could not amend the procedural order at their discretion as it was a determination of the mandate of the arbitral tribunal. The tribunal had allowed the submission of evidence after the cut-off date contained in the procedural order. The Svea Court of Appeal held that this was not an excessive mandate or procedural error but was simply an administrative decision which was well within the Swedish Arbitration Act.

    In the United Kingdom, the courts tend to keep their intrusion in the arbitral process to a minimum and the courts have refused to expand challenges of arbitral procedural orders. In the case of Enterprise Insurance Company Plc v U-Drive Solutions (Gibraltar) Limited10, the court declined jurisdiction on the challenge to a procedural order. The court held that a procedural order, even if it has features of an award such as detailed reasoning, cannot be regarded as an award for the purposes of sections 68 and 69 of the English Arbitration Act 1996.11 An award which is a final determination of a particular order or claim should be distinguished from an order which addresses the procedural mechanisms to be adopted. It is worthy of note that in this case, even though both parties consented to the challenge, the courts still declined jurisdiction. This case is clear indication that English courts will not intervene in situations that do not specifically fall under the English Arbitration Act.
  3. Non-compliance with Procedural Orders

    Generally, arbitrators tend to consider parties' conduct when making order as to costs. This conduct includes the party's compliance with the terms of procedural orders. Furthermore, parties who delay proceedings and thereby significantly impact the costs of the arbitration by making unreasonable procedural requests such as filing of additional documents long after pleadings have closed can be implicitly sanctioned when an order as to costs is made. 12

    Arbitrators are not obligated to extend time limits for the filing of submissions. A party which does not comply with the procedural time table may lose the opportunity to fully present its case. The earlier stated section 14 of the Nigerian Arbitration and Conciliation Act which is derived from Article 18 of the 1985 UNCITRAL Model Law states that parties shall be given full opportunity to present their case. However, this 'full opportunity' has been interpreted as 'reasonable opportunity' in various jurisdictions and courts will not interfere based on a party's failure to comply with procedural orders.13 A right to be heard is usually balanced against speed and efficiency of the arbitral process.

    Peremptory orders are also a tool which can be utilised by the tribunal to ensure compliance with procedural orders. Although the Nigerian Arbitration and Conciliation Act makes no provision for peremptory orders, the power to make such orders can be found in section 41 of the Lagos State Arbitration Law 2009.14 A peremptory order is made against a recalcitrant party who cannot show good cause for failure to comply with existing orders. The tribunal will usually set a new time limit for compliance. Under the Lagos State Arbitration Law, the tribunal may (i) direct that the party in default shall not be entitled to rely upon any allegation or material which was the subject matter of the order, (ii) draw such adverse inferences from the act of non-compliance as the circumstances justify, (iii) proceed to an award on the basis of such materials as have been properly provided to it or (iv) make such award as it thinks fit as to the payment of costs of the arbitration by the party in default having regard to the non-compliance.

    Under the English Arbitration Act, in addition to the four options mentioned in the previous paragraph open to the tribunal, the tribunal or a party may also apply to the court for the enforcement of a peremptory order under section 42 of the Act. It is worthy of note that this is a last resort as the court shall not act unless it is satisfied that the applicant has exhausted any available arbitral remedies in respect of failure to comply with the tribunal's order.
  4. Conclusion

    Arbitral tribunals need to ensure they are proactive in making procedural management decisions. They need to stay in charge of the process and ensure that the discretion afforded to them is effectively utilised. However, some caution should be exercised when drafting procedural orders to ensure that such orders do not implicitly address issues of jurisdiction. Where parties have made an input; the tribunal's discretion to amend should be expressly stated. Procedural orders are designed to make arbitrations not only fair but also efficient.


1 Kolawole Mayomi, Partner and Busola Bayo-Ojo, Associate, Dispute Resolution Department, SPA Ajibade & Co., Lagos, Nigeria.

2 The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in the conflict of laws.

3 Rolf Trittman 'When Should Arbitrators Issue Interim or Partial Awards and or Procedural Orders?' (2003) 20 Journal of International Arbitration 3, 255-265. 

4 This provision is retained in section 30 of the proposed bill for an act to amend the Arbitration and Conciliation Act, CAP A18 2004 and other matters connected thereto.

5 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10th June 1958; entered into force, 7th June 1959. 330 U.N.T.S. 38 (1959).

6 Klaus Peter Berger and J. Ole Jensen "Due process paranoia and the procedural judgment rule: a safe harbour for procedural management decisions by international arbitrators" (2016) 32 Arbitration International 415-435. See Interprods Limited v De La Rue International Limited [2014] EWHC 68 (Comm) and Pacific China Holdings Ltd (In Liquidation) v Grand Pacific Holdings Ltd [2012] 4 HKLRD. 

7 Federal Supreme Court, Germany - File III/ZB/11.

8 Peter Bert "Arbitrator's Nightmare: When Procedural Orders Backfire- Flex-n-Gate v. GEA" Dispute Resolution Germany .

9 [2015] Case No. T.975-15. 

10 [2016] EWHC 1301.

11 The Arbitration Act 1996 (c 23) is an Act of Parliament which regulates arbitration proceedings within the jurisdiction of England, Wales and Northern Ireland.

12 See UNCITRAL Notes on Organizing Arbitral Proceeding © 2016, United Nations <>

13 See Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as "amici curiae", 15th January 2001 Judgment of Case No. 121, Oberlandesgericht, Dresdeb, 6th August 2008. Claimant v. Defendant (2009) XXXIV ICCA Yearbook Commercial Arbitration. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Sofunde Osakwe Ogundipe & Belgore
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sofunde Osakwe Ogundipe & Belgore
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions