Abstract
Well known to construction industry contracts are disputes such as unresolved claims and are inimical to achieving project objectives. This has attracted provision of dispute resolution clause in contractual agreements such as Arbitration clause aimed at resolving any emerging dispute. However, the issue of challenge of jurisdiction (powers) of the arbitrator(s) remains a reoccurring determination in Nigeria courts. Considering arbitral agreements/ clause in domestic perspectives, the paper reviewed provisions of Nigerian Arbitration and Conciliation Act, (ACA) 1988, some other relevant laws and decided court cases as related to determinants of arbitrator(s’) jurisdiction. It discovered that interplay of several factors including principle of parties’ autonomy; project specific characteristics, complexity of construction etc are essential determinants. The paper however concluded that it may be complex to enlist determinants for jurisdictional powers of arbitral panel but recommended that basic requirements should not be far from those provided for by the national arbitration law and the characteristic of construction project contract and environment, while contracting parties must have in view court decisions on construction industry market in drafting arbitral agreements. Key words: Arbitral Proceedings, Construction Contract, Jurisdiction Nigeria.
Highlights
The dynamic and uniqueness of typical construction industry projects is their being conditionally contractual, complex and lengthy which makes them vulnerable to risk variables and disputes inimical to the project objectives (Ojo and Akinradewo, 2011)
As attractive as arbitration might be to investors in the emerging Nigeria construction and infrastructure market, issue of disputes which seems to characterize the construction industry is very significant to consider
The complexity is orchestrated by determinant factors ranging from party autonomy, divergent provisions of arbitration agreement, Issues conferred by the parties, matters conferred by statutes and the roles of national and international laws, rules and conventions including the various approaches of national courts across common law jurisdictions
Summary
The dynamic and uniqueness of typical construction industry projects is their being conditionally contractual, complex and lengthy which makes them vulnerable to risk variables and disputes inimical to the project objectives (Ojo and Akinradewo, 2011). The agreement elucidates on requirements and essentialities on arbitration, in terms of anticipated dispute and conferred power on Arbitrator, mandatory procedures and duration prior arbitration, seat and language of proceeding, the governing law, number and appointing body of Arbitrator and limitations of powers of award etc capable to prognosis any dispute. A large number of parties adopt it without any amendment This clause implicitly, as often adopted and agreed by parties, confers Issues on the Arbitrator (details the natures and characteristics of dispute) admissible for arbitration; mandatory procedures and the qualification, quality, number and appointing authority of the arbitrator; the governing law regardless of seat of Arbitration and limit of powers of award. This might be subsumed during pretrial of the arbitral proceeding
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