Jurisdiction and admissibility: a case study

Abstract

Abstract Arbitrators cannot decide cases if they do not have jurisdiction. For this reason, a challenge to jurisdiction may prompt judicial intervention. Most national courts, however, limit their intervention to question of jurisdiction and do not interfere in the arbitral process if the objection is merely one of admissibility. The distinction between jurisdiction and admissibility is a valuable tool for differentiating when judicial intervention is appropriate and when it is not. The problem is that some national courts generally conflate the concept of jurisdiction, which may properly be the basis for such intervention, with admissibility issues, which should be referred to the tribunal to decide. As a case study, this article focuses on the conflation by Nigerian courts leading to an overly expansive allocation of authority to courts to make initial rulings, which in turn is abused by parties and undermines the efficiency of arbitration in Nigeria. To address the problem, this article proposes that Nigerian courts adopt the distinction between jurisdictional and admissibility objections in international arbitration. This distinction, while not perfect, can promote efficacy in arbitration seated in Nigeria. Adopting the distinction between admissibility and jurisdiction will enable Nigerian courts to exercise greater restraint in cases that do not go to the root of courts’ authority and promote outcomes that are more coherent and more consistent with their obligations under the New York Convention and Model Law.