Download This PaperForced Arbitrations: Rethinking Perspectives in Nigeria
THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW March 2020 Vol.11 No.1
10 Pages Posted: 7 May 2020
Date Written: March 10, 2020
Abstract
Although forced arbitration, has been described as a paradox since it robs arbitration of its essence – voluntariness, it has strangely gained prominence in the world of adhesive contracts. This is in spite of arguments, that it is exploitative as the weaker party often lacks either the opportunity or knowledge to assess the burdensome legalese contained in the such contracts. The Courts in the American, French and English jurisdictions have also often rejected these arguments, noting that the agreements are to be enforced as written with the exception that the court will refuse to enforce such clauses if there is an existing legislative mechanism that allows the aggrieved party to seek redress in the courts. Although there exists no specific case law on the forced arbitration in Nigeria, the general principle of contract law that a party cannot raise a defence that he was unaware of the contents of an agreement where such party assented to the same by execution may be applicable – an agreement to arbitrate disputes, is after all in itself a contract. However, there must be a definitive stance taken on forced arbitrations by the laws in Nigeria, especially for the sake of parties with unequal bargaining power, in order to, among other things, safeguard their constitutional rights. Pending direct legislation on the point, Nigerian courts by virtue of the “sufficient reason” umbrella under section 5(2)b of the Arbitration and Conciliation Act, 1988, can refuse to compel arbitration. Nevertheless, direct legislation prohibiting unfair arbitration agreements is required, especially in respect of consumer’s rights.
Keywords: Arbitration, Forced arbitration, contract, arbitration agreement
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