Section 91 Arbitration and Mediation Act

Section 91 Arbitration and Mediation Act 2023 is about Interpretation. It is under Part III (Miscellaneous Provisions) of the Act.

(1) In this Act-
“arbitrator” means a person to whom a reference is made for determination and includes substitute or emergency arbitrator;
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
“arbitration” means a commercial arbitration whether or not administered by a permanent arbitral institution;
“arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not;

“commercial” includes matters arising from all relationships of a commercial nature whether contractual or not, such as any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction works, consulting,
engineering, licensing, investment, financing, banking, insurance, exploitation agreement or concession, joint venture and other forms of industrial or business co-operation, carriage of goods or passengers by air, sea, rail or road;

“Court” means the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court, unless the parties otherwise agree and except for the purpose of appointment of an arbitrator (including an emergency arbitrator) “Court” means the Chief Judge of any of the Courts
referred to in this provision, sitting as a Judge in Chambers;

“death” includes, in the case of a non-natural person, dissolution or other extinction by process of law;

“electronic communication” means any communication that the parties make by means of data messages, that is, any information generated, sent, received or stored by electronic, magnetic, optical or similar means, including electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;

“judge” means a judge of the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court;

“mediator” means a third-party neutral and includes a sole mediator or two or more mediators;

“mediation” means a process, whether referred to by the expression mediation, conciliation or an expression of similar import, where parties request a third person (“the mediator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship but the mediator does not have the authority to impose upon the
parties a solution to the dispute;

“mediation provider” means any public or private entity (including court-related mediation schemes) which manages or administers a mediation process conducted by a mediator;

“party” means a party to the arbitration agreement or to mediation or any person claiming through or under him and “parties” shall be construed accordingly;

“preliminary order” means an order or a direction of the arbitral tribunal that accompanies or precedes a requested interim measure to ensure that the grant of that measure is not rendered nugatory by any act of the party;

“Third-Party Funder” means any natural or legal person who is not a party to the dispute but who enters into an agreement either with a disputing party, an affiliate of that party, or a law firm representing that party, in order to finance part or all of the cost of the proceedings, either individually or as part of a selected range of cases, and the financing is provided either through a donation or grant or in return
for reimbursement dependent on the outcome of the dispute or in return for a premium payment; and

“Third-Party Funding Agreement” means a contract between the Third-Party Funder and a disputing party, an affiliate of that party, or a law firm representing that party, in order to finance part or all of the cost of the proceedings, either individually or as part of a selected range of cases, and the financing is provided either through a donation or grant or in return for reimbursement dependent on the outcome of the dispute or in return for a premium payment.

(2) Where a provision of this Act, other than sections 13 and 81, leaves the parties free to determine a certain issue, the freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.

(3) Where a provision of this Act –
(a) refers to the fact that parties have agreed or that they may agree, or
(b) in any other way refers to an agreement of the parties, that agreement includes any arbitration rules referred to in the agreement.

(4) Where a provision of this Act, other than sections 41(1) (a) or 48 (2) (a) refers to a claim, the claim includes a counterclaim, and where it refers to a defence, the defence includes a defence to the counterclaim.

(5) An arbitration is international if-
(a) the parties to an arbitration agreement have their places of business in different Countries at the time of the conclusion of that agreement;

(b) the seat of the arbitration, if determined under the arbitration agreement or any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected is situated outside the State in which the parties have their places of business; or
(c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one State.

(6) An arbitration is interstate if the –
(a) parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different Federating States within the Federal Republic of Nigeria;
(b) Federating State in which the seat of arbitration is situated is different from the Federating State or States in which the parties have their places of business;

(c) place where a substantial part of the obligations of the commercial relationship is to be performed or the place where the subject matter of the dispute is most closely connected is situated in a Federating State, which is different from the Federating State or States in which the parties have their places of business; or
(d) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one Federating State within the Federal Republic of Nigeria.

(7) For the purposes of subsections (5) and (6)-
(a) if a party has more than one place of business, the place of business shall be that which has the closest relationship to the arbitration agreement; and
(b) if a party does not have a place of business, reference shall be made to his or her habitual residence.

(8) A mediation is “international” if the –
(a) parties to an agreement to mediate have, at the time of the conclusion of that agreement, their places of business in different Countries; or
(b) State in which the parties have their places of business is different from either the State in which –
(i) a substantial part of the obligations of the commercial relationship is to be performed, or
(ii) the subject matter of the dispute is most closely connected.

(9) For the purposes of subsection (8) if-
(a) a party has more than one place of business, the place of business is that which has the closest relationship to the agreement to mediate;
(b) a party does not have a place of business, reference is to be made to the party’s habitual residence; or
(c) the parties agree that the mediation is international.

(10) In the interpretation of this Act, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith and the Court may also have recourse to the travaux preparatoires of the UNCITRAL Model Law on International Commercial Arbitration and Model Law on International Commercial Mediation.

(11) Questions concerning matters governed by this Act which are not expressly settled in it are to be settled in conformity with the general principles on which this Act is based.