What You Need To Know On Arbitators’ Right Of Lien.
By Mujahid Muhammad Musa (Certified ADR Registrars), Member Institute of ADR Registrars (MIAR).
Thanks to the new ADR regime! The Arbitration and Mediation Act, 2023 (herein refered as) AMA has taken the Nigerian Arbitration regime into a global sphere. The concept of Arbitrators lien which is neither incorporated into the London Court of International Arbitration Center (LCIAC) rules, neither the Singapore International Arbitration Center (SIAC) is now incorporated into the new AMA and which is much more in line with the Hong Kong International Arbitration Center (HKIAC) Rules 2018.
In contemplation of the law, an arbitral award is SOMEWHAT regarded as a property. An Arbitral Tribunal or an Arbitral Institution has a right of lien on an award on some conditions:-
When parties failed to pay fees and, or, cost of an arbitrator, the arbitrator MAY refuse to deliver the award to the parties (if) the cost and fees have been fixed before the default of the parties.
An Arbitral Tribunal or Institution will lose the right of lien if the cost and fees have not been fixed and:-
The party wishing to obtain the award (may) upon notice to the other party, the Tribunal or the Arbitral Institution may approach the court and the court may order the delivery of the award upon payment (even of lesser amount) as the court may deem fit.
Where, however, the amount has been fixed, no application can be made to court for the order of the delivery of the award.
So also, no application can be made to court to set aside an award unless the cost and fees of an arbitrator has been settled (unless) otherwise agreed by the the parties; arbitrator and the parties.
Similarly, where in the Dispute Resolution Clause, the parties have agreed to submit any appeal (as it relates to payment of fees and cost) to another person or body, no application can be made unless the processes have been exhausted.
In case of an unfixed amount, appeal from the decision of the trial court is not appeal as of right; the leave of the court must be sought. Yes, always seek the leave of courts.
Incorporation of the right of lien under the new AMA, 2023 has taken our arbitration regime to international standard and much more in line with SCHEDULE 3 of the Hong Kong International Arbitration Center (HKIAC Rules 2018).
SO I ALWAYS RECOMMEND THAT a tribunal or arbitral institution should always fix an arbitral fees and cost so that they can be able to exercise their rights in accordance with the provisions of the Act and alsoo to elude any unpleasant judicial outcome.
About the Author
Mujahid Muhammad Musa (Certified ADR Registrars), Member Institute of ADR Registrars (MIAR). You can reach out to him through: mujahidmuhammadmusa@gmail.com
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