Arbitrators’ Fees: Securing Payment Through a Navigation Between Statutory Provisions and the Common Law in Nigeria

Abstract

The arbitrator has a right of lien on the award at common law. The English Arbitration Act 1996 incorporates this right. Nigeria’s Arbitration and Conciliation Act 1988 (ACA) was, however, modelled after the UNCITRAL Model Arbitration Law. Thus, unlike its English counterpart it had no provision for an arbitrator’s exercise of lien on the award. A lien is, however, an effective and practical means of securing the arbitrator’s fees, especially as parties may be disincentivised from following through with the arbitration process on account of being required to provide advance funding adequate to settle the arbitrator’s entire fees. This article critically examines the ACA, considering the school of thought that its section 26(4) implicitly repealed the arbitrator’s common law right of lien on the award, alongside section 54 of Nigeria’s Arbitration and Mediation Act (AMA) 2023 now expressly providing for the arbitrator’s right to lien on the award. Based on a comparative analysis of statutory provisions and the common law, a core argument is that the arbitrator’s common law right to lien on the award as security for fees remains valid.