"D’Ordre Public" Laws and Public Policy as Defenses to Arbitral Awards: Conflict Between the Public Procurement Act and Arbitration and Mediation Act

Abstract

In combating corruption and lack of accountability in procurement, contract awards, public finance and administration, Nigeria had, hitherto, adopted an ineffective ?Tender Board‘ approach characterised by detection, apprehension, prosecution and punishment of offenders. However, since 2007, Nigeria has adopted reformative rules that are founded on ?step-by-step vetting and tendering, quotations, proposals, dialogues, negotiations, procurement and agreement, aimed at preventing corruption and lack of accountability. On 4th June 2007, Nigeria enacted a new legislation on public procurement and contract award procedures—the Public Procurement Act of 2007 (PPA 2007). Similarly, arbitration has gradually been accepted as an alternative mode of settling business and commercial disputes in Nigeria, and it is instructive that the PPA requires that all procurement contracts shall contain provisions for arbitral proceedings as the primary forms of dispute resolution. However, the application of the Arbitration and Mediation Act of 2023 (Arbitration Act 2023) to disputes involving an arbitral award to enforce a procurement or contract award which violates the Nigerian public procumbent laws is the main focus of this Paper. The Paper examines the application of "D’ordre Public" laws and public policy rules as defenses against enforcing arbitral awards which violate PPA 2007, by reviewing the conflict between the provisions of PPA 2007 viz-a-viz those under the Arbitration Act (2023) in Nigeria. Also, the Paper carries out a comparative review of the 2021 Judgment of the Judicial Committee of the Privy Council in Mauritius—Betamax v. STC, [2021] UKPC 14. Therefore, using all applicable statutes and decisions of the Nigeria superior courts, this Paper examines the history, philosophy and global perspectives regarding arbitration and public procurement laws on disputes. The Paper submits that while arbitration and mediation, as alternative methods of dispute resolution, should be sustained towards eradicating elongated and expensive litigation, the underlying public interest and policy aimed at combating corruption, maladministration and lack of accountability must be entrenched over and above arbitral awards. The Paper also recommends that it accords with the spirit of law, business and justice to allow mediation and/or arbitration clauses involving the PPA 2007.