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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Where does Islamic arbitration fit into the judicially recognised ingredients of customary arbitration in the Nigerian jurisprudence?
Author:Ladapo, Oluwafemi A.ISNI
Year:2008
Periodical:African Journal on Conflict Resolution
Volume:8
Issue:2
Pages:103-129
Language:English
Geographic term:Nigeria
Subjects:arbitration
customary law
Islamic law
jurisprudence
Link:https://www.accord.org.za/ajcr-issues/%ef%bf%bcwhere-does-islamic-arbitration-fit-into-the-judicially-recognised-ingredients-of-customary-arbitration-in-the-nigerian-jurisprudence/
Abstract:This article examines customary arbitration as a valid mechanism for dispute resolution in the Nigerian courts, from its initial acceptance, to the denial of its existence, and to the reconfirmation of its subsistence in Nigerian jurisprudence. Particular emphasis is placed on the juxtaposition of the judicially recognized ingredients of customary arbitration vis--vis the principles of 'Tahkim', Islamic customary arbitration as interpreted by the Maliki School, which holds sway in Nigeria. Islamic Shariah law, which was part of Nigerian jurisprudence before the introduction of English common law and statutes, has been declared by Nigerian courts as one of the sources of Nigeria's customary law. A review of judicial decisions spanning a period from the preindependence era to the beginning of the 21st century identifies seven ingredients of customary arbitration: the voluntary submission by parties to arbitration; submission to bodies or persons recognized as having judicial authority under the custom of the parties; agreement by parties beforehand to be bound by the decision of the arbitral tribunal; conduct of the arbitral proceedings in accordance with the custom of the parties; non-withdrawal of any party before the publication of the award by the arbitral tribunal; publication of the award; and acceptance of the arbitral award by the parties. Of the seven judicially recognized ingredients of customary arbitration, only three are in tandem with the practices and procedures of 'Tahkim'. However, since the term 'ingredients' as universally applicable to the subject matter of customary arbitration is in fact a misnomer with respect to the individuality and distinctiveness of the several customary law traditions under which arbitration is conducted, the courts ought to formulate a set of universal validity tests with the aim of securing equitable administration of justice through the mechanism of customary arbitration. Bibliogr., notes, ref., sum. [ASC Leiden abstract]
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