The Arbitrator's Duty of Disclosure (nigeria)

The arbitrator’s duty of disclosure sits at the foundation of every credible arbitration proceeding in Nigeria. Since the Arbitration and Mediation Act 2023 came into force on 26 May 2023, this obligation has been codified with far greater precision than the old regime ever achieved, imposing a continuing duty on every arbitrator to disclose circumstances likely to give rise to justifiable doubts about their independence or impartiality. At Vantage Attorneys LP, we regularly advise both arbitrators and appointing parties on how to navigate these requirements in practice.

This article provides a practical, Nigeria-specific guide, including the statutory framework, the objective test derived from international jurisprudence, a ready-to-use disclosure checklist, and clear guidance on what to do when confidentiality obligations collide with the duty to disclose.

Legal Framework for the Arbitrator’s Duty of Disclosure in Nigeria

The duty of arbitrator disclosure in Nigeria is now governed by the Arbitration and Mediation Act 2023, which repealed the Arbitration and Conciliation Act, 1988. The new Act provides a unified legal framework for arbitration and mediation in Nigeria, and its disclosure provisions represent one of the most consequential departures from the prior law.

The Statutory Duty

The Act requires that a person who is approached in connection with a possible appointment as arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to his or her independence or impartiality. This disclosure obligation is not a one-off requirement at the point of nomination. The Act expressly frames it as a continuing duty: the arbitrator must disclose such circumstances from the time of appointment and throughout the entire arbitral proceedings, without delay, as soon as any new circumstance comes to light.

This continuing duty language mirrors Article 12 of the UNCITRAL Model Law on International Commercial Arbitration, which Nigeria’s legislature drew upon extensively when drafting the 2023 Act. The practical effect is that an arbitrator cannot treat the initial disclosure statement as a formality to be filed and forgotten. Every new engagement, every new business relationship, every change in circumstance must be assessed against the disclosure threshold for the duration of the proceedings.

How the Act Changed the Prior Law

Under the repealed Arbitration and Conciliation Act, the duty of disclosure existed in principle but lacked the statutory specificity that the 2023 Act now provides. The old law did not expressly codify a continuing obligation, nor did it link the disclosure standard directly to the “justifiable doubts” test with the clarity that the new Act achieves. In my experience, this ambiguity led to inconsistent disclosure practices, some arbitrators provided fulsome declarations, while others disclosed virtually nothing beyond a bare confirmation of availability.

The 2023 Act also introduced schedules that provide additional structure. Annexures to the Arbitration Rules in schedule 1 address the form and content of arbitrator declarations, while the rules also provided codes of conduct, reinforcing that disclosure is both a procedural requirement and an ethical obligation. For parties involved in arbitrations, understanding these formalities at the outset prevents procedural challenges later.

The explanatory memorandum confirms the legislature’s intent: to align Nigeria’s arbitration framework with international best practice and to enhance the country’s attractiveness as a seat for commercial arbitration. Disclosure is central to that objective because parties need confidence that the tribunal is constituted by individuals free from disqualifying bias.

The Legal Standard: Justifiable Doubts and the Objective Test

The threshold for the arbitrator’s duty of disclosure under the Arbitration and Mediation Act 2023 is whether a circumstance is likely to give rise to “justifiable doubts” about the arbitrator’s independence or impartiality. This is an objective test. It does not ask whether the arbitrator personally believes they can act fairly. It asks whether a fair-minded and informed observer, considering all the facts, would conclude that there is a real possibility of bias.

Halliburton v Chubb, The Practical Rule

The leading international articulation of this objective test comes from the UK Supreme Court’s decision in Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48. In that case, the Supreme Court held that an arbitrator’s failure to disclose multiple appointments in related references involving a common party could, viewed through the lens of a fair-minded and informed observer, give rise to justifiable doubts about impartiality. The Court emphasised that the duty to disclose exists precisely to allow parties to assess for themselves whether an arbitrator’s circumstances cross the line, and that disclosure is the mechanism by which transparency and confidence in the process are maintained.

The practical takeaway from Halliburton is straightforward: when in doubt, disclose. The cost of disclosure is minimal, a brief written statement. The cost of non-disclosure can be catastrophic, a challenged arbitrator, a set-aside award, reputational damage, and wasted costs.

In Nigerian practice, I frequently see grey areas arise in situations involving repeat appointments by the same counsel, prior advisory work for a party’s parent company, or shareholdings in entities connected to the dispute. The table below provides a quick-reference framework for applying the objective test to common fact patterns.

What Must Arbitrators Disclose: Scope and Timing

Disclosure in arbitration, when referring to the arbitrator’s own obligations, means a proactive, written declaration of any circumstance that a reasonable person might consider relevant to assessing the arbitrator’s independence and impartiality. This is distinct from party disclosure of documents or evidence. The arbitrator’s disclosure obligation is personal, self-directed, and continuing.

Under the Arbitration and Mediation Act 2023, the categories of disclosable circumstances are broad. They include, but are not limited to:

• Financial interests. Direct or indirect shareholdings, debts, or financial arrangements involving a party or its affiliates.
• Professional relationships. Past or current advisory, consultancy, or employment relationships with a party, its counsel, or related entities.
• Prior appointments. Previous or concurrent appointments by the same party, the same counsel, or in related proceedings.
• Family and personal ties. Close personal relationships with any party, counsel, or witness.
• Institutional connections. Board memberships, trusteeships, or advisory roles with organisations connected to the dispute.
• Public statements. Published opinions, academic positions, or public advocacy on legal issues material to the dispute.
• Pending litigation. Any ongoing litigation involving a party to the arbitration or their affiliates.
• Social and business contacts. Recent social engagements or business dealings that go beyond routine professional courtesy.

When a Disclosure Must Be Made

The timing requirements are clear. First, at the point of nomination, before accepting the appointment. Second, immediately upon discovering any new circumstance during the proceedings. Third, whenever circumstances change (for example, if the arbitrator is offered a new appointment by one of the parties’ counsel in an unrelated matter while the current proceedings are ongoing). There is no grace period. The disclosure obligation is triggered by knowledge, and delay itself can give rise to justifiable doubts.

Practical Phrasing Examples

In my practice, I advise arbitrators to use clear, factual language. A disclosure statement might read: “I was instructed by [Party A’s law firm] to provide an opinion on an unrelated commercial matter in 2022. That engagement concluded in March 2023. I do not consider that this affects my ability to act impartially, but I disclose it for the parties’ consideration.” Another example: “I hold 500 shares in [Company X], the parent company of the Claimant. I acquired these shares through an employee stock plan prior to my departure from the company in 2019.”

Confidentiality Conflicts: When Disclosure Meets Non-Disclosure Obligations

One of the most challenging practical issues facing arbitrators in Nigeria concerns the tension between the duty of disclosure and pre-existing confidentiality obligations. An arbitrator may, for example, have provided confidential legal advice to a connected entity, or may be subject to a non-disclosure agreement arising from a prior appointment. In such cases, the statutory duty to disclose does not automatically override contractual or professional confidentiality, but silence is not an acceptable response either.

In my view, the best approach involves three steps:

• Disclose the existence of the relationship. The arbitrator should state that a prior professional engagement exists with a named or described party, without revealing the substance of any confidential advice.
• Offer to provide further details. The arbitrator should offer to disclose additional information subject to the consent of the relevant parties or pursuant to a protective order agreed by the tribunal.
• Seek waivers where practicable. Before accepting the appointment, the arbitrator should request that any confidentiality-bound party waive the restriction to the extent necessary to enable meaningful disclosure.

Practical Script

A useful formulation is: “I have previously been engaged to advise on a matter involving [general description of the party or entity]. The terms of that engagement include confidentiality restrictions that prevent me from disclosing further details without the consent of the relevant party. I am willing to provide additional information upon obtaining such consent, or subject to any protective measures the parties and tribunal consider appropriate.”

This approach satisfies the transparency objective of the Arbitration and Mediation Act 2023 while respecting contractual obligations. It also creates a documented record that the arbitrator took the disclosure obligation seriously, a factor that tribunals and courts will weigh heavily in any subsequent challenge.

Practical Disclosure Checklist and Sample Disclosure Form

The duties and responsibilities of an arbitrator extend well beyond deciding the merits of a dispute. The disclosure obligation is a core element of the arbitrator’s role, and a methodical approach prevents oversights that can derail proceedings. Below is a 12-point checklist I recommend to arbitrators accepting appointments in Nigeria.

1. Review the names of all parties, their parent companies, subsidiaries, and known affiliates.
2. Check whether you have acted for or against any party or affiliate within the past five years.
3. Identify any current or recent professional relationship with counsel for any party.
4. Assess whether you hold any financial interest, direct or indirect, in any party or affiliate.
5. Consider family and close personal relationships with parties, counsel, and known witnesses.
6. Review your appointment history: have you been appointed by the same party or counsel in other proceedings?
7. Check for concurrent appointments in related arbitrations or matters involving the same facts.
8. Identify any published academic work, articles, or public statements on issues central to the dispute.
9. Consider pending or recent litigation involving any party.
10. Assess institutional connections, board memberships, advisory roles, memberships of small professional associations that overlap with the parties.
11. Document all disclosures in writing, dated and signed, and provide copies to all parties simultaneously.
12. Set a calendar reminder to re-run this checklist at regular intervals throughout the proceedings.

For counsel receiving a disclosure, I recommend the following response protocol: acknowledge the disclosure in writing; assess whether the disclosed circumstance triggers a challenge under the Act; consult with your client before waiving or objecting; and preserve all correspondence in the event that a challenge becomes necessary at a later stage. Understanding how to commence international arbitration proceedings, including tribunal constitution formalities, provides useful procedural context for evaluating disclosures at the appointment stage.

Sample Disclosure Form

Consequences of Non-Disclosure: Challenges, Set-Aside, and Discipline

When an arbitrator fails to discharge the duty of disclosure, the consequences can be severe, for the arbitrator personally and for the integrity of any resulting award. Under the Arbitration and Mediation Act 2023, a party may challenge an arbitrator where circumstances exist that give rise to justifiable doubts as to the arbitrator’s independence or impartiality. Non-disclosure of a material circumstance is itself a factor that strengthens such a challenge, because the failure to disclose, independent of the underlying circumstance, signals to the reasonable observer that something may have been concealed.

If a challenge succeeds, the arbitrator is removed and a replacement is appointed, typically causing significant delay and additional cost. If the non-disclosure is only discovered after the award has been rendered, the affected party may apply to set aside the award. Nigerian courts, consistent with international practice, will assess whether the non-disclosure was of a nature and severity that the award cannot stand. The Halliburton v Chubb decision confirms that not every failure to disclose will result in removal or set-aside, the ultimate question remains whether the undisclosed circumstance, viewed objectively, would lead a fair-minded observer to conclude there was a real possibility of bias.

Beyond formal legal remedies, the reputational and disciplinary consequences for arbitrators should not be underestimated. In a jurisdiction like Nigeria, where the arbitration community is relatively close-knit, a finding of non-disclosure can effectively end an arbitrator’s career. Institutional appointing authorities and counsel maintain internal records of challenges and disclosures, and a pattern of inadequate disclosure will result in fewer appointments. Comparative practice in other jurisdictions, including the approach under Saudi Arabia’s arbitration law, reflects similar disciplinary consequences for arbitrators who fail to meet disclosure standards.

Steps to Take if a Party Suspects Non-Disclosure

• Gather evidence promptly. Compile any documentary evidence of the undisclosed circumstance, corporate records, appointment histories, media reports, professional profiles.
• Act within the prescribed time limit. The Act requires that a challenge be raised promptly once the party becomes aware of the grounds. Delay can be treated as a waiver.
• Raise the challenge formally. Submit a written challenge to the tribunal or the appointing authority, setting out the factual basis and the justifiable doubts test.
• Preserve the right to set aside. If the challenge is unsuccessful at the tribunal level, preserve the right to raise the issue before the court at the enforcement or set-aside stage.

International Standards and Tools: IBA Traffic-Light, LCIA, and UNCITRAL

Nigeria’s disclosure framework under the Arbitration and Mediation Act 2023 is not an island. It draws from and aligns with the major international instruments that arbitrators and counsel encounter in cross-border disputes. The table below compares the key features of Nigeria’s statutory duty with two of the most widely referenced international frameworks, providing practical guidance for arbitrators who sit in proceedings governed by institutional rules as well as the Nigerian statute. For those seeking interim relief in international arbitration, similar disclosure duties apply during emergency arbitrator appointments.

In practice, I advise arbitrators in Nigeria to treat the IBA traffic-light list as a practical companion to the statutory duty. The Orange List, in particular, provides a useful set of fact patterns, repeat appointments, overlapping counsel relationships, and prior involvement in related matters, that map directly onto common disclosure scenarios in Nigerian commercial disputes. The UNCITRAL Model Law provides the conceptual backbone for the Nigerian statute’s disclosure provisions, and familiarity with its travaux préparatoires can be valuable when arguing novel disclosure questions before Nigerian courts.

Conclusion: When in Doubt, Disclose

The arbitrator’s duty of disclosure under Nigeria’s Arbitration and Mediation Act 2023 is clear, continuing, and consequential. In my experience, the single most effective risk-management strategy for any arbitrator is to adopt a default position of disclosure. The quick-reference summary below distils the key principles from this guide:

• Disclose at nomination and continuously throughout the proceedings.
• Apply the objective test: would a fair-minded observer consider this circumstance relevant?
• Use the 12-point checklist before every appointment and at regular intervals.
• When confidentiality restricts full disclosure, disclose the existence of the restriction and offer to provide further details subject to appropriate safeguards.
• Document every disclosure in writing, dated and signed, with copies to all parties simultaneously.
• Preserve a sealed record of fuller details where confidentiality prevents open disclosure.

The cost of unnecessary disclosure is negligible. The cost of non-disclosure, a challenged award, reputational harm, and the erosion of confidence in Nigerian arbitration, is immense. At Vantage Attorneys LP, our consistent advice to arbitrators and parties alike is simple: when the question arises whether to disclose, the answer is almost always yes.

Sources

1. Arbitration and Mediation Act 2023, Full Text (Statutory PDF)
2. IBA Guidelines on Conflicts of Interest in International Arbitration
3. LCIA Arbitration Rules 2020
4. Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48
5. UNCITRAL Model Law on International Commercial Arbitration