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IMPORTANCE OF PUTTING GOOD REPRESENTATION IN ARBITRAL PROCEEDINGS BY PARTIES

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587. Notwithstanding Nigeria’s allegations, I have not found Nigeria’s lawyers in the Arbitration to be corrupt. But the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the Arbitration. The result was that the Tribunal did not have the assistance that it was entitled to expect, and which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised. 588. But what is an arbitral tribunal to do? The Tribunal in the present case allowed time where it felt it could and applied pressure where it felt it should. Perhaps some encouragement to better engagement can be seen as well. Yet there was not a fair fight. And the Tribunal took a very traditional approach. But was the Tribunal stuck with what parties did or did not appear to bring forward? Could and should the Tribunal have been more direct and interventionist when it was so clear throughout the Arbitration that Nigeria’s lawyers were not getting instructions, or when at the quantum hearing Nigeria’s then Leading Counsel, Chief Ayorinde, was failing to put necessary points to experts to test their opinion and Nigeria’s own experts (for whatever reason) had not done the work required? Should the Tribunal have taken the initiative to encourage exploration of new bounds of contract law and the law of damages that may today be required where major long term contracts are involved?

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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ENTRY OF APPEARANCE IS A FORMAL STEP

INAKOJU & ORS VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423, Ogbuagu, JSC, held that: “Entry of an appearance is said to be a formal step taken by a Defendant to an action after he has been served. See ADEGOKE MOTORS LTD. VS. D.J. ADESANYA & ANOR. (1989) 3 NWLR (PT. 109) 250 @ 292,...

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P&ID DID NOT ENTER THE CONTRACT TO JUST GET A SETTLEMENT VIA ARBITRATION, WITH THE INTENTION OF NOT PERFORMING

490. Here, I am satisfied P&ID did intend to perform the GSPA when it entered into it, and that there were means by which it could have done so. Nigeria has characterised the GSPA as a sham and contended that P&ID as a BVI-registered company with no obvious assets, no relevant experience and few employees, had no genuine intention of performing the GSPA, and would never have been able to do so. However P&ID did not have to contemplate performing the GSPA itself with its assets, experience and employees. This is not, as it represented, because it could simply use the work on Project Alpha to perform the GSPA. It is rather because ICIL Group had shown in the past that they could contract in. 491. Whilst P&ID was prepared to bribe in the course of its business, I do not accept it was of the sophistication to conceive at the contract stage a plan to extract large sums of money from Nigeria by means of an arbitration or a corrupt settlement. Consistently, P&ID did not use the GSPA to move directly to arbitration at the first available opportunity. I have found it did not (as alleged by Nigeria) corrupt Mr Shasore SAN. And it appointed, in Sir Anthony Evans, an arbitrator of unquestioned experience, expertise and independence. 492. It is in these circumstances that I have reached the conclusion that the present is not a case in which, when the parties entered into the GSPA, P&ID’s intention was not to perform it but simply to use it as a device to get an award or settlement. However that is not the end of Nigeria’s section 68(2)(g) challenge.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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ARBITRAL AWARD IS BINDING ON PARTIES

It is important to note here that all these facts were before Longe J when the application which led to this appeal was being considered. It is also equally important to say that it was open to either of the parties to apply to the Court in England to set aside, the award if either...

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ARBITRATION PANELS ARE SPECIAL QUASI-JUDICIAL PROCEEDINGS

As a foundation, I would state that Arbitration proceedings are special quasi-judicial proceedings which are specifically provided for, regulated and governed by the Arbitration and Conciliation Act as well as the Arbitration Rules provided for in the schedule to the Act. The proceedings are not the same as the usual judicial proceedings in the determination...

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TIME LIMIT TO SET ASIDE AN ARBITRATION AWARD

It can easily be observed that the provisions of Section 29 are complementary to the provisions of Section 32 in that they only provide the time limit and the discretion to set aside an award on proof that it contains decisions on matters beyond the scope of the submission to the arbitration. The provisions of...

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