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

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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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arbitration, intention

AN ARBITRATION AGREEMENT IS A SEPARATE CONTRACT

The Courts have always upheld the autonomy and independence of the arbitration clause in the contract. The arbitration agreement may be drawn up separately or may form part of the transaction between the parties. Where the arbitration clause is part of the contract, it is nevertheless regarded in law as a separate contract. In HEYMAN...

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LITIGATION PREPONDERATES OVER ARBITRATION IN THIS INSTANCES

No doubt, there are some instances where even though parties have submitted to arbitration, suitability of litigation preponderates over arbitration. These are instances among others: 1. Where the issue for resolution is essentially a legal one. 2. Where the issue turns largely on the credibility of the evidence. 3. Where immediate enforcement of a right...

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GENERAL PRINCIPLES APPLICABLE IN REGULAR COURTS ARE NOT APPLICABLE IN ARBITRATION PROCEEDINGS

In this context, the general principles of law laid down and applicable to and in proceedings of the regular Courts in the process of judicial adjudication of causes or matters before them do not ordinarily apply to such quasi judicial arbitral proceedings which the parties by their free and voluntary choice, opted to resort to...

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WRONG FACT FINDING CANNOT SET ASIDE AN ARBITRAL AWARD

In arbitration proceedings, the general principle is that facts finding by an Arbitrator is not a ground for setting aside an award on the ground that it is wrong nor on the ground that there is no evidence on which the facts could be found because that would be mere error of law. – Garba,...

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ARBITRAL AWARDS HAVE SAME FORCE AS A JUDGEMENT OF A COURT

Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 at 17 paragraph E, where the Supreme Court, per Iguh JSC. had this to say: “The law is well settled that where disputes or matters in difference between two or more parties are by consent of the disputants submitted to a domestic forum inclusive of arbitrators or...

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IMPORTANCE OF PUTTING GOOD REPRESENTATION IN ARBITRAL PROCEEDINGS BY PARTIES

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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