Nigeria's challenge to US$11 billion award succeeds in the High Court of Justice of England and Wales

As a solution to issues in its domestic gas supply market, Nigeria sought to collaborate with Process & Industrial Developments Limited (“P&ID”) on a power generation project. The project would turn sour, resulting in substantial arbitration proceedings. In 2017, the arbitral tribunal (the “Tribunal”) awarded P&ID the sum of US$6.6 billion, an amount which, with interest, had grown to over US$11 billion in 2023. 

Dissatisfied with the Tribunal’s Award, Nigeria challenged it in the Commercial Court of the High Court in London on allegations of bribery, corruption and perjury, which extended not only to P&ID but also to its own lawyers at the time of the arbitration. P&ID dismissed Nigeria’s allegations as ‘false and dishonest’.  

On 23 October 2023, the High Court of Justice of England and Wales (the “High Court”) handed down its judgment. The basis of Nigeria’s challenge was section 68(2)(g) of the Arbitration Act 1996 – that the award was obtained by fraud or the award or the way in which it was procured is contrary to public policy. Nigeria advanced numerous arguments in this regard, not all of which were accepted, but the High Court held that three irregularities constituted ‘the most severe abuses of the arbitral process [on P&ID’s part]':

• P&ID’s provision and reliance on evidence it knew to be false. 
• P&ID’s continued bribery or corrupt payments to suppress from Nigeria and the Tribunal the fact of bribery in and around the time the GSPA came about. 
• P&ID’s improper retention of Nigeria’s internal legal documents received during the arbitration, some of which were clearly privileged, that allowed it to track Nigeria’s internal consideration of merits, strategy and settlement and to monitor whether Nigeria had become aware of the fact that it and the Tribunal were being deceived. 

As a result, Nigeria succeeded in its section 68 challenge.  

The Judgment (Nigeria v P&ID judgment (judiciary.uk)) concludes by stating its hope that the facts and circumstances of the case may provoke debate and reflection among the arbitration community, among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration, and provide an opportunity “to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved”.  

No doubt the debate and reflection has already started.