Litigation, Insights

Upturning the $9.6 Billion Arbitral Award Granted P&ID

A little storm has been brewing since the $9.6 billion arbitral award against Nigeria in favour of P&ID. The processes leading up to the GSPA agreement subject of the award have been intensively reviewed by the EFCC and by various committees of the present government. New facts suggesting acts of fraud by agents of both parties in the course of negotiations and bureaucratic processes leading up to the GSPA emerge daily. The Nigerian government has made it clear that it would not submit to the attachment of its international assets in satisfaction of that judgement without a fight. President Buhari was emphatic when he used the word “fraud” to characterize the GSPA agreement in his address at the 74th Session of the United Nations General Assembly held in New York.

BUILDING A CASE FOR FRAUD
Recent events show that Nigeria is aggressively building a case to challenge the judgement of the Commercial Court of England which affirmed the award on grounds of fraud. On 19th September 2019, the EFCC arraigned P&ID Ltd domiciled in the Virgin Islands and its Nigerian affiliate P&ID Nigeria on 11 counts of fraud and tax evasion. The companies were accused of fraudulently acquiring land from the Cross-river’s state government in 2010 for the purpose of constructing facilities further to the GSPA. The EFCC also contended that P&ID had no license to sell petrol in Nigeria, and that the company failed to comply with its tax obligations under Nigerian law. It is interesting to note that the “representatives” of P&ID presented before the court pleaded guilty to all the counts, and the court convicted the companies accordingly. Further to this conviction, the Federal High Court per Justice Inyang Ekwo ordered the winding up of both companies, and a forfeiture of their assets to the Federal Government.
The Attorney General of the Federation, Abubakar Malami characterized the verdict of the Federal High Court as establishing that the GSPA agreement is rooted in fraud and corruption. He stated;
“The implication of today’s conviction is that Nigeria has a judicial proof of fraud and corruption as a foundation of the relationship that gave rise to a purported liability in the arbitral award. A liability that is rooted in fraud and corruption cannot stand judicial enforceability; Nigeria now has a cogent ground for setting aside the liability. Where Nigeria is expected to review its strategy in view of unfolding developments as it relates to conviction of some of the suspects that have admitted fraud and corrupt practices in the transaction that gave rise to purported award.’’

NIGERIA GRANTED LEAVE TO APPEAL
The Nigerian government has applied for, and has been granted leave to appeal the judgement of the Commercial Court of England by the Court of Appeal England. The court also granted a stay of execution of the judgement, which in the interim prevents the seizure of Nigeria’s foreign assets in satisfaction of the award. However, as condition precedent to the effectiveness of the order, the Nigerian government is ordered to deposit the sum of $200 million dollars to the court within 60 days. It is also ordered to pay some court costs to P&ID within 14 days.
The Nigerian government challenges the judgement of the Commercial Court on grounds that the court erred when it held the seat of arbitration to be England. The government also contends that the arbitral award is “manifestly excessive”. It argues that the GSPA agreement is rooted in fraud and corruption hence, it is unenforceable, and should be set aside…

 

 

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