Introduction

The intersection of pre-enforcement preservative orders and sovereign immunity presents a complex legal conundrum, particularly in cases where State assets are threatened with attachment to satisfy arbitral awards. This complexity was starkly illustrated in the recent seizure of Nigeria’s presidential jets by Zhongshan Fucheng Industrial Investment Co. Ltd (“Zhongshan”). This Chinese company sought to enforce an arbitral award of approximately $70 million against the Federal Republic of Nigeria (“Nigeria”), stemming from a dispute with the Ogun State Government. Apparently, Zhongshan seems to have adopted the concept of attribution in international investment arbitration to hold Nigeria accountable for the actions of one of its states – Ogun State – which we addressed in our maiden article on this case, published on 26th August 2024.

Building on the foundation of our maiden article, this article explores the complexities of enforcing such pre-enforcement preservative orders, commonly known as freezing orders, against sovereign assets, examining whether Nigeria’s presidential jet constitutes a sovereign or commercial asset and how sovereign immunity may—or may not—shield it from attachment or seizure.

 The Legal Terrain of Pre-Enforcement Freezing Orders

Pre-enforcement freezing orders are legal mechanisms designed to preserve assets from being dissipated before a judgment or arbitral award can be enforced. In international arbitration, such orders are often sought to ensure that the party at a disadvantage does not render itself judgment-proof by transferring or concealing assets. However, when the assets in question belong to a sovereign state, the doctrine of sovereign immunity poses significant challenges.