iarb

Abuja was a hotel owner. It challenged an International Chamber of Commerce arbitral award that had been made in London in favour of the defendant, Meridien. The tribunal had upheld Meridien’s claims that Abuja was in breach of a Nigerian law hotel management agreement in respect of the Nicon Luxury Hotel. From about 2007, Abuja unilaterally assumed management of the hotel. The tribunal ordered Abuja to pay Meridien around $7.2 million, plus interest and costs. Abuja then challenged the substantive jurisdiction of the tribunal under Section 67, on the grounds that the arbitration agreement was:
• unconstitutional, illegal and invalid under Nigerian law;
• contrary to public interest, having been agreed with constraint; and
• invalid on the basis of force majeure and privatisation.
The court rejected the challenge. It found that Nigerian law was irrelevant to the issues to be decided under Section 67. Although the hotel management agreement provided that the governing law was Nigerian law, the arbitration clause stated that the seat of the arbitration was London. The court relied on previous decisions to confirm that the law governing the arbitration agreement follows the law of the seat, and thus it was English law in this case. The parties had confirmed that understanding in the terms of reference. There were no grounds under English law to suggest that the arbitration agreement was invalid or unenforceable, and Abuja did not contend otherwise. Abuja’s argument that the arbitration agreement was contrary to Nigerian public policy was irrelevant, as was its claim thatforce majeure in respect of the hotel management agreement would impair the validity of the arbitration agreement.
The court also rejected Abuja’s challenge that the tribunal’s conduct amounted to serious irregularity under Section 68. Abuja submitted that the tribunal’s decision was contrary to the evidence and that no reasonable tribunal could have reached it. However, Abuja did not demonstrate that the tribunal had exceeded its powers – many of Abuja’s arguments were simply criticisms of the tribunal’s decisions. Accordingly, Abuja’s various arguments that the basis for the tribunal’s calculation of damages, including damages for future losses, amounted to an excess of power or irregularity were irrelevant. Having set out the necessary legal criteria, the judge concluded that Abuja had failed to establish “any irregularity” within Section 68, still less a “serious” irregularity which had caused or would cause “substantial injustice”.

The High Court held that a declaratory award on the jurisdiction of an arbitral tribunal is enforceable (under section 66 of the Arbitration Act 1996), allowing judgment to be entered in the same terms as the arbitral award. A dispute arose between the ship-owner, BD Shipsnavo and African Fertilizers, under a bill of lading. The bill of lading incorporated the terms and conditions of an underlying charter-party, which included a clause referring disputes to arbitration in London.
African Fertilizers commenced both arbitration and court proceedings in Romania. The High Court granted an injunction restraining them from continuing the Romanian arbitration, and arbitration was commenced in London in accordance with the arbitration clause. The High Court also granted an interim declaration that the arbitration clause in the charter-party was validly incorporated into the bill of lading and that the Romanian court proceedings and arbitration proceedings were in breach of the agreement to arbitrate.
Subsequently, the London arbitral tribunal granted a declaratory award in favour of BD Shipsnavo, holding that it had jurisdiction over its claim for a declaration of entitlement to a contribution. BD Shipsnavo obtained an order granting it leave, under section 66 of the Arbitration Act 1996, to enforce the award and to enter judgment against African Fertilizers. African Fertilizers then brought proceedings before the High Court to set aside that order.

Claimants entered into an electricity supply agreement with Tanzania Electric Supply Co. Ltd (“TANESCO”), which provided for arbitration in Tanzania under Tanzanian law in accordance with the Rules of Arbitration of the International Chamber of Commerce.
TANESCO purported to terminate the Agreement on the basis that it was void ab initio for contravening the Tanzanian Public Procurement Act 2004. Dowans commenced arbitral proceedings in Tanzania. The arbitral tribunal found that the Agreement was valid and rendered an award against TANESCO. TANESCO applied to have the award set aside in the Tanzanian courts. Meanwhile, Dowans obtained enforcement of the award in the English High Court pursuant to section 101(2) of the English Arbitration Act 1996. TANESCO then applied to the Court to have the enforcement order set aside pursuant to section 103(2)(f) of the Act.
The High Court considered that the fact that there was a challenge to the award pending before the Tanzanian courts did not mean that the award was “not yet binding” within the meaning of that section. The Court then observed that even if the award has been set aside in the home jurisdiction, there was still discretion to set aside, enforce or adjourn the award both pursuant to section 103(2)(f) and Article V(1)(e) NYC. In the Court’s view, its discretion under section 103(2)(f) would inevitably be exercised in the same manner as the discretion to adjourn under section 103(5).

The Court was asked to consider issues arising from an Award of the London arbitration Tribunal in favour of Milan Nigeria Ltd for damage to cargo carried on the Angeliki B. The English law bills of lading were subject to the Hague Rules. Milan said the ship-owner carriers had breached Article III rule 2 of the Rules. The shipowners sought to avoid liability under Article IV rule 2(m). The Tribunal granted Milan US$150,000 – just 38% of their claim. Milan appealed to the Court.
The High Court considered the following:
1. Burden of proving the cause of the cargo damage. The Court agreed that there was an error of law and damages should not have been reduced by 62%.
2. Was the Tribunal wrong to decide that Milan had the right to sue under the bills of lading? The Court refused the shipowners’ application under section 68 of the Arbitration Act 1996. The Court ruled that Milan’s claim was based on endorsement and delivery of the bills under COGSA.
3. Should damages have been awarded in Nigerian naira rather than U.S. dollars? Court refused to hear this issue, stating that the Tribunal had already decided.

Novasen (based in Senegal) entered into a contract for the sale of a cargo of oils with Sogescol. Sogescol entered into an agreement with Alimenta to purchase the oil, on the condition that its identity was not disclosed to Novasen. Novasen failed to deliver the oil. Alimenta claimed to be the undisclosed principal of Sogescol and thus entitled to enforce the contract. The arbitrators in the proceedings found that there was a contractual relationship between Alimenta and Novasen. An arbitration award was rendered and Novasen appealed under Section 67 of the Arbitration Act 1996, on the grounds that the tribunal had no jurisdiction to make the award for a number of reasons. HHJ Mackie QC dismissed the Appeal and held that there was an arbitration agreement in existence between Alimenta, as the undisclosed principal, and Novasen even though Sogescol was said to have acted outside of the scope of its authority when agreeing a change in the contract price. Therefore whether Sogescol had acted within the scope of its authority was a question for the arbitrators.

The Respondent brought a cargo claim against the Appellant under section 2(1) Carriage of Goods by Sea Act 1992 (“COGSA”). The Appellant requested a declaration of non liability from the tribunal, on the basis that the Respondent had no title to sue, as it had no title to the cargo. The case came before the High Court by way of an appeal under section 69 Arbitration Act 1996.
The central dispute before the court was whether COGSA gives rise to different causes of action according to whether or not the holder of the bill of lading has suffered loss, and whether in this case it was necessary for the Respondent to plead a separate cause of action in relation to section 2(4) COGSA (i.e. one which arises specifically for parties with an interest in the goods who were not holders of the bill of lading). Burton J dismissed the appeal, holding that on a proper construction of section 2(4), the defendant was pursuing its own cause of action. In the event that it lost on the issue of original ownership of the goods (which it did in this case), it was entitled, albeit having suffered no loss, to recover, pursuant to its own cause of action, the loss suffered by the owner of the cargo and, in due course, to account for it. The judge also noted that a case brought under section 2(4) of COGSA had to be properly particularised in order for the opposing party to be able to raise the relevant defences.

The parties entered into a contract for the sale by Razcom to BCS of 500 metric tons of cocoa beans. Razcom purchased the goods with finance provided by Ecobank Côte d’Ivoire. Razcom’s payment instructions contained in its invoice sought payment into Razcom’s account with Ecobank. Razcom was in dispute with Ecobank as shipping documents were delivered without payment. Instead, Razcom instructed BCS to make payment to its solicitor’s account. Nevertheless, BCS made payment to the bank, which was an unauthorised agent. The matter was referred to arbitration by the FCC. An award was published and action to enforce the award was taken. BCS argued that the order was defective and should be set aside. The High Court (Queen’s Bench Division) held that in all the circumstances there had been no substance to the defendant’s submissions and there was no reason to set aside an order granting the claimant permission to enforce an arbitration award.

LD applied for a final anti-suit injunction seeking to restrain the respondent ship owners from joining LD as a party to proceedings before the Mexico City Federal District. The Mexican Proceedings concerned cargo shipped by LD on the respondent’s vessel, which was subsequently sold to “S”. S alleged that the cargo was damaged on arrival. It was the respondent’s case that the cargo had been damaged when the cargo was in storage with LD (before loading). The owner sought to join LD to the Mexican Proceedings as a third party. The parties did not agree as to the joinder. The court had to decide whether the respondent’s conduct amounted to a breach of the arbitration clause in the bill of lading.

Claimant entered into a supply agreement with the Federal Ministry of Internal Affairs of Nigeria for a combined expatriate residence permit and aliens card scheme, pursuant to which CTTL was to produce and supply electronic residence cards for the Federal Ministry of Internal Affairs for use by the Nigeria Immigration Service. The agreement was subject to arbitration in Nigeria governed by Nigerian law. A dispute arose and arbitration proceedings commenced. The sums due from the first to third defendants under the award amounting to NGN29,660,166,207.48 plus interest and costs remain unpaid (about £140 million). The New York Convention applied to the award as Nigeria is a party to the Convention. An interim order granting permission to enforce the award in the UK and enter judgment was made. The defendants challenged the validity of the award in Nigeria and sought to stay the proceedings or set aside the judgment.