Nigeria Permitted to Resist Enforcement of Arbitration Award that was Potentially Based on Corruption and Fraud

On 4 September 2020, the High Court of Justice, Queen’s Bench Division (Commercial Court) issued a decision in The Federal Republic of Nigeria v. Process & Industrial Developments Ltd. [2020] EWHC 2379 (Comm).  In the judgment, Sir Ross Cranston granted Nigeria an extension of time to bring challenges under sections 76 and 68(2)(g) of the UK Arbitration Act 1996 against an arbitration award that ordered Nigeria to pay P&ID damages of USD 6.6 billion, plus interests.

In his ruling at this preliminary stage, Sir Ross found that Nigeria had established a prima facie case of fraud against P&ID, based in part on financial records obtained from US courts under the US statute 28 USC § 1782 (which permits US-style discovery from US parties in aid of foreign litigations, including UK litigations).  The fraud, in this case, was said to include bribery and corruption to obtain the original oil and gas contract.

Sir Ross also found that Nigeria could “rightly claim that it could not with reasonable diligence have ascertained the fraud”, especially as the allegedly fraudulent scheme, had a “cloak of legitimacy”.  He found no prejudice to P&ID “in being subject to a full inquiry into the fraud at trial”.