United Kingdom / 30 March 2010 / England and Wales, High Court / Continental Transfert Technique Ltd v. Federal Government of Nigeria / 2008 Folio 1280
| Country | United Kingdom |
| Court | England and Wales, High Court |
| Date | 30 March 2010 |
| Parties | Continental Transfert Technique Ltd v. Federal Government of Nigeria |
| Case number | 2008 Folio 1280 |
| Applicable NYC Provisions | V | V(1) | V(1)(e) | VI |
| Source |
[2010] EWHC 780 (Comm) | online: BAILII |
| Languages | English |
| Summary | Continental Transfer Technique Ltd (“CTTL”) entered into a supply agreement with the Nigerian Ministry of Internal Affairs. A dispute arose, which was submitted to arbitration in accordance with a clause contained in the agreement providing for arbitration by a sole arbitrator in Nigeria under Nigerian law. An award was rendered in favour of CTTL. Nigeria thereafter applied to the Nigerian courts to have the award set aside. Meanwhile, CTTL obtained enforcement of the award in the English High Court under section 101(2) of the Arbitration Act 1996 (U.K.) (“the Act”) (providing for enforcement as a judgment or order of the court of an NYC award, as defined by the Act). Nigeria applied to the High Court to set aside the enforcement order pursuant to section 103(2)(f) of the Act (incorporating Article V(1)(e) NYC regarding the refusal to recognise or enforce an award where the award is not yet binding, has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made). In the alternative, Nigeria applied for a stay of the enforcement order pursuant to section 103(5) of the Act (incorporating Article VI NYC regarding the adjournment of a decision on the recognition or enforcement of the award where an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, it was made). The High Court denied Nigeria’s application to set aside the award pursuant to section 103(2)(f) of the Act, holding that this provision only applied where the award had been set aside or suspended in the country of origin (as opposed to where, as in the present case, there was merely an application for the setting aside of the award in the country of origin). However, it granted Nigeria’s application for a stay under section 103(5) of the Act on condition that security in the amount of £100 million be provided within 28 days. In so ruling, the Court observed that section 103 was pro-enforcement of NYC awards. The Court also remarked that the section was a compromise between the concern that enforcement not be frustrated by proceedings being brought in the country of origin, on the one hand, and the concern that proceedings in the country of origin not be pre-empted by rapid enforcement of the award in another jurisdiction, on the other hand. Finally, the Court noted that its discretion under the section was unfettered, but that relevant considerations would ordinarily include: (i) whether the proceedings in the country of origin were commenced bona fide (and not merely as a delay tactic), (ii) whether the proceedings in the country of origin had a real prospect of success and (iii) the extent of delay occasioned by an adjournment and any resulting prejudice. With respect to Nigeria’s application to set aside the award, the Court considered that: (i) there was evidence to suggest that the application involved an element of delaying tactics, (ii) the application had no real prospect of success and (iii) the application would not be heard for a considerable time, resulting in the prospect of real prejudice to CTTL. However, as CTTL did not oppose a stay subject to substantial security being provided, the Court ultimately decided to grant the application on the conditions outlined above. |
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Attachment (1)
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