United Kingdom / 17 April 2008 / England and Wales, High Court / IPCO v. Nigerian National Petroleum Corp. / 2004 Folio 1031
|England and Wales, High Court
|17 April 2008
|IPCO v. Nigerian National Petroleum Corp.
|2004 Folio 1031
|Applicable NYC Provisions
|III | V | V(1) | V(1)(c) | V(1)(e) | VI
 EWHC 797 (Comm) | online: BAILII
|IPCO (Nigeria) Ltd (“IPCO”) was the Nigerian subsidiary of a Hong Kong company. It agreed to construct a petroleum export terminal for the State-owned Nigerian National Petroleum Corp. (“NNPC”). The contract contained a clause providing for arbitration in Nigeria under Nigerian law. Disputes arose under the contract and were referred to arbitration. The tribunal rendered an award in favour of IPCO. NNPC applied to the Nigerian courts to have the award set aside. Meanwhile, IPCO sought enforcement of the award in the English High Court. The Court ordered enforcement 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). NNPC then applied to the Court to set aside the enforcement order pursuant to section 103(2)(f) of the Act (incorporating Article V(1)(e) NYC regarding refusal to recognise or enforce an award where, inter alia, the award has been set aside by a competent authority of the country in which, or under the law of which, it was made) and section 103(3) of the Act (incorporating Article V(2) NYC regarding refusal to recognise or enforce an award where, inter alia, it would be contrary to public policy to do so). In the alternative, NNPC sought to adjourn enforcement pursuant to section 103(5) of the Act (incorporating Article VI NYC regarding adjournment of the 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). IPCO applied for security in the event that enforcement be adjourned. The Court dismissed NNPC’s application to have the enforcement order set aside, but agreed to adjourn enforcement on condition that NNPC pay a sum indisputably due to IPCO under the contract, in addition to U.S. $50 million by way of security. Several years later, IPCO requested that the adjournment be lifted on the ground that NNPC’s challenge to the award before the Nigerian courts was taking much longer than anticipated. In addition, it submitted that the Court had been materially misled as to the strength of that challenge. The High Court varied the order adjourning enforcement to permit judgment to be entered in terms of certain discrete parts of the award which it considered were capable of immediate enforcement and in respect of which it held that the Court at first instance had been misled. It also had regard to the serious delays in the Nigerian court proceedings. However, it saw no reason for revisiting the rest of the conclusions of the Court at first instance as to the strength of the challenge to the award. Accordingly, it adjourned the decision on enforcement of the balance of the award. In so ruling, the Court noted that the possibility of partial enforcement of the award was clearly referred to in section 103(4) of the Act and Article V(1)(c) NYC (providing for recognition or enforcement of an award which contains decisions on matters not submitted to arbitration to the extent that it contains decisions on matters submitted to arbitration that can be separated from those on matters not so submitted). That the possibility of partial enforcement was recognised expressly only in this limited jurisdictional context did not, in the Court’s view, lead to the conclusion, either under the NYC or the Act, that it was not available in other circumstances. Moreover, the Court was not dissuaded by the fact that the parties had been unable to point to any other examples of partial enforcement. In this regard, the Court referred to Article III NYC (providing that “[e]ach Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied on”), concluding that the Court was not concerned to ensure that the English approach to recognition and enforcement be the same as that adopted in other Contracting States.
|affirmed by :
|see also :
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