A United Kingdom Commercial Court today held that Nigeria has successful established a prima facie case against Process and Industrial Development Limited (P&ID) in the Gas Supply Processing Agreement (GSPA).
The court consequently granted Nigeria’s application for extension of time to set aside the $9.6billion arbitral award against the country.
In his decision, the presiding judge, Sir Ross Cranston, noted that Nigeria acted reasonably well and that the delay in bringing the allocation was not deliberate, even as he said successfully established a prima facie case of fraud against P&ID in the gas supply contract.
“With that as background I find persuasive Mr. Howard’s submission that the fairness factor does have an impact in challenges where there is strong prima facie evidence of fraud, certainly of the through-going character alleged in this case,” Cranston held.
“Not only is the integrity of the arbitration system threatened, but that of the court as well, since to enforce an award in such circumstances would implicate it in the fraudulent scheme. Conclusion on the Kalmneft factors.”
The judge, according to ThisDay, further held that the delay in this case was extraordinary and weighed heavily on the side of the balance against an extension.
“In my view, however, other factors bring it down in favour of an extension. As I have explained, the delay is not in my view the result of a deliberate decision made because of some perceived advantage, and in all the circumstances Nigeria has acted reasonably”, the judge held.
He noted that given the strong prima facie case of fraud which Nigeria had established, the position is along the lines of that identified in Terna, where Popplewell J identified the substantial injustice an applicant would suffer in respect of the underlying dispute if deprived of the opportunity of making a challenge should an extension of time be refused: Terna Bahrain Holding Company WLL v Bin Kamil Al Shamsi  EWHC 3283 (Comm),  1 Lloyd’s Rep 86, .”
His Lordship further held: “For the reasons I have given, P&ID has contributed to the delay, and it will not by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application is permitted to proceed.
“Although not a primary factor, fairness in the broadest sense favours an extension in this case. For the reasons given, I grant Nigeria’s applications for an extension of time and relief from sanctions.”
Nigeria made its set-aside and related applications on 5 December 2019.
Nigeria had argued that this was the earliest time at which she considered that it had adequate concrete evidence to allege fraud and corruption against P&ID before a court of law. Nigeria’s case is that the Awards are liable to be set aside (i) under s.68 of the 1996 Act on the basis that they, and the GSPA on which they are based, were procured by fraud and/or other
conduct contrary to public policy; and (ii) under s.67 of the 1996 Act on the basis that the arbitration agreement in the GSPA was procured by fraud, such that the Tribunal lacked jurisdiction.
Nigeria also sought to resist P&ID’s Enforcement Application on the same grounds.
Nigeria argued a strong prima facie case that Mr Quinn gave perjured evidence to the Tribunal, that (contrary to Mr Quinn’s evidence) P&ID would never have been able or willing to perform the contract, that P&ID’s intention in bidding for the contract must therefore have been to extract money from the country through an arbitration or a contrived ‘settlement’ payment (having either procured by bribes.)