Dissent would not have enforced award arising from sovereign acts of government

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Majority rejects dissent’s charge that it is undermining sovereign immunity, doctrine of espousal

Foreign sovereigns are “persons” covered by the New York Convention even when they act in their sovereign capacity

Investment treaty award arose out of commercial legal relationship and so is not precluded by the USA’s commercial activities reservation to the New York Convention

US Foreign Sovereign Immunities Act codifies “restrictive theory” of sovereign immunity; arbitration exception permits actions to enforce arbitration awards governed by treaties providing for enforcement

Background: Chinese firm prevails in investment treaty arbitration arising out of Nigerian expropriation of its participation in managing a free trade zone

Objective of costs awards is compensation for liability incurred to lawyers, not indemnification of loss

Court finds no restriction in the Arbitration Act on the right to appeal the decision regarding the currency of costs order

Properties are being rented out and thus qualify as commercial for the purposes of the SIA’s exceptions to immunities from enforcement

Interim charging orders did not need to be notified to the state in line with the SIA’s service provisions

Serious irregularities warrant setting the awards aside

Neither the awards’ value, nor the case’s alleged importance can suffice to justify an appeal

Court sees no reason to doubt that irregularities were cause of the awards

Judge Knowles muses on lessons this case should impart to the arbitration community

Fate of the awards remains to be determined

Nigeria did not have an opportunity to discover the fraud with “reasonable diligence”, in context where P&ID was deliberately concealing it

Nigeria suffered substantial injustice, including through compromised right to rely on privileged legal advice

While underlying bribery is insufficiently connected to the award under Section 68 of the Arbitration Act, other irregularities are – including “improper retention” of privileged documents

Nigeria’s allegations against its counsel and officials fail to convince the court

While court cannot review the merits of the awards, the tribunal’s views on liability and quantum are questionable

Key witness in the arbitration perjured himself when deliberately concealing role of bribes in securing the contract

P&ID’s lawyers should have known that they could not look at or rely on documents internal to Nigeria’s legal defence in the arbitration

P&ID bribed senior legal officer at Nigerian Ministry, both when procuring the GSPA and to keep her silent during the arbitral proceedings

Under English law, dishonesty is assessed against standard of “ordinary decent people”

While record was not complete, the playing field was “level” since neither party put forward all relevant witnesses

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