This article undertakes an in-depth analysis of the evolution of Brazil’s Cooperation and Facilitation Investment Agreements (CFIAs) since the publication of the Brazilian Model CFIA in 2015. It studies the tumultuous history of investment treaties in Brazil and how it may have shaped Brazil’s response to the investor-State arbitration regime through the current model CFIA. It assesses how the reception of Brazil’s Model CFIA among Brazilian stakeholders and commentators may have influenced the trends and evolutions of the fourteen CFIAs signed by Brazil from 2015 to 2020. It argues that the Brazilian CFIAs have improved with time through the progressive narrowing and strengthening of their jurisdictional, substantial, public policy and dispute resolution clauses. At the same time, they may not have fully implemented the criticisms and comments of academia and Brazilian civil society, and some provisions remain to be clarified in the future. Bilateral Investment Agreement, Brazil, Model BIT, Cooperation and Facilitation Investment Agreements, Investment arbitration reform
{"title":"The Evolution of Brazilian CFIAs from 2015 to 2020: Like Wine, Does It Get Better with Time?","authors":"Samy Rais, K. Duggal","doi":"10.54648/joia2021012","DOIUrl":"https://doi.org/10.54648/joia2021012","url":null,"abstract":"This article undertakes an in-depth analysis of the evolution of Brazil’s Cooperation and Facilitation Investment Agreements (CFIAs) since the publication of the Brazilian Model CFIA in 2015. It studies the tumultuous history of investment treaties in Brazil and how it may have shaped Brazil’s response to the investor-State arbitration regime through the current model CFIA. It assesses how the reception of Brazil’s Model CFIA among Brazilian stakeholders and commentators may have influenced the trends and evolutions of the fourteen CFIAs signed by Brazil from 2015 to 2020. It argues that the Brazilian CFIAs have improved with time through the progressive narrowing and strengthening of their jurisdictional, substantial, public policy and dispute resolution clauses. At the same time, they may not have fully implemented the criticisms and comments of academia and Brazilian civil society, and some provisions remain to be clarified in the future.\u0000Bilateral Investment Agreement, Brazil, Model BIT, Cooperation and Facilitation Investment Agreements, Investment arbitration reform","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42364347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem. GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel
根据《纽约公约》，非签署国服从仲裁协议是国际仲裁的基本问题之一，提出的问题涉及第二条规定的仲裁协议的概念。在GE Energy Power Conversion诉Outokumpu一案中，美国最高法院就此事采取了立场。它认为，《纽约公约》不与国内法原则相冲突，如衡平法禁止反言原则，后者可能使第三方受制于其他方签署的仲裁协议。该判决仅对《公约》进行了独创性的解释，未能探究问题的规范深度。GE Energy Power Conversion诉Outokumpu，美国最高法院，《纽约公约》，非签署方，第三方，仲裁协议，当事方自主权，形式或书面要求，衡平法禁止
{"title":"Originalism Meets International Arbitration: The US Supreme Court’s Interpretation of the New York Convention","authors":"G. Wagner, Janna Koester","doi":"10.54648/joia2021010","DOIUrl":"https://doi.org/10.54648/joia2021010","url":null,"abstract":"The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem.\u0000GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45773385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The abuse of process doctrine is a recognized principle of public international law that prohibits the exercise of a procedural right in contravention of the purpose for which that right was established. This doctrine has been applied in context of investment arbitration where investors manipulate their corporate structure to gain access to jurisdiction after a dispute has become foreseeable. However, while abuse of process has become synonymous with corporate restructuring in investment arbitration, the doctrine is by no means limited to that application. Indeed, more recently, the doctrine has gained momentum as a mechanism to address the problem of multiple and successive arbitrations filed by investors against Sovereigns. This trend culminated in the Orascom v. Algeria decision, recently affirmed by an ad hoc Committee on annulment, that dismissed an investor’s claim ‘in relation to the same investment, the same measures and the same harm’. The application of abuse of process in this context, however, remains unsettled. After review, this article concludes that when an investor initiates multiple arbitrations for the sole purpose of maximizing the chances of success, investment tribunals should consider abuse of process as a means to protect the legitimacy of their proceeding and the Investor-State Dispute Settlement system as a whole. abuse of process, parallel proceedings, treaty interpretation, res judicata/collateral estoppel, lis pendens
{"title":"The Abuse of Process Doctrine Extended: A Tool for Right Thinking People in International Arbitration","authors":"John David Branson","doi":"10.54648/joia2021011","DOIUrl":"https://doi.org/10.54648/joia2021011","url":null,"abstract":"The abuse of process doctrine is a recognized principle of public international law that prohibits the exercise of a procedural right in contravention of the purpose for which that right was established. This doctrine has been applied in context of investment arbitration where investors manipulate their corporate structure to gain access to jurisdiction after a dispute has become foreseeable. However, while abuse of process has become synonymous with corporate restructuring in investment arbitration, the doctrine is by no means limited to that application. Indeed, more recently, the doctrine has gained momentum as a mechanism to address the problem of multiple and successive arbitrations filed by investors against Sovereigns. This trend culminated in the Orascom v. Algeria decision, recently affirmed by an ad hoc Committee on annulment, that dismissed an investor’s claim ‘in relation to the same investment, the same measures and the same harm’. The application of abuse of process in this context, however, remains unsettled. After review, this article concludes that when an investor initiates multiple arbitrations for the sole purpose of maximizing the chances of success, investment tribunals should consider abuse of process as a means to protect the legitimacy of their proceeding and the Investor-State Dispute Settlement system as a whole.\u0000abuse of process, parallel proceedings, treaty interpretation, res judicata/collateral estoppel, lis pendens","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47428698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The author examines whether an award signed electronically can be deemed to constitute an award in writing as provided for in Article 31 of the UNCITRAL Model Law, which is reflected verbatim in article 1197 of the Polish Civil Code. The conclusion is that an electronic signature as such is functionally equivalent to the written signature. Having said that, not all types of electronic signature can be admitted in this respect. The eIDAS Regulation (Regulation 910/2014 of the European Parliament and of the Council on electronic identification and trust services) provides for three types of electronic signature: regular, advanced, and qualified, stating that the qualified signature should be deemed as equivalent to the written signature. The author is of the opinion that both the advanced and qualified electronic signatures fulfil the requirements of the form ‘in writing’, ensuring the safeguards as listed in article 26 of the Regulation. Specifically: it is uniquely linked to the signatory; it is capable of identifying the signatory; it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable. arbitration, form of acts in law, arbitration award, electronic form, UNCITRAL model law, electronic signature, eIDAS Regulation
{"title":"Admissibility of Electronic Awards in the UNCITRAL Model Law Jurisdiction: Polish Law Example","authors":"B. Kalisz","doi":"10.54648/joia2021009","DOIUrl":"https://doi.org/10.54648/joia2021009","url":null,"abstract":"The author examines whether an award signed electronically can be deemed to constitute an award in writing as provided for in Article 31 of the UNCITRAL Model Law, which is reflected verbatim in article 1197 of the Polish Civil Code. The conclusion is that an electronic signature as such is functionally equivalent to the written signature. Having said that, not all types of electronic signature can be admitted in this respect. The eIDAS Regulation (Regulation 910/2014 of the European Parliament and of the Council on electronic identification and trust services) provides for three types of electronic signature: regular, advanced, and qualified, stating that the qualified signature should be deemed as equivalent to the written signature. The author is of the opinion that both the advanced and qualified electronic signatures fulfil the requirements of the form ‘in writing’, ensuring the safeguards as listed in article 26 of the Regulation. Specifically: it is uniquely linked to the signatory; it is capable of identifying the signatory; it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.\u0000arbitration, form of acts in law, arbitration award, electronic form, UNCITRAL model law, electronic signature, eIDAS Regulation","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71239448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The question of judicial intervention remains highly significant in international commercial arbitration. Article 5 of the Model Law was included in the text both to identify those matters in which intervention is permitted and to define the nature and manner of such intervention. While Article 5 has been largely effective in regulating judicial intervention in matters expressly governed by the Model Law, the issue of abuse of process raised by the presence of concurrent court and arbitration proceedings has been more contentious. This article contends that this issue should also fall within the scope of the Model Law as a matter concerning court intervention in arbitral jurisdiction. While Article 5 does not directly apply to foreign-seated arbitrations, the policies of limited court intervention and respect for arbitral jurisdiction should still be influential. arbitration, judicial intervention, UNCITRAL Model Law, Article 5, abuse of process, anti-suit injunction, anti-arbitration injunction
{"title":"Article 5 of the Model Law: Protector of the Arbitral Process?","authors":"Richard L. Garnett","doi":"10.54648/joia2021008","DOIUrl":"https://doi.org/10.54648/joia2021008","url":null,"abstract":"The question of judicial intervention remains highly significant in international commercial arbitration. Article 5 of the Model Law was included in the text both to identify those matters in which intervention is permitted and to define the nature and manner of such intervention. While Article 5 has been largely effective in regulating judicial intervention in matters expressly governed by the Model Law, the issue of abuse of process raised by the presence of concurrent court and arbitration proceedings has been more contentious. This article contends that this issue should also fall within the scope of the Model Law as a matter concerning court intervention in arbitral jurisdiction. While Article 5 does not directly apply to foreign-seated arbitrations, the policies of limited court intervention and respect for arbitral jurisdiction should still be influential.\u0000arbitration, judicial intervention, UNCITRAL Model Law, Article 5, abuse of process, anti-suit injunction, anti-arbitration injunction","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47002487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Crossreferenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic cooperation is required under the Beijing Joint Declaration of the ‘Belt and Road’ Arbitration Institutions, to advance best practices and protocols in the use of technology in arbitration, and address challenges such as cybersecurity and data protection. international arbitration, belt and road initiative, digital competitiveness, technology and arbitration, remote hearing, arbitration institutions, cybersecurity and data protection
{"title":"Digital Readiness Index for Arbitration Institutions: Challenges and Implications for Dispute Resolution Under the Belt and Road Initiative","authors":"Allison Goh","doi":"10.54648/joia2021013","DOIUrl":"https://doi.org/10.54648/joia2021013","url":null,"abstract":"Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Crossreferenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic cooperation is required under the Beijing Joint Declaration of the ‘Belt and Road’ Arbitration Institutions, to advance best practices and protocols in the use of technology in arbitration, and address challenges such as cybersecurity and data protection.\u0000international arbitration, belt and road initiative, digital competitiveness, technology and arbitration, remote hearing, arbitration institutions, cybersecurity and data protection","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48547556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abuse, Article 18, China Jaguar, Due Process, Full Opportunity, International Arbitration Act, Reasonable Opportunity, Singapore Menon, UNCITRAL Model Law, UNCITRAL Model Rules
{"title":"Return to Reason: Reigning in Runaway Due Process Claims","authors":"Chiann Bao","doi":"10.54648/joia2021003","DOIUrl":"https://doi.org/10.54648/joia2021003","url":null,"abstract":"\u0000Abuse, Article 18, China Jaguar, Due Process, Full Opportunity, International Arbitration Act, Reasonable Opportunity, Singapore Menon, UNCITRAL Model Law, UNCITRAL Model Rules","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43597286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Paris Court of Appeal rejected a challenge to an ICC award rendered in favour of an Iranian government-owned company. That challenge was based on allegations of breaches by the tribunal of due process, of the arbitrators’ mandate, and of public policy. Of note, the public policy challenge was based on the tribunal’s alleged failure to take into consideration UN, EU and US sanctions against Iran. This decision of the Paris Court of Appeal is in line with the established French case law regarding its answer to the above mentioned three grounds of challenge, but it drew a peculiar conclusion that US sanctions, contrary to UN and EU sanctions, are not part of French international public policy, even though having the same object. Challenge of the award, French case law, breach of due process-waiver of the right to object, breach of the arbitrators’ mandate and the duty to reason the award-breach of public policy, UN, EU and US sanctions against Iran-international consensus
{"title":"UN and EU Sanctions Versus US Sanctions: Two Different Yardsticks Commentary on the Decision of the Paris Court of Appeal (International Commercial Chamber) (5th Pole, Chamber 16) of 3 June 2020, No. 21/2020","authors":"Joséphine Hage Chahine","doi":"10.54648/joia2021004","DOIUrl":"https://doi.org/10.54648/joia2021004","url":null,"abstract":"The Paris Court of Appeal rejected a challenge to an ICC award rendered in favour of an Iranian government-owned company. That challenge was based on allegations of breaches by the tribunal of due process, of the arbitrators’ mandate, and of public policy. Of note, the public policy challenge was based on the tribunal’s alleged failure to take into consideration UN, EU and US sanctions against Iran. This decision of the Paris Court of Appeal is in line with the established French case law regarding its answer to the above mentioned three grounds of challenge, but it drew a peculiar conclusion that US sanctions, contrary to UN and EU sanctions, are not part of French international public policy, even though having the same object.\u0000Challenge of the award, French case law, breach of due process-waiver of the right to object, breach of the arbitrators’ mandate and the duty to reason the award-breach of public policy, UN, EU and US sanctions against Iran-international consensus","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44434296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The legitimacy of a system of dispute resolution depends intrinsically on the trust and confidence of its users in its decision-making processes, and that in turn rests on the general adherence of those processes to the values and principles that constitute the rule of law. While international arbitration has long been a close partner of the courts in sustaining the rule of law, some of arbitration’s key features and practices – such as its consent-based limitations, its predisposition toward confidentiality, its longstanding practice of permitting parties to unilaterally appoint arbitrators, and its philosophy that parties have no right to a right answer – mean that arbitration supports an attenuated model of the rule of law. That is largely the result of conscious decisions to forgo certain rule of law values in order to realize other goals. But the problem of rising costs and delays, underpinned by arbitration’s growing procedural rigidity and lack of agility, exacts a heavy price on arbitration’s users and their confidence in arbitration, without obvious returns. We must be cognizant of arbitration’s sacrifice in terms of rule of law values when seeking to advance other objectives, and regularly reflect on whether those gains are still worth their cost. International arbitration, Rule of law, Consent, Arbitrability, Confidentiality, Multiparty disputes, Party appointment of arbitrators, Accessibility, Costs, Delays
{"title":"Arbitration’s Blade: International Arbitration and the Rule of Law","authors":"Sundaresh Menon","doi":"10.54648/joia2021001","DOIUrl":"https://doi.org/10.54648/joia2021001","url":null,"abstract":"The legitimacy of a system of dispute resolution depends intrinsically on the trust and confidence of its users in its decision-making processes, and that in turn rests on the general adherence of those processes to the values and principles that constitute the rule of law. While international arbitration has long been a close partner of the courts in sustaining the rule of law, some of arbitration’s key features and practices – such as its consent-based limitations, its predisposition toward confidentiality, its longstanding practice of permitting parties to unilaterally appoint arbitrators, and its philosophy that parties have no right to a right answer – mean that arbitration supports an attenuated model of the rule of law. That is largely the result of conscious decisions to forgo certain rule of law values in order to realize other goals. But the problem of rising costs and delays, underpinned by arbitration’s growing procedural rigidity and lack of agility, exacts a heavy price on arbitration’s users and their confidence in arbitration, without obvious returns. We must be cognizant of arbitration’s sacrifice in terms of rule of law values when seeking to advance other objectives, and regularly reflect on whether those gains are still worth their cost.\u0000International arbitration, Rule of law, Consent, Arbitrability, Confidentiality, Multiparty disputes, Party appointment of arbitrators, Accessibility, Costs, Delays","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44422674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article reviews, from a Nigerian law perspective, the judgment of the English court and the majority arbitral award in Process & Industrial Developments Ltd. (PID) v. The Federal Republic of Nigeria (FRN). The arbitral tribunal awarded record-breaking damages, totalling over USD 9 billion, inclusive of interest. The award relates to an alleged breach by the FRN of a Gas Supply and Processing Agreement (GSPA) to a facility that was never constructed by PID. The signatory of the GSPA, PID, was a British Virgin Island corporation. Although PID had incorporated a local PID Corporation in Nigeria (PIDNigeria), it never executed the GSPA. This article is divided into three sections. Section 1 features the introduction and a general commentary. Section 2 focuses on the second leg of the FRN’s objection: ‘Whether or not the Claimant failed to comply with the provisions of section 54 of the Company and Allied Matters Act (CAMA) 1990 as alleged, and if so whether the GSPA is void, and/or affected by illegality, as a result’. This article does not discuss the first leg of the FRN’s objection, namely, the capacity of theMinistry of Petroleum Resources to contract on behalf of the FRN. Section 3 examines the consequences of the order issued by the Federal High Court of Nigeria (FHC) on FRN’s application, restraining the parties from proceeding with the arbitral hearing, which the tribunal ignored. It considers whether the order can bind members of the tribunal who were not parties to the FHCaction; if it was proper for the tribunal to ignore the order; and the consequences of the order on the FRN. It analyses whether the principle of fair hearing was breached when the tribunal reached a determination on the issue of the seat of arbitration without taking further submissions from the parties. Fair Hearing, Arbitral Award, Tribunal, Arbitration, Expert Opinion, Foreign Companies, Illegality, Employment, Jurisdiction, Enforcement
{"title":"Enforceability of Awards Vitiated by Illegality and Fair Hearing: A Review from a Nigerian Law Perspective of PID v. FRN","authors":"Bankole Sodipo","doi":"10.54648/joia2021005","DOIUrl":"https://doi.org/10.54648/joia2021005","url":null,"abstract":"This article reviews, from a Nigerian law perspective, the judgment of the English court and the majority arbitral award in Process & Industrial Developments Ltd. (PID) v. The Federal Republic of Nigeria (FRN). The arbitral tribunal awarded record-breaking damages, totalling over USD 9 billion, inclusive of interest. The award relates to an alleged breach by the FRN of a Gas Supply and Processing Agreement (GSPA) to a facility that was never constructed by PID. The signatory of the GSPA, PID, was a British Virgin Island corporation. Although PID had incorporated a local PID Corporation in Nigeria (PIDNigeria), it never executed the GSPA. This article is divided into three sections. Section 1 features the introduction and a general commentary. Section 2 focuses on the second leg of the FRN’s objection: ‘Whether or not the Claimant failed to comply with the provisions of section 54 of the Company and Allied Matters Act (CAMA) 1990 as alleged, and if so whether the GSPA is void, and/or affected by illegality, as a result’. This article does not discuss the first leg of the FRN’s objection, namely, the capacity of theMinistry of Petroleum Resources to contract on behalf of the FRN. Section 3 examines the consequences of the order issued by the Federal High Court of Nigeria (FHC) on FRN’s application, restraining the parties from proceeding with the arbitral hearing, which the tribunal ignored. It considers whether the order can bind members of the tribunal who were not parties to the FHCaction; if it was proper for the tribunal to ignore the order; and the consequences of the order on the FRN. It analyses whether the principle of fair hearing was breached when the tribunal reached a determination on the issue of the seat of arbitration without taking further submissions from the parties.\u0000Fair Hearing, Arbitral Award, Tribunal, Arbitration, Expert Opinion, Foreign Companies, Illegality, Employment, Jurisdiction, Enforcement","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43807770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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