Case Review

On October 9, the Dutch and Nigerian subsidiaries of Italian Eni have filed a request for arbitration at ICSID. The dispute revolves around Shell and Eni’s 2011 purchase of the Oil Prospecting Licence (“OPL 245”) from the company Malabu Oil and Gas Limited (“Malabu”) for USD $1.3 Billion.

In summary, it is vital to place this case in the broader context of the African Continental Free Trade Area (AfCFTA). Regional financial integration of the sort discussed above, (such as an integrated banking market or a banking union), would significantly benefit the AfCFTA in the light of the bigger regional markets in trade that is now in operation.

In this piece, we follow up on Uzodinma’s arguments, especially as it relates to the broader significance of the prima facie case put forward by Nigeria that ‘the GSPA, the arbitration clause in the GSPA and the awards were procured as the result of a massive fraud perpetrated by P&ID.’ Nigeria further argued that ‘to deny them the opportunity to challenge the Final Award would involve the English court being used as an unwitting vehicle of the fraud.’

In Federal Republic of Nigeria v. Process & Industrial Developments Limited (‘Nigeria v. P&ID’),[1] the English court was faced with an application for extension of time to challenge an arbitration award delivered well over two years before the application. The court granted the application despite the delay, on the basis that there was a strong prima facie case of fraud involved. This paved the way for a thorough inquiry into the allegations of fraud, which if proven, would upset the validity and finality of the arbitration award. This article will review the judgment of the court in Nigeria v. P&ID and highlight its contribution to jurisprudence on determining the point at which an allegation of illegality will be allowed to threaten the finality of an award.

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. In at least two instances within the last three years, courts have overturned presidential elections. In addition, an increasing number of non-gubernatorial electoral disputes are being judicialized in national and international courts. There are examples from Malawi, Zambia, Nigeria and Kenya.

The Award in Oded Besserglik v. Republic of Mozambique, one of the very few publicly known intra African treaty-based investment arbitration cases, was issued 29th October 2019. The case started when in March 2014, a South African national (Mr. Besserglik) filed an application, before the International Center for the Settlement of Investment Disputes (ICSID), against the Mozambique (the Respondent) on the grounds that his shares and interests in a joint fishing venture with some Mozambican State-owned enterprises, as well as his vessels, were unlawfully and fraudulently appropriated by the Respondent.

These cases are usually brought by public-spirited individuals, human rights lawyers, NGO’s and civil society groups; all of whom have been variously accused of inviting the court to put its jurisdictional treaty limits. Karua’s case, therefore, also invites the court to resolve and settle the debate on its express versus implied jurisdiction and powers in matters regarding human rights, democracy and rule of law.

Despite the existing EAC legislation, citizens continue to face challenges to movement of goods and persons across the borders. The ability of EAC citizens to enforce these trade commitments has been grossly underused, and such disputes have been referred to diplomatic means for resolution. It can only be hoped that moving forward, more persons will seek legal redress for such disputes.