International Law

U.K. Arbitral Award Recognized, and Resulting U.K. Money Judgment Enforced, By U.S. Court against Nigeria; FSIA Issues Ignored

 

By Louis M. Solomon

Continental Transfert Technique Limited v. Federal Government of Nigeria, Civil Action No. 08-2026 (D.D.C. Aug. 2011), [enhanced version available to lexis.com subscribers] grants summary judgment in favor of a plaintiff to enforce both an arbitral award and a money judgment. As to both grounds there are interesting international practice rulings in the decision.

The matter arose out of an arbitration award issued in the United Kingdom under Nigerian law. On prevailing in the arbitration, Continental applied to a U.K. court to have the award recognized. Nigeria defended by seeking a stay of the proceeding based on its challenging the award in a Nigerian court. The U.K. court granted the stay provided that Nigeria pose security of 100 million pounds, which Nigeria didn't do.

In the proceedings here, Continental sought in its complaint to enforce the arbitral award under the Federal Arbitration Act (FAA) and the New York Convention (the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, [enhanced version ] reprinted in 9 U.S.C. § 201) (for users of this blog, see the International Documents Library link on this blog page)). It thereafter sought to enforce the U.K. judgment under the Uniform Foreign-Money Judgments Recognition Act, which the District of Columbia enacted in D.C. Code §§ 15-381 et seq. (UFMJRA).  While these proceedings were pending, the Nigerian court apparently found that the award "cannot be set aside" and "is VALID and ENFORCEABLE".

It was on this record that the District Court made its rulings:

First, the Court determined that the New York Convention contemplated summary proceedings to recognize or enforce an arbitral award unless the Court finds one of the specific grounds for refusal to do so that are specified in the Convention. The District Court rejected Nigeria's argument, which was that the U.S. proceedings should be stayed because "Nigeria cannot challenge the substance of the award elsewhere" (i.e., other than in Nigeria). The rejection was due in part to the Nigerian court's rejection of the challenge to the award. The District Court did not address whether Nigeria was right in its assertion that it could challenge the award only in Nigeria. The New York Convention provides:

The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made".

So it would appear that there were other forums for Nigeria to challenge the award; indeed, there is no evidence from the decision that Nigeria was even an appropriate place (it would only be if Nigerian law governed the arbitration).

Second, the Court ruled that under the UFMJRA it was required to give the U.K. judgment full faith and credit, again on summary judgment.

The Court did not address any Foreign Sovereign Immunity Act issues that might arise from the attempt to enforce the judgment against a non-U.S. sovereign (see our discussion of attempts to enforce non-U.S. judgments against non-U.S. sovereigns).

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