Headlines
Nigeria Loses Sovereign Immunity Claim As US Court Upholds $70m Award to Chinese Firm
Nigeria’s claim to sovereign immunity cannot stand in a commercial venture, a US Appeal Court has ruled.
The court rejected Nigeria’s sovereign immunity defence to the enforcement of a $70 million investment treaty award won by Zhongshan Fucheng Industrial Investment Co. Ltd., a Chinese investor, in a free trade zone.
Nigeria had “gruesomely” violated both fundamental and commercial rights of the Chinese firm, judges at the US Court of Appeals in Washington DC ruled.
In a 2-1 verdict delivered on August 9, documents of which are attached, majority ruling affirmed the judgment of the US district court for the District of Columbia that held that the arbitration award is enforceable.
In January 2023, Beryl Howell, the presiding judge of the lower court, dismissed Nigeria’s argument that the court did not have jurisdiction over the case since the country is a sovereign entity.
Howell held that the court has jurisdiction since the United Kingdom (UK), where the $70 million arbitration award was issued against Nigeria, is a signatory to the New York Convention.
In 2010, Zhongshan, through Zhuhai Zhongfu Industrial Group Co. Ltd. (Zhuhai), its Chinese parent company, acquired rights to develop a free trade zone in Ogun state.
A year later, Zhongshan set up Zhongfu International Investment (NIG) FZE (Zhongfu), a Nigerian entity, to manage the project under the permission of the Ogun state government.
However, things took a different turn in July 2016 when the investor accused the state government of abruptly moving to terminate its appointment while attempting to install a new manager for the free trade zone.
Subsequently, Zhongfu initiated an investment treaty arbitration against Nigeria under the bilateral investment treaty between the People’s Republic of China and Nigeria (the China-Nigeria BIT).
The arbitrators had ruled that Nigeria was in breach of its obligations under the China-Nigeria BIT and awarded Zhongshan compensation of around $70 million.
In January 2022, the Chinese company initiated a case to seek enforcement of the arbitration award.
Nigeria pleaded state immunity but was turned away by Sara Cockerill, a high court judge in the UK, who said the country abused the time frame for appealing arbitral awards.
In the majority judgment, the US appellant court held that the final arbitration award is enforceable under the New York convention since the dispute is between “persons” that share a legal commercial relationship.
The court ruled that the Foreign Sovereign Immunities Act (FSIA) arbitration exception stripped Nigeria of the sovereign immunity in the arbitration award case.
“For the foregoing reasons, we hold that the final award is enforceable under the New York convention because it arose out of differences between ‘persons’ that share a legal, commercial relationship,” the majority judgment reads.
“The district court therefore has jurisdiction over this case under the FSIA’s arbitration exception. The judgment of the district court is affirmed.”
The majority judgment was issued by Patricia Millett and Julianna Childs.
In the dissenting judgment, Gregory Katsas, the third judge, argued that when the New York convention was drafted, the word “persons” did not include a sovereign nation.
Katsas held that the action of Ogun State cannot be attributed to Nigeria, adding that the arbitration award “arises solely out of Nigeria’s sovereign acts governed by public international law”.
“Text, legal context, and drafting history all indicate that the word ‘persons,’ as used in the New York Convention, does not include signatory nations acting as sovereigns. I respectfully dissent,” Katsas said.
Three days after the judgment of the US appeal court, a Paris court in France ordered the seizure of three jets belonging to the Nigerian government over the dispute involving the arbitration award to the Chinese firms.
In 2023, a court of appeal in the UK ruled that Nigeria is liable for a $70 million arbitration award in favour of the Chinese firm.
The development means that Nigeria has lost arbitration award cases against the Chinese firm in France, the US, and the UK.
The Nigerian government has accused the Chinese firm of attempting to use deceptive means to acquire the country’s offshore assets.
Agency Report
Below is the detailed judgment:
United States Court of Appeals
By Eric Elezuo
Former Vice President Atiku Abubakar has been declared winner of the presidential primary of the African Democratic Congress (ADC).
The declaration was made at the Trascorp Hilton Hotel, where the final collation of results was made.
The former Vice President polled a total of 1, 846, 370 votes to defeat his closest rival, former Governor of Rivers State, Hon Rotimi Amaechi, who scored just over 500 thousand votes. Alhaji Muhammed Hayatu-Deen came third.
Headlines
ADC Presidential Primary: Hayatu-Deen Alleges Rigging, Withdraws from Results Announcement
One of the presidential aspirants of the African Democratic Congress (ADC), Mohammed Hayatu-Deen, says he will not attend the announcement of the party’s presidential primary election results, citing allegations of widespread vote rigging.
In a statement on his X handle on Tuesday, Hayatu-Deen expressed concern over reports of electoral irregularities from across the country.
The ADC aspirant noted that he witnessed some of the incidents.
“I will not be attending the announcement of the ADC Presidential Election Results today. I am concerned by reports from across the country of widespread vote rigging, some of which I myself observed, and will therefore be taking advice on my next steps,” the statement read.
The development comes amid keen competition for the ADC presidential ticket involving former Vice President Atiku Abubakar, former Minister of Transportation and former Governor of Rivers State, Chibuike Rotimi Amaechi, and Hayatu-Deen.
The ADC presidential primary election collation exercise will take place in Abuja. Results are expected from across the nation.
Ahead of the nationwide presidential primary held on Monday, the ADC had urged aspirants, party leaders, delegates, and members to conduct themselves peacefully and uphold party unity.
In a statement issued in Abuja on Sunday, the party’s National Publicity Secretary, Bolaji Abdullahi, described the exercise as a defining moment for both the ADC and Nigerians seeking a credible political alternative.
According to him, the party remained committed to internal democracy and a transparent leadership selection process.
“The ADC remains proud to stand today as the only truly democratic party in Nigeria because it is the only political party whose choice of presidential candidate is determined through open primaries,” Abdullahi stated.
The party also stressed that the conduct of aspirants and party members during the exercise would reflect the leadership culture the ADC seeks to promote.
Headlines
You’re Not Different from APC, INEC, Amaechi Slams ADC, Rejects Presidential Primary Results
A former Minister of Transportation, Chibuike Rotimi Amaechi, has rejected the results of the African Democratic Congress (ADC) presidential primaries, alleging widespread voter disenfranchisement and electoral malpractice.
Amaechi, in a statement posted on his X handle on Tuesday, described the outcome of the exercise as “concocted results.”
He said he had earlier made it clear that he would only accept the outcome of the primaries if the process was free, fair and transparent.
“I will not accept results from a process that does not reflect the values that the ADC had pledged to uphold,” he said.
Amaechi alleged that about 80 percent of party members across the country were prevented from voting during the exercise.
“There’s no way that about eighty percent of members of the party were not allowed to vote, and you expect me to accept such results,” he stated.
The former Governor of Rivers State accused the party of engaging in practices it had previously condemned in the ruling All Progressives Congress (APC) and the Independent National Electoral Commission (INEC).
According to him, the ADC cannot criticize vote buying, rigging and manipulation of election results by others while allegedly engaging in similar acts during its own primary.
Amaechi added that the development was unacceptable and contrary to the ideals upon which the party was founded.
