P&ID

Justice Robin Knowles’ decision in the Nigeria v. P&ID case has received, rightly so, its fair share of international attention from arbitrators, scholars, legal practitioners and commentators alike. The decision has had a seismic effect, if not drawing significant attention, on the international arbitration landscape, for two reasons. Firstly, while the subject award is not the first to be set aside on account of fraud and/or breach of public policy of the seat of arbitration, such decisions are rare and far in between. One would have to go back years, if not decades, to find an award set aside on these grounds. Secondly, the decision has significantly redefined arbitration as we understand it, shaking it to the core, reigniting discussions on its viability and suitability, particularly in matters regarding investor-state disputes.

“You want to tell us you don’t want to sow, you want to reap” asked the Nigerian appointed arbitrator, Chief Bayo OJO, during oral argument in the arbitration proceedings, to which Nigerian counsel, Chief Ayorinde, responded: “You cannot reap where you do not sow. That is a very Nigerian saying.” (Nigeria v. Process & Industrial Development, para. 360). The Chair of the Tribunal, Lord Hoffmann, then intervened with his own cultural reference and said: “There is a passage in I think it is Shakespeare’s Henry VI where one of the rebels says: ‘Isn’t it terrible that people should be able to get into such trouble just by signing a document? Let’s kill all the lawyers.’” (Nigeria v. Process & Industrial Development, para. 360). Perhaps, underneath all the arbitral extravagance and incalculable network of disturbing corruption lurks a least appreciated cultural milieu worth $11 billion dollars.

This case has also, sadly, brought together a combination of examples of what some individuals will do for money. Driven by greed and prepared to use corruption; giving no thought to what their enrichment would mean in terms of harm for others. Others that in the present case include the people of Nigeria, already let down in so many ways over the history of this matter by a number of individuals in politics and administration whose duty it was to serve them and protect them.