BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
IN THE MATTER OF AN ARBITRATION CLAIM
IN THE MATTER OF ICC ARBITRATIONS
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
Sitting as a Judge of the High Court
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(1) AFRICA FINANCE CORPORATION (2) ECOBANK NIGERIA LIMITED (3) FIDELITY BANK PLC (4) FIRST BANK OF NIGERIA LIMITED (5) GUARANTY TRUST BANK PLC (6) SHELL WESTERN SUPPLY AND TRADING LIMITED (7) STERLING BANK PLC (8) UNION BANK OF NIGERIA PLC (9) ZENITH BANK PLC |
Claimants |
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- and - |
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AITEO EASTERN E & P COMPANY LIMITED |
Defendant |
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Stephen Houseman QC and Tom Ford (instructed by Stewarts Law LLP) for the Defendant
Hearing dates: 22-24 March 2022
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Crown Copyright ©
Sir Nigel Teare :
Subject to Clause 41.2 (Finance Parties' option), any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination or any non-contractual obligations arising out of or in connection with this Agreement (a "Dispute") shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "ICC") in force at that time (the "ICC Rules"), which ICC Rules are deemed to be incorporated by reference into this Clause 41.1.
Subject to Clause 41.2 (Finance Parties' option), any Party to this Agreement (other than an Obligor) may elect to refer for final resolution any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination or any non-contractual obligations arising out of or in connection with this Agreement (a "Dispute") by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "ICC") in force at that time (the "ICC Rules"), which ICC Rules are deemed to be incorporated by reference into this Clause 41.1.
(a) "…acting in any way or manner or taking any step to interfere with the res of this dispute by giving effect to the content of the [Demand Letter], or taking any step to enforce any right in respect of alleged indebtedness of the plaintiff (being contested and disputed in this suit)"; and
(b) "…acting on or taking any step pursuant to or in furtherance of the [Demand Letter], from taking over, obstructing, or interfering in any way or manner howsoever with the running of the business of the Plaintiff…".
"I have not even seen any of the processes. Now all parties are before me and all parties have filed their processes and these are processes that the Court will necessarily have to look into to take one decision or the other and I do not want a situation where any party takes the law into his hands till the Court takes decision on the processes filed. Parties should restrain themselves and submit themselves to the jurisdiction of the Court."
The application for a final anti-suit injunction
Strong reasons
The application to set aside
"Failure to identify s.5 ACA or explain the differences between it and the chosen modes of jurisdiction challenge; thereby eliding these very different concepts, concealing the existence or exercise of a choice, and avoiding any explanation for such choice by the Lenders."
"the implicit representation that the appeal route was believed at the relevant time (and for objective reasons) to be the most or more or even an 'efficient' and/or 'effective' means of challenging local jurisdiction ...There was no evidence for this."
"The delay is justifiable or excusable on the basis that the Lenders have sought to resolve matters by way of an appeal to the Nigerian courts on the issue of jurisdiction, coupled with commercial negotiations that included the issue of discontinuance of the Nigerian proceedings ...In the end neither has proved efficient or effective, and now the Lenders seek the assistance of this Court."
"The concealment of the Lenders' own abusive conduct in maintaining inconsistent positions in the first and second seised forums, namely: (i) Ground 1.e. of the Notice of Appeal vs Pugh 1 paragraphs 60(a); and (ii) the November 2019 Sworn Assurances."
"The suggestion that logistical difficulties slowed down the decision to seek ASI relief, when this was not so as a matter of fact."
"The contention in A&O's First Letter that an arbitration agreement ousts the jurisdiction of the Nigerian Court (as reflected in the Notice of Appeal, Grounds 1 & 3) which is both wrong (as since accepted) and underpinned the contempt analysis at the 14 December Hearing."
"The failure to analyse the scope of the IIO or real contempt risk in seeking ASI relief and suggestion that contempt would have no relevance to the Court's exercise of discretion to grant ASI relief. As to Nigerian law, Mr. Ayorinde accepted that, despite a party appealing and seeking a stay of execution, it cannot do and may be punished for doing something that will destroy the res or render the appellate court's decision "useless"."
"Service of foreign process in Nigeria"
Proceeding ex parte
Conclusion