Case of the Day: Continental Transfert Technique Ltd. v. Nigeria
Posted on August 9, 2011
The case of the day is Continental Transfert Technique Ltd. v. Federal Gov’t of Nigeria (D.D.C. 2011). An earlier decision provides the factual background. In 1999, Continental contracted with the Nigerian government to produe computer-compatible identification cards. The contract contained an interesting arbitration clause, providing that any dispute
shall be referred to arbitration in accordance with the provisions of the [Nigerian Arbitration & Conciliation Act]. Both parties shall appoint an arbitrator who shall preside over the matter. The Law governing the proceedings shall be Nigeria[n] Law and the award of the arbitrators shall be final and binding on all the parties hereto.
(The clause is interesting because the arbitration took place in London, even though the parties chose Nigerian law not just as the law governing the substance of the dispute, but as the lex arbitri. Ordinarily, if parties choose arbitration in London, they will choose the law of England as the law governing the arbitration. It’s not clear from the decision whether the seat of the arbitration was London, or whether the parties or the tribunal simply decided to hold hearings there—hearings need not be held at the seat of the arbitration. I would hope that Nigeria was the seat of the arbitration, since it’s difficult to come up with good reasons to designate a law other than the law of the seat of the arbitration as the lex arbitri).
After a dispute arose under the contract, Continental initiated an arbitration in 2007, and Nigeria raised counterclaims. The case was arbitrated at the ICSID in London. In 2008, the tribunal issued an award finding Nigeria liable to Continental for about $252 million.
Continental sought recognition and enforcement of the award in both the District of Columbia and in England. In the English proceeding, the High Court preliminarily granted recognition and enforcement. In the DC proceeding, Nigeria defaulted after having accepted service of process, and the clerk entered its default. Continental then moved for a default judgment, and Nigeria moved for a stay to enable it to move to vacate the default judgment. The court granted the motion, and Nigeria then applied to Nigeria’s Federal High Court for an order setting aside the award and for a preliminary order enjoining Continental from seeking recognition and enforcement anywhere in the world. The Nigerian court granted the injunction, but litigation on the main question stalled.
In light of the Nigerian proceedings, Nigeria moved for dismissal of the US case, and Continental obtained a final judgment from the English court. Continental then amended its complaint in the US case to add a claim for recognition and enforcement of the English judgment under the District of Columbia’s enactment of the Uniform Foreign-Money Judgments Recognition Act. Nigeria sought a stay of the English judgment, and the English court granted a stay, but only on the condition that Nigeria post a £ 100 million bond, which Nigeria failed to do. The Nigerian Federal High Court ultimately denied the government’s application to set aside the award and held that the award was entitled to recognition and enforcement in Nigeria, and that Continental could seek recognition and enforcement elsewhere.
On these facts, Judge Friedman granted summary judgment for Continental. Continental did not point to any of the grounds for refusal of recognition and enforcement of an award permissible under the New York Convention, so in essence, there was nothing for the court to decide once the Nigerian proceedings to set aside the award were concluded. Interestingly, Judge Friedman also granted summary judgment to Continental on recognition and enforcement of the English judgment. Nigeria had not offered any arguments against recognition and enforcement, so again, this was a foregone conclusion. But it seems to me that a party that is seeking recognition and enforcement of an award should have to seek recognition and enforcement of the award itself, not of a foreign judgment that itself granted recognition and enforcement to the award. The German Bundesgerichtshof reached that conclusion in 2009. But offhand, I don’t know of any US case on point. Seeking recognition of a foreign judgment that had previously recognized an arbitral award seems too much like a double exequatur, which was the main problem the New York Convention was intended to remedy; but on the other hand, just because double exequatur is not required under the Convention, it does not necessarily follow that judgments recognizing awards are not themselves entitled to recognition.