Tag Archives: arbitration

Case of the Day: Enron Nigeria Power Holding v. Nigeria

The case of the day is Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria (D.C. Cir. 2016). Nigeria was party to a contract for construction of electrical facilities with ENPH. The contract was made in 1999, but almost immediately thereafter Nigeria suspended implementation, after it received a letter from the World Bank criticizing the economics of the contract. Soon thereafter, the Nigerian attorney general opined that the contract was invalid under Nigerian law. Although Enron sought Chapter 11 bankruptcy protection in 2011, ENPH informed Nigeria at the time of the bankruptcy that it was able to perform its obligations under the contract. After years of trying to renegotiate, ENPH demanded an arbitration by the ICC’s International Court of Arbitration, in London. The ICC entered an award in favor of ENPH, and ENPH sought confirmation in Washington. The district court confirmed the award, and Nigeria appealed.
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Case of the Day: Hardy Exploration v. Government of India

The case of the day is Hardy Exploration & Production (India), Inc. v. Government of India (D.D.C. 2016). Hardy was a participant, initially with other private firms and later on its own, then in the end with an Indian state-owned company, GAIL (India) Ltd., in a contract with the government of India for the development and production of hydrocarbons in an area off India’s southeastern coast. After Hardy and GAIL found hydrocarbons in 2006, a dispute arose as to whether the find was natural gas (as the government thought) or oil (as Hardy and GAIL thought). If the find was oil, then Hardy, for reasons unimportant here, would have forfeited its interest under the contract. Hardy demanded arbitration in Kuala Lumpur, as per the parties’ arbitration agreement. The tribunal found that Hardy’s position was correct, ordered a restoration of the status quo ante, and awarded damages of 5 billion rupees (about $74 million). India sought to vacate the award in the Indian courts (not the Malaysian courts), but its petition was dismissed. Hardy filed a petition to enforce the award in India, and then sought confirmation in Washington. India’s defense was that service of process (by FedEx) was defective under the FSIA. Hardy countered that the contract contained a special arrangement for service of process, and that service was therefore proper under 28 U.S.C. § 1608(a)(1).
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Case of the Day: In re Kleimar N.V.

The case of the day is In re Application of Kleimar N.V. (S.D.N.Y. 2016). Kleimar was engaged in an arbitration against Dalian Dongzhan Group Co. before the London Maritime Arbitration Association. Kleimer brought a § 1782 application seeking leave to take discovery from Vale S.A., a non-party, for use in the arbitration. The issue was whether the LMAA tribunal, a private arbitral tribunal, is a “tribunal” for purposes of § 1782.
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