AIC Ltd v The Federal Airports Authority of Nigeria  EWCA Civ 1585 - 26 November 2020
THE FACTUAL BACKGROUND
AIC is a Nigerian construction and property development company. FAAN is an entity incorporated by a Nigerian governmental decree. It operates and maintains Nigeria's federal airports. The evidence demonstrates that FAAN is, to all intents and purposes, a State Agency. Its revenues are its own, and its Governing Board has the power to decide how that revenue may be spent.
By a Deed of Lease dated 17 February 1998, FAAN leased a site at Lagos airport to AIC for a term of fifty years, in order that AIC could develop a hotel and resort complex there. However, by letter dated 16 May 2000, FAAN directed AIC to refrain from work on the hotel development, and AIC have never been permitted to continue with the construction of the hotel and resort. AIC claimed damages against FAAN for this breach of the Deed of Lease.
The dispute between the parties was referred to a Nigerian-seat arbitration in accordance with an agreed arbitration clause. The commencement of the arbitration was delayed for 6 years because FAAN refused to appoint (or agree to the appointment of) an arbitrator. Eventually there was a full hearing. On 1 June 2010, the Award was made by Mr Justice Kayode Eso in favour of AIC in the sum of over US $48 million together with interest. It has never been suggested that this was anything other than a valid arbitration award.
In July 2010, FAAN applied in the Nigerian High Court to set aside the Award on various grounds. Although that challenge was upheld at first instance by Buba J, it was overturned on appeal (albeit on a jurisdictional issue). FAAN sought to appeal again, this time to the Supreme Court of Nigeria. Unhappily, ten years after the promulgation of the Award, the appeal in respect of the application to set aside has still not been resolved, and no-one can say when it might even be considered. Indeed, the gloomy view was expressed that resolution of the matter in Nigeria could still be many years away.
On 10 January 2019, AIC applied to the English Courts for permission to enforce the Award in the same manner as a judgment or order of the High Court, pursuant to section 101 of the Arbitration Act 1996. On 28 February 2019, an order giving such permission was made by Mrs Justice O'Farrell ("the O'Farrell Order"). This provided that, pursuant to sections 101(2) and 66(1) of the Arbitration Act 1996, AIC had permission to enforce the operative part of the Award and to enter judgment against FAAN. The O'Farrell Order also stated that FAAN was entitled to apply to the Technology and Construction Court to set aside the Order within 22 days of service of the order on FAAN and that, in accordance with CPR r.62.18(9)(b), the Award must not be enforced by AIC until after the expiry of that period.