Nigerian Agip Exploration Ltd v GEC Petroleum Development Co Ltd 2023 EWHC 414 Comm - 17 February 2023
The claimant, Nigerian Agip Exploration Limited, is a Nigerian subsidiary of ENI SpA, an Italian energy company with multi-national business interests and operations. The defendant is a Nigerian company involved in the exploration and development of oil and gas reserves in Nigeria.
By a series of agreements, the claimant and the defendant entered into business together in relation to what was originally an offshore oil prospecting licence granted to the defendant by the Nigerian Government, given the code name OPL 2009. The agreements between these parties were: a Farm In Agreement, dated 16 July 2010; a Joint Operating Agreement, dated 11 April 2014; and a Technical Service Agreement, also dated 11 April 2014.
All three of those agreements contained a term requiring disputes, if they arose between the parties, to be referred to arbitration in London under the rules of the ICC. Disputes having arisen between the parties, the claimant commenced arbitration in August 2018.
The claimant made a primary claim for damages in excess of $200 million, alleging misrepresentations by the defendant as to its financial capabilities, and an alternative damages claim for breach of contract in a sum a little in excess of $30 million. The defendant participated generally in the arbitration until November 2020. The arbitration has relatively recently culminated in a final award, dated 19 October 2022. By the final award, the arbitral tribunal, having considered the merits of the claimant’s primary and alternative claims with conspicuous fairness and care, dismissed the primary claim, broadly speaking on the grounds that, whatever else may have been true, inducement and loss had not been made out in relation to any misrepresentation. However, they allowed, but in a reduced amount, the alternative claim for damages for breach of contract, awarding, prior to interest and costs, a sum of around $22 million. For the purposes of this judgment, the precise amounts do not matter.
These proceedings were commenced by the claimant in March 2021 in response to proceedings commenced in Nigeria in late 2020 brought by the defendant (as claimant in Nigeria) against the claimant (as defendant in Nigeria), not joining the ICC arbitrators as defendants but in which the defendant (as claimant before the Nigerian court) obtained ex parte an injunction addressed to those arbitrators which directed them not to proceed further with the arbitration.
In consequence, this matter came before the court initially, ex parte, on 3 March 2021. On that occasion, HHJ Pelling KC (as he now is) granted an interim anti-suit injunction aimed at preventing the Nigerian court proceedings from proceeding any further. That interim relief effectively served its purpose in that the defendant, in response, filed a notice of discontinuance in those Nigerian proceedings. The injunction directed to the arbitrators therefore fell away and there was no ongoing restraint upon the completion of the arbitration.