"If the parties have not previously agreed on the place of arbitration, the place of arbitration shall be determined by the Arbitral Tribunal having regard to the circumstances of a case. The Award shall be deemed to have been made at the place of the arbitration."
"signifies the Parties' agreement that London is the place and juridical seat of this arbitration within the meaning of Article 18(1) of the UNCITRAL Rules and Section 3(a) of the Arbitration Act 1996 of England & Wales."
"66. Enforcement of the Award
(1) An Award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is so given, judgment may be entered in terms of the Award.
(3) Leave to enforce an Award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the Award. The right to raise such an objection may have been lost (see section 73)."
(1) Gave the respondent leave to enforce the Award in the same manner as a judgment, pursuant to section 66 of the Arbitration Act 1996;
(2) Entered judgment against the Applicants substantially in the terms of the Award;
(3) Ordered that the Applicants pay the costs of the application, summarily assessed as £10,505;
(4) Permitted the Applicants to set aside the Recognition Order within 30 days after service of the same;
(5) Ordered that the Recognition Order could not be enforced until after the end of the aforementioned 30-day period, or until any application made by any of the Applicants within that period had been finally disposed of.
"as Nigeria is now in possession of the evidence upon which [the Respondent] relied on in making the [Recognition Application], it should be able to now determine whether or not it considers it has any grounds for seeking to have the [Recognition Order] set aside".
"23. There is no doubt that the obligation on a party seeking relief ex parte to make full, frank and fair disclosure is of the greatest importance. It is necessary to allow the Court to fulfil its obligations under Article 6 of the European Convention on Human Rights, and is the corollary of the Court's being prepared to depart from the ordinary position that it should hear both sides before making a decision. As it was put by Popplewell J in Fundo Soberano de Angola v Dos Santos  EWHC 2199, at , 'It is a duty owed to the court which exists in order to ensure the integrity of the court's process'.
24.The essential principles were stated in Brink's Mat Ltd v Elcombe  1 WLR 1350 by Ralph Gibson LJ at 1356-1357 as follows:
In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following.
(1) The duty of the Applicant is to make 'a full and fair disclosure of all the material facts: see Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac  1 K.B. 486, 514, per Scrutton LJ.
(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the Applicant or his legal advisers: see Rex v. Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504, citing Dalglish v. Jarvie (1850) 2 Mac. & G. 231, 238, and Browne-Wilkinson J. in Thermax Ltd. v. Schott Industrial Glass Ltd.  F.S.R. 289, 295.
(3) The Applicant must make proper inquiries before making the application: see Bank Mellat v. Nikpour  F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the Applicant but also to any additional facts which he would have known if he had made such inquiries.
(4) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the Applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the Defendant: see, for example, the examination by Scott J. of the possible effect of an Anton Piller order in Columbia Picture Industries Inc. v. Robinson  Ch. 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade L.J. in Bank Mellat v. Nikpour  F.S.R. 87, 92-93.
(5) If material non-disclosure is established the court will be 'astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure … is deprived of any advantage he may have derived by that breach of duty:' see per Donaldson L.J. in Bank Mellat v. Nikpour, at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioners' case  1 K.B. 486, 509.
(6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the Applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the Applicant to make all proper inquiries and to give careful consideration to the case being presented.
(7) Finally, it 'is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:' per Lord Denning M.R. in Bank Mellat v. Nikpour  F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.'"
25.In Konamaneni v Rolls Royce Industrial Power (India) Ltd  1 WLR 1269, at para. 180, Lawrence Collins J [as he then was] gave the following summary:
On an application without notice the duty of the Applicant is to make a full and fair disclosure of all the material facts, ie those which it is material (in the objective sense) for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the Applicant or his legal advisers; the duty is a strict one and includes not merely material facts known to the Applicant but also additional facts which he would have known if he had made proper enquiries … But an Applicant does not have a duty to disclose points against him which have not been raised by the other side and in respect of which there is no reason to anticipate that the other side would raise such points if it were present'.
26. Furthermore, if the duty has been breached, the court retains a discretion to continue or re-grant the order if it is just to do so. In Millhouse Capital UK Ltd v Sibir Energy plc  EWHC 2614 (Ch), Christopher Clarke J said, at -:
 As to the future, the Court may well be faced with a situation in which, in the light of all the material to hand after the non-disclosure has become apparent, there remains a case, possibly a strong case, for continuing or re-granting the relief sought. Whilst a strong case can never justify non-disclosure, the Court will not be blind to the fact that a refusal to continue or renew an order may work a real injustice, which it may wish to avoid.
 As with all discretionary considerations, much depends on the facts. The more serious or culpable the non-disclosure, the more likely the Court is to set its order aside and not renew it, however prejudicial the consequences. The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the Court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose.'"
"…The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court's discretion. A fact is material if it would have influenced the judge when deciding whether to make the order or deciding upon the terms upon which it should be made." (emphasis added)
… issues of non-disclosure or abuse of process in relation to the operation of a freezing order ought to be capable of being dealt with quite concisely. Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself …
Secondly, where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion …
I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view that the judge should not lose sight of the wood for the trees …
In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion …'
'Non-disclosure of material fact in an application made without notice may lead to the setting aside of the order obtained without examination of the merits. It is important to uphold the requirement of full and frank disclosure'. However, 'the court has a discretion to set aside or to continue the order whether the fact not disclosed in sufficient materiality to justify or require the immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important although not decisive consideration.'
(1) In Nagel Cockerill J set aside an order granting permission to serve the claim form outside the jurisdiction because England was not the forum conveniens. Had she not done so, Cockerill J would have set the order aside on the basis of material non-disclosure due to the claimant's failure to disclose the existence and content of a Belgium judgment on jurisdiction in related Belgium proceedings. The breach was found to be serious and deliberate.
(2) In General Dynamics, Butcher J rejected an application to set aside an order for permission to enforce an Award and for judgment in terms of the Award under section 101 of the Arbitration Act 1996 by failing to inform the court that there was only one recognised Government in Libya and that Libya had adjudicative and enforcement immunities under the State Immunity Act 1978 ("SIA"). Butcher J did not consider that the failure to refer to the immunity of s.1 of the SIA to be of significant importance.'
'I use the words "in an appropriate case" because the language of the section is permissive. It does not involve an administrative rubber-stamping exercise. The court has to make a judicial determination whether it is appropriate to enter a judgment in the terms of the Award. There might be some serious question raised as to the validity of the Award or for some other reason the court might not be persuaded that the interests of justice favoured the order being made, for example because it thought it unnecessary. But in this case the Defendants have not Challenged before this court the propriety of the exercise of the judge's jurisdiction, if he had any, to make an order under section 66. Their argument has been limited to contending that he had no jurisdiction to do so.'"
"The guidance as to the criteria by reference to which that discretion is to be exercised (so far as relevant to the present application) can be summarised as follows:
i) Leave should readily be given to enforce an Award as a judgment (Middlemiss & Gould v Hartlepool Corporation  1 WLR 1643, 1646H, rejecting the more cautious approach previously suggested by Scrutton LJ in In re Boks & Co and Peter Rushton & Co Ltd  1 KB 491, 497).
ii) Despite some suggestions to the contrary (see e.g. Margulies Bros Ltd v Dafnis Thomaides & Co (UK) Ltd (No 2)  1 Lloyd's Rep 205, 207 and Tongyuan (USA) International Trading Group v Uni-Clan Ltd 19 January 2001, transcript pages 19-20), it is now clear that a declaration made by the arbitrator can be the subject of an order under s.66: see African Fertilizers and Chemicals NIG Ltd (Nigeria) v BD Shipsnavo GmbH & Co Reederei KG  2 CLC 761,-; The Front Comor  EWHC 819 (Comm) ;  EWCA Civ 312, -.
iii) If the relief granted by the Award is not sufficiently clearly stated, that will be a reason to refuse a s.66 order. This was the position in Margulies Bros Ltd, where the Award was intended to identify an amount payable by one party to the other but did not identify sufficiently clearly the amount or how it was to be calculated (as that decision has been explained in Tongyuan, p.8 and African Fertilizers, ). That includes cases in which the effect of the Award cannot be framed in terms which would make sense 'if those were translated straight into the body of a judgment' (Tongyuan, p.8) or where the operative parts of the Award which would fall to be enforced are inconsistent or ambiguous (Moran v Lloyd's  QB 542, 550: 'the executive power of the state to enforce an Award is not to be invoked in an inconsistent or ambiguous form').
iv) That applies to an Award of injunctive as well as declarative relief (e.g., Birtley & District Cooperative Society Ltd v Windy Nook and District Industrial Cooperative Society Ltd (No 2)  1 QB 1, 19).
v) In the event of such ambiguity or inconsistency (and by analogy with the position under s.100 and following of the Arbitration Act 1996), for the reasons explained in Norsk Hydro ASA v State Property Fund of Ukraine and others  EWHC 2120 (Comm) -, the court is 'neither entitled nor bound to go behind the Award in question, explore the reasoning of the arbitration tribunal or second-guess its intentions.' If, therefore, the terms of the Award are such as to render enforcement by the court's processes inappropriate without some form of elaboration or refinement, then, save in cases of true slips or changes of name, enforcement will be refused. To do otherwise 'necessarily requires the enforcing court to stray into the arena of the substantive reasoning and intentions of the arbitration tribunal.' However, 'the court should not … be astute to find difficulties of construction of Awards or, for that matter, judgments, where none really exist' (Tongyuan, 11).
vi) As is clear from the terms of the DAC Reports quoted at  above, an application under s.66 will be refused to the extent that the Award concerns a dispute which, under English law, is not arbitrable. This is one manifestation of the court's power to refuse enforcement on public policy grounds, as to which see Soleimany v Soleimany  QB 785.
vii) As noted above, the DAC reports also make it clear that an order may be refused where it 'would improperly affect the rights and obligations of those who were not parties to the arbitration agreement'. It is not necessary to determine the precise scope of this ground but it must include those cases in which the courts would refuse injunctive relief or specific performance because of the existence of a prior third party right the impact of such an order would have on third parties (see Snell's Equity 34th para. 17-035 and the reference to this principle of equity in the s.66 context by Clare Ambrose in Sterling v Rand EWHC 2560 (Ch), ).
viii) The court will not itself enter a declaratory judgment under s.66(2) in the terms of a declaration already made by the arbitrator if it is not in the interests of justice to do so, for example because such a declaration is not necessary: The Front Comor,  (Field J),  (CA)."
"iii) The granting of declaratory relief is also discretionary, albeit the factors conditioning the exercise of that discretion are essentially those of whether there is a 'live dispute', the utility of any declaration and fairness as between the parties …
There is scope for debate as to whether that requires the court to determine for itself whether a court declaration is appropriate at all (e.g. whether there is a sufficiently live controversy) or whether, as I think is likely to be the case, the issue for the court is the rather different one of whether there is any need for (in effect) a second declaration. …
iv) In approaching these questions it is also necessary to have regard to the principle of non-intervention enshrined in s.1(c) of the Arbitration Act 1996, and the strong English public policy which favours the enforcement of arbitration Awards (IPCO (Nigeria) Limited v Nigerian National  1 CLC 613, ). Clearly the s.66 application is not intended to allow an Award debtor, in general terms, to re-open battles which were (or should have been) fought in the arbitration." (emphasis added)
"Given the discretionary nature of the s.66 jurisdiction, I can see no reason why it should not be open to the court to grant a s.66 order in respect of some of the relief ordered by the arbitrator, not all of it, provided that the provisions are not interdependent, nor why the court cannot have regard to utility as a relevant criterion in doing so."
"39. I accept that the effect of making an order under s.66 on third parties is a relevant consideration for the court (see [15(iv)] above). Taking the third parties identified by Mr Shah:
'(i) It is said that Treehouse Spain may be adversely affected if the Transfer Order causes it to lose the Property, and Treehouse IOM and/or GACH may be adversely affected if the Transfer Order leads to their shares in Treehouse Spain being transferred from them. However, the Transfer Order is only directed to and binding on Mr McNally. If the Corporate Third Parties are 'true' third parties, rather than Mr McNally's privies, the Transfer Order will not bind them. If they are Mr McNally's privies, they are not third parties in the relevant sense and no issue of third party rights can arise in relation to them.'
40. In any event as I have noted above [para.37], a s.66(1) order has no immediate impact on Mr McNally and cannot have any impact on any true third parties. To the extent that any subsequent applications to use the court's enforcement processes can be shown appropriately to engage third party interests, there will be an opportunity for the court to take that consideration into account when deciding what relief to grant."
(1) It is said that Eurafric should have brought to the court's attention the Applicants' Award Challenge of 22 December 2019 in the Nigerian court, which was issued two days after the Recognition application of 20 December 2017, and that, by extension, the respondent failed to refer the court to the basis for the Applicants' Award Challenge, including the Applicants' position that the arbitral tribunal lacked substantive jurisdiction to determine certain issues (in relation to land and forgery) and (so it was alleged) the Federal High Court at Lagos, Nigeria had jurisdiction to set aside the Award because Nigerian law was the applicable law in the resolution of disputes between the parties and sections 43 and 48 of the Nigerian Arbitration and Conciliation Act dealt with international commercial arbitration regardless of whether arbitral proceedings were heard in Nigeria or not. It is said that, although the Applicants' Award Challenge was served on 16 January 2018 (i.e. the day after the Recognition Order was granted) given the nature of the dispute between the parties, it was incumbent on Eurafric to make proper enquiries as to whether any proceedings had been issued before the Nigerian courts relating to the arbitration, particularly in circumstances where the Applicants are emanations of the Nigerian State.
(2) It is said that Eurafric also failed to bring to the court's attention the NDPHC Challenge of 21 December 2017 (i.e. 1 day after the Recognition application) and (by extension) the basis for the NDPHC Challenge (namely, amongst other matters) that the Award was unenforceable as against NDPHC and its proprietary interest in seeking an order of perpetual injunction restraining the respondent from taking any further step to enforce the Award against NDPHC or its proprietary interest, which was granted on 13 June 2017 in circumstances where Eurafric had received a letter from NDPHC on 19 December 2017 (i.e. the day before it issued the Recognition Application).
(3) No effort at all was made in Bromhead 1, in support of the Recognition Application, to address either the possibility of a Challenge before the Nigerian court nor the likelihood of the NDPHC Challenge being issued, despite the respondent being notified of the same as early as 19 December 2017. There is no evidence, it is said, of any enquiries being made at that time.
"the claimant is an agency of the Federal Government of Nigeria. That Award is binding on the Federal Government of Nigeria who is a party to the arbitral proceedings and consequently, the Award is binding on the claimant."
Eurafric are currently appealing the judgment of 13 June 2018 on the basis that, amongst other matters,
"the decision of the trial court to the effect that [NDPHC] is not bound by an arbitral Award which is binding on its principal - (the Federal Government of Nigeria) - is perverse and shall deprive [Eurafric] of the fruits of the arbitration if not set aside, thus occasions a grave miscarriage of justice against [Eurafric]."
"On behalf of Eurafric, I do apologise that these matters were not raised with the court as soon as they became apparent to Eurafric's former solicitors."
"If the parties have not previously agreed on the place of arbitration, the place of arbitration shall be determined by the Arbitral Tribunal having regard to the circumstances of the case. The Award shall be deemed to have been made at the place of arbitration."
"The place of the arbitration shall be in London, England".
Eurafric invoked Clause 15 by issuing a notice of arbitration against the Defendants. The evidence of Ms Drenth of Howard Kennedy in her third witness statement, and in opposition to the application is that, on information from Eurafric's Nigerian lawyers, Obla & Co, during the substantive arbitration it was never disputed that the arbitration was seated in London. Indeed, the revised terms of appointment dated 26 January 2016 and the Procedural Order No.22, which are before me, stated expressly at para.19 that the reference in the arbitration agreement to "London":
"signifies the Parties' agreement that London is the place and juridical seat of this arbitration within the meaning of Article 18(1) of the UNCITRAL Rules and Section 3(a) of the Arbitration Act 1996 of England & Wales."
"Unless otherwise agreed by the parties, an Award made by a tribunal pursuant to an arbitration agreement is final and binding on both of the parties and on any persons claiming through or under them."
Far from there being any agreement between the parties to the contrary, the parties also agreed to the UNCITRAL Arbitration Rules, including, therefore, Article 34(2) which provides, amongst other matters, that,
"All Awards … shall be final and binding on the parties. The parties shall carry out all Awards without delay."
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