|TABLE OF ABBREVIATIONS|
|Centre/ICSID||International Centre for Settlement of Investment Disputes|
|Claimants||Interocean Oil Development Company and Interocean Oil Exploration Company|
|C-Register||Claimants’ submissions in respect of the NIPC Register filed on 28 July 2014|
|C-Tracking||Claimants’ submissions in respect of the courier tracking reports filed on 1 August 2014|
|Counter-Memorial||Claimants’ Counter-Memorial filed on 11 April 2014|
|Exh. C-||Claimants’ exhibits|
|Exh. CLA-||Claimants’ legal exhibits|
|Exh. R-||Respondent’s exhibits|
|Exh. RLA-||Respondent’s legal exhibits|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States|
|JVA||Joint Operating Agreement between NNPC and Pan Ocean of 28 May 2002|
|Memorial||Respondent’s Memorial on Objection to Jurisdiction filed on 14 March 2014|
|NIPC Act||Nigerian Investment Promotion Commission Act, Chapter N117 (Decree No. 16 of 1995)|
|NNPC||Nigerian National Petroleum Company|
|Parties||Claimants and Respondent|
|Pan Ocean||Pan Ocean Oil Corporation|
|Rejoinder||Claimants’ Rejoinder to the Respondent’s Reply in respect of the Respondent’s Notice of Objection to Jurisdiction filed on 9 May 2014|
|Reply||Respondent’s Reply Memorial filed on 25 April 2014|
|Respondent||Federal Republic of Nigeria|
|Responses||Letter from the Claimants to ICSID of 19 August 2013 responding to the ICSID Secretariat’s questions about the Request for Arbitration|
|RfA||Claimants’ Request for Arbitration filed on 30 July 2013|
|Tr. [page line]||Transcript of the hearing on preliminary objections of 26 June 2014|
"a) Declaring that Respondent has breached its obligations to the Claimants under NIPC A;
b) Directing the Respondent to restore only the nominees of the Claimants as representatives in the 40 % participating interest under the operations of all Joint Venture Agreements and in particular OML 98 and OPL 275;
c) Finding that any purported transfer or acquisition of the 100% interest of the Claimants or any part thereof in 40% of OML 98/OPL 275 or any other asset including its accumulated proceeds howsoever without the consent of the Claimants is an indirect expropriation of its participating interest in the leases;
d) Directing the Respondent, its relevant privies and instrumentalities to pay damages in an amount to be proven at the hearing but which the Claimants presently estimate to be in excess of $500,000,000 (Five Hundred Million United States Dollars);
e) Directing the Respondent, its relevant privies and instrumentalities to pay aggravated damages in the sum of $150,000,000 (One Hundred and Fifty Million United States Dollars) or such amount as may be proven by the Claimants at the hearing ;
f) Restitution of the undiluted 40% participating interest in OML 98 and OPL 275 and all monies accruing thereto, by receiving the proceeds of unjust enrichment controlled in trust for the Claimants to date;
g) Directing that the Claimants be reinstated as the beneficial owner of the 40% participating interest in OML 98;
h) Directing the Respondent to pay the Claimants’ interest and taxes on all sums awarded;
i) Directing the Respondents to pay the Claimants’ costs associated with these proceedings including professional fees and disbursements on a full indemnity basis; and
j) Ordering such further or other relief(s) as the Tribunal deems appropriate in the circumstances."
"14.1.1. Respondent did not consent to submit this dispute to arbitration by ICSID;
14.1.2. Section 26 of the Nigerian Investment Protection Commission Act ("NIPC") does not provide a basis for finding consent on the part of Respondent as it merely provides that disputes should be conducted in accordance with the ICSID Rules;
14.1.3. Claimants are not registered with the NIPC and therefore cannot rely on Section 26(3) of the NIPC Act to invoke the jurisdiction of ICSID, and Claimants misled the Secretariat of ICSID to register their Request for Arbitration when they falsely claimed that their enterprise was registered with the NIPC. Pleadings on this objection shall be limited to whether Claimants are registered and the bearing of registration on the Tribunal’s jurisdiction;
14.1.4. Respondent is not a competent party to this arbitration. Claimants’ pleadings on this objection should identify the law and legal authorities on which they intend to rely and the corresponding liability of Respondent;
14.1.5. Claimants’ claims are barred by statute; and
14.1.6. The request is premature in that Claimants failed to explore local remedies/conditions precedent contained in the NIPC Act."
i) On behalf of the Claimants:
- Mr. Olasupo Shasore, Ajumogobia & Okeke
- Prof. Oba Nsugbe, Pump Court Chambers
- Mrs. Bimpe Nkontchou, Addie & Co Advisory
- Mr. Bello Salihu, Legal Counsel
- Mr. Jacques Jones, Legal Counsel
- Mr. Richard Evans, Financial Advisor
- Mr. Patrizio Di Guevara Fabbri, Director of Interocean Oil Development Company & Interocean Oil Exploration Company
- Mr. Riccardo Di Guevara Fabbri, Director of Interocean Oil Development Company & Interocean Oil Exploration Company
ii) On behalf of the Respondent:
- Mr. Adebayo Adenipekun, Emmanuel House
- Mr. Olu Daramola, Emmanuel House.
- Ms. Ann Biodun Babalola, Emmanuel House
- Mr. Oluwasina Ogungbade, Emmanuel House
- Mr. Kehinde Ogunwumiju, Emmanuel House
- Mr. Ola Faro, Emmanuel House
- Mrs. Esther Adenipekun, Emmanuel House
- Mr. Taiwo Abidogun, Federal Ministry of Justice, Federal Republic of Nigeria
- Mr. Rufai Khalid, NNPC
- Mr. Tijani Alkali Gazali, Federal Ministry of Justice, Federal Republic of Nigeria
"a) Declare that the Claimants’ claim does not fall within the jurisdiction of ICSID or the Arbitral Tribunal
b) Order the Claimants to pay the Respondent all costs reasonably incurred by the latter in connection with these proceedings."
- the Respondent consented to submit this dispute to arbitration by ICSID;
- Section 26 of the NIPC Act provides for arbitration under the ICSID Convention and not merely arbitration in accordance with the "ICSID Rules";
- ICSID has jurisdiction over this dispute whether or not Pan Ocean is registered under the NIPC Act, and the Claimants did not intentionally mislead the ICSID Secretariat by claiming that Pan Ocean is registered with the NIPC;
- the Respondent is a competent party to this arbitration;
- the Claimants are competent parties to this arbitration;
- the Claimants did not fail to explore local remedies/conditions precedent contained in the NIPC Act.
"1) declare that it has jurisdiction to decide the present dispute;
2) order the Respondent to pay the costs of this phase of the arbitration, including all expenses that the Claimants have incurred or will incur in respect of the fees and expenses of the arbitrators, legal counsel and experts;
3) to set further procedure for the merits phase of this arbitration."
"The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally."
"Registration of enterprise with the Commission
1) An enterprise in which foreign participation is permitted under Section 17 of this Act shall, before commencing business, apply to the Commission for registration.
2) The Commission shall, within fourteen working days from the date of receipt of completed registration forms, register the enterprise if it is satisfied that all relevant documents for registration have been duly completed and submitted or otherwise advise the applicant, accordingly."
"Dispute settlement procedures
1) Where a dispute arises between an investor and any Government of the Federation in respect of an enterprise, all efforts shall be made through mutual discussion to reach an amicable settlement.
2) Any dispute between an investor and any Government of the Federation in respect of an enterprise to which this Act applies which is not amicably settled through mutual discussions, may be submitted at the option of the aggrieved party to arbitration as follows—
(a) in the case of a Nigerian investor, in accordance with the rules of procedure for arbitration as specified in the Arbitration and Conciliation Act; or
(b) in the case of a foreign investor, within the framework of any bilateral or multilateral agreement on investment protection to which the Federal Government and the country of which the investor is a national are parties; or
(c) in accordance with any other national or international machinery for the settlement of investment disputes agreed on by the parties.
3) Where in respect of any dispute, there is disagreement between the investor and the Federal Government as to the method of dispute settlement to be adopted, the International Centre for Settlement of Investment Disputes Rules shall apply."
"In this Act, unless the context otherwise requires [...]
‘enterprise’ means an industry, project, undertaking or business to which this Act applies or an expansion of that industry, undertaking, project or business or any part of that industry, undertaking, project or business and, where there is foreign participation, means such an enterprise duly registered with the Commission"
- Objection 1 : "Consent"
- Objection 2 : "Role of ICSID Rules"
- Objection 3 : "Registration"
- Objection 4 : "Proper Party"
- Objection 5 : "Time Bars"
- Objection 6 : "Premature Filing"
"The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre."
• The definition of "enterprise";
• Applicability of the registration requirement to entities existing before enactment of the NIPC Act;
• Reliability of the NIPC business register filed by the Respondent;
• The Claimants inability to register Pan Ocean, such inability allegedly deriving in part from the Respondent’s actions, as well as the fact that the Claimants are outside the management of the company; and
• Estoppel based on the Respondent’s alleged lack of complaint about registration during prior cooperation with the Claimants.
- Objection 1 (Consent) is rejected insofar as it calls into question whether Section 26 of the NIPC Act constitutes a standing offer to arbitrate. The Tribunal finds that Section 26 does indeed constitute such a standing offer. However, questions related to the adequacy of the Claimants’ acceptance of that offer are joined to the merits;
- Objections 2 (Role of the ICSID Rules), 4 (Proper Party) and 5 (Time Bars) are rejected; and
- Objections 3 (Registration) and 6 (Premature Filing) are joined to the merits.
Already registered ?