(i) that the Tribunal direct the Respondent to produce an instrument authorizing the English law firm of Volterra Fietta to act as counsel to the Respondent in this matter and
(ii) that Tribunal direct the Respondent to disclose (a) the identity of the person(s) (corporate or natural) funding the defence of the Claimants’ claims in this matter and (b) the terms and details of the third party funding arrangement with this (these) person(s).
(a) The first is a letter from the Attorney-General of Nigeria to Aare Afe Babalola dated 18 November 2013 stating that the representation of the Respondent was “to be conducted at absolutely no cost to the Federal Government of Nigeria."
(b) The second is a letter from the law firm Afe Babalola & Co to ICSID dated 19 September 2015 stating that the firm of. Volterra Fietta, as well as Ms. Rose Rameau, were engaged as co-counsel but without mention that they also would be “at absolutely no cost to the Federal Government of Nigeria””
(c) The third is a letter from the Attorney-General of Nigeria dated 4 August 2016 addressed to Mr. Benjamin Garel as Secretary to this Arbitral Tribunal, confirming the authority of Aare Afe Babalola to act for Respondent and noting that the firm’s services would be rendered pro bono, but avoiding any mention of the services of the firm Volterra and Fietta, or Ms. Rameau.
• The power to represent the Federal Government of Nigeria is vested exclusively in the Attorney-General of the Federation, including in civil proceedings.20
• Without a delegation of powers, a private person cannot exercise the representation powers of the Attorney-General in civil criminal proceedings.21
• In these proceedings, the Attorney-General's instruction was given to Aare Afe Babalola. No written authorization was extended to any other law firm. Absent such authorization, the law firm of Volterra Fietta cannot appropriately represent the Respondent in these proceedings.22
• Challenging the authority of counsel to represent the Federal Government of Nigeria is not the prerogative of the sole Federal Government of Nigeria.23
Attorney-General’s letter dated 4 August 2016
Dear Mr. Garel,
RE: INTEROCEAN OIL DEVELOPMENT CORPORATION AND INTEROCEAN OIL EXPLORATION COMPANY VS. FEDERAL REPUBLIC OF NIGERIA (ICS1.D CASE NO. ARB/13/20)
The above pending ICSID arbitration where you serve as Secretary refers.
2. I hereby confirm that in line with the instruction from my Office to Aare Afe Babalola SAN, OFR, CON of 18th November, 2013, Aare Afe Babalola SAN, OFR, CON has the authority to do all that is necessary to put up a robust defence to the claims in this arbitration.
3. Indeed, Aare Afe Babalola SAN, OFR, CON's authority extends to constituting the legal team and experts of its choice, whether counsel in his chambers or not, who in its professional judgment possess the skill and expertise necessary for the representation of the Federal Government of Nigeria. I therefore approve of the legal team as constituted by Aare Afe Babalola SAN, OFR, CON.
4. As you will note from the letter of instruction issued by this office to Aare Afe Babalola SAN, OFR, CON on the 18th of November, 2013, this case is being defended at no cost to the Federal Government of Nigeria. In other words, Aare Afe Babalola's services are being rendered pro bono to the Federal Government of Nigeria. This case is not being funded by any third party institution.
5. Please, accept the continued assurances of my highest regards and esteem.
“To avoid conflict of interest on the part of the arbitrators as a result of the third party funder;
b. To preserve the right of the Claimants and preserve the integrity of the process and ICSID authority and rules;
c. To ensure transparency and identify the true/real party to the case
d. To ensure a fair decision on the allocation of costs.
e. From the point of view of the Claimants, to be certain that this case is not in fact being funded by Festus Fadeyi on behalf of the FGN.”
a) In its letter dated 19 September 2015, titled “Notification of Engagement of Co-Counsel for Respondent”, Aare Afe Babalola SAN notified ICSID that Mr. Volterra and Mr. Bondy of the law firm Volterra Fietta and Ms. Rameau “have been engaged by the Respondent to appear as Co-Counsel along with Counsel already on record'”
b) On the first hearing day, the Tribunal directed the Respondent to have its Attorney-General produce a letter “saying that the Government of Nigeria is aware that Mr Volterra's firm is part of the team, and is representing the Government of Nigeria as part of the team.”50
c) On the second hearing day, the Respondent reserved its rights regarding the propriety or legality of the Tribunal's direction.51 The Respondent nevertheless indicated having tried, but unsuccessfully due to the Attorney-General's unavailability, to comply with the Tribunal’s direction.52
d) On the third hearing day, the Respondent indicated that the Attorney-General was available and was “making an effort to get the letter, as requested by the Tribunal”53
e) The Respondent has produced, together with its Reply to the Claimants’ Requests, a letter from the Attorney-General dated 4 August 2016.
f) In its Reply, the Respondent states that the Tribunal’s direction at the hearing “fell outwith its jurisdiction”54 and its insistence, following the oral statement made by the Respondent’s Solicitor-General, “on the presentation of a written submission is misplaced.”55
g) The Respondent also indicates in its Reply that the submission of the Attorney-General’s letter is done “voluntarily”, despite its position that the Tribunal’s direction is illegal under international law.56
h) The Attorney-General’s letter confirms the authority of Aare Afe Babalola SAN to constitute his legal team working on this matter with counsel from or outside of his chambers.
i) The letter does not mention any name of any counsel, including that of Mr. Volterra, Mr. Bondy or Ms. Rameau.
“I therefore confirm, as requested by the Tribunal, that the law firm of Afe Babalola & Co was instructed through its principal and founding partner, Aare Afe Babalola, SAN, CON, to represent the Federal Government of Nigeria in these proceedings. I confirm further that in giving effect to this instruction, the firm, as is firmly established under Nigerian law and practice, is at liberty, as has been done in this case, to constitute a legal team comprising of legal practitioners of his choice who, in their professional judgment, possess the skill and expertise necessary for the representation of the Federal Government of Nigeria.”60
“The application of Rule 18 is sufficient to determine the question of the role of the Volterra Fietta firm and Ms Rameau as assisting the Respondent in this case. Rule 18(1) was fulfilled by the notification contained in the letter transmitted by Aare Afe Babalola, SAN to Mr Benjamin Garel, Tribunal Secretary, on 19 September 2015.”62
“Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.” (emphasis added)
a) The Respondent shall supply a letter from the Attorney General confirming that the Volterra Fietta law firm and Ms. Rameau are validly appearing in these proceedings on behalf of the Respondent.
b) Assuming confirmation that the Volterra Fietta firm is appearing on behalf of the Respondent, the Attorney General shall confirm whether or not that engagement is at no cost to the Federal Republic of Nigeria.
c) The Attorney General shall disclose the persons (whether or not qualifying as third party financial institutions in the narrow sense) who are underwriting the expenses of the legal teams in this arbitration, and who are paying the fees and expenses of the members of the legal team. The disclosure shall cover any person ultimately responsible for covering fees and out-of-pocket costs (including deposits with ICSID) of (i) the firm of Afe Babalola & Co, (ii) the firm of Volterra Fietta and/or (iii) Ms. Rameau. For the avoidance of doubt, the Tribunal expects disclosure in regard to any individual, entity, organisation association, government, or person of any sort, providing monies to undertake Respondent’s defense, even if serving as a conduit for funding from another source, either directly or indirectly.
d) For the sake of good order and parity, the Claimants shall confirm, in a letter issued jointly by both corporations (Interocean Oil Development Company and Interocean Oil Exploration Company) the identify of any persons (whether or not qualifying as third party financial institutions in the narrow sense) who are underwriting the expenses of the Claimants’ legal team in this arbitration, and who are paying the fees and expenses of the members of the legal team. The disclosure shall cover any person ultimately responsible for covering fees and out-of-pocket costs (including deposits with ICSID) of Mr. Olasupo Shasore and his firm Ajumogobia & Okeke, as well as for Professor Oba Nsugbe, Ms. Bimpe Nkontchou, and Mr. Bello Salihu. For the avoidance of doubt, the Tribunal expects disclosure in regard to any individual, entity, organisation association, government, or person of any sort, providing monies to support Claimants’ representation, even if serving as a conduit for funding from another source, either directly or indirectly.
e) All disclosures directed by this order shall be made a delivered to ICSID and the other party by no later than fourteen (14) days from the present ruling.
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