…authorizes company to seize Nigerian properties over $70m arbitration award
An appeal court in the United States of America has given Chinese firm, Zhongshan Fucheng Industrial Investment Co. Ltd, final charging orders over two residential properties belonging to the Nigerian government.
The US court ruling comes as the Chinese firm seeks to enforce a $70 million arbitration award against the Nigerian government.
In a verdict delivered on August 9, the majority ruling affirmed the judgment of the US district court for the District of Columbia that held that the arbitration award is enforceable.
The latest development has worsened the crisis that the Nigerian government has been striving to manage in Europe and prevent from spilling to other jurisdictions.
Earlier, a French court had ordered the seizure of the three presidential jets due to the ongoing dispute between Zhongshan and the Ogun State Government.
Although the Presidency said it is aware of the development, it accused Zhongshan of attempt to take over offshore assets of the country through subterfuge.
In January 2023, Beryl Howell, the presiding judge of the lower court, dismissed Nigeria’s argument that the court did not have jurisdiction over the case since the country is a sovereign entity.
Howell held that the court has jurisdiction since the United Kingdom (UK), where the $70 million arbitration award was issued against Nigeria, is a signatory to the New York Convention.
In 2010, Zhongshan Fucheng, through its parent company Zhuhai Zhongfu Industrial Group Co. Ltd, acquired rights to develop a free trade zone in Ogun State, Nigeria.
In 2011, Zhongshan established Zhongfu International Investment (NIG) FZE to manage the project with the Ogun State Government’s permission.
In July 2016, Zhongshan accused the Ogun State Government of attempting to terminate its appointment and install a new manager for the free trade zone.
Zhongshan initiated an investment treaty arbitration against Nigeria under the bilateral investment treaty between China and Nigeria (China-Nigeria BIT).
The arbitrators ruled in favour of Zhongshan, awarding approximately $70 million in compensation.
In January 2022, Zhongshan sought enforcement of the arbitration award.
Nigeria pleaded state immunity but was denied by High Court Judge Sara Cockerill, who noted Nigeria’s abuse of the timeframe for appealing arbitral awards.
In the majority judgment issued by Patricia Millett and Julianna Childs, the US appellant court held that the final arbitration award is enforceable under the New York convention since the dispute is between “persons” that share a legal commercial relationship.
The court ruled that the Foreign Sovereign Immunities Act (FSIA) arbitration exception stripped Nigeria of the sovereign immunity in the arbitration award case.
The majority judgment reads, “For the foregoing reasons, we hold that the final award is enforceable under the New York convention because it arose out of differences between ‘persons’ that share a legal, commercial relationship.
“The district court therefore has jurisdiction over this case under the FSIA’s arbitration exception. The judgment of the district court is affirmed.”
But in the dissenting judgment, the third judge, Gregory Katsas, argued that when the New York convention was drafted, the word “persons” did not include a sovereign nation.
Katsas held that the action of Ogun State cannot be attributed to Nigeria, adding that the arbitration award “arises solely out of Nigeria’s sovereign acts governed by public international law”.
