\u3cem\u3eProcess & Industrial Developments Limited v. Nigeria\u3c/em\u3e: Exception Under the FSIA When Award Has Been Set Aside by a Court of the Country “Under the Law of Which” the Award Was Made

In March 2018, Process & Industrial Developments Limited (P&ID) filed a petition at the United States District Court for the District of Columbia to confirm an arbitral award against the Federal Republic of Nigeria. The proceedings were conducted in three phases – jurisdictional, liability, and damages. The arbitration provision in the underlying contract hardly represented a model of clarity. It provided for the application of the Nigerian arbitration act to any dispute between the parties. On the other hand, it specified London as the “venue” of the proceedings. This posed a problem as to whether Nigeria was the juridical seat of the arbitration, in which case a Nigerian court would be the competent authority to set aside any award rendered by the tribunal. The Nigerian Federal High Court indeed vacated the liability award. At the confirmation stage in the D.C. District Court, the question arose as to whether the arbitration exception under the Foreign Sovereign Immunities Act is applicable in this case, consequently preventing Nigeria from invoking its sovereign immunity against suits in the United States. This note explores the parameters of the arbitration exception under the FSIA. Specifically, this note suggests that the applicable law to the arbitration was Nigerian law based on the language of the provision. As a corollary, A Nigerian court had the competence to set aside any award rendered in the proceedings. I adopt the view that Article V(1)(e) of the New York Convention, in addition to applicable U.S. case law, imply that the Nigerian court’s decision was valid. As such, there was no existing award upon which P&ID could base its action to confirm the award. The arbitration exception was not applicable in this case, as the existence of a valid award is a pre-requisite for the application of the exception under the FSIA