Barely 10 months after a court overturned $11 billion damages against Nigeria in the controversial Process & Industrial Developments (P&ID) deal, the federal government is facing another legal battle involving a Chinese firm, Zhongshan Fucheng Industrial Investment Co. Limited, which is seeking to enforce a $70 million arbitration award against Nigeria.
Does the federal government stand a chance of emerging as the victor in the current case?
Seasoned analysts weighed the odds in what they described as a mismanaged deal in separate interviews with Weekend Trust on Friday.
Zhongshan recently got an order from a court in France to enforce the award following an aborted contract between the company and the Ogun State Government, which was initiated in 2007.
The order, which authorised the seizure of the three presidential jets under maintenance in France, has since been validated by a United States court, dismissing Nigeria’s sovereign immunity defence to the enforcement of the $70 million award.
The Ogun State government and Zhongshan have been at daggers drawn over the management of an export processing zone in the Gateway state.
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.
In addition to the seizure of the presidential jets, a court of appeal in the US has authorised the Chinese company’s final charging orders over two residential properties owned by Nigeria.
The development worsens a crisis that the Nigerian government has been attempting to manage in Europe and prevent from spilling to other jurisdictions.
Nigeria had pleaded state immunity against the arbitration but was denied by a United Kingdom High Court judge, Sara Cockerill, who noted Nigeria’s abuse of the timeframe for appealing arbitral awards.
In the majority judgement by Patricia Millett and Julianna Childs, the US 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 sovereign immunity in the arbitration award case.
In the dissenting judgement, 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”.
Meanwhile, the Presidency had accused Zhongshan of attempting to take over Nigeria’s offshore assets through subterfuge.
“The Presidency is aware of the various failed attempts by a Chinese company, Zhongshan Fucheng Industrial Investment Co. Limited, to take over offshore assets of the Federal Government of Nigeria through subterfuge.
“The Federal Government is not under any contractual obligation with the company. The case in which Zhongshan is trying to use every unorthodox means to strip our offshore assets is between the company and the Ogun State Government”, a statement by the Special Adviser to the President on Information and Strategy, Mr. Bayo Onanuga, on Thursday read in part.
Also speaking on the development on Thursday, the Attorney-General of the Federation, Lateef Fagbemi (SAN), said Nigeria has initiated both legal and diplomatic steps to ensure the release of three seized presidential aircraft in France and Switzerland.
In the statement by his spokesperson, Kamarudeen Ogundele, the Attorney-General said its efforts were grounded in the principle that the aircraft are sovereign assets, used exclusively for sovereign purposes, and therefore immune from attachment.
“The Offices of the National Security Adviser and the Attorney-General of the Federation, have already set in motion both legal and diplomatic steps to ensure the discharge of the inappropriate orders against the aircrafts, which are covered by sovereign immunity”, it said.
The government also maintained that the interim orders against the aircraft were inappropriate, given their status under sovereign immunity.
Trade zone dispute mismanaged – Lawyers
Some lawyers have criticised the handling of the dispute with the Chinese firm that resulted in the confiscation of the country’s presidential aircraft.
Dayo Akinlaja (SAN) bemoaned Nigeria’s tendency to breach international agreements of this nature, urging the federal government to opt for a settlement.
He said, “If there is a dispute and one side has evinced a view for settlement, I think it is important to explore that option, irrespective of the court or arbitration panel that heard the matter.
“The more reason we should opt for settlement is because they are producing what we cannot on that land mapped out for the FTZ”.
In his view, Nkem Okoro, Esq, called for a thorough investigation and the prosecution of officials involved in the mishandling of the contract to show that the government of Nigeria is not complicit in the breach and to avoid soiling its image further.
“The only honourable thing for the Nigerian government to do now is the payment of the sum awarded against it by the arbitration panel. At least this way, Nigeria can reassure would-be international investors of the safety of their investments in Nigeria.
“Nigeria breached the agreement it had with the Chinese company; an arbitral award was made against Nigeria, and Nigeria has refused to do the most honourable thing: pay and atone for your shortcomings.
“The seizure of Nigeria’s assets is a colossal and unmitigated embarrassment to the federation, already. To think that rather than paying, Nigeria will be looking for ways to defeat the award is also exacerbating the situation against the international image of Nigeria”, he said.
He said there is no doubt that Nigeria is a party in the dispute because free zones in Nigeria are managed, controlled, and administered by the Nigeria Export Processing Zones Authority, which is an agency of the federal government.
A human rights lawyer, Nkereuwem Akpan, Esq, also called for a diplomatic approach to resolving the dispute.
He cautioned that under international law, sovereign states enjoy sovereign immunity from execution, and as such, it would be improper for one state to seize the assets of another, which could lead to chaos if it leads to tit for tat.
Nigeria’s image, foreign investment drive at stake
The Zhongshan matter brings to mind earlier cases of P&ID arbitration ruling over Nigeria’s tardiness in a failed gas supply and processing contract.
Similarly, in 2019, an Irish engineering firm was awarded $9.6 billion in damages against Nigeria by a UK court over a failed gas project. The firm instructed lawyers to identify Nigerian assets worldwide that could be seized to enforce the record-breaking arbitration award.
A former foreign Affairs Minister and professor of political science, Ambassador Bolaji Akinyemi, said there is a provision in international law which provides that where a nation is involved in commercial activities, its agency will not have diplomatic immunity—an exception to the general rule that states enjoy diplomatic immunity.
He said, “In this particular case, Ogun is not a sovereign state. It is Nigeria that is recognised, and so property belonging to Nigeria is now exposed to this exception to diplomatic immunity.
“I don’t know who the lawyers of Ogun State were when this case came up; the last judgement we had was decided in the United States Court of Appeal. And the judges ruled by a vote of two to one that the Nigerian property does not enjoy diplomatic immunity. This is bad for our image and position internationally. It should never have been allowed to get to this stage”.
Commenting on the development, Dakuku Adol Peterside, former Director General of the Nigerian Maritime Administration and Safety Agency (NIMASA), said the development raised fundamental issues worth interrogating.
He said, coming after the Dangote saga, this is one too many, and the global perception of our country is not good.
“At the time we thought we were beginning to see some increase in foreign direct investment inflow, suddenly, the government is giving out false signals. We already have economic policy challenges; we have foreign exchange volatility and there is a general clout of negative perception about the strength and health of the Nigerian economy.
“Right now, there are institutional weaknesses that investors are grappling with, including the fact that our judiciary doesn’t give people a lot of confidence. Added to all these challenges is the Nigeria-Ogun-Chinese company crisis. There is no way it will not significantly impact investors’ confidence.
“It (the confidence) will weaken, and this is not good for us. The government needs to understand the place of signalling. Perception means a lot to investment. Investment will not go to where it is not safe”, he stated.
Peterside contended that the case reeked of the untidiness that has characterised Nigeria’s international contracts.
He said states and even private companies had found ways of roping in the federal government into their untidy deals.
“In the process, our national reputation has even further cheapened”, he added.
Options available for FG
Prof. Akinyemi urged the federal government to warn all state governors about cancelling contracts signed by their predecessors, whether the agreements involved foreign or domestic companies.
“To me, it is arrogance of power on the part of the Ogun State government. Governors come in and just decide to do anything. They have ruined a lot of domestic companies whose contracts have been cancelled like that”, he added.
Prof. Akinyemi, who is the chairman of the National Think Tank, also admonished the federal government to approach the Chinese government and Chinese companies doing business in Nigeria.
“The Chinese government should call the Chinese company and put pressure on it to settle out of court with Nigeria. That is the important proposal, so that Chinese interest in Nigeria will not be adversely affected by what is going on”, the diplomat said.
On the way forward, Peterside said Nigeria could not continue to be seen as a country whose transactions are opaque and not respectful of contracts, saying these perceptions could deter foreign investors from having anything to do with the country.
Peterside, who is also a former House of Representatives member, advised that the office of the Attorney General of the federation should take a closer look at international contracts entered into by states to insulate sovereign assets from culpability.
Nigeria has a strong case – Agbakoba
A former President of the Nigerian Bar Association (NBA), Olisa Agbakoba (SAN), has insisted that Nigeria has a strong defence on two grounds.
He said in international law, there is a compelling reason to argue that attachment of property belonging to a sovereign state such as Nigeria is free from attachment under an order of court.
“In this case, evidence that the aircraft are owned by Nigeria and are strictly used for diplomatic purposes, is in my view a good ground for Nigeria to successfully recover the aircraft from attachment.
“The second strong reason would be that the attachment of the aircraft is said to be in respect of a debt owed by Ogun State, which is a wholly different political entity from the sovereign state of Nigeria. The attached aircraft would, in those circumstances, be unjustified and I think it is reasonable to presume that Nigeria has a very good chance of success”, he stated.
Chinese firm mulls negotiations, releases seized jet
Meanwhile, Zhongshan has said it is open to negotiations with the Nigerian government over the matter. The company was quoted in a statement reported by Premium Times on Thursday that it only sought to assert its rights under international law and was confident in its case.
“Zhongshan has for a long time been ready to enter serious negotiations with the federal government of Nigeria to settle this case and still awaits an indication that the government is equally willing,” the statement said.
On Friday, the Online Newspaper quoted a Zhongshan spokesperson as saying that the company had released one of the confiscated aircraft.
“Zhongshan has consistently sought to act reasonably and fairly in the course of a legal dispute with Nigeria which was not of its making.
“It (Zhongshan) has now been made aware that an Airbus A330, currently detained in France as a result of a French court order obtained by Zhongshan, is needed for the President of the Federal Republic of Nigeria to travel to a scheduled meeting with President Macron of France early next week.
“As a gesture of goodwill, Zhongshan has lifted the seizure of that aircraft immediately. This will allow it to be used for the President’s trip.
“Zhongshan remains committed to talks with representatives of the Federal Government of Nigeria, this time serious and substantive on both sides, with a view to reaching a reasonable compromise settlement rapidly”, the official said.
