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Saturday 2 February 2019

ALERT: Nigeria’s foreign reserves at risk over $9bn UK judgment

ALERT: Nigeria’s foreign reserves at risk over $9bn UK judgment

Nigeria’s foreign assets as well as its oil vessels in international waters are at risk as a British company moves to enforce a $9bn arbitration award against the country over a breach of contract, TheCable can report.

Process and Industrial Developments Limited (P&ID), an engineering and project management company, is expected to get a final order from UK courts on February 15, 2019 to enforce the arbitration tribunal award against the government of Nigeria.

P&ID has also filed action to enforce the judgment in the US and there are indications that the company may seek similar orders in several European countries.

The arbitration award is roughly 11 percent of Nigeria’s entire foreign reserves which currently stand at $43.2bn.

Comparatively, the $9bn award is half of Nigeria’s earning from crude oil exports in the whole of 2018.

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What was the contract?

P&ID, founded by Irishmen Michael Quinn and Brendan Cahill — with over 30 years of experience in engineering projects in Nigeria — had entered into a 20-year gas and supply processing agreement (GSPA) with the federal government in 2010 to build a state-of-the-art gas processing facility.

The plant, in which Nigeria was to have a 10 percent stake, was to refine associated natural gas into non-associated natural gas to power the national electric grid as conceived in 2006 when President Olusegun Obasanjo was in power.

Based on the agreement, government was to supply between 150 million standard cubic feet of the gas per day to P&ID — a figure expected to rise to 400 million scf in the life of the project. The gas was otherwise being flared by the oil-producing companies.

The GSPA also required the government to build a gas supply pipeline to the P&ID facility.

What went wrong?

P&ID said after spending over $40 million in preparatory work, the project collapsed because the Nigerian government did not build a pipeline as stipulated in the agreement.

With the ensuing crisis unresolved even after proposing an amendment to the agreement, P&ID commenced arbitration against Nigeria in August 2012 in London, UK.

In May 2015, while the arbitration was still on, P&ID agreed to settle the dispute upon payment of $850 million by the government, according to documents seen by TheCable.

However, President Goodluck Jonathan, who was about to leave office having been defeated in the presidential election, offered to pay $650 million but negotiations arrived at $800 million.

P&ID, TheCable learnt, agreed on the terms of payment to be made in installments.

However, Jonathan opted to leave the incoming government of President Muhammadu Buhari to handle the payment because his tenure was coming to an end.

Two days after Buhari was sworn in, the liability hearing took place in London and the dispute was resolved in favour of P&ID in July 2015, with the new administration not offering any settlement as proposed by Jonathan before his exit from power.

Nigeria asked the tribunal, in December 2015, to set aside the award completely but in January 2017, the tribunal finally ordered the government of Nigeria to pay P&ID $6.6 billion in damages and $2.3 billion in interest.

In June 2018, the US district court also ruled in favour of P&ID and affirmed the award by the UK tribunal, thereby making it enforceable in America.

What did Nigeria do?

Having lost the case in arbitration, allegedly worsened by the fact that it did not provide a strong legal challenge during hearing in the UK, Nigeria filed a notice of appeal in the US district court in October 2018, claiming foreign sovereignty immunity.

But the US court rejected Nigeria’s request to cancel the award, and the government headed to the UK court to get the sanctions waived.

An alleged mix-up at the ministry of justice in Abuja led a shoddy representation at the court, with the country missing the deadline for filing its acknowledgement of service and failing to file any substantive evidence.

This led to another punitive order against Nigeria, now requiring the country to pay P&ID’s costs for the hearing as the judge expressed displeasure at Nigeria’s conduct during the proceedings, according to court documents obtained by TheCable.

What happens next?

On February 15, a day to the Nigeria’s presidential election, the UK court is expected to make a final decision to give P&ID the go-ahead to enforce the tribunal award.

This will allow P&ID to seize Nigeria’s assets in the UK, including the country’s bank accounts, in order to implement the tribunal award — in the event that the government does not pay the judgment debt.

TheCable understands that P&ID is willing to enter a negotiated compensation with the federal government but there is yet no offer from Nigeria.

Nigeria is disputing the $9bn award on three grounds: that the arbitration seat should be in Nigeria and not UK, the amount awarded is too big and interests should be waived.

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