US appeal court authorizes Chinese firm to seize Nigerian properties over $70m arbitration award
Joseph Irikefe
Effort by the Federal Government to get reprieve on the seizure order given by the French Court on Nigeria’s three presidential airplanes may have been compounded as an appeal court in the United States, has authorised Zhongshan Fucheng Industrial Investment Co. Ltd, a Chinese firm, final charging orders over two residential properties owned by Nigeria.
This comes as the Chinese firm seeks to enforce a $70 million arbitration award against the Nigerian government.
The majority ruling, in a verdict delivered on August 9, affirmed the judgment of the US district court for the District of Columbia that held that the arbitration award is enforceable.
Recall that the latest development worsens a crisis that the Nigerian government has been attempting to manage in Europe and prevent from spilling to other jurisdictions.
A French court had earlier authorised the seizure of the three presidential jets due to the ongoing dispute between Zhongshan and the Ogun State government.
But the presidency in reaction on Thursday said that it is aware of the development, accusing Zhongshan of attempting to take over offshore assets of the country through subterfuge.
The Office of the Attorney General of the Federation and Minister of Justice, gave indication that it would commence legal proceeding to vacate the order, even as it stated the presidential jet were covered by diplomatic immunity.
Recall that 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 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.”
However, 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”.