Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd

A court enforcing a New York Convention award may enforce a distinct and ascertainable part of it, provided judgment can be entered in the same terms as that part of the award. The statutory references to an award do not require an all-or-nothing approach.

A pending challenge in the supervisory court does not automatically prevent enforcement. An adjournment is discretionary and temporary. A renewed application requires a sufficient, relevant change of circumstances, ordinarily connected to the reason for the adjournment. It does not ordinarily permit a party to reopen the earlier assessment of the challenge's merits.

IPCO obtained a Lagos arbitral award against NNPC arising from a petroleum-terminal construction contract. NNPC began proceedings in Nigeria to set aside the award. IPCO sought enforcement in England.

Gross J initially adjourned enforcement on conditions requiring payment of an admitted sum and the provision of security. After the Nigerian challenge had substantially stalled, IPCO renewed its application. Tomlinson J, in (2008) EWHC 797 (Comm.), enforced the award in respect of the non-payment and variations heads of claim.

NNPC appealed, contending that a court could not enforce only part of a Convention award and that the earlier adjournment should have continued. IPCO sought, by a limited cross-appeal, enforcement of further sums.

Appeal dismissed unanimously. Tuckey LJ gave the judgment, with which Wall and Rimer LJJ agreed. Tomlinson J's order enforcing the non-payment and variations heads of the award stood.

1. Under Arbitration Act 1996, Part III, a Convention award may be enforced in part. The word “award” encompasses a severable part where that part is ascertainable from the award itself and judgment can be entered in precisely its terms. The Convention's purpose of speedy and effective enforcement militates against an all-or-nothing construction. Section 103(4), which expressly permits severance where a tribunal exceeded its jurisdiction, does not imply that partial enforcement is unavailable in the other circumstances in section 103.

2. The enforcing court's role is not wholly mechanical. A pending application to set aside an award in the supervisory court does not itself prevent enforcement. The court may enforce a part that is manifestly valid, or may adjourn under section 103(5) if that is proper, with suitable security.

3. An adjournment under section 103(5) is a temporary holding measure. A later judge of coordinate jurisdiction may reconsider whether it remains appropriate where there has been a sufficient and relevant change in the supervisory proceedings. There must be a causal link between that change and the variation sought. Ordinarily, the renewed exercise is not an opportunity to advance material that could have been deployed earlier or to reopen the earlier brief assessment of the merits.

4. The catastrophic delay in the Nigerian proceedings justified reconsidering whether the adjournment should continue. The non-payment and variations parts were not realistically challengeable, and it was unfair to withhold their enforcement further. It was unnecessary to decide whether Tomlinson J had been entitled to revisit Gross J's assessment of the separate duplication challenge. Tuckey LJ's preliminary view was that an adverse argument accepted after adversarial submissions would not, without more, show that Gross J had been relevantly misled.

5. Permission for IPCO's limited cross-appeal was refused. The court declined to order enforcement of the unchallenged standby claim and further sums arising from the earlier payment admission.

• Court of Appeal (Civil Division): Dismissed NNPC's appeal and upheld the partial enforcement order: [2008] EWCA Civ 1157.
• High Court, Queen's Bench Division: Tomlinson J enforced the non-payment and variations heads of the award after reconsidering the continued appropriateness of the adjournment: (2008) EWHC 797 (Comm.).
• High Court: Gross J had adjourned IPCO's original enforcement application on terms requiring payment of an admitted sum and security.
• Federal High Court of Nigeria: NNPC's application to set aside the award remained unresolved.