IPCO (Nigeria) Ltd. v Nigerian National Petroleum Corporation

Under section 103(5) of the Arbitration Act 1996, an enforcement court may reconsider an earlier adjournment where there has been a significant and causally relevant change in the proceedings before the supervisory court. Such reconsideration is not an appeal and does not ordinarily permit a second attempt to develop arguments that were previously available. The court must balance deference to the supervisory court against the Convention policy favouring enforcement. Where discrete parts of an award are sufficiently separable and not subject to a credible challenge, partial enforcement may be ordered. The court may enforce those parts while adjourning enforcement of the remainder.

IPCO sought enforcement in England of a Nigerian arbitral award against NNPC. David Steel J had initially ordered enforcement. Gross J later dismissed NNPC’s challenge to enforcement but adjourned enforcement under section 103(5) of the Arbitration Act 1996, requiring payment of an admitted sum and security.

The Nigerian challenge remained unresolved and was materially delayed by procedural developments, including the transfer of the proceedings and an appeal. IPCO therefore sought reconsideration of the adjournment and partial enforcement. The central issues were whether the court could revisit Gross J’s order, whether partial enforcement was available, and which parts of the award were incapable of serious challenge.

1. Reconsideration. The court could reconsider the adjournment. Section 103(5) creates a temporary holding measure whose continuing appropriateness depends on developments before the supervisory court. The Nigerian proceedings had undergone a substantial and causally relevant deterioration. This was not a disguised appeal. A significant change in circumstances was required, and the court would not ordinarily allow a second attempt to advance arguments or evidence that could have been used earlier.
2. Strength of the challenge. The challenge to the tribunal’s jurisdiction was not seriously arguable. NNPC had participated extensively in the arbitration after raising, and apparently abandoning, the point. Under sections 12 and 33 of the Arbitration and Conciliation Act 1990, the objection had been waived. The challenge to the Variations head was also implausible. Gross J had been innocently misled about the contractual basis and presentation of that claim. The supposed duplication of variations, prolongation and financing claims was not established.
3. Other challenges, including those concerning finance charges, force majeure and the adequacy of reasons, had some realistic prospect of success and should be left primarily to the Nigerian supervisory court. The supervisory jurisdiction was limited and not appellate.
4. Partial enforcement. The court had power to enforce separable parts of the award. Enforcement of the Non-payment and Variations heads would follow the award rather than second-guess it. The court therefore varied the earlier order and entered judgment for those heads, with credit for sums already paid and interest to the date of judgment.
5. Enforcement of the remaining parts was adjourned, with liberty to apply. The security previously provided was to be available in partial satisfaction of the judgment, subject to the final order.

The judgment describes earlier first-instance enforcement proceedings before David Steel J and an adjournment order made by Gross J, reported at [2005] 2 Lloyd’s Rep 326. The present court varied the existing enforcement order and ordered partial enforcement.