Eurafric Power Limited v The Bureau of Public Enterprises of the Federal Republic of Nigeria & Ors

On a without-notice application to enforce an arbitration award, materiality is judged objectively by whether the undisclosed matter would have influenced the court’s decision or its terms. The duty requires proper inquiries and continues after the order is made, but omission does not automatically require discharge.

Where an award is made in a London-seated arbitration, an attempted challenge in another country, contrary to the agreed arbitral regime, will ordinarily have no relevance to an English recognition application. Potential effects on non-parties are generally matters for the later enforcement stage, not recognition, where the judgment is sought only between the arbitration parties. The court retains discretion under Arbitration Act 1996, section 66, and should enforce where justice favours doing so.

Eurafric obtained an arbitration award against Nigerian state entities concerning the sale of a power company and land associated with a power plant. The arbitration was seated in London. Popplewell J subsequently made a without-notice order under section 66 of the Arbitration Act 1996 recognising the award and entering judgment in its terms.

The Nigerian entities applied to set aside that Recognition Order, alleging that Eurafric had failed to disclose two Nigerian proceedings: their own attempted challenge to the award and proceedings brought by a non-party, NDPHC, concerning the land. The central issues were whether those matters were material to the recognition application and whether the order should be discharged or remade.

1. Application dismissed. The Recognition Order remained in force.
2. The duty on a without-notice applicant is to make full, frank and fair disclosure of material facts. Materiality is an objective question for the court. A matter is material only if it would have influenced the judge in deciding whether to make the order or in determining its terms. The duty includes proper inquiries and is continuing.
3. The Applicants’ Nigerian award challenge was not material. The arbitration had a London seat, the parties had agreed to the Arbitration Act 1996 regime, and no challenge had been made in England within the statutory time limit. The Nigerian proceedings were brought contrary to the agreed contractual and arbitral regime. They would not have affected the English court’s exercise of its section 66 discretion.
4. The NDPHC proceedings were even more tangential. NDPHC was not party to the arbitration, the award or the judgment sought in England. Any issue concerning enforcement against NDPHC or other third parties belonged to the execution stage and the forum of enforcement, not the prior recognition stage.
5. Section 66 involves a judicial and discretionary determination rather than administrative rubber-stamping. Nevertheless, the strong policy favouring enforcement of arbitration awards supported recognition. The award was final and binding, no substantive jurisdictional challenge had been made in England, and there was no sufficient reason to refuse or delay enforcement.
6. Even if the alleged omissions had been material, they would not have required immediate discharge without examination of the merits. The order could properly have been remade, and any responsibility would have rested principally with Eurafric’s former solicitors. It would also have been open to preserve judgment for the monetary relief even if land-related relief had required reconsideration.