AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 – UKSCblog

AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 – UKSCblog

On enchantment from [2020] EWCA Civ 1585

The enchantment considerations the court docket’s discretion to rethink a judgment and order after it has been given however earlier than the formal order has been sealed by the court docket.

The Respondent was the profitable claimant in a Nigeria–primarily based arbitration with the Appellant. FAAN was ordered to pay US$48.13m to the respondent, plus curiosity at 18% each year (“the Award”). FAAN continues to problem the Award within the Nigerian courts (“the Nigerian Proceedings”).

The respondent sought permission from the Excessive Courtroom to implement the Award in England and Wales. This was initially granted, nonetheless the Excessive Courtroom set this order apart and adjourned the declare pending developments within the Nigerian Proceedings. This was on the situation, nonetheless, that the appellant present safety of round US$24m by the use of a financial institution assure.

The Assure was not offered on time. The Excessive Courtroom decide gave an oral judgment and made an order allowing the respondent to implement the Award. Nevertheless, the Enforcement Order was not sealed instantly.

The appellant obtained the Assure later the identical day, offered it to the respondent and utilized to re–open the judgment and put aside the Enforcement Order. The decide put aside the Enforcement Order and retrospectively prolonged time for the supply of the Assure.

The Courtroom of Enchantment allowed the enchantment in opposition to the decide’s revised resolution and reinstated the Enforcement Order. Consequently, the respondent had each a vast proper to implement the Award and the good thing about the Assure as an asset in opposition to which to implement. The respondent accordingly known as on the Assure, which was paid in full by the appellant’s financial institution.

HELD – The Supreme Courtroom unanimously allowed the enchantment, though solely partly.

The decide mentioned that the appliance of the overriding goal within the context of whether or not deciding to re-consider an order not but sealed was a query of steadiness. The Courtroom of Enchantment disagreed, ruling {that a} two–stage evaluation was required: (1) whether or not it was proper to entertain the appliance to re–think about in any respect; and, if it was, (2) think about the appliance on its deserves.

The Supreme Courtroom considers that each the decide and the Courtroom of Enchantment have been solely partially proper. Earlier caselaw exhibits that the duty of a decide confronted with an software to rethink a judgment and/or order previous to sealing is to do justice in accordance with the overriding goal and the precept of finality. This precept holds that events shouldn’t ordinarily be capable of elevate new arguments after an order has been made which it ought to have raised on the related listening to.

Due to this fact, when figuring out an software to rethink a remaining judgment and/or order earlier than the order has been sealed, a decide shouldn’t begin from evenly–balanced scales because the decide did however ought to give nice weight to the finality precept. Nevertheless, though it should usually be a helpful psychological self-discipline for a decide to ask whether or not the appliance needs to be entertained in any respect, there isn’t any rule of legislation or apply that such an software should at all times be addressed by a two-stage course of as held by the Courtroom of Enchantment. The finality precept is healthier mirrored by recognition that it’s going to at all times be a weighty matter within the steadiness in opposition to making a unique order, relatively than at all times requiring a two–stage course of of study.

The Supreme Courtroom accordingly rejects the Courtroom of Enchantment’s two–stage strategy, but in addition finds that the decide didn’t give the finality precept the central significance which it deserved. It subsequently falls to the Supreme Courtroom to re-exercise the discretion afresh as as to whether to re–open the Excessive Courtroom’s judgment and Enforcement Order. In doing so the Supreme Courtroom additionally assesses whether or not the appellant satisfies the check to be granted reduction from sanctions, regardless of its failure to adjust to the timetable set by the Excessive Courtroom for provision of the Assure.

The Supreme Courtroom concludes that the enchantment ought to succeed, however solely partly. The Enforcement Order as re-made by the Courtroom of Enchantment needs to be put aside, and the respondent’s software for depart to implement the Award needs to be adjourned to await the end result of the Nigerian Proceedings.

Two massive elements weigh within the scales in opposition to the re–opening of the Enforcement Order: (1) the finality precept and (2) the delay in offering the Assure for which no good purpose has been offered. Nonetheless, the truth that the Assure was offered to the respondent was an essential change in circumstances. The respondent had subsequently acquired the good thing about each the Enforcement Order in addition to the Assure in opposition to which the Award might be enforced partly. Within the circumstances, the decide’s view that justice demanded that this windfall needs to be undone commanded actual respect.

Though not clear lower, the Supreme Courtroom is persuaded on steadiness that the respondent shouldn’t retain the correct to implement the Award, pending the end result of the Nigerian Proceedings. The Supreme Courtroom subsequently put aside the Enforcement Order and confirms the decide’s extension of time for the supply of the Assure.

For the judgment, please see:

For the press abstract, please see: