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P&ID v. Nigeria, Memorandum of Points and Authorities in Support of Respondents’ Renewed Motion, August 12, 2020

12 Aug 2020
Process and Industrial Developments Ltd (P&ID) v. Nigeria Ministry of Petroleum Resources
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Memorandum of Points and Authorities in Support of Respondents’ Renewed Motion
Document Details:
LISTED PARTICIPANTS
Memorandum of Points and Authorities in Support of Respondents’ Renewed Motion
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Anthony Evans
Respondent appointee
Christopher Adebayo Ojo
Tribunal/Panel chair
Leonard Hoffman
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Claimant's counsel
Claimant's law firm
Respondent's counsel
Joseph D. Pizzurro, Kevin A. Meehan
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Michael Quinn
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Process and Industrial Developments Ltd., Curtis Mallet-Prevost Colt & Mosle, Nigeria
Country
Print reporter
Document Summary
Memorandum of Points and Authorities in Support of Respondents’ Renewed Motion
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document is a Memorandum of Points and Authorities submitted by the Federal Republic of Nigeria and the Ministry of Petroleum Resources (collectively, "Nigeria") in support of their renewed motion to dismiss a petition to confirm a foreign arbitral award filed by Process and Industrial Developments Limited ("P&ID"). The filing is made in the United States District Court for the District of Columbia, following a remand from the D.C. Circuit. The appellate court held that Nigeria is presumptively immune from the District Court's jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and that its immunity defenses must be adjudicated as a threshold matter before any consideration of the merits.

Principal Legal Issues and Parties' Positions

The central legal issue is whether the District Court possesses subject matter jurisdiction over P&ID's enforcement petition under the FSIA's arbitration exception (28 U.S.C. § 1605(a)(6)) or the implied waiver exception (28 U.S.C. § 1605(a)(1)). Nigeria asserts that the arbitration exception is fundamentally inapplicable because the underlying liability award was lawfully set aside by a competent court in Nigeria, which was the country under whose procedural law the award was made. Relying on Article V(1)(e) of the New York Convention and binding D.C. Circuit precedent, Nigeria argues that a nullified award "does not exist to be enforced," thereby depriving the U.S. court of jurisdiction to confirm the subsequent multi-billion dollar damages award.

Furthermore, Nigeria contends that the FSIA's implied waiver exception does not apply. Nigeria argues that its agreement to arbitrate in a foreign jurisdiction and its accession to the New York Convention do not constitute the requisite "strong evidence" of a subjective intent to waive sovereign immunity in United States courts. Nigeria emphasizes that the New York Convention is silent on the issue of sovereign immunity and cannot be construed as an implicit waiver by its signatories, distinguishing contrary non-binding precedent.

Relief Sought

Nigeria requests that the District Court dismiss P&ID's petition in its entirety for lack of subject matter jurisdiction under the FSIA and, consequently, for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2).