Is arbitration an effective process for disputes involving state interests: a panel discussion of concerns raised in Nigeria v. P&IDL [2023] EWHC 2638.

The judgment of Sir Robin Knowles in the Nigeria v. P&IDL case in late 2023, in which he made the extremely rare decision to overturn an arbitral award, exposed a prolonged and grotesque fraud perpetrated by the Claimant and others against the Republic of Nigeria for a sum including interest said to be around $11 billion. Sir Robin made many serious findings of fraud and corruption against P&IDL, its directors, employees and advisers. The judge himself suggested that the arbitration community should examine carefully whether arbitrations against sovereign states are still a suitable dispute resolution mechanism given the potential for fraud and corruption of government employees. At the end of his judgment he asked rhetorically “But, unless accompanied by public visibility or greater scrutiny by arbitrators, how suitable is the process in a case such as this where what is at stake is public money amounting to a material percentage of a state’s GDP or budget? Is greater visibility in arbitrations involving a state or state-owned entities part of the answer?” The panel intend to discuss the Nigeria case and its wider effects on arbitrations against States, particularly the ever-increasing high value investor-state treaty arbitrations.