A High Court judgment naming lawyers involved in an arbitration award under which Nigeria was ordered to pay a sum equal to its entire federal budget is to be sent to legal regulators, a judge ordered today.
Granting an application to overturn the $11bn award to oil and gas company P&ID on the grounds that it was 'obtained by fraud', the Honourable Mr Justice Robin Knowles said the case ‘sadly brought together a combination of examples of what some individuals will do for money’. The 140-page judgment follows an eight-week hearing earlier this year in which the government of Nigeria argued that it should not be required to honour the award.
Giving judgment in Federal Republic of Nigeria v Process & Industrial Development Ltd today, the judge said that Nigeria succeeded on its challenge under section 68 of the Arbitration Act 1996, though not all of its allegations were accepted.
In an endnote, the judge lambasted individuals who were ‘driven by greed and prepared to use corruption; giving no thought to what their enrichment would mean in terms of harm for others'.
The judge said he would refer a copy of his judgment to the Solicitors Regulation Authority and Bar Standards Board in relation to the conduct of solicitor Seamus Andrew and barrister Trevor Burke KC over the handling of documents which came into P&ID's hands during the arbitration proceedings.
'As legal professionals Mr Andrew and Mr Burke KC appreciated that [Nigeria's internal legal documents] included documents that were privileged, ' the judge said. He rejected as 'untrue' Andrew’s oral evidence that the documents were shared as part of settlement discussions. ‘Mr Andrew and Mr Burke KC knew that P&ID and they were not entitled to see these documents. Their decision not to put a stop to it, at least by informing Nigeria or immediately returning the documents they knew were received, was indefensible,' the judge said.
‘The reason Mr Andrew and Mr Burke KC behaved in this way was because of the money they hoped to make,’ the judge continued. Andrew may have had a claim for up to £3bn in the event of P&ID's success while Burke may have had a claim for up to £850m, he said. ‘I trust that these two regulators of the legal profession in England & Wales will consider the professional consequences of the conduct of Mr Burke KC and Mr Andrew in relation to Nigeria’s internal legal documents.’
Knowles also said that he hoped the case would spark debate about the conduct of arbitration. ‘The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved.
‘The present case shows that having a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.’
- In statements Seamus Andrew and Trevor Burke KC denied wrongdoing. Andrew said ‘I do not accept the criticism in the judgment concerning Nigeria’s internal legal documents. I believe I acted in accordance with my professional duties, and I am confident that my conduct will in due course be vindicated by my regulator.
‘I appeared voluntarily before the High Court as a witness and did my best to answer the questions asked of me carefully and accurately, as the judge observed. I shall not be making any further comment at this time in relation to today’s judgment.’
Burke said: ‘I do not accept the criticism that have been made of me in relation to Nigeria’s internal legal documents. I gave my evidence in the English proceedings in good faith and to the best of my ability.
‘I am confident that my conduct will be exonerated by my professional body with whom I shall cooperate fully.’
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