Zeyad Abouellail, <\/strong>Senior Legal Officer at Jus Mundi<\/strong><\/a><\/strong><\/p>\n\n\n\n
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\nArbitration Aftermath with Zeyad Abouellail and Esen Ayd\u0131n: Your trusted source for the latest post-award developments in the dynamic world of investor-State and commercial arbitration. Back with a fresh perspective, Zeyad focuses on cases involving States, ministries, and public entities, while Esen handles disputes between private parties. From settlements and compliance with awards to recognition, enforcement procedures, annulment, and beyond. Each week, we bring you global insights and updates to navigate this ever-evolving landscape.<\/p>\n\n\n\n
\nDiscover more digests<\/a><\/div>\n<\/div>\n<\/blockquote>\n\n\n\n<\/div>\n\n\n\n
\n\n\n\nZhongshan Fucheng v. Nigeria<\/strong><\/a><\/em><\/strong><\/a><\/em><\/em><\/strong><\/strong><\/em><\/strong><\/strong><\/h2>\n\n\n\n
Chinese Investor and Nigeria Jointly File for Dismissal of Petition for Writ of Certiorari Before US Supreme Court<\/strong><\/h4>\n\n\n\n
<\/div>\n\n\n\nAd hoc<\/em> Arbitration<\/strong>
Tribunal:<\/strong> David E. Neuberger<\/a> (President), Matthew Gearing<\/a> (Appointed by the claimant), Rotimi Oguneso<\/a> (Appointed by the State)
Seat of arbitration: <\/strong>London, United Kingdom<\/p>\n\n\n\n
\n\n\n\n<\/div>\n\n\n\nOn 25 March, Zhongshan Fucheng Industrial Investment (\u201cZhongshan<\/strong>\u201d or \u201cinvestor<\/strong>\u201d) and Nigeria (collectively \u201cthe parties<\/strong>\u201d) filed a Joint Stipulation to Dismiss<\/a> Nigeria\u2019s petition for writ of certiorari<\/a> before the US Supreme Court.<\/p>\n\n\n\n
The dispute arose out of Zhongshan\u2019s investment in the Ogun-Guangdong Free Trade Zone in Nigeria<\/a> through a joint venture entered between Zhongshan (through a local subsidiary), the Ogun State, and Zenith Global Merchant for the development and management of the Fucheng Industrial Park. In 2016, Zhongshan was evicted from the joint venture due to alleged fraud. Zhongshan initiated arbitration in 2018 under the China-Nigeria BIT<\/a>. In 2021, the arbitral tribunal found<\/a> that Nigeria breached the BIT and awarded the investor around USD 70 million (including pre-award interest and costs).<\/p>\n\n\n\n
Shortly after, the investor sought to enforce<\/a> the award in the US. Nigeria moved to dismi<\/a>s<\/a>s<\/a> the enforcement petition on grounds of sovereign immunity. In January 2023, the US District Court for the District of Columbia denied<\/a> Nigeria\u2019s motion to dismiss, finding that the award is subject to the New York Convention (1958)<\/a> (\u201cNYC<\/strong>\u201d) and that Nigeria is not immune under the Foreign Sovereign Immunities Act (\u201cFSIA<\/strong>\u201d). Nigeria appealed<\/a>, and in August 2024, the US Court of Appeal for the District of Columbia Circuit upheld<\/a> the District Court\u2019s decision in a majority decision. The Court of Appeals held that \u201cperson\u201d in Article I of the NYC includes sovereign governments \u201ceven acting solely jure imperii<\/em>\u201d. However, Judge Katsas dissented<\/a>, opining that the \u201cperson\u201d in Article I of the NYC \u201cdoes not extend to states acting in their sovereign capacity<\/em>\u201d.<\/p>\n\n\n\n
Thereafter, Nigeria filed a petition for a writ of certiorari<\/a> arguing that the NYC does not apply to \u201carbitration agreements governing a dispute with a sovereign nation arising out of its role as a sovereign<\/em>\u201d.<\/p>\n\n\n\n
However, the parties have filed a joint stipulation to dismiss<\/a> the petition for the writ. The petition does not set out the reasons for the dismissal. The parties have agreed that each will bear its own costs.<\/p>\n\n\n\n
The investor also pursued enforcement of the award in the BVI<\/a>, France<\/a>, and Canada<\/a>.<\/p>\n\n\n\n
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\n\n\n\nInfrastructure Services (Antin) v. Spain<\/strong><\/a><\/em><\/strong><\/a><\/em><\/em><\/strong><\/h2>\n\n\n\n
European Commission Deems Intra-EU Award in Antin v. Spain Illegal State Aid<\/strong><\/h4>\n\n\n\n
<\/div>\n\n\n\nICSID Case No. ARB\/13\/31<\/strong>
Institution:<\/strong> ICSID<\/a> (International Centre for Settlement of Investment Disputes)
Tribunal:<\/strong> Eduardo Zuleta Jaramillo<\/a> (President), Francisco Orrego Vicu\u00f1a<\/a> (Appointed by the claimants), J. Christopher Thomas<\/a> (Appointed by the State)
Ad hoc<\/em> Committee<\/strong>: Cavinder Bull<\/a> (President), Jos\u00e9 Antonio Moreno Rodr\u00edguez<\/a>, Nayla Comair-Obeid<\/a> (Members)<\/p>\n\n\n\n
\n\n\n\n<\/div>\n\n\n\nOn 24 March, the European Commission (\u201cEC<\/strong>\u201d) rendered its decision declaring that the Antin v. Spain<\/em> Intra-EU award<\/a> constitutes illegal State aid.<\/p>\n\n\n\n
This case is one of 51 cases filed by investors against Spain under the Energy Charter Treaty (1994)<\/a> (\u201cECT<\/strong>\u201d) following policy changes that reduced subsidies introduced to the renewable energy sector. According to Spain, eight of those cases are still pending.<\/p>\n\n\n\n
In the Antin arbitration, Spain was ordered<\/a> in 2018 to pay the investors EUR 112 million plus interest in compensation for breaching the ECT\u2019s Fair and Equitable Treatment<\/a> (\u201cFET<\/strong>\u201d) standard. Following the award, Spain notified the award to the Commission for assessment under EU State aid rules.<\/p>\n\n\n\n
In a press release<\/a>, the EC explained that \u201cintra-EU arbitration <\/em>[\u2026] violates fundamental rules of EU law on the ultimate jurisdiction of the Court of Justice of the European Union (CJEU) and the general principle of autonomy of the EU legal order<\/em>\u201d. It cited the Komstroy judgment<\/a> and explained that intra-EU arbitration under the ECT \u201cposes a threat to the autonomy of EU law and the principle of mutual trust between the Member States\u201d.<\/em><\/p>\n\n\n\n
The EC declared that \u201cSpain must continue to resist attempts to enforce the award, in addition to not voluntarily paying out on the award<\/em>\u201d.<\/p>\n\n\n\n
Spain\u2019s Ministry for Ecological Transition welcomed the Commission\u2019s decision, viewing it as a vindication of its stance on intra-EU arbitration. In a press release<\/a>, it described the Antin case as a \u201cpilot<\/em>\u201d for challenging the enforcement of intra-EU awards and indicated its intention to rely on the decision in ongoing enforcement proceedings worldwide (See for example BayWa v. Spain, The Kingdom of Spain\u2019s Notice of Supplemental Authority, 31 March 2025<\/a><\/em>).<\/p>\n\n\n\n
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\n\n\n\nDeutsche Telekom v. India<\/strong><\/a><\/em><\/strong><\/a><\/em><\/h2>\n\n\n\n
US District Court Grants India\u2019s Motion for Unconditional Stay of Enforcement Pending Appeal<\/strong><\/h4>\n\n\n\n
<\/div>\n\n\n\nPCA Case No. 2014-10<\/strong>
Institution: <\/strong>PCA<\/a> (Permanent Court of Arbitration)
Tribunal:<\/strong>\u202fGabrielle Kaufmann-Kohler<\/a> (President), Daniel M. Price<\/a> (Appointed by the claimant), Brigitte Stern<\/a> (Appointed by the State)
Seat of arbitration:<\/strong>\u202fGeneva, Switzerland<\/p>\n\n\n\n
\n\n\n\n<\/div>\n\n\n\nOn 19 March, the United States District Court for the District of Columbia (\u201cDC District Court<\/strong>\u201d) granted<\/a> India\u2019s motion to stay enforcement and post-judgment discovery pending its appeal to a judgment that enforced a USD 93 million BIT award<\/a>.<\/p>\n\n\n\n
In March last year, Judge Richard J. Leon of the DC District Court found<\/a> that the Foreign Sovereign Immunities Act\u2019s arbitration exception applied and rejected India\u2019s request to reserve its merits defences under the NYC<\/a> for a later stage after the same arguments were dismissed by the arbitral tribunal and the Swiss courts in the context of set aside proceedings (See our previous digest here<\/a>).<\/p>\n\n\n\n
Thereafter, India appealed<\/a> the judgment and filed a motion to stay enforcement and post-judgment discovery<\/a> pending the appeal.<\/p>\n\n\n\n
In a Minute Order<\/a>, Judge Leon granted India\u2019s motion to stay enforcement without requiring a bond. He considered the following factors for evaluating whether to grant a stay without a bond: the amount of the award, the moving party\u2019s net worth, and its residency status. While acknowledging the size of the award, he noted that India is one of the world\u2019s largest economies, with a GDP in the trillions. He also considered India\u2019s status as a sovereign state, which courts have previously accepted as a valid reason to waive the bond requirement for solvent sovereigns.<\/p>\n\n\n\n
In 2023, Deutsche Telekom was successful in enforcing the award in Singapore (See our previous digest here<\/a>).<\/p>\n\n\n\n
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