THE AUTHOR:
Zeyad Abouellail, Senior Legal Officer at Jus Mundi
Arbitration Aftermath with Zeyad Abouellail and Esen Aydın: 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.
Zhongshan Fucheng v. Nigeria
Chinese Investor and Nigeria Jointly File for Dismissal of Petition for Writ of Certiorari Before US Supreme Court
Ad hoc Arbitration
Tribunal: David E. Neuberger (President), Matthew Gearing (Appointed by the claimant), Rotimi Oguneso (Appointed by the State)
Seat of arbitration: London, United Kingdom
On 25 March, Zhongshan Fucheng Industrial Investment (“Zhongshan” or “investor”) and Nigeria (collectively “the parties”) filed a Joint Stipulation to Dismiss Nigeria’s petition for writ of certiorari before the US Supreme Court.
The dispute arose out of Zhongshan’s investment in the Ogun-Guangdong Free Trade Zone in Nigeria 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. In 2021, the arbitral tribunal found that Nigeria breached the BIT and awarded the investor around USD 70 million (including pre-award interest and costs).
Shortly after, the investor sought to enforce the award in the US. Nigeria moved to dismiss the enforcement petition on grounds of sovereign immunity. In January 2023, the US District Court for the District of Columbia denied Nigeria’s motion to dismiss, finding that the award is subject to the New York Convention (1958) (“NYC”) and that Nigeria is not immune under the Foreign Sovereign Immunities Act (“FSIA”). Nigeria appealed, and in August 2024, the US Court of Appeal for the District of Columbia Circuit upheld the District Court’s decision in a majority decision. The Court of Appeals held that “person” in Article I of the NYC includes sovereign governments “even acting solely jure imperii”. However, Judge Katsas dissented, opining that the “person” in Article I of the NYC “does not extend to states acting in their sovereign capacity”.
Thereafter, Nigeria filed a petition for a writ of certiorari arguing that the NYC does not apply to “arbitration agreements governing a dispute with a sovereign nation arising out of its role as a sovereign”.
However, the parties have filed a joint stipulation to dismiss 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.
The investor also pursued enforcement of the award in the BVI, France, and Canada.
Infrastructure Services (Antin) v. Spain
European Commission Deems Intra-EU Award in Antin v. Spain Illegal State Aid
ICSID Case No. ARB/13/31
Institution: ICSID (International Centre for Settlement of Investment Disputes)
Tribunal: Eduardo Zuleta Jaramillo (President), Francisco Orrego Vicuña (Appointed by the claimants), J. Christopher Thomas (Appointed by the State)
Ad hoc Committee: Cavinder Bull (President), José Antonio Moreno Rodríguez, Nayla Comair-Obeid (Members)
On 24 March, the European Commission (“EC”) rendered its decision declaring that the Antin v. Spain Intra-EU award constitutes illegal State aid.
This case is one of 51 cases filed by investors against Spain under the Energy Charter Treaty (1994) (“ECT”) following policy changes that reduced subsidies introduced to the renewable energy sector. According to Spain, eight of those cases are still pending.
In the Antin arbitration, Spain was ordered in 2018 to pay the investors EUR 112 million plus interest in compensation for breaching the ECT’s Fair and Equitable Treatment (“FET”) standard. Following the award, Spain notified the award to the Commission for assessment under EU State aid rules.
In a press release, the EC explained that “intra-EU arbitration […] 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”. It cited the Komstroy judgment and explained that intra-EU arbitration under the ECT “poses a threat to the autonomy of EU law and the principle of mutual trust between the Member States”.
The EC declared that “Spain must continue to resist attempts to enforce the award, in addition to not voluntarily paying out on the award”.
Spain’s Ministry for Ecological Transition welcomed the Commission’s decision, viewing it as a vindication of its stance on intra-EU arbitration. In a press release, it described the Antin case as a “pilot” 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’s Notice of Supplemental Authority, 31 March 2025).
Deutsche Telekom v. India
US District Court Grants India’s Motion for Unconditional Stay of Enforcement Pending Appeal
PCA Case No. 2014-10
Institution: PCA (Permanent Court of Arbitration)
Tribunal: Gabrielle Kaufmann-Kohler (President), Daniel M. Price (Appointed by the claimant), Brigitte Stern (Appointed by the State)
Seat of arbitration: Geneva, Switzerland
On 19 March, the United States District Court for the District of Columbia (“DC District Court”) granted India’s motion to stay enforcement and post-judgment discovery pending its appeal to a judgment that enforced a USD 93 million BIT award.
In March last year, Judge Richard J. Leon of the DC District Court found that the Foreign Sovereign Immunities Act’s arbitration exception applied and rejected India’s request to reserve its merits defences under the NYC 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).
Thereafter, India appealed the judgment and filed a motion to stay enforcement and post-judgment discovery pending the appeal.
In a Minute Order, Judge Leon granted India’s 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’s net worth, and its residency status. While acknowledging the size of the award, he noted that India is one of the world’s largest economies, with a GDP in the trillions. He also considered India’s status as a sovereign state, which courts have previously accepted as a valid reason to waive the bond requirement for solvent sovereigns.
In 2023, Deutsche Telekom was successful in enforcing the award in Singapore (See our previous digest here).
ABOUT THE AUTHOR
Zeyad Abouellail is a Senior Legal Officer at Jus Mundi and a PhD candidate & teaching assistant at Paris-Saclay University. His doctoral research focuses on the post-award phase in investment arbitration, alongside his teaching responsibilities in civil and contract law. Zeyad regularly speaks on the intersection of Artificial Intelligence and law. He holds Master’s Degrees in International Business Law from both Paris-Saclay University and Paris 1 Panthéon-Sorbonne University. Before joining Jus Mundi, Zeyad interned at several law firms in international arbitration and corporate law in Cairo, Egypt.
