Article 53 of the ICSID Convention provides that an ICSID award ("the award") is final and binding, and immune from appeal, stay or annulment, other than as provided in the ICSID Convention. Article 52 of ICSID Convention provides for the limited grounds for annulment and they include;
- The Tribunal was not properly constituted;
- The Tribunal manifestly exceeded its powers;
- There was corruption on the part of a member of the Tribunal;
- There was a serious departure from a fundamental rule or procedure;
- The award has failed to state the reasons on which it is based.
The above grounds may also constitute the main defence which the losing Respondent States put forward to resist the recognition and enforcement of the award. Article 54 of the ICSID Act provides that the Contracting State shall recognize an award under the Convention as binding and enforce the obligations in the award as the final judgment of a court in that State. Hence, resisting enforcement otherwise and not implementing the award is a clear violation of international obligations. During recognition and enforcement in domestic courts, the court's authority is limited to only verifying that the award is authentic.
Interestingly, Nigeria ratified the ICSID Convention since 23rd August 1965. Pursuant to this, the legislature enacted the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act CAP I 20, Laws of the Federation of Nigeria, 2004 ("the ICSID Act"). Section 1 (1) of the ICSID Act provides that if it is expedient to enforce in Nigeria an award made by the International Centre for Settlement of Investment Disputes, a copy of the award duly certified by the Secretary-General of the Centre, shall be filed at the Supreme Court of Nigeria by the party seeking its recognition for enforcement in Nigeria. The award shall for all purposes have effect as if it were an award contained in a final judgment of the Supreme Court, and the award shall be enforceable as such.
Section 1 (2) of the ICSID Act requires the Chief Justice of Nigeria to make rules of court to give effect to the provisions of the ICSID Act. Though the Chief Justice of Nigeria has not made the rules, the party seeking recognition shall make an application for the recognition and enforcement of the award pursuant to the relevant Supreme Court rules. The combined effect of Order 2 Rule 15, Order 3 Rule (1) and (3) and Order 3 Rule (6) (2) provides that any party claiming to be interested in any proceedings under a deed or other written instrument, may apply for the issue of an originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested and for any further relief. This makes recognition and enforcement of the award to be commenced by an originating summons at the Supreme Court of Nigeria.
Notwithstanding, the finality of the award, Article 55 of the ICSID Convention provides that laws relating to sovereign immunity from execution remain applicable, thus ratification of the ICSID Convention is not a waiver of sovereign immunity from execution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
