SETTLEMENT OF OIL AND GAS DISPUTES: DOMESTIC AND INTERNATIONAL PERSPECTIVES

PAPER DELIVERED BY:

OLABISI O. SOYEBO, SAN, MCIArb.

AT

THE MINISTRY OF JUSTICE MAITAMA, ABUJA

29th NOVEMEBER, 2011.

SETTLEMENT OF OIL AND GAS DISPUTES: DOMESTIC AND INTERNATIONAL PERSPECTIVES BEING A PAPER DELIVERED BY OLABISI O. SOYEBO. SAN. MCIArb., AT THE MINISTRY OF JUSTICE MAITAMA ABUJA ON 29TH NOVEMEBER, 2011.

INTRODUCTION

Oil and gas are considered among the world's most important resources and the oil and gas industry plays a critical role in driving the global economy. They are used for numerous products, in addition to serving as the world's primary fuel source. The processes and systems involved in producing and distributing oil and gas are highly complex, capital-intensive and require state-of-the-art technology. Though efforts are being made to develop alternative sources of energy the world over, Oil and Gas will no doubt remain the largest fuel in the international energy market for some time and demand for the resources will continually create transactions and the attendant disputes. We all know that big business means big problems!

The focus of this paper is to highlight the types of disputes which arise in the Oil and Gas industry, the type of Dispute Settlement/Resolution mechanisms available for resolving such disputes, issues of jurisdiction vis a vis private international law, consideration of the enabling instruments and laws and a practice guide to commencing/defending oil and gas related suits and finally a consideration of the Petroleum Industry Bill.

1. TYPES OF DISPUTES IN THE OIL AND GAS INDUSTRY.

Disputes in the oil and gas sector the world over can span a range of subject matter, involving diverse parties. Some of these areas of disputes are outlined as follows: | * International and Local Maritime Boundary Disputes:
With the increased demand for oil and gas and the uncertainty enshrouding oil prices in recent years, there has been a marked increase in disputes between Countries and also between states within Countries involving issues of territorial rights and resource ownership. An example of a local maritime boundary dispute is that in Attorney-General Rivers State v. Attorney-General, Akwa Ibom State & Anor (2011) LPELR-SC.27/2010, (2011) 8 NWLR (1248) 31. The case involved a dispute between the governments of Rivers State and Akwa Ibom State respectively over the allocation of 172 offshore oil wells within the sea boundary shared by both states. The parties had earlier in accordance with a Political Solution, in a meeting attended by the two states and the Federal Government, reached an agreement which was put down into writing and dated 31st October, 2006, that the two states would share the revenue accruing from the 172 oil wells at an even proportion of 50% each i.e. 86 oil wells to each party. However, in 2008 the Nigeria Boundaries Commission (NBC) and Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) on behalf of the Federal Government, unilaterally allocated all the oil wells to Akwa Ibom in line with a Historical Solution which had been a form of solution proposed in an earlier action in Court (AG Federation V. AG Abia (2002) 6 NWLR (Pt 764) 542) but which was however not granted as a form of resolution by the Supreme Court. It was on the basis of the action taken by NBC and RMAFC that Rivers State brought an action before the Supreme Court.The basis of the decision of the Supreme Court which was in favour of Rivers State was the principle of estoppel and other principles of law of Contract which were heavily relied upon in the lead judgment. | | * Disputes arising from State acts: | |
The Government i.e. National Government grants concessions or licenses to local and foreign investors to conduct oil and gas exploration and production. However, with the recent surge in oil prices, disputes have arisen as government introduces measures such as expropriation and nationalisation, in order to gain some windfall from spikes in the market. Disputes also arise from implementation of government’s rights or policies under licences granted to oil companies or contracts signed with companies. An example of the latter form of dispute is the case of Nigerian National Petroleum Corporation V. Famfa Oil Limited & Anor (2009) LPELR-SC.178/2008; (2009) 12 NWLR (Pt. 1156) 462 where the Federal Government of Nigeria exercised its right to “back in” and re-acquire participating interest in an Oil Mining Lease granted to an indigenous Oil and Gas Company. See also The Federal Government of Nigeria & Ors V. Zebra Energy Limited (2002) LPELR-SC.268/2001; (2002) 18 NWLR (Pt. 798) 162. | | * Disputes arising from agreements:
Disputes commonly crop up between suppliers and distributors in the downstream market when parties are in disagreement over the quantity and the price at which products are to be supplied. A notable example in the international scene include the dispute between Russia and Ukraine on the issue of gas supply between these 2 countries. A local example is the case of Nigerian National Petroleum Corporation V. Klifco Nigeria Limited (2011) LPELR-SC.233/2003; (2011)10 NWLR (Pt. 1255) 209, which involved a gas supply contract between the NNPC and an indigenous Nigerian company. * Disputes arising from Constitutional/Statutory interpretation: |

Disputes also arise following Governments’ attempt to implement laws, regulations and policies in the sector.

A.G Federation V. A.G Abia (No 2) 2002 6 NWLR (Pt.764) 542; Attorney-General Rivers State V. Attorney-General, Akwa Ibom State & Anor (supra); NNPC v. Famfa (supra).

* Disputes arising from damages cause by oil exploration activities/compensation issues:

Incidences of oil spillage and pollution are common with oil exploration activities all over the world. These forms of dispute arise majorly between local host communities/states and or individuals and National/Multinational oil and gas companies where exploration activities take place or where oil and gas pipelines run through. Various local examples include the cases of The Shell Petroleum Development Company Of Nigeria Limited V. Abel Isaiah & Ors (2001) LPELR-SC.75/1997; (2001) 9 NWLR (Pt. 723) 173; SPDC v. Maxon (2001) 9 NWLR (Pt. 719) 541.

2. PARTIES

As can be seen from the cases earlier cited, usually these disputes are between:- a. States-
A.G Federation v. A.G Abia (No 2) (supra)Attorney-General Rivers State v. Attorney-General, Akwa Ibom State & Anor (supra). b. Government and Investors-
NNPC v. Famfa (supra),
IPCO v. NNPC (FHC/L/CS/1060/2004) c. Host communities and Investors- Nigerian AGIP Oil Ltd v. Kemmer (2001) 8 NWLR (Pt. 716) 511. d. Employer and Employees- Idoniboye Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589; Chukwumah v. Shell (1993) 4 NWLR (Pt. 289) 513.

3. TYPES OF DISPUTE SETTLEMENT MECHANISMS There are a few well known classifications or types of settlements mechanisms employed in the settlement of oil and gas disputes. However, these classifications are more of descriptive references as opposed to defining what form of settlement of dispute is possible or available, parties can create their own dispute resolution mechanisms based on their knowledge and creativity-infact in America today, they now talk of “expert determination”.

Having stated the above, Litigation and Arbitration are probably the most well known or the traditional settlement mechanisms employed in settlement of oil and gas disputes however others include ADR mechanisms like Negotiation, Conciliation, Mediation and Mini-trial. However the type of dispute settlement mechanism adopted in each case would depend largely on the nature of the dispute or even the parties involved.

A. Litigation

Litigation can perhaps be called one of the two (2) traditional and, should I say, major methods of dispute resolution in the oil and gas industry. Parties often resort to litigation where the contract does not provide for a specific mode of dispute resolution. In other instances, litigation represents the most realistic and feasible option available to the disputants. However it can be expensive, time consuming, technical, unduly cumbersome.

Be that as it may, litigation in Court is sometimes the only realistic option open to parties. For example: a. Jurisdiction disputes b. Injunctive claims c. Where there is no defence to the claim i.e summary judgment. d. Where the arbitral process is being challenged: IPCO v. NNPC (supra)

B. Arbitration

This is the other traditional and major method of dispute resolution. Infact when disputes arise in respect of contracts with foreign investors/parties; there is now an increasing tendency to refer such disputes to resolution through International Commercial Arbitration and particularly to International Arbitration centres all over the world.

Arbitration is a binding dispute resolution technique involving both the parties and their lawyers playing an active role. Usually, the arbitration technique is selected at the time the contract or relationship is created and is accomplished prior to the dispute, by an arbitration clause included in the contract, or by a separate agreement between the parties also prior to the existence of a dispute.

The parties typically play a major role in selecting their arbitrator who acts as the neutral decision-maker. This process allows parties to select persons who possess the requisite knowledge and experience on the subject matter of the dispute. Since arbitration is party-driven, the parties also have the flexibility to define the procedures that will be followed, such as discovery of documents, submissions and the presentation of evidence, e.t.c. Arbitration, when compared to litigation, is usually generally faster, less expensive, confidential, and enables the decision-maker to focus on the details of the dispute while taking into account the customs and practices of the industry. Arbitration remains more attractive choice in oil and gas contracts especially in agreements involving foreign companies as parties are usually wary of submitting to the jurisdiction of the other party.

C. Negotiation

Lawyers routinely negotiate some or all aspects of their clients' disputes. When a dispute arises the lawyer often becomes the key actor in the negotiation process with their client at the periphery. The tendency is often to "turn it over to the lawyers" once it is apparent the matter cannot be resolved through ordinary business channels. The lawyers then attempt to hammer out a settlement within the general confines of their clients' authority.

D. Mediation and Conciliation

Mediation and conciliation are quite similar and are frequently used interchangeably.
Mediation is perhaps the most popular form of non-decisional dispute resolution. The disputing parties are the active participants in mediation. Depending upon the selected process, the parties' lawyers may, or may not, be present during the mediation. The process employs a neutral party, the "mediator," who may be an attorney or some other specially trained or experienced person. Unlike arbitration, the mediator has no decision-making role and cannot impose a solution on the parties. Instead, the mediator serves as a facilitator for the parties, enabling them to conduct open communication regarding their interests, concerns, and options for resolving their dispute. The parties work out their own settlement agreement which they can make binding or non-binding. Party satisfaction in the mediation process can be quite high. The process allows the parties to vent their anger, feelings, hostilities, and fears in a "controlled" process. The parties are permitted to work through all aspects of their dispute which typically means any resulting settlement agreement will enjoy a high level of compliance. Parties typically find the mediation process more manageable because they can control the time and money that is spent pursuing mediation. The primary costs are the mediator's hourly fee and the time required of the parties to prepare for and participate in the mediation. The process is private, and the parties can agree to whatever level of confidentiality they desire. The net effect tends to strengthen relationships that would otherwise be irretrievably damaged by the litigation process.

It must be noted though that the Arbitration and Conciliation Act is silent on Mediation.

E. Minitrial

The minitrial is often used in disputes between corporations. It involves the presentation (a “hearing”) of an abbreviated version of each party's case to a panel consisting of a senior executive officer for each disputant and a neutral advisor.' It is a private process before the neutral third party which requires the active participation of the senior executives. The goal is to provide the executives with an opportunity to hear the best case each side has to offer while providing the information, and the environment, to try and negotiate a resolution of the dispute. This ADR process which is non-binding (unless agreed otherwise) assists the parties to a dispute to assess and gain a better understanding of the issues in dispute between themselves.

Usually it involves a short presentation by the in-house lawyer of each party. The “disputants” literally become the “jury”. The executives for each party must be present throughout the proceedings so that they can personally hear each party’s case.

During the proceedings, the Lawyers representing each party may present documentary exhibits and affidavits however sworn testimony is not taken. The rules of evidence are relaxed. After all sides have given their summary presentation, the executives meet to engage in negotiations to try and settle the dispute. If they are unable to resolve the dispute, they may receive a written non-binding opinion from the third party neutral advisor regarding the neutral's assessment of the case and likely outcome at trial. With this additional information, the executives may choose to meet again in an attempt to negotiate a settlement. Sometimes if at this stage the executives are unable to resolve the dispute they may then agree to allow the third party neutral advisor to issue a binding decision. Regardless of the precise process followed, settlement of disputes by mini-trial is often effectively accomplished because the parties with decision-making authorities are actively involved in the process. This process has enjoyed some considerable success in the United States.

4. ENABLING INSTRUMENTS, LAWS AND RULES There is no doubt that the laws and regulations in the oil and gas sector are quite expansive dealing with the various segments and divisions in the sector. However this paper would mention a few as examples which have more repeatedly come into view in oil and gas disputes. * CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) Section 44 (3) of the 1999 Constitution (as amended) provides as follows:- Notwithstanding the foregoing provisions of this sections, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed the National Assembly. In A.G Federation V. A.G Abia (No 2) 2002 6 NWLR (Pt.764) 542 (the celebrated “resource control” case) the Supreme Court confirmed the Federal Government’s ownership of oil and gas in Nigeria when it held as follows: The Federal Government alone and not the littoral States can lawfully exercise legislature, executive and judicial powers over the maritime belt or territorial waters, and sovereign rights over the Exclusive Economic Zone subject to universally recognised rights. The import of the above decision is that no State Government, person or group of persons can exercise any sovereign right, claim, ownership or control over oil and gas resources within, upon, or lying under all land including the seabed, subsoil and territorial waters of Nigeria, its continental shelf or Exclusive Economic Zone. Meanwhile Section 251(1),(n) of the Constitution confers exclusive jurisdiction to the Federal High Court to the exclusion of every other Court in civil causes and matters relating to mines and minerals including oil fields, oil mining, geological surveys and natural gas. Specifically the section provides as follows: (n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas) See the cases of oil spillage: Shell Petroleum Development Company Ltd v. Isaiah (2001) 11 NWLR (Pt.723) 173; SPDC V. Maxon (supra). * PETROLEUM ACT, CAP P10 LFN 2004 Section 1 of the Petroleum Act also vests the entire ownership of all petroleum in, under or upon any lands in the Federal Government of Nigeria. Specifically, the section provides as follows: (1) The entire ownership and control of all petroleum in under or upon any lands to which this section applies shall be vested in the State. (2) This section applies to all land (including land covered by water) which- (a) Is in Nigeria; or (b) Is under the territorial waters of Nigeria; or (c) forms part of the continental shelfs; or (d) forms part of the Exclusive Economic Zone of Nigeria. Section 11 of the Petroleum Act, provides for the applicable law relating to arbitration where parties to such arbitration have either or not agreed on an appropriate State where the dispute or question shall be settled. The Section specifically provides:- (1) Where by any provision of this Act or any regulations made thereunder a question or dispute shall be settled in accordance with the law relating to arbitration in the appropriate State and the provision shall be treated as a submission to arbitration for the purposes of that law. (2) In this section “the appropriate State” means the State agreed by all parties to a question or dispute to be appropriate in the circumstances or, if there is no such agreement, the Federal Capital Territory, Abuja. * NIGERIAN NATIONAL PETROLEUM ACT CAP N123 LFN 2004 Section 12 of the NNPC Act provides limitation of time within which to commence an action against the Corporation and further makes it mandatory for any intending litigant to serve a notice of intention to take legal proceedings against the Corporation before such proceedings can be instituted in the Courts. The Section provides as follows:- 12. (1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employee of the Corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof. (2) No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.

The Courts have recognized the limitation and mandatory condition precedent imposed by this section and have given effect to the provisions of this Act in several cases.

The Supreme Court in the case of Eboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649 at 659 -660 held that the provisions impose a limitation of time upon existing right of action, and therefore are statutory provisions having the same effect as a statute of limitation.

In the case of PETER V. NNPC (2010) 8 NWLR (PT. 1195) @ P 192 PARAS G-H the sole issue before the Court of Appeal was whether the appellant’s suit which was commenced without serving a notice of intention to commence legal proceeding was competent.

The Court held that Exhibit P1 (the letter in issue) substantially complied with the requirement of a pre-action notice as provided under S. 12 (2) of the NNPC Act:

Section 14 of the NNPC Act further provides that no property of the Corporation can be attached in satisfaction or execution of any judgment. 14. In any action or suit against the Corporation no execution or attachment or process in the nature thereof shall be issued against the Corporation but any sums of money which may, by the judgment of the court, be awarded against the Corporation shall, subject to any directions given by the court where notice of appeal has been given by the Corporation, be paid from the general reserve fund of the Corporation. * FEDERAL HIGH COURT ACT CAP F12 LFN 2004 Section 7 (1) (q) of the Federal High Court Act also confers original jurisdiction, to the exclusion of any other Courts, on the Federal High Court to try causes and matters connected or pertaining to:- (q) mines and minerals, including oil fields oil mining, geological surveys and natural gas See Maxon’s case (supra); Isaiah’s case (supra) * ALLOCATION OF REVENUE (ABOLITION OF DICHOTOMY IN THE PRINCIPLE OF DERIVATION) ACT CAP A27 LFN 2004. The Act ameliorated the effects of the ‘Resource Control Case’ of A.G Federation v. A.G Abia (supra). It dealt with the “Principle of Derivation’ in the sharing of oil revenues. It abrogated the dichotomy between oil and gas resources derived onshore and those derived offshore.

* DEEP OFFSHORE AND INLAND BASIN PRODUCTION SHARING CONTRACTS ACT CAP D3 LFN 2004 The Act deals with Production Sharing contracts in the deep offshore, their terms and duration-aggregate of 10 years. See Sapetrol’s Case (supra). * TERRITORIAL WATERS ACT CAP T5 LFN 2004 S 3(1) of the Act places a restriction on trial of persons other than Nigerian citizens for offences committed on the open sea within the territorial waters of Nigeria unless the Honourable Attorney General of the Federation issues a certificate signifying his consent, prior to the trial. See the case of A.G Federation v. A.G Abia (No. 2) (supra) at 585 particularly on definitions. * OIL PIPELINE ACT CAP O7 LFN 2004 Section 19 of the Act covers issues of compensation where a local community is involved; it confers jurisdiction such matters on State High Courts or Magistrate Courts. See Nigerian Agip Oil Company Ltd v. Kemmer (2001)8 NWLR (Pt. 716) 511. * NIGERIAN OIL AND GAS INDUSTRY CONTENT DEVELOPMENT ACT 2010. The bill was signed into an Act on the 22nd day of April 2010; its major aim is the Nigerianisation of the oil and gas industry. The Act is to facilitate the following objectives:- -Create jobs; -Transfer of technology; -Giving Nigerian contractors a ‘let in’ when oil and gas contracts are to be issued; -Indeed for certain types of work only Nigerians are to be considered; and -It creates new criminal offences with penal sanctions. Arbitration – Relevant Enabling Laws/Rules

a. Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004:

This is the main Arbitration statute in the country. It provides for both domestic arbitration and international arbitration, not forgetting conciliation as well. The Convention for the Recognition and Enforcement of Foreign Awards 1958, a.k.a. “The New York Convention 1958” was adopted and incorporated as the 2nd Schedule to the Act while the Arbitration Rules in the 1st Schedule to the Act is a reproduction of the UNCITRAL Arbitration Rules.

Part I of the Act deals with domestic Arbitration, Part II covers conciliation (it is noteworthy that the Act is silent on ‘mediation’), while Part III deals with the provisions relating to International Commercial Arbitration and Conciliation (again silent on ‘mediation’).

b. UNCITRAL Arbitral Rules:

As with the New York Convention 1958, the UNICTRAL Arbitration Rules are also set out in the Arbitration Rules in the Arbitration and Conciliation Act – 1st Schedule. They are Rules which were put in place by the United Nations Commission on International Trade Law (UNCITRAL) and adopted by the UN General Assembly in 1976. Its aim was to put in place simple rules governing international commercial arbitration acceptable to countries having different legal, social and economic systems.

As earlier stated, our Arbitration and Conciliation Act is largely based on the UNCITRAL Model Law and UNCITRAL Arbitration Rules. c. ICC Arbitration Rules:

The ICC Arbitration Rules are commonly provided for in international contracts. They emanate from International Chambers of Commerce (ICC) in Paris, France.

d. Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958:

This is usually called “the New York Convention 1958”. Nigeria ratified the convention on 17th March 1970 and it has in fact been made expressly applicable in Nigeria under Section 54 of the Arbitration and Conciliation Act. As earlier stated, it has been set out in the 2nd Schedule of the Act.

e. Hague Convention on the Peaceful Settlement of Disputes 1899:

The Hague Convention created the Permanent Court of Arbitration (PCA) at the Hague primarily for the settlement of inter-state disputes by way of arbitration. As expected each contracting state is entitled to nominate jurists (4) who are versed in international law. The PCA has its Rules of Arbitration and Conciliation and the UNCITRAL Rules serves as a basis for the PCA’s Optional Rules for Arbitration in disputes between two states.

f. Convention on the Settlement of Investment Disputes (ICSID) 1965 Rules:

This is one of the World Bank Institutions dealing with the disputes arising from investments. Nigeria is one of the states which ratified this convention. It however has a limited scope of jurisdiction both as to eligible parties and subject matter as one of the parties to the dispute must be a contracting state and the dispute must have arisen out of an investment.

It is also a requirement that the parties must have agreed in writing to submit the dispute to the ISCID. It is interesting to note that the Nigerian Investment Promotion Council Act provides for the application of ICSID Rules in the arbitration of investment disputes.

g. The London Court of International Arbitration (LCIA) Rules:

The LCIA as apparent from the name is based in London, United Kingdom. It functions similarly to other arbitration institutions with its own.

There are still many other Arbitration institutions with their own rules but this paper will allow only mention of the above few.

4. Litigation – Issues to Consider:

Generally litigation as earlier stated is most often resorted to by parties whenever a dispute arises and this is particularly so even in the oil and gas sector. Reasons generally given for resorting to the litigation process include:

* Multiplicity of disputes (multiplicity of disputes) arising from a transaction; * Issue for resolution is purely a legal issue; * Where a party is seeking for the immediate enforcement of a right; * Where the need to compel a party might arise; * When assessment of evidence is crucial.

Consequently in dealing with the settlement of disputes, certain issues ought to be taken into consideration. Largely what operates in other sectors also applies to the Oil and Gas Sector.

a) Questions to ask:

1. Issues of Law or Fact: Does the precise issue involve an issue of law or fact? If the facts are not in dispute, can the issue be resolved by an application of legal principles? For dispute resolution purposes, if one or more of the issues are solely one of law, some sort of summary procedure, should be available to resolve purely legal issues. If there are issues of fact that needs to be resolved, the second analytical test should be applied.

2. Technical or Non-Technical Issues of Fact: If the dispute concerns non-technical issues of fact there may be no need for expert testimony concerning whether, for example, the lessee told the lessor that significant drainage of the leased property was occurring. Such veracity issues may be best resolved by having each party testify about what they said or were told by the other party. However, if the issue is whether, in fact, significant drainage is occurring, or whether a prudent operator would take action to drill a well to protect against drainage, these issues present technical issues of fact. Typically these issues are resolved with the benefit of expert testimony. These are also situations where veracity of the expert is typically not the issue; instead the focus will be on the method by which the expert arrived at their conclusion. These situations may be better suited for a written report instead of oral testimony.

3. Low-Cost or High-Cost Issues: The financial impact of the dispute will often be the determinative factor that defines the appropriate dispute resolution technique. It is difficult to justify $100,000 worth of "process" to resolve a $10,000 dispute.
Therefore, an effort must be made to value disputes so they can be dealt with in a procedurally efficient manner.

b. Mode of Commencement of Actions:

(i) Writ of Summons; (ii) Originating Summons; (iii) Originating Motions; and (iv) Petition.

Obviously the most frequently used modes of commencing action would be by way of Writ of Summons and Originating Summons; Originating Motions are more often than not used in actions for prerogative orders such as certiorari, mandamus, prohibition and habeas corpus or where a statute provides for a right but does not specify the means by which the application may be brought.

All these are provided for under the Rules of Court or enabling statutes.
For example see: * Order 3 (1) of the Federal High Court (Civil Procedure) Rules 2009. * Order 1 (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 The tendency usually is for lawyers to raise objections particularly if, for example, a contentious action is brought by way of Originating Summons but as we all know from practice; the attitude of the court is usually to simply order pleadings when such arises.

Consequently the failure to commence the action in the manner specified under the Rules or by statute would not necessarily be fatal as the trend of the courts now is to have matters determined on their merits and not on technicalities.

In a not too dissimilar situation, the Supreme Court in Famfa V. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453 encouraged non-adherence to technicalities.

c. Issues that can arise (Jurisdictional Issues):

There is the general misconception that the Government, that is to say, the Government lawyer is always defending an action. But that is not usually so. In fact there are numerous times when Government is, indeed, the plaintiff seeking the enforcement of certain rights, duties or obligations.

Now jurisdiction is the cornerstone of all litigation and denotes the court’s power or authority to determine a matter/suit.

On the issue of when the court can assume jurisdiction, the Supreme Court in Attorney General (Kwara) V. Olawale (1993) 1 NWLR (pt. 272) 645 at 674 held that it is where:

(a) the person bringing the action is properly before the court; and (b) the subject matter of the action is properly before the court.
And these are only properly before the court when by statute or inherent jurisdiction, the court can exercise jurisdiction over the parties.

See also: Egbue V. Araka (1988) 3 NWLR (pt. 84) 598 at 609, para D.

Similarly in the locus classicus case of Madukolu V. Nkemdili (1962) 2 SCNLR 341 and which was followed in Ibeanu V. Ogbeide (1994) 7 NWLR (pt. 359) 701 at 708, it was held that:

the jurisdiction of court is the definitive prerequisite before the court can be seized of any cause or matter, i.e. the authority which the court has to decide the matters that are being litigated before it. It encompasses the constitutional, statutory and conventional basis for exercise of a court’s jurisdiction within a prescribed geographical area of territory.

There are numerous jurisdictional issues that could arise and which Counsel ought to look out for and some are the following:

(i) Issue of Locus Standi of the Plaintiff/Claimant:

This has been defined as the right of be heard before a court of law; the legal capacity to institute an action; if a person has no legal capacity to do so, the court would have no jurisdiction to entertain his claims. See: Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Madukolu V. Nkemdilim (supra).

It must be noted as a matter of law that the Honourable Attorney General of the Federation has the locus standi to commence and defend actions for and on behalf of the Government. (ii) Issue of Reasonable Cause of Action:

This is the factual situation which if substantiated would entitle the plaintiff to a remedy against the defendant. It must be apparent from the pleadings, the wrongful act of the defendant which would give him the right to sue.
See: Savage V. Uwechia (1972) 3 SC 214 at 224;
Afolayan V. Ogunrinde (1990) 1 NSCC Vol. 21 (pt 1) 219 at 227.

(iii) Territorial Jurisdiction/Venue:

Territorial jurisdiction of a trial court is very relevant for the validity of any proceedings before the court. See: Madukolu V. Nkemdilim (supra).

Where the issue of venue is an intra state issue, the Chief Judge can transfer the matter to the proper venue within the state. See the Rules of Court. But where it is outside the state, any decision reached would be a nullity as parties cannot even by agreement confer jurisdiction on a court.

It should also be remembered that while matters outside the jurisdiction of the Federal High Court can be transferred to the State High Courts the reverse is not the case.
See: Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 7 SCNJ Pt. 2 p.365.

In CGG (Nig.) Ltd. V. Asaagbara (2001) 1 NWLR (pt. 693) 155 at 164, it was held that in matters “connected with or pertaining to” mines, geological surveys and natural gas, it was for the Federal High Court that had jurisdiction. This is in any case clearly stated in Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria 1999.
See also: Isaiah’s case (supra), Maxon’s case (supra)

(iv) Immunities:

The Public Officers (Protection) Act, CAP P41 LFN 2004 (POPA) – In Zebra Oil V. FGN (supra) it was held that POPA does not apply to cases of contract.

(v) Limitation of Statutes:

In Elabanjo V. Dawodu (2006) 2 All NWLR 116 at 123, it was held that where an action is statute barred, it is not an ordinary point of law under the rules of court. It is fundamental and goes to the jurisdiction of the court and therefore can be raised at any time even without filing a defence. Section 61 of the Limitation Act CAP 522, LFN 1990 would apply to Oil and Gas contracts. Section 12(1) of the Nigerian National Petroleum Corporation (NNPC) Act Cap N123 LFN 2004 provides thus:

Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employees of the Corporation for any act done in pursuance or execution of any enactment or law , or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance or damage or injury, within twelve months next after the ceasing thereof.

(vi) Pre-Action Notices:

NNPC Act Section 12(2) requires an aggrieved party to issue to the NNPC a notice of intention to commence a suit setting out his/her grievances, i.e. cause of action etc and this must be done at least one month before the institution of any action.

* Failure to issue this statutory and mandatory notice renders the action/suit incompetent and liable to be struck out. See NNPC V. Tijani (2006) 17 NWLR (Pt. 1007) 29. * Non-compliance is an irregularity which can be waived. * In addition failure to plead it can amount to a waiver.

5. Arbitration:

(i) Time Bar Clauses:
These can usually be found in the arbitration agreement. Sometimes the arbitration agreement would provide for steps to be taken within a specified time if a party intends to go to arbitration. Once the time lapses, it effectively bars the party from taking such step.

(ii) Validity of Agreement to Arbitrate:
The agreement to arbitrate must be properly drafted. The words by which the reference is made must be clear and precise – e.g.

“All disputes, difference or claims arising out of or in connection with or in relation to the contract shall be referred to a single arbitrator....”

(iii) Scope of Agreement:

Does the scope of the agreement cover the dispute?-
Parties must always ensure that any dispute submitted to arbitration is within the scope of the agreement to arbitrate and this is closely linked with (ii) above.

(iv) Conditions Precedent:

Any Scott v. Avery clauses? It typically provides that no action may be taken until arbitration has been concluded and an award made. See Obembe V. Wemabod Estates Ltd (1977) 5 SC 129. (v) Remedies: Various remedies are available in arbitral proceedings such as:

1. An award for payment of money 2. Order of specific performance 3. Order of interim or perpetual injunction (only knotty issue is with the problem of enforcement when a party may require the intervention of court) 4. Declaratory order 5. An award of interest 6. Costs.

Noteworthy that the Act does not expressly provide for these reliefs but resort is had to common law.

(vi) Subject matter of Arbitration:

An arbitrator must not exceed the scope of his mandate/authority. If he does, he can be challenged. Where the arbitral tribunal has no jurisdiction, it may be raised no later than the time the points of defence are being submitted. See S. 12(3) of Arbitration and Conciliation Act.

(vii) Applicable Laws:

It is imperative for the arbitration clause/agreement to specify the law which would govern the contract, i.e. the law which would apply to the substantive issue. A conflict of law issue may arise in an international arbitration where parties fail to choose the law which would govern their contract.

With respect to procedural law, the general rule is that unless parties agree otherwise, the arbitral procedure would be governed by the law of the place of arbitration. See: S. 52(2) (viii) of Arbitration and Conciliation Act with respect to international arbitrators and its effect on the recognition and enforcement of an Award.

(viii) Statute Bar:

It is noteworthy that S. 61 of the Limitation Law CAP 522, LFN 1990 provides that the Act and any other limitation enactment shall apply to arbitration as they apply to actions in Court. See also S. 12(1) NNPC Act.

(ix) Pre and Post award issues:

New Developments: (1) Pre-Award :- Recent developments in New York law now enable parties to arbitration proceedings sited outside the US to seek the assistance of New York in aid of these proceedings.

For example S 7502 (2) New York Civil Practice Law and Rules (CPLR) (amended in 2005 to cover International Arbitration)-

a) allows New York courts to issue provisional remedies such as preliminary injunctions or orders of attachment in aid of an arbitration in another country, i.e jurisdiction over properties.
See: Erber v. Catalyst Trading LLC 754 NYS 2d 885 (1st Dept 2003); American Home Assurance v Starr Technical Risks 11 MISC 3d 1051 (A) 2006.

b) addresses obtaining assistance at conclusion of arbitration process in form of location and attachment of assets to satisfy an award.
It permits a New York court with jurisdiction over a person/entity holding a losing party’s perhaps assets (e.g. a bank) to order that person/entity to transfer such assets to New York for purposes of satisfying the arbitration debt i.e jurisdiction over persons.

Thus whether or not it is subject to the New York Convention, you can seek assistance from a New York court for example:- 1. To preserve the status quo 2. To attach assets to prevent dissipation before award. (2) Post award enforcement:- Once an award has been recognised by a New York court through the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) or otherwise, the prevailing party can use all the post-judgment remedies available to execute the judgment similar to those resulting from a court judgment. For example: - * Restricting debtors from transferring assets; * Obtaining lien against Debtors assets and executing against the assets. See: Article 52 of the CPLR (Section 5225 (b)) Koehler v. Bank of Bermuda Ltd 12 NY 3d 533 (2009).

5. CONFLICT OF LAW ISSUES.

(Also known as private international law) This usually applies where a dispute has some “foreign” element e.g where the contract is between parties located in different countries. It is a set of rules which determines the legal system and the jurisdiction which applies in the determination of a dispute.

* There are three (3) branches of conflict of law, namely:- (a) Jurisdiction- whether the Court has the authority/power to resolve a matter/dispute. (b) Choice of law- which law will be applied to resolve the dispute. (c) Foreign judgments- recognizing and enforcing a judgment from an external forum within the jurisdiction of the adjudicating forum.

It basically deals with the disparity between the laws.

* Thus, Issues that usually arise in a conflict of law situation are:- 1. The Court must decide whether it has jurisdiction or not and if it is the appropriate venue. 2. Characterisation of the cause of action into its component legal categories. 3. Each legal category has one or more choice of law rules to determine the competing law to be applied in each case. 4. Then the law must be proved and applied to reach judgment in the forum Court. 5. Enforcement of judgment by the successful party and this involves cross-border recognition of the judgment.

Choice Of Law Rules

* Courts faced with the issue adopt the following process namely;

(a) The Court will apply the law of the forum to all procedural matters; and (b) It considers the factors that connect/link the legal issues to the laws of potentially relevant statutes and applies the law that has the greatest connection.

Example: * The law of nationality will define legal status and capacity; * The law of the state in which the lands situated will be applied to determine all questions of title; and * The law of the place where the transaction physically takes place or the occurrence that gave rise to litigation will often be the controlling law selected.

It is instructive to note that many contracts/agreements now include a jurisdiction clause specifying the party’s choice of venue in case litigation arises. These contracts also contain choice of law which the Court or arbitral tribunal should apply in each case.

Usually when a court is to apply foreign law, it is proved by foreign law experts, as the Courts have no expertise in the law of foreign Countries. It is like evidence.

In the search for harmonization and recognizing the general need for an international law of contracts, many nations have ratified the Vienna Convention on the International Sale of Goods 1980. It should however be noted that the Convention only applies to commercial goods and products, it does not apply to services. Generally, Nigerian courts give effect to provisions of any choice of jurisdiction clause included in a contract between the parties and will ordinarily uphold them on the basis that parties are to be held to the bargain which they have entered. But this rule is not inflexible as Nigerian courts have discretion to decline to give effect to a choice of jurisdiction clause. If for instance a claimant's claim is statute barred under the law of the foreign jurisdiction's court, the Nigerian court can refuse to enforce a foreign jurisdiction clause and allow the Claimant to bring an action in a Nigerian court.

In should be noted also that, where a party to a contract containing an arbitration clause has filed an action in court, the court assumes jurisdiction over the matter despite the arbitration clause, if the opposing party takes any step in the matter without raising the jurisdictional point. However the Arbitration and Conciliation Act only applies to commercial matters, and a long line of court decisions have held that where there is no dispute e.g. an uncontested or admitted claim for a liquidated amount, a court can assume jurisdiction, even where an arbitration clause is contained in the agreement of the parties.

(7) Petroleum Industry Bill The Petroleum Industry Bill proposes unparallel reforms in the oil and gas sector. It is supposed to be the single legal instrument binding all upstream and downstream sector activity. It establishes: * The National Petroleum Commission: Section 4 * The Nigerian Petroleum Inspectorate: Section 27 * The National Petroleum Products Regulatory Authority: Section 62 * The National Petroleum Assets Management Agency: Section 94 * The National Oil Company (Nigerian National Petroleum Company Ltd): Section 172 * The Petroleum Technology Development Fund: Section 145 * The Petroleum Producing Host Communities Fund: Section 168 (NB: The names of these institutions have suffered changes in various drafts of the Bill) Consequently, at least 15 existing legislations are proposed to be repealed when the Bill is enacted into law. The Bill deals with the legal status, leadership, and staffing requirements, reporting relationships, powers and functions of each of these institutions. The Minister has wide powers including to grant petroleum prospecting and petroleum mining licences to winning bidders in an open and competitive bid round and to NNPC (the National Oil Company) where it has conducted a similar open and transparent bid process for selecting contractors. This implies that they will both serve as concessionaires. It must be noted that the proposed Bill confers wide arbitration powers on the regulatory agencies including conferring them with roles as Arbitrators in disputes. Areas of concern include that the Bill requires existing licensee and lessees to re-apply for new petroleum mining lesses in respect of only areas which for example have significant gas discovery e.t.c. All other areas including gas discoveries of over 30 years must be relinquished within a year after the Bill is enacted. The committee recommendations also include the retention of provisions similar to the existing Section 12 of the NNPC Act with respect to the National Oil Company, etc. On the whole, it is still work in progress and a number of the proposed sections are being tinkered with as evidenced by the Senate Committee’s Recommendations. Consequently it would be difficult to even venture into any deeper scrutinizing of the sections including those dealing with litigation and arbitral proceedings as the sections of the proposed Bill might possibly be amended or deleted as can be seen from the Committee’s recommendations. (8) Conclusion In conclusion, there is no doubt that litigation in both the domestic and International courts, as well as local and international arbitration, will continue to be the most favoured option for the settlement of disputes in the oil and gas sector. This is even more so, where the proposed PIB is given the force of law. It may well be that ADR methods considered would also steadily have an increasing role to play.