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International Arbitration Forum

Eni International B.V., Eni Oil Holdings B.V. and Nigerian Agip Exploration Limited v. Federal Republic of Nigeria

Case summary

At a glance

Parties
Eni International B.V., Eni Oil Holdings B.V. and Nigerian Agip Exploration Limited v. Federal Republic of Nigeria
Case no.
ICSID Case No. ARB/20/41; related US proceeding: D. Del. Case 1:20-mc-00334-MN
Forum and rules
ICSID Convention arbitration; related discovery application under 28 U.S.C. § 1782 before the US District Court for the District of Delaware
Treaty
Netherlands–Nigeria BIT
Court
US District Court for the District of Delaware (Maryellen Noreika, United States District Judge)
Sector
Oil and gas (offshore exploration licence OPL 245)
Outcome
On 15 October 2020 the Delaware court granted Eni S.p.A.'s ex parte § 1782 application to subpoena Nigeria's litigation funders. The published documents do not show the outcome of the arbitration.
Amount
Nigeria sought repayment of the USD 1.092 billion purchase price in other proceedings. No amount claimed in the arbitration is stated.

The dispute

Eni S.p.A., through its subsidiary Nigerian Agip Exploration Limited, and Shell, through SNEPCO, obtained oil prospecting licence OPL 245 for a deep-water block off Nigeria under the April 2011 Resolution Agreements. Under those agreements they paid USD 1.3 billion to Nigeria, of which USD 1.092 billion was used to settle Malabu Oil & Gas Limited's claims. Nigeria later alleged that the deal was corrupt. It sued Eni in England and joined the criminal trial in Milan as a civil party, and it refused to convert OPL 245 into an Oil Mining Licence until those proceedings ended; the licence was due to expire in May 2021. On 14 September 2020 three Eni subsidiaries filed an ICSID request for arbitration under the Netherlands–Nigeria BIT. They alleged that this campaign of claims, and the conditions placed on the conversion, breached the treaty. The published documents relate only to a US court application by Eni S.p.A. under 28 U.S.C. § 1782. It sought discovery from Delaware companies (Poplar Falls, LLC and six Drumcliffe entities) said to be funding Nigeria's litigation against Eni.

Key holdings

  1. The court granted Eni's ex parte application. Eni may serve the seven Delaware respondents with subpoenas for documents and Rule 30(b)(6) deposition testimony on three subjects: (1) their beneficial owners or ultimate stakeholders; (2) their relationship to current or former Nigerian officials; and (3) any contractual or financial arrangements they made for proceedings relating to OPL 245. Order, p. 1–2
  2. The respondents had to comply within thirty days of service and were ordered to preserve relevant documents. Order, p. 2
  3. Eni argued that the statutory requirements of § 1782 were met. The respondents are incorporated in Delaware. The ICSID tribunal and the Milan court are foreign or international tribunals. Eni is a party to the foreign proceedings or the parent of parties to them. No privileged material was sought. Memorandum, pp. 14–15
  4. Eni argued that the Intel discretionary factors favoured discovery. The funders were not parties to the foreign proceedings. The ICSID tribunal, which had not yet been constituted, had given no sign that it would refuse such evidence. No foreign tribunal had denied the same discovery. The requests were narrowly tailored. Memorandum, pp. 16–20
  5. Eni relied on reports that the agreement between Johnson & Johnson (counsel for Nigeria) and Poplar Falls, signed on 5 March 2018, might entitle the funder to up to 35% of any recovery. It also relied on advice from Aluko & Oyebode that the agreement was unenforceable under Nigerian law as champertous. Memorandum, pp. 8–10

Procedural history

  1. April 2011Nigeria awards OPL 245 to Eni and Shell under the Resolution Agreements.
  2. 12 December 2018Nigeria sues Eni and Shell in the High Court of England and Wales for USD 1.092 billion. The claim is dismissed on jurisdictional grounds on 22 May 2020.
  3. 14 September 2020Eni International B.V., Eni Oil Holdings B.V. and Nigerian Agip Exploration Limited file an ICSID request for arbitration against Nigeria under the Netherlands–Nigeria BIT.
  4. 6 October 2020Eni S.p.A. files an ex parte § 1782 application, with a supporting memorandum, in the District of Delaware seeking discovery from Poplar Falls and the Drumcliffe entities.
  5. 15 October 2020The District of Delaware grants the application and authorises the subpoenas.

Tribunal, counsel and experts

Decided by
For the claimant
Landis, Rath & Cobb LLP · Sullivan & Cromwell LLP

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
ICSID Case No. ARB/20/41
Country
Economic sector
Treaty
Netherlands - Nigeria BIT (1992)
Section