AIC Ltd v Federal Airports Authority Of Nigeria [2022] UKSC 16: Reconsidering An Order Before It Is Sealed

• Published date: 03 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Conyers
• Author: Mr Matthew Brown

In recent years there have been a number of cases in the BVI in which the Court has been asked to reopen judgments or orders prior to their sealing. In those cases, the BVI Court has consistently found - adopting the principles laid down in the English cases, including In re Barrell [1973] 1 WLR 19, and more recently Re L [2013] UKSC 8, that not only does it have the jurisdiction to revisit unsealed judgments and orders, but that that jurisdiction is a broad one: to be exercised in accordance with the overriding objective of dealing with cases "justly": see for example Jitendra v Salgaocar and anr BVIHC (Com) 83 of 2017 (delivered 2 July 2020); Great Panorama International Ltd v Qin Hui and ors BVIHC (Com) 180 of 2019 (delivered 13 August 2020); and Bilzerian and ors v Byron and ors SKBHCVAP2020/0003 (delivered 22 October 2021) (Court of Appeal).

On 15 June 2022 the UK Supreme Court ("the UKSC") handed down a further decision on the (so-called) "Barrell jurisdiction", namely AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16, in which it re-considered and elaborated upon the principles that it had laid down Re L.

The decision is likely to be of interest to BVI practitioners.

The Basic Facts of the AIG Ltd Case

The relevant facts of the case can be stated shortly.

AIC obtained a foreign arbitral award against FAAN in the sum of c.US$48 million (the "Award"). FAAN sought to challenge that award in the Nigerian courts. In the meantime AIC started proceedings in England seeking permission to enforce the award in England and Wales and obtained an ex parte order granting it permission to enforce the Award (the "Enforcement Order").

FAAN applied to set aside the Enforcement Order, and also applied to adjourn the enforcement claim pending the outcome of the Nigerian proceedings. In response, AIC cross-applied for a condition that any adjournment be on terms that FAAN provide security for the Award. Those applications were heard by the English High Court on 25 July 2019, and the Enforcement Order was set aside and the enforcement claim adjourned on condition that FAAN provided security in the amount of c.$24 million. Permission to appeal that decision was refused by the Court of Appeal.

FAAN subsequently obtained permission to provide the security in the form of a bank guarantee. AIC was in turn granted the right to seek permission to enforce the Award if the guarantee was not forthcoming by 29 October 2019. FAAN subsequently obtained an extension of...