In the case of Continental Tranfert Technique Limited v Federal Government of Nigeria unreported, the applicant obtained an arbitration award in Nigeria against the respondent, in the sum of £140 million. The applicant obtained a judgment in terms of the award under section 101(3) of the Arbitration Act 1996 and sought permission to enforce the judgment. The respondent then belatedly appealed to the Nigerian courts against the award, and at the time of the present application the appeal was pending. Teare J granted a stay on condition that the respondent provided security of £100 million. The court held as follows.
- The power of the court to refuse enforcement under section 103(2)(f) of the 1996 Act (award not yet binding on the parties) did not provide a defence to enforcement, because it applied automatically only where a foreign court had suspended the award - it was not enough that there had been a challenge to the award.
- The respondent could not rely upon state immunity, as section 2 of the State Immunity Act 1978 did not give immunity in respect of a commercial transaction.
- A stay would, however, be granted under section 103(5) of the Arbitration Act 1996. The court had a discretion as to whether or not to enforce the award under RSC Order 47 rule 1(1) (not replaced by the Civil Procedure Rules), and section 103(5) of the 1996 Act conferred upon the court a discretion, where there was a pending application to a foreign court for the award to be set aside, to adjourn enforcement proceedings. In the present case the application to the Nigerian courts did not have a real prospect of success and there was evidence of delaying tactics by the respondent. The appropriate remedy was to grant a stay but subject to the provision of substantial security by the respondent.