TheCable

Nigeria’s bid to knock off the $2.3 billion arbitration filed by Sunrise Power and Transmission Company over the Mambilla Hydroelectric Power Project has received a major boost, TheCable can report.

The ICC International Court of Arbitration, Paris, France, has granted Nigeria’s application to disapply the “expedited procedure” that would have fast-tracked the proceedings.

This means the Economic and Financial Crimes Commission (EFCC), the country’s anti-graft agency, can conclude its investigation into suspicious financial transactions between Sunrise Power and some government officials who played a key role in the project.

In its investigations, the EFCC has discovered a number of transactions between Sunrise Power and government officials which it considers as inappropriate and could have material impact on the arbitration, TheCable learnt.

Some of the payments were in millions of dollars and involved children of a former senior government official who played a key role in an agreement that Sunrise is relying on for its arbitration.

Bank transfers were also traced to a central character in the transaction, TheCable learnt.

But for the ruling, which deemed expedited procedure as inappropriate for the case, the arbitration would have been concluded within six months.

Nigeria would have been unable to rely on the evidence of the alleged massive corruption and fraud being unearthed by ongoing EFCC’s investigations.

The proposed 3,050MW plant in Mambilla, Taraba state, which has been on the cards for over 40 years, is the biggest single hydroelectric project in Nigeria.

Nigeria’s lawyers are contending that the contract was mired in corruption in dimensions not dissimilar to the P&ID affair in which some key actors have been convicted or are undergoing trial over allegations of fraud and subversion of due process.

The ruling by the ICC panel also means the arbitration will allow evidence dating back to 2003 when the contract was awarded illegally as argued by the country’s lawyers — and this will allow the EFCC dig deeper into the leads its probe has dug up so far.

Sunrise Power filed two arbitrations against Nigeria over an alleged breach of contract in the Mambilla project.

The company preferred the “expedited procedure”.

THE HISTORY OF SUNRISE POWER

Sunrise Power was incorporated in Nigeria in October 2001, after which it submitted a proposal for the construction of the Mambilla plant to the technical committee of the ministry of power and steel in partnership with the North China Power Group and China National Water Resources and Hydropower Engineering Corporation of China.

Agunloye awarded the $6 billion contract to Sunrise — with no previous record or experience in power projects — in his final days in office as minister of power and steel and in apparent contravention of the FEC decision.

To pursue the arbitration, Sunrise has engaged Burford Capital, a company accused of funding legal claims against poor countries with corrupt governance structures.

Burford Capital, with offices in Guernsey, New York City, Chicago and London, has financed cases against Argentina, Bolivia, and Ecuador in the past.

Nigeria is drawing a parallel with P&ID, a company that also engaged a hedge fund in its arbitration against over a filed gas project.

P&ID won its arbitration against Nigeria running into over £10 billion but the country is challenging the award in the UK on the basis of international corrupt practices. A judgment is expected soon.

The two cases may not be related, but transparency campaigners are hoping a precedent is set so that contracts awarded under corrupt processes will not benefit from arbitration awards.