Nigeria wins arbitration case against Sunrise Power

The International Chamber of Commerce (ICC) in Paris, France, has ruled in favour of Nigeria in the $2.35 billion award sought by Sunrise Power over the Mambilla hydropower project and directed Sunrise and its promoter to refund Nigeria’s legal fees of $11.8 million.

A three-member panel of the tribunal, in a decision on Thursday, dismissed Sunrise’s claim for a declaration that Nigeria breached its contractual obligations under the settlement agreement and the addendum.

It also rejected Sunrise’s claim for an order that Nigeria should pay the company $400 million in satisfaction of the settlement sum of $200 million and the default sum of $200 million.

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The panel further declared that Leno Adesanya, the promoter of Sunrise, is bound by the arbitration agreement with Nigeria pursuant to the settlement agreement and the addendum, and that the tribunal has jurisdiction over Nigeria’s counterclaim against him and his firm.

The tribunal ordered Sunrise and Adesanya to reimburse to Nigeria 75 percent of the legal fees and expenses incurred by the country in this arbitration.

The legal fees were given as $11,819,506.51, out of which $2,500,000 will be covered directly from the amount held in escrow by the ICC that will be released upon the notification of the final award.

Sunrise and Adesanya were ordered to pay Nigeria the remaining $9,319,506.51 plus interest at an annual rate of 10 percent, “compounded annually, from the date of the notification of this Final Award until such amount is paid in full”.

The arbitration cost is to be shared by Sunrise and Adesanya (75 percent) and Nigeria (25 percent), with the cost fixed at $1,656,500.

The panel was presided over by Melaine van Leeuwen, with Stavros Brekoulakis and Simon Nesbitt as co-arbitrators, and Nigeria was represented by a team of lawyers led by Elizabeth Oger-Gross and Tolu Obamuroh, now of Paul Hastings LLP.

It would be recalled that Sunrise had, on October 10, 2017, started arbitration against Nigeria at the ICC International Court of Arbitration seeking a $2.354 billion award for “breach of contract” in relation to a 2003 agreement to construct the 3,050MW plant in Mambilla, Taraba State, on a “build, operate and transfer” basis valued at $6 billion.

In the second arbitration, the company is asking for a $400 million settlement being the terms of the Nigerian government’s failure to honour the settlement agreement both parties entered into in 2020 to end the arbitration.