Anti-Suit Injunctions in West Africa: A Tool for Strengthening Arbitration or an Obstacle to Enforcement?

The issuance of anti-suit injunctions in international arbitration is still a controversial topic regarding its compatibility with national legal systems and regional treaties in West Africa, so we now indicate the situation in Nigeria and Ghana, both signatory countries to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, considering the judicial decisions, applicable legislation and the impacts on arbitral awards.

In Nigeria, the application of anti-suit injunctions has been controversial because there has been no unanimous interpretation of the Arbitration and Conciliation Act (Cap A18 LFN 2004) as to the power of courts to issue such orders. In the case The Shell Petroleum Development Company, et al. v. Crestar Integrated Natural Resources Ltd. (ICC Case No. 21012/TO), the Lagos Court of Appeal interpreted the terms of section 34 of the Arbitration and Conciliation Act “as a mandatory provision which prohibits any form of intervention by the Court except as provided by the Act”, and as a result, Nigerian courts do not have jurisdiction to grant injunctions that interfere with existing arbitral proceedings.

However, this decision contrasts with the arbitral tribunal’s judgment in Shell Nigeria Exploration and Production Company Ltd., et al. v. Nigerian National Petroleum Corporation, where it granted interim measures to prevent parallel litigation in domestic courts, specifically when during proceedings, an injunction was granted by Nigerian Federal High Court stating that taxation matters were not arbitrable disputes.

The pro-arbitration stance of Nigerian courts is also verified from the case P.E Bitumen Resources (Nigeria) Ltd. v. Cocean Nigeria Integrated Ltd., in which the High Court of Lagos State granted an anti-suit injunction to prevent Cocean from continuing to litigate multiple five lawsuits in violation of the arbitration agreement between the parties. The court, in addition to classifying Cocean’s conduct as an abuse of process and imposing sanctions against her, rejected the argument that such a measure would restrict the constitutional right of access to justice, since access to justice would also be achieved in compliance with the arbitration commitments assumed.

In Ghana, in the case Cassius Mining Limited v. The Government of the Republic of Ghana, the High Court of Accra rejected an application for an anti-suit injunction on the grounds that the arbitration agreement provided exclusively for the jurisdiction of the Ghana Arbitration Centre, invalidating any attempt to bring the dispute before a court of another jurisdiction prior to the conclusion of the local arbitral proceedings, under the Alternative Dispute Resolution Act (Act 798, 2010).

Overall, the challenges to the application of anti-suit injunctions in West Africa stem from the tension between the autonomy of arbitration and the sovereignty of national courts. In Nigeria, although Article 34 of the Arbitration and Conciliation Act limits judicial interference, courts continue to issue contradictory but accentuated decisions for a pro-arbitration bias. In Ghana, the approach appears to be more uniform, with courts prioritizing the enforcement of local arbitration agreements.

In many cases, the lack of a clear normative framework allows resistant parties to exploit legal loopholes to challenge arbitrations, undermining the predictability of the arbitration regime, so that the lack of legal harmonization results in challenges to the enforcement of awards, encouraging forum shopping. The impact on the enforcement of arbitral awards is significant, since in the face of attempts to ratify and enforce awards containing anti-suit injunctions, state courts rebel because the measures are contrary to comity, kompetenz-kompetenz, access to justice and their own sovereignty, as exhaustively reported by doctrine, such as Gaillard, Born and Hunter.

Davi Ferreira Avelino

Davi is an LL.B at the Catholic University of Salvador, Brazil, and has spent periods as an international student at the University of Porto in Portugal, where he studied Public and Private International Law and European Union Law, and at the Pontifical Lateran University in Rome, where he studied Vatican… MORE