This issue raises a particular challenge for a tribunal confronted with an apparent inequality of arms as between the parties – a situation which can arise in cases between commercial parties as much as in cases involving states. Where a party is unrepresented or non-participating, a tribunal may seek to put to the participating party the sorts of questions which it may anticipate would have been raised by the other party.

However, where the parties are both represented, the tribunal needs to tread carefully in order not to attract criticism for, effectively, augmenting an otherwise-inadequate or incomplete response to the case on behalf of the party which has failed to make its case as fully or effectively as it might.

A further aspect of the concern expressed by the judge related to the tribunal’s approach to the assessment of damages. Again, given the value of the claim being made against Nigeria, implicitly the judge seems to consider that the tribunal should have done more to ensure that the issues on quantum were fully presented on Nigeria’s behalf. The tribunal was not aware of some significant issues affecting the conduct of Nigeria’s case for reasons of cost. But there were also changes in government personnel which made the task of those advising the government more difficult.

Knowles J concluded that the ‘tribunal did what it did with what it had’ but that essentially its acceptance at face value of the GSPA rendered the arbitration ‘a shell that got nowhere near the truth’. A more rigorous disclosure process may have helped to uncover more of the facts which emerged in the English proceedings. In the arbitration itself, the procedure incorporated no document production phase, and neither was the question of corruption in issue before the tribunal. However, in other cases where such matters are in issue, it is implicit from the judgment that a wider ambit of production may well be appropriate compared to the norm in arbitration cases.

We may expect future practice to develop following this judgment, for cases involving states and high-value claims. But it is worth noting that efforts are and have been under way within the arbitration community for some time to recognise and address these matters. The ICC Commission on Arbitration and ADR has produced a report on the conduct of arbitration under ICC rules in cases involving states and state entities (last updated in 2017). This demonstrates measures which can be taken to ensure that the process is well-suited to a state party, including by way of the scrutiny of the draft Award by the ICC court. The commission is also engaged in a multi-track process addressing issues of corruption in international arbitration at present. This may be expected to provide additional guidance on such matters to future parties and tribunals.

While it is to be hoped that cases concerning these issues will be few and far between, Knowles J’s emphasis on the need for procedures to give state parties confidence in arbitration merits careful consideration by all involved in such arbitrations. An approach to the procedure which recognises the particular challenges faced by state parties in such cases is also required, without altering the fundamental principle that parties in arbitration should be treated with equality and given the opportunity to present their case.