International lawyer and former Chairman of the House of Representatives Committee on Financial Crimes in the Eighth Assembly, Hon. Kayode Oladele, has weighed in on the controversy surrounding the implication of Nigeria waiving her sovereignty in relation to certain loan agreements with other countries, notably China.
Oladele made his views known in an interview with The Eagle Online on Friday.
He said: “Waiver of sovereign immunity has always been a part of public or international commercial loan and other contractual agreements.
“It is a jurisdictional matter and it can be agreed upon in advance between foreign state parties or between a foreign state party and a private party.
“It can either be an express waiver as in situations where the contractual agreement expressly provides for a waiver and the foreign state party agrees to waive immunity and submit to jurisdiction.
“On the other hand, it also be implied where the foreign state party enters a general appearance in a litigation.
“The effect of this is that such a waiver vests jurisdiction in the Court or Arbitral Tribunal; the parties have agreed to submit their disputes in the likely event of a breach.”
According to Oladele, while agreeing with the position taken by Femi Falana (SAN), binding prior waiver of immunity by borrower foreign governments is in tandem with the principle of international commercial transactions.
He stated further that the effect of prior waiver of immunity by a borrower sovereign state and the inclusion of it in contractual and public loan agreements is that “when there is a dispute arising from such a contract or agreement, the Courts would apply the rules and procedure applicable to disputes between private litigants.
“So, once a borrower state party waives immunity, it can no longer assert it as a jurisdictional defence and I think that is just and equitable.
“There are several authorities in case law that suggest that express waiver of immunity by a foreign borrower state for the benefit of either a private party or another foreign lender state is a common practice in international commercial transactions.
“Waiver of immunity is just a mere declaration not to claim immunity as a shield when sued pursuant to the agreement.
“It further provides the lender a greater sense of security and confidence but it has absolutely nothing to do with colonialism or neocolonialism.”