Namibian Supreme Court rejects challenge to the enforceability of an arbitral award

01 Feb 2024

The Namibian Supreme Court has summarily dismissed a challenge to the enforcement of a final arbitral award in a long-running commercial arbitration involving Skeleton Coast Trawling (Pty) Ltd, an indirect subsidiary of Spanish multinational, Nueva Pescanova S.A., and a Namibian company, Nautilus Fishing Industries (Pty) Ltd.

The arbitration, conducted in Namibia, concerned a claim by Nautilus that Skeleton Coast failed to account to it for the profits of the parties’ joint venture spanning more than a decade. In the arbitration proceedings Nautilus succeeded in establishing that Skeleton Coast was under a fiduciary duty to account for the profits of the parties’ joint venture, and that Skeleton Coast had failed to do so. Skeleton Coast was ordered to pay Nautilus its share of the profits of the joint venture based on a proper accounting conducted by the parties’ expert witnesses.

Skeleton Coast thereafter refused to comply with the arbitral award and Nautilus turned to the Namibian High Court to seek its enforcement. Skeleton Coast unsuccessfully challenged the validity and enforceability of the arbitral award before the High Court on various grounds, including attacking the arbitrator’s jurisdiction, and contending that the enforcement of the award would be contrary to public policy.

In proceedings for the summary dismissal of Skeleton Coast’s appeal (conducted in terms of the Supreme Court rules which provides for the summary dismissal of an appeal that is frivolous, vexatious or without any merit), the Supreme Court affirmed the principle that courts will only refuse to enforce arbitral awards on limited grounds, none of which had been established by Skeleton Coast.

Luke Kelly acted for Nautilus in the arbitration and in proceedings before the Namibian Supreme Court. He was instructed by AngulaCo (Windhoek) in the arbitration proceedings and Koep Attorneys (Windhoek) in the proceedings before the Supreme Court.

A copy of the judgment is here.