International Arbitration Newsletter August - 2018 | Regional Overview: Middle East and Africa

CAPE VERDE / SUDAN

Republics of Cape Verde and Sudan adhere to the New York Convention

The Secretary-General of the United Nations reported that the Republic of Cape Verde and the Republic of Sudan adhered to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) on 22 March 2018 and 26 March 2018 respectively.

CONGO

Congo hit by ICC claim threat from South African Africom Commodities

The Democratic Republic of the Congo is facing a US$20 million ICC arbitration claim brought by a South African agriculture company Africom Commodities over a failed project to develop the country’s first agri-industrial park to help combat hunger.On 6 July 2018, Africom Commodities filed the claim before the ICC, seeking US$19.79 million in outstanding payments since 2017, when Africom withdrew from Bukanga Lonzo, saying it had not been paid by the government in nearly a year. The production of maize and other crops at the site has now ground to a halt, while the government tries to revive the project.

DUBAI

Dubai Court of Cassation confirms DIAC award on cancelled racetrack claim

On 22 July 2018 the Dubai Court of Cassation dismissed a US$950 million claim brought by UAE real estate developer Meydan over a cancelled contract to build a race course. Meydan filed its court claim, which had originally been presented as a counterclaim in the arbitration, in Dubai in 2012. DIAC rules provide an 18-month time limit for arbitration proceedings from the date of filing, and the real estate group argued it had taken the DIAC tribunal four times as long to issue an award. The Court rejected arguments that the DIAC award was invalid as the case had gone on so long the arbitration clause in the contract had expired, hence upholding the decision of a court of first instance.

EGYPT

Egypt faces new ICSID Treaty claim from Australian investors

On 28 June 2018 Australian mining company Tantalum International and its Australian-listed parent Emerge Gaming registered a third party-funded claim before ICSID against Egypt under the Australian-Egypt bilateral investment treaty. It is understood that the claim concerns the alleged expropriation of the indirect 50% stake in the Abu Dabbab Tantalum-Tin-Feldspar mining project in southern Egypt. The project was run by a joint venture vehicle with an Egyptian state-owned entity until 2015, when the claimants allege the vehicle was dissolved by their partner as a result of pressure from the government.

Appeal filed against Egyptian court order to terminate an arbitration

On 14 June 2018 Egyptian development company Amer Group and its Syrian subsidiary lodged an appeal against an ex parte order of a judge of the Cairo Court of Appeal terminating arbitration proceedings in a US$500 million arbitration claim over a tourism project in Syria, following a complaint by the Syrian claimants who said the proceeding was taking too long.

The dispute, which was administered by the Cairo Regional Centre for International Commercial Arbitration, concerns the Junada tourism project in the Syrian coastal city of Tartous. The project, much of which was to be built on land reclaimed from the Mediterranean sea, was to include a marina, five-star hotel and restaurants along with residential, administrative and entertainment buildings.

Appealing the order, Amer argues it was not made aware of the claimants’ ex parte application and that the judge who issued the order was not provided with the full and correct facts, including Amer's counterclaim.

GHANA

Ghana and South African mining company AngloGold Ashanti settle ICSID claim

South African mining company AngloGold Ashanti has discontinued an ICSID claim against Ghana over the withdrawal of military protection for a gold mine, after the parties agreed an amicable settlement on a claim under a concession agreement worth US$259 million to the mining company.AngloGold Ashanti continues, however, to pursue an UNCITRAL claim against Tanzania over the country’s legislative reforms to its mining sector.

KENYA

ICC tribunal rejected wind farm investor claim against Kenya

On 2 July 2018, a London-based ICC tribunal rendered an award rejecting a claim for more than US$150 million plus interest brought by British Virgin Islands-registered company Kinangop Wind Park (KWP) against Kenya in relation to a wind power project that was cancelled in the face of local protests and legal challenges by landowners. The investor was allegedly claiming 31 billion Kenyan shillings (US$310 million) invoking a July 2013 letter of support in which the Kenyan government undertook to indemnify KWP for losses suffered if construction of the wind farm plant was prevented because of “political events”. KWP argued that the community protests that affected the project amounted to such an event. However, the tribunal found in its award that there was no “political event” within the meaning of the letter of support, and dismissed all KWP’s claims for relief. It also rejected a counterclaim by the government.

LIBYA

Libya hit by ICC Investment Treaty award

In an ICC award dated 25 May 2018 and made publicly available recently, Libya has been ordered to pay around a sixth of a €105 million treaty claim brought by a Cypriot company Olin Holdings under the 2004 Cyprus–Libya bilateral investment treaty over its investment in a juice factory in Tripoli.

The dispute concerned the expropriation and demolition of Olin’s factory by Tripoli’s city authorities in 2006, as part of a wider expropriation of 340 hectares of land to make way for a housing project, which the state said was on public interest grounds.

The tribunal found that Libya had breached several provisions of the Cyprus-Libya BIT including the guarantee against indirect expropriation, and said Libya’s actions violated the country’s 1997 foreign investment law and therefore frustrated Olin’s legitimate expectations in breach of the fair and equitable treatment standard of the BIT.

Arms manufacturer General Dynamics successfully enforces ICC award against Libya

Arms manufacturer General Dynamics has succeeded in enforcing an ICC award against Libya in England. The dispute concerned a US$84.9 supply contract that General Dynamics and Libya entered in 2008 as part of a larger arms deal between the UK government under former prime minister Toby Blair and Gadaffi. Following the Arab Spring and the death of Gadaffi in October 2011 General Dynamics filed for ICC arbitration alleging that Libya had not met its financial obligations set out in the agreement but later withdrew its claim after the state caught up on payments.

ICC award enforced against Libya in England despite complications in service

On 20 July 2018 Mr Justice Teare in the London Commercial Court dispensed with the need for Libya to be served documents relating to an ICC arbitration, award and enforcement process in line with the UK Sovereign Immunity Act. Whilst such service would normally be required when seeking to enforce against a state like Libya, which has yet to sign the New York Convention, the judge considered that “the difficulty of service in this case arises from the circumstance that, if the claimant were to seek to serve the arbitration claim in the manner provided in the [State Immunity Act], there would be considerable difficulties arising out of the circumstance that there are at least two entities claiming to be the state of Libya at the present time.” As such, he concluded that, weighing the interests of the claimant to enforce the substantial award against the interest of the defendant to be made aware by a formal process of service, “it is fair and just to grant the order sought because otherwise the claimant would be unable to take the steps it wishes to take to enforce the award and would have to wait until such time as conditions in Libya become more normal.”

UGANDA

Total subsidiary settles ICSID claim with Uganda

On 10 July 2018 Total E&P Uganda, a Dutch subsidiary of Total has asked ICSID to discontinue their dispute against Uganda following an agreement reached over the imposition of stamp duty on an oil block near Lake Albert. The claim was brought under the production-sharing agreement and the 2000 Netherlands-Uganda bilateral investment treaty after the Uganda Revenue Authority imposed stamp duty on the fields’ Exploration Area 2. Total argued that the area was exempt from tax under the terms of the agreement. The arbitration has been suspended for over two years, with no proceedings having taken place since the appointment of the tribunal in 2015, the same year that the case was filed.