International Arbitration Newsletter - December 2019 | Regional Overview: Middle East and Africa

Gabon

ICC tribunal accepts claim against Gabon in infrastructure works dispute

In a recent award, an ICC tribunal has ordered Gabon to pay US$170 million to Groupement Santullo Sericom, a Gabonese construction company that was owned by French businessman Guido Santullo, for work on infrastructure projects.

The award found Gabon partially liable in the sum of US$170 million out of the originally US$600 million claimed for the unpaid works performed under 11 contracts for public infrastructure projects built between 2010 and 2017. The projects included a major bridge over the Komo river linking the Gabonese capital Libreville with the interior of the country, along with various roads and public buildings such as an officers’ training school.

Gabon said the contracts were improperly awarded without tender and through corrupt means. The ICC panel however found the state had failed to prove its allegations of corruption.

Mozambique

ICSID tribunal rejects BIT claim against Mozambique

An ICSID additional facility tribunal has dismissed South African businessman Oded Besserglik´s US$96 million treaty claim against Mozambique under the South Africa-Mozambique bilateral investment treaty and the 1993 Mozambican investment law after finding there was insufficient proof that the BIT had ever entered into force.

The tribunal declined jurisdiction over the claim and ordered each side to bear its own costs. Besserglik brought his BIT claim in 2014 over his interests in contractual arrangements with two Mozambican state entities for the conduct of a joint fishing venture. He accused the state of fraudulently appropriating shares, fishing vessels and profits from the joint venture.

Mozambique raised a series of jurisdictional objections but it was only in 2017 that the state first asserted that the BIT had never entered into force. The BIT provided that entry into force would take place after Mozambique and South Africa had notified each other that their respective constitutional requirements for entry into force had been fulfilled. Mozambique argued such notification was not sent or received by either country.

In its award, the tribunal noted that “a treaty which is not in force cannot be deemed in force due to the delay or silence of a party” and found that there was no convincing evidence to support the conclusion that notifications had been exchanged to bring the BIT into force. The tribunal’s jurisdiction could not be created by invoking estoppel, and the claimant had not in any event shown it relied on any representation by Mozambique in making its investment.  

Nigeria

Nigeria challenges award before London Commercial Court

Nigeria has launched a fresh challenge in the Commercial Court in London against US$9.6 billion award won by British Virgin Islands company Process & Industrial Developments (P&ID) arising from a failed gas deal, arguing the underlying contract was procured through fraud and corruption.

Nigeria argues in its challenge that the 2010 contract it signed with P&ID to build gas processing facilities in its southern city of Calabar was procured on the basis of fraud and corruption, while the subsequent arbitral process was riddled with irregularities and deliberately concealed from the rest of the government.

At the end of November, Nigeria placed a US$200 million bank guarantee with the court in order to secure the stay on asset seizures.

Saudi Arabia

Turkish contractor brings treaty claim against Saudi Arabia

Turkish construction company DSG Yapi has filed an ICSID treaty claim against Saudi Arabia under the 2006 Turkey-Saudi Arabia bilateral investment treaty .

It is understood that the dispute may relate to one of DSG Yapi´s construction projects in Saudi Arabia; including works on water pipelines, a water supply project, a bauxite mine, a petrochemical complex, a sports stadium and a terminal at Riyadh's King Khalid international airport.

This is the fifth ICSID claim to have been filed against Saudi Arabia.