International Arbitration Newsletter - July 2021 | Regional Overview: Middle East and Africa

CAMEROON

Australian miner files ICC claim against Cameroon

Australian miner Sundance Resources Ltd. (Sundance) has launched an ICC arbitration in Paris over its dispute with the Republic of Cameroon under a 2015 bridging instrument for the Mbalam-Nabeba project. This project is a multi-billion-dollar plan for a cross-border railway to transports iron ore in Congo to Cameroon’s Atlantic coast that cost Sundance over USD 4 million to develop.

In October 2009, Cam Iron, a local subsidiary of Sundance, applied to the Cameroon government for the exploitation permit for Mbalam-Nabeba project, but failed to obtain it due to Cameroon’s failure on implementation of the permit. In December 2020, Sundance lodged an ICC arbitration against Cameroon and Congo in Paris over the Cameroon´s alleged failure to process the exploitation permit.

CONGO

New investor threats Congo with mining claim

UK company Midus Holdings and its subsidiary, Congo Mining, have started a three- month “cooling-off period” after presenting a notice of intent to Congo regarding the Mayoko-Moussondji Iron Ore Project.

The notice of intent, issued under the UK-Congo bilateral investment treaty, derives from the withdrawal of Congo´s Mining permit by Congo at the end of June 2021 due to alleged violations of the permit.

The investors allege that the country´s withdrawal of the permit violates the equitable and fair treatment imposed by the UK-Congo BIT, as well as the expropriation prohibition.

MAURITIUS

Belgian Court dismisses dual jurisdiction award challenge

The Brussels Court of First Instance has confirmed an award issued by an UNCITRAL tribunal that declined jurisdiction in a case in which a businessman with French and Mauritanian dual nationality –Dawood Rawat– claimed USD 1 billion against Mauritius under the France-Mauritius bilateral investment treaty.

The arbitral tribunal held that the ICSID Convention prohibited nationals of a country to bring a claim against their own country. Therefore, since the France-Mauritius BIT required the state parties to include an ICSID arbitration clause in any investment contract, French-Mauritanian dual nationals would be included in said prohibition and as a result Rawat could not bring any claim against Mauritius under the France-Mauritius BIT.

KAZAKHSTAN

Belgium courts maintains attachment order over Kazakh assets

The Brussels Court of Appeal has recently upheld a decision to maintain an attachment order over USD 542 million worth of assets to guarantee payment of an Energy Charter Treaty (ECT) award obtained by Moldovan investors against the State of Kazakhstan in 2013.

The Moldovan investors have sought enforcement of the award in several jurisdictions against the opposition of the Kazakh state which has argued that the investors committed fraud during the arbitration. The investors have denied said allegations in all proceedings and the ECT award has since been upheld by the courts of Sweden, location of the arbitration seat.

The Brussels Court of Appeal found, on a prima facie basis assessment, that the assets held at the Bank of New York Mellon belong to the State of Kazakhstan who made unambiguous attempts to conceal the fact that it was the real holder of the funds. In light of these findings, the appeal court confirmed the decision previously issued to maintain the attachment of the assets held in the fund, limited to the full amount of the award which is currently estimated to be of USD 542 million.

Litigation still ensues amongst the parties in multiple jurisdictions over the enforcement of the award and the attachment of the assets.

KUWAIT

Egypt´s Court of Cassation reinstates billion dollar award against Libya

Egypt´s Court of Cassation has overruled the Cairo Court of Appeal´s decision to set aside a USD 1 billion award against Libya concerning a contract with Mohamed Abdulmohsen Al-Kharafi & Sons to turn a Tripoli suburb into a tourist hotspot.

Libya terminated the contract with Al-Kharafi in 2010 based on the former´s refusal to move the project to another spot after being faced with competing claims for the land. Al-Kharafi consequently sued Libya for USD 57 million in an arbitration before an ad hoc tribunal seated in Cairo, which ended up in an award condemning Libya to pay Al-Kharafi USD 936 million plus 4% interest, which would currently rise to approximately USD 1 billion.

Libya challenged the award before the Cairo Court of Appeal, which decided to set it aside since the difference between the compensation and the damages actually suffered by Al-Kharafi breached the principle of proportionality.

The award, meanwhile, was enforced in France in 2014. Even though the French Court of Cassation upheld the enforcement, it is still considering, to date, whether the enforcement can entail the seizure of Libyan Investment Authority’s assets in France.