Le procès COMINIERE contre MMCS STRATEGIC 1 ouvert lundi 16 janvier 2023 à la Chambre internationale d’arbitrage à Paris est déterminant pour la RDC. Mardi, la deuxième audience a été décisive pour la partie congolaise, défendue par les avocats du Cabinet Élite. Les arguments techniques les plus...
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Manono's lithium, the DRC escapes a scam in Paris
The COMINIERE trial against MMCS STRATEGIC 1 opened on Monday, January 16, 2023 at the International Chamber of Arbitration in Paris is decisive for the DRC. On Tuesday, the second hearing was decisive for the Congolese party, defended by the lawyers of Cabinet Élite. The strongest and most inattachable technical arguments foreshadow the victory of the DRC, but extreme caution is required. A verdict in favor of the COMINIERE, will make the exploitation of Manono lithium by AVZ a reality.
By Gaby Kuba Bekanga
Delegation of the COMINIERE to the trial in Paris @Photo Third-party rights
published on January 20, 2023 at 07:00:00
The ICC had notified the COMINIERE since June 2022 that the pleading would take place from 16 to 20 January 2023 in Paris. The MMCS complainant fully agreed. But, with the attention of the Congolese authorities more focused on the aggression that the country is suffering from its Rwandan and Ugandan neighbors, MMCS wanted to take advantage of the probable absence of the DRC from the trial to raise the auction. In the absence of the COMINIERE, the DRC should have been convicted by default because of negligence like the past. In such a case, the Mauritian company would claim damages. For what investment in Congo? Is taken, who thought to take, it is said. MMCS was unpleasantly surprised by the arrival of the Congolese delegation in Paris.
Deciful arguments to block the AVZ project
Litigation has two aspects: legal and technical. The last component better explains MMCS failures. The argument that MMCS did not conduct research and carried out a feasibility study is archifal.
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According to our sources, the mining engineer, Raphaël Ngoy Mushila, a mining and career agent with 36 years of experience in the sector, was a major contribution to the defense of the DRC. Recruited by the Cabinet Élite to give technical advice, the expert enriched the debate. Having worked in Canada, Australia, Latin America and Africa in mines, he demonstrated in black and white that the argument of the energy deficit invoked by MMCS was
"s
charlatanism and mining heresy".
The company required 15 megawatts of the COMINIERE before carrying out any research and carrying out a feasibility study. According to expert Ngoy,
"MMCS didn't even need an amp or a watt. Not even a candle." Such a claim is comparable to a concession freeze prohibited by the mining code. The mining law also provides for the forfeiture of securities when the operator has not developed the project within the legal period. This gave arguments to the government at the time to remove MMCS of its titles.
From trial to arrangement, a strategy or a failure?
From Paris, we learn that MMCS has
"upupted" the Court to suspend pleadings to grant two months to the parties for an amicable settlement. A request that reflects the weakness of MMCS at the trial. But the COMINIERE understood that this elastic strategy aims to block the evolution of the lithium exploitation project, because the arbitration has been going on for 5 years. The elasticity of the approach would allow MMCS to bounce back differently. In arguing, the Court must rule within 90 days. This is how the COMINIERE opted for pleading.
This timing gives MMCS the opportunity to negotiate before the verdict and asks it to act urgently. Because, by dragging the step, the sentence will fall before the desired compromise. However, the saying
"better be a bad arrangement than a good trial" remains valid for all parties.
While waiting for the sentence...
The 3- to 90-day window is important for the negotiations that MMCS is now forced to conduct, with its back to the wall. It is therefore necessary to update the challenges of this project with a feasibility study taking into account lithium prices. It is urgent to reassess the contribution of each party to the project to restart the construction phase. It makes sense to involve the Elite firm on this file to divert the recurring and fatal mistake of parachute UFOs, businessmen and combinards. Congo is not entitled to make a mistake!
With anticipations before November 2023, President Tshisekedi can end his first five-year term with the production of lithium and rare earths, essential for technological innovation. The launch of the lithium-tantal-tungsten-tain and rare earth plant will be a success. The project will be profitable. Natural resource diplomacy can be played at this level, because all the world's powers need lithium, staniferous minerals and the rare earths available to the DRC.
Vigilance and extreme caution for the COMINIERE
The MMCS party tried to save the furniture by aligning 4 witnesses. But their performance in the Court's questions showed that MMCS had never done
"due diligence" when entering a joint venture. No credible miner can skip this step. It makes it possible to identify all risks and binding tasks, including non-negotiable tasks that result in the forfeiture of securities.
Cut off suspicious connections and networks
MMCS has not yet abdicated. A reliable source indicates that one of the witnesses, chosen by MMCS, is a mining agent. Son of a former Attorney General of the Republic, he is also a bar president. Curiously, he is both a judge and a party. He was one of the leaders of the
"JV stillborn, Manono Mineral (MANOMINE)" between COMINIERE and MMCS. It represents the interests of MMCS. Therefore, he has a conflict of interest. Another credible source, based in Kinshasa, has reportedly intercepted bizarre contacts and calls between a relative of MMCS and the Ministries of Justice, Mines and Portfolio since the beginning of the trial this week. A simple coincidence or a suspicious movement tending to influence the game against the DRC? He is under the radar.
The general manager of MMMCS acknowledged that she has never developed a business plan, a compass for any serious mining operator. It is clear that its management mode was a visual navigation without any landmark. This project was nowhere to go.
A copy and paste that does not hold
The calculation of the damage allegedly suffered by MMCS was based on data from the AVZ feasibility study. Plagiarism or copy and paste vigorously contested by the COMINIERE during the trial. Study data are never transposable. We are not far from the forgery and use of forgery. Even two bidders on the same mining project will never have the same process, the same recovery yield, the same operating costs, the same capex and the same impurities in the finished product. MMCS was unable to produce a feasibility study.
Extreme caution for the DRC and not blissful optimism
The last hearing took place this Wednesday. By mid-April, a series of activities will take place: the circulation of pleading transcripts, the transmission of post-punishments and possible replicas.
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It is strongly recommended that the COMINIERE be careful with regard to the
"full-contact" that has just taken place. It is certain that MMCS will seek an outcome before the sentence. But this step must be carefully prepared on the Congolese side by resource persons who master this file. The Cabinet Élite has proven that it can do the job well. The government must avoid unnecessarily inflating the team with per diem hunters, arrivals, profiteers and calculators as is often the case in Congo.