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ECONOMY
GEOPOLIShohda
After the settlement of the DATHCOM MINING SA case
Recall of facts
Célestin Kibeya: "COMINIERE SA now has the opportunity to negotiate a win-win contract on Manono Lithium"
La Congolaise de l'Exploitation Miniere (COMMINIERE SA) is a company owned 90% by the Congolese State through the Ministry of Portfolio and 10% by the National Social Security Fund (CNSS). After the outcome of the DATHCOM MINING SA file, a company resulting from a partnership in which COMINIERE SA held 10%, the parastatal found itself in a favorable position in the mega lithium project of Manono for which it had already been excluded by the majority shareholder through multiple abuses. Today, COMINTERE SA is again the holder of PR 13359, which has enabled it to negotiate favorably with the two other shareholders. Indeed, COMINIERE, which ended up with a 10% stake in DATTICOM MINING, is currently with 85% with the possibility of reformulating the JV to allow it to move on to the production phase with a reliable partner. "COMINIERE SA, which had to evolve with an unbalanced contract in DATHCOM MINING SA, succeeded in terminating this contract and it now has the possibility of negotiating a win-win contract, declared Célestin Kibeya Kabemba, formerly its Director. General DG ai, in a private correspondence addressed to Géopolis Magazine As we can all see, COMINIERE SA has the advantage of signing three partnership contracts instead of just one on this Manono deposit whose potential is big. Thus the inputs in terms of finance are multiplied by three. This also gives more opportunities in terms of job creation. "In connection with arbitration in Paris. negotiations are in sight with the majority shareholder in AVZ. This one expressed the wish to integrate alone the project by getting rid of AVZ. The condition that has been put on the table is the withdrawal of the arbitration complaint. The discussions are moving in the right direction when the DG ai of COMMINIERE SA, Mr. Celestin Kibeya announced.
The evolution of the file DATHCOM MINING SA, a company resulting from a partnership in which COMINIERE SA held 10%, was based on the development of the Lithium-tin project of Manono-Kitotolo. The project, which was to be in the operating phase at that time, could not be completed following a number of problems within the shareholders following a contract that COMINIERE SA had signed on January 27, 2017 and that modified on March 25, 2017 with various partners including AVZ INTERNATIONAL PTY LTD, DATHOMIR MINING RESSOURCES SARLU having led to the creation of this JV. Since this contract was unbalanced, this gave rise to an abuse of majority on the part of AVZ I. Acts of fraud were also observed on the part of this same shareholder. These various misdeeds have resulted in numerous lawsuits which have plagued the project and removed it from its operational phase to the great detriment of the Congolese State, all the shareholders and the local populations. It is often cited for illustrative purposes RAC 2858 before the Commercial Court of Lubumbashi; RAC 2007 before the Commercial Courts of Lubumbashi, RP 14944 before the Tribunal de Grande Instance of Lubumbashi RPA 7610 before the Court of Appeal of Lubumbashi; RCE 7102 before the Commercial Court of Kinshasa Gombe RR 3204, RR4416 and 4419 before the Court of Cassation of the R D Congo, and finally CCI n° 26986/SP before the International Chamber of Commerce of Paris. The ultimate point of the crisis was reached by the fact that COMINIERE SA sold 15% of its shares in DATHCOM MINING SAS to JIN CHENG and AVZ INTERNATIONAL had refused to recognize JIN CHENG's entry into the share capital of the joint venture. The trigger for the sequence of events was the arrest of the DG ai, Mr. Athanase Mwamba Misao. This led on November 30, 2022 to the Board of Directors of COMINIERE to appoint Mr. Célestin Kibeya Kabemba as DG ai. The latter had on December 6, 2022 by his letter CEM/DG/138/ckk/2022 requested the postponement of the decrees relating to the partial waiver of PR 13359 and the granting of PE 13359. His request was satisfied by the Minister des Mines, Antoinette N'Samba Kalambayi, dated 28
Tri-weekly General Information, nº1468 from Friday July 14 to Sunday July 16, 2023 - Page 6
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GEOPOLIShed
ECONOMY
After the settlement of the DATHCOM MINING SA case
Continued from page 6 -
January 2023. Still among these first actions, the new ad interim CEO sent a formal notice to AVZ L on December 6, 2022. Thus by his letter CEM DG/139/ckk/2022 the CEO asked the shareholder AVZ international to provide proof of fundraising as well as the allocation of these funds to the common project. The DG ai based his argument on the opacity noted in these fundraising operations, which constitutes a breach of the JV contract. Thus, in accordance with Article 18.3 of the JV contract, he gave AVZ formal notice to communicate to him all documents relating to the financing file of the DATHCOM MINING SA project with the details of the financial institution which granted the financing, the amount released, as well as the reimbursement guarantees given Failing AVZ to produce the said documents within 90 days of receipt of its correspondence, COMINIERE SA should draw all the consequences,
AVZ INTERNATIONAL has, after a formal notice sent to it by COMINIERE SA, failed in its contractual obligations having thus led to the unilateral termination of the aforementioned joint venture contract by COMINIERE SA with regard to AVZ INTERNATIONAL PTY LTD for gross breach and persistence of contract.
This termination of the contract on the initiative of COMINIERE SA took place on April 4, 2023, and following the consequences to be drawn from this termination, on April 7, 2023 COMINIERE SA assigned the Mining Cadastre (CAMI) to the Tribunal de Grande Instance of Kalemia. It is in partial execution of judgment RC 3815 / RH 0242 rendered by the Tribunal de Grande Instance of Kalemie on May 3, 2023 between it and CAMI, that PR 13359 formerly sold to DATHCOM MINING SA under the terms of the contract for the transfer of permits of January 13, 2017, was reinstated in the name of COMINIERE SA On May 9, 2023, there was partial execution by the CAMI of this judgment, since it was noted by the latter in its register that the other concessions transferred to DATHCOM MINING SA ended up with other holders.
In the meantime, anxious to restore the co-owners of DATHCOM MINING SA to their rights after the dissolution of the latter, a deed of commitment was signed on May 19, 2023 with DATHOMIR on the one hand in which the parties note the return of PR 13359 in COMINIERE
SA and de facto the extinction of the corporate purpose of DATHCOM MINING SAS The parties have undertaken to cooperate together to safeguard their mutual interests. The parties have even agreed to safeguard shares in the future JV to be created in the part of PR 13359 formerly certified by DATHCOM MINING regardless of the future partner and the terms of the future as follows: 1 COMINIERE SA (10+60 formerly of AVZ) i.e. 70% and, 2) DATHOMIR MINING RESOURCES SARLU 15% COMINIERE SA guarantees to this company to renew its shares in the JV which will be reformulated on the part of the PR which saw the completion of the feasibility study with AVZ The parties also agree that COMINIERE SA bears sole responsibility for the dispute over the termination of the aforementioned joint-venture contract initiated by AVZ INTERNATIONAL before the CCL in Paris under ICC 27720/SP and, where applicable, will be solely liable with regard to AVZ INTERNATIONAL In return, COMINIERE SA will take over the 60% of the shares previously owned by AVZ INTERNATIONAL E DATHOMIR undertakes to waive all proceedings before the CCI and/or the state courts against COMINIERE SA in the context of the litigation of the unilateral termination of the joint venture agreement of January 27, 2017 as amended on March 25, 2017. On the other hand. JIN CHENG with COMINIERE SA had to negotiate already before the termination of the JV contract in order to find a way out following the many problems that were going on within the JV. On October 21, 2022, JIN CHENG presents COMINIERE SA with an offer in which he proposes to return to COMINIERE SA the 15% share he acquired from the latter in the share capital of DATHCOM MINING SA and that without requiring reimbursement of the amount paid for the purchase of his 15%. But in return, COMINIERE SA had to undertake to sign another JV contract with JIN CHENG on the part of PR 13359 which has not undergone research work by DATHCOM. The CEO of COMINIERE SA had accepted this offer subject to the decision of the General Assembly and its Board of Directors of the parapublic When the CEO of COMINIERE SA submits this offer to these two management bodies on March 31, 2023, the 2 April 2023, this was deemed inappropriate given that these bodies had already authorized DG COMINIERE SA to terminate the JV contract. What about the CCI Paris file following the termination of the JV contract? This scenario was considered before going
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mining title was recovered before the protective measures in arbitration could block COMINIERE SA from the rest of the project. Here is how this action was carried out in arbitration.
Background to the case
On April 11, 2023, the companies AVZ 1, DATHCOM and GLH filed a request for arbitration against the Company COMINIERE SA before the International Court of Arbitration of the International Chamber of Commerce in Paris. This request for arbitration was registered under case number ICC n°22720/SP. In the background, in the context of this arbitration, the plaintiffs accuse COMINIERE SA of violating the right of first refusal granted to AVZ I during the transfer of shares granted by COMINIERE SA to the company JIN CHENG In the meantime, notices dated April 7, 2023 of the termination of the Joint Venture contract by COMINIERE SA, the plaintiffs hastened to introduce, on April 18, 2023, a request for emergency measures As provided for in the Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce (Article 29 and Appendix V), an emergency arbitrator has been appointed to decide on the request for emergency measures.
The stakes of the motion for the purposes of emergency measures
In its letter of termination of the Joint Venture, the company COMINIERE SA had indicated that In the near future, the consequences will have to be drawn both on the fate of the joint venture, on the title ceded by COMINIERE SA to the latter, and on AVZ's real investment so far For the plaintiffs, DATHCOM this passage clearly suggests that COMINIERE SA is in the process of executing a plan whose stages are: 1) termination, 2) recovery of title, 3) the dissolution of the JV, etc. But, in all cases, the plaintiffs intended to be reassured that COMINIERE SA would not act in violation of the arbitration clause and the said termination. That's why she wouldn't make the situation worse
before a decision is made on the merits of the dispute by the arbitral tribunal. In doing so, the plaintiffs specifically requested that the emergency arbitrator be able to 1) Order COMINIERE SA not to take any action and not to bring any action that would result from the implementation of the termination of the modified JV contract that she claims to have operated and or of the consequences of this attempted termination; 2) Order COMINIERE SA to comply with Article 11.1 of the amended JV Contract and, in any event, not to seize the state courts on the merits for any dispute in connection with the amended JV Contract and/or the termination that it claims to have operated 3) Order COMINIERE SA to refrain from any action likely to harm DATHCOM MINING as well as the Manono Project: 4) Match each of the injunctions with a penalty payment of one hundred thousand (100,000) euros per day of infringement observed: 5) Declare that the litigation of the liquidation of this penalty will be reserved for the arbitration tribunal seized of the question of the validity of the termination of the modified JV contract, and finally 6) Order COMINIERE SA to bear the all the costs of this emergency arbitration and to reimburse the plaintiffs for all the costs incurred by them in connection with this procedure, including in particular the costs and attorneys' fees. Theoretically, in arbitration, this type of request for interim measures is very common. And considering that these purely precautionary measures cannot in principle cause any prejudice to any of the parties, the arbitrators are generally inclined to fire at them should In absolute terms, one could consider that these measures which only aim to maintain the status quo and to avoid circumventing the arbitration clause would not be likely to prejudice the interests of COMINIERE SA However, in consideration of the plan drawn up and followed by COMINIERE SA to release the Manono Lithium project as soon as possible. the challenge is to see COMINIERE SA locked in the strict framework of Arbitration when it would have an interest in also maneuvering internally, on its land
After the outcome of the MINING SA file. COMINIERESA the advantage of signing three partnership contracts instead of just one on this Manono deposit. Thus, the inputs in terms of finance are multiplied by three. It also gives more opportunities for job creation.
Robert Tanzey
Tri-weekly General Information, n°1468 from Friday July 14 to Sunday July 16, 2023 - Page 7
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