The Commercial Court (TRICOM) of Lubumbashi and the entire Congolese judicial system must respect the measures and decisions of international arbitration on the Dathcom Mining SA File, without being influenced
Several Congolese editorial staff, including those of the Consortium composed of EcoNews, Congo Nouveau, Leader, Mining News Magazine, have learned from MOMENTUM Cabinet led by Me Christian Lukusa that there will be a hearing at the Lubumbashi Commercial Court (TRICOM) this Monday March 25, 2024 , on the request of the public company La Cominière headed by Mr. Kibeya Célestin who swears by Dathcom Mining SA, the partnership company with the Australian group AVZ Minerals at the heart of the irregular battle with the Chinese from Zijin, supported by La Cominière and Dathomir, for control of the large Manono lithium deposit.
According to Congolese civil society NGOs who have closely followed this case since 2021, the procedure before the Lubumbashi Commercial Court by two co-shareholders of Dathcom is in violation of international arbitration decisions taken in Paris and Washington against La Cominière, Dathomir and Zijin in favor of Dathcom Mining and the Australian group AVZ Minerals.
Indeed, AVZ won its case within the framework of the ICSID provisional measures.
The Australian Company, through its subsidiaries AVZ International Pty Ltd (AVZI) and Green Lithium Holdings Pty Ltd (GLH), as well as Dathcom Mining SA (Dathcom), previously initiated international arbitration proceedings against the Democratic Republic of Congo (DRC) under its Mining Code and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) before the International Center for the Settlement of Investment Disputes (ICSID) in Washington (see ASX announcement of June 9, 2023 “Confirmation of Registration of Request for ICSID Arbitration Proceedings Against the Democratic Republic of Congo”).
On December 11, 2023, the ICSID tribunal heard AVZI, GLH and Dathcom's request for interim measures, including an urgent order to preserve the
status quo and an order to confirm or return ownership of the Permit of Research (PR) 13359 to Dathcom (see ASX announcement dated 15 November 2023 “ICSID Proceedings Update”).
On January 16, 2024, AVZ announced that the ICSID tribunal (in Washington) had issued interim orders ordering the DRC to take the necessary measures to reflect that Dathcom is the owner of PR 13359 and to protect the rights of AVZI, GLH and Dathcom while the proceedings are pending (interim orders). The ICSID tribunal's decision to grant interim measures is an interim decision. It does not imply any definitive conclusion as to the merits of the case, which remains to be determined in the substantive proceedings.
Interim Orders imposed on all
The interim orders in questions opposable to all and to the entire Congolese judicial system of which the Commercial Court of Lubumbashi is part and to all the Congolese administration are the following stipulate that the Democratic Republic of Congo (DRC) must:
• Reestablish Dathcom as holder of PR 13359, currently being converted into an operating permit, within the scope mentioned in Article 2 of Ministerial Decree No. 0921/CAB. MIN/MINES/01/2016 of December 28, 2016, but excluding the perimeter covered by PR 15775; Instruct the DRC Mining Cadastre (CAMI) to rectify the mining fallout map in order to reflect Dathcom's property on PR 13359 on a perimeter excluding the perimeter covered by PR 15775, specifying that this permit is currently being transformed in operating permit and that it remains valid;
• Take the necessary measures to guarantee the integrity of Dathcom's installations and equipment within the scope of PR 13359 as mentioned in Article 2 of Ministerial Order No. 0921/CAB. MIN/MINES/01/2016 of December 28, 2016, but excluding the perimeter covered by PR 15775, as well as the drilling cores stored there, until possession of these installations, equipment and cores is taken drilling ;
• Maintain the confidentiality of all technical, geological and mining information provided by Dathcom to the Ministry of Mines, to Congolaise d'Exploitation Minière (Cominière) and to CAMI within the framework of its activities under the title of PR 13359, on the entire perimeter of PR 13359 as referred to in article 2 of ministerial decree no. 0921/CAB. MIN/MINES/01/2016 of December 28, 2016 (including the perimeter covered by PR 15775), by taking any useful measure for this purpose;
• Allow applicants, within 19 days, to establish a contradictory inventory of the file held by CAMI relating to PR 13359 over the entire perimeter of PR 13359, as mentioned in article 2 of the ministerial decree n°0921/CAB. MIN/MINES/01/2016 of December 28, 2016 (including the scope now covered by PR 15775), until the date on which the request for PR 15775 was made, and to take a copy of this file;
• Refrain from taking, whether through its officials, bodies, emanations or companies (including Cominière, without prejudice to the nature of the links between the DRC and Cominière), any new act likely to call into question PR 13359 or which could lead to an aggravation of this dispute or deprive the future final award of its effects; And
• Do not exclude Dathcom's access to the Mpiana Mwanga power plant.
Contrary to the claims and initiatives of La Cominière, Dathomir and Zijin with the Congolese justice system, it is appropriate to remind all parties involved in this matter, particularly the administration and the judicial system of the country, that the interim orders are binding on all parties and take effect immediately, but can only be revised (or revoked) by the ICSID tribunal (not a Congolese court or administration) in light of comments provided by AVZI, GLH and Dathcom and the State.
The mandatory nature of interim orders was reaffirmed and emphasized by the ICSID tribunal in its decision. Among other directives, the ICSID tribunal asked Dathcom to expressly confirm that if the DRC complied with these interim orders, AVZI, GLH and Dathcom would seek the release of the EP and that if the DRC released it, they would immediately advance the development of the project. The Australian group AVZ Minerals will take the necessary steps to obtain this confirmation from AVZI, GLH and Dathcom.
Although the interim orders require the State to take the necessary measures to register Dathcom as the holder of PR 13359, the interim orders do not have the effect of unwinding the transfer by La Cominière Cominière of the northern part of the PR 13359 in October 2023 or the granting immediately thereafter of PR 15775 to Manono Lithium SA. The ICSID tribunal refused to rule on the title of the northern zone on a provisional basis, as this could affect the interests of a third party to the proceedings (i.e. Manono Lithium SA), which will be definitively treated as part of the broader ICSID procedure.
On the side of AVZ Mininerals, it is considered that the illegality of the transfer of PR 13359 from Dathcom to La Cominière, which was canceled under the interim orders, also makes the transfer by La Cominière of the northern part of PR 13359 and the subsequent grant of PR 15775 to Manono Lithium SA.
Accordingly, the Australian Company will continue its efforts to confirm its and Dathcom's ownership of the northern area of the Manono project, either by continuing its negotiations with senior officials of the DRC government or by pursuing ICSID proceedings. and the CIC until their conclusion.
International arbitration confuses Jin Cheng (Zijin) and rules in favor of AVZ Minerals
Although La Cominière and Dathomier can claim to give other reasons why they want the dissolution of Dathcom Mining SA which they have voluntarily blocked by irregular acts, everyone who follows this file knows that the refusal of the management of Dathcom Mining to register the Zijin subsidiary as a shareholder of Dathcom, after the sale of shares by La Cominière deemed illegal and criminally punishable by a report from the General Inspectorate of Finance, dependent on the Presidency of the Republic, with the support of Portfolio Minister Adèle Kayinda, is the real cause which has for some time pushed these two accomplices in evil - having blocked the development of Manono - in their battle against AVZ Minerals and Dathcom Mining.
However, during this month of March 2024, AVZ Minerals was successful in the judgment regarding the ICC arbitration proceedings (CCI case no. 26986/SP/ETT) initiated by Jin Cheng Mining Company, subsidiary of Zijin Mining Limited (Jin Cheng), against AVZ International Pty Ltd (AVZI) regarding alleged abuse of majority in relation to AVZI's failure to recognize the sale by La Congolaise d'Exploitaition ( Cominière) to Jin Cheng of 15% of the shares in Dathcom Mining SA (Dathcom).
On March 15, 2024, the international arbitral tribunal of the ICC (Cambre de Commerce Internationale) ruled in favor of AVZ Minerals, ruling that for purposes of jurisdiction, the status of shareholder of Dathcom is determined by its registration in Dathcom's internal share register and that the ICC tribunal did not have jurisdiction to preside over the proceedings initiated by Jin Cheng.
The ICC tribunal found that Jin Cheng's recourse to arbitration was not justified and ordered Jin Cheng to reimburse AVZI USD 75,000 for its arbitration costs and AUD 813,474 for its arbitration costs. defense, and to cover his legal costs (more than 3 million euros). Contrary to what La Cominière writes on
The decision is entirely consistent with the position taken by AVZ Minerals that it has clear legal title to a 75% interest in Dathcom Mining and a continuing right of first refusal to 15% of the 25% stake of La Cominiere in Dathcom Mining.
The ICC tribunal did not rule on the validity of Cominière's alleged sale to Jin Cheng of 15% of Dathcom's shares, which, according to the Australian group, violated AVZI's right of pre-emption and was tainted by corruption. These issues, particularly those relating to corruption, will be re-examined in other ICC proceedings, including the case brought by AVZI regarding Cominière's alleged violations of the Dathcom joint venture agreement (CCI No. 27720/SP).
According to a statement from the Australian company, AVZ Minerals has noted Zijin's public statement that, in light of the failure of its ICC proceedings, it will now seek to pursue this claim through a internal procedure in the DRC. AVZ Minerals is considering the appropriate response to this latest threat.
This award is another positive outcome for AVZ and Dathcom Mining, in addition to the two emergency arbitrator orders issued against La Cominière in ICC case no. 27720/SP, and the interim orders issued by the court of ICSID in ICSID case n°ARB/23/20 C No. 27720/SP to protect in particular the rights of Dathcom Mining on PR 13359 which La Cominière and Zijin want to divide in favor of Manono Lithium, their partnership company which They want to see Dathcom Mining replace a deposit documented by the Australian group AVZ.
The board of directors of AVZ Minerals believes that this decision provides significant additional impetus for a negotiated result that the Australian group has continued to propose since 2021 to the various managers of the country with a view to developing the project in compliance with international standards of the mining sectors and bonds of companies listed on stock exchanges for the interest of shareholders, those of the DRC and the local communities of Manono who are waiting with open arms for the Exploitation License of Dathcom Mining, according to the declarations of the great customary chief of the Luba -Bakongolo made during the on-site visit to Manono in July 2022 to investigators from EcoNews, Kin24, Top Congo FM, Mining News Magazine and other media as well as representatives of Congolese NGOs.
By Oktober Luchane and the Consortium
