20/11/2023
Sam Posted
Emergency measures of the International Chamber of Commerce against La Cominière SA and Manono Lithium: “The order of November 15, 2023 of the CCI blocks La Cominière and Zijin on Manono Lithium, protects the rights of Dathcom and AVZ on the entire License 13359 ".
In its press release to shareholders of November 17, 2023, the Australian company AVZ, which is in partnership with Cominière and Dathomir in Dathcom Mining which has attracted the gluttonous appetites of the Chinese since 2021, informs that its subsidiaries have previously obtained orders for measures of emergency of the International Chamber of Commerce (ICC) in Paris against La Congolaise d'Exploitation Minière (Cominière) imposing a penalty of €50,000 per day if Cominière took measures to implement its alleged termination of the agreement joint venture with respect to Dathcom Mining SA (Dathcom and Dathcom JVA) as was mentioned in the Australian Stock Exchange announcement of May 8, 2023 entitled ''Favorable decision
in the emergency arbitration proceedings of the CCI''.
La Cominière subsequently took steps to implement its purported termination of the joint venture agreement with respect to Dathcom JVA.
Consequently, on October 30, 2023, the AVZ subsidiaries submitted a new emergency measure to the CCI against Cominière.
The application was heard on November 9, 2023. AVZ is pleased to announce that, on November 15, 2023, the ICC Emergency Arbitrator ordered that:
1. Cominière shall not take any action to explore and exploit, directly or indirectly, within the scope of PR 13359 and PR 15775 until the ICC tribunal responsible for determining the validity of the termination of the partnership agreement Dathcom hears this question;
2. Cominière pays a fine of €50,000 per day for any non-compliance with the order referred to in paragraph 1; And
3. Cominière must pay the administrative costs of the CCI and part of the legal costs of the AVZ subsidiaries. The ICC emergency arbitrator also rejected Cominière's request to annul the emergency order dated May 5, 2023. Thus, the final daily penalty of €50,000 is added to the initial daily penalty. of €50,000 under the first emergency order against Cominière dated May 5, 2023.
In light of Cominière's behavior to date, AVZ notes that the initial daily penalty of €50,000 continues to accumulate.
Among other conclusions, the emergency arbitrator of the Court of Arbitration:
• concluded that Cominière had deliberately concealed that it had requested and obtained a decision from the High Court of Kalemie in the DRC on May 3, 2023 regarding the alleged dissolution of Dathcom; and • indicated that Cominière's position on the termination of the joint agreement founding the Dathcom partnership was apparently based on an erroneous interpretation of article 18.3 of the Dathcom joint agreement.
Provisional measures against Dathomir of Simon Cong, spoiled child of Dathcom according to a report from the General Inspectorate of Finance (IGF)
AVZ and AVZI previously requested interim measures to preserve the status quo, including an injunction requiring Dathomir to:
• withdraw the request for dissolution of Dathcom before the Lubumbashi commercial court; and • comply with the arbitration clause of the APS 2020 and, in particular, refrain from bringing any action before a local court in the DRC for reasons prejudging the issues at stake in the ICC arbitration procedure.
AVZ announces that, as part of the request for interim measures, the tribunal of the Arbitral Court ordered that:
• Dathomir files its defense on November 17, 2023;
• AVZ and AVZI submit all their responses on November 27, 2023; And
• Dathomir will file its reply on December 7, 2023. The tribunal of the Court of Arbitration indicated that it would rule on AVZ and AVZI's request for precautionary measures on December 19, 2023.
Regarding the broader arbitration proceedings against Dathomir:
• AVZ and AVZI each confirm that they filed their declaration on November 11, 2023 (on the merits of the ICC arbitration proceedings (ICC No. 27401/SP).
• Dathomir's defense is due to be filed on March 4, 2024.
Update on the arbitration of Jin Cheng, Zijin subsidiary with gluttonous appetites
Furthermore, AVZ received the ICC-approved Procedural Timetable for the ICC Arbitration Procedure (ICC No. 26986/SP) issued by Jin Cheng Mining Company (Jin Cheng), a subsidiary of Zijin Mining Group Ltd, which falsely alleges that it acquired a 15% stake in Dathcom from Cominière despite the fact that Cominière did not comply with the provisions relating to pre-emption rights of the Dathcom JVA. The main steps are summarized below:
• post-hearing briefs will be filed on November 24, 2023;
• the filing of the bill of costs on December 8, 2023; And
• subject to the procedure, the draft sentence will be submitted to the ICC at the end of January 2024.
As previously stated in all its statements and correspondence to Congolese institutions and courts, AVZ is confident that AVZI's jurisdictional challenge will be successful, which will confirm that Jin Cheng does not have the right to initiate the ICC arbitration proceedings against AVZI on the grounds that it is a putative shareholder of Dathcom.
Arbitral recourse in the Congolese Mining Code revised in 2018 and AVZ referrals
In their narrative, the current general management of Cominière and certain Congolese officials claim that AVZ and AVZI destroyed trust and betrayed the country by resorting to international arbitration to decide between them and its partners in Dathcom Mining on various disputes between them. They forget that Cominière and his partner Zijin also took international arbitration against AVZ regarding Dathcom, a sort of self-flagellation if not turpitude in the eyes of the law.
However, a non-partisan reading of the Congolese Mining Code revised and promulgated in 2018 by the President of the Republic after adoption by the parliament (National Senate Assembly) of the DRC, neither Australian nor foreign, provides for the use of internal arbitration and at the international level under specific conditions and for specific reasons.
Here is the provision and the economy below:
Article 317 entitled ''Arbitration'' says this:
''Subject to the provisions relating to administrative and judicial recourse, breaches, penalties and sanctions provided for in this Code, disputes which may arise from the interpretation or application of the provisions of this Code may be settled by means of 'arbitration provided for in articles 318 to 320 of this Code.''
Article 318 on ''Internal arbitration'' says this:
''Disputes resulting from the interpretation or application of the provisions of this Code are subject to arbitration according to the procedure provided for in the provisions of articles 159 to 174 of the Congolese Civil Procedure Code.''
Article 319 on ''International arbitration'' says this:
''Notwithstanding the provisions of article 318 of this Code, disputes that may arise during the interpretation or application of the provisions of this Code may be settled, at the request of the most diligent party , by means of arbitration in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of other States, on the condition that the holder is a National of another contracting State under the terms of article 25 of the said agreement.
Due to the acceptance of the delivery of the mining or quarry title by the Mining Cadastre, the holder is deemed to have automatically given his consent to such arbitration in accordance with the said agreement and expresses it both in his name and in that of its affiliated companies. It further accepts that such an affiliated company shall be considered a national of the State of which the Investor is a national of another Contracting State.
If the investor has made his investment through an affiliated company under Congolese law, such a company is considered, for the purposes of the ICSID Convention, to be a national of the State of which the Investor is a national.
Without prejudice to the provisions of paragraph 5 of this article, holders who are not nationals of another Contracting State may submit disputes arising during the interpretation or application of the provisions of this Code to any competent arbitral tribunal of their choice provided that this tribunal is not governed by the laws of their country and does not sit there.
Holders who are not nationals of another Contracting State notify the Mining Cadastre of the names, contact details and rules of three arbitral tribunals chosen by them, within thirty days of the issuance of the mining title. The State approves an arbitral tribunal among the three proposed, subject to it objecting, for the reasons mentioned in the preceding paragraph in fine, within three months from the date of notification of the choice of courts. arbitrators.
In the absence of approval or objection by the State within the three-month period, the holder notifies the Mining Cadastre within thirty days of the arbitral tribunal of its choice among the three proposed.''
Article 320 on ''Arbitration rules and decisions''regarding arbitration decisions, judgments and orders says that they
are enforceable in the Democratic Republic of Congo :
''In accordance with the previous article, the arbitration is carried out in French at the place agreed by the State and the holder.
For the purposes of arbitration, the arbitral body shall refer to the provisions of this Code, the laws of the Democratic Republic of Congo and its own rules of procedure. The decisions rendered by the arbitrator are enforceable and their execution may be requested before any competent court in the National Territory according to the form provided for by the Congolese Code of Civil Procedure or in the country to which the holder belongs. In the event of application of the provisions of the preceding paragraph, the State waives the right to avail itself of any immunity from jurisdiction or execution.''
Finally,
Article 322 regarding ''The service of procedural documents'' clearly stipulates that:
''Any appeal, any judgment, any judgment and other procedural documents are served on the State at the Office of the Minister or at the Office of its local representation. Any service made in any other place in the National Territory or abroad is null and void.''
For Congolese civil society and especially the TOUS POUR LA DRC Coalition which has been closely following the issue for years, the only solution is "
an arrangement outside of legal proceedings between Cominière and AVZ in order to develop the Dathcom mining project without the Chinese from Zijin , who must develop the Kabamba Mining partnership and without Dathomir taking into account the IGF Report and the clauses of the partnership agreement. This will protect the interests of all and especially of the country and the population of Manono without wasting time and money in court, given the unviable financial situation of Cominière which has no partnership in production to date. whereas Dathcom should have been there since July 2023 if there had not been artificial blockages.''
By Ben Nkaya for FKF Softpress
la société AVZ informe que ses filiales ont précédemment obtenu des ordonnances de la CCI à Paris à l'encontre de La Cominière imposant une pénalité de 50.000€ par jour si Cominière prenait des mesures pour mettre en œuvre sa prétendue résiliation de l'accord de coentreprise à l'égard de Dathcom...
touspourlardc.org
