PARIS--(BUSINESS WIRE)--On 5 October 2023, an International Chamber of Commerce (ICC) arbitral tribunal based in Paris dismissed Congo’s request to reconsider a previous arbitral award in favour of Commisimpex (ICC case no. 16257/EC/ND/MCP/AZO/SP).
The arbitral tribunal had been appointed in 2021 at the request of the Republic of Congo, several years after the highest French courts had rejected applications by Congo to set aside two arbitral awards made in this case in 2000 and 2013. Congo’s latest request was a clear attempt to derail pending enforcement efforts.
This follows a pattern of similar manoeuvres by the Republic of Congo, which had previously initiated a wrongful liquidation procedure against Commisimpex, and an equally wrongful and retroactive tax assessment - both of which were dismissed as fraudulent by the French and American courts.
This latest appeal by Congo was based on spurious allegations of corruption against one of the world’s most respected arbitrators, who had served in the arbitral tribunal in this case.
In the course of two years of proceedings, the parties were able to set out their cases in detail, including through exchanges of detailed briefs and several days of oral arguments, during which the parties and arbitrators examined the witnesses and reviewed a large volume of evidentiary material. The arbitral tribunal has now handed down a solidly-reasoned award of more than one hundred pages, rejecting entirely the allegations made by the Republic of Congo.
The Tribunal found that “compelling evidence suggests that this action was brought opportunistically, in order to paralyse enforcement proceedings”. As regards corruption allegations, the tribunal held that it was “essentially based on the hearsay of an informant who had attempted to haggle over his allegations of corruption in exchange for large sums of money” and who was of “dubious integrity”.
The Republic of Congo was ordered to pay more than €3 million in legal costs to Commisimpex.
Mr. Mohsen Hojeij, CEO of Commisimpex, is delighted that a tribunal has once again rejected a far-fetched and egregious appeal by the Republic of Congo against an arbitral award that has been final and binding since 2016, and regrets that the Congolese leaders clearly prefer to see the country’s debt to Commisimpex continue to increase (by €280 million in the last two years alone) and to pay exorbitant legal fees instead of engaging with Commisimpex to honour the State’s debt without further delay, in the interests of the Congolese people.
Jacques-Alexandre Genet of Archipel law firm in Paris, one of Commisimpex’s lawyers, is calling on the Republic of Congo to stop its delaying tactics, to finally and officially acknowledge the existence of this debt to Commisimpex as part of its public external debt, to cease concealing it from investors, the IMF and other international lenders, and to immediately enter into good faith negotiations with Commisimpex to clear its debt once and for all.
Supporting documents available on request.
Commisimpex was established in the Republic of Congo on 24 July 1980 and registered with the Ministry of Commerce on 9 December 1982. The majority shareholder of Commisimpex is a British national, Mr. Mohsen Hojeij. An American investor, Mr. John Anton Grosso, holds 11% of the company’s capital. In the 1980s, the company was valued at around $400 million (equipment and land). It was the country’s third largest private company outside the oil sector. The company employed up to 5,000 people full-time, making it the country’s largest employer (again excluding the oil sector). Between 1983 and 1988, the company signed infrastructure (public works) contracts with the Congolese government, including Etoumbi-Kunda, a vast construction and sanitation project in the capital. However, the work was never paid for, and the company has since been pursuing recovery of its debt to the Congolese government.
About the debt:
This decision confirms Commisimpex as the Republic of Congo’s largest private creditor for a total amount including interest as of 30 September 2023 (net of sums recovered) of more than €1.7 billion (i.e. around 12% of the Republic of Congo’s GDP in 2022).
Congo’s debt to Commisimpex is growing at a rate of (compound) interest of around 9 to 10% a year, i.e. €150 to €170 million a year.
For reasons that Commisimpex and neutral observers fail to understand, this court-recognised debt is not recorded by the IMF in the accounts of the Republic of Congo (beyond a mere contingent liability provision of $300 million), and is still considered to be disputed/under litigation, even though all the legal awards related to the case have been final and binding since 2016.
Failing a decision by the Republic of Congo to pay its debt directly or through a contractually negotiated framework, Commisimpex has no choice but to proceed with the seizure of assets belonging to the Republic of Congo (at this time: bank accounts of the Société Nationale des Pétroles du Congo, the Congolese national oil company; real estate in Paris or New York; taxes owed by French companies; and a Dassault Falcon 7X business jet, recently sold at auction). By 30 September 2023, Commisimpex had recovered around €45 million through the courts and plans to continue to pursue its rights on a worldwide basis until the debt is settled in full.
For more information, please contact Jacques-Alexandre Genet (firstname.lastname@example.org)