Cumquat Cap
Regular
Zijin don't give a shit - ICC certaintly will - fucking embarrassment of the system.
AVZ Discussion 2022
- Thread starter GazDix
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End of the arbitration proceedings at the ICC: Shaken by the position of COMINIERE SA, the company MMCS1 withdraws its main claims
It is a legal victory that the Congolese mining company (COMINIERE SA) has just won at the International Court of Arbitration of the International Chamber of Commerce (ICC) against the multinational MMCS1. Shaken by the convincing arguments of COMINIERE SA which clearly and black and white established before the judges the unfoundation of "these main claims as well as the weaknesses and inconsistencies of the interventions of the experts and witnesses cited by the plaintiff in this arbitration procedure", MMCS1 was forced to withdraw its main claims before the ICC .
Indeed, following the official withdrawal of the main claims of MMCS1 in the file opposing it to the Congolese mining company, the General Secretariat of the International Court of Arbitration of the International Chamber of Commerce (ICC) transmitted, by email of July 21, 2023, to all the litigants as well as to the Arbitral Tribunal, the letter confirming the end of the arbitration procedure registered under ICC nº 23225/GR/PAR between MMCS1 and COMINIERE SA (hereinafter referred to as the "procedure ”, pursuant to Article 37(6) of the ICC Rules.
For its part, the Arbitral Tribunal constituted to hear this procedure, by its email of July 28, 2023, formally acknowledged receipt of the email of July 21, 2023 and noted that the Procedure is deemed to have ended. By her email of July 31, 2023 addressed to the Arbitral Tribunal, the claimant in arbitration MMCS1 through her counsel, confirmed the end of the procedure following the withdrawal of her main claims pursuant to Article 37(6) of the CCl Rules and, moreover, thanked the Arbitral Tribunal for all the diligence carried out since the start of this arbitration, for the professionalism they have demonstrated in this case, but also for the flexibility and patience they have shown towards the parties throughout the proceedings.
The hearings of the pleadings having been closed and the hearing notes issued, COMINIERE SA's legal counsel also sent the note of the balance of his fees to the senior management of this para-public, as announced in his referenced letter of January 02, 2023 The withdrawal of the principal claims and consequently the end of the procedure, devote the end of its services relative to this Procedure.
At the time of going to press, MMCS1 refused and still refuses, in a deliberate manner, to pay the balance of the amount of the separate position, despite repeated reminders from the General Secretariat of the International Court of Arbitration of the ICC, to enable the Arbitral Tribunal to rule on the merits of its claims, confirms the terms of the latest report by Cabinet Emery Mukendi Wafwana et Associés, SCP, sent to COMINIERE SA following the hearings in January 2023. This last report stated the relevance and merits of its legal arguments developed on behalf of COMINIERE SA, which arguments had shaken the position of MMCS1,while establishing the non-foundation of its main claims as well as the weaknesses and inconsistencies of the interventions of the experts and witnesses cited by the plaintiff in this procedure.
It should be noted that by correspondence dated June 29, 2023, in accordance with Article 37(6), the Secretary General granted the Claimant a final deadline until July 17, 2023 to pay the balance of the amount of the provision separately and informed the claimant that in the absence of payment within the time allowed, the claims concerned would be considered withdrawn.
This period expired on July 17, 2023 without our having received this payment and without any party having raised an objection in accordance with Article 37(6). Consequently, in accordance with Article 37(6), the main requests are considered withdrawn as of July 18, 2023, without this precluding their subsequent reintroduction in another procedure. The Court was informed of the withdrawal of the claims and, at the same time, it was asked to fix the costs of the arbitration. So what is the consequence to be drawn from this withdrawal?
To date, according to a mining and quarrying agent who requested anonymity, the direct consequence of the withdrawal of MMCS1's requests or the end of the procedure is that COMINIERE SA does not incur any risk whatsoever arising from the procedure, this which can be analyzed as a success and/or result obtained for the benefit of the government corporation.
Dieudonne Buanali
Fin de la procédure arbitrale à la CCI : Ébranlée par la position de COMINIERE SA, la société MMCS1 retire ses demandes principales – Geopolismagazine
C’est une victoire judiciaire que vient de remporter la Congolaise d’exploitation minière (COMINIERE SA) à la Cour Internationale d’Arbitrage de la Chambre du Commerce International (CCl) face à la multinationale MMCS1. Ébranlée par les arguments convaincants de COMINIERE SA qui a établi...
geopolismagazine.net
We need to wait and see how the DRC gov react . Hopefully Felix is waiting on a decision by the ICC to act in AVZ favour . Time will tell .
Carlos Danger
Top 20
The preliminary question is the jurisdictional challenge by AVZ that Jin Cheng is not (and never has been) a party of Dathcom. If AVZ wins then it is game over for Zijin and there will be no main trial as it will confirm they do not have the right to initiate arbitration and all their claims are just made up bullshit. Bon chance bitches.
No main trial, or no main trial at the ICC? If that's the case, then why did AVZ in their earlier ASX announcement state that there would need to be seperate proceedings to rule on the merits of the sale to JC, should this jurisdictional challenge succeed? This one stumped me a little. Perhaps they mean the proceedings against Cominiere?
Carlos Danger
Top 20
It did me at first too. But it was explained in the announcement last week. That question is part of our case at the ICC with Cominiere who are the party within Dathcom responsible for the breach of our preemptive right.
Carlos Danger
Top 20
The fact that the ICC refused to merge these cases plus the damages case brought by Zijin and Cominiere against AVZ is bad news bears for Zijin imo
Nice one Carlos - you're a gun as always.
Carlos Danger
Top 20
It's been a long road to get here so here is a recap of how we arrived at this point for those unsure of the facts of the case
It all started back on October 2 2019 when AVZ approached the former MoP (not the green lady) about his opinion on us purchasing the 15% of Dathcom from Cominiere. Note this offer was made before the DFS so the market value was unknown at the time.
This was his response on February 18 2020. Note his reference to the DFS being completed before the sale and the DRC government's intent to hold a working session to determine this matter.
Fast forward to July 21 2021 and AVZ are contacted by Cominiere about giving an opinion on an offer they have received from Zijin for the 15%. They also ask us for an advance on dividends which can only be described as batshit insane. Crucially no price for the proposed acquisition is given by Cominiere despite market value now being known from the DFS which was released in April 2020.
Here is AVZ's response through our lawyers on August 4th 2021 to Cominiere's request for an opinion on Zijin buying 15% of Dathcom. Note the reference to the MoP letter from February 2020. Crucially this was sent to Cominiere within the 40 day window outlined in Article 9.1 (b) of the Dathcom JVA. Cominiere never responded to this letter.
After the 40 days expired the purported acquisition by Jin Cheng was approved and registered in the RCCM. AVZ was never given the opportunity to execute it's pre-emptive right. AVZ submitted its offer to the DRC government for the 15% after the 40 days had expired. This was done at the market value established in the DFS.
Finally in mid 2022 the DRC's financial watchdog completed its investigation into the purported sale. This was released to the public in December 2022. The findings were damning for Zijin, Cominiere and the new MoP. Most egregious was the price of 33.4m USD which was below the market value established in the DFS which resulted in a loss of revenue for the DRC of 120.7m USD. in early 2023 an audio was released of Zijin and CKK discussing extra personal payments to facilitate this sale.
Patriotism 101 is don't rat fuck your own people by taking a bribe from foreigners for personal gain. This is also being considered by the ICC as the original hearing in July was pushed back to this week so Zijin could have time to respond to AVZ allegations in court that the purported sale from Cominiere to Zijin was also tainted by corruption.
I'm no big city fancy lawyer but my opinion is that Zijin are completely fucked
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Would like to shout you a beer one day Carlos! Smart cookie.
I am just wondering what tactic these dogs have up their sleeve as to why they have not yet pulled the pin. Their excuse for the extension was to further examine the IGF file. Interestingly I just noticed that Jules may be out of action for some reason as some other dude is acting in his place. (Darel Gildas NGOUALA) Who is this bloke moneybags and why don't you have file on him?(joking - luv ya work)
I wonder if Jules is on a trip to Paris and if so is he heading for our corner!!
www.finances.gouv.cg
I am just wondering what tactic these dogs have up their sleeve as to why they have not yet pulled the pin. Their excuse for the extension was to further examine the IGF file. Interestingly I just noticed that Jules may be out of action for some reason as some other dude is acting in his place. (Darel Gildas NGOUALA) Who is this bloke moneybags and why don't you have file on him?(joking - luv ya work)
I wonder if Jules is on a trip to Paris and if so is he heading for our corner!!
INSPECTORATE GENERAL OF FINANCE | Ministry of Finances,Budget and Public Portfolio
Dijon101
Regular
Lets see if I understand this correctly.
The merging of the 3 cases was just another last ditch delaying tactic which was rejected.
The first ICC case is to even see if Jin Cheng is even part of the JV . If found in our favour, the next 2 cases get thrown out ??
Edit: I'll just go back and read your post Carlos.
The merging of the 3 cases was just another last ditch delaying tactic which was rejected.
The first ICC case is to even see if Jin Cheng is even part of the JV . If found in our favour, the next 2 cases get thrown out ??
Edit: I'll just go back and read your post Carlos.
Carlos Danger
Top 20
The Cominiere case brought by AVZ would still remain. But the Zijin case to be recognised in Dathcom would not proceed and the damages claim by Zijin and Cominiere would not have any basis to continue as a dual action. But it's possible Zijin could withdraw and leave Cominiere seeking damages alone.
Cumquat Cap
Regular
Open and shut case, would love to know if any negotiations are going on in the background, bring on the weekend where hopefully we get some feedback as to how proceedings went - fuck Zijin those rat fucks
TheCount
Regular
And the Addendum to that is only $6M has been physically paid by Zijin.
TC.
Carlos Danger
Top 20
I thought I had a copy of the original offer from Zijin to Cominiere but I can't find it. From memory it contained a clause for the remainder after the deposit to be paid within 12 months of the completion of the sale. The IGF report was written before this 12 months expired but contains the below summary of how Cominiere used funds received. I'm unsure if the remainder was paid or not but it's possible it was within the time period outlined in the contract. Also possible Zijin are waiting for completion to be confirmed through the ICC but that would leave them on very shaky ground legally.
Cumquat Cap
Regular
That IGF report is awfully damning, thank fuck for Jules and people with a backbone over there
Carlos Danger
Top 20
Disputes between shareholders of a JV as a reason for cancellation of a PE is unknown to the DRC mining code. Will look like an awfully silly excuse at the ICSID if AVZ wins the cases at the ICC especially since it was done after the IGF report. But you already know that. Damages of 10b USD and no access to world bank funds should make the MoM follow her own mining code imo
Sammy_da_Smile
Regular
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