By Kiki Kienge
La Congolaise d'Exploitation Miniere (COMINIERE), a Congolese state-mining company, in 2017 signed a joint venture agreement with the Australian group, AVZ Minerals to create DATHCOM to exploit Manono lithium in the province of Tanganyika (Greater Katanga).
The Australians owned 60%, COMINIERE 25% and DATHOMIR 15%, according to the agreement signed AVZ Minerals was to provide the financial and material means for the feasibility study of the project.
A few years after the certification of the lithium deposit by AVZ Minerals, following some disputes denounced by COMINIERE in the management of the joint venture (DATHCOM), COMINIERE goes to court in DR Congo trying to cancel the DATHCOM joint venture.
However, point 11.1 of the joint venture agreement requires the signatories to try amicably solutions within the framework of the joint venture in the event of a dispute or litigation:
"In the event of any claim, dispute or dispute under or relating to this Agreement, or relating to the negotiation, existence, legal validity, enforceability or termination of this
Agreement (a "Dispute"), the managers, directors or other officers of the Parties entitled to resolve the Dispute, will use all reasonable efforts to resolve such Dispute. To this end, within fifteen (15) days of the written request of one of the Parties to the other Parties, the managers, directors or other officers shall meet and negotiate together, in good faith, a resolution of the Dispute that is fair, equitable and satisfactory to the Parties. »
Having regard to COMINIERE's legal approach, on May 3, 2013 AVZ Minerals went to the International Court of Arbitration of the International Chamber of Commerce (ICC) against COMINIERE, according to the joint venture agreement defined in point 11.1 (b,c,d):
"The Parties fail to reach a settlement of the Dispute within thirty (30) days of the written request referred to above, they agree, by this Agreement, to refer the Dispute to the International Court of Arbitration of the Chamber of Commerce for settlement by arbitration, in accordance with the rules of the International Chamber of Commerce. The Dispute shall be settled by an Arbitral Tribunal composed of three (3) arbitrators who shall be appointed in accordance with the Rules a of the International Chamber of Commerce. The seat of the Arbitral Tribunal shall be Paris, France. »
The decision of the court of the International Chamber of Commerce of Paris dated May 5, 2023, agrees with the AVZ Minerals group, thus prohibiting COMINIERE from dissolving the joint venture.
The Emergency Arbitration Order, dated May 5, 2023, states:
"COMINIERE is prevented from undertaking any action or step, which would result from the implementation of the termination of the DATHCOM JVA, the consequences of such termination, until the final award on the merits of the Arbitration Procedure of the enlarged COMINIERE.
COMINIERE shall comply with Section 11.1 of DATHCOM's JVA (i.e. the obligation to settle any dispute through arbitration proceedings before the ICC) and refrain from bringing any legal action in connection with the DATHCOM cooperation agreement and/or the termination it claims to have made, in the courts of the Democratic Republic of Congo (DRC), until the final award on the merits of COMINIERE's extended arbitration proceedings.
Any violation of the aforementioned orders will be subject to a penalty of 50,000 Euros per day of violation of the agreement and any dispute relating to the liquidation of the penalty will be reserved to the arbitral tribunal in the arbitration procedure of COMINIERE, which will rule on the question of the validity of the termination of the JVA (DATHCOM). »
As a reminder, the reasons for the cancellation of the Operating Permit, No. 13359 by the Minister of Mines, Antoinette Nsamba Kalambayi, were based on the same accusations of COMINIERE.
