English High Court continues restraint against Djibouti Port Company over shares in Joint Venture (23.09.2018)

Court extends Order to prohibit interference with DP World’s right to manage Doraleh Container Terminal S.A. (“DCT”).

DUBAI, United Arab Emirates, September 23, 2018 – The High Court of England and Wales in London has continued the injunction first made on 31 August 2018, prohibiting the Government of Djibouti’s port company, Port de Djibouti S.A. (“PDSA”) from interfering with the management of the joint venture company, Doraleh Container Terminal S.A. (“DCT”).

On 31 August, the Court issued a without notice injunction against PDSA, as shareholder in DCT, prohibiting the following actions:

  • It shall not act as if the joint venture agreement with DP World has been terminated
  • It shall not appoint new directors or remove DP World’s nominated directors without its consent
  • It shall not cause the DCT joint venture company to act on “Reserved Matters” (being matters contractually reserved to DP World) without DP World’s consent.
  • It shall not instruct or cause DCT to give instructions to Standard Chartered Bank in London to transfer funds to Djibouti.

Following a hearing on 14 September 2018, at which PDSA failed to appear despite being notified, the Court ordered that the injunction will continue until it makes a further order or an award of the arbitration tribunal at the London Court of International Arbitration (“LCIA”) that will be formed imminently to consider the shareholding dispute with DP World.

On DP World’s application, the Court also extended the injunction to include any ‘affiliate’ of PDSA.  Under the JV Agreement, PDSA’s affiliates include the Government.  The decision follows the enactment of an “emergency” ordinance by the President of Djibouti on 9 September.  This ordinance purported to transfer PDSA’s shares in DCT to the Government of Djibouti.

PDSA is 23.5% owned by China Merchants Port Holdings Company Ltd of Hong Kong (“China Merchants”).

The Court further ordered that PDSA must ensure that any transferee of DCT shares is legally bound by the Joint Venture Agreement and Articles of Association in the same way as PDSA.  The ruling means neither the Government nor PDSA can control DCT or give valid instructions to third parties on behalf of DCT without DP World’s consent.

DP World confirmed last week it will continue to pursue all legal means to defend its rights as shareholder and concessionaire in the Doraleh Container Terminal in the face of the Government’s blatant disregard for the rule of law and respect for binding commercial contracts.

A DP World spokesperson, said: “This is yet another in a series of rulings – all in favour of DP World – that demonstrate Djibouti’s continuing disregard for the rule of law. We underline our belief that companies intending to operate in such a country or already operating there need to seriously consider their dealings with this Government in the face of such behaviour.”

The 2006 Concession Agreement that the Government awarded to DP World is governed by English law.  It provides that all disputes relating to the Agreement are to be resolved through binding arbitration at the LCIA with two such LCIA proceedings already completed.

In the first proceeding, the Government filed an arbitration against DP World seeking to rescind the Concession Agreement, claiming its terms were unfair to the Government and were procured through bribery.  The LCIA tribunal (comprising Sir Richard Aikens, Lord Hoffmann, Peter Leaver QC) ruled against the Government, finding the terms were fair and there was no bribery.  Certain counterclaims raised by DCT and DP World in relation to DP World’s exclusive right to container handling facilities in Djibouti remain to be decided by the Tribunal.

In a separate proceeding, another LCIA Tribunal (comprising Professor Zachary Douglas QC) held that the 2006 Concession Agreement was valid notwithstanding the Government’s attempts to terminate it through special legislation and decrees.  DP World’s claims for damages against the Government will now be determined in these proceedings.

To date, the Government has not made any offer to compensate DP World.

Joint United Nations Hybrid Mission in Darfur (UNAMID) – Humanitarian Country Team (HCT) team deployed to assist families affected by mudslides in East Jebel Marra (20.09.2018)

Today, a joint team comprising United Nations Hybrid Mission in Darfur (UNAMID) civilian staff and the Humanitarian Country Team, as well as 70 peacekeepers, including 30 Special Forces and six doctors, reached the affected area.

EL FASHER, Sudan, September 20, 2018 – The African Union – United Nations Hybrid Mission in Darfur (UNAMID) and the Humanitarian Country Team (HCT), have deployed a joint mission to provide emergency assistance to people affected by mudslides in East Jebel Marra, South Darfur.

Heavy rains in the area last week caused mudslides in Wadi Tuliba and Tagulei villages, resulting in the reported deaths of at least 19 people and the injury of 25 others, while an unspecified number remain unaccounted for and some families have lost their homes, according to official local sources.

Today, a joint team comprising UNAMID civilian staff and the Humanitarian Country Team, as well as 70 peacekeepers, including 30 Special Forces and six doctors, reached the affected area.

The team will conduct an assessment of the humanitarian situation and provide medical assistance, as well as non-food items such as tents and plastic sheets for shelter, kitchen sets, blankets and mosquito nets to the affected community.

UNAMID Joint Special Representative (JSR), Jeremiah Mamabolo and the UN Resident Coordinator and Humanitarian Coordinator, Gwi-Yeop Son expressed their deepest condolences to the families who lost loved ones during the disaster and pledged to assist the survivors within their organizations’ limited resources.

African Union: On the Italian Deputy Prime Minister Comments on African Migrants (18.09.2018)

UNMISS condemns attack on peacekeeping convoy in South Sudan (15.09.2018)

SSUF: Statement on the recently signed South Sudan Peace Accord (14.09.2018)

SSOA: The Revitalized Peace Agreement is Unsustainable for South Sudan (13.09.2018)

Somalia’s destiny lies in the hands of the people, highlights outgoing UN envoy (14.09.2018)

Despite remarkable achievements in Somalia in the recent past, structural challenges remain and continue to undermine the country’s security and political stability, the United Nations envoy for the country has warned.

DAKAR, Senegal, September 14, 2018 – Briefing the Security Council for the last time in his capacity as UN Special Representative for Somalia, Michael Keating called on all Somalis to draw strength from the positive transformations going on inside the country and work collectively for the common good.

“The future of Somalia is in the hands of the Somalis,” he declared.

In particular, Mr. Keating – who also heads the UN Assistance Mission in Somalia (UNSOM) – urged unity among political leaders.

“The more [they] show unity, the greater the opportunity, and the responsibility, of international partners to invest in all parts of the country and its leadership,” he said.

In his remarks, Mr. Keating highlighted four key concerns the country’s leaders need to address, and issues that the international community should keep focusing on.

These include the threat posed by the Al Shabaab and other extremist groups; the risk of political differences overshadowing progress in legislative, reform and security areas; fragmentation within the international community; and the danger of a humanitarian “catastrophe”, especially with most of the population already living in precarious circumstances due to climate change and other vulnerabilities.

“Future crises will result from the combination of climate related shocks; armed conflict provoked by Al Shabaab and unresolved grievances; competition over natural resources; and systemic marginalization of certain groups,” warned Mr. Keating. He underscored the need to reduce the vulnerability faced by ordinary Somalis, through job creation and smart investments that safeguard natural resources and help unlock the enormous economic potential of the country.

Besides political will, Mr. Keating underscored, success will depend on leaders from the political, business and traditional spheres “working together for the common good, leveraging the country’s potential wealth to transform prospects for people – especially the young.”

On 1 October, Nicholas Haysom will replace Mr. Keating as the Special Representative of the Secretary-General for Somalia and the head of UNSOM. Mr. Keating was appointed the top UN official in the Horn of Africa nation in November 2015.

Women have brought ‘important voices’ to Somali politics

Alongside Mr. Keating, Phumzile Mlambo-Ngcuka, the Executive Director of the UN gender equality and empowerment agency for women and girls (UN Women) highlighted the “once-in-a-generation opportunity” that Somalia currently has to establish lasting peace, and gender equality.

She commended the nation for improving representation of women in public office, illustrated by the “jump” in women’s representation in parliamentary elections from 14 to nearly 25 per cent of seats in the most recent elections.

This progress, she underscored, has brought many “important voices” to Somali politics.

She said it had brought to the centre “the fight to end child marriage, end female genital mutilation (FGM), and change laws that discriminate against women,” noting that the participation of women will be further boosted if more leaders, especially clan leaders, embrace gender equality and support women.

She also called on the international community and the Security Council to support Somalia’s federal and provincial authorities, advance gender equality, act strongly against sexual and gender-based violence, advocate for meaningful participation and recognition of women in all sectors, and support women’s groups in the country.

“Women’s organizations in Somalia are organized. They are dedicated to their country: they are activists, advocates, entrepreneurs, professionals, and patriots,” said Ms. Mlambo-Ngcuka, noting that as the country prepares to confront the challenges in the days ahead, “women will make the difference.”

The Chairperson of the Commission welcomes the signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (13.09.2018)

Troika Statement on the South Sudan Peace Talks (12.09.2018)

DP World: We will continue to pursue all legal means to defend our rights as shareholder and concessionaire in Doraleh Container Terminal (12.09.2018)

Investors across the world must think twice about investing in Djibouti.

DUBAI, United Arab Emirates, September 12, 2018 – DP World (http://web.dpworld.com) said today that it will continue to pursue all legal means to defend its rights as a shareholder and concessionaire in Doraleh Container Terminal SA (DCT) in the face of Djibouti’s blatant disregard for the rule of law and respect for commercial contracts.

On 9 September the President of Djibouti enacted a decree which purportedly transferred the shareholding of Port de Djibouti SA (PDSA) in Doraleh Container Terminal SA (DCT) to the Government of Djibouti. PDSA is 23.5% owned by China Merchants Port Holdings Company Ltd of Hong Kong (“China Merchants”).

DP World said the transfer appears to have been made in an attempt to flout an injunction of the English High Court which restrains PDSA from using its shareholding to take control of DCT. This is the latest step in the Government of Djibouti’s five-year campaign to take the 2006 Concession Agreement away from DCT, through which DP World operated, and part owns the Doraleh Container Terminal.

“Investors across the world must think twice about investing in Djibouti and reassess any agreements they may have with a government that has no respect for legal agreements and changes them at will without agreement or consent,” a DP World spokesperson said.

On 31 August, the High Court of England & Wales issued an injunction against PDSA, as shareholder in DCT, ordering that it:

  • Shall not act as if the joint venture agreement with DP World has been terminated
  • Shall not appoint new directors or remove DP World’s nominated directors without its consent
  • Shall not cause the DCT joint venture company to act on the “Reserved Matters” without DP World’s consent.
  • Shall not instruct or cause DCT to give instructions to Standard Chartered Bank in London to transfer funds to Djibouti.

In an apparent attempt to circumvent the injunction, on 9 September 2018, the Government of Djibouti transferred PDSA’s shares in DCT to itself. The new decree was accompanied by a press release replete with untrue statements. It also refers to DP World being paid fair compensation in accordance with international law.

The 2006 Concession Agreement, which is governed by English law, provides that disputes relating to the Agreement are to be resolved through binding arbitration in the London Court of International Arbitration. Such arbitration proceedings are ongoing. To date the Government has not made any offer to compensate DP World.