Modupe Gbadeyanka
By Modupe Gbadeyanka
The government of Djibouti and a company known as DP World are arguing over a ruling by the London Court of International Arbitration on the cancellation of the Doraleh Container Terminal contract between both parties.
The court had ruled in favour of the firm, but the government of Djibouti released a statement on Friday that it “does not recognise the international rule of law.”
According to the statement issued by the government, the deal was terminated in the interest of the country.
Business Post reports that on February 22, 2018, Djibouti terminated the concession for the Doraleh container terminal, awarded in 2006 to Doraleh Container Terminal (DCT), a company controlled de facto by the minority shareholder DP World.
It was claimed by Djibouti that implementation of the concession contract had proved to be contrary to the fundamental interests of the country, noting that the continuation of the concession contract was seriously prejudicial to the its development imperatives and to the control of its most strategic infrastructure.
According to the government, several attempts to renegotiate the concession with DP World were unsuccessful because of the firm’s repeated refusal to hear the legitimate objections and requests of the Djiboutian State.
“This termination, which was therefore necessary and unavoidable, is made in accordance with international public law which recognizes the ability of a sovereign state to unilaterally terminate a contract on public interest grounds, subject to payment of fair compensation to the other party. The termination was decided in the context of a transparent procedure. It finds its legal basis in a law enacted by the Djiboutian Parliament on November 8, 2017, aimed at protecting the fundamental interests of the Nation, completed by a decree dated February 22, 2018,” the statement said.
“DCT, at DP World’s request, nevertheless decided to oppose it and initiated arbitration proceedings before the LCIA (London Court of International Arbitration) with the aim, publicly announced by DP World, of resuming as soon as possible its rights on the concession and thus the operation of the Doraleh container terminal.
“Logically, the Republic of Djibouti did not participate in this procedure, considering that LCIA would only judge this dispute on the basis of the terms of a contract contrary to Djibouti’s fundamental interests.
“On 31 July 2018, the sole arbitrator appointed under the aegis of LCIA rendered a partial arbitral award, which the Government of the Republic of Djibouti has become aware of.
“The sole arbitrator has concluded that the concession contract could not be terminated by the Government of the Republic of Djibouti under the law passed by the Djiboutian Parliament on November 8, 2017 and considered that the contract was still in force.
“The Republic of Djibouti does not recognize this arbitral award which consists in qualifying the law of a sovereign State as illegal.
“Indeed, the arbitral award seems to consider that the terms of the concession contract entered into between the Port of Djibouti and DCT, are above Djiboutian law. It disregards the sovereignty of the Republic of Djibouti and takes no account of public international law rules.
“Following the arbitral award’s reasoning, it is also understood that a sovereign State would not have the right to terminate a contract the implementation and performance of which is considered contrary to its fundamental interests, but would however authorize the other party to it (DP World) to terminate the said contract to protect its commercial interests…
“In other words, a contract would have a higher value than a law adopted in the name of a sovereign nation.
“Moreover and in any case, DP World’s approach which consists in trying to oppose the will of a sovereign State is unrealistic and doomed to failure. The concession contract has been terminated, the staff and assets of the concession were transferred to a public company specifically created for this purpose and which now manages this infrastructure.
“That is why, in this case, only an outcome consisting in the payment of a fair compensation in accordance with the principles of international law can be envisaged, the statement by Djibouti said.
But reacting on Saturday, DP World said the court’s decision upholding the continuing validity of the concession was based on recognised principles of international law and is internationally binding both on the Djibouti government and so far as third parties are concerned.
“As the Court has held, Djibouti does not have sovereignty over a contract governed by English law. It is well established that, in the absence of an express term to that effect, an English law contract cannot be unilaterally terminated at will. The contract therefore remains in full force and effect,” a statement issued by DP World stated.
The company noted that, “The Djibouti government’s repeated statements that the port concession has proved contrary to the fundamental interests of the Republic of Djibouti do not bear scrutiny.
“As the court’s decision records, the government’s own representatives have given evidence that the port has been ‘a great success for Djibouti’. The terms of the concession have also been held in two previous cases brought by the government itself to have been ‘even handed and fair’.
“In light of that indisputable success, and the fair and reasonable terms of the concession, the government’s attempts to terminate it cannot have anything to do with the fundamental interests of the people of Djibouti.”
