Ruling by London Tribunal Says Djibouti Acted Illegally
DP World has won a further legal hearing against the Government of Djibouti over the Doraleh Container Terminal lease it terminated in 2018. A Tribunal of the London Court of International Arbitration ordered Djibouti to restore the rights and benefits under the 2006 Concession Agreement to DP World and Doraleh Container Terminal SA within two months, or pay damages.
An independent expert has estimated the losses to DP World at more than $1 billion. The ruling by the Tribunal said Djibouti had acted illegally when it forcibly removed DP World from management of the terminal in February 2018, claimed it had terminated the Concession Agreement and transferred the Terminal assets to a state-owned entity.
The latest tribunal ruling is the sixth substantive ruling in DP World’s favor in the London Court of International Arbitration and the High Court of England and Wales. To date, all have been ignored by Djibouti despite the original contract for the concession being written under and governed by English law.
The Doraleh Container Terminal is the largest employer and biggest source of revenue in the country and has operated at a profit every year since it opened. The Doraleh Container Terminal was found by an English court to have been a “great success” for Djibouti under DP World’s management.
DP World now awaits proposals from Djibouti about how it intends to comply with the latest legal ruling. If Djibouti does not comply with the ruling, the Tribunal has stated it will proceed to issue an award of damages.
The Republic of Djibouti has issued a statement saying the ruling comes as no surprise. “It is merely the outcome of the iniquitous provisions of the concession, which could force a sovereign State to set aside and disregard its own national law, in order to revive a concession that was terminated on the grounds of the higher interest of the Djiboutian nation, and for the exclusive benefit of a foreign-owned company.
“Under no circumstances can the Republic of Djibouti accept such a ruling, which was handed down in an arbitration in which it did not take part and which flouts the rules of international law. These rules allow a sovereign State to terminate any contract for reasons of higher national interest subject to the payment of fair compensation.”
The Republic of Djibouti has reasserted its position, saying:
• The termination of the Concession Agreement for the Doraleh Container Terminal, awarded in 2006 to DCT (Doraleh Container Terminal), a joint venture between the Djibouti International Port Authority and DP World, was decided in the context of a legal framework that had previously been adopted by the Djiboutian parliament on November 8, 2017.
• DP World's operation of the terminal had proved to be contrary to the fundamental interests of the nation. Its continuation would have seriously harmed Djibouti's economic and social priorities by placing unacceptable restrictions on its development policy and giving a foreign-owned company total control over one of its most strategic infrastructure.
• The Doraleh container terminal had not been operated to its full potential by DCT in order, obviously, to protect DP World's operations in Dubai. Since the concession ended, the port's activity has increased by 30 percent.
• Despite several attempts to renegotiate the concession, initiated by the government in accordance with Djiboutian law, DP World persistently refused to consider the government's legitimate demands to redress an inherently asymmetrical relationship in order to allow its citizens to enjoy the benefits of the efficient operation of the terminal.
• Rather than comply with Djiboutian law and accept the Government's proposals (at both the contract renegotiation and post-termination compensation stages), the DP World group preferred to initiate a full-scale judicial and media battle against the Republic of Djibouti and its partners.
• To this end, DP World had no qualms about using DCT, of which it is only a minority shareholder, to serve its own interests and to disrespect, unscrupulously, the decisions handed down by the Djiboutian courts in strict compliance with the adversarial principle. These courts appointed a provisional administrator in place of DCT's corporate bodies and annulled the resolution of the Board of Directors which, under pressure applied by DP World, authorised DCT to initiate the arbitration procedure whose decisions today have been obtained on the basis of the DP World’ unilateral actions.
• In any case, the concession contract has been terminated, a public enterprise specifically created for this purpose now manages this infrastructure, and there can obviously be no question of imposing any contracting party on a sovereign State, especially in order to operate its strategic infrastructure.
• As the Republic of Djibouti has consistently indicated since the termination of the concession, the only possible outcome is allocation of fair compensation in accordance with international law. The State of Djibouti remains, as it has done so from the outset of this process, willing to negotiate the terms of a mutually satisfactory solution, but cannot accept arbitrary “convictions” that disregard the interests of the country and so-called “independent” expertise that can in no way serve as a financial “basis” for an agreement between the parties.