FG Hemisphere Associates [2010] JRC 195 (27 October 2010)

FG Hemisphere Associates [2010] JRC 195 (27 October 2010)

Gécamines, at the relevant time (19 March 2009), was wholly owned by the DRC and subject to pervasive state control under its constitutional and legislative framework, performing governmental functions in the mining sector. The legislative reforms had not yet altered this reality as of the date of seizure. Therefore, Gécamines was an organ of state of the DRC for the purposes of execution, and its assets in Jersey were available to satisfy the arbitral awards against the DRC.

Citation
[2010] JRC 195
Parties
Representor: Hemisphere; First Respondent: Democratic Republic of Congo (DRC); Second Respondent: Gécamines; Party Cited: GTL
Jurisdiction
Jersey
Judgment Date
27 October 2010
Procedural Posture
Representation (civil Enforcement of Arbitral Awards) / Judgment After Inter Partes Hearing Reviewing Ex Parte Orders
Outcome
Judgment for Hemisphere
Legal Topics
State Immunity, Enforcement of Foreign Arbitral Awards, Corporate Personality, Execution of Judgments, Public Enterprises, Sovereign Debt
International Law Commercial Law Arbitration Civil Procedure State Immunity Enforcement of Foreign Arbitral Awards Corporate Personality Execution of Judgments +2 more

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Parties

Hemisphere

Representor

Democratic Republic of Congo (DRC)

First Respondent

Gécamines

Second Respondent

GTL

Party Cited

Procedural Posture

Representation (civil Enforcement of Arbitral Awards) / Judgment After Inter Partes Hearing Reviewing Ex Parte Orders

Legal Issues

  1. 1 Whether Gécamines is an organ of state of the DRC for the purposes of execution against its assets
  2. 2 Whether execution can be levied against Gécamines' assets in Jersey to satisfy arbitral awards against the DRC
  3. 3 Whether the situs of debts owed to Gécamines is Jersey and thus amenable to execution

Ratio Decidendi

Gécamines, at the relevant time (19 March 2009), was wholly owned by the DRC and subject to pervasive state control under its constitutional and legislative framework, performing governmental functions in the mining sector. The legislative reforms had not yet altered this reality as of the date of seizure. Therefore, Gécamines was an organ of state of the DRC for the purposes of execution, and its assets in Jersey were available to satisfy the arbitral awards against the DRC.

Court Disposition

Judgment for Hemisphere

Orders

  • Leave granted to Hemisphere to enforce the ICC arbitration awards as judgments against the DRC and Gécamines in Jersey.
  • Execution permitted against the shares in GTL and the Slag Sales Payments held or controlled by GTL, as assets of Gécamines (and thus the DRC).