1989

ICSID

Maritime International Nominees Establishment v Guinea MINE 4 ICSID 54 Guinea v MINE (Belgium, Antwerp, 1st instance) 1985 Guinea v MINE (Swiss Federal Tribunal) 1985

1963 Guinea entered a Join Venture Agreement with Harvey Aluminium to exploit deposits of bauxite, article 9 of the Agreement gave Guinea the right to transport 50% of the bauxite. Harvey sold its rights to other western companies, the Bauxite Receivers 1971 MINE, Liechtenstein corporation, entered into 30-year agreement with Guinea to establish SOTRAMAR, combining Guinea’s article 9 and international expertise to create Guinea Merchant Navy. 1972 Guinea informed MINE that it abandoned the objective of creating the Navy through the long contract of affreightment and asked MINE to negotiate short-term contracts of affreightment with the Bauxite Receivers. 1973 MINE & Guinea, on behalf of SOTRAMAR reached agreement with the Bauxite Receivers to transport the Bauxite, however Guinea failed to give SOTROMAR authority to conclude contracts. 1974 MINE became aware that Guinea was secretly negotiating with 3rd parties for the sale of art 9 and informed Guinea of the existence of a dispute under the agreement. In a ‘conciliation meeting’ MINE asked Guinea about the rumoured negotiations, Guinea response was non-committal. 1974 Guinea conclude a two-year agreement with AFROBULK, European shipping consortium, by which had transferred art 9 freight rights. 1975 MINE withdrew the capital contribution to SOTRAMAR and parties concluded an agreement to submit the dispute to ICSID arbitration. Since Liechtenstein is not an ICSID party the dispute was not referred. Instead MINE asked Guinea to execute a revised consent to arbitrate but Guinea never replied. 1978 MINE commenced proceedings in the US District of Columbia to compel arbitration before the American Arbitration Association. Despite having been served notice of the proceedings Guinea did not appear 1980 AAA rendered $27 million as award. MINE asked the same court to enforce the award, Guinea contested, and in appeal the enforcement was denied. 1984 MINE initiated proceedings in ICSID 1985 MINE commenced attachment proceedings in relation to the AAA award in the courts of Switzerland and Belgium. 1985 Guinea requested a provisional measures order from ICSID tribunal directing MINE to dissolve all pending attachment of Guinea’s assets, since it was contrary to art 26 ICSID (exclusion of other remedies), ICSID considered the proceedings as ‘other remedies’ and prohibited them. After a while MINE complied with the recommendations

Belgium: Parties had consented to ICSID arbitration and an ICSID tribunal had declared itself competent to hear the case. Art 26 of ICSID precludes any other remedy, so an ICSID tribunal’s competence is exclusive and precluded the intervention of the national court of any State that is a Party to the Convention. Since Belgium is a party to the convention, attachment proceedings were a remedy within the meaning of art 26 ICSID, and the court was not competent to hear the case. Accordingly the attachments made against Guinea’s assets should be lifted Switzerland: The competent authority observes that in resorting to ICSID arbitration proceedings MINE waived the ability to request provisional measures against the Republic of Guinea in Switzerland. Therefore MINE is committing a manifest abuse of law in invoking these ICSID proceedings to attempt to obtain the maintenance of an attachment, which is the typical provisional measure ICSID 1988. Guinea counterclaims for legal expenses that it incurred in order to obtain the release of the attachments which resulted from MINE non-compliance with the tribunal recommendation. The tribunal considers that MINE’s actions were contrary to the exclusive jurisdiction granted ICSID in this proceedings … the tribunal awards Guinea the sum of $210,000 towards its cost and legal fees relating to the attachment proceedings in Belgium and Switzerland