Getma v Guinea: the Conakry port concession disputes

The concession

According to the US Court of Appeals for the D.C. Circuit, Getma won a bid to expand and operate a port in Conakry and signed a 25-year concession agreement with Guinea ³. After a new Guinean president terminated the agreement in December 2010, Getma sought a termination fee ³.

Guinea denied breach and alleged that Getma had bribed the prior administration to win the bid, as the court recorded ³.

The CCJA award and its annulment

The concession arbitration ran under the arbitration rules of the OHADA Common Court of Justice and Arbitration (CCJA) ³. The CCJA fixed the arbitrators' fees at about €61,000 ³. The D.C. Circuit said the arbitrators repeatedly sought about €450,000 and the CCJA refused each time ³.

A few days after the last refusal the tribunal awarded Getma €39 million plus interest ³. The court said Getma later paid the arbitrators €225,000 beyond the set fee ³.

Guinea petitioned the CCJA to annul the award ³. The CCJA, sitting en banc, annulled it and found that the arbitrators breached their duty by deliberately ignoring the mandatory provisions on fees ³. The court noted the CCJA proceedings could be reopened, but Getma did not seek that ³.

Enforcement attempt in the United States

Getma asked the US District Court for the District of Columbia to enforce the annulled award under the New York Convention ³. italaw lists a district court memorandum opinion of 9 June 2016 on the CCJA annulment ². The district court refused enforcement under Article V(1)(e), which allows refusal when a competent authority has set aside the award ³.

The D.C. Circuit affirmed on 7 July 2017 in No. 16-7087 ³. It held that an annulled award can be enforced only if the annulment is repugnant to fundamental US notions of decency and justice ³. It rejected Getma's arguments on the composition of the CCJA, the fee schedule and the CCJA's reading of its own law, and declined to enforce the annulled award ³.

The ICSID case

The ICSID Secretary-General registered the request for arbitration on 3 November 2011 under the Guinea Investment Law of 1987 ¹. The tribunal issued a Decision on Jurisdiction on 29 December 2012 ¹. Guinea's proposal to disqualify Bernardo M. Cremades was declined on 28 June 2012 ¹. The merits hearing was held in Paris from 23 to 25 November 2015 ¹.

The tribunal rendered its award on 16 August 2016, with a dissenting opinion by Mr Cremades ¹. It ruled on the claimants' request for a supplementary decision on 13 December 2016 ¹. italaw records the outcome as in favour of the claimants and lists a further D.C. District Court memorandum opinion dated 10 July 2020 ². The amount awarded is not confirmed in the sources opened for this page ².

Status

The ICSID case page lists the ICSID proceeding as concluded and shows no annulment proceeding ¹. The CCJA award stands annulled, and US courts refused to enforce it ³. No source opened says any award in these disputes has been paid ^1,3.