Global Arbitration

Le cabinet Fischer Tandeau de Marsac Sur & Associés dont l’associé Cédric Fischer a une expérience reconnue en matière d’arbitrage international, conseille la société Getma International (groupe Necotrans) dans le conflit qui l’oppose à l’Etat de Guinée. Le magazine "Glogal Arbitration Review" a récemment consacré un article à ce dossier.

ICSID instruction for Portuguese firm

Thursday, 10 November 2011

For the first time, a Portuguese law firm will advise a party in an ICSID dispute, as co-counsel to a port management company in its claim against the French-speaking Republic of Guinea.

Lisbon-based PLMJ will advise Getma International - a subsidiary of French group NCT Necotrans - along with French firm Fischer Tandeau de Marsac Sur & Associés (FTMS).

“We think that this is an important step for the Portuguese arbitration community in general and for the PLMJ international arbitration practice in particular,” José Miguel Júdice tells GAR. “This shows that Portuguese practitioners can be appointed at an international level.”

The firms were instructed earlier this year after Guinea’s president, Alpha Condé, annulled Getma’s 25 year concession to develop and operate the country’s main port in its capital city Conakry – part of a network of ports managed by the company along the coast of west Africa.

Condé reportedly withdrew the concession in March, citing Getma’s failure to “meet its obligations”, and awarded it instead to Bolloré Africa Logistics. Condé was elected last December after over 50 years of military rule in the country and has said that he plans to review all contracts that are “not beneficial” to the country.

Getma says that Condé’s move was an expropriation, performed through an “acte de puissance publique” without any mention of public interest or offer of compensation. The company says Guinea has breached its own investment code, which will form the grounds of its ICSID claim. No reliance is placed on an investment treaty but Getma says the code contains the usual standards of protection found in a BIT.

Getma submitted the claim to ICSID last September. According to Júdice, it chose PLMJ and FTMS to represent it after a “beauty parade” of international arbitration practices.

He believes PLMJ was selected primarily because the firm has worked with Necotrans in other non-ICSID arbitrations related to Portuguese-speaking countries. His own experience of investment cases - he was recently appointed to the ICSID roster of arbitrators and as president of an UNCITRAL panel - may also be relevant, along with that of his partner Tiago Duarte, who is writing a book on ICSID at Cambridge University.

FTMS also works with Necotrans on a regular basis and has lawyers with a strong knowledge of international African treaties that constitute part of Guinean law. Partner Cédric Fischer has extensive experience as counsel in international arbitrations.

Júdice speculated to GAR that the dearth of Portuguese lawyers in ICSID arbitrations is probably because few if any investors from the country have filed claims and because Portugal itself has never been a respondent in an ICSID case. The absence of other Portuguese-speaking countries, such as Brazil and Angola, from the Washington Convention, is also likely to be a contributing factor.

“Nevertheless, we think that this case with Guinea might be a starting point,” says Júdice. “Cape Verde, which is a former Portuguese colony, ratified the ICSID convention some months ago and the discussion in Brazil about ICSID has not been concluded. We think that Portuguese investors are becoming more aware of the advantages of ICSID arbitration and this case may give more visibility to ICSID in Portugal.”

Guinea is represented by Pascal Agboyibor and Laurent Jaeger of Orrick Rambaud Martel in Paris, assisted by Mamadou Traoré in Conakry.

Getma International and others v République de Guinée (ICSID Case No. ARB/11/29)

Counsel to Getma International

PLMJ AM Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados
Partners José-Miguel Júdice and Tiago Duarte in Lisbon

Fischer, Tandeau de Marsac, Sur & Associés
Partners Cédric Fischer and Elisabeth Mahé in Paris

Council to the Republic of Guinea

Orrick Rambaud Martel
Partners Laurent Jaeger and Pascal Agboyibor in Paris and Mamadou Traoré in Conakry
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