The Badondo Iron Project (“Badondo”) is a potentially large-scale iron project in the northwest of the Republic of Congo, situated within a cluster of world-class iron ore exploration projects. Equatorial invested in exploration and project development feasibility assessment at Badondo commencing in 2010 and, following significant exploration success, applied for a Mining Licence in 2016 under the framework of the relevant Mining Code and in compliance with local laws.
The Mayoko-Moussondji Iron Project (“Mayoko-Moussondji”) is located in the southwest region of the Congo and has access to an existing railway line running to the deep-water port of Pointe-Noire. Equatorial invested in exploration and development of Mayoko-Moussondji from 2010 and was granted a 25-year Mining Licence in 2014. Equatorial sold Mayoko-Moussondji in 2015 and retained a 2% royalty on all future production from the project.
Equatorial’s investments in Badondo and Mayoko-Moussondji have been expropriated and subjected to other unlawful measures by the Congo government as part of a wider campaign to dispossess foreign mining companies of their iron ore interests in Congo. Various mining assets in the Congo, including Badondo, Nabeba, previously held by Sundance Resources Limited, and Avima, previously held by Core Mining, have been granted to a Chinese-linked company named Sangha Mining Development SASU with no apparent due process or legal validity.
Equatorial, through its subsidiary, EEPL, has referred its investment dispute with the Congo to arbitration at the ICSID in Washington, DC. EEPL is referring its investment dispute with the Congo to arbitration at ICSID in accordance with Article 7 of the Agreement between the Government of Congo and the Government of the Republic of Mauritius for the Promotion and Reciprocal Protection of Investments (“Congo-Mauritius BIT”), under which EEPL’s investments in Congo are protected by virtue of EEPL being a Mauritian company. The Congo Government’s measures against EEPL’s investments in the Congo Projects violate multiple provisions of the Congo-Mauritius BIT, including (among others) the prohibition against unlawful expropriation and the fair and equitable treatment standard.
The arbitral tribunal that will consider EEPL’s claims was constituted on 26 April 2022. EEPL appointed a prominent United States arbitrator who has significant experience in cases of this nature. Congo appointed a second member of the arbitral tribunal, and the parties jointly appointed the President. In accordance with the procedural calendar for the arbitration, EEPL will present its full case against Congo in the form of a written Statement of Claim supported by evidence.
Equatorial has filed a Memorial of Claim at the ICSID in Washington, D.C. The Memorial of Claim included:
- Factual background to the Congo Projects and the dispute;
- A detailed statement of the legal basis for each claim brought against Congo;
- A number of witness statements; and
- Reports from several independent experts covering the technical aspects and value of the Congo Projects and demonstrating damages ranging from US$394 million to US$1,134 million, depending on the valuation methodology adopted (and not including interest and costs, which are also claimed from Congo).
Congo has until August 2023 to respond to the Memorial of Claim (or until November 2023, if the ICSID tribunal orders that issues of jurisdiction be heard and determined before issues of liability and damages).
Congo’s measures against the Congo Projects violate multiple provisions of the Congo-Mauritius BIT, including (among others) the prohibition against unlawful expropriation and the fair and equitable treatment standard. EEPL is seeking compensation from Congo for these and other treaty violations.