WASHINGTON, Oct. 11, 2016 /PRNewswire/ -- On October 6, 2016, the Finance Minister of the Republic of Congo (RoC), Calixte Ganongo was served with a subpoena compelling him to appear for a deposition on October 26, 2016 in Washington, D.C. relating to the long-running dispute between Commisimpex and the Republic of Congo. The Minister was served during a visit to Washington, because he is believed (particularly as a former State oil company official) to possess information about the assets of the ROC (the judgment debtor in this case) or that may lead to disclosure of such information.
Service against the Minister is part of Commisimpex's nearly 30 year effort to obtain satisfaction on its various final judgments under U.S. and international law. The subpoena requires the Minister to produce records and appear at a deposition at the offices of White & Case in Washington D.C. to disclose the sources and the location of State assets, and ROC President Sassou Nguesso's family assets, which are well known to be the subject of corrupt practices and transfers.
The service of a discovery request upon the Minister is the third of its kind in recent months undertaken by Commisimpex against state officials of the RoC. Subpoenas were served upon the son of President Nguesso, Denis Christel Nguesso, on September 19, 2016 in Washington, D.C. and upon the Congolese First Lady, Antoinette Sassou Ngueso, in Washington in June of this year. Neither chose to appear to be deposed on the dates prescribed in separate subpoenas or produced any of the documents requested, underscoring the State's ongoing disdain for the rule of law in this case. Individuals who are served subpoenas and do not show up to be deposed, are ordinarily, subjected to further court orders and fines, but they may also be subject to warrants and detention in serious cases.
Commisimpex's legal counsel, Francis A. Vasquez, Jr. commented on this development from Washington, D.C.: "We have given the ROC ample opportunity to resolve this matter. Multiple courts have ruled in our favor and agreed that Congo must pay the debt owed. Efforts like this week's service of a subpoena upon the Minister will continue against anyone believed to have information about the ROC's assets until these judgments are satisfied. We fully expect the Minister to uphold the rule of law by appearing to be deposed and producing the records we have requested and will be prepared to receive him and his counsel on October 26."
Commisimpex undertook major engineering infrastructure contracts with the ROC Government in the 1980s for which it has never been paid. Mr. Mohsen Hojeij and Mr. John Anton Grosso are the British and American partners in Commisimpex respectively. In 2015, two federal courts in Washington, D.C. finalized judgments against the Republic of the Congo, worth over $1 billion. Courts have now ruled in favor of Commisimpex in France, the UK, Belgium, Sweden and the U.S. Two arbitral tribunals formed under the auspices of International Court of Arbitration also ruled in favor of Commisimpex in 2000 and 2013. The Congo has repeatedly attempted to oppose these awards and judgments to no avail. In February 2016, the Congo abandoned its U.S. legal strategy and fired its counsel, facing motion for sanctions for failing to comply with court orders. Commisimpex has moved for sanctions in the United States, and is proceeding with enforcement actions in a number of jurisdictions.
Background Notes on Commisimpex:
The company was registered in the Republic of Congo on July 24, 1980 and at the Department of Trade in the Ministry of Commerce on 9 December 1982. Registration permitted the company to obtain a rating and to engage in contracts within the Republic of Congo. The majority shareholding in Commisimpex rests with British national, Mohsen Hojeij. A significant number of remaining shares are held by American investor, John Anton Grosso. During the 1980s the company was valued at $400 million (equipment and land), was the third largest private company in the Republic of Congo and in Central Africa and the largest private company outside the oil sector. At one point, the Company employed over 5,000 full-time workers and was the country's largest employer outside the oil and gas industry. Between 1983 and 1988 the company entered into contracts with the Government for public sector engineering infrastructure contracts (public works), including Etoumbi-Kunda, an extensive infrastructure and sanitation construction project in the capital. The company was, in less than one month's time, put through a fraudulent liquidation in 2012. Today, the company is still owed over 1 billion (Euros and US dollars) by the Government of the Republic of Congo.
U.S. Court Action:
On 15 May 2013, the company launched a petition in the United States District Court for the District of Columbia to enforce the ICC's 2013 award of €222 million plus interest. On 30 September 2013, a default judgement was entered in favor of the company. The Republic of Congo government attempted to vacate the default judgement as void, pointing to breach of formal procedures of Foreign Sovereign Immunities Act (FSIA) and lack of subject-matter jurisdiction of the court in the USA. On 6 July 2015, this motion was denied. The U.S. District Court acknowledged that Commisimpex followed all legal procedures in demanding its rights, while underscoring the fraudulent and corrupt nature of the Congolese judicial system and the illegal nature of Commisimpex's liquidation by Congolese officials. Specifically, Judge Leon noted that Congo purported to liquidate Commisimpex "under highly questionable and fraudulent proceedings" and went on to call the Congolese court system "well recognized to be corrupt and lack impartiality." Judge Leon further made it clear that the 2013 ICC award is now enforceable in the United States, as "there is no remaining issue that the Company is the real party in interest with standing to enforce the arbitral award."
On 30 July 2015, COMMISIMPEX's 2000 ICC ruling was also domesticated and made enforceable in the U.S. In this ruling Judge Lamberth likewise found that the purported liquidation "was not the product of a full and fair trial, but instead has risen from unfair proceedings that were not likely to secure an impartial administration of justice." As a result of the domestication of both the 2000 and 2013 ICC Awards in the U.S., the company can now proceed (as it can in Europe) with efforts to satisfy both Awards.
Recent French Court Action:
The 2000 ICC Award is final and binding, as a result of an Order form the Paris Court of Appeal on 23 May 2002, which rejected The Republic of Congo's motion to annul the 2000 Award.
The 2013 ICC Award is also final and binding as it was recognized by the Paris Tribunal of First Instance on 13 February 2013. The Republic of Congo's motion to set aside the award and vacate this order was denied, first by the Paris Court of Appeal on 14 October 2014, then by the Court of Cassation on 25 May 2016.
On 16 December 2015, the President of the Paris Tribunal of First Instance, Judge Kurtz, ruled that the purported Congolese liquidation was against French public policy and therefore would not be recognized in France, pointing to the rapid nature of the liquidation in the Congo, the irrational nature of the findings of the liquidation judgment and the close ties of the appointed liquidators with the Congolese government.
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