On June 26, 2013, President of the Democratic Republic of Congo (the "DRC") Joseph Kabila promulgated Law No. 13/023 authorizing the State’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention" or the "Convention"). This followed adoption of the law by the DRC’s legislative bodies. Upon signature of the Convention, the DRC will become the 150th member State, reinforcing the global reach of this foundational treaty previously described as "the cornerstone of international commercial dispute resolution." While this long-awaited step reinforces recent efforts by the DRC to establish a more stable and attractive climate for foreign investment, certain reservations made by the DRC in its accession to the Convention reflect the challenges that foreign companies may still face in seeking to participate in the development of the DRC’s economy, including its natural resources sector.
The DRC’s accession to the Convention was first publicly contemplated in March 2011 and follows on other recent efforts by the Kabila administration to improve the country’s business climate. In 2012, the DRC acceded to the Organization for the Harmonisation of Business Law in Africa ("OHADA"), a pan-African organization created by treaty in 1993 that now comprises 17 mostly Francophone sub-Saharan States. Following ratification of the Treaty on the Harmonisation of Business Law in Africa ("OHADA Treaty"), OHADA member States are required to adopt and implement a number of Uniform Laws in the areas of commercial, corporate, insolvency, and arbitration law. In particular, following the DRC’s accession to OHADA, it was required to adopt and implement the Uniform Act on Arbitration ("UAA"), which is based on the UNCITRAL Model Law and provides for the recognition and enforcement of arbitral awards rendered in OHADA member States.
The DRC’s accession to the Convention thus builds upon the groundwork laid by its accession to OHADA and adoption of the UAA, but it extends the recognition and enforcement of foreign arbitral awards beyond the OHADA regional membership to awards rendered in most jurisdictions throughout the world. While Law No. 13/023 has not yet been published in the DRC’s official gazette, the Journal Officiel de la République Democratique du Congo, early commentaries indicate that the DRC has made two unusual reservations not expressly authorized by the Convention that raise concerns as to the DRC’s implementation of the Convention.
It is our understanding that the DRC’s accession to the Convention is subject to a total of four reservations. The first two reservations—that it will apply the Convention only on the basis of reciprocity to awards made in other member States and that the dispute must be considered "commercial" under the national law of the DRC—are uncontroversial and expressly provided for by Article I(3) of the Convention.
However, the DRC has made two other reservations that are not expressly authorized by the Convention. The first is that only arbitral awards made after the DRC’s accession to the Convention may be enforced in the DRC. While the Convention does not mandate retroactive application, interpretative commentaries and the drafting history of the Convention suggest that retroactivity was intended:
It may be suggested that this issue which is of particular importance to newly adhering States be clarified in the legislation implementing the 1958 Convention. As to the substance of such provision, a solution in favour of retroactivity seems recommendable in view of the basically procedural nature of the Convention and also in view of the fact that the Diplomatic Conference on the 1958 Convention rejected a proposal to make the Convention applicable only to awards made after its entry into force.
More problematic still is the final reservation made by the DRC, which again is not expressly authorized by the Convention: that the Convention does not apply to disputes related to immovable property situated in the territory of the DRC or rights related to such property, as defined under national law. As commentators have observed, this reservation could potentially exclude arbitral awards concerning the disposition of mining rights from enforcement under the Convention in the DRC, as mining rights are characterized as immovable property under DRC law.
The immovable property reservation, while not unprecedented in State practice, may provide cause for substantial concern due to the outsized influence of mining activity on the DRC’s economy. Recent figures suggest that the natural resources sector, and particularly mining, accounts for around 15 percent of the DRC’s annual gross domestic product, as well as the overwhelming majority of its export earnings. With mineral reserves estimated by some accounts at nearly US$24 trillion, the immovable property exception may remove from the scope of the Convention those foreign arbitral awards that are most likely to be of economic significance in the DRC.
The immovable property reservation, if applicable to arbitral awards dealing with mining rights or other mining assets, presents foreign mining companies with activities in the DRC with three potential options in the event that they win an arbitral award against a DRC party:
- The parties may select the DRC as the place of arbitration, and the foreign award creditor may seek confirmation and enforcement of the arbitral award in the DRC under the UAA.
- The parties may select another OHADA jurisdiction as the place of arbitration, and the award creditor may seek recognition and enforcement of the arbitral award in the DRC under the UAA, which does not appear to be subject to the immovable property reservation.
- The parties may select a non-OHADA jurisdiction as the place of arbitration, and the award creditor may seek recognition and enforcement of the arbitral award in any jurisdiction where the DRC party has assets, other than the DRC itself.
Each of these options may entail considerable risk for the foreign mining company, however. The first and second scenarios each present what is likely an unacceptable place of arbitration for the foreign company, and there may be a substantial risk of legal or political intervention by local authorities either during the arbitration proceeding itself or at the enforcement stage. The third scenario permits the parties to choose a neutral and mutually acceptable place of arbitration but raises the risk that the foreign party will not be able to locate assets of the award debtor to enforce against outside the DRC.
Foreign companies considering doing business in the DRC should be aware that the country’s accession to the Convention reflects its lingering indeterminacy as to whether it is ready to foster a stable and predictable framework for the promotion and protection of foreign investment, particularly in circumstances where the neutral application of law may adversely affect vested local interests. In particular, foreign mining companies should not anticipate that they will be able to enforce arbitral awards against assets located in the DRC, and they may need to rely on other measures to hedge against the risk of an unenforceable award.