الحكومة تعوض الشركة الفلبينية ملايين الدولارات عن الميناء الجنوبى

Quote: The Commercial Court in London has granted summary judgment upholding part of a €279 million claim against Sudan relating to a cancelled port concession, finding there was no apparent basis for a stay in favour of arbitration. In a judgment today, Mrs Justice Moulder said there was no realistic prospect of Sudan successfully defending a claim by an Emirati subsidiary of Manila-based port management group International Container Terminal Services Inc (ICTSI) for a refund of €188 million. However, she said the company's claim for an additional €91 million should be determined at trial. HFW represents ICTSI in the case. Sudan initially retained Peter Dovey and Co Solicitors but later failed to participate in the proceedings. ICTSI was awarded a concession in late 2018 to operate the terminal at Port Sudan via a Sudanese subsidiary. The concession required the company to make an upfront payment to the state. It paid a first instalment of €410 million, subject to an indemnity from Sudan in the form of a refund bond – whereby the state agreed to refund the money if the company was unable to take over the terminal by the agreed date of February 2019. No handover of the terminal ever occurred. A popular uprising began in Sudan in late 2018, leading to the removal of President Omar al-Bashir from office in April the following year. The military council that took charge of the country declared the concession cancelled. After ICTSI demanded repayment, Sudan paid a total of €222 million to ICTSI in two instalments in 2019. The company sued in England to recover the remaining principal of €188 million as well as €91 million to cover its costs of funding. In February, the court agreed to Sudan’s request to adjourn proceedings for three months and ordered the state to pay €7 million into court, which it failed to do. Sudan did not attend later hearings, its solicitors having come off the record in March, and failed to challenge the court’s jurisdiction or raise any defences to the claim. The judge was satisfied that the claim had been validly served on Sudan and that the state had “ample opportunity” to participate. She was also satisfied the court had jurisdiction, noting that the refund bond contained an express provision for English law and the English courts. While there was correspondence from February indicating that Sudan “wanted to go to arbitration”, the judge said there was “no apparent basis for a stay in favour of arbitration”. Mrs Justice Moulder noted that the concession agreement between ICTSI and Sudan’s Sea Ports Corporation provides for arbitration but that Sudan was not a party to this contract and the jurisdictional clause in the bond was clear. There was “no realistic defence” based on the arbitration clause, she said. While the judge said there was no realistic prospect of Sudan successfully defending the claim for the outstanding principal amount of €188 million, she said there was a real prospect Sudan could establish at trial that ICTSI had not made a valid demand for its costs of funding. The judge said Sudan might also succeed on a defence that the costs were a “penalty” and should be cut down. The claim for costs of funding should therefore be determined at trial, she said. Mrs Justice Moulder noted that ICTSI had provided no details as to its actual funding costs. The costs it had claimed over a 26-month period equated to an interest rate of 10.24% and this sum had accrued without regard to any reduction for the partial payments Sudan had made in respect of the principal. She said the interest rate should be 2% per annum on the outstanding principal amount. Sudan has been governed since August 2019 by a transitional regime made up of ministers from the previous regime and those from a pro-democracy background. A peace deal was brokered in October 2020 and a new cabinet was appointed in February 2021 with additional ministers from rebel groups. In the Commercial Court in London Mrs Justice Moulder ICTSI Middle East DMCC v The Government of the Republic of Sudan Counsel to ICTSI Rajesh Pillai QC of 3VB Holman Fenwick Willan LLP Partner Andrew Williams in London Counsel to Sudan Did not appear and was not represented. Previously used Peter Dovey and Co Solicitors in London

Quote: an Emirati subsidiary of Manila-based port management group International Container Terminal Services Inc (ICTSI)