AHS Niger and Menzies Middle East and Africa S.A. v. Republic of Niger
ICSID · Investment (ICSID and treaty) · Niger · 15 Jul 2013
Why it matters
This case is notable for its jurisdictional analysis under the ICSID Convention, particularly regarding the standing of a locally incorporated company (AHS Niger) as a foreign investor due to foreign control, and the inclusion of a parent company (MMEA) as a party to the arbitration agreement. It also illustrates the consequences of a state's default in ICSID proceedings.
Summary
In December 2003, Niger tendered ground handling services at Niamey airport. AHS and Menzies Aviation Group won the bid and incorporated AHS Niger in Niger, with MMEA (Luxembourg) holding 75% shares. In December 2004, AHS Niger and Niger signed a ten-year Investment Agreement. In January 2010, Niger issued orders reducing the license to five years and later terminated the agreement, seizing assets. Claimants appealed to Niger's Supreme Court, which annulled the orders in October 2012. Meanwhile, they initiated ICSID arbitration under the Investment Agreement and Investment Code. Niger objected to jurisdiction, arguing no written consent, AHS Niger being a national company, and MMEA not a party. Niger later defaulted. The Tribunal upheld jurisdiction, finding that AHS Niger was a foreign-controlled company under Article 25(2)(b) of the ICSID Convention, and MMEA was a party to the Investment Agreement based on its active role. On the merits, the Tribunal found Niger violated the Investment Agreement by wrongfully terminating it and expropriating assets without compensation. The Tribunal awarded damages for loss of profit and seized property, though the exact quantum is not specified in the excerpts.
The detail
Parties: AHS Niger and Menzies Middle East and Africa S.A. v. Republic of Niger
Case number: ICSID Case No. ARB/11/11
Outcome: The Tribunal found Niger violated the Investment Agreement and Investment Code, and ordered compensation for loss of profit and seized property.
Quantum: Not specified in excerpts
Applicable law: Investment Code of Niger (1989, as amended); Investment Agreement of December 15, 2004; ICSID Convention
Issues in play: The case involved the interpretation of the Investment Agreement's duration and termination provisions, and whether Niger's actions constituted expropriation without compensation.
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