Commisimpex v. Congo
ICC · Investment (ICSID and treaty) · France · 21 Jan 2013
Why it matters
This case is significant because it addresses the binding effect of a state's settlement agreement (Protocol) even when the state argues it was signed without proper authority. The tribunal applied international public policy to prevent a judicial liquidation from terminating the arbitration, reinforcing the principle that states cannot evade contractual obligations through internal procedural maneuvers. It also clarified the calculation of compound interest under a protocol.
Summary
Commisimpex, a Congolese company, had performed public works and supplied materials to the Republic of the Congo from 1984 to 1986, financed by credits evidenced by promissory notes. In 1992, the parties signed a protocol to settle the debt, but the Congo failed to pay, leading to ICC arbitration (Case No. 9899) which in 2000 awarded Commisimpex USD 107 million. In 2003, the parties signed a new protocol (No. 706) acknowledging a larger debt of 48 billion FCFA and setting new payment terms. When the Congo again failed to pay, Commisimpex initiated a second ICC arbitration (Case No. 16257). The Congo argued that the 2003 Protocol was invalid because the signatories lacked authority, it lacked cause, and the debt was already settled by the 2000 award (res judicata). The tribunal rejected these arguments, holding that the 2003 Protocol was valid and binding: the signatories had apparent authority, the protocol had a valid cause (settlement of the debt), and it superseded the 2000 award as a new agreement. The tribunal also addressed the effect of Commisimpex's judicial liquidation, ruling that international public policy prevented the liquidation from terminating the arbitration. On quantum, the tribunal ordered the Congo to pay €222,749,598.82 (representing the principal of 520 million FRF plus interest calculated at 10% per annum compounded annually from 31 December 2003) and €1,956,425 in legal fees. The award was rendered in Paris on 21 January 2013.
The detail
Parties: Commisimpex v. Congo
Case number: ICC Case No. 16257/EC/ND/MCP
Outcome: The tribunal upheld the validity of the 2003 Protocol and ordered the Republic of the Congo to pay Commisimpex €222,749,598.82 plus 10% compound interest from 31 December 2003, and €1,956,425 in legal fees.
Quantum: €222,749,598.82 plus interest
Applicable law: ICC Arbitration Rules; 2003 Protocol; French law (as the seat is Paris); Congolese law (as the state is the Republic of the Congo)
Issues in play: The case involved the collision between the principle of res judicata (from the 2000 ICC Award) and the validity of a subsequent settlement agreement (2003 Protocol). The tribunal had to determine whether the 2003 Protocol superseded the earlier award or was void for lack of authority or cause.
Read the full decision at italaw ↗
Locus Standi links to the source decision and publishes its own plain-language summary. It does not reproduce the text of the award.