In a partial award, the arbitrators Elie Kleiman, Pierre Mayer, and Nicolas Molfessis ruled that a USD 2.2 billion deal it signed with ArcelorMittal could be terminated on the ground of a material breach by ArcelorMittal. ArcelorMittal’s counterclaim for the renegotiation of the contracts also failed.
Senegal is now seeking USD 750 million in damages from ArcelorMittal, although it is very rare in international arbitration for the full amount of damages claimed to be ultimately awarded. ArcelorMittal has indicated that it will vigorously defend against these damages claims.
This partial award will allow Senegal to begin negotiations with other countries for the development of a 750 million ton reserve of iron ore. In return for a concession to this reserve in the very poor highland region of Eastern Senegal, ArcelorMittal had agreed to restore 750 kilometers of rail, spanning the country, to a new deep sea port in the capital, Dakar, which the company had agreed to build. In 2009, however, ArcelorMittal suspended its Senegalese operations when steel prices dropped, leading to what the tribunal found to be a material breach of the agreement.
This dispute takes place against rising resource nationalism in Africa. Resource nationalism, especially in Zimbabwe where the country is pressing ahead with plans to indigenise its economy, is likely to lead to many similar disputes in years to come (see https://globalarbitrationreview.com/journal/article/31881/zimbabwe-indigenisation-programme-gathers-pace/ for more information concerning Zimbabwe’s indigenisation program and its impact on foreign investors). Nigeria also frequently considers renegotiating the terms of offshore oil contracts since it believes that they cost the country a significant amount in lost revenue.
Resource nationalism is not new, and oil & gas companies have had to react to bouts of nationalization and torn up contracts in the Middle East and beyond for well over a half century. It is also not confined to developing countries that feel that agreements concerning national resources had been negotiated on poor terms. Australia, for instance, also imposed what was a controversial new tax on miners, and Britain has previously taken a cut from the profits of the North Sea.
One may anticipate many such disputes arising in the years to come.