October 11, 2016

Prime Working Hard to Achieve Long-Sought Justice for Our Client

Charles Merin, Chester DiBari, Lisa Colangelo

For over a year now, we have been working with Commisimpex to ensure that U.S. policymakers are aware of the case and understand that multiple courts have ruled in Commismpex’s favor.  We will continue working hard to help them achieve justice and our efforts will not cease until this longstanding debt is paid.  Commisimpex (a British – American infrastructure company), is seeking redress from the Republic of Congo (ROC) on unpaid project work in the country and the debt has risen to $1.2B with penalties and interest.  The company has a multitude of legal wins under their belt but the ROC continues to ignore the case.

The question at hand is, whether or not the country should remain eligible for trade benefits under the Africa Growth and Opportunity Act (AGOA), if they are not abiding by the rule of law and not seeking to resolve investor disputes like this one, as AGOA statutes call for.

In Washington DC, the son of the Congolese President and a minister subpoenaed in the Commisimpex case

Le Monde, October 11, 2016

(Translated from French)

The trips of Congolese dignitaries in the USA are turning more and more into legal drama. In June, the wife of President Denis Sassou Nguesso was subpoenaed during a trip to Washington DC.

On Wednesday, October 5th, it was the Congolese minister of finance’s turn to be cornered in the Mayflower palace, in the American capital, by a representative of White & Case, who served him a subpoena requiring him to explain himself at the firm’s office on October 26th. Two weeks earlier, Denis-Christel Sassou Nguesso, son of the President of Congo famous for his luxurious lifestyle and known as  “Kiki”, was also served a subpoena on September 19th. The two men are not directly incriminated but have been ordered to detail what they know about Congo’s assets in the United States to the US courts.

Dizzying levels

These subpoenas are the latest twist in the Commisimpex case, a long battle opposing the British-Lebanese businessman Mohsen Hojeij and Denis Sassou Nguesso, reelected last March at the head of the country after having modified the Constitution and organized very controversial elections. During the 1980’s the former own the construction company Commissions Import Export (Commisimpex) and did a series of public works for Congo: rehabilitation of a palm grove, sewage works for military camps, construction of “villages for workers”…

At the time, the bill was only very partially paid. Since then, the two men, who knew each other very well before falling out, have been resolving their dispute before the courts. Over these last years, Mr. Hojeij seems to have accelerated the offensive. With penalties and exceeded deadlines, the amount he is demanding has reached the dizzying level of a billion dollars (900 millions euros). The equivalent of 12% of Congo’s GDP.

The businessman has scored some points these last years. In 2000 and 203, he won to rulings of the ICC, based in Paris, which acknowledged the debt. His objective is now to enforce them, which requires the rulings to be recognized in the various countries to then try to seize the assets belonging to Congo or to Mr. Sassou Nguesso’s clan.

In the United States, this was done in 2015 when the court of the District of Columbia recognized the ICC’s arbitration. The next step is to identify the assets that could be attached. “We are particularly interested in the residencies around Washington DC and in Maryland”, Francis Vasquez, Mr. Hojeij’s lawyer from White & Case, explains. We are also talking about bank accounts, oil revenues, planes, boats and shipments of raw materials.

Game of cat and mouse

The lawyers however need to have more information on these assets to certify the owners’ identity. It is in this context that the subpoenas come into the picture. Those served with them are required to present themselves to the lawyer’s office to share the information they have on the Congolese assets. If they do no come, they risk a fine, which can go up to several thousands of dollars per day and may be exposed to a Bench Warrant.

Antoinette Sassou Nguesso and Denis-Christel Sassou Nguesso did not answer their subpoena. The minister of finance, Mr. Ganongo, is expected on the 26th of October. “I am not very confident in the fact that he will come”, smiles Mr. Vasquez.

It is therefore a game of cat and mouse that happens each time a Congolese official or someone close to the President’s family visits the United States. To be legal, the subpoena must be handed directly. Therefore, M. Hojeij’s lawyers have to find the people who interest them and corner them in order to give them the subpoena. On the 5th of October, the minister of Finance, Mr. Ganongo, was in Washington for the yearly IMF summit when he was surprised at the Mayflower. “Right after receiving the subpoena, he ran to a subway entrance”, recalls M. Vasquez.

In June, when the Congolese First lady received hers, an argument with her security personnel briefly erupted, according to the legal documents. The lawyer who gave the subpoena was detained for a few minutes by armed men. He had to call 911 to ask for help before finally being released.

In addition, Mr. Hojeij, who spends most of his time trying to obtain the payment of his debt, also launched some proceedings in France. The Paris Tribunal de Grande Instance already allowed, in July 2015 and in December 2015, the attachment of 6 million euros found in the banks accounts of the Congolese authorities in France.

In Congo however, Mr. Hojeij did not only leave good memories. If no one is disputing the initial debt, many voices where shocked by the way the sum has grown in an exponential manner until it amounted to a billion dollars. The Congolese authorities have, for their part, tried to turn the ship around. They declared Commisimpex bankrupt in 2012, attributing it a fiscal debt of 700 million euros. It would therefore be Mr. Hojeij’s firm that would owe money to Congo and not the opposite. The businessman contests this verdict, which he considers fraudulent and which has also been rejected by the French and US courts. After three decades, the battle does not seem nowhere near the end.