A joint investment agreement between two African companies, Société Nationale Petroliere de Côte D’Ivoire, shortly referred to PETROCI, and MRS Holdings of Nigeria has become a subject of arbitration both may soon be heading for the courts over shareholding the Special Purpose Vehicle(SPV) both got into to acquire Chevron-Texaco downstream distribution assets in West and Central Africa.
While PETROCI is Cote ‘d Ivoire equivalent of Nigeria’s NNPC, MRS on the other hand is a Holdings company belonging to Sayyu Dantata of Nigeria, and apart from oil and gas, they are also into Shipping, Transportation, warehousing and distribution of petroleum products.
The 2008 decision by both companies to acquire Chevron assets has turned sour, leading to arbitral awards which execution has become contentious.
While PETROCI is complaining of having been excluded in the operations and management of MRS Oil, when the two joint venturers are supposed to jointly own and hold 60% of MRS Oil shares through a company described as MRS Africa Holdings, a wholly owned subsidiary of one Corlay Global SA, which the two co-investors registered in Panama; MRS in its defence counter claimed against Petroci for failing to share equally all the acquisition costs in relation to the purchase of Chevron assets pursuant to an agreement which MRS claims exists between the parties.
SUMMARY OF THE DISPUTE
Sometime in April 2008, both MRS and PETROCI received a notice of expression of interest for the purchase of Chevron’s downstream distribution assets in West and Central Africa. Following receipt of the notice of expression, both companies in a bid to increase their chance of success in the acquisition of the controlling shares of Chevron Texaco downstream distribution assets in West Africa created a Special Purpose Vehicle (SPV) called Corlay Global SA (“Corlay”). The SPV was incorporated in Panama and capitalized for US $25,000,000 of 25 million shares of $1 each with both parties owning 50% equity in the company (i.e. each company owning 12.5 million Shares in Corlay) which was evidenced through the issuance of share certificates.
Both entities acting through Corlay made a successful bid in the sum of US$675.8 million for the acquisition of Chevron Texaco downstream distribution assets in West and Central Africa. Following the successful bid, they agreed to make equal equity contributions of $337.9 million to make up the US$675.8 million acquisition sum. PETROCI made an initial contribution of $60million US Dollars while MRS stated that it made an initial contribution of $75.8 million, leaving a shortfall of about $540 million.
SUMMARY OF THE DISPUTE
As a result of the shortfall and PETROCI‘s inability to obtain finance from its local banks in Ivory Coast (Côte D’Ivoire) due to on-going civil unrest in the country at that time, it was agreed that MRS would obtain a bridge facility on behalf of both parties from the consortium of banks In Nigeria.
It was further allegedly agreed that the bridge facility will be in the name of MRS for the purchase of the CHEVRON/TEXACO assets, but the parties will Jointly share responsibility to repay the loan on a 50:50 ratio. Pursuant to the foregoing also, PETROCI executed the guarantee security provided for the loan. In other words, although the loan was taken in the name of MRS, PETROCI was the sole guarantor. Hence the acquisition sum was released by the local banks in Nigeria directly to CHEVRON/TEXACO on behalf of PETROCI and MRS, paving way for both entities through Corlay to acquire and takeover of five subsidiaries of Chevron Inc. in West and Central Africa (Chevron Côte d’ivoire, Chevron Togo, Chevron Benin, Chevron Cameroon, and Chevron Nigeria).
Subsequently, Petroci stated that to their surprise, Chevron Nigeria was unilaterally renamed as MRS Oil Nig. Plc by MRS without the consent of PETROCI although some of the other subsidiaries like Chevron Cote D’Ivoire still retained the correct name of the holding company as Corlay Cote D’Ivoire.
Unfortunately, about the time of the above successful acquisition, turbulent times existed in Cote D’Ivoire such that between 2008 and 2010, Ivory Coast was plagued by civil war. This naturally affected the management and administration of PETROCI, being a public enterprise and investment vehicle for the Ivorian Government. As a result, there was also no proper handover of management of PETROCI and necessary Information when Cote D’Ivoire began to return to some level of normalcy. “It was only when AMCON sued PETROCI based on PETROCI’s sole guarantee of the share purchase loan that PETROCI commenced investigation to trace back the status of its investment in Corlay which has assets in Nigeria by way of Corlay’s investment in MRS Oil.
In the process of investigating, Petroci stated that they discovered deliberate concealment and misrepresentation of corporate and other essential information incompatible with standards of financial reporting hence MRS failed to disclose corporate information required to be filed by public companies under the Investments and Securities Act, 2007 and extant Rules and Regulations.
Furthermore, Petroci stated that its Interest was deliberately concealed and even converted on the face of the financials of MRS Oil as a listed company in Nigeria. Also, the board composition and management team did not reflect the constituent shareholders of Corlay as PETROCI is 50% shareholder of Corlay and did not have any representation on the board of MRS Oil.
Petroci emphasized that in the same vein, the financial statements of MRS Oil carefully concealed the true ownership of the company by Corlay (the investment vehicle by which PETROCI and MRS control directly 60% of the shares of MRS Oil).
Petroci stated that the financial statements also show that dividends have been declared over the years by the board and AGM of MRS Oil and paid to shareholders, but Corlay has received no dividend though declared from 2010 to 2014.
MRS Oil in response claimed that Petroci failed to share equally all the acquisition costs in relation to the purchase of Chevron assets pursuant to an agreement.
Based on the above, it is evident that a dispute had arisen from a claim of breach of the Consortium Agreement entered into by PETROCI and MRS OIl which was for the purpose of floating a Special Purpose Investment Vehicle (SPV) to be known as Corlay Global. Interestingly, Clause 17 of the Consortium Agreement provides that “in the event of a dispute between or amongst the parties on their rights and duties under the terms of the agreement, or of any element introduced in pursuit of the activities of the Consortium, the dispute shall be referred to and determined by the Court of Arbitration of Paris.”
Consequent upon the arbitration agreement, arbitration proceedings(La Société Nationale D’Operations Petrolieres De Côte D’Ivoire (“Petroci”) and MRS Holdings Ltd in ICC Case No. 23221/DDA (c-23222/DDA) was thus commenced in Paris, France consisting essentially on the one hand of an arbitral claim by Petroci of the breach of the terms of the Consortium agreement by MRS (particularly but not limited to the MRS’s obligation to recognize Petroci’s right to 50% acquisition and operation rights in all the subsidiaries of the Corlay Group holding the Chevron downstream assets acquired, and financial damages arising from exclusion and negation of said rights), and on the other hand by MRS’s financial counterclaim for obligation to pay acquisition costs.
DECISION OF THE TRIBUNAL
The Arbitral Tribunal composed of Prof. Maxi Scherer, Dr. Hami Gharavi and Mr. Michael Young QC in its final award on March 24, 2021 ordered that Petroci has a 50% stake in Corlay Global and its subsidiaries, including MRS Africa Holdings.
The tribunal also ordered that MRS is to call a general meeting of all Corlay entities within 30 days of the Award (March 24 2021) for the termination of the mandate of current directors and appointment of new board members, with each party having the power to appoint equal numbers of directors.
Furthermore, damages of $25,496,56 is to be paid to Petroci by MRS with 10% interest from December 31 2018, while Petroci is to pay the sum of $14, 413,697.50 to MRS with 10% interest from November 14 2017, as acquisition costs.
The conflict is yet to abate as PETROCI claimed its representatives, Dr. Ibrahima Diaby (DG of PETROCI), Inza Dosso (Managing Director, PETROC were prevented from attending the Annual General Meeting where the awards of the Arbitral Tribunal should have been carried out.
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