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International Arbitration Forum

Seaquest-Infotel Inc. v. Société des télécommunications du Mali S.A.

Case summary

At a glance

Parties
Seaquest-Infotel Inc. (Canada) v. Société des télécommunications du Mali S.A. (Sotelma); the Republic of Mali as interested party / conditional respondent
Case no.
Gerechtshof Den Haag, No. 200.272.114 (ECLI:NL:GHDHA:2020:2183)
Court
Court of Appeal of The Hague (Gerechtshof Den Haag), civil division
Underlying award(s)
CCJA (OHADA) final award of 8 December 2014, seat Abidjan, Côte d'Ivoire; further CCJA decision on costs of 18 April 2019
Forum and rules
Exequatur application under Article 1075 of the Dutch Code of Civil Procedure and the New York Convention 1958
Treaty
New York Convention (Articles IV, V, V(2)(b))
Court
J.M. van der Klooster, G.C. de Heer, R.W. Polak
Sector
Telecommunications
Outcome
Leave to enforce the award against Sotelma granted (25 August 2020); the jurisdiction objection and the public policy defence were rejected.
Amount
Award: XOF (CFA francs) 5,120,000,000 principal against Sotelma; arbitration costs of CFA francs 271,016,120 against Sotelma and Mali. Court costs: Sotelma to pay EUR 760 disbursements and EUR 2,148 lawyer's fees.

The dispute

Sotelma, Mali's state telecommunications company, concluded a partnership contract on 13 July 2006 with Seaquest Mali S.A. The contract covered the development and management of telecommunications infrastructure in Mali. Seaquest Mali had been set up for this purpose by its Canadian parent, Seaquest-Infotel Inc. A dispute arose and Seaquest Mali brought arbitration before the CCJA of OHADA. In a final award of 8 December 2014 (seat Abidjan), the CCJA ordered Sotelma to pay CFA francs 5,120,000,000, and Sotelma and the Republic of Mali to pay costs of CFA francs 271,016,120. Seaquest Mali assigned its claims to Seaquest Canada on 14 May 2019. Seaquest Canada then sought leave in the Netherlands to enforce the award against Sotelma only. Sotelma raised two defences. First, the Court of Appeal lacked competence because the old arbitration law applied to a 2014 award. Second, enforcement would breach public policy, because a settlement of 30 May 2018 had cut the claim by 40% and Mali had already paid the reduced amount.

Key holdings

  1. Dutch courts have international jurisdiction under the 'safety net' rule of Article 3(c) of the Code of Civil Procedure. The case is sufficiently connected with the Netherlands because a creditor seeking recovery there must obtain leave to enforce from a Dutch court. ¶ 5.1
  2. The Court of Appeal, not the preliminary relief judge of the district court, is competent. The transitional rule in Article IV of the Arbitration Modernisation Act (in force 1 January 2015) keeps the old law 'applicable' to pending arbitrations. It does not reach a foreign arbitration to which Dutch arbitration law never applied: 'what is not, cannot remain'. The general rule therefore applies: a request is handled under the procedural law in force when it is filed. ¶¶ 5.3–5.4
  3. Under Article V of the New York Convention, a court must recognise and enforce a foreign award unless a ground for refusal applies. A defence that the award has already been satisfied is not such a ground and does not make enforcement contrary to public policy. Seaquest contested the alleged settlement and payment, and Sotelma had not made it plausible. Sotelma may still raise the defence in enforcement proceedings. ¶ 6.1
  4. Leave to enforce was granted against Sotelma, to the extent the award upheld Seaquest Mali's claim against Sotelma. The decision is provisionally enforceable. Sotelma pays the costs. The request was not directed at the Republic of Mali, so the Court did not decide Mali's conditional defence, and Mali bears its own costs. ¶¶ 6.2–6.3; operative part

Procedural history

  1. 13 July 2006Partnership contract concluded between Sotelma and Seaquest Mali.
  2. 8 December 2014CCJA final award in Abidjan in favour of Seaquest Mali against Sotelma and the Republic of Mali.
  3. 18 April 2019CCJA rules again on a later dispute over the arbitration costs awarded.
  4. 14 May 2019Seaquest Mali assigns its awarded claims to Seaquest Canada. Seaquest Canada has already obtained exequatur in France, where an enforcement dispute is pending.
  5. 1 November 2019Prejudgment garnishment against Sotelma levied in the hands of iBasis Netherlands B.V.
  6. 10 January 2020Application for leave to enforce filed with the Court of Appeal of The Hague.
  7. 25 August 2020Court of Appeal grants leave to enforce against Sotelma.

Tribunal, counsel and experts

Decided by
For the claimant
T.C. Wiersma · D.L. van Besouw
For the respondent
B.A.J. Spiegeler
For other participants
A.H.C. van der Maas

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
Gerechtshof Den Haag (Court of Appeal of The Hague), No. 200.272.114
Country
Claimant
Seaquest-Infotel Inc.
Respondent
Société des télécommunications du Mali S.A.
Section

Court: Netherlands, Gerechtshof Den Haag (Court of Appeal of The Hague)
Date of decision: 25 August 2020
Case number: 200.272.114
New York Convention provisions: IV | V | V(2) | V(2)(b)
Source: New York Convention case law case database.