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Djibouti v. Doraleh Container and Others, Respondents’ Written Submissions, July 2, 2018

2 Jul 2018
Republic of Djibouti, Djibouti Ports and Free Zone Authority, and Port de Djibouti SA v. Doraleh Container Terminal SA, DP World Djibouti FZCO and Dubai International Djibouti FZE (I), LCIA No. 142732
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Respondents’ Written Submissions
Document Details:
LISTED PARTICIPANTS
Respondents’ Written Submissions
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Claimant's counsel
Claimant's law firm
Respondent's counsel
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Pablo T. Spiller
Respondent's expert firm
Claimant's witness
Aboubaker Omar Hadi, Aden Douale
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Quinn Emanuel Urquhart & Sullivan, Gibson Dunn & Crutcher, Compass Lexecon, Djibouti, Djibouti Ports and Free Zone Authority, Port de Djibouti SA, Doraleh Container Terminal SA, DP World Djibouti FZCO, Dubai International Djibouti FZE
Country
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Document Summary
Respondents’ Written Submissions
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document comprises the Respondents’ Written Submissions on Counterclaims, dated 2 July 2018, submitted in LCIA Case No. 142732. The submissions follow the Tribunal’s order of 19 February 2018 to resume the counterclaims phase after the Claimants failed to engage in settlement negotiations regarding the payment of royalties. The Respondents advance counterclaims against the Republic of Djibouti, the Djibouti Ports and Free Zone Authority (DPFZA), and Port de Djibouti S.A. (PDSA) for breaches of exclusivity rights and unpaid royalties under the 2006 Concession Agreement.

Factual and Legal Arguments

The Respondents’ primary contention is that the Claimants breached the strict exclusivity rights granted to Doraleh Container Terminal SA (DCT) under Articles 3.6.2 and 3.6.3 of the Concession Agreement. The Respondents allege that the Claimants unlawfully commissioned and developed the Doraleh Multi-Purpose Port (DMP) and the Djibouti International Container Terminal (DICT) to handle container traffic. While the Respondents had previously agreed to a narrow waiver allowing the Old Port to handle mixed cargo vessels from Ethiopian Shipping Lines and Messina Shipping Lines subject to a royalty, they argue that the Claimants deliberately misrepresented the scope of the DMP, which was built with a massive container handling capacity in direct violation of DCT’s exclusivity.

Furthermore, the Respondents assert a debt claim under Articles 7.1.1 and 7.1.2(i) of the Concession Agreement for unpaid royalties. They argue that the Claimants acknowledged their obligation to pay royalties for container traffic diverted to the Old Port after DCT commenced operations but have persistently refused to remit the amounts due.

Quantum and Relief Sought

Relying on the expert evidence of Dr. Pablo T. Spiller, the Respondents quantify their damages based on lost future revenue and profit. The Respondents seek a declaration of breach and an award of US$391.8 million in damages for the exclusivity violations related to the DMP, reserving the right to quantify damages for the DICT at a later stage. Additionally, the Respondents claim US$140.9 million for unpaid royalties concerning historical container traffic diverted to the Old Port. The submissions conclude with a request for pre-award and post-award simple interest at a rate of 10 percent, alongside a full allocation of arbitration costs and legal fees.