Procedural Posture

This document is the Final Award rendered by a Sole Arbitrator under the auspices of the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA). The dispute arose between Société Africard Co. Ltd. (Claimant) and the State of Niger (Respondent) following the Respondent's unilateral termination of a concession agreement for the production of biometric and electronic passports.

Principal Legal Issues and Parties' Positions

The core legal issues concerned the lawfulness of the Respondent's unilateral termination of the contract and the subsequent quantification of damages. The Claimant argued that the termination was abrupt, unjustified, and constituted a breach of the agreement's stability clause, seeking compensation for wasted expenditures (damnum emergens), lost profits (lucrum cessans), and moral damages. Conversely, the Respondent contended that the termination was a legitimate exercise of its sovereign prerogative, justified by public interest, alleged fraud in the procurement process, and non-compliance with newly enacted public-private partnership regulations. The Respondent also advanced a counterclaim for abusive proceedings.

Tribunal's Analysis and Findings

The Sole Arbitrator rejected the Respondent's justifications for termination. The Tribunal found that the Respondent failed to establish any contractual fault by the Claimant or any valid public interest rationale that would override the contract's explicit stability provisions. Furthermore, the Tribunal determined that the Respondent's actions violated regional public procurement frameworks (UEMOA Directives). Having established liability in a prior preliminary award, the Tribunal relied heavily on the findings of a tribunal-appointed independent expert (Deloitte Côte d'Ivoire) to quantify the damages. The Tribunal adopted the expert's financial modeling, which calculated lost profits based on a projected twelve-year production cycle, while applying appropriate discount rates and accounting for the Claimant's failure to secure certain tax exemptions. The Tribunal also recognized that the abrupt termination and subsequent reallocation of the contract to a competitor caused compensable reputational harm to the Claimant.

Operative Directions and Relief

In the dispositive section, the Tribunal ordered the State of Niger to pay the Claimant 44,740,781 CFA francs for reliance damages and 15,440,533,316 CFA francs for lost profits. Additionally, the Tribunal awarded 1,000,000,000 CFA francs in moral damages. All awarded sums were subject to an annual interest rate of 13% (the BCEAO rate) accruing from the date the arbitration was initiated. The Respondent was also ordered to bear the costs of the arbitration, including the expert's fees and a portion of the Claimant's legal costs. The Respondent's counterclaim was dismissed in its entirety.