Procedural Posture

This document is an Interlocutory Award (Sentence avant dire-droit) rendered by a Sole Arbitrator under the auspices of the Common Court of Justice and Arbitration (CCJA) of OHADA. The dispute arose from the unilateral termination of a Build, Operate, and Transfer (BOT) concession agreement for the production of biometric passports in the Republic of Niger.

Jurisdiction and Admissibility

The Respondent State raised preliminary objections to the Tribunal's jurisdiction, arguing that the Claimant failed to comply with a mandatory amicable settlement period and that the dispute, being of a technical nature, should have been submitted to the ICC International Centre for ADR for expert determination. The Sole Arbitrator dismissed both objections. The Tribunal held that the amicable settlement clause was merely exhortatory and did not constitute a mandatory condition precedent to arbitration. Furthermore, the Tribunal determined that the dispute concerned the legal consequences and damages arising from contract termination, rather than a purely technical disagreement falling within the exclusive competence of an ICC expert.

Merits and Liability

On the merits, the Claimant argued that the Respondent's unilateral termination of the concession agreement was abusive and lacked valid justification, seeking compensation for incurred costs, lost profits, and moral damages. The Respondent contended that the contract was void due to fraud and was contrary to the public interest, further arguing that the damages claimed were highly speculative and exorbitant. The Tribunal found that the Respondent's unilateral termination of the contract was abusive and constituted a contractual breach. Consequently, the Tribunal held the Respondent liable to compensate the Claimant for all expenses incurred, lost profits, and moral damages resulting from the termination.

Operative Directions on Quantum

Having established the Respondent's liability, the Tribunal noted significant discrepancies between the parties regarding the evaluation of damages, particularly concerning the Claimant's lost profits. To resolve the quantum phase, the Tribunal ordered an independent expert determination, appointing Deloitte & Touch to conduct a comprehensive accounting and financial verification. The expert was tasked with assessing the exact quantum of the Claimant's incurred losses and lost profits, reserving the final determination on damages for a subsequent award.