IN THE MATTER OF AN ARBITRATION UNDER THE LCIA ARBITRATION
RULES
DORALEH CONTAINER TERMINAL SA & DP WORLD DJIBOUTI
FZCO
Claimants
-v-
REPUBLIC OF DJIBOUTI
Respondent
LCIA Arbitration No. 183886
PROCEDURAL ORDER NO. 1 (MODE OF COMMUNICATIONS)
Before a Sole Arbitrator:
Professor Zachary Douglas QC
28 February 2018
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1. By this Procedural Order No. 1, the Sole Arbitrator gives directions in respect of the mode of communications in this arbitration pursuant to Article 4 of the LCIA Arbitration Rules 2014 (the LCIA Rules).
2. The Claimants commenced these arbitration proceedings by dispatching their Request for Arbitration and Application for Interim Relief (the Request) by international courier to Mr Aboubaker Omar Hadi, Chairman, Djibouti Ports and Free Zone Authority (the representative of the Respondent stipulated in the notices provision in Article 22.5 of the Concession Agreement), the President of Djibouti, the Prime Minister of Djibouti, the Minister of Public Works and Transport and the Ambassador of Djibouti to the Republic of France. By their letter of 26 February 2018, the Claimants furnished proof of delivery to the offices of the President of Djibouti, the Prime Minister of Djibouti and the Embassy of Djibouti in France. The Claimants undertook to provide proof of delivery in relation to Mr Aboubaker Omar Hadi and the Minister of Public Works and Transport as soon as possible.
3. The Claimants also served their Request on Mr Aboubaker Omar Hadi by means of email at the address: [email protected].
4. The Sole Arbitrator’s first letter to the parties, dated 24 February 2018, was sent to Mr Aboubaker Omar Hadi by international courier and by email at the aforementioned address.
5. The Sole Arbitrator is satisfied that service of the Request has been made upon the Respondent and that the Respondent is fully informed about the existence of this arbitration. This is demonstrated conclusively by the text of the letter, annexed to the Claimants letter of 26 February 2018, from Mr Mohamed Abdoulkader Moussa of the Ministry of Equipment and Transport of the Republic of Djibouti to Mr Sultan Ahmed Bin Sulayem, President Director General of Doraleh Container Terminal S.A. (the First Claimant) dated 22 February 2018, by which the former purports to terminate the Concession Agreement. The sixth paragraph of that letter
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reads, in the French original: “A ce jour, l'État a constaté que cette tentative de renégociation a été totalement infructueuse et qu'aucune réponse n'a été reçue au courrier du 1er février 2018, sinon un courrier a en-tête de DP World Doraleh date du 19 février 2018 informant l'État du lancement d'une nouvelle procédure d'arbitrage contre ce dernier.”¹ (Emphasis added.)
6. At the Sole Arbitator’s request in his letter of 24 February 2018, the Claimants have provided evidence with their letter dated 26 February 2018 that Mr Aboubaker Omar Hadi has previously communicated with the Claimants in relation to matters arising out of the Concession Agreement by using his email address [email protected], which is clearly an official email address provided by the Government of Dijbouti. This evidence included, inter alia, emails from (and to) Mr Aboubaker Omar Hadi at the said address to Mr Suhail Al Banna of DP World dated 19 October 2017 and 20 December 2017 and emails from Mr Aboubaker Omar Hadi to Mr Ahmed Youssouf Omar of DP World dated 20 September 2017.
7. The Sole Arbitrator is satisfied, in view of this evidence, that it is appropriate for the purposes of Article 4.3 of the LCIA Rules to order that service of documents in this arbitration can be made by electronic means to Mr Aboubaker Omar Hadi as the representative of the Respondent designated to receive notices under Article 22.5 of the Concession Agreement at the address: [email protected].
8. The Claimants have confirmed, by their letter dated 26 February 2018, that they are content to receive documents in this arbitration electronically at the following addresses:
[email protected];
[email protected];
[email protected];
[email protected];
[email protected];
[email protected];
[email protected].
1 The English translation provided by the Claimants reads: “As of present, the State has observed that this attempt at securing a renegotiation has proven completely and utterly useless and fruitless and that no response was received by means of a letter of any sort, as of 1 February 2018, rather, an e-mail was dispatched, bearing the heading of DP World Doraleh, the same which was dated 19 February 2018 and which informed the State (of Djibouti) that a new arbitration procedure had been initiated against the latter.” This translation does not appear to be entirely accurate as it refers to an “e-mail” being dispatched, which is not reflected in the original French text. ↩
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9. The Sole Arbitrator also directs that lengthy documents such as pleadings, witness statements, expert reports and exhibits and legal authorities annexed thereto, should be sent in hard copy by courier in addition to the electronic copy.
10. Pursuant to Articles 4.1 and 4.3 of the LCIA Rules, documents in these arbitration proceedings shall be served electronically on the Claimants at the addresses stipulated in paragraph 8 of this Procedural Order No. 1 and on the Respondent at the address: [email protected].
11. Lengthy documents such as pleadings, witness statements, expert reports and exhibits and legal authorities annexed thereto, should be sent in hard copy by courier in addition to the electronic copy.
12. The Sole Arbitrator may revise these directions in the event that the Respondent takes steps to participate in the arbitration proceedings and both parties have leave to apply to vary this Procedural Order No. 1.
Signature
Prof. Zachary Douglas QC
Sole Arbitrator
Place of Arbitration: London