Paris Court of Appeal, No. 10/21349

Court of Appeal, First Pole – First Chamber, 17 JANUARY 2012, No. 10/21349

Judicial Chronology:

Paris Tribunal of Grande Instance, 14 October 2010 Court of Cassation, First Civil Chamber, 10 July 2013, No. 12-13.351

S.A. PLANOR AFRIQUE vs. EMIRATES TÉLÉCOMMUNICATIONS CORPORATION

TELECEM FASO SA is a company under the law of Burkina Faso whose object is the establishment and operation of a mobile telephone network in Burkina Faso. Following various share transfers, in August 2004, the capital of this company was held by ATLANTIQUE TELECOM, a company incorporated under Togolese law, at a rate of 51%, by PLANOR AFRIQUE SA (PLANOR AFRIQUE), a company incorporated under the law of Burkina Faso, at 44%, and by WAGF, at 5%.

At the shareholders’ meetings of TELECEM FASO held on 27 January 2006, to which PLANOR AFRIQUE was not convoked, a share capital increase through the issuance of shares and a modification in the composition of the Board of Directors were voted for. As a result, PLANOR AFRIQUE’s share was reduced to 20%, while ATLANTIQUE TELECOM’s share was increased to nearly 80%. The subsequent dispute led to the signing of a “Memorandum of Agreement” (MOA) on 5 September 2007 between PLANOR AFRIQUE and the majority shareholder of ATLANTIQUE TELECOM, the Emirati company EMIRATES TÉLÉCOMMUNICATIONS CORPORATION (ETISALAT). The MOA, as amended on 8 and 18 September 2007, provided that PLANOR AFRIQUE would recover 44% of the share capital and transfer 12% to ATLANTIQUE TELECOM.

A dispute arose in the execution of the MOA, and ETISALAT implemented the arbitration clause it contained.

In an award rendered in Paris on 9 September 2010 under the supervision of the International Chamber of Commerce, the arbitral tribunal composed of Ms. B Watt and Mr. Z, arbitrators, as well as Mr. A, chairman, found that PLANOR AFRIQUE had breached its obligations, ordered it, under penalty, to “take steps permitting it to conclude the commitments it had made in the MOA” and ordered it to pay the arbitration costs.

This award, which was granted enforcement (in French Exequatur) by order of the President of the Paris Tribunal of Grande Instance on 14 October 2010, was appealed by PLANOR AFRIQUE on 2 November 2010.

Following the submissions of 9 November 2011, PLANOR AFRIQUE requested the annulment of the award and the condemnation of ETISALAT to pay the sum of 80,000 euros pursuant to Article 700 of the Code of Civil Procedure. It states that the recognition or enforcement of the award is contrary to international public policy (article 1520-5 of the Code of Civil Procedure), that the arbitrators disregarded due process (in French Principe de la contradiction) and the fundamental principles of a trail by applying to the dispute Swiss law which was not chosen by the parties and which was not debated (article 1520-4 and 1520-5 of the Code of Civil Procedure), that the arbitrators, in applying this law, did not respect their mission (article 1520-3 of the Code of Civil Procedure), that they violated article 35 of the Arbitration Rules of the International Chamber of Commerce (ICC), and again did not comply with their mission, by rendering an award that is not subject to legal sanction (article 1520-3 of the Code of Civil Procedure).

By submissions of 27 September 2011, ETISALAT requests the dismissal of the appeal and the condemnation of PLANOR AFRIQUE to pay it the sum of 100,000 euros pursuant to Article 700 of the Code of Civil Procedure.

UPON WHICH:

On the grounds of annulment based on the violation of international public policy (Article 1502-5 of the Code of Civil Procedure in its wording applicable to the dispute):

PLANOR AFRIQUE maintains that the award rendered on 9 September 2010 is irreconcilable with previous Burkinabe judicial decisions rendered on 27 February and 9 April 2008 as well as on 15 May and 19 June 2009, which were granted enforcement (in French Exequatur) by orders of the Paris Tribunal of Grande Instance dated 29 June 2011.

ETISALAT retorts that res judicata is an inadmissibility objection falling within the private sphere and is not a ground of annulment based on the violation of international public policy; that the operative part of the award and its enforcement are compatible with the Burkina Faso decisions; that assuming that this is not the case, preference should be given to the first decision that was granted enforcement (in French Exequatur) in France, in this case, the award, which was granted enforcement (in French Exequatur) on 14 October 2010, whereas the Burkinabe decisions were only granted enforcement (in French Exequatur) on 29 June 2011. The action for annulment brought by PLANOR AFRIQUE is of little importance, since, on the one hand, it only suspends the enforcement of the award and not its recognition, and, on the other hand, was filed after the award was granted enforcement (in French Exequatur).

Whereas following the capital increase and the reconstitution of the board of directors of TELECEM FASO, decided during the shareholders’ meetings dated 27 January 2006 to which PLANOR AFRIQUE was not convoked, the latter, in parallel with the transactional negotiations which led to the MOA and, after the conclusion of this agreement, initiated various proceedings before the domestic courts of Burkina Faso, where the headquarters of TELECEM FASO are located;

Whereas a judgment dated 27 February 2008 of the Ouagadougou Tribunal of Grande Instance, confirmed by a judgment of the Ouagadougou Court of Appeal of 15 May 2009, annulled the deliberations of the ordinary and extraordinary shareholders' meetings of 27 January 2006. Whereas a judgment of the same court dated 9 April 2008, confirmed by a judgment of appeal of 19 June 2009, which has become final, ordered the forced transfer by ATLANTIQUE TELECOM to PLANOR AFRIQUE of all of its shares in the capital of TELECEM FASO;

Whereas by the challenged award, rendered on 9 September 2010, the arbitrators, after dismissing the arguments based on the risk of contradiction of their decision with those of the Burkinabe judges, ordered PLANOR AFRIQUE to “take the steps to enable it to conclude the commitments made by it in the Memorandum of Agreement within 60 days from the date of notification of this award”. This formula could only have the meaning of imposing the performance of the MOA’s forecasts, i.e., to make PLANOR AFRIQUE recover 44% of the capital of TELECEM FASO and to order it to transfer to ATLANTIQUE TELECOM 12% of this capital, so that at the end of the operation, PLANOR AFRIQUE holds 32% of the capital and ATLANTIQUE TELECOM 68%;

Whereas such a decision and the one rendered earlier by the Court of Appeal of Ouagadougou on 19 June 2009, prescribing the forced transfer by ATLANTIQUE TELECOM to PLANOR AFRIQUE of all its shares in the capital of TELECEM FASO, entail legal consequences that are mutually exclusive;

Whereas under the terms of Article 36 of the judicial cooperation agreement signed on 24 April 1961 between France and Upper Volta (now Burkina Faso):

“In civil and commercial matters, contentious and internal decisions rendered by courts sitting on the territory of the French Republic and on the territory of the Republic of Upper Volta have, rightfully, the res judicata effect on the territory of the other State, if they meet the following conditions:

a) the decision comes from a court which has jurisdiction according to the rules regarding conflicts of jurisdiction admitted in the State where the decision is enforced;

b) the decision has, according to the law of the State where it was rendered, become final and enforceable;

c) the parties have been duly summoned, represented or declared defaulting; the decision does not contain anything contrary to the public policy of the State where it is invoked or to the principles of public law applicable in that State. Nor must it be contrary to a judicial decision pronounced in that State and having res judicata in its regard”;

Under the terms of article 38 of the same agreement:

“Enforcement (in French Exequatur) is granted, regardless of the value of the dispute, by the president of the Tribunal of Grande Instance or of the corresponding court of the place where enforcement is to be pursued.

The president is referrred and decides according to the form provided for summary proceedings.

The decision can only be appealed by an appeal in cassation (in French Pourvoi en cassation)”;

Whereas the judgment of the Ouagadougou Tribunal of Grande Instance of 9 April 2008 and the confirmatory decision of the Court of Appeal of Ouagadougou of 19 June 2009, which have rightfully res judicata in France by virtue of the provisions of the aforementioned Article 36, have been declared enforceable by an order of the President of the Paris Tribunal of Grande Instance, delivered adversary on 29 June 2011, which is not subject to any ordinary legal remedy;

Whereas in the absence of any allegation of fraud, and regardless of the fact that the enforcement order (in French Ordonnance d’exequatur) of the award - which is referred to the Court of Appeal by way of the appeal for annulment - was rendered before the decisions of Burkina Faso, it results from the irreconcilability of the award with the decision of the Court of Appeal of Ouagadougou that its recognition and enforcement effectively and concretely violate international public policy;

It is therefore appropriate to declare the annulment of the award and, consequently, by application of Article 1504 paragraph 2 of the Code of Civil Procedure in its applicable wording in the present case, the annulment of the order dated 14 October 2010 which granted enforcement (in French Exequatur);

On Article 700 of the Code of Civil Procedure:

Whereas D, who succumbs, will have to pay to PLANOR AFRIQUE the sum of 80. 000 euros pursuant to Article 700 of the Code of Civil Procedure;

FOR THESE REASONS:

Sets aside the award rendered between the parties on 9 September 2010.

Sets aside the order of 14 October 2010 conferring enforcement (in French Exequatur) on this award.

Dismisses EMIRATES TÉLÉCOMMUNICATIONS CORPORATION of its application made pursuant to Article 700 of the Code of Civil Procedure.

Orders EMIRATES TÉLÉCOMMUNICATIONS CORPORATION to pay PLANOR AFRIQUE SA the sum of 80,000 euros in application of article 700 of the Code of Civil Procedure.

Orders EMIRATES TÉLÉCOMMUNICATIONS CORPORATION to pay the costs and admits the SCP Duboscq Pellerin, avowed, to the benefit of the provisions of article 699 of the Code of Civil Procedure.