The Government of Sierra Leone has on Wednesday, February 17, 2021, responded to the verdict given by the British High Court that the judgment passed on Monday 15th of February, 2021 ruling against Sierra Leone in the iron ore operation dispute case with SL Mining is not the final judgment.
In July 2019, Sierra Leone placed a ban on the exports of SL Mining Marampa mine’s and canceled its license, saying it had failed to maintain the mine’s agreed work schedule and royalty payments. Allegations that SL Mining denies.
On the 20th of August 2019, SL Mining filed an application for emergency arbitration proceedings at the International Court of Arbitration. In October 2019, the International Chamber of Commerce’s (ICC) emergency arbitration tribunal ruled that the export ban and the cancellation of SL Mining license should be reinstated. However, the Sierra Leonean authorities refused to do so and stood their grounds, and challenged the ICC jurisdiction claiming that SL Mining should have waited for three months from the July 2019 notice of dispute before commencing arbitration proceedings.
The clause of the MLA in question in the Award was clause 6.9 (c). Clause 6.9 reads as follows:
“6.9 Interpretation and Arbitration
a) Except as may be otherwise herein expressly provided, this Agreement shall be construed, and the rights of [the Claimant and the Defendant] hereunder shall be determined, according to the Laws of Sierra Leone.
b) The parties shall in good faith endeavor to reach an amicable settlement of all differences of opinion or disputes which may arise between them in respect to the execution performance and interpretation or termination of this Agreement, and in respect of the rights and obligations of the parties deriving therefrom.
c) In the event that the parties shall be unable to reach an amicable settlement within a period of 3 (three) months from a written notice by one party to the other specifying the nature of the dispute and seeking an amicable settlement, either party may submit the matter to the exclusive jurisdiction of a Board of 3 (three) Arbitrators who shall be appointed to carry out their mission in accordance with the International Rules of Conciliation and Arbitration of the… ICC. ……
d) In the event of any notified dispute hereunder, both parties agree to continue to perform their respective obligations hereunder until the dispute has been resolved in the manner described above.”
The Office of the Attorney-General and Minister of Justice says that the government had applied to the English High Court to challenge the jurisdiction of the International Chamber of Commerce (ICC) arbitral tribunal to hear the claims of the SL Mining and failure to observe the 3-months waiting period set out in its Mining Licence Agreement (MLA), but the application was unsuccessful.
“It is that limited application which was dismissed by the English high Courts in its 15 February 2021 (the Judgement). The effect of this is simply that the arbitration will now proceed to a full hearing in March 2021. The judgment cannot and does not address the merits of the dispute between the parties in the arbitration, because the English Court was not and could not have been asked to resolve those issues.” Said Office of the Attorney-General and Minister of Justice.
“The government remains of the view that it has strong arguments and evidence of breaches that were committed and also a very strong case supported by evidence of CORRUPTION AND BRIBERY (as stated in the judgment supra) to support its case in the ongoing ICC arbitration that SL Miniing’s license was properly and validity terminated.”