GC
CR 2006/52 (translation)
CR 2006/52 (traduction)
Wednesday 29 November 2006 at 3 p.m.
Mercredi 29 novembre 2006 à 15 heures - 2 -
8 Le PRESIDENT: Veuillez vous asseoir. L’audience est ouverte. La Cour est réunie
aujourd’hui pour entendre la République démocratique du Congo en son deuxième tour de
plaidoiries. Il peut être utile de préciser que la Cour n’envisage pas d’observer une pause café. We
will continue.
Je donne à présent la parole à Maître Tshibangu Kalala
Mr. KALALA: Madam President, Members of th e Court, I am going to begin by answering
the question asked yesterday by Judge Bennouna.
1. Madam President, Members of the Court, during the hearing of yesterday,
28November2006, JudgeBennouna asked both Pa rties a question seeking “clarification on
whether the legislation of the Democratic Republic of the Congo or the jurisprudence of the courts
of that country authorize the establishment of a private limited company” with just one individual.
2. The reply of the Democratic Republic of the Congo to this question is as follows.
3. According to Article 446, subdivision 1, of the Decree of 30 July 1888 on conventions and
contractual obligations, the société (company) is defined as a “contract whereby two or more
individuals agree to place something in common with a view to sharing such benefit as may result
therefrom” [translation by the Registry].
4. Under this legal provision in force, Madam President, Congolese law precludes the
incorporation of a company consisting of just one individual. In other words, it is the contractual
and not the institutional concept of company that prevails in Congolese law. This means that
Congolese legislation in no way authorizes the inco rporation of a private limited company with a
single associate (shareholder) and by just one individual, since the aforesaid legal provision clearly
refers to two or more individuals, and not just one, for the establishment of a commercial company.
5. For the sake of completeness, the DRC also cites Article 36 of the Decree of 23 June 1960
completing that of 27February1887, which provides that: “A private limited company... is a
company formed by individuals undertaking only to provide resources, which makes no public
appeal for funds, and the shares of which shall be uniform and issued in the name of the holder and
9 shall not be freely transferable.” The DRC wa rmly thanks the Republic of Guinea for having
produced this legal provision in its judges’ folder of yesterday under tab 4. - 3 -
6. As we can readily see, Article 36 of the Decree of 23 June 1960 defines a private limited
liability company as a company formed by individuals, in the plural, and not by just one individual,
in the singular. This is in keeping with the c ontractual concept of company to which I referred a
moment ago.
7. Madam President, Members of the Court, the contractual concept is confirmed by
Mr. Diallo himself under the articles of association of Africontainers appended to the Memorial of
the Republic of Guinea as Annex1 (see MG, Book II, Ann.1). And, in accordance with those
articles of association, when this company as incorporated on 18September1979 there were
three associates: two individuals (Mr.KibetiZaland Mrs.ColetteDewast) and one legal entity
(the company Africom-Zaire). Subsequently, and to this day, Africontainers has had
twoassociates: Africom-Zaire (a legal entity holding 60percent of the capital stock) and
Mr. Diallo (an individual holding 40 per cent of the capital) (see MG, Ann. 3).
8. In conclusion, Madam President, Members of the Court, the Congolese legislation in force
does not permit the incorporation of a private lted liability company by just one individual.
That is the answer of the Democratic Repub lic of the Congo to the question raised by
Judge Bennouna.
9. I thank you, Madam President, and ask you to give the floor to ProfessorMazyambo.
Thank you.
Le PRESIDENT: Merci, MaîtreTshibanguKa lala. Je donne la parole à présent au
Professeur Mazyambo.
KIS. LA:
THE R EPUBLIC OF GUINEA HAS NO LOCUS STANDI IN THE PRESENT CASE
1. Madam President, Members of the Court, after following the oral arguments of our
opponents yesterday, I note that in spite of a ber of areas of agreement there are still some
points of disagreement between the Applicant and the Democratic Republic of the Congo.
2. Guinea affirms that international law afford s it the possibility of protecting the rights of
10
Mr.Diallo both as an individual and as a shareholder for the violation of his rights and by - 4 -
substitution in respect of the damage suffered by the Congolese companies 1. On the other hand,
the Democratic Republic of the Congo notes that , essentially speaking, Guinea’s arguments have
failed to undermine the two objections it raised. So far as we are concerned, I should like here to
meet Guinea’s arguments on two essential points: primo, the non-violation of the rights granted to
Mr.Diallo as an associate; secundo, the non-existence of an exception permitting protection by
substitution.
I. The rights of Mr. Diallo as shareholder or associate have not been violated
3. Madam President, Members of the Court, I should like first to demonstrate that Guinea
has not been convincing in its attempt to prove that its Application is consonant with the hypothesis
of violation of the rights of the shareholder as such, provided for in paragraph 44 of the Barcelona
Traction Judgment.
4. The Democratic Republic of the Congo accepts that international law gives the State the
possibility of exercising its diplomatic protection in favour of a shareholder having its nationality
when an internationally wrongful act by a State is directed against the rights of that shareholder as
such. It is simply making it clear that, under the Court’s relevant case law, what is involved is a
very restrictive hypothesis since the rights in question are solely those granted to the shareholder in
his relations with the company.
5. The DRC also agrees that the rights listed in the 1970Judgment are no more than
examples, and that the rights in question must be sought in the domestic legislation of the States
concerned.
6. It nevertheless notes that Mr. Diallo has not b een deprived of any of the rights that Guinea
lists as personal rights of the “shareholder” or associate as such.
7. In his oral statement yesterday morning, Mr. Samuel Wordsworth stated that the personal
rights of Mr.Diallo as an associate of the priv ate limited liability companies Africom-Zaire and
Africontainers-Zaire were listed in Articl es51, 65, 67, 68, 71, 75, 78 and79 of the
1
CR 2006/51, p. 50, para. 28. - 5 -
11 27February1887 Decree on Commercial Corporations 2. On close perusal, those provisions
identify the following rights:
⎯ the right to dividends and to the proceeds of liquidation (Art. 51);
⎯ the right to be appointed (gérant) (Art. 65);
⎯ the right of the associé gérant not to be removed without cause (Art. 67);
⎯ the right of the gérant to represent the company (Art. 68);
⎯ the right of oversight (Arts. 71 and 75);
⎯ the right to participate in general meetings (Art. 79).
⎯ I note that Article 78, though cited by Guinea, does not proclaim any right.
8. It is noteworthy here that, while in theory all these rights are granted to Mr. Diallo under
Congolese law, he was unable to exercise one of those rights, namely the right of oversight of the
two companies. For the articles pertaining to that right provide:
“Article 71
Oversight of the management shall be en trusted to one or more administrators
[mandataires], who need not be members, called auditors [commissaires].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 75
The mandate of the auditors shall be to supervise and oversee, without any
restriction, all the acts performed by th e management, all the operations of the
company and the register of associates.” [Translation by the Registry.]
This instrument shows that the statutory oversight is oversight of the management. Hence such
oversight cannot be entrusted to an individual who is already gérant.
9. Madam President, Members of the Court, what I have just said about the right of oversight
is of crucial importance because I hereby dispose of an important point of Guinea’s arguments
which seek a ruling by the Court that, by arresting and expelling Mr.Diallo from Congolese
territory, the Congolese authorities deprived him of the possibility of exercising his right to oversee
3
Africom and Africontainers . As gérant, Mr.Diallo could no longer be an auditor within the
meaning of the aforesaid Articles71 and75. Hence no act by the Congolese authorities could
2
CR 2006/51, pp. 29-34, paras. 14-19.
3CR 2006/51, pp. 32-33. - 6 -
12 deprive him of a right which he did not exercise in those two companies in his particular
circumstances.
10. The only property right cited by the articles of Congolese law, that of being paid
dividends and liquidation bonuses, does not require as a condition of its enjoyment that the holder
live in the Congo. An associé may receive dividends or share of liquidation proceeds anywhere in
the world. Furthermore, the functional rights, namely the right to be appointed managing director
(gérant), the right of the associate manager (associé gérant) not to be dismissed without cause, the
right of the managing director to represent the company, and the right to take part in general
meetings, are not such as to be essentially affect ed by the physical absence of the holder from the
headquarters of the company. These are all right s which may be exercised even from a distance
through the delegation of powers. As I said in my oral statement the day before yesterday, modern
communications and simply the possibility of delegating tasks to local administrators, including
through the appointment of a new managing director (gérant), are undeniably all facilities for
managing a company in the DRC or elsewhere. The poverty of Mr.Diallo alleged by Guinea to
explain the impossibility at such action has not been proven; it cannot therefore be accepted. On
the other hand, it can plausibly be asserted here that Mr. Diallo made a fortune in the Congo. Did
he not claim to have paid US$13 million in surplus rentals to PLZ?
11. It is therefore clear, Madam President, Members of the Court, that the arrest and
expulsion of Mr. Diallo have not infringed his pe rsonal rights recognized by Congolese legislation.
The acts which violate the personal rights of shareholders are acts of interference in relations
between the company and its shareholders. Typical examples were given you in the Salvador
Commercial Co. case. And in that case the acts concer ned were the following: the arbitrary
replacement of directors of the company, the calling of meetings of governing bodies of the
company without warning the majority shareholde rs, refusal to allow shareholders to consult
certain company documents, and so on 4.
4
RIAA, Vol. XV, pp. 474-475. - 7 -
13 II. Guinea’s protection of Mr. Diallo in his capacity as a shareholder of Congolese companies
for the prejudice suffered by them is not possible as international law stands today
12. Madam President, Members of the Court, Guin ea claims that international law enables it
to protect Mr.Diallo as a partner (associé) in Congolese companies for the prejudice suffered by
those companies; that there is indeed an exception to the rule th at shareholders are not protected,
which enables a State to exercise diplomatic prot ection over the shareholder of a company which
has the nationality of the Respondent; that this exception set forth in the Barcelona Traction
Judgment has now become a customary norm. Guinea further argues that the particular
circumstances of the current case support the application of equity.
13. The DRC will show that positive interna tional law does not recognize an exception by
which a State can exercise diplomatic protecti on, where the shareholder of a company has the
nationality of the respondent State and also that there is no special circumstance permitting the
application of equity in the present case.
1. International law does not recognize an exception enabling a State to exercise diplomatic
protection where the shareholder of a company has the nationality of the respondent State
14. Madam President, contrary to what Guin ea says, neither the Court’s jurisprudence nor
State practice recognizes the possibility of diplomatic protection by substitution.
15. In the Barcelona Traction case, the Court did not conclude that such a possibility existed
under positive international law. This is clearly shown by the wording of the Judgment and the
separate opinions of certain judges.
16. In paragraph 93 of the 1970 Judgment, the Court says:
“On the other hand, the Court considers that, in the field of diplomatic
protection as in all other fields of international law, it is necessary that the law be
applied reasonably. It has been suggested that if in a given case it is not possible to
apply the general rule that the right of di plomatic protection of a company belongs to
its national State, considerations of equity might call for the possibility of protection
of the shareholders in question by their own national State. This hypothesis does not
correspond to the circumstances of the present case.” (I.C.J. Reports 1970, p. 48;
emphasis added.)
14 The wording of this paragraph clearly shows th at the Court had not identified the exception
suggested to it as an established norm in pos itive law. In his presentation yesterday, - 8 -
ProfessorAlain Pellet acknowledged this when he sai d that the Court did not come out clearly in
5
favour of the notion of protection by substitution in positive law .
17. Moreover, while certain Members of the C ourt, such as Sir Gerald Fitzmaurice, favoured
the hypothesis of diplomatic protection by substitution, others were fiercely opposed to it. This
was the case of JudgesPadillaNervo and Morelli. In his separate opinion, JudgePadillaNervo
wrote:
do“I not concur with the view that the national State of the shareholders may
exercise diplomatic protection when the act complained of was done by the national
State of the company, for this would be equivalent to admitting that any State, on the
pretext of protecting the interests of the shareholders of a foreign company, may deny
the existence of the legal entity of companies organized in accordance with the laws of
the national State of such companies.
I have reservations about paragraph 92 of the Judgment. For the reasons stated
above I am of the opinion that the so-called theory to which the paragraph refers does
not have any validity. The fact that the Judgment ends the paragraph with the
sentence: ‘Whatever the validity of this theory may be, it is certainly not applicable to
the present case, since Spain is not the national State of Barcelona Traction’ should
not be interpreted as an admission that such ‘theory’ might be applicable in other cases
where the State whose responsibility is invoked is the national State of the company.”
(I.C.J. Reports 1970, p. 257; emphasis in the original.)
Judge Morelli took a similar view, when he wrote:
“On the other hand it must be recognized that diplomatic protection of a
company really may be impossible when there is no foreign State to exercise it. This
would be so in the case of a company which had the nationality of the very State
whose international obligation was in question.
Nevertheless, to say that in such a cas e the national States of the shareholders
are entitled to protect the latter’s interests because there is no possibility of their
benefiting indirectly from any protection afforded the company would be to make
havoc with the system of international rules regarding the treatment of foreigners. It
would, furthermore, be a wholly illogical and arbitrary deduction.” ( Ibid.,
pp. 240-241.)
18. Nor is there any customary basis, MadamPresident, Members of the Court, for
diplomatic protection by substitution for companies having the nationality of the respondent State.
15 19. In its written pleadings and oral arguments, Guinea vainly seeks acceptance of the notion
of a customary basis for such protection by relying in turn on: arbitral awards; decisions of the
European Commission on Human Rights; the requirements of Article25 of the Washington
5
CR 2006/51, p. 38, para. 5. - 9 -
Convention; ICSID jurisprudence; and bilate ral treaties for the promotion and protection of
investments.
20. Faced with Guinea’s persistence, the DRC is obliged to repeat what it has said in its
written pleadings, which is that in each of the former arbitrations (th
e Ruden, Delagoa Bay Railway
Company, Salvador Commercial Company, Shufeldt, Alsop cases), the arbitrators based themselves
on an arbitral agreement which allowed them to adjudicate without limiting themselves to the
application of positive international law and also, and this is very important, contained a clear
6
waiver by the respondent State of any objection preventing the tribunal from ruling on the merits .
That is not the case here. So it is clear that the arbitral awards do not lay down a general régime of
diplomatic protection. The same must be said of the Biloune and ELSI cases, also cited by Guinea.
7
The DRC’s argument is developed at length in its written pleadings . I will not therefore return to
it now.
21. Madam President, Members of the Court, the references to Article 25 of the World Bank
Convention, signed in Washington in 1965 (the ICSID Convention), to b ilateral and multilateral
treaties for the promotion and protection of invest ments and to ICSID decisions lack relevance to
the present case. Indeed, as Professor Alain Pellet himself acknowledged, “these treaty provisions
and this jurisprudence... do not constitute the direct application of the principles and rules
governing diplomatic protection, and the IC SID tribunals do not fail to recall this” 8. Can it
therefore be asserted that the sheer number of bilateral agreements for the promotion and protection
of investments, agreements which moreover, do not regulate the question of diplomatic protection,
is enough to modify the general régime of diplomat ic protection? The DRC’s answer is no. The
fact that the ICSID tribunals, as the distinguished Professor so rightly noted yesterday, regularly
16
recall that treaty provisions and jurisprudence relating to the promotion and protection of
investments do not constitute the direct application of the principles and rules governing diplomatic
protection reinforces the DRC’s position.
6POC, para. 2.44.
7
Ibid., pp. 70-73.
8CR 2006/51, p. 42, para. 11. - 10 -
2. No particular circumstance permits the application of equity in the present case
22. Madam President, Members of the Court, Guinea persists in its argument that it can
protect Mr.Diallo for reasons of equity in view of the particular circumstances of this case. It
explains that the sort of equity which should be applied is equity infra legem, the one which, far
from contradicting the legal rules, underpins and ju stifies them. This solution of the evidence is
said to be required by the particular circumstances surrounding the present case, namely, the fact
that the Congolese companies concerned were suppo sedly subject to a discretionary régime, as a
result of which they thus should be called “forei gn national” companies; that they are private
companies and not limited liability companies, in which intuitu personae has a fundamental role
9
and of which the partners are sometimes liable for their companies’ debts ; that as Mr. Diallo was
the sole partner (associé) — according to Guinea — and the sole managing director (gérant) of the
two companies concerned, there is confusion between his interests and those of the companies.
23. The Democratic Republic of the Congo emphasizes that its legislation makes no
distinction between commercial companies of the same nature set up under its legislation. Nothing
in Congolese law provides for such a distinction. Even if a company has foreign partners
(associés) or shareholders, it is a Congolese company no different from one set up by solely
Congolese nationals, providing it has been properly established under Congolese law. The “foreign
national” company label attached to Africom and Africontainers to justify the request for the
application of equity is quite simply nonsense.
24. Moreover, as Mr.TshibanguKalala has ju st said in his answer to JudgeBennouna’s
questions, in Congolese law, the legal identity of private limited liability companies is different
from that of their associés. Their assets are distinct from those of their associés.
17 25. The liability of the partners (associés) of private limited liability companies does not
exceed the level of their capital contribution. No thing in Congolese law indicates the contrary. I
believe that Guinea, in asserting the contrary, has misread the law concerned.
26. There is thus no confusion between th e identity and assets of Mr.Diallo and the
companies of which he is manager (gérant) that would justify the application of equity in the
present case.
9
Ibid., p. 48, para. 25 (Pellet). - 11 -
27. Failing authorization by the Partiese Court cannot apply any equity which would
entail circumventing the rule of the exclusie protection by the State having the company’s
nationality.
28. Madam President, Members of the Court, I have thus reached the end of my presentation.
Before taking my leave, however, I would like to tell you what a great pleasure and a honour it has
been to plead before this venerable Court. I thank you for your kind attention.
Le PRESIDENT : Je vous remercie, M. Mazyam bo. Qui devons-nous appeler maintenant à
la barre ?
Mr. KISALA: May it please Madam President to call Maître Tshibangu Kalala.
Le PRESIDENT : Maître Tshibangu Kalala, vous avez la parole.
KAr. ALA:
T HE DEPORTATION OF M R. DIALLO FROM CONGOLESE TERRITORY
AND THE NON -EXHAUSTION OF LOCAL REMEDIES
1. Madam President, Members of the Court, in my presentation, I shall confine myself to
identifying the points of fact and of law on which the two States continue to differ and to refuting
Guinea’s arguments on each of those points. Guinea’s representatives who appeared before the
Court yesterday insisted on a number of occasions upon the fact that Mr. Diallo’s deportation was
illegal and was aimed at preventing him from acting to recover the monies owed to his companies.
Mr.Thouvenin even declared that, as the DRC lack ed an adequate system of legal protection,
18 Mr.Diallo could not be expected to exhaust the manifestly futile local remedies. All these
assertions, Madam President, warrant an appropriate response.
2. I am going to demonstrate to the Court th at firstly, Mr. Diallo’s expulsion from Congolese
territory was lawful; secondly, Mr.Diallo’s ex pulsion could not prevent Africontainers and
Africom from recovering monies due to them through the courts; thirdly, Mr.Diallo’s alleged
impoverishment could not prevent Africontaine rs and Africom from using local remedies to - 12 -
recover their debts; and lastly, the DRC has an adequate system of legal protection. I shall
therefore begin by showing that proceedings for the expulsion of Mr. Diallo were lawful.
I. Mr. Diallo’s expulsion from Congolese territory was lawful
3. During his pleadings yesterday Mr. Forteau said that the requirements as to the statement
of reasons, procedure and prior consultation imposed by the Congolese Law on immigration
control were not respected by the authors of the expulsion decree and that the Congolese authorities
acted in obvious haste, without troubling themse lves to respect the applicable procedural and
formal requirements 10.
4. Madam President, the DRC has already explained to the Court that Mr.Diallo was
expelled from Congolese territory pursuant to the Congolese Law of 12September1983 on
immigration control. The Congolese authorities did not act in haste. It should be
noted that the
expulsion order was made on 31 October 1995, whereas Mr.Diallo was not conducted to the
frontier until 31 January 1996, three months later. So it cannot be said that there was undue haste
on the part of the Congolese authorities.
5. It is true that the notice signed by th e immigration officer unfortunately referred to
“refusal of entry” (refoulement) instead of “expulsion” (expulsion). Despite this error, however, it
is indisputable under the order of 31October1995 that this was indeed an expulsion and not a
refusal of entry.
6. Basically, Mr.Diallo was expelled on the grounds clearly stated in the expulsion order
issued against him by the Congolese Prime Minister: Mr.Diallo’s presence and conduct was
19 endangering Zairean public order, especially in economic, financial and monetary terms. Therefore
the Congolese authorities could not in a legal document specify all the individual acts of which
Mr.Diallo was accused. The DRC has explained to the Court that the expulsion order against
Mr.Diallo was not an act of revenge or persecution directed against him personally, because
several foreign nationals had been similarly a ffected during the same period. Guinea has not
replied to this argument by the DRC.
10
See CR 2006/51, paras. 28-29. - 13 -
7. Madam President, Members of the Court, in his pleadings yesterday Mr.Forteau was
sceptical as to whether a letter (sent by Mr.Diallo to foreign officials) could by itself create the
11
slightest disturbance to public order . On this subject I would remind Mr.Forteau about what
happened recently in France, a country he knows well. An Algerian Muslim cleric had made
statements indicating the places on a wife’s body th at her husband could strike in order to punish
her. The French authorities regarded these statem ents as likely to cause a serious breach of public
order in France and expelled the pe rson concerned to Algeria. So it is easy to understand that in
Algeria or other Muslim countries people might be sceptical, to use Mr. Forteau’s word, about such
statements causing a breach of public order in France.
8. This is to say that every country has its own idea of public order and of the values that it
embodies. In the view of the DRC, a young African State that needs to attract foreign private
investment in order to develop its many natu ral resources, the international publicity that
Mr.Diallo was giving to his extravagant and exorbitant financial claims was destabilizing the
economic operators affected and so was prejudicial to Congolese public order.
9. Mr.Forteau, in ironic mode, added that he could not see how a letter dated
3Novembe1 r995 could have been the gr ounds for the expulsion order issued on
31 October 1995, a month before the said letter. He thus raises an issue of chronology.
10. Madam President, I wish to point out to the Court that, contrary to Mr.Forteau’s
allegations, the expulsion order bears the date of 31October 1995 but was implemented only on
31 January 1996, three months later. But between the two dates Mr. Diallo, without knowing that
20 there was already an expulsion order against hi m based on serious grounds, made his position still
worse by publicizing the letter in question, i.e., the chronology holds good, because the expulsion
order was implemented two months after Mr.Dia llo’s letter, which by itself does not justify
expulsion, even though it is an act prejudicial to Congolese public order. It should be said that
DRC special services had had Mr. Diallo under surv eillance for several months and were receiving
regular reports on his general conduc t and on his contacts. All this culminated in his expulsion on
31 January 1996.
11
See CR 2006/51, subpara. 6. - 14 -
11. Guinea stresses that the D RC lacks evidence in support of its allegation that Mr.Diallo
12
was a financial criminal and briber .
12. To take one example among so many, Mr. Di allo obtained and added to the papers filed
with the Court a copy of the subm issions of the Public Prosecutor (Ministère public) at the
Supreme Court of Justice of the DRC supporting th e argument of Africom and Africontainers in
13
cases against PLZ and Zaire Fina . Madam President, the public does not have access to these
documents as long as the Supreme Court of Justice has not given judgment on the appeals brought
14
before it . How was Mr. Diallo able to obtain these secret documents except by corrupting a venal
official?
13. In conclusion, Madam President, Members of the Court, Mr.Diallo’s expulsion from
Congolese territory was decided upon and put into pr actice in accordance with the legislation in
force. Also, if Mr. Diallo had appealed to the Congolese authorities for permission to return to the
DRC, that appeal would have had a genuine pr ospect of success, as witn ess the success of foreign
nationals who did make such an appeal.
14. Madam President, Members of the Court, I now come to the second point in my oral
pleadings, to show the Court that Mr.Dia llo’s expulsion could not prevent Africom and
Africontainers from using the local remedies avai lable within the Congolese legal order to recover
monies due to them from third parties.
21 II. Mr. Diallo’s expulsion could not prevent Africom and Africontainers from exhausting
the local remedies provided within the Congolese legal order
15. Madam President, Members of the Court, we now come to the heart of the dispute
brought before the Court by Guinea. During yesterday’s pleadings almost all the representatives of
Guinea repeated the same refrain in chorus: Mr.Diallo’s expulsion from Congolese territory
prevented Africom and Africontainers from exhausting local remedies. We heard this refrain all
day yesterday.
1See CR 2006/51, p. 14, paras. 9-10.
13
See MG, Anns. 146 and 149.
1See MG, Anns. 146 and 149. - 15 -
16. On this point Mr.Thouvenin stated in his oral pleadings yesterday that the DRC could
not avail itself of failure to exhaust local reme dies because the injured parties were manifestly
15
prevented from pursuing them .
17. I shall now explain to the Court that this allegation is completely without foundation and
is based on a fundamental error.
18. Madam President, Members of the Court, as I have just explained in my answer to the
question put by the Court, Mr.Diallo is not to be confused with the two companies, Africom and
Africontainers. I understand that the Applicant cannot know Congolese law; that is normal,
because the Congo cannot know Guinean law either. But in that case, one must show modesty and
refrain from launching into dogmatic statements on an issue one does not fully grasp. Under
Congolese law, Mr.Diallo has legal personality an d property completely separate from the legal
personality and property of each of the companies to which I have just referred. The Applicant’s
fundamental error in the present case is to assert that Africom and Africontainers are one-man
companies, i.e., they have only one member (associé), Mr.Diallo. On the basis of this assertion,
which is totally erroneous as I pointed out in my an swer to the question put by the Court, Guinea is
merging the legal personality and property of Mr. Di allo with the legal personality and property of
those two companies. That, Madam President, Members of the Court, is contrary to Congolese
law.
19. In the light of what I have just said, it is quite wrong to maintain, as Mr. Thouvenin does,
that Mr.Diallo’s expulsion prevented the two companies concerned from exhausting the local
remedies available in the DRC to recover monies ow ed them by third parties. Madam President,
22 Members of the Court, the two companies, which still exist ⎯– at the end I will return to
Africom’s situation ⎯ continued to operate long after Mr.Diallo’s expulsion. Africontainers
appointed Mr.Kanza ne Kongo as manager (gérant) in place of Mr.Diallo, as witness the letter
dated 12February 1996 ⎯ therefore after Diallo’s expulsion ⎯ sent to him from the company’s
lawyer, MaîtreBizimana Nsoro. Madam President, Members of the Court, you will not find this
document in the judges’ folder, because I have not filed it there, but in Annex 201 of the Memorial
15
See CR 2006/51, paras. 9 and 11. - 16 -
of Guinea, Volume II. Thus the new manager (gérant) was supposed to have full powers. I return
to the point to say that the letter is indeed stated to be “for the attention of Mr.Kanza, manager
(gérant)”. The Court will examine this document. This new manager (gérant) was supposed to be
fully empowered to take legal action or to appear before other bodies for and on behalf of
Africontainers, as he did, for example, when re presenting Africontainers during negotiations with
Gécamines in July 1997 16, nearly two years after Mr. Diallo’s expulsion.
20. Madam President, Members of the Court, if the DRC had expelled Mr. Diallo to prevent
his two companies from recovering the monies due to them ⎯ because this was said to be the
motive ⎯ the best solution would have been simply to expropriate the two companies concerned
or, for example, to prohibit the negotiations betw een Gécamines and Africontainers organized well
after Mr. Diallo’s expulsion. But this was not the policy of the Congolese Government towards the
companies in question, which have continued to operate as in the past.
21. Mr.Thouvenin also stated in his oral pl eadings yesterday that “the incapacity to act
which is at issue here results directly from the threats weighing on the company manager and the
17
denial of entry into the territory decreed against him” .
22. Once again, Madam President, Members of the Court, this statement is completely
erroneous and based on a fundamental error, to wh ich I have already referred in the course of these
oral pleadings, namely: Diallo Africontai ners and Africom, and Africontainers and
Africom = Diallo. This is completely wrong, in fact and in law.
23 23. In sum, Madam President, Members of the Court, Mr.Thouvenin’s contention that
Mr.Diallo’s expulsion by the Congolese authorities could prevent Africom and Africontainers
from exhausting local remedies is unfounded both in fact and law and must therefore be rejected
outright by the Court. As I have said, that c ontention is based on a serious fundamental error,
which is to merge into a single legal pers onality and into a single corpus of property three legal
personalities and three corpora of property which are completely separate: those of Mr.Diallo,
Africom and Africontainers. There lies the funda mental error which explains the confusion in
which the Applicant has become bogged down in the present case.
16
See MG, Anns. 224 and 226.
17
See CR 2006/51, p. 55, para. 17. - 17 -
24. Madam President, Members of the Court, I shall now turn to the third point in my oral
statement, showing that Mr.Diallo’s allege d poverty could not prevent the two Congolese
companies from pursuing and exhausting local remedies.
III. Mr. Diallo’s alleged poverty could not prevent Africom and Africontainers
from pursuing and exhausting local remedies
25. In his statement yesterday, Mr.Thouvenin told the Court: “Mr.Diallo’s financial
situation is, in itself, without relevance to the rule regarding the exhaustion of local remedies. Rich
or poor, no matter: the rule is the same for all.” 18 The Democratic Republic of the Congo is
delighted at this spectacular 180-degree turn, and I hope that no mishap befell my friend
ProfessorThouvenin in executing this dangerous manoeuvre, a reversal of position by the
Applicant, which I would ask the Court to note for the record. Guinea thus waives any reliance on
its national Diallo’s lack of financial resources, even though this was the key point in its attempt to
justify his failure to exhaust the local remedies available in the DRC.
26. In other words, and Guinea admits this, from Guinea Diallo could easily have engaged
Congolese lawyers ⎯ and still could ⎯ to take legal action in the name and on behalf of Africom
and Africontainers to recover de bts owed to them by third parties. Thus, his expulsion from the
24 Congo is not a “factual denial of access to local remedies” or an obstacle preventing him from
safeguarding his rights or those of his companies in the DRC, poverty no longer being an obstacle
for him.
27. It follows that the entire legal and fact ual edifice erected on Mr. Diallo’s expulsion as a
major, insurmountable obstacle to the exhaustion of local remedies comes crashing down.
28. Moreover, Africom and Africontainers are not poor and do not lack the financial
resources to pursue and exhaust local remedies to recover the money owed to them. These
two companies are not poor. But, Madam President, the two companies were not expelled from the
Congo. It is Diallo who was expelled. In th is regard Mr.Diallo himself has said that his
twocompanies are thriving ⎯ that is his term ⎯ in other words, rich. Thus, in his letter of
4February1998 to the President of the Democra tic Republic of the Congo, Mr.AlphaO.Diallo,
18
See CR 2006/51, p. 55, para. 20. - 18 -
Mr. Diallo’s Guinean lawyer, wrote to President Kab ila that his client Diallo “left behind him two
thriving companies which he set up, together with claims which were certain, liquidated, and
due . . .”9.
29. It is undeniable from what I have just explained that Mr.Diallo’s expulsion from
Congolese territory cannot be a “factual denial of access to local remedies” existing in the DRC
either for Mr. Diallo himself or for Africom and Africontainers, which are rich and have not been
expelled from the Congo.
30. Madam President, Members of the Court, I shall now address the last point in my oral
statement, which concerns the functioning of th e Congolese judicial system and in which I shall
show that it operates satisfactorily.
IV. The DRC has an adequate system of judicial protection
31. In his statement yesterday, Mr.Thouvenin criticized the Congolese judicial system ⎯ I
am citing Mr. Thouvenin in friendship and not . . . because he is my main opponent in this part of
my statement ⎯ claiming that: first, the Government had discretionary power to strike down court
decisions and that any judicial redress which the companies or Mr.Diallo might have sought
25
against the Government would necessarily have ended in a decision by that Government based
strictly on political considerations; and, sec ond, assuming that recourse seeking remedies could
have been effectively initiated, the unreasonable de lay in the domestic proceedings in which the
companies had already been involved showed the fu tility of it. He argued from this that the DRC
did not have an adequate system of judicial protection at the time and that the unreasonably
protracted domestic proceedings made local remedies inapplicable 20.
32. Madam President, Members of the Court, these uncalled-for assertions, which are clearly
exaggerated and, I would say, verge on insults to the worthy judges in the Congo who dispense
justice every day, sometimes at the risk of their own lives, call for serious rectification on my part.
33. First, Mr. Thouvenin said that, on the Congo’s own admission , the enforcement of court
decisions at the time of the events depended on the government’s goodwill. He added that the
19
See MG, Ann. 245.
2See CR 2006/51, pp. 59 and 60. - 19 -
Congo’s written pleadings state that, whatever remedy might have been sought , the final decision
lay with the government, which enjoyed total discretionary power.
34. Madam President, Members of the Court, that assertion is wrong through and through .
Mr. Thouvenin cited no page, no paragraph, from the DRC’s pleadings where that statement can be
found. The DRC therefore sees this as wholly inadmissible denigration of the Congolese judicial
system and as a token of the Applicant’s desperation.
35. Any reasonable person can easily see that the Congolese Government cannot intervene in
all judicial decisions, handed down daily by lowe r and higher courts throughout the DRC’s vast
territory. The DRC is amazed that Mr. Thouvenin has failed to grasp such an elementary truth.
36. The DRC did however state in its written pleadings that in very, very rare cases the
enforcement of a legal decision may be stayed where serious public disturbance might otherwise
result. Mr.Thouvenin knows better than anyone that peace can sometimes take precedence over
justice. In these cases, a group of senior judicial officials, not politicians, brought together within
the Inspectorate-General of Judicial Services, is as ked to determine the lawfulness of the decision.
26 This, Madam President, Members of the Court, affects a tiny number of decisions handed down by
the lower and higher courts in the DRC.
37. In respect of the judgment against the Shell oil company won at first instance by
Africontainers, the Ministry of Justice, after having ordered a stay of the execution and acting with
the concurrence of senior judicial officials in the Inspectorate-General of Judicial Services,
authorized the resumption of enforcement.
38. The Congolese Government does not have the power to command judges to decide cases
one way or another; nor does it ever do so. The best proof of this, Madam President, Members of
the Court, is that Africom and Africontainers won or lost cases without any interference by the
Congolese Government.
39. In the light of the foregoing, the DRC finds Mr. Thouvenin’s comments to be totally out
of place and tantamount to malicious propaganda against the Congolese judicial system. His
assertions are not appropriate legal arguments but merely caricature the Congolese judicial system.
As caricature, they are wholly inadmissible by the Court. - 20 -
40. Secondly, Guinea seeks to evade the exhaustion-of-local-remedies rule by claiming that
any such remedies were futile, given the unreasonably long time they took in the present case. In
this connection Mr.Thouvenin asserted that the two cases pending before the Supreme Court of
21
Justice were still undecided after thirteen and fourteen years of proceedings . He argues from this:
“This provides a perfect demonstration of the futility of the remedies which Mr.Diallo’s
22
companies, or indeed he himself, might have done their utmost to seek.”
41. Madam President, Members of the Court, the DRC has already explained in its written
pleadings the reasons why the Supreme Court of Justice generally takes time in handing down
judgments. I shall therefore not go over them again here, and would ask the Court to refer to those
pleadings.
27 42. But the DRC does wish to draw to the attention of the Court that, on 30 November 1995,
when the two companies in questio n had only just lodged appeals to the Supreme Court of Justice,
Mr.Diallo sent a copy of the letter setting out his companies’ financial claims to the President of
the International Court of Justice, that is to say to you yourself, to inform the President of the
situation even then. It therefore comes as no su rprise that Mr.Diallo later prevailed on the
Applicant to seise the Court of an action in diplomatic protection to recover the debts involved.
43. So it is not because local remedies provided for in the Congolese judicial system are
futile that Mr. Diallo has had a diplomatic protecti on claim brought in his favour. It is simply the
implementation of a long-standing plan on Mr. Dia llo’s part, as evidenced by the letter to which I
have just referred.
44. Madam President, Congolese justice is among the swiftest in the world. As proof of
this, I cite the relatively short time, only two years, for the handing down of enforceable judgments
23
in the Africom Zaire versus PLZ and A fricontainers versus Zaire Fina cases . Just twoyears ⎯
trial level, appellate level. And, as these ar e civil and commercial cases decided at the appellate
level, the filing with the Supreme Court of an appeal for them to be quashed does not stay their
2See CR 2006/51, p. 61, para. 42.
22
See CR 2006/51, p. 62, para. 43.
2See CR 2006/51, p. 61, para. 61. - 21 -
execution. This means that Mr.Diallo and hi s companies cannot complain of any so-called
unreasonable slowness of domestic proceedings in the DRC.
45. Madam President, Members of the Court, once again we are dealing with an assertion in
support of which no serious argument has been made or irrebuttable proof adduced. What I have
just said is very important. Madam Preside nt, Guinea is trying to take cover behind
Mr.TshibanguKalala in an attempt to get itsel f out of a tight spot. No, MadamPresident,
Members of the Court, I will not let Mr. Thouve nin use my letters from 2002 to mask the Republic
of Guinea’s weakness. No, my friend Thouvenin, no! You are not going to get out of it like that,
by rhetoric and semantic tricks. No! One a nd all must assume their responsibilities before the
Court, all their responsibilities.
28 46. Madam President, Members of the Court, the Republic of Guinea, a brother people, as
we say in Africa, dogmatically claims that the Supreme Court of Justice of the DRC has yet to hand
down judgments in the two cases concerned. T hus, it accuses the Congolese judicial system of
being too slow and argues from that that there was no point in exhausting local remedies.
47. According to the Latin maxim accusatori incumbit probatio , well known to lawyers,
Guinea bears the burden of producing to the Court a written, and therefore irrefutable, document
showing that the Supreme Court of Justice of the DRC has not yet, as we argue this case in
November 2006, rendered its decisions in the two cases. The evidence to be produced to the Court,
MadamPresident, with a view to persuading the Court, cannot consist, my dear Thouvenin, of a
mere statement that the DRC’s failure to prove th e contrary shows that the Supreme Court of the
DRC has not yet handed down those decisions. That, Mr.Thouvenin, is not how evidence is
adduced before this distinguished Court.
48. To do so is tantamount to requiring the accu sed, the DRC, to prove a negative, that is to
say to produce a diabolicum probatio if you will, while the accuser, the Applicant, offers no
reliable evidence in support of its accusation. A nd Mr. Thouvenin is bette r placed than anyone to
know that diabolicum probatio is rejected by all serious lawyers.
49. Thus, Madam President, Members of the Court ⎯ and this is important ⎯ the DRC asks
the Court to find, to place on record, that there is no document, no piece of evidence, produced by
Guinea in the record now before the Court showing that the Supreme Court of Justice of the Congo - 22 -
has not yet handed down its judgments in the two cases in question. It follows that any assertion to
the contrary by Mr. Thouvenin has no credible b asis and must be rejected, for what would happen
if the Court were to consider that the Supreme Court of Justice of the DRC had not yet rendered the
judgments awaited in those two cases, when those judgments had in fact already been handed down
several years ago?
50. Madam President, Members of the Court, I cannot conclude my statement without, as
requested by the Congolese authorities, expressing the DRC’s indignation and anger at the way the
Court is being treated by Mr.Diallo and the Applicant. Throughout these proceedings the
29 Applicant has over and over again described Africo m-Zaire as a company belonging to Mr. Diallo
as its sole associé and gérant.
51. However, Africom, incorporated on 1J5anuar1 y988, has three associés:
Mr. Heirbaut Guido Jean-Henri Marie (a Belgian), MununN a yota (a Congolese) and
Mr. Ronaldo Cazier (a Belgian). Mr. Diallo is not an associé in that company and is therefore not
its sole associé. After long, painstaking research in old records in the Clerk’s Office of the Trade
and Companies Register of the city of Kinshasa, the Respondent (the DRC) succeeded, just a few
days ago alas, in obtaining Africom-Zaire’s articles (statuts). But, under the Court’s binding rules
of procedure, the DRC could not, and cannot, submit this document without having first given a
copy to Guinea. The DRC now expressly reserves th e right to file this document in the later phase
of the proceedings.
52. But, pending that, the DRC would point out to the Court that it is no accident that Guinea
produced only Africontainers’ articles in Annex 1 of its Memorial and nothing, absolutely nothing,
in respect of Africom. And the Court will thus understand why the DRC has always treated
Mr.Diallo as an extremely dangerous man, who ventures to try and manipulate even a court as
prestigious as this one to enrich himself unjustly.
53. I am willing, purely as a gesture to a colleague, to provide Professor Alain Pellet, if he so
requests and outside any formal proceeding, with a copy (of the articles) so that he can review
them. In summary, Madam President, Members of the Court, Mr.Diallo’s expulsion from
Congolese territory in January1996 could not prev ent him or Africom or Africontainers from
exhausting the effective local remedies available in the internal Congolese judicial order. Further, - 23 -
the DRC has an adequate system of judicial pr otection which functions correctly and dispenses
justice for all inhabitants. Mr.Diallo and his two companies were and are under an obligation to
exhaust local remedies before bringing proceedings before the Court via diplomatic protection.
Any arguments by the Applicant to the contrary are without merit and must be rejected by the
Court. I thus conclude my statement today.
30 Madam President, Members of the Court, I thank you for your kind attention.
MadamPresident, I now ask you to give the fl oor to AmbassadorMasangu-a-Mwanza, as Agent,
so that he may present the DRC’s submissions.
Thyonu.
Le PRESIDENT: Je vous remercie, Maître Ts hibangu Kalala. Dois-je comprendre que la
République de Guinée souhaiterait intervenir ? Avant de vous donner la parole, Excellence,
M. Pellet, vous avez la parole. One moment please, Your Excellency.
Mr. PELLET: Merci beaucoup, Madame le préside nt. In his statement Mr. Kalala referred
to an important document, which he claims to ha ve discovered a few days ago. I shall take the
liberty of pointing out that this document could have been produced under Article 56 of the Rules
of Court. He offered to provide the document to Guinea, which would be most grateful to him for
transmitting it today through the Registry. Thank you, Madam President.
Le PRESIDENT: Je vous remercie, M. Pellet. Je donne maintenant la parole à S. Exc.,
l’ambassadeur Masangu-a-Mwanza.
Mr.MASANGU-A-MWANZA: Madam President , Members of the Court, throughout the
course of these oral arguments you have heard th e reasons which bring us here today. The
Democratic Republic of the Congo would like to present its submissions to you.
The Democratic Republic of the Congo respectfully requests the Court to adjudge and
declare that the Application of the Republic of Guinea is inadmissible,
(1) on the ground that the Republic of Guinea has no status to exercise diplomatic protection in the
present proceedings, since its Application seek s essentially to secure reparation for injury
suffered on account of the violation of rights of companies not possessing its nationality; - 24 -
(2)on the ground that, in any event, neither th e companies in question nor Mr.Diallo have
exhausted the available and effective local remedi es existing in the Democratic Republic of the
Congo. Accordingly, as to us, the Application is without merit. Thus, we ask that you
adjudicate.
31 Thank you, Madam.
Le PRESIDENT : Je vous remercie infinime nt, ambassadeur Masangu-a-Mwanza. La Cour
prend acte des conclusions finales dont vous ven ez de donner lecture au nom de la République
démocratique du Congo.
Les audiences reprendront le vendredi 1 erdécembre à 10 heures pour entendre la République
de Guinée en son second tour de plaidoiries.
L’audience est à présent levée.
L'audience est levée à 16 h 30
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