Non Corrigé Traduction
Uncorrected Translation
CR 2010/4 (traduction)
CR 2010/4 (translation)
Lundi 26 avril 2010 à 15 heures
Monday 26 April 2010 at 3 p.m. - 2 -
8 The VICE-PRESIDENT, Acting President: Pleas e be seated. The sitting is open. Before
giving the floor to the Co-Agent of the Democrat ic Republic of the Congo to continue his oral
argument, I would first like to inform you that, in accordance with Article 53 of the Rules of Court,
the Court, after ascertaining the views of the par ties, has decided that copies of the pleadings and
documents annexed shall be made accessible to the public today.
Secondly, the Court has just received a requ est from the Democratic Republic of the Congo
for a little more time to reply to the question put this morning. I wish to inform you,
Mr. Co-Agent, that you are at liberty either to re ply during this afternoon’s hearing or, if you need
to make further researches, you may reply in writi ng, but the written reply must be transmitted to
the Registry of the Court by lunchtime tomorrow, Tuesday, so that the Republic of Guinea, if it so
wishes, can comment orally during its second round of oral argument. I now give you the floor,
Mr. Tshibangu Kalala. You have the floor, Sir.
Mr. KALALA: Mr. President, thank you. I shall begin with the first question you asked me,
just for information, concerning the Congolese Constitution which was in force in 1996 when
Mr.Diallo was expelled. Mr.Vice-President, Members of the Court, I have the original of that
Constitution before me, which I ha ve brought along. For the convenience of the Court, I have
made a photocopy which will be placed in the judges’ folder so that you can see it. It is long, but I
am going to read out for you Article 122 of the Cons titution. Just one sentence which says: “The
present Act–– in other words, the Constitution–– shall enter into force on the date of its
promulgation. Done at Gbadolité –– Gbadolité is the town where President Mobutu resided –– on
9 April 1994. Signed: Marshal Mobutu Sese Seko.” So this Constitution entered into force on
9April1994, the date of its promulgation. A nd Article121 of the Constitution says: “All legal
and regulatory constitutional provisions contrary to the Transitional Constitutional Act are
abrogated.” What does this mean? It means th at in 1996, at the time when Mr.Diallo was
expelled, it was this Constitution that was in force. It did not enter into force in 1996, it entered
into force in 1994; on 9April1994, the date of its promulgation. It did not enter into force in
9
1996. It was there long before and this provision of Article121, precisely, abrogates all the
provisions which were contrary to this Constitution, including, therefore, all the laws which - 3 -
conferred power on the President of the Republic, whereas this Constitution conferred power on the
Prime Minister in certain matters and on the Government. This is what it means.
Now, MrVice-President, I am going to comment on the question put by JudgeCançado
earlier. The question is whether I am able to reply immediately or whether I should ask for some
time to reflect? Well, Mr. Vice-President, Members of the Court, as you can imagine, I have very
great respect, very great admiration for the Cour t which has put this question to me and I cannot
reply to it just like that. I would prefer to take proper time to prepare it. As you indicated,
tomorrow before midday, I could submit, in writing, the reply which could then engage my
country, the Democratic Republic of the Congo, which I am representing here.
The VICE-PRESIDENT, Acting President: Thank you. You will have that opportunity to
reply in writing tomorrow and to file the reply by noon at the latest. Thank you.
Mr. KALALA: Thank you, Mr. Vice-President. Will you now permit me to begin the oral
argument on the substance of the question?
The VICE-PRESIDENT, Acting President: Of course, you are invited to continue your oral
argument.
KMAr. ALA:
M R. DIALLO’S DIRECT RIGHTS AS ASSOCIE IN AFRICONTAINERS ZAIRE
AND AFRICOM -ZAIRE
1. Mr.Vice-President, Members of the Court, during my oral argument I am going to deal
with the second question regarding the alleged violation of Mr. Diallo’s direct rights as associé in
Africom-Zaire and Africontainers-Zaire.
I.THE DRC HAS NOT VIOLATED M R. DIALLO ’S
10
DIRECT RIGHTS AS ASSOCIÉ
2. Mr. Vice-President, Members of the Court, in its written and oral pleadings, Guinea
accuses the DRC of having violated Mr.Diallo’s rights aassocié following his expulsion on
31January1996. But before contradicting th e arguments presented on this subject by the
Applicant, I am first going to draw attention to what the Court said in its Judgment of 24 May 2007 - 4 -
on preliminary objections, concerning the rights who se violation is alleged by the Applicant. In
this connection, the Court stated the following:
“61. As the Court recalled in the Barcelona Traction case, ‘[t]here is... no
need to investigate the many different forms of legal entity provided for by the
municipal laws of States’ ( I.C.J. Reports 1970 , p.34, para.40). What matters, from
the point of view of international law, is to determine whether or not these have a legal
personality independent of their members. Conferring independent corporate
personality on a company implies granting it rights over its own property, rights
which it alone is capable of protecting. As a result, only the State of nationality may
exercise diplomatic protection on behalf of the company when its rights are injured by
a wrongful act of another State. In determining whether a company possesses
independent and distinct lega l personality, international la w looks to the rules of the
relevant domestic law.
62. The Court, in order to establish the precise legal nature of Africom-Zaire
and Africontainers-Zaire, must refer to the domestic law of the DRC and, in particular,
to the Decree of 27February1887 on commerc ial corporations. This text states, in
Article1, that ‘commercial corporations recognized by law in accordance with this
Decree shall constitute legal persons having a personality distinct from that of their
members’.
63. Congolese law accords an SPRL independent legal personality distinct from
that of its associés, particularly in that the property of the associés is completely
separate from that of the company, and in that the associés are responsible for the
debts of the company only to the extent of the resources they have subscribed.
Consequently, [a very important point] th e company’s debts receivable from and
owing to third parties relate to its respective rights and obligations . As the Court
pointed out in the Barcelona Traction case [another important point]: ‘So long as the
company is in existence the shareholder has no right to the corporate assets.’ (I.C.J.
Reports 1970 , p.34, para.41.) This remains the fundamental rule in this respect,
whether for a SPRL or for a public limited company.” ( Ahmadou Sadio Diallo
(Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections,
Judgment, I.C.J. Reports 2007, pp. 605-606, paras. 61-63; emphasis added.)
Consequently, the Court goes on, Guinea cannot espouse any claims which Africom-Zaire and
Africontainers might have against the DRC. Therefore, Guinea cannot claim that the right to
ownership of the property or monies owed whic h these companies, not Mr.Diallo, possessed as
corporate entities, has been infringed.
11 3. Mr.Vice-President, Members of the Court, having made these clarifications, I shall now
devote myself during this oral argument to considering the question of whether Mr.Diallo’s
expulsion from Congolese territory in January 1996 allegedly entailed any violation of Mr. Diallo’s
direct rights as associé ⎯ and I stress, as associé ⎯ in his relations with Africom-Zaire and
Africontainers-Zaire. I am going to c onsider Mr.Diallo’s direct rights as associé as they are
defined, as the Court has said, in Congolese domestic law in order to show that those rights were - 5 -
not violated in this case in the context of Mr.Diallo’s expulsion. But before this, if you will
permit, I shall make a general comment to point out to the Court that there was a detailed
discussion on the concept of direct rights of associés in the preliminary objections phase. The
DRC does not intend to go back in detail here ove r what it set out on this subject in its written
pleadings. So I shall not go back over that here, to avoid pointless repetition. I would therefore ask
the Court to kindly refer to it.
4. In its Memorial, the Applicant cited the following direct rights of Mr.Diallo as having
been violated by the DRC. They are the right to a share of the profits of his companies, the right of
ownership in his companies, in particular as regards the parts sociales, the right to appoint the
gérant of the companies, the right of oversight and control in respect of all acts performed by the
management and of all operations of the companies and, lastly, the right to take part in general
meetings. In its Counter-Memorial, the DRC has replied to Guinea’s allegations on all these rights
which it alleged had been violated. But in its Reply and its oral argument last Monday, Guinea
only singled out three rights allegedly violated: the right of ownership of the parts sociales, the
right of oversight and control of the companies, and the right to appoint the gérant of the
companies. It thus follows that Guinea would appear to have ceased to rely on the violation of
other rights, to which it nevertheless referred in its Memorial. But irrespective of this, I will show
in a moment that none of these rights was violated by the DRC.
A. The DRC has not violated Mr. Diallo’s right
to a share of the profits of the companies
5. Mr. Vice-President, Members of the Court, the Applicant first asserted Mr. Diallo’s right
to a share of the profits of the two companies co ncerned. On the subject of the distribution of
dividends, Article 27 of the Articles of Incorporat ion of Africontainers, for example, states the
following:
12 “Any balance sheet surplus, after deduc tion of charges, general administrative
expenses and necessary amortization allowan ces, shall constitute the company’s net
profit. It shall be divided among the associés in proportion to their respective parts
[shares], each part conferring an equal right.
The general meeting may however decide th at all or part of the profits shall be
used to set up a special reserve fund or shar e amortization fund, or be carried forward. - 6 -
Dividends shall be payable each year on the dates and in the manner fixed by the
general meeting.”
6. Mr. Vice-President, Members of the Court, fo r the Republic of Guinea to be able to claim
any infringement of Mr.Diallo’s right to a share of the profits, it must first be shown that the
company actually distributed dividends. Guinea does not produce any accounting records for
Africontainers or Africom-Zaire, which, more over, had been commercially dormant for some
years, or any decisions by the general meeting indicating a dividend distribution to the associés.
7. Furthermore, even supposing it were established that Africontainers and Africom-Zaire
did distribute dividends, Guinea would still have to demonstrate that it was made impossible for
Mr.Diallo to receive them by the decision to expel him from Congolese territory or some other
wrongful act by the DRC. Mr.Vice-President, Guinea does not show that Mr.Diallo was
prevented from doing so by any other act imputable to the DRC in its relations with the two
companies.
8. Faced with this argument by the DRC set out in its Counter-Memorial, Guinea no longer
reverted in its Reply and oral arguments to the alleged violation of this right. Hence, I can only ask
the Court to find that Guinea’s allegations regarding the infringement of this right are unfounded.
B. The DRC has not infringed the “right of ownership in the companies,
in particular in respect of his parts sociales”
9. Mr. Vice-President, Members of the Court, Guinea has also relied on the infringement of
Mr. Diallo’s right of ownership of the parts sociales. It was not infringed at all, as I will explain in
a moment.
10. Mr. Diallo is still, as I speak here before you, the sole owner of his parts sociales. The
DRC has not done anything likely to infringe this right. Guinea acknowledges this itself. But it
claims that, while it is true that Mr.Diallo is still the owner of his parts sociales , there was
13 nevertheless indirect or creeping expropriation of his right by the DRC in emptying these parts
sociales of their real value following his expulsion. I will reply to this objection by Guinea later on
in my oral argument. I now turn to another right. - 7 -
C. The right to appoint the gérant of the companies
11. Guinea continues to stress the DRC’s violation of Mr. Diallo’s right to appoint the gérant
of Africom-Zaire and Africontainers. Mr. Vice-President, I must once again emphasize before the
Court that, in Congolese law, the right to appoint the gérant of a commercial company is not a right
of the associé, but a right of the company itself, acting through a body called the general meeting of
associés.
12. I must also point out here that Article 65 of the 1887Decree on commercial companies
states in this connection that “ Gérants shall be appointed either in the instrument of incorporation
or by the general meeting, for a period which may be fixed or indeterminate.”
For example, as regards Africontainers, wh ich is the only company whose Articles of
Incorporation have been produced before the Court, because we have nothing for Africom-Zaire, it
is stated in Article 14 of those Articles of Incor poration that: “The company shall be managed by
one or more managers (gérants) who may or may not be associés appointed by the general
meeting.” Mr. Vice-President, you will find these documents in the judges’ folder at tab 1.
It is therefore clear, Mr.Vice-President, that in Congolese law and not perhaps in Guinean
law ⎯ no offence to Guinea ⎯ the right to appoint the gérant of a commercial company belongs to
that company and not to each of its associés individually. It may even happen, Mr. Vice-President,
Members of the Court, that the gérant is appointed in the absence of a given associé, since the
quorum for a general meeting of the associés to validly meet in accordance with the company’s
Articles of Incorporation has been achieved.
13. Also, in the present case, Guinea has not demonstrated that a general meeting was
convened and that the DRC allegedly asked the other associés not to let Mr. Diallo take part in the
appointment of a new gérant or to have himself represented by a nother person of his choice. On
the contrary, Guinea has produced evidence that Mr. Diallo did participate in the appointment of a
new gérant in the person of Mr.NkanzaneKongo. Mr.Vice-President, Members of the Court,
14 you will find the document relating to this evidence which was prepared by Africontainers’ lawyer
after Mr. Diallo’s expulsion at tab 2 in the judges’ folder. And it is the same Nkanza who made an
inventory of the company’s property and represented it in the negotiations with Gécamines in 1997,
in other words over a year after Mr. Diallo’s expulsion. - 8 -
14. In the light of what I have just explained, Mr.Vice-President, the DRC requests the
Court to reject as unfounded Guinea’s allegations on the claimed violation of Mr. Diallo’s right to
appoint the gérant.
D. The right of oversight and control in respect of all acts performed
by the management and all operations of the companies
15. Mr. Vice-President, Members of the Court, Guinea is also wrong to rely on the violation
by the DRC of Mr.Diallo’s right of oversight a nd control in respect of the acts performed by the
management. It is true, and I am in agreement w ith Guinea and its supporters on this point, that in
Congolese law, an associé has the right, albeit under certain c onditions, to oversee and control the
management of the company. But in the present case, Guinea has not demonstrated that the DRC
gave the order to Africontainers not to permit Mr. Diallo to control its operations. It is established
that, although in Conakry, Mr.Diallo continue d to control the situation and obtain regular
management reports. He continued to write letters himself from Conakry addressed to the
Congolese authorities to claim payment of Africontainers’ debts. Mr. Vice-President, you will find
a copy of this letter in the judges’ folder at tab 3.
E. The right to take part in general meetings
16. Mr.Vice-President, Members of the Court, the Applicant reverted during its oral
argument to the alleged violation of Mr. Diallo’s righ t to take part in general meetings. But, alas,
for Guinea to be able to assert any violation of Mr. Diallo’s right to take part in general meetings, it
would first have to demonstrate that a general meeting was convened and that Mr. Diallo could not
attend it owing to his expulsion from the territory of the DRC. Also, the Applicant would have to
15 show, at the very least, that the DRC gave the or der to Africontainers not to consider any proxy
which Mr. Diallo might give to a third party to represent him at a general meeting. Given that no
general meeting was convened, one cannot, Mr.Vice-President, assert in abstracto that the DRC
violated Mr.Diallo’s right to take part in it. We are therefore in the same scenario as that of
Mr.Diallo’s right to a share of the profits, which I have already considered during this
presentation. - 9 -
17. As regards convening general meetings, here too this is a right of the company and not an
individual right of each associé. This is Congolese law, perhaps things are different in Guinean
law. Convening general meetings is a functional act performed by the gérant as an organ of the
company. Thus, it is the company which convenes general meetings. The only recognized right of
associés in this respect is to ask the gérant to convene a general meeti ng. I concur with Guinea
because this is what it said. Should the gérant refuse or fail to comply, the request must be
addressed to the competent court, which must convene the general meeting. Our interpretation is
the same as Guinea’s. But where we differ from Guinea is that it is therefore clear that an associé
does not have the right himself to convene a general meeting, only to request it to be convened.
That is different.
18. Since, in its Judgment of 24May2007 on preliminary objections, the Court ruled that
Guinea cannot exercise diplomatic protection in resp ect of Africontainers and Africom-Zaire, this
right of the gérant cannot be protected in the present case.
Also, Guinea has not argued that Mr.Di allo has been deprived of any rights as gérant,
confining its argument to Mr.Diallo’s personal rights and to his rights as associé. Having
explained to the Court that the DRC has not violated any of Mr.Diallo’s rights as associé in
Africontainers-Zaire and Africom-Zaire, but, and I st ress, subject to what I am going to say in this
oral argument regarding the existence of that company, I am now, Mr.Vice-President, going to
show the Court that the DRC has not expropriated Mr. Diallo’s parts sociales either.
Mr.Vice-President, once again let me appeal to your wisdom. The pressures of the time
difference during the journey, all the difficulties, etc. . . . I would like to ask you if you could call a
16 few minutes’ break so that we can suspend the h earing and I will resume the second and final part
of my oral argument after the break.
The VICE-PRESIDENT, Acting President: Thank you, Mr. Co-Agent. If this is what you
would like, we can suspend the hearing for 15 minutes and resume at 3.55 p.m. sharp. The hearing
is adjourned.
The Court adjourned from 3.40 p.m. to 3.55 p.m. - 10 -
The VICE-PRESIDENT, Acting President: Please be seated. I give the floor to
Mr. Tshibangu Kalala to continue his oral argument. You have the floor, Mr. Co-Agent.
Mr. KALALA: Thank you, Mr. Vice-President.
II. THE DRC DID NOT EXPROPRIATE M R . DIALLO OF HIS PROPERTY RIGHTS
IN THE PARTS SOCIALES
19. Mr. Vice-President, Members of the Court, the Applicant has placed great emphasis both
in its written pleadings and in the oral pleadings last Monday on the indirect expropriation by the
DRC of Mr.Diallo’s parts sociales in Africom-Zaire and Africontainers-Zaire following his
expulsion from Congolese territory. Anything but, Mr.Vice-President, as I will explain to the
Court in a few moments. To deal with this question more effectively, I am first going to say a word
on the existence of these two companies (A) be fore considering the economic value of thparts
sociales and their alleged expropriation (B), in order to demonstrate that there could not have been
any expropriation of them.
A. Existence of Africontainers-Zaire and Africom-Zaire
20. Mr.Vice-President, Members of the Court, under Congolese law, a company is a
corporate entity which is born, which lives and which can die. As regards its death, this may occur
through the wishes of its associés, in other words its creators, or by legal decision. And this
disappearance, like that of a physical person, must be properly and legally recorded. In the case of
the two companies concerned, they were created in accordance with Congolese law. To date, there
is still no irrefutable legal evidence showing e demise of these two companies. They thus
17
continue to exist, inasmuch as they have not been formally dissolved and completely liquidated. I
know that Professor Alain Pellet draws different conc lusions on this point and I do not agree with
him. So it cannot be asserted, as Guinea erroneously does, that Africom-Zaire and
Africontainers-Zaire have ceased to exist legally . The cessation of activities is one thing, legal
existence another. These two companies therefore continue to exist until their legal demise has
been recorded in accordance with the relevant legal rules. I now turn to the second point relating to
the economic value of Mr. Diallo’s parts sociales. - 11 -
B. The economic value and expropriation of Mr. Diallo’s parts sociales
21. Mr.Vice-President, Members of the Court, in its written and its oral pleadings, Guinea
asserts that Mr. Diallo’s expulsion in January 1996 allegedly resulted in the indirect expropriation
and the loss of the economic value of Mr. Diallo’s parts sociales. It concludes its argument with a
call for reparation. These allegations of Guin ea have no foundation, Mr. Vice-President, Members
of the Court, as I am going to explain in a few moments.
Cessation of the activities of the two companies several years before Mr. Diallo’s expulsion
22. Mr. Vice-President, Members of the Court, it has been established beyond doubt that the
two companies no longer had any commercial activity several years before Mr. Diallo’s expulsion
in January 1996.
23. As regards Africom-Zaire, which is a phantom company, no commercial activity and no
orders have been registered since the mid-198 0s. And even when Guinea, Mr. Vice-President, ⎯
and this is highly important, indeed symptomatic ⎯ has an inventory drawn up of the property of
Mr.Diallo and Africontainers in January 199 6, nothing, absolutely nothing, is done for
Africom-Zaire. This company was therefore al ready in a state of undeclared bankruptcy in
violation of the DRC’s laws and regulations at the very time when Mr.Diallo was living in the
DRC. I think that ProfessorAlainPellet has a reply to what is meant by “state of undeclared
bankruptcy”, because he was surprised by this e xpression when I used it in the Rejoinder. Thus,
18 this company was already in a state of undeclared bankruptcy in violation of the DRC’s laws and
regulations at the very time when Mr.Diallo was still living in the DRC. This being so,
Mr. Vice-President, it is not even possible to speak of the parts sociales having a certain economic
value for a company which was, and is, in such a situation while Diallo was still the gérant.
Another question, Mr.Vice-President, is to ascertain the actual amount of Mr.Diallo’s parts
sociales in this company, since its Articles of Inco rporation have never been produced before the
Court by Guinea.
24. Mr.Vice-President, Members of the Court, how can Guinea be so bold as to ask the
Court for reparation for the alleged i ndirect expropriation of Mr.Diallo’s parts sociales by the
DRC, when their number and amount in Africom-Za ire’s authorized capital is not known. How,
Mr. Vice-President, could the Court possibly fix the value of the parts sociales in a company which - 12 -
has been bankrupt for many years? Mr. Vice-Pres ident, Guinea’s claim regarding this company is
pure fantasy and cannot therefore be taken seriously by this prestigious Court.
25. Mr.Vice-President, Members of the Court, I now come to the case of the alleged
expropriation of the parts sociales in Africontainers. On the subject of this company, it is
established, on the basis of the written evidence incl uded in the case file by Guinea itself, that this
company has also been in a state of undeclared bankruptcy since as far back as 1991.
26. Indeed, a glance at pages 18 and 19 of Gu inea’s Memorial clearly shows that, from 1991
onwards, Africontainers provided no container trans port service for any of its main clients with
whom it had a business relationship. The table of the operations of Africontainers reproduced by
Guinea itself on page19 of its Memorial clearly shows the figure zero for the year 1991.
Mr.Vice-President, Members of the Court, you will find this table at tab4 in the judges’ folder.
Also, in Annex 198 of its Memorial, Guinea indicates that the orders of Gécamines fell year by
year, finally ceasing in 1991. Mr.Vice-President, Members of the Court, you will also find this
document at tab5 in the judges’ folder distri buted to you. Moreover, Mr.Vidal confirmed
19 Mr. Diallo’s situation in this respect when he said that he was already crippled with debt in 1995, in
other words that he had already been severely indebted for a number of years even before his
expulsion from the DRC.
27. Mr. Vice-President, French is not my mother tongue. I went to consult the Larousse and
Petit Robert dictionaries to find the word “obéré”. I saw that “obéré” means overburdened with
debt, someone who has financial burdens, who cannot make ends meet. But this was in 1995, even
before his expulsion. Mr.Vice-President, Member s of the Court, the Court had to consider a
1
similar case in 1934 in Oscar Chinn . In that case, the United Kingdom claimed reparation from
Belgium for the losses and damages allegedly suffered by the British subject Mr. Oscar Chinn, as a
result of the measures taken on 20 June 1931 by the Belgian colonial administration in the Congo
favouring Unatra to the detriment of other transport enterprises.
According to the United Kingdom, “the measure of June 20th, 1931, by depriving indirectly
Mr.Chinn of any prospect of carrying on his business profitably, constituted a breach of the
1
Oscar Chinn, Judgment, 1934, P.C.I.J., Series A/B, No. 63. - 13 -
general principles of international law, and in par ticular of respect for vested rights”. The United
Kingdom concluded its argument with a request for reparation, as Guinea does in the present case.
28. For Belgium, Mr.OscarChinn’s enterp rise no longer had any transport activity on the
River Congo and its tributaries when the colonial administration took the measure concerned, so
that this measure was not what underlay the ruin of Mr. Oscar Chinn’s businesses.
29. In its Judgment delivered in the case on 12 December 1934, the Court, after finding that
Mr. Chinn’s vessels “were laid up” before the measure complained of, declared the following:
“The Court, though not failing to rec ognize the change that had come over
Mr. Chinn’s financial position, a change whic h is said to have led him to wind up his
transport and shipbuilding businesses, is unable to see in his original position ⎯
which was characterized by the possession of customers and the possibility of making
a profit ⎯ anything in the nature of a genui ne vested right. Favourable business
conditions and goodwill are transient circumstances, subject to inevitable changes; the
interests of transport undertakings may we ll have suffered as a result of the general
trade depression and the measures taken to combat it.
20 entorprise ⎯ least of all a commercial or transport enterprise, the success of
which is dependent on the fluctu ating level of prices and rates ⎯ can escape from the
chances and hazards resulting from general economic conditions. Some industries
may be able to make large profits during a period of general prosperity, or else by
taking advantage of a treaty of commerce or of an alteration in customs duties; but
they are also exposed to the danger of ruin or extinction if circumstances change.”
(Oscar Chinn, Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 88.)
The Court concludes that: “Where this is the case, no vested rights are violated by the State.”
(Ibid.) “[I]nsufficient proof having been produced to establish according to law that the loss and
damage complained of by Mr. Oscar Chinn are th e outcome of the measures for which the Belgian
Government is blamed, no reparation is due by the latter.” (Ibid., p. 68.)
30. Mr.Vice-President, Members of the Court, Christians, who read the Bible, might have
said that, in this Judgment, the Court stated a divine truth and that it reworded a Bible verse where
nothing can be added or subtracted. The c onclusions reached by the Court in 1934 in the Oscar
Chinn case are wholly transposable to the present case. Africontainers is a transport company, like
that of Mr.Oscar Chinn. I have just demonstrat ed that Africontainers had already been bankrupt
since 1991, that its containers were “laid up”, to use the Court’s expression, unused and ravaged by
rust under the effects of the tropical storms and elements since 1991, that Mr. Diallo was crippled
with debts, that his parts sociales in this company were no longer worth anything, and, to borrow - 14 -
Mr.Müller’s image, who argued this point during his presentation, the glass was already empty;
better still, the glass was already broken at least five years before Mr. Diallo’s expulsion in January
1996.
31. How, this being so, Mr. Vice-President, Members of the Court, can an empty and already
broken glass be expropriated? What was there left that the DRC could still expropriate and to what
end? Can a serious State expropriate fresh air? How is it possible to claim, rationally and
convincingly, that an expulsion measure taken in 1996 is the root of the ruin of Mr.Diallo’s
businesses which occurred at least five years before? Mr.Vice-President, Members of the Court,
the only property belonging to Diallo which the DRC might probably have been able to expropriate
is his Citroën car. Guinea has told us that this car had neither brake linings nor exhaust. The DRC
has never either seen or touched this car.
32. Mr.Vice-President, Members of the Court, this case is one involving large sums of
money, contrary to what was stated by Mr.MohamedCamara. Mr.Diallo cast a spell on the
21 Guinean authorities by making them believe that he left behind an immense fortune in the DRC.
They fell into a base trap set by Mr. Diallo, who is a peerless seducer, a first-class manipulator.
33. Mr. Vice-President, Members of the Court, Guinea is seeking to use the Court as a debt
recovery agency or a commercial court, to enable Mr. Diallo, whose affairs were totally in tatters,
to refinance his activities. The DRC is convinced that the Court, whose wisdom, perspicacity and
knowledge of the law are a credit to this prestigious institution, is not going to fall into the trap
which has been set for it so pate ntly by Guinea, which is seeking ⎯ the oral argument by
ProfessorAlainPellet provides proof of this ⎯ to challenge the authority of the Court, by its
repeated attacks against the Judgment on prelimin ary objections, by seeking to claim payment of
the debts owed to the companies by virtue of Mr.Diallo’s rights as associé. And,
Mr.Vice-President, Members of the Court, the DRC has no doubt that the Court will reject the
argument of the expropriation of Mr. Diallo’s parts sociales put forward by Guinea as unfounded,
for reasons which I have just set out during this oral argument.
34. Overall, the DRC is asking the Court to adjudge and declare that the DRC has neither
expropriated Mr.Diallo’s parts, because they are mere fresh ai r, or violated his rights as associé,
and that no reparation is due. - 15 -
Mr.Vice-President, Members of the Court, these words bring to a close my oral argument
this afternoon. Thank you for your attention.
The VICE-PRESIDENT, Acting President: Thank you, Mr. Kalala.
That brings to an end the first round of or al argument of the Democratic Republic of the
Congo. I should like to thank both Parties for the statements presented during this first round. The
Court will meet again on Wednesday 28April, from 4p.m. to 6p.m., to hear the Republic of
Guinea in the second round. At the end of the hearing, the Republic of Guinea will present its final
submissions.
22 The Democratic Republic of the Congo, for its part, will present its oral reply on Thursday
29 April, from 4 p.m. to 6 p.m. At the end of the hearing, the Democratic Republic of the Congo
will present its own final submissions.
Each of the Parties will thus have an entire two-hour meeting in which to present the whole
of its oral reply. However, I would point out th at, in accordance with Article60, paragraph1, of
the Rules of Court, oral statements are to be as succinct as possible. I would add that the purpose
of the second round of oral argument is to enable each of the Parties to reply to the arguments put
forward orally by the opposing Party. The sec ond round must not be a repetition of the arguments
already set forth, and I would be grateful for your co-operation in this respect. It therefore goes
without saying that the Parties are not obliged to use all the time allotted to them. Thank you. The
hearing is closed.
The Court rose at 4.20 p.m.
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