As reported in Law360 and the New York Times, Charles Fussell & Co LLP has been acting for Katanga Contracting Services SAS (“KCS”) in its proceedings against Tenke Fungurume Mining SA since 2019.
Charles Fussell & Co LLP was initially instructed to advise on a series of contractual disputes and KCS was subsequently awarded in excess of $16,000,000 by an ICC arbitral panel. Charles Fussell & Co LLP is now advising on the enforcement of this award, including instructing Counsel in New York proceedings and seeking disclosure of TFM’s assets and applying to freeze relevant bank accounts and seeking asset disclosure in the High Court of England & Wales.
The article below is taken from Law360 https://www.law360.com/newyork/articles/1468987
Congolese Mining Co. Chases Assets In $16.7M Award Fight
By Joyce Hanson
Law360 (February 28, 2022, 8:40 PM EST) -- A Congolese mining company has asked a New York federal court to compel Bank of America to produce financial information about another mining company after gaining a U.K. court’s permission to enforce a $16.7 million arbitral award.
Katanga Contracting Services SAS said in a Friday memo supporting its request that Bank of America NA conduct expedited discovery that it seeks to enforce a valid judgment obtained in the United Kingdom over a series of contractual disputes against Tenke Fungurume Mining SA, a large copper and cobalt producer in the Democratic Republic of Congo. Katanga said it has various contracts with Tenke, including contracts for the construction of storage facilities.
Tenke maintains a Bank of America account in New York, according to Katanga, which wants the bank to disclose Tenke’s assets so that Katanga can freeze its funds as it looks to collect the award granted by an International Chamber of Commerce tribunal in London on Aug. 26 following arbitration proceedings.
Katanga Contracting Services has a reasonable belief that Tenke Fungurume Mining is taking steps to dissipate its assets or otherwise make them unreachable by transferring large sums of money previously held outside of the Democratic Republic of Congo into bank accounts within the DRC, where enforcement proceedings are considerably more difficult; Katanga said.
Tenke is now in default of its obligation to remit payment of what it owes Katanga, according to the company’s Friday petition against Bank of America. Katanga said that the initial award was $16.2 million, while the final award now totals $16.7 million.
On Dec. 13, Katanga said, it filed a claim in the High Court of Justice, Business and Property Courts of England and Wales Commercial Court, seeking disclosure of Tenke’s worldwide assets. The asset disclosure application has been set for a half-day hearing on March 25, Katanga said.
In addition, the company said, it filed an application in the High Court on Thursday for a worldwide freezing order.
Katanga now seeks discovery from Bank of America in its petition before the New York federal court in aid of the asset disclosure application and the freezing order application.
On Feb. 11, Katanga’s English counsel, Charles Fussell, received the bank’s response, which showed that Tenke’s accounts in New York contained only $1.6 million, according to Katanga. That sum has since been restrained, but there is reason to believe that Tenke Fungurume Mining previously transferred over $150 million from its Bank of America accounts to an account within the DRC. Katanga said.
Katanga’s petition requests authorization to subpoena the bank for records showing where the funds previously held in those accounts were disbursed, as well as the date or dates on which those funds were transferred.
Representatives for Katanga and Bank of America did not immediately respond Monday to requests for comment. Katanga is represented by Andrew St. Laurent and Michelle Fox of Harris St. Laurent & Wechsler LLP.
Counsel information for Bank of America was not available. The case is Katanga Contracting Services SAS v. Bank of America NA, case number 1:22-mc-00061, in the U.S. District Court for the Southern District of New York.