EUPillar La Générale des Carrières et des Mines (‘Gécamines’) SARL v Marange Investments (Proprietary) Limited - RG 11/89/A

Summary

In 2000, Mr. Rootman brought an action against the Democratic Republic of Congo and Gécamines before the High Court of South Africa in payment of a debt in the amount of 12,328, 563 USD. On 11 November 2000, Mr. Rootman and Gécamines entered into a settlement agreement amounting to 10,000,000 USD. The High Court of South Africa confirmed this settlement agreement in unilateral proceedings initiated by Mr. Rootman, but later Gécamines alleged the document was a fake. The High Court then decided, on 3 December 2000, that Mr. Rootman was not allowed to enforce the settlement agreement until the question of its authenticity would be settled. On 9 May 2008, Mr. Rootman assigned the debt resulting from the settlement agreement to Marange Investments. Gécamines was notified of the assignment on 25 June 2010. On 21 June 2010, the enforcement judge of the tribunal de grande instance of Paris awarded a provisional mortgage to Marange Investments on one of Gécamines properties in Paris, enough to cover the principal of the assigned debt. Gécamines appeal against the decision was rejected on 27 September 2011 but another appeal is pending. On 10 October 2011, the enforcement judge allowed Marange Investment to proceed – as a safeguard measure – with the seizure of the rent Gécamines receives from the building. On 7 October 2010, Marange Investments seised the enforcement judge of Brussels to request the protective attachment of two immovable properties of Gécamines in Brussels, enough to cover the interests on the principal. The enforcement judged granted the request. Gécamines brought third-party proceedings against the decision of the enforcement judge. Marange Investments argues that the enforcement judge in Brussels should stay the proceedings until there is certainty on the third party proceedings which are pending against the decision of the tribunal de grande instance of Paris of 27 September 2011. At the very least, the enforcement judge of Brussels should recognise the judgment of 27 September 2011, whose findings of fact have the force of res judicata. The enforcement judge considers that pursuant to Art. 33(1) Brussels I Regulation a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. Art. 37 provides that a court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged. The recognition extends to all the effects a judgment may have except for those relating to its enforcement. A foreign judgment which has been recognised must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given. Gécamines does not invoke any of the grounds of refusal of recognition of Art. 34 Brussels I Regulation. Therefore, the judgment of 27 September 2011 must be automatically recognised. However, the enforcement judge also points out the limits to the force of res judicata: In Belgium, all decisions of the enforcement judge are provisional and can be reviewed and rescinded by the court of merits. The force of res judicata does not extend to the questions related to the substance of the case which have not effectively been debated. The parties are allowed to report new circumstances which may lead the court to take a different decision than the decision which has been recognised. The enforcement judge also decides that there is no reason to stay the proceedings.