The FG Hemisphere Case: Congo's Resistance to Investor-State Arbitration or Just a Malaise with Vulture Funds?
Published 17 August 2020
The effectiveness of investor-State arbitration depends not just on the power of the arbitral tribunal to issue legally binding decisions, but also and most importantly, on the willingness of one of its key audiences, the State, to engage in meaningful practices to give full effect to those decisions. Through its conduct in the post-award stage, a State may either promote or hinder the effectiveness of investor-State arbitration. The FG Hemisphere Case is a story of the complex series of post-award legal proceedings between a US company known as FG Hemisphere (the award-creditor) and the Democratic Republic of Congo (the award-debtor) in various jurisdictions around the world. This contribution reflects on the conduct of Congo in these proceedings, with the aim to determine whether it constitutes a resistance to investor-State arbitration system, or it just expresses an uneasiness or malaise with vulture funds within this system. Thus, after unearthing and unpacking the legal arguments underlying such conduct in four main episodes of the case, it is found that Congo seems not to have intended to simply undermine the authority of the arbitral tribunal, but to oppose the practices of companies such as FG Hemisphere, which, like vulture funds, allegedly pursue illegitimate profits by investing in distressed assets, including complex litigation. However, our findings herein should not be transposed to other cases in which Congo defaulted in complying with arbitral awards against it, nor should they be interpreted as excluding the fact that Congo - like any party who fails or refuses to comply with an arbitral award - might have just relied on the relevant legal means to resist the enforcement of FG Hemisphere's claim.