BCL LIQUIDATOR: Nigel Dixon-Warren

The dispute between Norilsk Nickel Africa and BCL Group will now be heard in the London Court of International Arbitration (LCIA) as the former looks to pursue its claims against BCL for breach of agreement.

Norilsk Africa had taken the matter to the High Court of Botswana for it to pursue its claims against BCL and government of Botswana to be heard in LCIA, a request which the court turned down.

Following refusal by the court to grant such permission, Norilsk Africa subsequently took up the matter to the Court of Appeal (CoA).

On Friday, the CoA overruled the High Court’s decision and gave Norilsk Africa the go-ahead to pursue its US$271 million claims against BCL Group and Botswana government in LCIA.

The CoA also ordered that the respondent, BCL Group pay the costs of the application.

Although Norilsk Africa took a decision to terminate its sale of agreement with BCL in December, the company says it remains resolute to claim an amount of over USD271 million together with accrued interest beginning 12 October 2016 from BCL.

CoA noted that to prevent the applicants from proceeding with the arbitration in the LCIA would be to thwart them from ever proving their claims as it is believed that LCIA is the only that can determine whether the share sale agreement became unconditional and the amount of damages upon termination of the agreement.

The supreme Court also made it clear that whether these claims are legitimate or bad is not the point.

“The point is that the claims are clearly not frivolous and to deny appellants the opportunity to prove them will amount to a serious injustice which can never be endorsed by this court,” CoA said in its ruling.

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