A German company, Gustav F.W. Hamester GmbH & Co KG, is attempting to liquidate West African Mills Company Limited (WAMCO) - a cocoa processing company. Incredibly, and contrary to the laws of our country, it is being done without the consent of the minority shareholder, the Ghana Cocoa Board (COCOBOD), which has a 40% stake in the company.
Although both shareholders apparently agree to the liquidation of the company, Gustav F. W. Hamester GmbH & Co KG, wants it to be done privately - true to form for a business with an opaque company culture - whiles the COCOBOD wants it done publicly, to ensure transparency, and to obtain higher asset disposal values.
The COCOBOD, also insists on the repayment of an outstanding debt of U.S.$4.9 million WAMCO owes it, for years of unpaid supplies of cocoa beans, delivered to its factories. Yet, Gustav F. W. Hamester GmbH & Co KG has conveniently disregarded the issue of owed debt to COCOBOD, and is proceeding with the asset disposal, regardless. Amazing.
It is outrageous that such a thing can occur in Nkrumah's Ghana - and every patriotic Ghanaian must ensure that the COCOBOD prevents any such liquidation of the company's assets, by Gustav F.W Hamester GmbH & Co KG - without the settlement of the outstanding debt owed the COCOBOD by WAMCO.
As someone whose family farms cocoa organically, one cannot help but be incensed by Gustav F.W. Hamester GmbH & Co KG's unpardonable skullduggery, in this brazen attempt at destabilising the COCOBOD. A company with such dark motives run by individuals so contemptuous of our nation and its laws must not be allowed to cheat Mother Ghana and get away with it under any circumstances.
For the benefit of readers, this blog is quoting part of the report on the outcome of a claim brought against the Republic of Ghana, by Gustav F.W. Hamester GmbH & Co KG, at the International Centre for the Settlement of Investment Disputes (ICSID), which it lost.
It appears in a Thomson Reuters-owned online legal publication, Practical Law.
Please read on:
''ICSID tribunal rejects contractual claims brought under BIT
Resource type: Legal Update: Case Report Status: Published on 06-Oct-2010 Jurisdictions: International, USA
In Gustav F W Hamester GmbH & Co KG v Republic of Ghana (ICSID Case No ARB/07/24), an ICSID tribunal considered the difference between commercial and treaty claims.
PLC Arbitration
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An ICSID tribunal has rejected an investor's claims under a bilateral investment treaty (BIT) on the basis that they were contractual claims and did not constitute breaches of the BIT. The claimant, a German company, sought damages in connection with a dispute with its joint venture partner, the Ghana Cocoa Board.
The claimant failed. The tribunal analysed the nature of the claims and decided that:
The relevant activities of the Ghana Cocoa Board could not be attributed to Ghana and were purely commercial in nature.
The activities of other entities which were attributable to Ghana did not amount to a breach of the Germany-Ghana BIT.
The claimant's claims were contractual claims and did not constitute a breach of the BIT.
The dispute is a good example of a failed attempt to "repackage" purely contractual and commercial claims into investment treaty claims by a creative interpretation of the umbrella clause. (Gustav F W Hamester GmbH & Co KG v Republic of Ghana (ICSID Case No ARB/07/24).)
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Background
Article 9(2) of Germany-Ghana bilateral investment treaty (BIT) (umbrella clause) provides:
"Each Contracting Party shall observe any other obligation it has assumed with regard to its investment in its territory by nationals or companies of the other Contracting Party."
The effect of umbrella clauses is to "elevate" breaches of contract to treaty claims. For further discussion of umbrella clauses, see Practice note, Umbrella clauses.
Facts
The claimant was a German company involved in the international cocoa trade. In 1992, the claimant concluded a joint venture agreement with the Ghana Cocoa Board (the Board). Under the joint venture agreement, the claimant and the Board set up a company (West African Mills Company (Wamco)) to which the Board contributed an old factory, the modernisation of which was financed by the claimant. Wamco was supplied with cocoa beans by the Board and the entire output of the Wamco factory was sold to the claimant. Throughout the life of the project, there were constant payment disputes and problems between the claimant, Wamco and the Board.
The claimant first unsuccessfully brought proceedings against Ghana under an arbitration agreement contained in the joint venture agreement. In the present proceedings, the claimant advanced claims under the BIT.
Ghana objected to the tribunal's jurisdiction on the following grounds:
The claimant had no investment in Ghana as a matter of Ghanaian law because, from the very beginning, the investment involved fraud and breaches of fiduciary duty.
Gustav F W Hamester GmbH & Co KG v Republic of Ghana (ICSID Case No ARB/07/24) (award of 18 June 2010)."
End of quoted passage from the ICSID report published online by the Thomson Reuters-owned Practical Law website.
The question is: If Gustav F.W. Hamester GmbH & Co KG lost the case against the Republic of Ghana - which it took to the ICSID, as far back as 2007-2008, and judgement of which was finally published in 2010 - in its rip-off attempt to dupe our country to the tune of tens of millions of euros, why are they still in Ghana, flouting our laws, in 2016?
How can it be that although Gustav F.W. Hamester GmbH & Co KG lost the ICSID case, today, it is actually attempting to liquidate the company at the centre of the dispute between it and Ghana, WAMCO, without the consent of the minority shareholder (with a 40% stake), the Ghana Cocoa Board (COCOBOD)?
Would those fraudsters dare carry on in such egregious fashion in their native Germany, I ask? No, never.
So why should they be given free rein to do so here? Ghana most definitely does not need bad-faith investors who neither have a moral compass nor respect Africans. And in any case, the days when Europeans came here to exchange worthless bric-a-brac for valuable gold, are long gone, are they not?
This pure nonsense on bamboo stilts will only occur in our homeland Ghana - for nowhere else in the world, would officialdom permit this outrage to fester for so long. That it is occurring at all, illustrates perfectly, how highly-paid public officials in Ghana, who neglect their duties and never take responsibility for their actions and inactions, are seldom sanctioned.
It is an unfortunate state of affairs that is slowly ruining our homeland Ghana - and it must not be allowed to continue.
This blog's humble advice to the COCOBOD is that it ought to pass all the relevant information about the case to the media in Germany and Switzerland - who will expose the fraudulent activities of Gustav F. W. Hamester GmbH & Co KG, and their co-conspirators, Hosta International AG, of Munenchenstein, Switzerland, to the world.
It is such a pity that this is occurring now because complacent and incompetent officials have allowed a bunch of too clever by half German crooks to run rings around them.
Surely, if the case was under international jurisdiction that includes the U.S., if one's understanding of the tribunal's processes is correct, that is, then it is also worthwhile reporting them to the U.S. Justice Department, for racketeering - which is what fraudulent management practices and the slave-owner-mentality of making workers work for months on end without paying them amount to.
Since their patriotism is beyond doubt, perhaps the Centre for National Affairs' Richard Rocky E. Obeng, and The Chronicle newspaper, should show the COCOBOD how to deal with those rogues - by passing on all the information they have about Gustav F.W. Hamester GmbH & Co KG, to the media in Germany and Switzerland.
Fear of exposure by the media in those two European nations, which could lead to their being investigated, prosecuted, and eventually jailed, by the Federal Swiss and Federal German authorities, is the only way to stop those arrogant rogues - who look down on Ghanaians and think we are all stupid: because many here have been prepared to bend over backwards to assist them at every turn, since they first set foot on Ghanaian soil.
The time has now come for the COCOBOD to take immediate steps to bring the fraudulent activities of Gustav F.W. Hamester & Co KG in Ghana to the attention of the authorities and media in Germany and Switzerland. Enough is enough. Haaba.
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