Republic of Djibouti & Ors v Boreh & Ors

A public-law relationship governed the parties’ dealings concerning both the Horizon oil terminal and the Doraleh Container Terminal. A person who merely facilitates negotiations, without power to bind the public authority, is not a mandataire. Public-law damages require breach, causation and proved loss; disgorgement is unavailable.

The evidence did not establish bribery, corruption or any breach of the duty of probity. The DCT agreements were commercially advantageous overall, and their terms were knowingly approved and ratified by the President and Parliament. The claims therefore failed.

The Republic of Djibouti and associated public bodies brought claims against Mr Boreh and companies connected with him. The principal claims concerned a shareholding in the Horizon oil terminal and alleged bribery or secret commissions said to have induced disadvantageous terms in agreements for the Doraleh Container Terminal.

The claims relied on French and Djiboutian private and public law, including agency, public-service duties, delict and compensation. The Court determined whether Mr Boreh had authority to represent the Republic, whether he had breached any relevant duty, whether payments and proposed shareholdings were corrupt, and whether the Republic had suffered recoverable loss.

1. Horizon. The relationship between the Republic and Mr Boreh was governed by public law because the project had both commercial and public-service purposes, including replacing hazardous oil facilities. Mr Boreh was a collaborateur, not an agent public. He acted as a facilitator and was not given authority to negotiate or bind the Republic.
2. A person without power to perform legal acts on behalf of a principal is not a mandataire. None of the written delegations granted to Mr Boreh conferred authority to negotiate or conclude the Horizon agreements. The claims based on Articles 1991 to 1993 and 1382 of the Civil Code therefore failed.
3. The President and relevant officials knew of Mr Boreh’s Horizon shareholdings and approved the arrangements. The decision that the Republic should take a 10 per cent shareholding was the President’s own decision. The set-off of the Soprim debt and subsequent use of proceeds for cash calls were also authorised or known. No breach of duty or causative loss was established.
4. DCT. Mr Boreh was an agent public, but did not breach the duty of probity. The payments under the S Flame consultancy and security agreements were for genuine services. The proposed DCT shareholding and the finder’s fee were not bribes or promises of bribes.
5. The alleged soft terms were not disadvantageous overall. The 66.66 per cent shareholding, royalty, management arrangements and financing structure formed part of a commercially successful joint venture. DP World, lenders and political-risk insurers required effective management control and freedom from governmental interference. The President and Parliament scrutinised and approved the agreements with knowledge of those provisions.
6. All claims against Mr Boreh and his companies failed. No monetary or proprietary remedy was available.