Displaying items by tag: Legal
China: Yang Luyu, the mayor of Jinan in Shangdong province, is being investigated for corruption by the Communist Party of China Central Commission for Discipline Inspection (CCDI). Yang has been accused of ‘serious disciplinary violations’ according to Xinhua news agency. He is also the city's Communist Party deputy secretary.
Yang was named in a writ filed with a Hong Kong court in March 2016 according to the South China Morning Post. Two companies, China Pioneer Cement (Hong Kong) and Shandong Shanshui Cement Group, allege that Yang and his deputy mayor, Su Shuwei, conspired with former company directors to take control of the Jinan plant on 7 December 2016. The ex-directors were named as Zhang Caikui and his son Zhang Bin.
China Pioneer Cement (Hong Kong) and Shandong Shanshui Cement Group are subsidiaries of China Shanshui Cement Group. Shanshui Cement has faced financial troubles since a battle for control of the company that took place in late 2015 between Tianrui Cement, its biggest shareholder, and the Zhang family, its second-largest shareholder and former owners.
Ireland: Justice Max Barrett of the High Court has ruled that the Competition and Consumer Protection Commission (CCPC) breached the terms of a search warrant by seizing the email account of a CRH executive in 2014. The court also determined that the competition body had breached the Data Protection Acts, the Irish constitution and the European Convention on Human Rights. The court added that the seized emails contained material outside the scope of the investigation.
The CCPC responded by saying it was ‘considering carefully’ the implications of the judgment and the next steps that it would take. However, its investigation into alleged anti-competitive practices by Irish Cement in the supply of bagged cement continues.
The CCPC carried out an unannounced search at the premises of Irish Cement on 14 May 2015 as part of an on-going investigation into alleged anti-competitive practices in the supply of bagged cement. During the search, the CCPC seized a number of electronic documents including the mailboxes of a number of current and former employees of Irish Cement. CRH argued that certain emails in the mailbox of one such employee, Seamus Lynch, were unrelated to the business of Irish Cement and were therefore not entitled to be seized. Accordingly, in November 2015, CRH brought a High Court action against the CCPC seeking an injunction to prevent the CCPC from examining these emails.
CRH named in Euro34bn lawsuit by Palestinian activists
31 March 2016Ireland: CRH has been named in a Euro34bn lawsuit file in Washington DC launched by Palestinian activists against a group of businesses operating in Israel. The activists who are trying to sue various groups with connections to Israel for allegedly ‘profiteering’ from the building of Jewish settlements in the West Bank, according to the Irish Times.
The Irish building materials company sold its 25% stake in Mashav, which owned the Israeli cement producer Nesher, in December 2015. However, the lawsuit is targeting CRH over its past co-ownership. The lawsuit accuses Nesher of supplying concrete for the foundations of Jewish settlements and for building barriers in the West Bank and for allegedly extracting minerals from Palestinian territory.
Pakistan: The All Pakistan Cement Manufacturers Association (APCMA) has led demands that the government abolish the gas infrastructure development cess (tax) (GIDC) because it has made Pakistan-produced cement uncompetitive for export. APCMA chairman Mohammad Ali Tabba said that declining fuel prices, including liquefied natural gas in the international markets, had added to the situation, according to local press.
The Pakistan government enacted the Gas Infrastructural Development Act of 2011 thereby charging a cess or levy on all non-domestic gas consumers. However, the tax has been resisted legally since that time with tussles over whether back taxes should be collected or not.
Tabba also added that a recent increase on the import duty from 1% to 6% on coal should be reduced to zero.
Court annuls information request by European Commission into cement company competition probe
11 March 2016Europe: The European Court of Justice has annulled a request for information by the European Commission into several cement producers in a cartel probe. The judgement could restrict the competition watchdog's investigative powers, according to reporting by the Wall Street Journal.
The commission opened an antitrust investigation in late 2010 looking at the activities of Cemex, Holcim, Lafarge, HeidelbergCement and others. Originally the cement companies were suspected by the commission of colluding with rivals to fix prices and share markets in Austria, Belgium, the Czech Republic, France, Germany, Italy, Luxembourg, the Netherlands, Spain and the UK. However, the investigation was closed in mid-2015 due to insufficient evidence. Since then the cement producers have challenged the commission’s right to ask for the level of detail they requested. The ruling overturns a 2014 decision by the EU's General Court, which said the commission questionnaires were justified.
Ireland: CRH has taken the Competition and Consumer Protection Commission (CCPC) to the Irish High Court over the seizure of the emails of one of its executives during a competition investigation in 2014. The CCPC was not entitled to ‘essentially run riot’ whilst searching the premises of Irish Cement, a subsidiary of CRH, at Platin, County Meath said CRH’s legal representatives, according to the Irish Times.
Irish Cement has accused the CCPC of seizing and retaining the emails of Seamus Lynch relating to his role with CRH. The CCPC was investigating Irish Cement at this time. Lynch left Irish Cement in June 2011 to join CRH and, when the search was carried was the managing director of CRH Europe (Ireland and Spain). In its challenge, CRH is claiming that the CCPC was not entitled to seize and retain any electronic files relating to a crh.com email account assigned to Lynch because this was not related to the business and activity of Irish Cement.
The CCPC denies all claims. It previously agreed not to use the material pending the outcome of the case.
India: Members of the Birla family have challenged the take-over of the Reliance Infrastructure in the Calcutta High Court claiming that it was done without the consent of the family or the court. The move follows a prolonged legal battle in 2004 between the Birla family members and chartered accountant R S Lodha. Lodha claimed that M P Birla's widow Priyamvada had bequeathed the assets of the estate to him. The matter is still being contested legally.
Representatives for Birla Corporation defended the purchase saying that the funds were not being taken from the estate and that it was being done through internal accrual and other sources. They added that the US$715m take-over would be a 'sweet deal' as the assets of the Reliance Infrastructure cement company were new. The deal was announced in early February 2016.
Looking at the small print
02 March 2016Small print can cause large consequences. Billion US Dollar consequences. Take the 2015 amendment to India’s Mines and Minerals (Development and Regulation) (MMDR) Act from 1957. Ambiguous wording in the legislation may have held up two prominent cement industry acquisitions in 2015. It also hangs over the recently announced purchase by UltraTech Cement of Jaiprakash Associates’ cement plants.
The MMDR was amended in January 2015. As the Times of India explained in mid-2015, a clause in the amendment said, “The transfer of mineral concessions shall be allowed only for concessions which are granted through auction.” However, it was unclear whether this meant historically allocated mines given via nominations or only newly allocated ones. Given the reliance of clinker plants on reliable mineral reserves this caused havoc. Cue confusion and large legal budgets.
LafargeHolcim’s divestment of two cement plants to Birla Corporation was one casualty. As a condition of the merger between Lafarge and Holcim the Competition Commission of India (CCI) required that the Jojobera and Sonadih cement plants in Eastern India be sold in 2015. Together the plants have a combined cement production capacity of 5.1Mt/yr. However the ambiguity over the 2015 MMDR Act clause on transfer of mining rights held the deal up. By February 2016 Birla Corporation had endured enough. It publicly complained about Lafarge India’s ‘inability’ to complete the deal and threatened legal action. LafargeHolcim retorted by asking the CCI if it could sell all of Lafarge India instead. It received the revised clearance and a new buyer is yet to be announced.
Another victim was UltraTech Cement in a previous attempt to buy Jaiprakash Associates’ cement assets. That time it was down to buy two integrated cement plants in Madhya Pradesh with a combined clinker production capacity of 5.2Mt/yr with associated mineral rights. The deal was agreed in December 2014 and then reported delayed in mid-2015. Finally, on 28 February 2016 the Bombay High Court rejected the deal, citing the MMDR Act as the prime cause.
Luckily for UltraTech Cement the story has a happy ending (so far) as it then announced that it was purchasing the majority of Jaiprakash Associates’ 22.4Mt/yr cement portfolio instead for US$2.4bn. It is hoped that the deal will be finalised by June 2017 but this partly depends on the MMDR Act being amended. Although UltraTech Cement have said they are looking at alternative routes to the deal in case the act isn’t amended.
Poor legal wording kiboshed at least two cement industry deals for over 10Mt/yr production capacity. Roughly, at the price UltraTech Cement is paying for its latest deal, that’s over US$1bn worth of Indian cement assets. Given the hard time the Indian cement industry had in 2015 the question should be asked regarding how much damage the MMDR Act amendment has done. One option for the beleaguered industry is to consolidate and cut its costs. This was massively delayed in 2015.
The proposed 2016 amendment to the MMDR Act reads as follows:
“Provided that where a mining lease has been granted otherwise than through auction and where mineral from such mining lease is being used for captive purpose, such mining lease will be permitted to be transferred subject to compliance with the terms and conditions as prescribed by the Central Government in this behalf.”
Let’s hope it does the trick this time.
India: The National Green Tribunal has issued notices to 13 cement companies on a petition alleging that they are violating its orders and environmental norms as well as the provisions of the Motor Vehicles Act, 1988, by causing air pollution. The petitioner, Neena Pradeep, has also accused the cement companies of overloading their trucks with cement and clinkers in order to save toll tax, according to the Hindu. Violations by Shree Cement and JK Cement were highlighted during the hearing. They have allegedly overloaded their trucks by 200 - 250%.
Court dismisses Tanga Cement tax charge
19 February 2016Tanzania: The Court of Appeal has dismissed a disputed tax charge for US$371,000 against Tanga Cement as ‘incompetent.’ Counsel for Tanzania Revenue Authority (TRA), Felix Haule, conceded that the appeal was indeed incompetent because the decree was not signed by members of the Tax Appeals Tribunal, according to local media. Before rejecting the two appeals, the Justices of the appeals court were informed that the respondents into the matters have lodged preliminary objections to challenge their competence for having offended the rules under the Tax Revenue Appeals Tribunal. The case was one of three worth over US$1.3bn that were also dismissed as part of a series of corporate tax appeal cases.