Displaying items by tag: Legal

National Cement is preparing to open its new integrated West Pokot plant in September 2023. Readers may recall that the long-running project was taken over by Devki Group from Cemtech and Sanghi Industries after the Competition Authority of Kenya (CAK) gave it permission to do so in 2019. The original feasibility report by the Kerio Valley Development Authority dates back to 2010. The new plant will have a production capacity of 2.5Mt/yr.

However, this isn’t the only new clinker production capacity that Devki Group, which sells cement under the Simba Cement brand, is preparing to commission. Local media also reports that the company is also preparing to restart the former Athi River Mining Cement integrated plant at Bondora in Kaloleni, Kilifi County. After five months of trial runs the unit should be ready for full operation from April 2023. Devki Group also picked up this plant in 2019 following the long breakup of ARM Cement, after the latter producer entered financial administration back in mid-2018.

Devki Group started out in the steel sector but it has been steadily carving out a presence in the cement industry. The group opened its first cement grinding plant in 2013 and then built a 1.95Mt/yr integrated plant in Kajiado County, south of Nairobi, in 2018. Once the West Pokot plant is commissioned, the company will reportedly have a clinker production capacity of 7.5Mt/yr from three plants.

This kind of growth is making waves in the local cement sector. Since Global Cement Weekly covered the situation in September 2022 (GCW576), an argument has been brewing in Kenya over whether the country should import clinker or manufacture more of its own. This has moved to lobbying the government on whether the duty on imports of clinker should rise from 10% to 25%. Unsurprisingly, the country’s largest clinker producer, National Cement, even before the new plants are operational, has been a major advocate for putting up the import tariff. This carried over into 2023, when local press revealed the minutes of a meeting between the State Department of Industry and the Kenya Association of Manufacturers (KAM), with input from the cement producers. Rai Cement, Bamburi Cement, Savannah Cement, Ndovu Cement and Riftcot were all against raising the tariff, saying that it would enable the largest clinker producers, National Cement and Mombasa Cement, to dominate the market. However, unlike the last such meeting, Mombasa Cement was said to be non-committal on the proposal to increase the duty. Despite the disagreement over the tariff, all of the cement companies imported clinker in 2021.

Graph 1: Rolling annual cement production in Kenya, 2019 - October 2022. Source: Kenya National Bureau of Statistics (KNBS).

Rolling annual cement production in Kenya peaked at just over 10Mt in May and June 2022. Data from the Kenya National Bureau of Statistics (KNBS) shows that monthly production started to fall on a year-on-year basis from July 2022. This is likely to be connected to the elections that took place in August 2022, although wider economic trends such as inflation and high input material prices may not have helped either. Despite this, cement production rose by 5% year-on-year to 8.02Mt in the first 10 months of 2022 from 7.65Mt in the same period in 2021.

Other recent news of note in Kenya includes the restart of clinker production at East African Portland Cement’s (EAPC) Athi River Plant in mid-2022. The upgrade was conducted as part of a general five-year upgrade and expansion campaign by the company. The next steps were announced in January 2023 with a stated intention to consider entering markets in the Democratic Republic of Congo and Rwanda. The other story of note was in December 2022, when China-based Sinoma International Engineering announced that it had signed a deal with Savannah Cement to build a new 8000t/day clinker production line with a 2400t/day cement grinding unit, a 35MW captive power unit and a 13MW waste heat recovery unit. As is standard for Sinoma’s new contract releases, it said that the contract would become active once an “advance payment guarantee” had been received. Later in December 2022 the Kenya High Court intervened to stop two creditors from seizing assets from Savannah Cement and putting it into administration, although the court did acknowledge the company’s debts and a loan repayment default. In January 2023 Mauritius-based Barak Asset Recovery, another related creditor, was approved by the competition regulator to buy a majority stake in Savannah Cement. The current state of that new production line is unknown.

As the two stories above show, it is not just National Cement that is trying to move towards increased clinker production in Kenya. The whole situation is reminiscent of the time before Nigeria declared itself self-sufficient in cement in the early 2010s. Local producers became prominent and the market battle between producers and importers became public. Kenya’s range of different cement companies seem to be more diverse than Nigeria’s were, but a similar type of national interest argument may be rolled out by one side. The other parallel to note with Nigeria is that Dangote Cement is said to have attempted to buy National Cement previously and has also been trying to build its own plant in the country since the mid-2010s. Kenya’s demographics and location make it a prime place for this kind of producer-importer tussle. Let’s wait and see how much the situation has changed when the new plants open over the next six months.

Pakistan: Balochistan's local government minister has called for the cancellation of the allotment of a large area of land to a cement plant in Hub, adding that he would take the matter to court. Mohammad Saleh Bhootani said the Mines and Minerals Development Department had allotted 18,200 hectares of land that he says belonged to the people of Hub and Lasbela districts.

The allotted land comprises mountains, agriculture lands, hundreds of villages, farms and graveyards, he said, arguing that there was no justification for allotting such a vast area to a cement plant. Bhootani warned locals that fences would soon be erected around the site, forcing those that live there out of their homes. He urged Chief Minister Abdul Qudoos Bizenjo to “show mercy on the poor people of the area and cancel the allotment.” The minister said that if the allotment was not cancelled, he and the people of the area would take legal action.

The parliamentary leader of the Balochistan National Party-Mengal, Naseer Ahmed Shahwani, condemned the allotment and demanded the government withdraw its decision. 'If such practices continue, what will be the future of Balochistan?' he wondered.

Switzerland: A civil legal case against Holcim made by four residents of the Indonesian island of Pari has filed a formal complaint against the cement producer on behalf of the entire island at the Cantonal Court of Zug. The civil case was started in July 2022 in response to climate change-induced flooding of the island, according to Reuters. Informal negotiations followed in October 2022 but this failed, according to a representative of Swiss Church Aid. Environmental organisation Walhi claims that this latest action is first formal civil proceeding in Switzerland against a company for its contribution to climate change

Walhi says that the plantiffs are demanding ‘proportional compensation.’ The European Center for Constitutional and Human Rights (ECCHR) is also supporting the islanders. A spokesperson for Holcim said that climate change was a "top priority for Holcim at the heart of our strategy".

Ireland: A court has ruled that the Irish government need not pay legal costs for Environmental Trust Ireland president Michelle Hayes' challenge against the Environmental Protection Agency (EPA) in mid-2022. Hayes unsuccessfully sued the EPA for issuing Irish Cement with a licence to use alternative fuel (AF) at its Limerick cement plant in May 2021. The AF will comprise up to 90,000t/yr of waste tyres, biomass and/or mining by-products.

At the costs hearing, the court noted that Hayes had already caused the EPA to incur 'very significant' legal costs. The court said that Hayes 'sought to have the taxpayer pay even more.' It added that, as a solicitor at Hayes Solicitors Limerick, which represented her in her unsuccessful challenge, Hayes stood to effectively benefit from any recuperated costs. The court concluded "It would mean that legal practitioners like herself are paid by the taxpayer for bringing environmental litigation which is unmeritorious."

Sweden: The Land and Environmental Court has granted Cementa a four-year permit to continue mining operations in Slite on Gotland. The latest temporary permit was set to expire at the end of 2022. Both the Environmental Protection Agency (Naturvårdsverket) and the county administrative board of Gotland recommended rejecting Cementa’s application earlier in 2022. Prior to this the central government extended the cement company’s mining licence by one year from late 2021.

The subsidiary of Germany-based Heidelberg Materials said that it viewed the latest four-year permit as a ‘bridge’ until it is able to secure a long-term permit. It is aiming to submit an application for a 30-year permit in 2023.

Mexico: GCC has made new appointments to the roles of project director, chief financial and planning officer and general counsel, effective immediately. Luis Carlos Arias will now serve as project director to the company's Odessa, US, cement plant expansion. Arias previously served as the group's chief financial officer. Maik Strecker steps into the role of chief financial and planning officer. Strecker joined GCC as chief planning officer in 2020. He has two decades' previous experience in roles spanning mergers and acquisitions, business development, product line management, operations and sales and marketing. Lastly, Cesar Conde will serve as GCC's general counsel. Conde has worked for the group since 2006.

GCC's CEO Enrique Escalante said "I am confident these executives bring proved strategic and execution leadership to the Company, and I look forward to the challenges and opportunities ahead."

Doing deals with terrorists has a price: US$778m. The US Department of Justice (DOJ) revealed this week that it had fined Lafarge for its conduct in Syria between 2013 and 2014. In addition Lafarge and its subsidiary Lafarge Cement Syria (LCS) have pleaded guilty to one count of conspiring to provide material support to designated foreign terrorist organisations in Syria. It is uncertain how exactly the fine will be paid but it is worth noting that successor company Holcim reported net sales of nearly US$27bn in 2021. The fine represents nearly 2% of this.

A reasonable amount of new detail can be found on the DOJ website. LCS was essentially dealing with the Islamic State of Iraq and al-Sham (ISIS) and the al-Nusrah Front (ANF) as they would a local government in relation to the running of the Jalabiyeh cement plant. As a reminder, both of these groups were defined as terrorist organisations by the US government at the time. The relationship apparently started as monthly payments to local armed groups, including ISIS and ANF, to allow movement through checkpoints. This later progressed to a de-facto tax based on cement sales. However, it became worse when LCS started asking ISIS to block or tax imports of cement from Turkey-based competitors into northern Syria as part of a revenue-sharing agreement. Effectively LCS was fixing the price of cement in a war zone by collaborating with terrorists. In the end LCS, the intermediaries and the terrorist groups made around US$80m whilst they were working together.

Holcim’s interpretation of the ruling was keen to point out that the conduct in Syria was recognised by the DOJ as not involving Holcim in any way. The DOJ did agree that Lafarge’s executives didn't disclose their activities in Syria to its successor company Holcim either before or after the merger in 2015. However, it pointed out that Holcim had not carried out due diligence of LCS’s operations in Syria. It added that, “Lafarge, LCS and the successor company also did not self-report the conduct or fully cooperate in the investigation.”

Despite this, other information that Holcim also highlighted was that the US authorities were now happy that effective compliance and risk management controls were in place to prevent anything similar happening again. Crucially, it said that the DOJ didn’t think that an independent compliance monitor was required. It pointed out that none of the conduct involved Lafarge’s operations or employees in the US and that none of the Lafarge executives were working for Holcim or any associated company. Finally, the group wanted to report that the DOJ found that none of the former Lafarge executives involved shared any of the “methods, goals or ideologies” of the terrorist groups operating in area at the time.

The immediate reaction from all of this is what happens to the ongoing legal case in France, also about Lafarge’s conduct in Syria? In mid-May 2022 the Court of Appeals confirmed a charge of complicity in crimes against humanity against Lafarge. The company then reportedly started the appeal process at the Supreme Court. Other charges, including financing terrorism, endangering life and violating an embargo, were lodged earlier in the legal process. The US is generally seen as being the leading prosecutor of international corporate crime but if the French legal system also issued a fine to Lafarge on the same scale things could become difficult for Holcim. The other complication for the French legal case is that the national intelligence services allegedly used Lafarge’s links with the Syrian terror groups to acquire information but they did not warn the company that it was committing a crime.

Holcim is a different company from what it was when LafargeHolcim formed in 2015. It is being run by a new chief executive officer who came in from another company well after the merger and is diversifying away from the trio of cement, concrete and aggregates with the addition of a fourth business area of light building materials. Alongside this the group has been selling off businesses in the developing world and focusing on Europe and North America. Yet it is still being defined by the criminal actions of a company it absorbed seven years ago and the behaviour of staff long gone. Those actions have been investigated and punishment delivered. More may be coming.

Syria/US: A US court has found Lafarge Cement Syria guilty of conspiring to provide material support to the terrorist organisations al-Nusrah Front (ANF) and ISIS in Northern Syria during 2013 and 2014. Lafarge Cement Syria and its parent company, France-based Lafarge, agreed in 2011 to pay the terrorists for Lafarge Cement Syria employees' 'protection' and the continuation of the Jalabiyeh cement plant's operations, as well as to gain an economic advantage over other Syrian competitors. During the duration of the agreement, Lafarge Cement Syria recorded US$70.3m in sales. Coalition forces fighting against ANF and ISIS damaged the plant in an airstrike 'to reduce the facility's military usefulness' on 16 October 2019.

The court ordered Lafarge Cement Syria to pay criminal fines and forfeiture totaling US$778m.

Sweden: The Environmental Protection Agency (Naturvårdsverket) and the county administrative board of Gotland have both recommended rejecting Cementa’s application to extend its operating permit for its integrated Slite cement plant by four years. At present the current temporary permit will expire at the end of 2022, according to the Dagens Industri newspaper. The county administrative board has requested more information and Naturvårdsverket has found issues in the application with groundwater and nature protection area issues.

Cementa says that it submitted it application to the Land and Environment Court in April 2022 and that it was deemed complete by the court, which announced the application. In July 2022, opinions were received from around 10 authorities and associations, such as the Geological Survey of Sweden (SGU), Naturvårdsverket and the Norwegian Sea and Water Authority. Cementa added that it has now responded to this feedback.

“There are and must be high requirements for permit applications, so it is natural that there will be many views and questions in this type of examination,” said Karin Comstedt Webb, vice president of HeidelbergCement Sweden. “We have now clarified the application further and are now looking forward to the main hearing in October 2022. We are confident that our application is complete and we have been keen to show even more clearly that the business can be conducted in coexistence with nearby residents, and surrounding environmental and natural values. We see good conditions for the timetable announced by the court to be kept, which is crucial for the Swedish cement supply not to be jeopardised in the coming years.”

Further views on the application will be submitted in September 2022. The Land and Environment Court will then hold a hearing in October 2022 and a final decision is expected the end of 2022.

A disturbing story has emerged this week concerning attempts by an unknown party to seize control of Holcim Russia. The situation marks a dangerous new phase for multinational companies operating in Russia. This includes a number of building materials producers and their suppliers.

The public side of events started on 26 July 2022 when Holcim Russia announced on its website that a legal case concerning an unpaid loan against it had been initiated at a court in Chechnya and that someone was also trying to change ownership documents with the Federal Tax Service. This was then followed by an interview by Forbes Russia with the new alleged owner of the construction materials company explaining how he had made the so-called acquisition. Holcim Russia immediately hit back hard with multiple and well researched reasons why this couldn’t be so. These included the supposed private investor’s apparent lack of a business past, a long criminal history, psychiatric records, social media accounts of an individual of seemingly modest means and so on. Kommersant FM has since reported that the court in Chechnya took the side of the asset raider but that both the Federal Security Service (FSB) and the Ministry of Industry and Trade are now investigating the case.

Taking loans from a mystery businessman with no apparent past does not look credible for a multinational like Holcim and its subsidiaries. This particular method was also flagged up by one of the legal sources quoted by Kommersant FM as a recognisable corporate scam in Russia dating back to the 2000s. What is more certain is that Holcim reported that it had a 100% interest in Holcim Russia in its annual report for 2021. It then said it was going to leave the Russian market in late March 2022 following the start of the war in Ukraine a month earlier. By May 2022 it said that it had attracted the interest of 30 possible buyers. Only this week Holcim’s chief executive officer Jan Jenisch confirmed in the company’s second quarter conference call that divestment discussions were 'active' and ongoing with a 'solution' expected in the coming months. The timing of Holcim Russia’s sudden difficulties is therefore noteworthy given that a potential buyer has not yet been publicly announced.

Whoever has tried their luck at taking over Holcim Russia has done so at a time when anti-Western sentiment is high in Russia. For example, the government attempted to pass a new law seizing the assets of Western companies trying to leave the country in July 2022. Any intervention by the authorities is likely to take some of this into account and they may be wary of helping an organisation with perceived European links. Naturally, the nationalist card was played up in the interview with Forbes Russia. For its part, Holcim Russia has commented that the ongoing 'illegal action' might lead to production delays for building materials supporting key housing and infrastructure projects. Whatever is going on it must be a tense time for Holcim Russia and its 1500 employees. We’ll leave the last word to Holcim Russia’s general manager Maxim Goncharov who has described the situation as the “theatre of the absurd.” He is not wrong.