Displaying items by tag: Legal

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.

Small 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%.

Tanzania: 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.

Germany: KHD International and its US-based subsidiary Humboldt Wedag (HW Inc) have been ordered to pay damages by a Portuguese arbitration court to a customer in South America. HW Inc’s arbitration claim for disbursement of outstanding payments, reimbursement for a called bank guarantee, as well as additional compensation (for damages) was denied. KHD expects the damages to lead to expenses of Euro15m in its 2015 financial results. The customer has not been named.

“This ruling does not reflect our own or our legal counsel’s expectations in any way. We believe that it is grossly incorrect and will exhaust all promising possibilities for success in proceeding against this judgement,” said KHD International CEO Johan Cnossen. KHD said in a statement that the arbitration award would not have an impact on its forecast results for 2015 as ‘adequate’ provisions had already been set up.

India: Birla Corporation said it will take legal action against Lafarge India over the firm's 'inability' to go ahead with the deal to sell its Jojobera and Sonadih cement plants. In August 2015 both firms signed an agreement, through which Birla Corporation was to acquire Jojobera and Sonadih cement businesses from Lafarge India for US$734m.

"Lafarge India has since informed its inability to proceed with the agreement. The company has since discussed the matter with its legal advisors and has decided not to accept its contention and is in the process of taking appropriate legal measures in consultation with lawyers," said Birla Corporation in a regulatory filing. The firm did not specify reasons behind Lafarge India expressing its inability to complete the deal.

Birla Corp was to acquire Lafarge India's cement business, which comprises an integrated cement unit at Sonadih, Chhattisgarh, a cement grinding unit at Jojobera, Jharkhand along with Concreto and PSC brands. The acquisition would have added an additional cement capacity of 5.15Mt/yr to Birla Corp and would have helped the firm consolidate its position in the eastern India cement market. The company has a total operational cement capacity of about 10Mt/yr with plants in Rajasthan, Madhya Pradesh, Uttar Pradesh and West Bengal.

India: UltraTech Cement is seeking clarification from the Indian government over the transfer of limestone reserves as part of its deal to buy two integrated cement plants in Madhya Pradesh from Jaypee Group, according to HT Media. A clause in the Mines and Minerals (Development and Regulation) Act 2015 barring the transfer of mines that were not allotted through auctions is delaying mergers and acquisitions (M&As) in the mining sector.

According to a clause in the new Act, transfer of the mining licence is allowed only for mines that have been auctioned. Most of the operational limestone mines in India were allotted and not auctioned. The Act allows for these reserves to be auctioned in the future. However, legal experts are divided on whether this clause will apply retrospectively.

UltraTech agreed to buy Jaiprakash Associates' cement plant with a clinker capacity of 2.1Mt/yr and a cement grinding capacity of 2.6Mt/yr at Bela in Madhya Pradesh in December 2014. It then agreed to buy a second plant at Sidhi with a clinker capacity of 3.1Mt/yr and a cement grinding capacity of 2.3Mt/yr. The deal included access to the limestone reserves in Madhya Pradesh.

The new legislation is also expected to affect Lafarge's sale of its east Indian assets to Birla Corp.

South Africa: Lucky Cement has filed papers in the High Court in Pretoria contesting a 14.29% provisional antidumping duty imposed in May 2015 on its cement exports to the Southern African Customs Union (SACU). The Pakistan-based cement producer has accused the International Trade Administration Commission (ITAC) of failing to consider the losses suffered by producers due to a Competition Commission ruling on a cement cartel, according to Business Day. ITAC intends to oppose the motion.

ITAC imposed provisional anti-dumping duties of 14.3 – 77.2% on Portland Cement originating in or imported from Pakistan from 15 May 2015 for six months. The duty was imposed on bagged cement.

"The breaking up of anticompetitive behaviour must have resulted in more normal competition in the industry with resulting lower prices and tighter margins," said Lucky Cement chief financial officer Muhammad Faisal. "It was illogical and irrational for ITAC to attribute 100% of the injury to the SACU cement industry to Pakistani exports."

Faisal also objected to ITAC's decision to retrospectively limit its inquiry to only bagged cement. The dumping margin placed on Lucky Cement was based on all its cement sales whereas ITAC focused only on bagged cement in SACU.

The Competition Commission imposed a fine of US$9.3m on Afrisam and US$11.1m on Lafarge in 2011 and 2012 respectively, after concluding that a cement cartel did exist. It estimated its intervention would save consumers US$335 – 454m for the period 2010 to 2013.

Greece: The Supreme Court of Greece has ordered the Heracles' General Cement Company, a subsidiary of Lafarge, to pay the residents of Agia Marina, Halkida Euro78,000 as compensation for pollution from its cement plant.

The court upheld the settlement's arguments that the cement plant had failed
to adhere to the environmental terms in its operating licence in order to avoid the relevant costs and refused to take measures for the proper maintenance and modernisation of its facilities. They said this resulted in all outdoor areas in the village being covered in a layer of cement dust up to 1.2cm thick, including the nearby coastline.

The village residents had originally sued for a total of Euro1.14m but the court awarded the residents a much lower sum, even though it found that the company's omissions fully justified their claim to moral damages resulting from their deprivation of environmental benefits and the threat to their health from exposure to environmental pollution.

Nigeria: The Ebonyi State Government in Nigeria has warned Ibeto Cement Company over an alleged illegal entry into the premises of Nigercem cement premises located at Nkalagu. The entry was perceived as an act of provocation by governor Martin Elechi of Ebonyi State, as Nigercem is still subject of an ownership dispute in the courts.

"Following dispute between the State government and Ibeto Group on the ownership of Nigercem, Ebonyi State Government exercised its illegal right of land ownership by revoking the certificate of all the land upon which Nigercem is situated," said Elechi. "By going into the premises of Nigercem without the permission of the State Government, the Ibeto Group has demonstrated an alarming desire to acquire the God-given mineral wealth of Ebonyi people for its interest".

Eastern Bulkcem Nigeria Limited owns a 65% stake in Nigercem. The origins of the current dispute arise from Eastern Bulkcem's failure to modernise the ageing plant, instead opting to use its ownership of the plant to obtain import licences for bulk cement. The Ebonyi State Government resorted to extra-judicial means to shut it down, revoking Nigercem's certificate of occupancy pending a Judicial Commission to investigate the state of affairs in the company.