The Dispute over the Ownership of Egypt’s Mobinil
Dispute resolution in the ICT sector may occur in a variety of different forums. The dispute over the ownership of Egypt’s Mobinil is a good example of the evolution of a dispute and the different forums that become engaged in attempts to resolve a dispute.
The Mobinil dispute began as a disagreement between two of the company’s major shareholders, France Telecom and Orascom Telecom, about the implementation of an agreement they signed in August 2001 as partners in Mobinil’s holding company. Fifty-one percent (51%) of Mobinil’s shares is held by a holding company which, in turn, is co-owned by France Telecom and Orascom Telecom. France Telecom holds 71.25 percent of the holding company’s shares while Orascom Telecom holds 28.75 percent of the shares. Orascom also holds a 20 percent direct stake in Mobinil. The remaining 29 percent of Mobinil’s shares are traded freely on Egypt’s stock exchange. Overall, France Telecom controls approximately 36 percent of Mobinil’s shares while Orascom Telecom controls about 35 percent of the company’s shares.
The dispute between France Telecom and Orascom Telecom centred on differing strategies for Mobinil. Orascom Telecom favoured greater investment in Mobinil than France Telecom. The two shareholders also differed over Mobinil’s budget and expenditures, its marketing strategy, and the start up of its 3G services. In 2007, Orascom Telecom took the dispute to the International Court of Arbitration at the International Chamber of Commerce in Geneva.
The International Court of Arbitration organizes and supervises arbitration proceedings. The arbitrations themselves are heard by independent arbitrators. The arbitrators hear the case in a tribunal setting which is governed by the International Court of Arbitration ADR Rules. Once the Arbitral Tribunal is satisfied that the parties have had a reasonable opportunity to present their respective cases, the Arbitral Tribunal declares the proceeding closed. It then prepares a draft Award, which is reviewed by the International Court of Arbitration. The purpose of this review is to draw attention to any points of substance and to lay down modifications as to the form of the Award; the Court does not interfere with the freedom of the Arbitral Tribunal to make factual determinations and to make the decision in the case.
The Arbitral Tribunal that heard the Mobinil case ruled that France Telecom should buy Orascom Telecom’s stake in the holding company at a specified price per share. The Tribunal’s decision was released on April 5, 2009. France Telecom was required to purchase Orascom Telecom’s shares by April 10, 2009.
Shortly after the Arbitral Tribunal released its decision, a new dispute developed between France Telecom and Orascom Telecom and the Egyptian Regulator, the Capital Markets Authority (“CMA”). Orascom Telecom and CMA argued that France Telecom should be required to purchase the minority shares of Mobinil on terms similar to those governing the sale of Orascom Telecom’s shares in Mobinil’s holding company. France Telecom argued that any offer for these shares would be voluntary. Ultimately, France Telecom did seek to acquire the minority shares of Mobinil. However, France Telecom’s offer was rejected by CMA on the grounds that the proposed price per share was less than the price that France Telecom was ordered by the Arbitral Tribunal to pay for the shares in Mobinil’s holding company. CMA told France Telecom that it must make an offer on the same terms as those which were ordered by the Arbitral Tribunal on the principle of giving equal opportunity to all shareholders.
France Telecom has since made two further offers for the minority shares of Mobinil. Each of these offers was rejected by CMA on the grounds that the price offered per share was too low. France Telecom appealed CMA’s rejection of its second offer. In August 2009, a panel of three Egyptian judges rejected France Telecom’s appeal. France Telecom has indicated that it will appeal this decision to the Egyptian Supreme Court and, if this further appeal fails, it will pursue international arbitration.
Orascom Telecom added to the litigation in this dispute by filing an appeal in the Egyptian courts in May 2009. Orascom Telecom’s appeal requested that the court rescind the arbitration order mandating the sale of its share in Mobinil’s holding company to France Telecom on the grounds that France Telecom had not met the terms of the sale agreement. In July, however, Orascom Telecom announced that it would discontinue the legal proceedings against France Telecom as an “amicable gesture” aimed at focusing attention on running Mobinil.
 Mobinil’s legal name is the Egyptian Company for Mobile Services (ECMS).
 “Fact Box – Dispute over ownership of Egypt’s Mobinil” Reuters (8 September, 2009), online: http://www.reuters.com/article/rbssTechMediaTelecomNews/idUSLO36920720090908?sp=true.
 Since the beginning of July, the CMA has come under the auspices of the Egyptian Financial Supervisory Authority.
 “Orascom Telecom to stop France Telecom court case” Reuters (5 July, 2009), online: http://www.reuters.com/article/technology-media-telco-SP/idUSL560385120090705.