Symbion v TANESCO: the Ubungo power purchase agreement disputes

The power purchase agreement

UNCTAD's case database describes the investment as the acquisition of a 120MW natural gas-fired power plant in Ubungo, Dar es Salaam ². It records that the claims arise from the alleged unilateral suspension by TANESCO in 2016 of a 15-year power purchase agreement, allegedly signed in 2015 between Symbion Power Tanzania Limited and TANESCO ².

The ICC arbitration

As reported by Allan Olingo in The EastAfrican on 1 September 2018, US-based Symbion Power filed with the ICC International Court of Arbitration in Paris in March 2017 and sought US$561 million for breach of the 15-year agreement ³. At that date the case was still ongoing ³.

As reported by Bethsheba Wambura in The Citizen on 9 May 2022, Luhaga Mpina, Member of Parliament for Kisesa, questioned in a budget debate why the government should pay Sh356 billion to Symbion when the public was not told what steps had been taken against those responsible for the agreement ⁵. The ICC award itself, its date and its amount are not confirmed in any primary source opened for this page ^3,5.

ICSID Case No. ARB/19/17

The ICSID Secretary-General registered the request for arbitration on 31 May 2019 ¹. The claimants were Richard N. Westbury and Paul D. Hinks, both British, and Symbion Power Tanzania Limited ¹. They invoked the 1994 United Kingdom and Tanzania bilateral investment treaty ¹.

Christopher Adebayo Ojo was appointed by the claimants and Gérard Niyungeko by Tanzania ¹. Cavinder Bull was appointed President by the Chairman of the Administrative Council, and the tribunal was constituted on 11 December 2019 ¹. The first session was held by telephone on 25 February 2020, and Procedural Order No. 1 followed on 3 March 2020 ¹. The claimants were represented by Omnia Strategy and Tanzania by its Office of the Attorney General ¹.

On 28 May 2021 the parties filed a joint request for discontinuance, and on 31 May 2021 the tribunal issued an order noting the discontinuance ¹. UNCTAD records the case as discontinued with no decision on liability ². As reported by Dan Marks in African Energy on 10 June 2021, the discontinuance was seen as a sign that the government was moving to settle high-profile disputes, though no terms were given ⁴.

Other litigation involving Symbion

As reported by Morgan Conley for Law360 on 14 May 2021, a Nevada entity holding an assigned arbitral award of a Dubai-based equipment rental company told a New York federal court that Symbion owed nearly US$30 million in rental bills tied to a Tanzania power project ⁶. The report does not name TANESCO as a party ⁶.

Status

The ICSID case is concluded ¹. No source opened for this page confirms the ICC award amount, any settlement terms, any registration of an award in the High Court of Tanzania, or any confirmation proceeding in a US court ^{1,3 5}. This page will be updated when a primary source is available.