Displaying items by tag: Legal

Guyana: Concrete manufacturer KSM is taking legal action against the Guyana Revenue Authority (GRA) for over valuing the cost of cement imports. It alleges that the GRA charged it US$16.6m too much for five shipments between January and March 2019, according to the Stabroek News newspaper.

It grew its imports from 2015 to 2018 and it imported 24,480t of cement from Domicem in the Dominican Republic in 2018. However, KSM says that the GRA increased the declared value of cement by over 40% in the second half of 2018 without offering any ‘reasonable or justifiable grounds’ for so doing. KSM says it imported its shipments in 2019 at the lower rate and this was approved by customs. The GRA then demanded the shortfall from KSM in May 2019.

India: Transport and Small, and Medium Enterprises (MSME) minister Nitin Gadkari says that cement producers have raised their prices without justification. He alleged that input prices for the industry had not increased and speculated that the companies acted ‘like a cartel’, according to the Times of India newspaper. He added that the higher cost of cement was negatively affecting road and affordable housing construction.

Gadkari said he has asked his officials to intervene in an on-going case in the Supreme Court and also explore the option of approaching the Competition Commission of India. The National Highway Builders Federation has also sought government intervention over the issue.

Peru: The Supreme Court has upheld a fine of nearly US$2m by the National Institute for the Defense of Free Competition and the Protection of Intellectual Property (INDECOPI) on UNACEM. The penalty was levied due to UNACEM and its distribution network refusing to allow retailers to sell cement made by its competitor, according to the Gestión newspaper. INDECOPI said that in 2014 UNACEM and its collaborators refused to allow retailers to stock its Sol brand of cement if they were selling the rival Quisqueya brand produced by Mexico’s Cemex.

Australia: Wagners expects that its on-going suspension of cement products to Boral will cost it around US$7m in 2019. The company decided to stop the supply following Boral’s notification that it had found a cheaper source in March 2019. Since neither Wagners nor Boral have been able to resolve the disagreement it has now been referred to the Supreme Court of Queensland.

Trinidad & Tobago: The Caribbean Court of Justice (CCJ) has ruled that Rock Hard Cement does not have to pay more than a 5% tariff on imported cement. The regional court was ruling on the duty liable for ‘other hydraulic cement,’ according to the Jamaica Gleaner newspaper. Rock Hard Cement’s competitor Trinidad Cement and its subsidiaries had argued that such imports be liable to a 60% import rate that the importer had previously paid due to Barbados’ exemption from the region’s Common External Tariff (CET) in 2001 and its subsequent re-entry in 2015.

Good news for Cemex Colombia this week with an agreement reached to open its Maceo cement plant in Antioquia. Local media was reporting that the cement producer has struck a government-brokered deal with CI Calizas y Minerales to lease the land it built its plant on. Finally, the new(ish) US$350m integrated plant can start operation.

For those unfamiliar with the debacle, Cemex has been fighting the fallout publicly since 2016, following a dodgy land deal at the site. The 1Mt/yr integrated Maceo plant was originally announced in 2014 with full operation scheduled for late 2016. Then, in October 2016 Cemex fired several senior staff members in relation to the project and its subsidiary’s chief executive resigned. This followed an internal audit and investigation into payments worth around US$20m made to a non-government third party in connection with the acquisition of the land, mining rights and benefits of the tax free zone for the project. Other irregularities are also alleged to be linked to the project. As well as the Colombian authorities being involved, the US Department of Justice is also running its own investigation into the affair with wider implications for Cemex’s operations in other Latin American countries. Some of the sacked staff members and others have since been investigated on corruption charges.

Graph 1: Cement production in Colombia, 2010 – 2018. Source: DANE.

Looking at the wider Colombian market though, it does make one wonder whether the long-delayed plant is really necessary. As Graph 1 shows, cement production rose steadily year-on-year to 2015 before it hit a downturn. It reached a high of 13Mt in 2015 before declining. Production in 2018 grew slightly compared to 2017 but not at the same rate seen previously. In Antioquia specifically despatches increased by 1.3% in 2018, above the national average of 0.2%. Despatches now appear to have continued into January and February 2019.

Cemex Colombia started to benefit from an improved fourth quarter in 2018 as the general economy picked up. Despite this its overall net sales and operating earnings fell in 2018. However, it did flag its earnings margin as a concern with higher freight and energy costs in the fourth quarter of 2018, although it partially offset this with higher prices. Cementos Argos, the other big producer in Colombia, reported a similar picture to Cemex, although in a better position. Its cement volumes fell slightly for the year in 2018 but picked up fast in the fourth quarter. Annual revenue was down slightly, as were adjusted earnings. In its opinion the construction industry improved in the second half of 2018 due to an improved housing market and infrastructure projects.

Given the downturn in production since 2015 the thought does occur whether the opening of the Maceo plant being delayed accidentally helped Cemex or not. It has probably been losing money by not running the plant but if, for example, the company had some sort of insurance to protect it against unexpected delays it might still benefit. However, if evidence of serious wider misconduct in both Colombia and other Latin American countries are found by the US authorities, then things could get expensive. This would be unfortunate, particularly in Colombia, given that the market looks set to recover.

Kenya: Employees of the East African Portland Cement Company (EAPCC) have filed an application at the Court of Appeal to jail the company’s directors for not paying them. The workers argue that, despite both the labour and appellate courts having directed that they be paid, the company directors have failed to comply, according to the Business Daily newspaper. Over 400 workers were awarded nearly US$14m under a 2012 - 2015 collective bargaining agreement (CBA).

Colombia: Cemex Colombia has reached a deal with the Attorney General allowing it to operate its Maceo cement plant in Antioquia. Under the terms of the government-brokered agreement Cemex will lease the land from CI Calizas y Minerales for around US$15,000/yr, according to the El Espectador newspaper. The lease has a duration of 21 years and this can be extended by another 10 years.

In 2016 Cemex fired several senior staff members in relation to the Maceo project and its subsidiary’s chief executive resigned. This followed an internal audit and investigation into payments worth around US$20.5m made to a non-governmental third party in connection with the acquisition of the land, mining rights and benefits of the tax free zone for the project. The US Department of Justice is also investigating the project.

Kenya/South Africa: Kenya’s ARM Cement is fighting moves by minority investors in South Africa’s Mafeking Cement to buy it out for a nominal sum. ARM Cement is attempting to sell its 70% stake in the company for around US$3m as part of its administration process, according to the Business Daily newspaper. Mafeking Cement owns limestone reserves in north-west South Africa and ARM Cement originally took a stake in the company to raise investment and eventually build a cement plant.

However, the minority investors have invoked parts of the shareholders’ agreement and filed a court application in South Africa that, if successful, would allow them buy out ARM Cement’s stake for a nominal price less than US$1. ARM Cement’s administrators PricewaterhouseCoopers have taken steps to counter the move.

Brazil: Investors have started legal action over in Cimento Tupi’s defaulted debts and attempts to merge with its parent company Cimento Santo Estevão. The cement producer defaulted in mid-2018 on payments to foreign investors that hold around US$30m in it, according to the Valor Econômico newspaper. It also stopped paying interest on the debts in 2015.

Other creditors are also working to stop Cimento Tupi’s plans to merge with Cimento Santo Estevão because it would raise the company’s debts rather than cut costs. A court in Rio de Janerio rejected one case although others are on-going elsewhere. Separately, the Agricultural Bank of China is also challenging the cement producer over arrears in a loan worth US$18m.

Cimento Tupi operates one integrated plant at Pedra do Sino in Minas Gerais and a grinding plant in Modi das Cruzes in São Paulo. It has a combined cement production capacity of 2.5Mt/yr but it has been producing half of this since around 2015. Its operating revenue remained stable at US$43m for the first nine months of 2018. However, its loss more than trippled year-on-year to US$76m.