Introduction

1The contract, called “the Contract of the century”, signed on 28 April 2008 between the Democratic Republic of Congo (DRC) and a consortium of private Chinese investors is to operate one of the largest mines in the world. This contract is a great example of the legal swing of the world, ie the development of new “normative spaces” built by private actors (TNCs) and the governments of “secondary” countries according to a new “global constitution” theorized by UN bodies. This contract of the century makes it possible to “materialize” and read the main clauses of this new “global constitution”.

Thierry Michel, producer of Mobutu, king of Zaire and of Congo River, released Katenga business in 2009.

1. The new global “social contract”

2The following text – Article 1 of the standard contract – shows both the economy of the mining contract of the century and the fundamental principle of the new global “constitution”, called tripartite governance.

3Excerpt from article 1 of the framework agreement (the English text is a tentative translation)

Article 1 : Objectives of the contracting parties 第一条双方的目的

1.1. The parties acknowledge and declare that by signing this Collaboration Agreement, they pursue the following objectives : 双方确认并声明，为民现以下目的签署本协议:

1.1.1. For the democratic Republic of Congo : finding the financial resources necessary for the realization of national infrastructure projects deemed important and urgent. 刚果民主共和国，寻求实施大型和紧急国家基建项目的必要资余来源。

1.1.2. For the Chinese Enterprises group : investing in the field of non-ferrous metals in the DRC territories. 中国水电，投资有色金属业。

1.2. Both Parties agree to cooperate as follows to perform, to the satisfaction of each of them, the above mentioned objectives : 为实现上述目标，双方一致同意按如下方式合作:

41.2.1. The Chinese Enterprises group is committed to mobilize and set up the financing for the construction of infrastructure in the DRC (the “Infrastructure Project”). Funding will be repaid by revenues from mining such cupro-colbaltifiees deposits in the Kolwezi area, which are not currently exploited and of which the Public Enterprise Generale Careers and Minings, abbreviated “Gecamines”, owns the rights and mining rights thereto. The specific terms of repayment of the financing are defined in Title IV of this Collaboration Agreement. 中国水电保证为刚果民主共和国的基础设施建设(基建项目)调配资金井使其到位，该融资将以刚果矿业总公司 (简称(GECAMINES) 川目前尚未开发的位于KOLWEZI 地区的铜钻矿采矿收入进行偿还. 融资偿还的具体方式将在本协议第四章规定。

1.2.2. The Chinese Enterprises Group is committed to mobilize and implement the necessary funding for the development of deposits listed in Appendix A (“the Mining project”). The arrangements for reimbursement of this investment are defined in Title IV of this Collaboration Agreement. 中国水电保证为附件A 中列明的矿床的开发项目(矿业项目). 调配资金并使其到位，该投资的偿还方式将在本协议第四章规定。

Map of the Democratic Republic of Congo. The Kivu region is highlighted in red.

5This contract is a mining contract for copper, this red ore which gave its name to the North-East region of the DRC, the “Kivu”, and various rare earths such as Koltan, necessaryfor all electronic equipment and armament. With this contract, the DRC government created with Chinese companies a joint venture that will commercially exploit the mine, the profits being directly funding public infrastructure for the people of the DRC (roads, railways, hospitals, etc.) carried out by Chinese enterprises.

6It is the Chinese who invented these contracts that now are called the “Angola-model”, also known as R4I for “Resource-for-Infrastructure”, by arranging the oil industry’s Productions Sharing Agreement (PSA) imposed since 1960 by developing countries to the international oil companies. Yet these PSA themselves have been created by the Indonesian government on the basis of local agricultural sharecropping contracts, agricultural sharecropping by which a poor farmer loands his land to operate to a landless farmer against a share of the production.

7In these oil contracts, the international oil company indeed brings most of the funding, while the State brings the subsoil, and the profits are used to pay the costs necessary to the production then are shared between the two parties. Another investment – building infrastructure, etc. – was simply added to the investment represented the initiation of an oil well. Reimbursement of two investments is carried out by the same means : selling the products of the activity (oil or mining) on the world market. The contract for an initial amount of $ 12 billion was reached to provide the DRC with infrastructures. The DRC, the first “Internationalised state” in the world, has found a way out of its dependence on the European Union, donor States, and international financial institutions.

The big mining contracts operated by the transnational enterprise consortiums such as the contract “of the century” make it possible to limit the number of “illegal” mines, controlled by guerillas which force local populations to extract ore in conditions akin to slavery.

8These “Public-Private Partnerships” (PPPs) are thus contracts between states and transnational corporations which are merging investment, cooperation and commercial contracts, not following anymore the practices of development aid but the “win-win” business principle.

9Now these PPP contracts have been elevated to a central political concept of Global Governance by the Secretary General of the United Nations, Kofi Annan. In his famous “speech in Davos” in 1999, Kofi Annan suggested indeed the leaders of the world’s leading companies to enter “a ‘global contract’ based on common values and principles that give a human face to the global market”. In short, a world where global governance achieves a “social contract” built according to the UN doctrine explicitly to the image of a mining or oil PPP, ie a tripartite governance between UN, Transnational Corporations and the Civil Society (tripartite governance structure).

10It is these new forms of global law that a branch of public international law tries to flesh out : “global social constitutionalism”.

2. The power to create transnational political spaces

11International law is indeed undergoing a transformation : technically, these large contracts are contract nodes including a state contract (between a State or an authorized institution and a group of foreign private companies), a compensation contract (which organizes investments), framework agreements (between private partners who implement the state contract and provide for future agreements), joint venture agreements (between private enterprises from both countries making the contract), joint venture companies (that create corporate groups) and many private implementing contracts (contracts for services, sales, etc.).

12And in each of these contracts, the applicable law under the “principle of autonomy” is the result of negotiations between the parties and each contract may designate a national law – or even different laws – as applicable to the contract law. Each contract contains a clause of choice of law – which is usually a national law –, the scope of which can thus be “deterritorialized”, and if the contract of the century contains a clause choosing the DRC law, each of the sub-contract or sub-contract determines its own law.

13Sometimes the choice of law is made by “incorporation”, a criterion originating from Anglo-Saxon law which is still in use in the United Kingdom, the Netherlands or in the State of Delaware, for example. According to this criterion, the applicable law of the company is the law of the place of incorporation, ie the place where incorporation formalities were completed. This criterion allows partners to choose the law applicable to the company by choosing the place of incorporation. Incorporated in England, it will be subject to English law. In the Netherlands, it will be Dutch law. And this regardless of the country where the company operates. The statutes will therefore refer to the country chosen as the place of the registered office of the company.

14Thus, the Chinese signatories are indeed two companies incorporated in the People’s Republic of China, and as such submitted to the Chinese corporate law, close to continental – french – company law, but also three subsidiary companies incorporated in Hong Kong, China Railway Group (Hong Kong) Limited (中國 中 鐵 (香港) 有 限 公司), China Railway Resources Development Limited (中國 中 鐵 資源 開 發 股份有限公司), and China Railway Sino-Congo Mining Limited (中國 中 鐵 華 剛 礦業 股份有限公司). These companies are thus subject to Hong Kong law, a law almost identical to the English corporate law, to take advantage of the global financial market of Hong Kong’s stock exchange.

15But it is not only the choice of law by the “merchants” that is organized in this new “global constitution”, there is also the choice of the judge – state-appointed or private – which is at the discretion of the parties. In the contract of the century, the Chinese, according to tradition and the Chinese conception enshrined in the 1989 Act, wished that “negotiations” were opened before any other resolution of the dispute.

Conclusion

18This new global constitution allows private individuals to create transnational “normative spaces” superimposed on state or inter-state legal spaces. All the traditional categories of legal sciences must therefore be redesigned in the context of globalization to define these new normative spaces at the intersection of politics and economics (the territoriality of the law, the rules of conflict concerning law and jurisdiction, location, public order, representation, etc.). And it is between China and Africa that the new normative spaces are the most exemplary of this ongoing globalization.