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What concerns me the most, after years of scrutiny by innumerable Majors, is that none of them believe BPC's geo technical research is sufficiently compelling enough for them to take a punt. What is the risk they that we don't?
It would be brilliant news for BPC if Cuba were to discover oil in a reservoir close to BPC's acreage. Best thing that could happen in the short term.
In the Annulment Application, Clifford Chance (CC), in between setting out numerous grounds for annulment, has also managed to convey a clear idea of what CHL was up against in dealing with RoI. Here follow a few examples: 1 At the Jurisdiction hearing: "Chl was alarmed that the Tribunal took no action when RoI threatened one of their witness' with jail". 2 Regarding Isran Noor's alleged corruption: Awang Faroek Ishak the previous Regent said " Suddenly Mr. Noor has his own jet. 3 Regarding Ridlatama's alleged stealing Of Nusantara's licenses. CC stated: " Nusantara is a powerful Indonesian company controlled by Prabowo Subianto a retired Special Forces General and Presidential candidate, to attempt to steal from Nusantara would be objectively dangerous". It's not discrete but hopefully, it will help our case.
Maestro, I'd be v interested to know where DQ made the remarks you are quoting. A new Tribunal will take Mr Ishak at his word unless we produce evidence that wrecks his credibility. ROI got behind a massive collective lie that the Exploration Licences were forged and fraudulent and their strategy was totally successful. It's the cornerstone of their defence, so, what is it that makes you think they won't do it again?
We lost the case because the Tribunal believed Isran Noor when the said he had been deceived into signing the Exploitation Licences. And, more importantly, they believed Awang Faroek Ishak , the previous Regent, whose signature was autopenned onto the Exploration Licences, when he gave direct evidence to the Tribunal that he had NEVER authorised these Licences. The Tribunal logically concluded that if they were unauthorised they must have been forged and, whilst never proven, the balance of probability was that Ridlatama, CHL"s local partner were to blame. Once they arrived at this determination it followed that: all Adverse Inferences, police audit reports, Noor's erratic behaviour, Putra's disappearance etc etc etc were of no consequence and were duly wiped away; because the foundation of CHL's case,the Exploration Licences, were deemed to be Forgeries. If we are fortunate in winning an annulment, we must then present new evidence to the next Tribunal that will completely undermine Mr Ishak's testimony and destroy his credibility, otherwise we will lose again. Maestro this new evidence you have from the horse's mouth, will it do this?
Maestro, There is now no Tribunal, it's an Ad Hoc committee, they are not authorised to review the previous evidence, they will only rule upon whether or not ICSID rules were followed when the Tribunal came to its decision. The committee can annul, partially annul or reject annulment , nothing more nothing less. If we are fortunate enough to gain an an annulment then another Tribunal will be constituted and we start the whole process again. Only this time ROI, Noor and Co will be emboldened by their previous success. This is going to be a long road and our chance of success is not large.
This is an extract from Liquid 1's below attachment. It's just another example of how difficult it is to get an Annulment. Gabrielle K-K was actually on the board of USG the single largest shareholder in Vivendi the claimant against Argentina. Argentina must have thought they were on a winner, but they failed to get an Annulment. "In a decision strongly critical of Kaufmann-Kohler‘s judgment in failing to investigate and disclose information to the parties relating to her potential conflicts of interests, the committee agreed with Argentina that the tribunal was not properly constituted, and that annulment under Article 52(1)(a) could be supported. It then reasoned that because (1) Kaufmann-Kohler‘s exercise of independent judgment was not actually impaired, (2) it would be unjust to deny the claimants the benefit of the award due to the arbitrator‘s failures, and (3) the lengthy proceedings (which were initially filed in 1997) should ―come to an end,‖ the committee should decline to annul the award (paras. 238–241)".
Maestro, The fact that Isran Noor refused to attend the last Tribunal's meeting does not infer, in any way, that he will refuse to attend a new Tribunal. If we are fortunate enough to get to a new Tribunal, which is far from being a given, we will lose again, unless we are able to totally destroy Mr Ishak's credibility.
The Ad Hoc committee is empowered to Annul, Partially Annul or Reject Annulment of the Tribunal's decision, their determination will / should be based solely on whether or not the Tribunal followed ICSID's rules and practices in coming to their decision. The Ad Hoc committee is not authorised to investigate any evidence presented to the Tribunal or to make any award. If we are successful in obtaining an Annulment, a new Tribunal will be established. We will make our case again and RoI will make theirs. We will only win if we succeed in completely discrediting the evidence of Awang Faroek Ishak, the Regent who claimed he had never authorised the Exploration licences. This will require powerful, new, high impact evidence on our part. Nothing less will suffice.
"For example, in the Togo annulment proceeding, Albert Jan van den Berg was appointed as president of the ad hoc committee in November 2010, only a few months after the award he had rendered as a member of the Enron v Argentina tribunal had been annulled by another ad hoc committee." The point I was making is that Mr Albert Jan Van Den Berg, a member our our Tribunal has had at least one of his previous decisions annulled.
Maestro "we note that the ad hoc Committees operating during the last two decades have considered that a Committee has discretion to determine not to annul an Award even where a ground for annulment under Article 52(1) is found to exist.."
Orbiter, Thank you for your research, it's an insightful article. I note that the author was critical of a Mr Albert Jan Van Den Berg for agreeing to chair an Ad Hoc committee, shortly after a Tribunal he had been a member of had had it's Final Decision annulled. This wouldn't be the same Albert Jan Van Den Berg who was a member of our Tribunal, or would it?
Maestro, All of my recent observations are taken from the ICSID Updated Background Paper on Annulment dated May 5 2016. Onlooker originally provided us with the link to it on 23 April and Orbiter has kindly repeated it today below. If you believe I am factually wrong in my observations, I would be most grateful if you would refer to the Paper or any other ICSID document and point out to me where I am in error.