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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

INTRODUCTION

1.
On 4 November 2011, the Claimants in this arbitration lodged a Request for Arbitration with the International Chamber of Commerce Court of Arbitration (ICC Court).
2.
The Claimants are Dunkwa Continental Goldfields Ltd (DCGL or First Claimant) and Continental Construction and Mining Company Ltd (CCML or Second Claimant), private companies organised under the law of Ghana with their registered addresses at House Number 39 (formerly 41), Aviation Road, Airport Residential Area, PO Box 16417, Accra, Ghana.
3.
The Respondent is the Government of the Republic of Ghana (Ghana or the Government or the Respondent), with its address for the purpose of this proceeding at the Ministry of Justice and Attorney-General's Department, PO Box MB60, Accra, Ghana. The Claimants and Respondent will be referred to collectively as the Parties.
4.
The Tribunal is comprised of Professor Campbell A. Mclachlan QC (Chairman) of Victoria University of Wellington Law School, 55 Lambton Quay, Wellington, New Zealand; the Honorable Judge Charles N. Brower of 20 Essex Street Chambers, 20 Essex Street, London, United Kingdom; and Professor Muna B. Ndulo of Cornell Law School, Myron Taylor Hall, Ithaca, New York, United States of America.
5.
The dispute concerns the Claimants' investment in a privatised gold mining operation at Dunkwa in Ghana, pursuant to a Project Agreement dated 19 April 1995 (the Project Agreement). The Claimants allege that Ghana breached and unlawfully purported to cancel the Project Agreement, and seek an award of damages in the sum of US$94,031,000.
6.
The Respondent denies that the Tribunal has jurisdiction over the dispute. It says that if the Tribunal does enjoy jurisdiction, then the Claimants' case fails on the merits. Finally, it says that if the Tribunal has jurisdiction over the dispute and the Claimants are successful on the merits of their claim, then the appropriate award of damages is nil. It counterclaims for repayment of a World Bank loan of US$700,000 onlent by the Government to the Claimants for the project and unpaid mining royalties.
7.
This is a Final Award which deals with all of the issues and claims raised by the Parties.

I. PROCEDURAL BACKGROUND

A. The Parties

8.
CCML (the Second Claimant) is a private company incorporated pursuant to the Ghanaian Companies Code 1963 on 22 December 1992.1
9.
CCML is owned by Continental Construction Corp Ltd (CCCL), an Indian corporation, and its nominees Messrs A K Verma and M S Basi (as to 60%); and by Tropical Exploration and Mining Co Ltd (TEMCO), a private Ghanaian company (as to 40%).2
10.
CCML was incorporated for the purpose of investigating and participating in a tender for the divestiture and privatisation of a gold mining operation operated by Dunkwa Goldfields Ltd (DGL), a Ghanaian state-owned enterprise, within a concession area in the Upper Denkyira District principally in the Central Region of Ghana.
11.
These proceedings arise out of the Project Agreement signed on 19 April1995. The purpose of the Project Agreement was to enable the divestiture of DGL's operations and assets. The Project Agreement was concluded between the Respondent (acting by the Divestiture Implementation Committee (DIC)), the State Gold Mining Corporation of the Republic of Ghana (SGMC) and DGL on the one part, and CCML on the other.
12.
DCGL (the First Claimant) was incorporated on 16 March 1995 in anticipation of the conclusion of the Project Agreement for the purpose of taking over the assets and operations of DGL.3
13.
The Project Agreement provided that DCGL would be owned 90% by CCML or its nominees, and 10% by the Respondent.4 In accordance with this requirement, DCGL is owned by Continental Construction PLC (CCPLC), a company incorporated in the United Kingdom (as to 54%), PMI of Canada, Inc (PMIC), a corporation incorporated in Canada (as to 36%), and the Respondent (as to a 10% non-voting interest).5

B. The Arbitration Agreement

14.
The Claimants rely on clause 13 of the Project Agreement as the basis for the jurisdiction of the Tribunal. Clause 13 provides:6

13.1 All claims, differences and disputes arising between the parties as to any matter arising, whether directly or indirectly out of, or in connection with this Agreement shall be referred for determination by International Arbitration under the rules and regulations of the International Chamber of Commerce ("ICC") by a board of three (3) arbitrators which shall be appointed and shall carry out the arbitration in accordance with the ICC Rules.

13.2 The Arbitrators shall state in their award in detail, the facts of the case and the reasons for their decision.

13.3 The award of the arbitrators shall be final and binding on the parties and may be enforced in any Court of competent jurisdiction.

(the Arbitration Clause).

15.
Clause 5.3 of the Project Agreement provides that CCML was entitled to assign all or part of its rights and obligations under the Agreement to an affiliate or subsidiary company, provided that the assignee undertook to be bound by the provisions of the Agreement.7 In the event of such an assignment, CCML would remain jointly liable with the assignee for performance of its obligations. The Claimants say that CCML orally assigned part of its rights and obligations under the Agreement to DCGL pursuant to that clause.8
16.
The Claimants maintain that they are both entitled to invoke the Arbitration Clause, and commenced this arbitration accordingly. The Parties disagree about the nature and effect of the assignment.

C. Procedural background

17.
On 4 November 2011, the Claimants filed, pursuant to Article 4 of the International Chamber of Commerce Rules of Arbitration in force as from 1 January 1998 (ICC Rules), the Request for Arbitration with the ICC Court.
18.
At the same time, the Claimants served the Request for Arbitration on the Respondent.9 The Claimants noted in the Request for Arbitration that the Project Agreement did not specify the place or language of the arbitration, and did not contain a governing law clause. The Claimants proposed that the legal place of the arbitration should be London, United Kingdom; that the language of the proceedings should be English; and that the law applicable to the Agreement should be the law of Ghana 'although standards and principles of English law, from which Ghanaian law derives, as well as international law, will also be relevant to the resolution of the parties' dispute'.10 The Claimants did not nominate an arbitrator in their Request, indicating that they would do so shortly.
19.
On 7 November 2011, the Secretariat of the ICC Court acknowledged receipt of the Request for Arbitration. On 18 November 2011, the Claimants nominated an arbitrator and proposed to the Respondent that the two party-appointed arbitrators nominate the Chairman of the Tribunal. On 24 November 2011, the Secretariat sent a copy of the Request to the Respondent.
20.
On 10 January 2012, the Secretariat wrote to the Parties noting that the Respondent had not filed an Answer within the 30 days stipulated under Article 5(1) of the Rules, which time had expired on 29 December 2011. Accordingly, the matter would be referred to the ICC Court for decision as to whether the arbitration ought to proceed under Article 6(3). The Secretariat drew the Parties' attention to the consequences of default provided under the Rules and invited comments by 17 January 2012. The Secretariat acknowledged that the Claimants had paid the requested provisional advance under the Rules, so that the case could advance.
21.
On 3 February 2012, the Respondent wrote to the Secretariat (with a copy to the Claimants). It accepted Claimants' proposals as to the place and language of arbitration, the mode of appointment of the Chairman of the Tribunal, and the 'application of Ghanaian Laws as well as the relevant principles of International Laws to the arbitration.' It nominated an arbitrator and requested an extension of time for filing the Answer. On 24 February 2012, the Claimants objected to the Respondent's proposed arbitrator whereupon, on 7 March 2012, the Respondent nominated Professor Muna B. Ndulo, Professor of Law at Cornell Law School.
22.
On 10 April2012, the ICC Court decided:

(a) Pursuant to Article 6(2) of the Rules, that the arbitration shall proceed.

(b) Pursuant to Article 9(1) of the Rules, to confirm the arbitrator nominated by the Claimants and Professor Ndulo nominated by the Respondent.

(c) To grant the co-arbitrators 30 days to nominate jointly the Chairman of the Tribunal, failing which the Court would take the necessary steps to make such an appointment.

(d) To fix an advance on costs, confirming that the file would be transmitted to the Tribunal once the advance had been paid in full.

23.
On 18 April 2012, the Respondent challenged the arbitrator nominated by the Claimants. On 20 April 2012, the Secretariat granted the Claimants and the co-arbitrators 10 days to comment upon the challenge. Claimants and the challenged arbitrator made comments on 30 April 2012 and Respondent commented on 2 May 2012.
24.
On 31 May 2012, the ICC Court decided to accept the challenge to the arbitrator nominated by the Claimants. Accordingly on 1 June 2012, the Secretariat invited the Claimants to nominate a replacement within 15 days. On 8 June 2012, the Claimants nominated the Honorable Judge Charles N. Brower as co-arbitrator.
25.
On 18 June 2012, the Respondent filed its Answer to Claimants' Request for Arbitration.
26.
On 20 July 2012, the Secretariat wrote to the Parties informing them that the Secretary-General would proceed with the constitution of the Tribunal unless informed otherwise by 23 July 2012. On 31 July 2012, the Secretary-General confirmed Judge Brower's appointment, and granted the co-arbitrators 30 days within which to agree upon the appointment of a Chairman. Judge Brower and Professor Ndulo jointly nominated Professor Campbell Mclachlan QC, Professor of Law at Victoria University of Wellington Law School, as Chairman of the Tribunal. On 20 September 2012, the Secretary-General confirmed Professor Mclachlan's appointment as Chairman.
27.
The file was forwarded to the Tribunal on 24 September 2012. By letter dated 3 November 2012, the Chairman on behalf of the Tribunal distributed a proposed Terms of Reference to the Parties for their comments. By letter from the Claimants' counsel dated 15 November 2012, the Parties provided an agreed revised version of the Terms of Reference.
28.
On 7 December 2012, the Tribunal conducted a Case Management Conference by video, at which representatives of all Parties and their counsel attended. During that Conference, the Members of the Tribunal and the Parties by their Authorised Representatives executed the Terms of Reference of the Tribunal. The Terms of Reference record, inter alia, that:11

(a) By executing the Terms of Reference, the arbitrators confirmed the acceptance of their designation, and the Parties confirmed that at the time of signing they knew of no reason or basis to challenge the arbitrators and had no reservations or objections to express with regard to the constitution of the Tribunal.12

(b) The Tribunal shall resolve all issues of fact and law arising from the claims and pleadings as submitted by the Parties, including those relevant to decide on the relief sought by the Parties and the costs and expenses of and incidental to the arbitration and how costs should be allocated between the Parties.13

(c) The place of arbitration would be London, United Kingdom, but the Tribunal could meet between themselves at any other location; and any Award or Awards may be signed by the Tribunal at a place other than the place of arbitration but would be deemed conclusively to be made at the place of arbitration.14

(d) The Tribunal shall apply the substantive law of Ghana to the Agreement, and may also have regard to relevant principles of international law in the determination of the dispute.15

(e) The Tribunal shall be entitled to determine any issue as to Ghanaian law on the basis of the Parties' submissions (including any legal authorities relied on), and/or expert evidence (if the Tribunal calls for expert evidence or the Parties, with the leave of the Tribunal, submit such evidence).16

29.
As to the procedure of the arbitration, the Terms of Reference provide, inter alia:17

(a) The proceeding shall be conducted in accordance with the ICC Rules and the directions of the Tribunal in accordance with those Rules, but subject always to any relevant procedural rules contained of the law of the place of the arbitration to the extent that such rules are mandatory.

(b) The International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration 2010 (IBA Rules) may be used as guidelines to the extent considered appropriate by the Tribunal in the exercise of its overall procedural discretion.

(c) The Tribunal is not bound by any strict rules of evidence, but may receive and rely upon any evidence is considers helpful and will determine the relevance, materiality and weight of evidence before it.

(d) The language of the arbitration is English, and any original documents in a language other than English shall be accompanied by an English translation.

(e) The arbitrators and the Parties agree that the Chairman may make procedural rulings alone provided that he shall first consult with his co-arbitrators to the extent possible, and the full Tribunal shall hear and determine any procedural matter if requested by either party.

30.
At the Case Management Conference, the Parties also discussed a draft of Procedural Order No. 1. Following those discussions, the Chairman on behalf of the Tribunal issued Procedural Order No.1 (PO No.1) on 17 December 2012.
31.
Pursuant to the timetable set down in PO No. 1, on 21 December 2012 the Respondent submitted a memorandum which detailed its objections to the Tribunal's jurisdiction and the admissibility of the Claimants' claims, and the Respondent's submission that the arbitration should be bifurcated so as to enable its preliminary objections to jurisdiction and admissibility to be determined before any other issues were addressed (Respondent Bifurcation 1).
32.
On 16 January 2013, the Claimants submitted a Memorandum on Bifurcation, in which they submitted that the proceedings should not be bifurcated (Claimants Bifurcation 1). On 28 January 2013, the Respondent submitted a Reply Memorandum on Bifurcation in response to the Claimants' memorandum (Respondent Bifurcation 2). On 8 February 2013, with leave of the Tribunal, the Claimants submitted a Rejoinder Memorandum on Bifurcation (Claimants Bifurcation 2). The Tribunal deliberated by various means on the Respondent's application, including in person in Washington DC on 7 April 2013. By reasoned decision dated 21 April 2013 (Decision on Bifurcation), the Tribunal denied the Respondent's application for bifurcation.
33.
By letter dated 22 April 2013, the Tribunal by the Chairman wrote to the Parties proposing dates for certain steps in the arbitration pursuant to PO No. 1 and in accordance with the decision not to bifurcate the proceedings. By joint message dated 26 April 2013, the Parties communicated their joint agreement to the schedule proposed by the Tribunal, subject to certain requested revisions.
34.
Taking into account the Parties' joint comments, on 2 May 2013 the Chairman on behalf of the Tribunal issued Procedural Order No. 2 (PO No. 2), which stipulated the schedule for the remaining steps in the arbitration. In particular, PO No. 2 fixed the hearing on jurisdiction and the merits to commence in London on 6 October 2014, with five-six days allowed.
35.
By email message to the Parties dated 20 September 2013, the Chairman proposed the appointment of Mr Jack L W Wass, Barrister of Stout Street Chambers in Wellington, New Zealand, as Administrative Secretary to the Tribunal in accordance with the ICC Court of Arbitration Note on the Appointment, Duties and Remuneration of Administrative Secretaries dated 1 August 2012. By email messages dated 20 and 21 September 2013 respectively, the Claimants and the Respondent agreed to the appointment. That appointment was recorded in a Terms of Appointment dated 27 September 2013, and signed by the Members of the Tribunal, the Secretary, and the Parties by their Authorised Representatives.
36.
By letter to the Parties dated 30 October 2013, the Secretariat advised that the time limit for the Respondent to pay the balance of its share of the advance on costs (being US$100,000) had expired. The Secretariat accordingly invited the Claimants to substitute for the Respondent in paying the balance by 14 November 2013.
37.
By letter dated 5 November 2013, the Claimants requested that the Tribunal make an order directing the Respondent to pay forthwith its remaining share of the advance on costs. By letter from the Chairman dated 26 November 2013, the Chairman reminded the Respondent of its obligation to pay its share of the advance on costs set by the Court of Arbitration, and invited the Respondent's comments on the Claimants' request by 6 December 2013. By email dated 27 November 2013, the Respondent confirmed to the Tribunal that the Respondent had paid its remaining share of the advance on costs on 20 November 2013, as was confirmed by the Secretariat by letter of the following day.

D. Document Requests and pleadings

38.
In accordance with Procedural Order No. 2, the Claimants and the Respondent each submitted document production requests on 13 January 2014. Further correspondence was exchanged between the Parties in January and February 2014 on the subject of the Parties' document requests.
39.
The Tribunal considered the Parties' respective document production requests and accompanying submissions, and on 14 February 2014 issued Procedural Order No. 3 on Requests for Production of Documents (PO No.3), accompanied by the Tribunal's decisions on the respective requests as set out in the accompanying Redfern Schedules.
40.
By letter of 20 February 2014, the Respondent requested that the Tribunal reconsider its response to certain of the Respondent's document requests. By letter of the same day, the Claimants objected to the Respondent's request, and on 22 February 2014 the Respondent replied to the Claimants' objection.
41.
On 26 February 2014, the Respondent produced those documents responsive to the Claimants' document production requests that had been granted by the Tribunal in PO No. 3, and gave certain other confirmations sought by the Tribunal. The Claimants produced those documents responsive to the Respondent's requests by letter of 28 February 2014.
42.
By letter from the Chairman dated 3 April 2014, the Tribunal determined the Respondent's application of 20 February 2014 and ordered the production of certain documents.
43.
The pleadings on jurisdiction and the merits in this arbitration were commenced by the Request for Arbitration (dated 4 November 2011) and Answer (dated 18 June 2012).
44.
On 16 August 2013, the Claimants filed with the Tribunal their Memorial on the Merits (Memorial), together with 7 witness statements, 3 expert reports and accompanying appendices and exhibits.
45.
On 29 November 2013, the Respondent submitted its Counter-Memorial on the Merits and Jurisdiction (Counter-Memorial), together with 4 witness statements, 2 expert reports and accompanying appendices and exhibits.
46.
On 19 March 2014, pursuant to a two-day extension granted by the Tribunal on 15 March 2014, the Claimants submitted their Reply on the Merits (Reply), together with further statements from 2 witnesses and further reports from 2 experts.
47.
On 8 July 2014, the Respondent submitted its Rejoinder on the Merits and Jurisdiction (Rejoinder), together with further statements from 2 witnesses and further reports from its 2 experts.

E. Hearing

48.
Pursuant to clause 7.1 of PO No. 1 and clause 8 of PO No. 2, on 1 September 2014 the Parties notified each other that they required all of the fact and expert witnesses who had submitted statements or reports to be available at the Hearing for questioning (save only that the Claimants did not require the attendance of Dr. Daniel Flores, the co-author with Mr Vladimir Brailovsky of expert reports on quantum for the Respondent).
49.
A Hearing on Jurisdiction and Merits took place in London from Monday 6 October to Saturday 11 October 2014. The following witnesses were called and gave evidence, either in person or by video-link from Accra.

SO. For the Claimants:

Mr. Manjeet Singh Basi (witness of fact);
Mr. Krishan (Kris) Kapoor (witness offact);
Mr. Adu Boadi Acheampong (witness offact);
Mr. Christian Addo Manu (witness offact);
Mr. Paul Robinson Keteku (witness offact);
Mr. Ebenezer Amos Sac key (witness of fact);
Mr. Ferdinand Agbemadu (witness offact);
Prof. Joseph Ayee (expert witness);
Mr. Michael F. Wick (expert witness); and
Ms. Antoinette Pincott (expert witness).

51.
For the Respondent:

Mr. Kofi Ansah (witness of fact);
Mr. Ben Aryee (witness offact);
Mr. Edward Awuah Nyamekye (witness offact);
Chief Nana Otaa Pan in Ill (witness of fact);
Prof. Prosper M. Nude (expert witness); and
Mr. Vladimir Brailovsky (expert witness).

52.
Also present at the hearing were the following counsel and representatives for the Claimants:

Baiju S. Vasani (Jones Day);
Sylvia Tonova (Jones Day);
Anastasiya Ugale (Jones Day);
Charlene Bourliout (Jones Day);
Jack Logan (Jones Day);
Victoria Banson (Jones Day);
Angelika Bialowas (Jones Day);
Richard Frimpong Oppong (Thompson Rivers University);
Robert Rhodes, Q.C. (Outer Temple Chambers);
Gordon Rodgers (Continental Construction, PLC);
Rinku Kapoor Handa (PM I of Canada, Inc.);
Paul Oppoku (E. Allotei & Mingle Co, Accra);
Joseph Jandrasits (John T. Boyd Company).

53.
And representing the Respondent:

Benard V. Preziosi (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Justin M. Jacinto (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Peter F. Stewart (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Alexandra Maier (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Anne-Sophie Petitdemange (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Sena Tsikata (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Matt Getz (Curtis, Mallet-Prevost, Colt & Mosie, LLP);
Dominic Akuritinga Ayine (Deputy Attorney-General, Ghana);
Dorothy Afriyie-Ansah (Chief State Attorney, Ghana);
Zeinab Ayariga (Assistant State Attorney, Ghana);
Charles Afeku (Senior Legal Officer, Minerals Commission, Ghana);
Kwasi Anokye-Yesu (Manager, SGMC Desk, Minerals Commission, Ghana);
Dr. Daniel Flores (Econ One Research, Inc.);
Professor Daniel Mireku-Gyimah (University of Mines & Technology, Tarkwa).

54.
Also present were the Administrative Secretary, Mr Jack L W Wass, and by consent of the Parties Ms. Paula Hen in, assistant to Judge Brower.
55.
On Friday 10 October 2014, the Tribunal presented to the Parties a list of Questions of Ghanaian Law on which the Tribunal sought submissions. Each party chose not to address those issues in closing on Saturday 11 October 2014, but instead to do so by post-hearing briefs for which a timetable was set by the Tribunal that day.
56.
At the conclusion of the Hearing, the Parties by their counsel confirmed that they had no objections to the procedure of the arbitration to date.18
57.
Pursuant to the timetable noted above, the Parties exchanged and filed post-hearing briefs on 11 November 2014 (Claimants' PHB and Respondent's PHB), addressing the Tribunal's Questions of Ghanaian Law; and submissions on costs on 26 November 2014. The Tribunal notified the Parties of the formal closure of the proceedings on 3 June 2015.

II. FACTUAL BACKGROUND

A. The Dunkwa Concession

58.
The Dunkwa Concession is an alluvial dredging operation which stretches along 387 square kilometres of the Offin River and its tributaries, the Jimi and Oda. The site is located in the Upper Denkyira District (now Municipality), principally in the Central Region of Ghana.19 The operation is headquartered at Dunkwa-on-Offin, a town on the southern bank of the Offin River and the capital of the Upper Denkyira District.
59.
Although the Dunkwa mine is essentially an alluvial dredging operation, areas of hard rock mining potential have been identified in the locality.20 The Dunkwa Concession is bordered to the north by the large open cast and underground mine at Obuasi operated by Ashanti.21
60.
Dredging for gold has been conducted along the Offin River since at least 1904. When Ghana obtained independence in 1957 (and became a republic on 1 July 1960), large-scale dredging was being conducted by the Bremang Gold Dredging Co. In 1962, Ghana fully nationalised its mining industry (with the exception of Ashanti Goldfields Ltd); Bremang was taken over and renamed as DGL.22 DGL was owned by SGMC.23 DGL conducted dredging operations continuously at Dunkwa until its divestiture in 1995.24
61.
Mining had been conducted by Bremang under the authority of approximately two-dozen long-standing leases.25 These leases had been granted by tribal authorities known as 'stools' or 'skins'. The earliest such lease was granted in 1908. But most of them had been issued in the 1930s. They were mostly valid for 99 years (i.e. until approximately 2030).26 Each lease generally related to an area of less than 5 square miles, and on their face granted the lessee specified mining and ancillary rights in respect of that area. These leases were known as Certificates of Validity or CVs after the process by which the leases were judicially certified. The legal effect of these CVs at the time of the conclusion of the Project Agreement is a major issue for decision in this arbitration.
62.
In 1962, ownership of all minerals (including gold) vested in the new State and competence for granting mining concessions was transferred from the chiefs to the minister responsible for mines.27 Bremang's rights as lessee under the CVs covering the Dunkwa Concession were compulsorily transferred to DGL by operation of law.28
63.
In 1986, Ghana passed the Minerals and Mining Law 1986 (PNCDL 153) (the 1986 Law), which required mining operations to be conducted under the authority of a mining lease granted by the Government.29 The Government permitted DGL and other mining operations to continue mining without issuing them with formal mining leases.30 The Parties disagree on the extent to which the Claimants' operation was subject to the 1986 Law.

B. The divestiture of the Dunkwa Concession

64.
As a result of widespread nationalisation after independence, Ghana had a large number of state-owned enterprises by the 1980s. Many of these were poorly performing and required significant Government subsidisation. In 1983-84, the Government launched the Economic Recovery Program (ERP), which proposed the divestiture of state-owned enterprises into private ownership. The Government ultimately established the DIC to oversee this process.31 It subsequently established a Minerals Sector Divestiture Sub-Committee (Minerals Sub-Committee), chaired by Mr Ansah, then Chief Executive of the Minerals Commission.32
65.
At the same time, Ghana took steps to revitalise its mining industry. The World Bank approved development assistance for this process in the form of the Mining Sector Rehabilitation Project (MSRP).33 The project facilitated the divestiture of all three gold mines formerly owned by the Government: Tarkwa in 1993, Dunkwa in 1995 and Prestea in 1996.34 At the time of the divestiture, all three mines were performing poorly. The World Bank identified the three mines as being 'a recurrent drain of public resources' and at risk of 'imminent total collapse'.35
66.
The World Bank initially assessed the Dunkwa operation as having the most potential for profitable operation, but in hindsight found that its positive assessment was mistaken. In particular, the World Bank found that it had incorrectly assessed the ore reserves as well as the operational capacity of the dredges.36 The World Bank ultimately concluded that the outcome of the MSRP had been 'moderately unsatisfactory', principally because the 'basic premise' of the project- that the mines were economically viable- was flawed.37 The World Bank had warned the Government about the need to manage social conflicts after divestiture.38
67.
All the Parties who participated in the divestiture of the Dunkwa Concession understood- and it is common ground in this arbitration -that the Dunkwa operation was likely to be marginal as a gold mining operation at the gold prices prevailing around the time of the divestiture (less than US$400 per ounce).39 Indeed, the Claimants submit that even if significant technical and managerial improvements were made, 'profits were never expected to be large enough to attract participation from a multinational mining company.'40
68.
The involvement of the Claimants in the Dunkwa project was instigated by Mr Krishan (Kris) Kapoor, an Indian national and Canadian citizen. Mr Kapoor, a marine engineer, had first visited Ghana in 1977 to consult on the construction of a water treatment plant. He later became Chief Engineer for the Ghana National Manganese Corporation (GNMC), in which capacity he was involved in a number of Government engineering projects. After leaving GNMC, Mr Kapoor was involved in a number of private sector engineering projects and ultimately established TEMCO, which later became a shareholder in CCML. In the early 1990s, Mr Kapoor became aware of the Government's plans in relation to the Dunkwa Concession, and came into contact with the Ghana Minerals Commission.
69.
The Minerals Commission was established under the authority of the Minerals Commission Law 1986 (PNDCL 154), and reconstituted under the Minerals Commission Act 1993. The Commission's role includes the 'regulation and management of the utilisation of mineral resources and the co-ordination of policies in relation to them', and it reports to the Minister responsible for Mines on matters relating to minerals.41 The Commission had significant involvement with the Claimants before and during the operation of the Project Agreement, and the Tribunal heard evidence from its successive Chief Executives over the relevant period.42
70.
The Parties dispute whether the Minerals Commission first approached Mr Kapoor, or vice versa.43 What is clear is that the parties discussed the proposed divestiture of the Dunkwa operation, and Mr Kapoor took steps to investigate the project and to locate potential investors. In particular, he approached the Acting High Commissioner of India to Ghana for suggestions; through him, Mr Kapoor was directed to CCCL, a construction company based in India. CCCL was ultimately owned by the families of its Chairman, Mr C. l. Verma, and Mr Manjeet Singh Basi.44 Mr Verma agreed to visit Ghana to investigate the project.
71.
Mr Verma told Mr Kapoor that the Dunkwa operation would not bring in enough revenue to justify CCCl's involvement at current gold prices.45 He said that if Mr Kapoor could design and implement sufficient auxiliary operations, with the Government's approval, to bolster the site's productivity, then CCCL might be prepared to get involved.46 Mr Basi and Mr Kapoor agreed with that assessment,47 and Mr Kapoor's evidence is that he regarded the project's potential as being 'rooted in utilization of the mining waste for auxiliary projects'.48
72.
CCMl was incorporated on 22 December 1992 as a vehicle for the project.49 After correspondence with the Minerals Commission, CCMl formally submitted its proposal for participation in the project on 14 January 1993.50 The proposal includes CCMl's interest in 'small scale agro-industries' projects.51
73.
In providing comments on a draft Heads of Agreement, Mr Ansah explained that operations other than mining were outside the mandate of the divestiture, and CCMl's surface rights (in respect of forestry, agriculture, and so on) were limited to activities ancillary to what was provided in the 1986 law and the CVs.52 Nevertheless, the Respondent's witnesses confirm that the Government was not opposed to CCMl engaging in other activities, and the 1986 law did not prevent them doing so, but that it would have to make its own arrangements with landowners and obtain the necessary approvals.53

C. The Agreements

1. The Heads of Agreement

74.
The negotiations ultimately resulted in the execution of a Heads of Agreement on 9 May 1994. The Heads of Agreement was concluded between the Government of Ghana (acting by the Minerals Sub-Committee of the DIC), SGMC and DGL on the one part, and CCML on the other.54 The Heads of Agreement ultimately formed the basis of the Project Agreement that is at the heart of this arbitration, and the two agreements are in many respects similar. It is therefore only necessary to provide an overview of the Heads of Agreement; the detailed terms of the Project Agreement are described below.
75.
The first recital to the Heads of Agreement records its purpose as follows:

WHEREAS SGMC is the controlling shareholder of [DGL] (a state controlled enterprise) which conducts Gold mining operations utilizing dredges within a concession area in Ghana which includes all mineral rights in areas which are listed in Annexure A and partly covered by C.Vs. and in all the areas depicted and described in the maps attached as Annexure B, together with ancillary land rights, timber operation and agriculture use grants and licenses contiguous to all the areas covered by Annexures A & B

76.
The Heads of Agreement contains no interpretation or definition section. Part 1 of the Agreement is entitled Warranties. It begins with the following:

1.1 The Government warrants jointly and severally with SGMC and [DGL] that the Concession[55] is fully valid and enforceable and will remain so for the duration of these Heads and any agreement between the parties which replaces or supersedes them.

77.
Parts 2 and 3 then describe a two-phase process:

(a) Phase I was to consist of 'due diligence and management assistance', and was anticipated to last up to 4 months (cl2.1).

(b) Within 60 days of completing Phase I, CCML could elect whether to proceed to Phase II. On notice of the election being given, the parties would be deemed to have entered into a participation agreement, and CCML would 'take over all operations and assets of [DGL] which shall include the movable and immovable assets of the Dunkwa mine belonging to [DGL]' (cl 2.2).

(c) Phase II would be a 'feasibility and limited Refurbishment phase' and last 24 months (cl 3.1). During this period, CCML would conduct a programme that 'will include any of the following: complete re-engineering of old dredges, [sampling]... and feasibility study'. Clause 3.1 records:

The feasibility studies shall also extend to any other operation(s) which could generate extra revenue in the area of logging/timber, agriculture, import substitution, manufacture of engineering goods and plants for small/medium scale mining which could be economically viable and support local economy.

(d) Clause 3.2 provides that CCML would spend approximately US$6,120,500 on Phase II and 'On completion of phase II, CCML shall source further loan/funds to do what is needed to economically operate the mine and any other auxiliary project it may enter into.' CCML would make two further payments of $125,000 each as consideration (ell 3.3 & 3.4).

78.
The structure of the rest of the Agreement was as follows:

(a) Part 4 & 5 describe the anticipated agreement that would be entered into by the Government and CCML (described as a participation agreement or joint mining venture agreement), and provide for the creation of a new vehicle for the purpose. Clause 5.5 provides for assignment by CCML of its rights and obligations on certain terms.

(b) Part 7 (Liability) provides that while Phase I was in progress, SGMC would retain management of the mine. Operations would be restricted to one dredge, but could be increased to two dredges (in CCML's discretion) if such an operation would not deteriorate the condition of the dredges (cl7.1).

(c) Part 8 provides for the Government to arrange certain financial assistance for CCML:

i. During Phase I the Government would obtain US$600,000 from the World Bank to partially rehabilitate one dredge, to carry out tests and to protect the remaining dredges from further deterioration. If CCML elected to proceed to Phase II, those funds would 'become part of a soft loan' to CCML or the joint mining venture (cl8.1).

ii. The Government would assist in obtaining a soft loan of US$2m to supplement CCML's own funds in implementing Phase II, which would be disbursed at the commencement of Phase II (cl 8.2).

(d) Part 10 begins by recognising 'that the rate of return on the investment on this project would be marginal', and goes on to record certain 'concessions, exemptions and privileges' to be granted by the government. In particular, clause 10.4 provides that CCML 'plans to use the concession areas to establish agriculture based projects. No further approval shall be required to use land for such purposes.'

(e) Clause 12 contains a force majeure clause, and clause 13 contains an arbitration clause in similar terms to the arbitration clause in the Project Agreement,56 save that the Heads of Agreement expressly provides that the place of the arbitration would be London or Toronto, and the proceedings should be conducted in English.57

79.
The Heads of Agreement is accompanied by three annexures. Annexure A contains a list of the CVs being transferred. Annexure B is a map of the concession area. Annexure C is a detailed Work Programme which describes the proposed expenditure on Phase I and Phase II (divided between the expenditure on account of CCML and that on account of SGMC). That description is followed by a brief estimate of the capital costs of 'Operations Beyond Phase II for Year 3 to 5', and concludes with a summary of 'Overall Finances for First 5 Years Operation'. That suggests that 'Equity and Shareholder's Loan' would contribute $5.85m of the total capital investment in the first 5 years, and 'Loans' would contribute $16,725m.58 Annexure C concludes with two Notes:

1.1 Operating Profit Not Used in Above Calculations

1.2 Total Estimated Capital Expenditures for 15 Years Span of Project $35,000,000

80.
Following the execution of the Heads of Agreement, CCML conducted due diligence. It examined both historical data provided by SGMC and historical figures compiled by a Mr Zebre on behalf of the United Nations Development Programme in the 1970s, and conducted spot checks.59 CCML estimated that the concession contained 114,371,976 cubic yards of proven dredgeable reserves.60 It conducted prospecting ahead of three dredges and found that reserves were sufficient to support the dredge mining operation.61 CCML concluded that although the alluvial mining reserves were substantial, the grade was marginal. The project was made more attractive by the hard rock mining potential and the presence of industrial minerals (such as silica, of which there was a high concentration in the pay gravel).62 CCML was also informed by Mr Bob Denis (a former employee of DGL, who was hired by CCML) that two of the dredges were not in very good working order and would require considerable work to be put back into operation.63
81.
Nevertheless, on 6 October 1994, CCML notified the DIC that it was electing to proceed to Phase II of the divestiture.64 On 21 October 1994, CCML presented the Government with a review of the work it had conducted,65 and it produced a final report on 9 December 1994.66 The Claimants' evidence is that they had spent US$3.2m on Phase 1.67
82.
Shortly after the Heads of Agreement was signed, the Government advised CCML that it was not prepared to allow CCML the concession to mine the Miradani hard rock site that had originally been included within the scope of the Heads of Agreement. The decision to withdraw the Miradani concession was made by the Minister on the advice of the Minerals Commission.68 CCML resisted the decision.69 Contemporaneous correspondence suggests that the Government advised CCML of its intentions shortly after the Heads of Agreement was signed, because CCML apparently presented a petition seeking a change of position on 30 May 1994 (21 days after the Heads of Agreement had been signed). The areas to be removed were confirmed by the Minerals Commission on 13 September 1994.70 On 16 March 1995, the Minister wrote to CCML to confirm his decision to remove the Miradani area and concluded by 'urging [CCML] to accept the Dunkwa property without the hard rock potential.'71 CCML concluded that the project was still worthwhile without the hard rock mining rights.72

2. The Project Agreement

83.
The parties proceeded to execute the Project Agreement on 19 April 1995. The Agreement was executed between the Government acting by the DIC, SGMC and DGL on the one part, and CCML on the other part. It is surtitled 'Project Agreement - Privatization Of Dunkwa Goldfields Limited'. Because it is largely based on the Heads of Agreement which had been executed almost one year before, in some cases it records steps that had already been taken in a future tense.
84.
The recitals provide as follows:

WHEREAS SGMC is the controlling shareholder of [DGL] (a wholly owned state enterprise) which conducts Gold mining operations utilizing dredges within a concession area in Ghana which includes all mineral rights in areas which are listed in Annexure A and partly covered by C.Vs and in all the areas depicted and described in the map attached as Annexure B, together with ancillary rights to timber and agricultural use of areas covered by annexures "A & B"; and

WHEREAS the Government has decided to privatize the Dunkwa concessions and operations; and

WHEREAS CCML in response to the Government Divestiture programme has indicated its desire to participate in the Dunkwa mining operations under the terms hereinafter agreed between the parties thereto; and

WHEREAS CCML possess the necessary mining and management skills and experience, as well as the financial strength and resources to take over and carry out the Dunkwa operations; and

WHEREAS the parties have in principle reached agreement to proceed expeditiously.

NOW THEREFORE, the parties hereto agree subject to the conditions set forth in this Agrement.

85.
Again, there is no definition section, and the Agreement begins with Section 1 (Warranties) and provides:

1.1 The Government warrants jointly and severally with SGMC and [DGL] that the concessions and rights granted to CCML hereunder are effective, fully valid and enforceable and will remain so for the duration of this Agreement and any extension or variation thereof. [73]

1.2 CCML shall have the exclusive right to carry out due diligence (Phase 1) as per clause 2.1 and to take over the mining operations and assets of [DGL] at the end of Phase I or earlier if CCML prefers to do so, or start Phase II earlier than what is envisaged under clause 3.1.

1.3 Existing liabilities of SGMC/[DGL] to any third party... shall not be the responsibility of CCML if CCML should decide to take over the assets and operations of [DGL]

1.4 Furthermore, Government, SGMC and [DGL] warrant that there shall not be any hindrance or obstruction to the exercise by CCML of the rights hereby granted.

86.
Mr Ansah's evidence is that the purpose of this last provision was limited to ensuring that CCML had access to the site during due diligence and that the Government did not grant competing rights to the mine in the meantime.74 The Claimants' evidence is that they were concerned that their commercial decisions would not be popular with the community and included the clause to obligate the Government to play an active role in protecting the investment.75
87.
Part 2 of the Agreement is entitled Phases & Costs and dealt with Phase I and the transition to Phase II:

(a) It begins by recording the parties' agreement to divide the project into 'the following phases', beginning with Phase 1: Due Diligence and Management Assistance.

(b) Clause 2.1 describes Phase I, which would start on 9 June 1994 and last for a period of up to 4 months. In this phase, CCML would review and assess the existing records on the Concessions, and conduct inspections and studies 'in order to determine whether economically viable gold ore resources exist and to evaluate these resources.' CCML intended to spend approximately $850,000 on this phase, as described in Annexure C.

(c) Clause 2.2.1 records that within 60 days of the completion of Phase I, CCML and/or its nominee would have the option whether to proceed to Phase II, but cl 2.2.2 records that CCML had given such notice by letter of 6 October 1994. The start date of Phase II would be no later than 31 March 1995.76 Clause 2.2.3 provides that on the commencement of Phase II, 'CCML shall take over the management of all operations and assets of [DGL] including the movable and immovable assets of the Dunkwa mine belonging to [DGL], including (without derogating from the generality thereof) the surface development, dredges and associated accessories, structures, buildings, [etc]... but excluding cash reserves and consumables'.

(d) Within 30 days of the Agreement being signed, CCML would pay $250,000 as a first payment for the acquisition of the DGL assets and operations (cl2.3).

(e) CCML would provide quarterly reports during each phase and a final report within 60 days of completion of each phase (cl2.5).

(f) Clause 2.6 provides that if CCML decided not to proceed with Phase II, CCML would give 'appropriate notice to the other parties and thereafter this agreement or any JMVA that may have been entered shall terminate', provided that CCML would provide for the orderly handing over of all machinery, equipment etc to SGMC/DGL.

88.
Part 3 concerns 'Phase II: Feasibility Study & Limited Refurbishment':

(a) Clause 3.1 provided that Phase II would be a 'feasibility and limited refurbishment phase' lasting 36 months. This would include re-engineering dredges, mapping and surveying and feasibility studies. The clause provided that:

3.1... The feasibility studies shall also extend to any other operation(s) which could generate extra revenue in the areas of logging/timber, agriculture, import substitution, manufacture of engineering goods and plants for small/medium scale mining which could be economically viable and support the local economy.

(b) Clause 3.2 records that CCML expected to spend approximately $6m on Phase II. It provided that '[o]n completion of Phase II, CCML shall source further loan/funds to do what is needed to economically operate the mine and any other auxiliary project it may be permitted to enter into.'

(c) CCML would make two further payments towards the acquisition price: $125,000 after each of 12 and 24 months (ell 3.3 and 3.4).

(d) Clause 3.6 records that it was 'agreed that upon take over of all operations and assets of [DGL], the title to all the assets of Dunkwa shall vest in CCML.' That was subject to a reservation that CCML would not have the right to sell the acquired assets of CCML until the later of the end of Phase II and the payment of the final $125,000.

89.
Clauses 4 and 5 provide for DCGL (described as the 'Participation Company') to take over the operations of the mine. The Government would enjoy a 10% carried interest in DCGL (cl 4.2)77 and CCML or its nominee would hold 90%. Up to 80% of could be held by an off-shore company in the UK or Canada, with the remaining 10% to be offered to the public on the Ghana Stock Exchange 'as and when the Government and CCML jointly find it suitable/preferable' (cl 4.3). CCML or its nominee would have management control of all activities and operations of the mine and DCGL (c14.4).
90.
Clause 5 goes on to record the principles on which participation in DCGL would be based. In particular:

(a) Clause 5.1 provides that CCML with Government participation would choose the 'vehicle most suitable and efficient in terms of Ghanaian law for the conduct of the operations of DCGL and in compliance with investment guidelines in effect in Ghana, which vehicle could be a foreign registered company or a Ghanaian registered company.'

(b) Clause 5.2 provides that funding was detailed in Annexure C, that until DCGL was established CCML would fund the enterprise and then those liabilities would be transferred as the 'direct financial liability' of DCGL.

(c) Clause 5.3 provides for CCML to assign its rights and obligations in the following terms:

5.3 CCML shall be entitled at any time from the date of signing this Agreement to assign part or all of its rights and obligations under this Agreement in whatever form such rights and obligations then existed, to a company which is its affiliate or subsidiary provided that such company undertakes to be bound by the provisions of this Agreement or any other agreement which may replace it.

In the event of any assignment by CCML to another company, CCML shall continue to be liable with the assignee for the performance of its obligations.

5.5 Should CCML wish to assign part or all of its rights and obligations to a party which is not an affiliate or subsidiary, or should Government likewise wish to assign part or all of its rights and obligations to a party which is not controlled by Government or is not a representative of the owners of the land on which the mining operations are carried out, the other party shall have the right offirst refusal to acquire such interest.

91.
Clause 6 concerns personnel and associated infrastructure, allowed for CCML to engage expatriate expertise and required SGMC and DGL to allow CCML and its employees to access the site.
92.
Clause 7 is entitled Liability, and provides in particular:

(a) During Phase I, SGMC would retain management of operations of the mine, restricted to one dredge or increased to two dredges (on CCML's advice) if that would not deteriorate their condition (cl7.1).

(b) Clause 7.3 addresses an anticipated concern with 'turbidity', and requires the Claimants to provide boreholes for villages affected by the problem.

93.
Clause 8 provides for certain loans to assist CCML:

(a) Clause 8.1 provided that during Phase I, the Government/SGMC would procure a loan of $700,000 from the World Bank for the partial rehabilitation of a dredge and maintenance of the other dredges. If CCML elected to proceed to Phase II, 'such funds obtained from the World Bank or other source by Government/SGMC shall become part of a loan to CCML/DCGL for Phase II operations.'

(b) Furthermore, the Government parties would use their best endeavours to assist CCML/DCGL to procure a loan of 'at least' US$2m from the World Bank, 'Caisse Francais de Development' or another international development funding agency (cl 8.2).

94.
Clause 9 concerns project insurance.
95.
Section 10 begins by recognising 'that the rate of return on the investment on this project could be marginal, as was demonstrated by the cash-flow analysis produced during the negotiations. In order to attract investment funds,' the Government would grant certain 'concessions, exemptions and privileges to CCML/DCGL':78

(a) Clause 10.1 provides that 'All benefits allowed by existing or new Mining Laws shall also be applicable to this project and special/additional concessions or benefits approved in the Agreement shall be in addition to what may be allowed by the Mining Laws.'

(b) Clause 10.2 provides certain tax relief.

(c) Clause 10.3 allows for CCML/DCGL to maintain overseas retention accounts.

(d) Clause 10.4 of the Heads of Agreement, which recorded that CCML had planned to conduct agriculture-based projects and that no approval would be required for those projects, was deleted and not replaced. Mr Kapoor's evidence is that the Government told CCMl that permits for that activity would not be required and that is why the provision was removed.79 Mr Ansah maintains, to the contrary, that the provision was removed because the DIC did not have authority to grant such dispensation.80

(e) The remainder of clause 10 concerns miscellaneous concessions: clause 10.4 permits the Claimants to add value to minerals and sell them; clause 10.5 exempts Claimants from Selective Alien Employment Tax in accordance with the Minerals and Mining law 1986; and clause 10.6 provides that the Government could defer payment of royalties.

96.
Clause 11 provides for Confidentiality and clause 12 is a force majeure clause. Clause 13 is the arbitration agreement pursuant to which this arbitration was commenced.
97.
The Project Agreement also has three Annexures, which are largely similar to the Annexures to the Heads of Agreement. Annexure A records the CVs being transferred.81 Annexure B is a map dated January 1995 of the concession area, with a new hand-written annotation recording that a 5.8 square mile area marked in red- the Miradani hard rock concession- was 'taken out' pursuant to the Minister's earlier decision.82 Annexure C is a Work Programme in similar terms to that annexed to the Heads of Agreement, with adjusted estimates. In particular, it now concludes with a total estimated capital expenditure for the first 6 (rather than 5) years of $29,277,500, and Note 1.2 records 'Total Estimated Capital Expenditures for 15 Years of Operation' as $50m.
98.
There is a dispute between the Parties as what was then agreed about the Claimants' mineral rights after Phase II. The Claimants' evidence is that at no stage during the negotiations did the Government say that CCMl or DCGl would be required to obtain a new mining Jease.83 Mr Ansah's evidence is that he explained to Mr Kapoor that the CVs would be of 'limited utility' to CCMl because it would not be able to mine without a mining lease granted under the 1986 Minerals and Mining law, and that once the divestiture was completed at the end of Phase II CCMl would need to obtain the necessary leases if it wished to mine.84
99.
The Project Agreement was registered at the land Registry on 19 May 1995.85

D. Phase II of the Project

100.
Phase II commenced, and the Claimants took over the mine, on 1 July 1995.86 The Claimants received the $700,000 World Bank loan (which they have not repaid).87 The Government also procured a further US$1.5m for an on-shore treatment plant and an environmental mitigation programme.88
101.
The Claimants' evidence is that although DCGL took over the operations of the mine (pursuant to clause 4.1 of the Project Agreement), CCML kept title to all the assets and assigned to DCGL some rights under the Project Agreement (particularly those that related to the operations) pursuant to clause 5.3 of the Project Agreement. That assignment was not documented in writing.89
102.
The Claimants began operating the mine and had initial success with gold mining. They carried out re-engineering work on the dredges and put three out of four into operation.90 In particular, they doubled average gold production of the mine from 250 ounces per month to approximately 500 ounces per month,91 although continued to face problems with the state of the dredges.92 The World Bank noted that production had reached 5,548 ounces in 1995, which was 66% higher than prior to divestiture.93 They also improved policies and brought in 12 expatriate staff.94
103.
In January 1997, CCML wrote to the Minerals Commission noting that a 'Mining Lease vesting the Company with Mining and Surface rights... has still not been issued' and requested that it be granted.95 Mr Kapoor's evidence is that CCML sought a lease because certain areas were not covered by CVs, because two CVs were soon to expire, and because CCML would prefer to consolidate its concessions- not because it was required to obtain a lease.96
104.
The Commission provided draft leases in March 1997, DCGL responded97 and the Minerals Commission replied. The Minerals Commission agreed to insert a provision that 'the mining lease shall be read and construed in accordance with the Project Agreement'.98 The leases were drawn as a series of six small leases that would have avoided triggering the requirement to obtain Presidential approval for leases over a certain size.99 In February 1998 DCGL provided maps depicting the areas covered by the CVs so they could be appended to the leases. The Respondent's evidence is that DCGL abandoned its attempt to obtain leases around the time it sought an extension of Phase 11.100 Mr Kapoor's evidence is that DCGL would not accept six separate leases because this would impose an obligation on DCGL to mine each of those areas, which might be uneconomic.101
105.
The price of gold was approximately US$400 per ounce when Phase II began. However the price of gold began to drop from 1997. By November 1997 the price of gold had descended below US$300 per ounce, and remained below that level for all of 1998 and 1999.102
106.
The Claimants' evidence is that as soon as they took over the mine, illegal small scale mining (an activity known in Ghana as galamsey103) became an increasing problem - depleting the mine's resources, causing environmental damage and threatening DCGL's workers and operations.104 The Claimants also assert that the Government granted several small-scale mining leases within their concession without their consent in 1995105 but Mr Ansah's evidence is that these were outside the project area.106
107.
DCGL also suffered theft.107 In January 1998, company property was vandalised and the vehicles of Mr Acheampong and another manager were disabled and other vehicles damaged.108 In September 1998 DCGL suffered more vandalism,109 including the sabotage of a dam which grounded a dredge,110 and a break-in.111
108.
Meetings with local chiefs revealed grievances with the State and differences of opinion on DCGL's role.112 DCGL was not prepared to meet most of the chiefs' demands because it regarded them as responsibilities of the government, not a private enterprise.113 The Claimants' own evidence is that problems with community relations were caused by the company's suspension of mining operations and the community's high unemployment.114 These problems were reported to the Government and assistance was sought.115
109.
In 1997-1998 Ghana faced an electricity crisis; power was rationed and the price increased at least threefold.116 This slowed down the operation of the dredges, and by May 1998 DCGL had reduced its operations from two dredges to one.117 The Claimants also claim that villagers were using power supplied by DCGL and not paying their bills,118 prompting DCGL to cut their power.119
110.
By this time, DCGL was operating at a cash deficit of 210,124 million cedis.120 The Board determined at its meeting on 15 May 1998 that gold mining was not viable and that dredging operations were being minimised (and 60 staff made redundant as a result).121

E. Auxiliary activities pursued by DCGL and the 5 Year Plan

111.
By May 1998, DCGL was considering a combined gold/silica mining operation.122 Expressions of interest had been received from overseas in relation to the silica component,123 and testing was undertaken.124
112.
In June 1998, DCGL sought an extension of Phase II for 24 months in order to investigate this possibility.125 Mr Ansah accepts that the Government may not have formally advised DCGL of its approval ofthis extension.126
113.
On 18 March 1999, DCGL wrote to the Minister and the Minerals Commission to propose an alternative 'short term' business plan for the site.127 The letter explains that the Dunkwa Project, as the 'lowest grade mining operation in Ghana', had been hard hit by the combination of low gold prices and high electricity prices, and if 'present operation conditions' continued would have to close. The letter records DCGL's plan to exploit industrial minerals-namely quartz and silica - 'as part of the dredging operations'. It suggests that the extraction of these industrial minerals 'would turn the whole Dunkwa Project into an economically viable venture.' The initial business plan accompanying the letter provided for the exploitation of industrial minerals that could be easily extracted, and a final business plan should be ready at the beginning of 2000 that provided for the extraction of 'high purity high priced product'.
114.
Accompanying the letter was a document entitled 'Short Term (5 Year) In-House Business Plan for Combined Precious and Industrial Minerals Dredging and Non-Dredging Operations (Dunkwa Project) To Turn the Project Into a Multi-Layered Multi-Product Operations' (5 Year Plan).128
115.
The business plan asserts that, on the strength of the results of the investigations and testing conducted by DCGL, it had been proven that a project based on the extraction of industrial minerals 'can be sustained economically on a short as well as long-term basis.' It suggests that this would be achieved by a combination of dredging and dry mining. Dry mining had been successfully tested in 1998.129 In particular, the plan explains that a dredge would have to be modified for the purpose (which it expected to be put into operation by the end of 1999 or beginning of 2000) and in the meantime, 40,000MT of metallurgical quartz/silica would be produced by dry mining and sold.130 Once that one dredge was successfully converted, a second dredge would be converted by the end of 2000 or early 2001, and a third and fourth dredge would follow. The plan also identifies four areas with hard rock mining potential.131
116.
The plan says that DCGL planned to start dry quartz mining within 30 days and a combination of dry mining and dredging in six to nine months.132 The Plan notes that due to the need to reconfigure the dredges 'products from the dredges have not been considered until the year 2000' and that 'gold production has not been considered from March until end of the year'.133 In other words, gold mining would be suspended under the plan until the end of 1999. Mr Kapoor's evidence is that he sought the Minister's blessing because DCGL needed the Minister's consent to stop mining.134
117.
DCGL suspended gold mining completely in April1999.135
118.
The Minerals Commission recommended that the Minister approve the gold/silica mmmg plan,136 and a few days later the Minister wrote to confirm that the Government had no objection to the plan and that DCGL should 'take immediate steps to implement the project to alleviate the situation of the [DCGL] workers and people of Dunkwa.'137
119.
On 5 July 1999, DCGL wrote to confirm that Phase II had concluded on 30 June 1999, and enclosed a Project Report covering that phase. The letter states that total net expenditure on the project for the period amounted to over US$17m. In order to 'take the project forward', the letter requests a number of further concessions from the Government.138
120.
By letter dated 2 August 1999, the Minister responded.139 The letter seeks further information before confirming the completion of Phase II.
121.
In August 1999, DCGL terminated the employment of all of its workers other than the core staff. The Claimants' evidence is that the workers asked to be released and paid severance because they refused to mine silica140 but this reason is not mentioned in contemporaneous correspondence.141 The Claimants' evidence is that the workers' conduct was orchestrated by the Ghana Mineworkers' Union as a stratagem to bring down DCGL and take over the mine.142
122.
On 22 June 2000, following a site visit, the Minister confirmed that the Government considered Phase II completed. That letter goes on to 'advise that you ensure compliance with the relevant provisions of the Minerals and Mining Law... as regards the treatment of all immovable and movable assets on the mine.'143
123.
The Claimants' evidence is that DCGl continued to face significant local opposition and that shipments of silica were blocked or stolen.144 The evidence of Mr Keteku, Director of Projects, is that the combined operation did not proceed because the necessary financing did not come through, and because the Electricity Company of Ghana 'dragged its feet' in providing an estimate to reconnect a power source that was necessary to carry out the necessary rehabilitation.145 Mr Basi said in evidence that DCGl could not obtain enough interest from financiers because it was viewed as primarily a gold-mining operation.146
124.
On 8 June 2000, the Upper Denkyira District Assembly petitioned the President of Ghana and other Government officials, complaining that the shutdown of operations had resulted in loss of employment, deterioration of the site and antisocial activity.147 DCGl responded148 and that led to a meeting on 8 August 2000 where the community's concerns were aired, and Mr Kapoor stated that now the Government had approved the completion of Phase II, DCGl's financiers were willing to come in with the necessary funds.149
125.
At the same time, the Claimants say that they employed an additional 20 people that month in anticipation of the gold/silica operation.150
126.
At a further meeting on 14 September 2000, Mr Nyamekye explained why DCGl had suspended its mining and diversified.151 Mr Nyamekye's evidence is that his purpose in telling the community that DCGl had not been able to proceed with the gold/silica project because of the delay in the Government approving the completion of Phase II was to placate the community and assist DCGl, not because DCGl had actually been held up.152
127.
DCGl wrote to the Minerals Commission on 8 November 2000 to explain that the starting date for the first dredge had been moved back to the second half of 2001 and described certain non-mining activities.153 A meeting was held with the Minerals Commission and Upper Denkyira Assembly at which it was agreed that DCGL had 'not deviated from its approved business plan.'154
128.
DCGL sent a further letter to the Minerals Commission on 29 December 2000, Mr Basi had a meeting with local chiefs in December155 and a further meeting was held with them and Mr Kapoor on 18 January 2001. Mr Nyamekye's recollection is that Mr Kapoor sought certain tax and royalty relief, and assistance with the Volta River Authority with the electricity situation.156
129.
The Claimants' evidence is that the position deteriorated after the change in Government from the National Democratic Congress (NDC) to New Patriotic Party (NPP) in December 2000.157 Mining remained suspended, but the Claimants allege that they (and their financiers) were willing to invest further funds if the price of gold increased steadily for at least six months.158
130.
By 2001, DCGL had estimated that 2,000 small-scale miners were operating on its concession.159 Mr Kapoor described this as a 'national problem'160 and an 'age-old problem [that] requires national intervention'.161 On 28 March 2001, DCGL wrote to the Minister of State.162 The letter states that DCGL had realised during the first two years of operation that the average grade of gold at the site would not make the dredging operation viable on its own, and it would require a gold price of more than US$800 per ounce to sustain the project. In order to make dredging operations viable, DCGL asserts the need to produce other industrial minerals other than gold and find alternative methods of generating employment. The letter then describes a number of problems that had been facing DCGL, including: the theft of 20-25km of high voltage overhead transmission lines163 and the operation of illegal small-scale miners. It recognises that 'the high level of employment in the area is causing most of the problems.' The letter concludes with another appeal for support from the Government.
131.
The Minister of Private Sector Development replied the next day to assure DCGL that the Government was concerned to remove the 'bottlenecks' identified.164
132.
The Minerals Commission wrote to DCGL on 3 April 2001 to address the ga/amsey problem. The letter proposes that DCGL consider setting aside areas of its concession to permit small-scale mining.165 Mr Kapoor's evidence is that DCGL maintained that its experience with a small pilot of such a programme in 1996 had demonstrated that the illegal miners would refuse to sell DCGL their gold, and so rejected the suggestion.166 Mr Keteku's evidence is that DCGL agreed to proceed with a plan but the District Manager of the Minerals Commission did not proceed with it.167
133.
The requested letter of support was provided by the Minister of Private Sector Development on 19 June 2002, and notes that the 'mining and agro-based activities of DCGL are in consonance with the policy objectives of the Government The Government will therefore support DCGL to revive its gold mining activities and expand its agro-based activities for reasons of employment generation and poverty reduction.'168
134.
On 10 September 2001, the Minerals Commission wrote to DCGL, noting that now DCGL had completed the two Phases of feasibility studies, the Commission was ready to grant DCGL a mining lease in accordance with the 1986 Law. It invited DCGL to a meeting to settle on a consolidated map of the concession, noting that the President's consent would be required because the total area would exceed 150 square kilometres.169 Mr Aryee's evidence is that while CVs would remain relevant as between DCGL and landowners, they did not provide for mining rights, which had to come from the Government in the form of a mining lease.170
135.
Mr Kapoor's evidence is that DCGL was surprised by the suggestion DCGL required a mining lease. Because the lease that the Commission presented was a standard lease that did not reflect the terms negotiated in the Project Agreement, DCGL refused to execute it.171 Mr Aryee's evidence is that DCGL showed no interest in pursuing the matter, and he had no meeting with Mr Kapoor at which Mr Kapoor had explained that DCGL would not sign a 'standard' lease.172
136.
On 31 January 2002 the Minerals Commission met DCGL to explain its concerns at DCGL's continuing cessation of mining.173 The Chairman of the Minerals Commission asked DCGL to report on when mining would restart, and noted that 'if it was not possible for mining to start, this should be stated in the report, to enable the Commission [to] take a decision on the Dunkwa issue.'174
137.
DCGL wrote to the Minerals Commission on 27 March 2002 describing the initiatives it had undertaken and the obstacles it was facing.175 The letter 'formally' invokes clauses 3.1 and 10.4 of the Heads of Agreement and clause 3.1 of the Project Agreement, and mentions in particular the theft of 30 km of power lines and depletion of gold reserves by illegal miners. It describes auxiliary projects that had been undertaken, including a 10,000 acre cassava farm and a 60 acre fruit and vegetable farm. It notes that various Government Ministers and officials had visited the site and given expressions of support, but asserts that $1.5m in expenses had been incurred in the previous 15 months 'with very little to show', and this put the flow of funds from shareholders (and consequently the payment of the company's obligations) in jeopardy. It concludes by noting that the company's liabilities continued to increase without any hope of an early resolution, and under those circumstances the company would be forced to release all casual workers within 7-10 days and consider liquidation. It concludes by seeking information about what steps were being taken for the resolution of the problems facing the company.
138.
Representatives of the Minerals Commission visited the project area on 10 April 2002 and 4 June 2002, and the Respondent's evidence is that they made it clear that the 'non-performance' of mining activities was unacceptable.176 The Minutes record Mr Kapoor stating that DCGL would be mining within '24 months approximately'.177
139.
Following a meeting with the Minister of Private Sector Development on 31 May 2002178 DCGL wrote to the Minister on 13 June 2002, recording a programme to resume gold/silica mining within 24-36 months, with 'every effort' to resume within 24 months.179 Nevertheless Mr Kapoor denies that he promised at the meeting that the gold/silica project would start imminently.180
140.
As noted above, the Minister of State wrote to DCGL on 22 May 2003, attaching a letter which outlined the Government's concerns and its view of the legal situation. That letter notes, inter alia, the outstanding World Bank loan and unpaid royalties, as well as concern with the cessation of mining.181 Mr Nyanor wrote again on 29 September 2003 to seek a response.182 Mr Kapoor's evidence is that he met with Mr Nyanor after that letter and the matters were put to rest.183 The Respondent says that the meeting did not occur, as demonstrated by a letter written by the Minister on 19 April 2004.184
141.
DCGL began to pursue other manufacturing and agricultural projects in approximately 2000. In March, DCGL procured a report from Sun Farms & Technologies Ltd on an Alternate Employment Generation Pilot Project involving certain agricultural projects.185 The cultivation of pawpaw, chillies and cassava had began in 2000.186 The Claimants' evidence is that the Government was supportive of these projects187 and they employed 30 people on a semi-permanent basis and 100 at harvest time.188 Nevertheless, they were not making a lot of money and were merely a way to keep the company alive.189
142.
DCGL had begun a collaboration with the Ministry of Food & Agriculture (MOFA) in 2001190 which included the construction of a prototype mobile cassava processing plant.191 A preliminary agreement was concluded with Unilever Ghana Ltd.192 On 12 March 2003, DCGL concluded a memorandum of understanding with the MOFA whereby the Ministry agreed to provide support for manufacturing of agricultural equipment.193 DCGL also negotiated with an Indian company to import and assemble tractors for MOFA.194
143.
The Claimants' evidence is that they also pursued a collaboration with Maharishi University of Management from the Netherlands, but it withdrew its funding because DCGL could not guarantee the security of the project.195
144.
Mr Kapoor acknowledges that DCGL required the permission of the Ghanaian government for auxiliary non-mining activities.196 His evidence is that the Claimants never intended to replace mining with auxiliary projects entirely, at least until gold reserves were exhausted; Mr Nyamekye recognised in evidence that mining would eventually come to an end.197
145.
The collaboration with MOFA became idle by the end of 2004, although the Claimants' evidence is inconsistent as to whether this had occurred by October 2004,198 or after the elections of December 2004 when a new Minister took office.199 Gradually all projects ceased and most employees left the company. Mr Addo, formerly the Senior Electrical Engineer, was asked to take charge of maintenance and security after the administrator left.200

F. Termination of the Project Agreement

146.
After the December 2004 elections, Professor Dominic Fobih became the Minister of Lands, Forestry and Mines. The Minerals Commission through Mr Aryee advised him of DCGL's earlier commitment to restart mining and of the lack of activity. Mr Aryee recommended that the Minister take steps against DCGL.201
147.
On 4 May 2005, a meeting was held between the Government (including the Minister, Ministry officials and Mr Aryee) and DCGL (Mr Kapoor and Prof E. S. Ayensu). At the meeting, the Minister expressed concern at DCGL's failure to recommence mining.202 He suggested that the galamsey problem could be mitigated by setting aside an area of the concession for small-scale miners. Mr Kapoor responded that he was willing to consider that, but DCGL intended to recommence mining once the price of gold had increased steadily for 6 months, and in the meantime did not wish the concession to be mined out.203 Mr Aryee's evidence is that the Minister pointed out DCGL's failure to repay the World Bank loan and to pay royalties.204 Mr Kapoor's evidence is that he does not recall reaching an agreement to provide a detailed work plan, or discussing the possibility of mining rights being withdrawn absent a sufficient explanation from DCGL, but Mr Aryee says both of these were discussed.205 Mr Kapoor's evidence is that there had been no discussion during the 4 May 2005 meeting of the alleged failures to repay the World Bank loan, to pay royalties or to provide quarterly reports.206
148.
On 6 May 2005, the Minister wrote to DCGL.207 He identified four issues that he said had been highlighted during the meeting: that all minerals are vested in the state and all mining is governed by the 1986 Law; that the core business of DCGL should be mining; that negative perceptions of DCGL in the local community were caused by DCGL's move away from mining; and that illegal mining (galamsey) had assumed an alarming scale to which DCGL had not responded. The letter notes that an understanding had been reached at the meeting that DCGL would be required to submit a 'detailed timed work plan for the recommencement of mining activity.' The letter concludes by giving DCGL 90 days' notice (from the date of the letter) pursuant to section 67(2) of the 1986 Law to 'show cause why the mining right granted to DCGL should not be withdrawn.'
149.
DCGL replied by letter dated 8 August 2005.208 Mr Kapoor's evidence is that the letter was delivered by hand to the Ministry's offices on that day.209 The Claimants produced in evidence an acknowledgement of receipt signed by one Beatrice Tannor,210 and the Respondent does not dispute that something was delivered - but cannot confirm whether what was delivered was the letter now exhibited by the Claimants.211 The Tribunal is satisfied that the letter was delivered to the Ministry on 8 August 2005. The Tribunal notes that 8 August 2005 is 94 calendar days after the date of the Minister's letter.
150.
The letter is entitled 'Operations of [DCGL] Warning Notice'. The letter notes that the concession 'was always considered a very marginal operation' and the combination of auxiliary economic ventures was seen as a way to support the local economy. It refers to the low price of gold and describes the difficulties that DCGL had faced. It explains that the joint gold/silica operation had appeared promising but had to be stopped because the workforce refused to do anything other than mine gold and demanded to be released. The letter asserts that this 'was done with the involvement of the Ministry of Social Welfare.'212 The letter notes that DCGL had been faced with interference and attacks from 'so called political individuals, traditional and local interests' and attempts to take over the concession. The letter refers to some of the 'agro/food' and manufacturing activities which, it was said, supported 250 jobs and would 'lead to the manufacture of mineral processing plants locally'.
151.
In relation to the Minister's request for a work plan, the letter indicates that DCGL was 'currently reviewing the project' and describes its plans in the following terms:

• In parallel with existing on going activities, undertake limited gold/silica mining through rehabilitation or acquiring a new Dredge (or partially building in Ghana) to generate cash flow for the repair/provision of other dry mining plants/ machinery. This depends to a large extent on a sustained high price of gold

• Enter into agreement with an interested firm or firms, to pursue the project

• Enter into an agreement with an interested firm(s) to transfer DCGL's current mining rights and its assets

152.
The letter notes that the pursuit of those options would depend on DCGL having 'continuous ownership of the mining rights granted as per the project agreement' and seeks a period of 12 months as 'adequate time and some space to reach a decision and conclude a new or revised investment package.' In relation to the harm caused by the illegal activity of small scale mining, DCGL proposed to meet with the Minerals Commission to discuss how the activities of those miners could be regulated and supported.
153.
On 31 August 2005, the Minister wrote to the Minerals Commission (not referring to the response from DCGL) seeking advice on what steps could be taken.213 On 21 October 2005, the Minerals Commission responded and recommended termination of the Project Agreement.214
154.
In reliance on that advice, the Minister wrote a letter to DCGL dated 7 November 2005 (Mr Kapoor's evidence is that the letter was received by DCGL on 5 December 2005).215 The letter asserts that DCGL had failed to respond to the Minister's 5 May 2005 letter within 90 days. It asserts that DCGL had been in continued breach of the 1986 Law and the Project Agreement since it was executed, and lists four particular breaches:

(a) Failure to carry out effective mining operations: the letter asserts that section 53(1) of 1986 Law required DCGL to 'commence commercial production on or before the date specified in the programme of mining operations' and to mine the minerals covered by the lease.

(b) Payment of royalties: under section 22 of the 1986 Law and clause 10.6 of the Project Agreement, DCGL was required to pay royalties. It had not sought a deferment of royalties pursuant to clause 10.6, and had owed the sum of US$119,036 since it ceased mining in 1999.

(c) Provision of quarterly reports: the letter asserts that DCGL had failed to provide quarterly reports to the Minerals Commission and SGMC pursuant to clause 2.5 of the Project Agreement.

(d) Repayment of loans: the letter asserts that DCGL had failed to repay the $700,000 World Bank loan contemplated by clause 8.1 of the Project Agreement.

155.
The letter then terminates the Project Agreement; instructs DCGL to vacate the lease area within 60 days; and notes that in accordance with section 68 of the 1986 Law all of DCGL's assets 'under' the Project Agreement are vested in the state. The letter also orders DCGL to take steps to repay the World Bank loan and outstanding royalties.

G. Subsequent developments

156.
DCGL replied by letter dated 14 December 2005.216 The letter explains that DCGL had replied to the Minister's show-cause letter on 8 August. It requests that the Minister review his decision. The Minister sought the Minerals Commission's advice, and after its 27 January 2006 Board meeting, the Commission advised that because DCGL 'did not indicate any intention to start mining soon' and DCGL's letter 'did not give any new facts' there was no reason to reconsider the decision.217
157.
The Minister replied to DCGL by letter dated 18 April 2006, confirming that decision in accordance with the Commission's advice.218 The letter was copied to 'regulatory agencies' with a request to ensure that the requirements of closure were met, but Mr Sackey did not recall seeing the letter and was not aware of the Mines Department taking steps to close the mine.219
158.
In 2006, Mr Addo was contacted by the District Chief Executive of the Upper Denkyira District Assembly, who said that he had been instructed by Prof Fobih to take over the company. Mr Addo's evidence is that Prof Fobih told him that he had given no such order.220
159.
A meeting was held between the Minister and representatives of DCGL on 5 June 2006. DCGL followed that with a letter the next day. The letter states that it had been agreed at the meeting that the Minister would instruct the relevant government agencies to suspend any action on the termination while a solution was worked out to contain small-scale miners.221 DCGL wrote to the Minerals Commission the following day, suggesting a meeting to discuss setting aside an area within the concession for small-scale miners provided that this was delineated in such a way as to not disturb DCGL's future operations.222 There is no reply from the Commission on the arbitration file.
160.
Mr Basi sought a meeting with the President of Ghana, but apparently received no response.223
161.
Mr Kapoor attempted to arrange a further meeting with the Minerals Commission, but was unsuccessful. In a letter of 6 September 2006, DCGL asked the Minister to withdraw his 7 November 2005 letter. It notes that the site was at a 'complete stand still' and there had been an increase in illegal mining which placed DCGL's investment at risk.224
162.
A meeting was held with the Ministry of Food and Agriculture on 19 October 2006. DCGL followed that with a letter the next day, which confirmed and supplemented information which had been supplied at the meeting and describes DCGL's various financial problems.225 It describes, in particular, how DCGL was facing court action by creditors in respect of unsatisfied liabilities and had been given until 24 October 2006 to satisfy those debts. It sought payment by the Ministry of 3,770,000,000 cedis (approximately US$415,000) which the Ministry was said to owe on account of the supply oftractors.
163.
On 8 August 2007, DCGL petitioned the President to intervene to have Prof Fobih's letter withdrawn.226 The petition apparently attached a letter of the previous day by which Mr Addo of DCGL was invited, by the Upper Denkyira District Assembly, to attend a meeting of an 'Ad-Hoc Management Committee' that had been formed to manage DCGL. The Office of the President acknowledged receipt ofthat letter and promised to revert,227 but DCGL received no further correspondence from the Government with respect to the cancellation of the Project Agreement.
164.
A press release by PMI Gold Corporation dated 23 September 2008 suggested that the Government had granted part of DCGL's concession to that company, but Mr Aryee's evidence is that only a prospecting licence in relation to hard rock mining, not an alluvial mining licence, had been granted to PMI.228 The Claimants also say that dredges that had been owned by DCGL were apparently sold for scrap by the Upper Denkyira Municipal Assembly in 2010;229 and the Claimants allege that the Government allocated portions of DCGL's concession for its Small-Scale Mining Project.230 Mr Aryee admits that licences for small-scale mining at Dunkwa have been granted since the termination of the Project Agreement.231
165.
The Claimants' evidence is that a small number of DCGL security personnel remain on site with some equipment.232

III. PARTIES' SUBMISSIONS

166.
In this section of the Award, the Tribunal summarises the Parties' arguments in relation to jurisdiction and admissibility and the merits. In order to put those submissions in context, it first briefly summarises the Parties' respective cases.
167.
The Claimants' case is that Ghana is liable to compensate it for the Government's breaches of the Project Agreement and, particularly, its unlawful termination. In summary, the Claimants' case is that:233

(a) The legal regime applicable to the Claimants' investment was not the 1986 Law, but a sui generis regime based on the terms of the Head Leases/CVs which were divested to the Claimants pursuant to the Project Agreement, and it is those CVs (governed by the Concessions Act 1962) which define the scope of the Parties' rights and obligations.

(b) The Government failed to comply with the process for cancellation of the CVs required by the Concessions Act 1962, and even if the 1986 Law governed then the Respondent failed to follow the process required by that regime as well. In any case, the grounds for termination were spurious; the purported 'vesting' of assets in the Respondent is unlawful and amounts to expropriation; and the Respondent's unlawful termination of the Project Agreement breached the warranties in clauses 1.1 and 1.4.

(c) The Respondent's expropriation of CCML's property violated the Constitution of Ghana, and particularly Article 20.

(d) The Respondent is, in any case, liable to CCML for negligence.

(e) Finally, CCML asserts claims under customary international law: that the Respondent violated the international minimum standard of treatment of aliens, and the rule against expropriation.

(f) The Claimants say that they are entitled to damages in the sum of approximately US$94m.

168.
The Respondent, for its part, submits that:

(a) The Tribunal does not have jurisdiction to entertain the Claimants' claims (or they are inadmissible).

(b) The applicable legal regime is the 1986 Law.

(c) DCGL was in breach of its obligations under the Project Agreement, the Government was entitled to terminate it, and the Minister complied with the 1986 Law in doing so.

(d) The termination did not breach Article 20 of the Constitution; the Claimants' tort claim is an improper relabeling of the contract claim; and the Respondent did not breach its international obligations.

(e) The Respondent counterclaims for recovery of the World Bank loan and royalties that remain unpaid.

(f) In the circumstances, even if the Claimants establish that the Tribunal has jurisdiction over some of the claims and establish some of them on the merits, the Claimants' entitlement to damages is nil.

A. Jurisdiction and admissibility

169.
The Respondent objects to the jurisdiction of the Tribunal and the admissibility of the Claimants' claims on a number of grounds. In its Decision on Bifurcation, the Tribunal declined the Respondent's application to determine those applications in a separate phase, without prejudice to the Tribunal's full consideration of the objections in a conjoined hearing on jurisdiction and the merits. The Tribunal now therefore turns to outline the Parties' submissions on jurisdiction and admissibility.

1. Standing of CCML

170.
As noted above, the Claimants say that CCML (who was party to the Heads of Agreement and Project Agreement) orally assigned part of its rights and obligations - including a partial assignment of the arbitration clause in the Project Agreement - to DCGL. They say that the claims belong to CCML, but that DCGL should receive the benefit of any award.234

(a) Respondent's submissions

171.
As to the legal principles applicable to assignment, the Respondent notes that the Contracts Act 1960 allows for oral assignments and provides that the assignment extinguishes the right in the assignor; to establish an assignment, the Court would look to written notice and the parties' conduct.235
172.
The Respondent argues that the Claimants have impermissibly attempted to change their position on the scope and effect of the assignment. In their Request, the Claimants asserted that 'CCML assigned all of its rights and obligations under the Project Agreement to DCGL.'236 Now the Claimants have done an about-face by claiming that CCML only assigned to DCGL 'the rights under the Project Agreement that were relevant and required for the operation of the Project.'237 The Respondent says that the Claimants should not be permitted to depart from the 'judicial admission' that all of CCML's rights had been assigned (which gives rise to an estoppel), and CCML should accordingly be dismissed as a party.238 An assignment 'extinguishes the right and interest in the assignment of the assignor',239 and the only exception is the case of an equitable assignment where the assignor of a debt must remain party to an arbitration commenced by the assignee to enforce that debt, to protect the obligor from the assignor subsequently seeking to enforce the debt by claiming that the assignment did not occur.240 Furthermore, CCML has no standing because it has no interest in the substance of the dispute.241
173.
The Respondent says that there is no documentary evidence to support the 'partial assignment theory',242 and suggests that the Claimants' 10 January 1997 letter is not consistent with the argument that CCML retained some rights, pointing to various statements that indicate a complete assignment to DCGL was effected.243 It says that it would suffer prejudice if the Claimants were permitted to change their position, and in any case the Tribunal does not have the power to decide ex aequo et bono in the Claimants' favour.244
174.
At the same time, the Respondent says that because DCGL is not asserting any claims in the arbitration, it too should be dismissed as a party.245

(b) Claimants' submissions

175.
As to the applicable principles, the Claimants say that the oral assignment of a written agreement is permitted by section 7(4) of the Contracts Act 1960, and the effect is the same as a written assignment: the assignment is valid; it transfers the full right and interest in the assigned right; and it extinguishes the legal right and interest of the assignor.246 But that extinguishing effect is subject to any contrary intention appearing, and under the Project Agreement CCML was entitled to assign 'part' of its rights.247 The terms of an assignment are established by evidence and inferred from the parties' conduct.248
176.
Thus the Claimants say that DCGL can invoke the arbitration clause for two reasons:249 CCML orally assigned to DCGL those rights that were required for the operation of the Project (the Project Agreement having expressly provided for DCGL to take over the operations and assets of DGL), and partially assigned the benefit of the arbitration agreement.250Second, DCGL would have been bound by the arbitration agreement as a third-party beneficiary of the Project Agreement.251 The Claimants submit that a transfer of the assets from CCML to DCGL would have required the written consent of the Minister of Mines pursuant to section 19 of the Minerals and Mining Law 1986, which they requested by letter of 10 January 1997. Because no formal transfer was effected, the mineral rights remained in CCML's name.252
177.
Accordingly, the Claimants say that CCML must remain a party because it brings the claims as the owner of the assets (including the mineral rights), because it is the party to the Project Agreement (under which it remains jointly liable) and because it is required as a matter of law to be party to the arbitration in the case of an oral (and partial) assignment.253
178.
The Claimants say that because they had an understanding that the profits of the Project would accrue to DCGL, the award should be rendered in the name of DCGL.254 Only if the Project Agreement is found to be invalid - but CCML prevails in its claims for misrepresentation, negligence and breach of the minimum standard of treatment- should the award be rendered in CCML's name, but in either case the quantum is the same.255

2. Limitation period

(a) Respondent's submissions

179.
Claims under municipal law : The Respondent says the Claimants' municipal law claims based on the alleged wrongful termination of the Project Agreement are time-barred under Ghanaian law. They say the relevant date is 7 November 2005 (when the termination letter was sent), by which time the dispute had clearly crystallised.256 They say that Ghanaian law applies by virtue of the Foreign Limitation Periods Act 1984 (UK),257 and because English law had no interest in the dispute when the claim became time-barred.258 Because the Claimants' Request for Arbitration (served on the Respondent on 4 November 2011) did not require Respondent to appoint or concur in appointing an arbitrator, it was not effective to toll the limitation period in terms of section 27 of the Limitation Act 1972.259 Even if English law applied, it would look to the ICC Rules which provide that an arbitration is only commenced when a complete Request for Arbitration is received which requires the nomination of an arbitrator.260
180.
Claims under international law : The Respondent says that the principle of extinctive prescription (or the 'bar of claims by lapse of time') applies.261 The Respondent says that the Claimants commenced the claim in order to pressure the Government into a settlement after gold prices had risen,262 and the Respondent is prejudiced by the delay.263 It explains that it cannot point to a precedent for the application of the principle in a case such as this, because the Claimants' case is so unorthodox.264

(b) Claimants' submissions

181.
Claims under municipal law : The Claimants confirm that all their claims stem from the allegedly unlawful termination of the Project Agreement, and they do not claim that the Government's alleged continuous breaches of clause 1.4 of that Agreement entitle the Claimants to damages.265 The Claimants say their claims for contract and negligence accrued on 18 April 2006 (or 7 November 2005 at the earliest).266 The question of when a proceeding is commenced is a question of procedure governed by English law as the lex fori, and there is nothing in the Ghanaian Limitation Act 1972 that suggests it was intended to apply to international arbitration.267 Under the ICC Rules, to which English law refers, it is up to the ICC to decide when an arbitration is validly commenced and there is nothing to suggest that failure to nominate an arbitrator results in an action being time-barred.268
182.
Claims under international law : The Claimants accept that extinctive prescription is a recognised principle of international law but say that the Respondent has not discharged its burden of showing that the Claimants' international law claims would have been extinguished.269

3. Jurisdiction in respect of international law claims

183.
In the Decision on Bifurcation, the Tribunal concluded that the question of whether the Tribunal had jurisdiction over the Claimants' international law claims did not, on its own, justify bifurcation.270 However, the Tribunal observed that the Claimants would have to overcome two hurdles in establishing that the Tribunal had jurisdiction over those claims:271

The jurisdiction of the Tribunal must be answered by reference to the scope of consent contained in the arbitration agreement itself, which agreement in the present case is founded upon contract not treaty. Moreover, if and to the extent that the Tribunal were to come to the view that the arbitration agreement conferred jurisdiction upon it in relation to a claim under international law, it would need to be satisfied that all of the applicable requirements of public international law, including any question of the standing of the Claimants as Ghanaian nationals to assert such a claim, were satisfied.

(a) Respondent's submissions

184.
Scope of the arbitration agreement : The Respondent says that in the absence of a special cause of action (such as that granted by an investment treaty or human rights convention), only States may bring international law claims against States.272 An investor can only pursue international law claims pursuant to a contractual arbitration clause where the contract itself commits the host State to provide treatment in accordance with international law standards,273 and even in an investment treaty context, tribunals do not have general jurisdiction over breaches of customary international law.274 Even an 'internationalised' contract only permits the investor to claim based on breaches of the contract.275 Neither the arbitration agreement nor the Respondent's letter of February 2012, by which it agreed that the Tribunal could apply 'relevant principles of international law in the determination of the dispute', conferred such standing on the Claimants.276 Any cause of action for breach of international law could only belong to the investor's home state to be espoused by way of diplomatic protection.277 In any case, the letter could not have acted to create obligations retroactively.278
185.
The Respondent says that the Claimants' alternative argument that customary international law is part of Ghanaian law is misplaced, because the doctrine of incorporation does not give individuals standing to pursue international law claims, as is demonstrated by English and United States authority.279
186.
Standing : the Respondent says that as Ghanaian nationals, the Claimants would not be entitled to pursue international claims in any case.280 The Respondent says that Claimants cannot rely on the alleged exception (which the International Court of Justice has yet to endorse281) applicable where the injured national was required to incorporate in the host state as a precondition of doing business there, because the 1986 Law gave them the option of registering as a foreign company instead of incorporating in Ghana282 and that the Ghanaian Stock Exchange permitted foreign companies to list (in order to satisfy the requirement to offer 10% of DCGL's shares to the public).283 It is not enough that it made practical sense for the Claimants to incorporate in Ghana.284 Finally, the Respondent says there is no authority for the proposition that the Government's awareness that a company has foreign shareholders or intends to repatriate profits overseas entitles the company to take an international law claim against its own State.285

(b) Claimants' submissions

187.
Scope of the arbitration agreement : The Claimants say that the arbitration agreement is broad enough to capture their customary international law claims286 and the Tribunal's jurisdiction to apply customary international law derives from the Respondent's agreement that the Tribunal could apply relevant principles of international law.287 The Parties' consent to the application of international law did not create the Respondent's obligations (which are part of customary international law), but provided an avenue for the Claimants to enforce them.288 The Claimants submit that all the indicia which are said to be necessary to finding that a contractual arbitration clause may give a tribunal jurisdiction over a claim in general international law are present.289
188.
Standing : The Claimants say that the effect of the arbitration clause and the Parties' agreement that international law would be applicable was to confer international personality on the Claimants for the purpose of this claim.290 They also say that the doctrine of incorporation (according to which customary international law is part of Ghanaian law) entitles Claimants to pursue alleged breaches of customary internationallaw.291 With respect to the Claimants' incorporation in Ghana, they say that Ghana agreed that the Claimants could pursue international law claims irrespective of their nationality.292 So far as the rules of diplomatic protection are relevant, the Claimants submit that the 10 and the United Nations International Law Commission Draft Articles on Diplomatic Protection have recognised an exception to the nationality requirement where the investor is required to incorporate in the host State as a precondition of doing business there, and that it made practical sense for the Claimants to incorporate in Ghana.293 They also say that the Respondent acquiesced and agreed to treating the Claimants as foreign nationals because of its knowledge of their foreign status and the concessions they were given accordingly.294

4. Expropriation claim under Article 20 of the Constitution

(a) Respondent's submissions

189.
The Respondent notes that Art 20 is found in Chapter V of the Constitution, which concerns Fundamental Human Rights and Freedoms. Article 33 of the Constitution provides that where a person alleges a breach of that Chapter 'then, without prejudice to any other action that is lawfullly available, that person may apply to the High Court for redress.' The Respondent says that the this gives the High Court exclusive jurisdiction to entertain a claim based on a breach of those rights.295 Unlike Art 130 of the Constitution (which provides for the Supreme Court's exclusive jurisdiction over the interpretation of the Constitution but allows lower courts to apply an unambiguous provision of the Constitution), Art 33 simply precludes any tribunal other than the High Court from entertaining a claim for breach of a Chapter V right.296
190.
It says that the term 'may' is permissive as to a claimant's choice whether to make a claim, but Art 33 requires that if a claim is made, it must be made in the High Court,297 as an exception to the general rule that the Supreme Court has exclusive jurisdiction in matters relating to the enforcement of the Constitution.298 The proviso permits claimants to pursue other actions arising out of the same facts, but does not permit a claimant to pursue a Fundamental Rights claim other than in the High Court.299 Finally, the Alternative Dispute Resolution Act 2010 (ADRA) provides that matters relating to the 'enforcement and interpretation of the Constitution' are not arbitrable.300

(b) Claimants' submissions

191.
The Claimants say that Art 33 does not bar their claim because the claim does not concern a fundamental human right or freedom, but is a civil claim that derives from a breach of a human right.301 Furthermore, Art 33 is without prejudice to other actions (in this case, international arbitration). Article 33 also does not apply because the claim concerns an application, not an interpretation, of the Constitution.302 The question of arbitrability is governed by English law, which does not make the claim inarbitrable. While the nature of a Governmental decision may not be reviewable, the financial consequences of it may be. Finally, to find that the dispute is not arbitrable would frustrate the Parties' intentions.303 The Claimants say that ADRA is inapplicable because section 1 of that Act excludes from the Act's remit claims relating to the Constitution- it does not make them inarbitrable;304 the claims do not constitute 'enforcement and interpretation of the Constitution' in terms of that Act;305 and ADRA is only concerned with domestic arbitration.306

5. Other claims under the Constitution

(a) Respondent's submissions

192.
Insofar as the Claimants allege (i) the Minister failed to comply with Constitutional requirements governing the exercise of ministerial discretion; (ii) that neither the 1986 Law nor the Timber Resource Management Act 1998 were effective in displacing the Concessions Act 1962; and (iii) that the vesting of all minerals in the State by the Minerals Act 1962 was never effective in relation to minerals covered by CVs, those claims fall within the exclusive jurisdiction of the Ghanaian courts.307 The Claimants identify no authority for the proposition that the rules providing for the exclusive jurisdiction of the Ghanaian courts are concerned only with internal allocation and are not concerned with whether those matters can be pursued through private arbitration.308 The Respondent rejects the analogy with the Commission of Human Rights and Administrative Justice, because it is not an adjudicatory but an investigative body.309

(b) Claimants' submissions

193.
The Claimants say that the concept of exclusive jurisdiction over constitutional matters is only concerned with the internal allocation of competence.310 They say that if it was the intention of the framers of the Constitution that every allegation of violation of fundamental rights and freedoms under the Constitution must be litigated before the High Court, then they would not have entrusted the power to investigate such breaches to the Commission on Human Rights and Administrative Justice.311 The provisions in question do not require that a claimant must litigate a claim relating to the Constitution.312

6. Parliamentary approval

194.
The Respondent originally alleged that the Claimants were precluded from relying on the Project Agreement because it had not been approved by the Parliament of Ghana.313 The Claimants have disclaimed any argument that the Project Agreement was a 'highly augmented mining lease' that itself transferred surface rights from landowners to the Claimants, submitting instead that it was the Head Leases and CVs that gave them a right to mine314 (and accepting that their only surface rights were those ancillary to mining315). In those circumstances, the Respondent no longer claims that Parliamentary approval was required.316

B. Merits: rights under the Project Agreement and the applicable regime

1. Introduction

195.
The Claimants allege that the Respondent's wrongful termination of the Project Agreement gives rise to liability on a number of grounds:

(a) Their primary argument is that the Claimants' mining rights were governed not by the 1986 Law, but by a combination of the terms of the Project Agreement itself and the relevant provisions of the Concessions Act 1962, and it was only in accordance with those provisions that their rights could be taken away.

(b) They say that after the Government contracted in a private capacity to sell assets owned by DGL (including the mining rights), it could not then use the 1986 Law as a basis to either terminate the Project Agreement or expropriate the Claimants' assets, and on any view the Government did not have the right to terminate the Agreement.

(c) Even if the Project Agreement had been breached by the Claimants, that did not give the Government the right to expropriate assets (including mining rights) that had been irrevocably divested to the Claimants.317

(d) The Claimants then argue that the Respondent's conduct also constituted a breach of the rule against expropriation in Article 20 of the Constitution, breached a duty of care owed by the Respondent, and violated customary international law standards oftreatment.

196.
Thus the first issue is the legal effect of the Project Agreement, the extent of the obligations imposed on each party by it and the legal regime governing the rights which the Claimants obtained under it. This section first summarises the Parties' submissions on those points, before turning to the question of whether the Government was entitled to terminate under the applicable regime. It then summarises the Parties' arguments on the Claimants' other causes of action.

2. Nature and effect of the Project Agreement

197.
The Parties fundamentally disagree on the nature and effect of the Project Agreement, and in turn disagree on the regime which governed it. Those two questions are intertwined to a significant extent, because the Parties' competing characterisations of the Project Agreement each depend on differing views as to the applicable regime. It is nevertheless helpful to outline how each party described the commercial bargain that the Project Agreement represented before describing their submissions on the governing regime.

(a) Introduction: applicable principles

198.
The Tribunal sought post-hearing submissions on the proper approach to the interpretation of a contract under Ghana law. In particular, it asked what types of extrinsic evidence were admissible in the construction of a written contract. The Parties' submissions were largely consistent on this point.
199.
The Claimants submit that there are no legally defined limits on the types of extrinsic evidence that are admissible, but under section 177 of the Evidence Act 1975, such evidence was admissible to interpret but not to contradict, vary, add to or subtract from the terms of the document.318 The Respondent's submissions are to the same effect, but note that any ambiguity in a contract could not have the effect of waiving or modifying a statutory provision.319
200.
As a matter of principle, the Claimants say that conditions imposed by legislation may be implied in a contract where it is necessary to give business efficacy to the contract, or where legislation mandatorily and expressly implies the condition.320 That should be distinguished from the statutory framework within which a contract may exist.321
201.
The Respondent notes that a statutory provision is effective regardless of whether it is expressly referenced in the contract, and noncompliance may still provide a basis for termination either where the provision is mandatory, or because acting unlawfully (in breach of the statute) would itself be a breach of contract.322

(b) Claimants' construction of the Project Agreement

202.
Nature of the Agreement : The Claimants submit that when the Government identified the need to privatise the Dunkwa mine, it had two choices. First, it could have granted a prospecting licence and then mining lease to the new investor pursuant to the 1986 Law. Alternatively, it could have transferred the existing mineral rights held by SGMC and DGL, and on the basis of which those companies had been mining for some years, to the investor.323 Those mineral rights were the concession contracts or Head Leases, validated by CVs, that were listed in Annexure A to the Project Agreement.
203.
Thus, when asked by the Tribunal what he understood the Claimants were getting under the Project Agreement, Mr Kapoor testified that 'the mining right or whatsoever asset [DGL had], the operating mine owned by the SGMC, the state-owned enterprise, whatsoever they had is what we were getting.'324 In other words, the Claimants just 'went into [DGL's] shoes'.325 The Claimants chose not to take over DGL itself because it may have borne historical liabilities.326 The Claimants submit, citing Mr Ansah's evidence, that it was never in dispute that they would step into DGL's shoes and begin mining 'from day one'.327
204.
The Claimants' case is that those concessions constituted valid mineral rights that permitted the new investor to mine without obtaining any further governmental authorisation. In an effort to attract investment, and '[t]aking advantage of its twin hats of "seller" and "regulator,"' the Government decided to grant the Claimants the right to mine 'well away from the strictures of its then mining law and under an alternate regime that gave it-and the buyer-maximum flexibility and discretion going forward.'328 The Claimants submit they would not have purchased the assets that were transferred pursuant to the Project Agreement without mineral rights329 and that the circumstances surrounding the execution of the agreements is consistent with the Project Agreement conferring enforceable mineral rights.330
205.
Thus the Claimants say that the Project Agreement was not a mineral right in terms of the 1986 Law. Such a proposition is, in their view, a 'nonsense' that cannot be squared with the terms, object and purpose of the Agreement.331 At the same time, Mr Kapoor accepted in evidence that if the Claimants had wished to conduct prospecting (as opposed to mining) on the areas covered by the CVs they would have needed to obtain a prospecting licence pursuant to the 1986 Law.332
206.
The Claimants submit that although the Project Agreement was legally an ordinary contract, it functioned as an asset divestiture or asset transfer agreement.333 On the commencement of Phase II, title to the assets in question -the Head Leases/CVs- would be transferred outright to the Claimants.334 The Tribunal asked Mr Kapoor to explain his understanding of what would have been the position in relation to the ownership of the CVs if the Claimants completed Phase II but then decided that it was not a feasible project. His evidence was that there was no clear understanding on the point, because the Claimants had not anticipated that to happen but suggested that 'everything reverts back'.335
207.
Obligation to mine : Central to the Claimants' construction of the Project Agreement is the proposition that it contemplated CCML being entitled to mine - in accordance with the authorisation provided by the concessions/CVs - beyond the end of Phase II. Clause 3.2, which provided that CCML would 'source further loan/funds to do what is needed to economically operate the mine and any other auxiliary project it may be permitted to enter into', gave CCML the right to mine but did not oblige them to do so if it was not economically viable. Accordingly, CCML was only obligated to source capital if it was able to economically operate both the mine and any other permitted auxiliary project, so if either could not be economically operated there was no obligation to source capital.336 On the basis that neither the Project Agreement nor the CVs obliged the Claimants to mine - and the 1986 Law (which imposed such an obligation on holders of mining leases) did not apply- the Claimants submit that they were not obliged to mine except to the extent just described. Nevertheless, in response to a question from the Tribunal, Mr Basi accepted that he did not regard the Claimants as having the right to unilaterally determine whether to suspend mining, and that it was necessary to work with the government.337
208.
Mr Basi accepted in response to a question from the Tribunal that the Project Agreement recognised a 'core activity' and that core activity was gold mining.338 The Claimants also accept -as the Tribunal describes in more detail below- that they were subject to the 1986 Law in some respects. So if they had ceased mining entirely after the end of Phase II without surrendering their rights or obtaining an agreed extension, then the Claimants accept they would have been acting outside the terms of the 1986 Law.339 However, they maintain that the Government consented to the suspension.340 The position was legally no different whether the suspension lasted 5 or 20 years, although 'practically and morally' the Claimants recognise there was a need to mine or at least provide alternative occupations for the community.341
209.
Term of the contract : In the Claimants' submission, the concessions/CVs also governed the term of their relationship with the Government; they went 'hand in glove'.342 To the extent that the parties owed future in personam obligations under the Project Agreement, those obligations continued after the divestiture of the assets, and the Agreement could be terminated in accordance with ordinary contract principles.343 Otherwise, in the absence of an express term as to duration, the Project Agreement would come to an end when the last concession expired, pursuant to an implied term.344
210.
Insofar as the Project Agreement gave rise to vested rights in rem, as a matter of Ghanaian law those rights could not be taken away by the termination of the Project Agreement.345 The Claimants argue that the legal regime applicable to those vested rights -the Head Leases/CVs -was that created by the Concessions Act 1962.
211.
Clause 1.4 : The Claimants confirm that they are not invoking clause 1.4 of the Project Agreement as an independent ground of damages, but rely on Ghana's breaches of it in assessing the merits of the grounds of termination invoked by Minister Fobih.346 They say that clause 1.4 was a promise by the Government to remove all hindrance and obstruction to the Claimants' investment,347 and the Government failed to live up to this obligation- such as by failing to manage conflict with the community348 or provide a safe and stable environment not crippled by criminal activity.349
212.
Non-mining activity : The Claimants do not claim that the Government 'granted them broad rights to engage in non-mining activities as an alternative to mining', or that the 1986 Law confers on the holder of a mineral right the option to engage in timber, agriculture or other activities.350 Rather, the Claimants claim to be entitled under the Project Agreement to engage in auxiliary projects so long as the appropriate permits were obtained. They do not explain whether this would be the case if they had abandoned the core activity under the Project Agreement, although they emphasise that in the period after they understood the Government to have approved the cessation of mining, they focused on job creation through other activities, including in some cases in collaboration with Government ministries.351

(c) Respondent's construction of the Project Agreement

213.
Nature of the Agreement : The Respondent fundamentally disagrees with the Claimants' argument that the Project Agreement authorised them to mine for as long as the CVs endured. The 'basic feature' of the Project Agreement was that it consisted of two phases.352 The first phase of the agreement covered due diligence. Phase II, if the Claimants elected to proceed to it, consisted of feasibility studies, and was scheduled to last for three years, until 30 June 1998; at that point, the Claimants would decide whether it was feasible to proceed to mining or not.353 If the Claimants did wish to proceed to mining, they were required to apply for and obtain a mining lease pursuant to the 1986 Law.354 The Claimants' conduct is consistent with this.355 Citing Mr Basi's evidence, the Respondent argues that the two-phase structure was adopted to give CCML the opportunity to walk away if the project did not prove feasible.356
214.
The Respondent does not deny that the Project Agreement had the effect of divesting certain assets - including the Head Leases/CVs -to CCML at the conclusion of Phase 11.357 But the Respondent says that those assets did not give the Claimants the right to mine after the conclusion of Phase II without obtaining a mining lease in the usual way. In recognition of the fact that Dunkwa was an operating mine, the Claimants were permitted to mine on their own account during Phase 11358 and at least to this extent the Project Agreement constituted the necessary governmental authorisation in terms of the 1986 Law.359 It cites with approval a letter of advice from the Minerals Commission to the Minister which confirms that '[t]he mineral right referred to under Section 67 can be a mining lease which is normally issued to a company after exploration or in the case of divested companies, a Project Development Agreement, such as the one held by DCGL.'360
215.
Obligation to mine : As explained below, the Respondent says that the Claimants were required to mine by the Project Agreement, because the Project Agreement was subject to the Minerals and Mining Law 1986 which imposed such an obligation. The Claimants could have asked for a suspension, but what they could not do was 'self judge the situation'.361 The Respondent rejects the suggestion that clause 3.2 meant that the Claimants had no obligation to mine as long as, in their unilateral judgment, it was not to their financial advantage. The clause imposed an obligation on DCGL to source funds to operate the mine and says nothing about mining at the Claimants' option.362
216.
The reference to mining 'economically' means that the Claimants were to operate the mine in a careful and non-wasteful way, and an analogy with the Government's standard mining leases is not apposite because the term is used in a different sense in that context.363 As a consequence, the Respondent submits that if the Claimants simply ceased mining after the conclusion of Phase II then they would have concluded the Project Agreement and the provisions of the 1986 Law applicable to the termination of a mineral right would apply.364 Even if the Claimants had a right to mine after the end of Phase II, the failure to mine would constitute a ground for termination under the 1986 Law (as described below).365
217.
Clause 1.4 : The Respondent denies that clause 1.4 was intended to guarantee the Claimants a stable, safe and conducive environment in which to operate. The clause refers to the rights 'hereby granted', which were limited to the due diligence, feasibility studies and dredge refurbishment in Phases I and II, and was an assurance that the Claimants would be able to access and operate DGL's facilities, and that the Government would not grant competing rights. Nothing in the clause 'required the Government to act as DCGL's public relations firm' or imposed on the Government the obligation to eliminate galamsey or operate as DCGL's security force.366 Nor did any breach of clause 1.4 cause the Claimants harm, because the project failed because it was uneconomic.367
218.
The Respondent says that the incidents that pre-dated the cessation of mining were minor and could not have been prevented by the Government, and that the theft of power lines occurred long after mining had stopped.368 Likewise, there is 'scant' evidence of how galamsey affected the Claimants' actual operations - and could only have affected their hypothetical future restarted operations.369 The Respondent blames the Claimants in part for the ga/amsey problem.370 The Government attempted to assist the Claimants,371 and again the Claimants do not show how those problems caused the project's failure or how the Government could have prevented them.372 The Respondent describes the alleged incident of the sabotage of the dam as 'highly dubious'.373
219.
Non-mining activities : The Respondent denies that the Claimants had broad surface rights to do whatever they wanted.374 The Project Agreement divested a mining operation, and the Claimants could only undertake auxiliary projects which they were permitted to enter into (pursuant to clause 3.2), the provision that no further approval would be· required for agricultural projects having been removed.375

3. Legal character of concessions/CVs

220.
Before outlining the Parties' submissions on which legal regime applied to the Claimants' investment, the Tribunal describes what the Parties had to say about the nature of the concession contracts/CVs and the rights which attached to them. Given that it is not in dispute that the Project Agreement transferred those interests to the Claimants, it is important to be clear about the nature of those interests and the rights attaching to them before discussing the applicable regime.
221.
The Parties were largely in agreement about the basic nature of the concessions/CVs and the rights which attached to them until1962; their differences largely lay in the effect subsequent enactments had on the rights contained in them.

(a) Claimants' submissions

222.
The Claimants explain that concessions were ordinary contracts, entered into between local landowners ('stools') and private companies or individuals.376 Certificates of Validity are judicial instruments which validate concession agreements.377
223.
The Claimants explain that the Dunkwa CVs were granted pursuant to the Concessions Ordinance 1900, and validated by the High Court in accordance with that law.378 That law was replaced by the Concessions Ordinance (later Act) 1939.379 At that stage, ownership of minerals was vested in the owner of the land on which the minerals were found.380 Mr Kapoor's evidence was uncertain as to whether the Claimants had made independent enquiries as to the terms of the CVs prior to entering the Project Agreement.381
224.
While ownership and control of all minerals was vested in the President pursuant to the Minerals Act 1962, the Act did not affect any existing mining right, and holders of existing CVs were permitted to continue to mine without obtaining a lease unless the holder was an alien.382 But existing mineral rights - which historically had equated to ownership of the mineral itself- became a mere right to mine the mineral in question.383 In the same year, the Concessions Act 1962 replaced the 1939 Act, and thereafter governed the Dunkwa Concession.384
225.
The Concessions Act 1962 imposed a procedure for the termination of a mining concession, pursuant to which the Minister was required to apply to a tribunal (which qualified as a 'lower adjudicating authority' under Ghanaian law) when a concessionaire was in breach.385 Thus the two 1962 Acts subsisted together.386 In 1967, the State Gold Mining Corporation (Acquisition of Assets) Act vested a number of concessions - including the Dunkwa Concessions - in SGMC.387
226.
The Claimants submit that prior to 1962, the lessor under a validated Head Lease/CV continued to retain all rights thereunder except those granted to the lessee, plus certain rights at customary law. On the expiry of the term of the lease, all rights reverted to the lessor.388
227.
In response to a question from the Tribunal as to whether the Claimants had a right under the CVs to conduct commercial agricultural operations, the Claimants submit that the CVs did not expressly permit this and they would therefore need the consent of the local landowners, which was given. No consent was required from the Government.389

(b) Respondent's submissions

228.
The Respondent submits that before 1962, a lessor under a Head Lease/CV (usually a stool) retained a range of rights subject to non-interference with the lessee's mining operation.390 Upon the expiry of the lease, the lessor's rights were restored to their original state.391
229.
Since 1962 all minerals have been the property of the State, and the 'restored interest' of the lessor did not include title to the minerals.392 That vesting was achieved by the Minerals Act 1962, and the Commission of Enquiry into Concessions (which was responsible for the drafting of that Act and the Concessions Act 1962) explained that this would separate ownership of the surface area from ownership of the minerals.393
230.
A review of the terms of the CVs demonstrates that they grant the holder rights 'subsidiary' or 'ancillary' to mining- such as to fell trees to build worker accommodation - and any further rights would have to be negotiated with the landowner.394
231.
Thus, although the lessee's rights constituted a combination of in personam rights and in rem rights they did not include in rem rights over minerals.395 So far as they rights were in rem, an assignee was required to register its interest in order to take the benefit ofthat effect.396
232.
In 1962, a decision was made to permit existing mining concessions (i.e. CVs) to persist without a new mining lease being required.397 As explained below, the Respondent maintains that a different policy was adopted by the Minerals and Mining Law 1986, which was in force at the time of the Project Agreement. It is to that question that the Tribunal now turns.

4. Applicable regime: Concessions Act 1962 or Minerals and Mining Law 1986?

(a) Claimants' submissions

233.
The 1986 Law : In 1986, the Minerals and Mining Law was passed. Section 14 provided:398

(1) Notwithstanding any right or title which any person may have to any land in, upon or under which minerals are situated, no person shall conduct reconnaissance of, prospect for or mine any mineral in Ghana unless he has been granted a mineral right by the Secretary in the form of a licence or lease as the case may be.

(2) The Secretary shall on behalf of the Republic have power to negotiate, grant, revoke, suspend or renew any mineral right under this Law subject to a power of disallowance exercisable by the Council within thirty days of such grant, revocation, suspension or renewals. The powers of the Secretary under this subsection shall be exercised on the advice of the Minerals Commission.

234.
Section 16 empowered the Minister to 'grant' a mineral right. Section 84 of the Law defined a 'mineral right' as a right to mine in the form of a mining lease. A mining lease is an ordinary contract, with two functions: conferring a right to mine (a mineral right) for those that did not already have it; and demarcating the area over which the right to mine may be exercised.399 The Law included a broad discretion to approve suspension of mining (s 58(4)). The Law provided for the payment of royalties (s 22).
235.
The Claimants submit that, after the 1986 Law:

(a) If a lessee under a CV (being a state-owned company) assigns its interest with the consent of the Minister for Mines, that assigned interest included a mineral right in terms of the 1986 Law (because the Law saved existing mineral rights under CVs) but did not transform the mineral right into a right granted under section 14(1) of the Law.400 In other words, the Claimants say that Ghanaian law recognized two kinds of mineral rights: pre-1986 mineral rights and post-1986 mineral rights.401 As described below, pre-1986 mineral rights were only subject to the 1986 Law to the extent 'necessary' to give effect to the Law (and this did not require the application of the termination procedure). Thus, the assignee was not required to submit a programme of mining operations.402

(b) The lessor's mineral rights, surface rights and in personam rights were largely unaffected by the 1986 law.403 The Law preserved the validity of any mineral rights that had been granted by the lessor to third parties and validated by CVs before the 1986 Law.404 Sections 70 and 71 of the Law regulated the surface rights of the lessor, lessee and lawful occupiers; the Law did not seek to regulate in personam rights.405

(c) As to the rights of a lessee under a CV, after the 1986 Law, the Claimants say that the lessee's mineral rights persisted.406 Those rights were a combination of in personam and in rem rights; an instrument assigning the latter could be registered in the Lands Registry in order to give it that effect.407 The position was no different for a state-owned company such as SGMC.408

(d) Thus, on the facts, the Agreement itself did not constitute a mineral right in terms of the 1986 Law.409 It did, however, transfer an interest in mineral rights (being concessions backed by CVs);410 the 1986 Law did not extinguish those existing rights.411

236.
Section 67 of the Law provided that the Minister 'may' suspend or cancel a mining right in certain circumstances, including failure to make payments required under the Law; breach of the Law or a condition of the mining right; insolvency and others. The Minister was required to give notice to the holder and then 'require the holder to remedy a breach of the condition of his mining right'. Where the breach 'cannot be remedied', the Minister shall require the holder to 'show cause... why the mineral right should not be suspended or cancelled.' The Claimants submit that this imposes a two-step process - with the giving of notice and the requirement to show cause distinct and mandatory steps.412 The Law largely dispensed with the due process protections imposed by the Concessions Act 1962 in favour of an 'executive-driven and largely discretionary process.'413
237.
Applicable termination procedure : But an important plank of the Claimants' argument is that the termination procedure in the Concessions Act 1962 survived the enactment of the 1986 Law (and subsequent legislation). Section 87 of the latter Law provided that the Concessions Act 1962 'shall apply with such modifications as may be necessary to give full effect to the provisions of this Law.' The Claimants submit that four principles guide the interpretation of 'necessary modifications' clauses such as this:

(a) the pre-existing law must be shown to be 'not in conformity' with the new law;

(b) it is presumed that the legislature intended to save the earlier law if possible;

(c) only necessary modifications shall be made; and

(d) any deviation from the pre-existing law should not harm either party.414

238.
The Claimants say that the replacement of the former termination procedure is not a necessary modification for four reasons: the judicial nature of CVs makes them fundamentally different from mineral rights granted under the 1986 Law; the former Act should be saved if possible; the burden rests with the Government to justify a departure from the former Act; and otherwise CCML would be 'harmed', being deprived of its vested right to due process under the Concessions Act 1962 regime.415 Thus the correct interpretation is that section 67 only applies to mineral rights granted pursuant to section 14, and not to pre-1986 mineral rights.416 Nevertheless, the Claimants concede that 'the substantive grounds for termination under MMA 1986 would apply' as necessary modifications to the Concessions Act 1962 regime.417 Likewise, if a party mined pursuant to a mineral right in the form of a Head Lease/CV (but without a mining lease granted pursuant to section 14 of the 1986 Law) then they would be liable to pay royalties in accordance with that Law.418
239.
The Timber Resources Management Act 1998 repealed the Concessions Act 1962, except for sections 1 and 16.419 The Claimants submit that the Act could not operate retroactively to deprive CCML of its vested rights. The Act was concerned with timber rights.420 Moreover, Article 107(b) of the Constitution precludes retrospective legislation, and the Interpretation Act 2009 and case law demonstrate that legislation is generally prospective and not intended to vary acquired rights.421 This is not to challenge the constitutionality of the 1998 Act, but merely an application of Article 107(b) to show that the Act was intended to be prospective.422 In any case, the combined effect of clauses 1.1 and 10.1 was to codify the statutory rights enjoyed by CCML at the time of executing the Project Agreement.423 So the Minister had only two means of terminating the CVs. He could have asked the President to set up a five-member tribunal in accordance with section 8 of the Concessions Act 1962.424 Alternatively, the international arbitration clause in the Agreement explicitly provided its own procedure for the determination of CCML's mineral rights in the absence of the procedure under the Concessions Act 1962, and this Tribunal is an 'appropriate substitute' for the administrative tribunal required under the Concessions Act 1962.425
240.
History of the site inconsistent with requirement to obtain mining lease : The Claimants note that the Government specifically elected to divest CVs to CCML in the Project Agreement, and did not require it to obtain new mineral rights.426 All of DGL's assets, including mineral and surface rights, vested in CCML on the divestiture.427 They stress the CVs are judicial instruments confirming an antecedent grant of mineral rights.428 While the Dunkwa Concessions grant the right to mine, they impose no obligation to do so.429
241.
The Claimants accordingly submit that if the CVs did not authorise mining, the Government never told them so.430 Indeed, taken to its logical conclusion the Claimants had no right to mine in 2005. So instead of purporting to terminate the Project Agreement, on Respondent's theory it should simply have informed the Claimants that they had no right to mine at all.431
242.
The Claimants note that DGL had conducted mining in reliance on the mineral rights granted in the CVs for over thirty years - including after the enactment of the 1986 Law - and the Government warranted in clause 1.1 that the concessions granted were 'effective, fully valid and enforceable and will remain so for the duration of this Agreement and any extension or variation thereof.' The Claimants say they relied on this representation.432 Thus the Claimants submit that state-owned companies who did not possess mining leases granted pursuant to section 14 were permitted to mine by virtue of the Head Leases, having been saved by both section 1(a) of the Minerals Act 1962 and sections 86 and 87 of the 1986 Law.433
243.
The Claimants say that the Government can become bound by an estoppel provided it is not acting ultra vires: such as where persistent and continuous conduct creates a legitimate expectation.434 Legitimate expectations can be created by either a promise or established practice, and the promise of one ministry and can bind another; a fortiori inconsistency of policy by one ministry may amount to abuse of discretion.435
244.
Not required to obtain a mining lease : Thus the Claimants say that they were not required to obtain a mining lease for the following reasons:

(a) The 1986 Law saved existing mineral rights.436 It did not state that existing mineral rights were to be annulled or reduced to bare land use rights,437 and the continuing validity of CVs was recognized by the Court of Appeal after its enactment.438 There is no contemporaneous evidence that the Law was intended to have this effect.439 Rather, CVs would die a 'natural death' because of theirfixed terms.440

(b) The Respondent's interpretation would require reading words into section 14(1), which would constitute impermissible 'indirect repeal by inference'.441 The Law was intended to apply only prospectively to new applications;442 it refers to those with rights in land who wish to mine minerals, and is irrelevant to those already mining minerals;443 and is concerned with the grant of new licences, not the transfer of existing ones.444

(c) DGL's mining and clause 1.1 of the Project Agreement demonstrate that mining rights under CVs survived the Law. Otherwise DGL (an entity separate from the Government to whom the law applied as much as to a private company) would have been mining illegally from 1986 until the divestiture in 1995.445 That is also consistent with the fact the Government permitted DCGL to mine without a lease and claimed royalties accordingly.446 The Claimants say that clause 1.1 was not intended simply to guarantee the validity of the CVs as against the landowners: this is inconsistent with the Claimants' evidence; the Government had no authority to give such a guarantee on landowners' behalf; and is inconsistent with the same warranty given in the Project Development Agreement for the Prestea mine.447

(d) The Claimants say that a comparison with the Project Development Agreements for Tarkwa and Prestea makes the point: they both stipulated that the Government was to provide a mining lease because they contemplated exploration and new mining agreements. The Dunkwa Agreement did not because all the necessary rights had been divested.448

(e) The Claimants say that its interpretation is consistent with the contemporaneous correspondence. In relevant correspondence, the Government did not say that DCGL was required to have a mining lease.449 CCML's 10 January 1997 letter sought a single mining lease for the sake of convenience, and sought permission to transfer the assets into DCGL's name.450 The Minerals Commission did not object to the proposed clause that would make the mining lease subject to the Project Agreement, and the lease was never obtained because the Commission stalled.451 The Claimants reject the Respondent's suggestion that the process was paused because of the Claimants' request to extend Phase 11.452 The Government's request on 10 September 2001 is consistent with the construction that the Claimants were not required to obtain a lease.453 And the 30 August 2002 letter from the Minerals Commission to the DIC does not support the Respondent's interpretation because it was 7 years after the Project Agreement; it was an internal document; and it actually suggests that DCGL was entitled to mine gold without a lease.454 That is consistent with other statements by Ministers.455

(f) To the same effect, the Claimants argue that their request to extend Phase II was 'driven by commercial realities', tax considerations and accounting treatment of expenditure, not by the need for a mining lease.456

245.
Thus the Claimants submit that if a party held a mineral right in the form of a Head Lease/CV but not a right granted by the Minister pursuant to section 14 of the 1986 Law, then its operations would be subject to the Law only to the extent necessary.

(b) Respondent's submissions

246.
Always subject to the 1986 Law : The Respondent's case is that the Claimants' investment was always intended to be subject to the Minerals and Mining Law 1986, with the Claimants expected to obtain a lease under that statute once Phase II was completed and commercial operations began. The fundamental requirement of that Law was contained in section 14, which required every person who wished to mine to obtain a mining lease.457
247.
The Respondent says that the theory that the Concessions Act 1962 regime continued to apply in respect of the Claimants' investment is a recent invention. It notes that this first appeared in the Memorial, was never mentioned when the Claimants sought a mining lease in 1997 and 1999, and is inconsistent with other correspondence at the time.458 The Respondent accordingly submits that the Claimants waived their right to invoke it.459
248.
As noted above, in 1962 a decision was made to permit existing mining concessions (i.e. CVs) to persist without a new mining lease being required.460 The Minerals and Mining Law 1986 took a different approach, reflected in section 14's requirement that all mining be done in accordance with a mining lease notwithstanding any right or title to land. The Respondent says that Head Leases/CVs were such a 'right'.461 So the Head Leases remained valid as between lessor and lessee,462 but the 1986 law removed the right to mine in accordance with those existing CVs without a mining lease, just as earlier Concessions laws had done in relation to aliens.463 In arguing that the termination process under the Concessions Act 1962 applied, the Claimants fail to appreciate the distinction between CV (which is a concession, and agreement between the landowners and the concessionaire) and a mining licence (which is a governmental authorisation to mine).464
249.
Thus, the enactment of the 1986 Law did not invalidate or directly modify the Head Leases/CVs, but the rights of the lessor and lessee under them were subject to the applicable statutory provisions.465 This included the requirement to obtain a mining lease from the Minister.466 At the same time, the assignment by a state-owned company of an interest in a Head Lease/CV did not provide the assignee with a mineral right allowing mining under the 1986 Law even if the Minister for Mines consents.467 If it did, it would be subject to the 1986 Law, and if the Minister purported to grant the right to authorise mining without being subject to the 1986 Law that would be ultra vires.468 Again, assuming that a Head Lease/CV became a valid mineral right pursuant to that Law, it would become subject to the Law's suspension and termination provisions.469
250.
However, the Project Agreement did constitute a mineral right under the 1986 Law because it was an instrument agreed by the Minister for Mines that authorised prospecting and mining, albeit only through Phase II while feasibility studies were undertaken.470 The Respondent submits that whether or not the Project Agreement constituted a mineral right under the 1986 Law, its termination did not affect the Claimants' rights under the Head Leases/CVs. However, the Claimants could not exercise the rights under those leases without a valid mineral right.471
251.
If a person conducted mining operations in Ghana without holding a mineral right under the Law, they would still be required to comply with the other provisions of the Law.472 A purposive interpretation of phrases such as 'holder of a mineral right' or 'holder of a mining lease' required that to include a person mining without such a right in violation of the Law.473 So, for example, royalties would be payable.474
252.
Response to the Claimants' construction : The Respondent says that section 14(1) is unambiguous and the Claimants' interpolations are neither necessary nor compatible with the correct interpretation of the section.475 It says there is 'no grammatically permissible way' of reading section 14 as limiting the scope of the mining lease requirement to a certain group of persons with 'rights to land'.476 The argument that the Respondent's interpretation would 'eviscerate' the CVs is beside the point.477
253.
The Respondent says its interpretation is consistent with the 1986 law's transitional provision, section 86. That provision expressly saved licences and leases granted under certain identified prior minerals and mining laws (listed in section 85), but the concessions laws were not included because the CVs were validations of private agreements, not governmental mining authorisations. Section 85 only listed the enactments that provided for such authorisations.478
254.
The Respondent thus submits that the Claimants' reliance on section 87 is misplaced: both because section 86 was the provision that saved earlier licences (with section 87 concerned with earlier laws), and because section 87 requires section 14(1) to be given effect and the earlier legislation modified accordingly, not the other way around.479
255.
In terminating the Project Agreement the Respondent was not purporting to change or cancel the CVs. Rather, it was invoking the process under the Minerals and Mining Law 1986 to cancel the 'only conceivable mineral right' (i.e. authorisation to mine) that the Claimants might have possessed- which was the Project Agreement.480 If one accepts the Respondent's case that section 14 required a 'mineral right' in order to mine, then either the CVs did not qualify (in which case they gave no right to mine) or they did qualify (in which case they were subject to the 1986 Law's termination provision, in place of the Concessions Act 1962 procedure).481
256.
In response to the Claimants' argument that section 14 was only intended to operate prospectively, the Respondent points out that section 45 of the same Act permitted a person operating an existing mine to apply for a mining lease, and that the same approach is taken in the 2006 Act.482
257.
The Respondent also relies on the fact that the Timber Resource Management Act 1998 repealed the Concessions Act 1962. It says that the Industrial and Commercial Workers case was concerned with a right embodied in a contractual agreement that could not be removed by a subsequent law change.483 Here there is no question that Parliament was competent to repeal the 1962 Act and doing so did not retrospectively affect an accrued right.484 The Claimants' case amounts to a challenge to the constitutionality of the repeal of the Concessions Act 1962.485
258.
No stabilisation clause : The Respondent says that the Claimants have not explained why clause 1.1 of the Project Agreement should be interpreted as a stabilisation clause.486 The Respondent says that clause 10.1 of the Project Agreement was designed to give the Claimants the benefit of future beneficial changes in the law, not to act as a stabilisation clause, and in any case the Concessions Act 1962 was not a 'Mining Law' in terms of the clause.487 The Respondent says that such an interpretation would lead to the /absurd' consequence that the Minister would be required to apply a tribunal procedure that had been abolished by Parliament years before, and the Claimants/ alternative argument that this Tribunal can play the role of the administrative tribunal is untenable.488
259.
The Respondent's case is that the Claimants were not required to obtain a mining lease while they were conducting Phases I and II of the Project, because those consisted of due diligence and feasibility studies. However, it maintains that CCML was told that if it proceeded to complete the divestiture after those phases, then it would need to obtain mining leases under the 1986 law.489
260.
Claimants understood they required a mining lease : The Respondent submits that the correspondence between the Parties over the period of the project shows that the Claimants understood they required a mining lease. The Respondent relies on the evidence of Mr Ansah as to the negotiation of the Heads of Agreement, and says that the conversation at the June 1993 meeting would have made little sense if the need for mining leases was not discussed.490 The Claimants requested one on 10 January 1997, and steps were taken towards arranging one in 1997 and 1998.491 If the Claimants believed the CVs had 'Vested' the necessary rights in the Claimants, they would not have sought a mining lease, and the letter is not consistent with the proposition that a mining lease was needed only because the CVs were about to expire.492 The draft leases which the Government sent to DCGL in January 1997 contained a provision that confirmed the supremacy of the Minerals and Mining Law 1986, and DCGL did not question that provision.493
261.
The Claimants sent maps to the Minerals Commission on 3 February 1998 for the purpose of issuing mining leases, but the Respondent's case is that the process stalled shortly thereafter because DCGL sought a two-year extension of Phase II, thus delaying the point at which a lease would be required.494 The Respondent submits that the Claimants had pointed to no good reason why the Claimants sought an extension of Phase II if a mining lease was not required at the conclusion of that phase, and suggest that the tax and accounting reasons now relied on 'weren't the reasons at the time.'495
262.
The Claimants again sought a mining lease on 5 July 1999 (again, in the Respondent's submission, when Phase II was coming to an end), but did not follow up.496 The Respondent's interpretation is supported by the Minerals Commission's letter of 10 September 2001, which states that a mining lease would be issued after the completion of Phase II, and DCGL did not question this assertion at the time.497 The Respondent says there was 'no issue' that a mining lease would be required.498 The 30 August 2002 letter demonstrates that there had been no discussions between DCGL and the Minerals Commission after the 10 September 2001 letter.499
263.
As to the Claimants' point that DGL had operated under the CVs without a mining lease, the Respondent says that the Government did not consider it necessary to enforce the requirement against state-owned mining companies because they were under Government oversight and the divestiture process arose soon after the Minerals and Mining Law 1986 came into force. At that point it made more sense to require the new companies to acquire fresh leases.500 It submits that the Government cannot be estopped from applying a statute, and to the extent that the Constitution provides for judicial review of administrative entities against requirements of fairness and reasonableness, it is that Constitutional standard and not concepts of estoppel or legitimate expectations that apply.501 So even ifthe state gold mining companies were operating outside 'the strict contours of the law' that did not entitle a private company to do so.502
264.
Likewise, there was no need for the Claimants to obtain mining leases until Phase II was completed, and it would not have made sense to execute them and obtain Presidential approval if DCGL was going to fail. So the government did not press the issue when DCGL did not look like it was about to start mining.503 The Respondent's case is that if Phase II ended and the mining lease had not yet been finalised, DCGL would not have been prevented from mining but would have mined pending the issuance of the lease.504

C. Grounds for termination

1. The Parties' cases

265.
The Claimants' case is that the Respondent entered into the Project Agreement in a 'private' capacity, as the owner of DGL's assets. Even if the Claimants had breached their obligations under the Agreement, this did not entitle the Respondent to exercise its sovereign powers (under the 1986 Law) to terminate the Agreement, when the Law did not provide for the termination of contracts. At the same time, termination of the Project Agreement did not give the Respondent the right to cancel the mining rights. In order to do that, the Government had to follow a process set out under Ghanaian law.505
266.
As noted above, the Claimants say that they were entitled to the benefit of the termination process stipulated by the Concessions Act 1962. At the very least, if the Government considered that that Act had been repealed then it was required to commence international arbitration.506 It is common ground that the Government did not follow either process, and instead followed - or purported to follow - the procedure for cancellation of mining rights under the 1986 Law. Thus it will be necessary for the Tribunal to determine whether the termination provisions of the 1986 Law applied, and if they did, whether the Respondent complied with them.507
267.
As to the effect of termination, the Claimants submit that termination of the Agreement had no effect on the mineral rights enjoyed by the Claimants in the Head Leases/CVs, which were rights in rem.508
268.
The Respondent, for its part, says that the Claimants were required to obtain a mining lease once Phase II concluded, but failed to do so. The Respondent did not press the matter because there was no mining on the horizon.509 In those circumstances, whatever 'mineral right' pursuant to which the Claimants could have been mining (whether the Project Agreement itself or not) was subject to the 1986 Law, and accordingly the Respondent was entitled to invoke the termination procedure under that Law to cancel the Project Agreement.510 It says that even if common law rules as to termination of contracts applied to the Project Agreement, the Claimants' prolonged material breach gave rise to a right to cancel.511 The Respondent makes it clear that the Minister was not purporting to terminate the underlying CVs, but the Project Agreement itself.512
269.
But on the assumption that the termination procedure under the Minerals and Mining Law 1986 applied, the Parties disagree as to whether the Minister followed the correct process, and was substantively justified in terminating the Project Agreement. The Parties' submissions on those points are now summarised.

2. Did the Respondent follow the process for termination under the Minerals and Mining Law 1986?

(a) Claimants' submissions

270.
The Claimants say that the Minister's decision was governed by Article 296 of the Constitution, which imposes constraints on the exercise of discretionary powers, requiring the Minister to exercise his power 'fairly and reasonably and without arbitrariness, capriciousness or bias and to comply with the requirements imposed on him by law.'513 He was also required to exercise his discretion in accordance with published regulations.514
271.
The Claimants say that the Respondent failed to comply with the process required under the 1986 Law for a number of reasons:

(a) Mr Aryee had advised the Minister of Mines to take action against the Claimants before the Minister met with Mr Kapoor.515

(b) The Minister conflated the 'notice/remedy' and 'show cause' phases.516 Although the Claimants accept that reasonable minds might differ about whether this may be a one-step or must be a two-step process,517 they say that the policy of section 67 is to give companies notice of a breach and an opportunity to correct it, and only where it cannot be remedied to give them a second opportunity to show cause why the mineral right should not be withdrawn.518 This is said to be consistent with the Government's standard mining lease, which provides that the Government is to give three months for the company to rectify the breach, and then if the company fails to do so but disputes the Government's right to terminate, gives the company the right to commence international arbitration.519

(c) As to the 4 May 2005 meeting, the Claimants submit that Mr Kapoor was not even told what the meeting was about,520 there are no minutes of the meeting,521 and as noted above Mr Aryee could not say that the Minister had specifically mentioned a failure to mine pursuant to the 5-year plan or the '24 to 36 month' commitment.522

(d) The 6 May 2005 letter mentioned matters that the Claimants were not responsible for (and indeed that the Respondent was responsible for), such as the negative perception of the community and the extent of galamsey, and this demonstrates a failure to act fairly.523 The Claimants submit that it was prepared from notes that predated the meeting. They note that it does not mention the 5-year plan or the alleged commitment to restart mining.524

(e) The Claimants were not given an opportunity to remedy all of the breaches on which the Respondent ultimately purported to terminate, because the last three grounds in the 7 November 2005 letter were not raised in the show-cause letter or - according to the Claimants' evidence - in the meeting.525 Nor was the one ground of which notice was given -the failure to mine -sufficient because the Claimants were entitled to suspend mining and the Government had consented to the suspension.526 The Minister could not rely on either the 5-year plan or Mr Kapoor's alleged promise to restart mining because the Government never told the Claimants that the promise would be treated as a 'drop dead deadline', never followed up and never provided the minutes of the meeting when the commitment was supposedly made.527 Furthermore, the Minister did not rely on the Claimants' alleged promises to restart mining in making his termination decision.528

(f) Termination was only permitted where t~e alleged breaches could not be remedied, and DCGL's 8 August 2005 letter (which the Minister allegedly 'ignored') showed cause why the Claimants' rights should not be revoked.529 If DCGL was required to respond within 90 calendar days (instead of 90 business days) this should have been spelled out, and 90 days was not enough to produce the kind of response which the Government wanted.530 The Claimants also submit that the language of the Minister's letter was carefully chosen, and that he had in fact read the Claimants' response when he confirmed his decision to terminate.531

(g) Although the Minister sought the Minerals Commission's advice as he was required to do, this advice does not mention a failure to honour a prior commitment to recommence mining, and acknowledges that a mineral right may be granted in the form of a project development agreement.532

(h) Finally, the Government had not issued regulations governing the exercise of its discretion in violation of Article 296 of the Constitution.533

(b) Respondent's submissions

272.
The Respondent rejects each of the Claimants' arguments, and maintains that it followed the correct procedure under the 1986 law:

(a) The law does not require two distinct 'notice' and 'show cause' stages. Indeed, some breaches cannot be remedied.534

(b) There is nothing wrong with the Minister's letter conveying information that did not form the basis of his decision, and there is no substance to the claim that the Government was responsible for the community relations problems or galamsey.535

(c) While the letter did not mention the last three grounds for termination, the payment grounds were raised in the 4 May 2005 meeting and in 2003. Moreover, the Minister was entitled to cancel under the first ground alone.536

(d) DCGL's letter was outside the 90 day deadline (which could only have meant 90 calendar days) and, in any case, did not respond to the Minister's concerns or show cause why the Claimants' rights should not be revoked.537 The Respondent says that 90 days was sufficient.538

(e) It is clear that the Minister did obtain the Minerals Commission's advice.539

(f) Finally, the Supreme Court of Ghana has specifically held that the exercise of a statutory power is not invalid simply because regulations guiding its exercise had not been promulgated, and in the absence of such regulations the Minister was free to give notice as he deemed appropriate.540

3. Grounds for termination and expropriation

(a) Claimants' submissions

273.
The Claimants submit that the grounds on which the Minister relied were 'spurious':541

(a) Failure to conduct mining operations : Neither the CVs nor the Project Agreement required DCGL to mine by a certain date or at all: they were entitled to do whatever was 'economical' (including auxiliary activities in place of mining).542 The Government also approved the suspension of mining, which is customary in the mining industry.543 Furthermore, the Minister knew or should have known that he had to assess DCGL's performance against the Project Agreement, not the Law.544 The 5-year business plan did not constitute a 'programme of mining operations' (in terms of the 1986 Law) against which the Government could enforce the Claimants' alleged obligation to mine (nor did the parties treat it as such545); nor Mr Kapoor's statement that DCGL would resume mining in 24 to 36 months.546 The Claimants' ability to implement the 5-Year Plan was frustrated by the government's failure to provide a peaceful and safe environment, and by the fact that financiers (including Maharishi) could not be persuaded to invest in such an environment with the low gold price.547 As the Claimants put it in closing, 'the five-year plan was stillborn.'548 The Claimants also submit that the Minister did not rely on any promises from the Claimants to restart mining in his decision to terminate.549

(b) In this connection, the Tribunal sought submissions on the question of what legal consequences would follow if the Claimants had ceased mining operations entirely after having completed Phase II (without having surrendered their rights or obtained the Government's consent to suspend mining). The Claimants accepted that if they had done so they would have been acting outside the terms of the 1986 Law, but in reality the Government 'de facto agreed to the suspension', and the Minister failed with his obligation under section 58(3) to set a date by which the mine had to resume full production, which gave rise to an estoppel.550 Legally the answer would be the same regardless of whether the cessation lasted 5 or 20 years, but 'practically and morally' it would not.551

(c) Royalties : The Claimants do not deny that payment of royalties was an obligation under the 1986 Law, but they say it was not an obligation under clause 10.6 of the Project Agreement - which just provided for deferral - so non-payment was not a breach of the Agreement.552 Moreover, they believed they had been deferred after the Ministry for Mines indicated that they were ready to grant a deferment but needed to consult with the Ministry of Finance.553 The Minister should have given DCGL an opportunity to pay, and otherwise pursued the royalties as a debt through the courts before terminating.554 1n any case, it was disproportionate and an improper exercise of discretion to terminate the project on that basis.555

(d) Quarterly reports : DCGL filed reports on a monthly basis, which satisfied this obligation because they contained everything that the quarterly reports would have.556 In any case, any failure did not justify termination because it did not (i) go to the root of the contract; (ii) make further performance of it impossible; or (iii) affect the very substance of the contract.557

(e) World Bank loan : While the Claimants acknowledge the loan, they say that the terms of repayment were not agreed, and in any case the failure to repay was not a breach of the 1986 Law or a condition of CCML's mining rights under the Project Agreeement, so did not entitle the Government to terminate.558 They also say that the loan obtained by the Government from the World Bank and then on-lent to DCGL was invalid because the loan agreement was not approved by Parliament.559

274.
The Claimants further submit that the Minister's reliance on section 68 to vest their assets in the Respondent was misplaced. They had been irrevocably sold and transferred to CCML on divestiture, and therefore the purported vesting constituted an expropriation.560 The only way for the Government to have cancelled the mining rights was through the Concessions Act 1962 process or international arbitration.561
275.
Finally, the Claimants say that the unlawful termination of the Project Agreement and CCML's rights breached the express warranties in the Project Agreement itself. It breached clause 1.1's guarantee that the mineral rights would remain effective, valid and enforceable.562 It breached clause 1.4 because, far from removing obstructions from the Claimants' business, the Respondent 'acted as the main antagonist'.563 The Claimants submit that these clauses are not 'mere warranties' but 'essential conditions', the breach of which entitles CCML to damages. But because a contract stays on foot until the innocent party accepts the breach as a discharge, the contract stayed on foot until DCGL accepted the Government's decision as final on 18 April2006.564
276.
In response to a question from the Tribunal, the Claimants submit that Ghanaian law had not addressed the question of whether a breach of an obligation such as clause 1.4 could have an effect on the right of the breaching party (here the Respondent) to terminate it.565 Under English law, a continuing breach (by A) could be relied upon where A's performance was a condition precedent to B's obligation to perform.566 The Claimants suggest that in this case the Claimants' obligation to mine was dependent on the Respondent's prior performance of its obligations under clause 1.4.567

(b) Respondent's submissions

277.
The Respondent says that it was entitled to terminate the Project Agreement:

(a) Failure to mine : Section 53 of the Minerals and Mining Law 1986 required the leaseholder to mine in accordance with a 'programme of mining operations'.568 The 5-year plan submitted by DCGL- which was followed shortly by a request to declare Phase II complete - constituted such a programme against which the Government could enforce the Claimants' obligations.569 The government 'was not powerless simply because [the Claimants] refused to sign a mining lease and didn't have a piece of paper that in haec verba said: programme of mining operations.'570 The fact that the Claimants never obtained a mining lease should not excuse their failure to comply with the plan.571 Although Ghanaian law recognizes the possibility of a suspension, this must be authorized by the Minister and is subject to conditions imposed.572 In 2002, DCGL again committed to restarting operations in 24 to 36 months with efforts to resume within 24 months.573 The Government approved these plans - which constituted a mining activity not the suspension of mining574 - and encouraged DCGL to restart mining (alongside, but not replaced by, auxiliary projects).575

(b) The reality, according to the Respondent, was that the Claimants could not obtain the necessary financing. Having withdrawn their own support in 1998, they sought relief from the government in 1999 which was not forthcoming.576 After that, the only apparent attempts to finance the project were the approach to Maharashi- which the Respondent characterizes as either 'made up or wishful thinking'577 - and the payment to Mr Kapoor and Mr Basi of US $216,000 per year, which was added to the balance outstanding to Mr Basi's company and accrued interest.578

(c) In response to the Tribunal's question, the Respondent submits that if the Claimants ceased mining entirely after completing Phase II they would have simply concluded the Agreement without obtaining the required mining lease; even if the Head Leases/CVs or the Project Agreement constituted a mineral right that authorized mining after the end of Phase II, it would have been subject to the 1986 Law and suspension of mining without the Minister's approval would constitute a breach giving rise to the right to terminate.579

(d) Royalties : The Claimants were required to pay royalties under section 22 of the Minerals and Mining Law 1986, an obligation 'affirmed' by the right to seek a deferral under clause 10.6 of the Project Agreement.580 It is beside the point that the Project Agreement did not in terms require payment of royalties, because the breach of the Law entitled the Minister to cancel.581 It is not credible that the Claimants could infer from the absence of a, confirmation that royalties had been deferred, and any deferral would have been prospective in any event.582 The Respondent rejects the Claimants' alleged understanding that royalties had been automatically deferred during Phase 11.583 The Respondent says the suggestion of a deferral is a recent invention inconsistent with contemporary documents and the Government never understood that it had granted a deferral.584 The Respondent says the Claimants were informed of the outstanding royalties in May 2003 and the 4 May 2005 meeting.585 It says the· Minister's action was reasonable.586 Finally, the Respondent says that the Government's ability to pursue royalties as a debt through the courts pursuant to section 25 cannot have been intended to displace the Minister's right under section 67 to cancel a mineral right where the holder has failed to pay royalties.587

(e) World Bank loan : The Respondent says that the Claimants' obligation to repay the loan is not denied.588 In 1999 the Claimants' request for a waiver of the loan was denied, and in 2002 SGMC sent copies of the finalized loan agreement to DCGL to execute.589 The Respondent also rejected the Claimants' allegation that they were entitled to a set-off of the liability and their dispute about the quantum actually disbursed.590 No loan terms had set because DCGL without excuse had refused to settle them,591 and so the Respondent alleges that 'Standard commercial loan terms' apply.592 The Respondent says that because the Project Agreement was 'the only arguable mineral right DCGL held', a breach of the contractual obligation to repay constituted a breach of the term of the mineral right sufficient to engage section 67 of the Minerals and Mining Law 1986.593 It says that DCGL had notice of the issue in May 2003 and at the 4 May 2005 meeting.594

(f) Quarterly reports : The Respondent points out that the failure to submit quarterly reports was identified in the Minerals Commission's letter in May 2003, and the Claimants' response that it was already filing monthly reports was not given then.595 Mr Aryee's evidence is that the quarterly reports that were required in divested projects were required to be more detailed than ordinary monthly production reports.596