A INTRODUCTION
King & Spalding International LLP
125 Old Broad Street
London EC2R 1AR
United Kingdom
E-mail: jsavage@kslaw.com
evidakgojkovic@kslaw.com
Tel : +44 20 7551 7500
Fax : +44 20 7551 7575
King & Spalding LLP
1700 Pennsylvania Avenue NW
Suite 200
Washington, DC 20006
United States of America
E-mail: kfleuriet@kslaw.com
crosenberg@kslaw.com
Tel: +1 202 626 8970
Fax: +1 202 626 3737
Hon. Foday Rado Yokie
Minister of Mines and Mineral Resources
Youyi Building
Brookfields
Freetown
Sierra Leone
E-mail: radoyokie@gmail.com
Mohamed Lamin Tarawalley (Solicitor-General)
Osman I. Kanu (Lead Counsel)
Mohamed P. Bangura
Lahai M. Farmah
Office of the Attorney-General and Ministry of Justice
Guma Building
Lamina Sankoh Street
Freetown
Sierra Leone
E-mail: lamintarawalley@yahoo.co.uk
Tel: +23276607918
E-mail: ozzykanu@yahoo.co.uk
Tel: +23276666089
E-mail: palobangs@yahoo.co.uk
Tel: +23278156290
E-mail: lahaimomohfarmah@gmail.com
Tel: +23276649647
Yada Hashim William
Osman Jalloh
Yada Williams & Associate
7 Walpole Street
Freetown 232
Sierra Leone
E-mail: Yadahw@yahoo.com
Tel: +23276611587
E-mail: jallohman@gmail.com;
Osman.jalloh@yadawilliams.com;
Jallohman@yahoo.com
Tel: +23278433326
Emergency Arbitrator
Professor Zachary Douglas QC
Applicant
John Savage QC, King & Spalding LLP
Ema Vidak Goijkovic, King & Spalding International LLP
Kenneth R. Fleurier, King & Spalding LLP
Charles B. Rosenberg, King & Spalding LLP
Alex Strong, SL Mining
Respondent
Osman Jalloh, Yada Williams & Associate
Mohamed Lamin Tarawalley (Solicitor-General)
Osman I. Kanu (Lead Counsel)
Mohamed P. Bangura
Alan Palmer
Office of the Attorney-General and Ministry of Justice
1. to allow SL Mining to immediately make one shipment of 60,000 WMT of iron ore concentrate in order to reduce the stockpile at the river port to its capacity of 120,000 WMT; and
2. to allow SL Mining to make four shipments of 50,000 WMT of iron ore concentrate each in order to reduce the stockpile at the production plant to below its capacity of 200,000 WMT.
61. For the reasons set out above, the Emergency Arbitrator, having heard from the Parties, hereby issues the following Interim Order:
61.1. The Government of Sierra Leone shall lift the prohibition on shipping introduced in the "Temporary Suspension Order of Mineral Rights – ML 01/2017" issued by the Minister of Mines and Mineral Resources on 3 July 2019 and reaffirmed on 24 July 2019 to allow SL Mining to make the following shipments:
61.1.1 one shipment of 60,000 WMT of iron ore concentrate in order to reduce the stockpile at the river port to its capacity of 120,000 WMT; and
61.1.2 four shipments of 50,000 WMT of iron ore concentrate each in order to reduce the stockpile at the production plant to below its capacity of 200,000 WMT.
61.2. SL Mining will pay the amount of USD 33,000 for each of the above shipments into an escrow account opened and administered by the Secretariat of the ICC in Paris.
61.3. The Emergency Arbitrator will exercise authority over the administration of the funds held in the escrow account until such time as an arbitral tribunal is constituted under Article 6.9 of the Agreement. Authority of the administration of the funds will be transferred to the arbitral tribunal upon the Emergency Arbitrator's receipt of a written request from the arbitral tribunal after its constitution.
61.4. The escrow arrangements stipulated in this Interim Order will terminate either (i) when the arbitral tribunal constituted under Article 6.9 of the Agreement has finally disposed of the Parties' claims and counterclaims and the funds held in the escrow account have been distributed in accordance with the directions of the arbitral tribunal or (ii) by mutual agreement of the Parties or (iii) otherwise by order of the Emergency Arbitrator or the arbitral tribunal constituted under Article 6.9.
62. The following steps shall be taken by the Parties to implement this Interim Order:
62.1. The Government of Sierra Leone shall confirm by an official communication to SL Mining and the Emergency Arbitrator that the prohibition on shipping has been lifted for the five shipments stipulated in paragraph 61.1 of this Interim Order within one hour of the issuance of this Interim Order.
62.2. Upon receipt of the Government's official communication referred to above, the Emergency Arbitrator will request the Secretariat of the ICC to open an escrow account. The details of that account will be transmitted to the Parties as soon as possible by the Emergency Arbitrator.
62.3. SL Mining shall pay USD 33,000 into the escrow account upon SL Mining's receipt of a nomination of a vessel by the buyer under the FOB contract entered into by SL Mining for each of the five shipments stipulated stipulated in paragraph 61.1 of this Interim Order;
62.4. In discharging its obligation in the preceding paragraph, SL Mining will provide a copy of the document recording the nomination of the vessel and proof of the transfer of funds to the escrow account to the Government of Sierra Leone and the Emergency Arbitrator within 24 hours of SL Mining's receipt of the nomination.
63. Both Parties have liberty to apply for a variation of this Interim Order but it shall remain in full force and effect pending any variation that may be made in writing by the Emergency Arbitrator in exercising his full discretion.
(i) the Interim Order of 30 August 2019 remains in full force and effect notwithstanding the Government's communication to the effect that it will be seeking a variation of the Interim Order;
(ii) the Government is obliged to comply with the Interim Order by virtue, inter alia, of Article 29.2 of the ICC Rules;
(iii) the Government has failed to comply with the Interim Order until the present time.
SL Mining's application for the imposition of a monetary penalty on the Government for its non-compliance with the Interim Order and for costs is reserved for the hearing on 6 September 2019.
Please note that Government has been informed about the Interim Order dated 30th August, 2019 and we await their response. However, as the Applicant Counsel should be well aware, the mode of execution against Government is different from that of execution against private individuals. We still want to register our willingness and readiness to participate in the emergency proceedings as we are of the firm conviction that we have a good case on merit to dismiss the applicant's application.
Since [the Emergency Arbitrator's directions at 13:10 on 5 September 2019] were issued, I have received three emails from Mr Mohamed Bangura on behalf of the Government. The first email (15:52) contains documents that were already unloaded to the electronic platform save that the Witness Statement from the Minister of Mines and Mineral Resources was filed for the first time. The second email (16:51) purports to attach the exhibits to this same witness statement, but none of the documents listed in the email are actually attached to it. The third email (17:36) attaches the first three exhibits to the witness statement.
The directions set out in my email below made it clear that no further evidence would be admitted after the deadline of 2pm London time on 5 September 2019. That deadline expired before the first email from Mr Mohamed Bungura on behalf of the Government. It was thereafter incumbent upon the Government to request the leave of the Emergency Arbitrator to file any further evidence before it was adduced. No such request has been made.
The Emergency Arbitrator is prepared, exceptionally, to allow the Witness Statement from the Minister of Mines and Mineral Resources onto the record. He will thus be invited to attend the hearing as a witness together with Mr Peter Kapr Bangura on behalf of the Government. No other evidence will be admitted onto the record at this stage. I will hear the Parties' submissions on how any documents filed by the Government after the deadline of 2pm London time today should be dealt with at the hearing tomorrow. For the avoidance of doubt, SL Mining will not be expected to address any documents filed after that deadline (save for the Witness Statement from the Minister of Mines and Mineral Resources) in its Rejoinder which is due to be filed later today.
SL Mining has requested, by its email today (16:59), an extension to file its Rejoinder until 10pm London time today. That extension is hereby granted.
I acknowledge receipt of the Government's email below by which it has applied to introduce evidence into the record after the deadline of 2pm London time on 5 September 2019.
I appreciate that the Government has had logistical problems in uploading its documents. The primary reason for the deadline, however, was to ensure that the Applicant had sufficient time to review the Government's evidence in order to be in a position to respond to it in its Rejoinder. That is no longer possible. It is also the case that the Applicant and its witness and the Emergency Arbitrator will not have sufficient time to review the evidence before the hearing either.
For these reasons, I will invite submissions from the Parties at the hearing as to how the evidence filed by the Government after the deadline should be dealt with in these proceedings. Until this issue is determined by the Emergency Arbitrator, the documents filed by the Government after the deadline will not form part of the record of this arbitration.
Emergency Arbitrator
Professor Zachary Douglas QC
Applicant
John Savage QC, King & Spalding LLP
Ema Vidak Goijkovic, King & Spalding International LLP
Kenneth R. Fleurier, King & Spalding LLP
Charles B. Rosenberg, King & Spalding LLP
Alex Strong, SL Mining
Craig Dean, Gerald Mining International
Respondent
Osman I. Kanu (Lead Counsel)
Mohamed Lamin Tarawalley (Solicitor-General)
Peter Kapr Bangura, Director of Mines
48.1. For the Applicant: Craig Dean, CEO of Gerald Mining International
48.2. For the Respondent: Peter Kapr Bangura, Director of Mines.
48.3. The Hon Foday Rado Yokie, Minister of Mines and Mineral Resources, although having submitted a witness statement, was not available to attend the hearing.
B GOVERNING LAW AND ARBITRATION CLAUSE
6.9 Interpretation and Arbitration
a) Except as may be otherwise herein expressly provided, this Agreement shall be construed, and the rights of GOSL and SL Mining hereunder shall be determined, according to the Laws of Sierra Leone.
b) The parties shall in good faith endeavour to reach an amicable settlement of all differences of opinion or disputes which may arise between them in respect to the execution performance and interpretation or termination of this Agreement, and in respect of the rights and obligations of the parties deriving therefrom.
c) In the event that the parties shall be unable to reach an amicable settlement within a period of 3 (three) months from a written notice by one party to the other specifying the nature of the dispute and seeking an amicable settlement, either party may submit the matter to the exclusive jurisdiction of a Board of 3 (three) Arbitrators who shall be appointed and carry out their mission in accordance with the International Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC). The venue of the arbitration shall be London, England. The English language shall be used in the proceedings. The award and any decision of the Arbitration Board shall be final and binding and enforceable in and by the courts of Sierra Leone upon either party having the same force and effect as a judgment of a court of the last resort of the Republic of Sierra Leone or any other appropriate jurisdiction.
d) In the event of any notified dispute hereunder, both parties agree to continue to perform their respective obligations hereunder until the dispute has been resolved in the manner described above.
C REQUESTS FOR RELIEF
72. SL Mining respectfully requests that the Emergency Arbitrator order the Government to:
72.1 lift the shipping prohibition within two (2) days from the issuance of the emergency order and inform SL Mining and the Emergency Arbitrator;
72.2 not take any steps or actions that restrict SL Mining from exporting all iron ore and associated minerals or mineral concentrates raised or obtained in the course of mining operations to any country other than countries to which the laws of the Republic of Sierra Leone prohibit such exports;
72.3 not take any steps to enforce the direction dated 24 July 2019 prohibiting SL Mining from all works in or over Licence No ML 01/2017 in respect to shipping, nor any steps in respect of SL Mining not complying with that direction;
72.4 not take any steps that would interfere with or prohibit SL Mining from engaging in activities permitted under the Large Scale Licence Agreement or Licence No ML 01/2017;
72.5 refrain from further aggravating the present dispute;
72.6 pay to SL Mining all costs associated with this Application, including but not limited to SL Mining's attorneys' fees and expenses, the fees and expenses of the Emergency Arbitrator, and the ICC administrative expenses; and
72.7 order any other relief that the Emergency Arbitrator deems just and proper.
73. SL Mining further requests that, pursuant to Article 1(6) of Appendix V of the ICC Arbitration Rules, the Emergency Arbitrator extend the 10 day deadline for submitting the Request for Arbitration until 14 October 2019 in accordance with the three-month waiting period in Clause 6.9(c) of the MLA, to the extent the Emergency Arbitrator determines that the waiting period applies here.
74. SL Mining reserves the right to amend the relief requested in this Application.
D JURISDICTION AND ADMISSIBILITY
1) A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal ("Emergency Measures") may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. Any such application shall be accepted only if it is received by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and irrespective of whether the party making the application has already submitted its Request for Arbitration.
[…]
5) Articles 29(1)-29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the "Emergency Arbitrator Provisions") shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories.
6) The Emergency Arbitrator Provisions shall not apply if:
a) the arbitration agreement under the Rules was concluded before 1 January 2012;
b) the parties have agreed to opt out of the Emergency Arbitrator Provisions;
or
c) the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.
58.1. The Emergency Arbitrator has jurisdiction by virtue of the incorporation of the ICC Rules by reference in the arbitration agreement in Article 6.9 of the Agreement, which has been signed and executed by both Parties (ICC Rules, Art. 29(5));
58.2. The dispute, which concerns the rights and obligations of SL Mining and the Government, clearly falls within the scope of the arbitration agreement in Article 6.9 of the Agreement;
58.3. SL Mining's Application was received by the ICC Secretariat before the transmission of the file to the arbitral tribunal (ICC Rules, Art. 29(1));
58.4. The arbitration agreement in Article 6.9 of the Agreement was concluded after 1 January 2012 (ICC Rules, Art. 29(6)(a)) and the Parties have not opted out of the Emergency Arbitrator Provisions or agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures (ICC Rules, Art. 29(6)(b) & (c));
58.5. The Application for emergency measures cannot await the constitution of the arbitral tribunal for the reasons set out in Section F3 of this Order.
E THE BACKGROUND TO THE AGREEMENT
F THE REQUIREMENTS FOR THE GRANT OF EMERGENCY MEASURES
The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where 'the balance of convenience' lies.
64.1. Is there a serious question to be tried?
64.2. Is the applicant exposed to irreparable harm?
64.3. Where does the balance of convenience lie? This final limb incorporates the question of urgency in the sense that the application will only succeed if there is a probability that the irreparable harm will occur.
65.1. "Executive Order No 1 Violated the MLA [the Minerals and Mining Act 2009] and the Constitution of Sierra Leone";
65.2. "The Licence Suspension Violated the MMA and the MLA";
65.3. "The Export Prohibition Violates the MMA and the MLA";
65.4. "The Government's Attempt to Impose Arbitrary and Unreasonable 'Terms and Conditions' to Allow SL Mining to Resume Shipping Violated the MMA, the MLA, and the Companies Act";
65.5. "The Government's Attempts to Intimidate and Damage SL Mining to Pressure It to Comply with the Government's Unlawful Demands Have Aggravated the Dispute".
Subject to Section 113(5), and Section 167 of the Minerals Act, SL MINING shall have the right to export all iron ore and associated minerals or mineral concentrates raised or obtained in the course of mining operations to any country other than countries to which the laws of the Republic of Sierra Leone prohibit such exports.
Today is a historic day. As Marampa Blue is a very high-grade ore, and coming from Sierra Leone, it sends a good signal to the world that this Country is ready for business. It is a feather to Sierra Leone's mining cap.15
TEMPORARY SUSPENSION ORDER OF MINERAL RIGHTS – ML 01/2017
By the powers vested in me under Section 52 of the Mines and Minerals Act 2009, I hereby direct that all work in or over the above licence in respect to mining, processing, hauling and shipping activities shall cease forthwith.
This order is imposed pursuant to Section 52(1) of the Act for the following reason(s):
• Contravened provisions of this Act and specific conditions of your mineral right and Mining Lease Agreement.
• Made statement to the government in connection with your mineral right which you knew or ought to have known to be false.
Most importantly, we have been advised by the office of the Attorney General and Ministry of Justice that they are seized of information pertaining to corrupt practices involving SL Mining Limited and they are intending to undertake much needed investigation regarding the same.
This temporary suspension shall lapse after twenty-one calendar days of the date herein unless lifted earlier by notice in writing or extended for such term as shall be directed.
Any suspension or cancellation as a consequence of this order shall be without prejudice to any liabilities or obligations under the licence regarding any provisions of the Act and its regulations before or after the date of the suspension or cancellation.
The Minister pledged his commitment to revisit all mining agreements, and cancel those that are not in the interest of the people of this Country, while also ensuring that Mineral Rights are given to credible investors. He called on the technical staff of the NMA to work with him in this direction and to ensure synergy between the Agency and the Ministry for the good of the country.16
In one of our meetings with the SL Mining, I categorically told them it was time for me to redeem myself and this country and make certain things right again. My intention by this statement was to ensure that all mining companies operating in Sierra Leone comply with our regulations. My statement I have learnt has been misquoted by the applicant to mean that I wanted to put unnecessary pressure on them to renegotiate the MLA.18
I write to invite you to a very important meeting on Monday 14th July 2019 at 10am in the Ministry of Finance Conference room. The purpose of the meeting is to follow up on initial discussions relating to the renegotiation of the existing Mining Lease Agreement between SL Mining Limtied and the Government of Sierra Leone.
I have attached to this letter a copy of the existing MLA [Agreement] for ease of reference.19
While I am aware that the twenty-one days (21 days) suspension period expires on 23rd July 2019 and that you are planning to recommence activities on 24th July 2019. I am directly that you limit all such activities to only mining processing and hauling.
I am further strongly directing that all works in or over the above licence (i.e. ML/01/2017) in respect to shipping remains temporary suspended until such a period when the issues outlined in my letter of 3rd July, 2019 are adequately addressed.20
Having reviewed the submitted documentation before us and giving due consideration to the facts we have been able to establish, I wish to inform you that as a matter of good faith, I could lift the restriction on the shipment of iron ore (Marampa Blue) from Sierra Leone provided that SL Mining Ltd satisfactorily fulfills the following terms and conditions:
1. Pursuant to clause 4.16 of the Mining Lease Agreement (MLA), SL Mining Limited to immediately pay to the Government of Sierra Leone (GoSL) USD 1 million Performance Bond, having failed to make substantial progress towards the re-opening of the Marampa Mine within a period of 12 months from the date of ratification of the MLA.
2. Pursuant to Clause 5.2 (c) of the said MLA, SL Mining Ltd to immediately commence and complete negotiations of an Advance Pricing Agreement with the GoSL establishing guidelines for determining the deemed arm's length sale value and price of such minerals for purposes of the calculation of royalty.
3. SL Mining Limited to immediately make full royalty payment for the three shipments undertaken in June 2019 and July 2019 of Marampa Blue in accordance with arm's length calculations as per the Mines and Minerals Act 2009.
4. SL Mining Limited to make advance payment of royalty to the GoSL for every five shipments of Marampa Blue in accordance with arm's length calculations as per the Mines and Minerals Act 2009.
5. SL Mining Limited to provide fully audited Financial Statements for 2017 and 2018 to enable the calculation of Chargeable lncome.
6. SL Mining Limited to agree with the GoSL on a phased payment plan for the use of Marampa Mining Asset (as per Section 54 of the Mines and Minerals Act 2009) valued by the GoSL at USD 16 million.
7. SL Mining Limited and GoSL to agree in principle to mutually revisit/renegotiate some of the clauses in the MLA against 30th September 2019.22
Subject to Section 113(5), and Section 167 of the Minerals Act, SL MINING shall have the right to export all iron ore and associated minerals or mineral concentrates raised or obtained in the course of mining operations to any country other than countries to which the laws of the Republic of Sierra Leone prohibit such exports.
52. (1) The Director, or any person authorised by the Director, may, in writing, order reconnaissance, exploration or mining operations to be temporarily suspended on an emergency basis, regardless of whether such operations are authorized by a mineral right, until such arrangements are made that are in Director's opinion necessary to prevent danger to life, property or the environment or to comply with this Act.
(2) The Director may cancel or vary the terms of any temporary suspension order.
(3) The Minister shall have the power to confirm a temporary suspension order made by the Director and may not delegate this power.
(4) A temporary suspension order shall lapse after twenty one days of its issuance, unless it is confirmed, in writing, by the Minister.
Location | Iron Ore Concentrate Stock As of 27 Aug. 2019 (WMT) | Normal Capacity (WMT) |
Production plant (PLO (Plant Load Out)) | 335,747 | 200,000 |
TLO (Train Load Out) | 210,857 | Not usually used for storage |
River Port (TRT (Thofeyim River Terminal)) | 183,716 | 120,000 |
Coasters | 9,510 | Not usually used for storage |
Total stockpiles: | 739,830 |
The stockpile at the production plant has more than 335,000 WMT of iron ore concentrate, which is significantly more than its 40,000-50,000 WMT working level capacity and 200,000 WMT maximum capacity. The stockpile at the river port has nearly 184,000 WMT of iron ore concentrate, which is significantly more than its 120,000 WMT capacity.26
28. Placing a mining project into care and maintenance can have grave consequences. Notably, the prior operators of the Marampa Project -London Mining Company and Timis SL - were unable to recommence operations and then entered into liquidation and receivership (respectively) after being placed into care and maintenance.
29. If the Marampa Mine is placed into care and maintenance, SL Mining will suffer significant and potentially permanent reputational harm. SL Mining earned an impressive reputation for being able to quickly restart iron ore production at the Marampa Mine. Unfortunately, that reputation has been damaged because customers and the market can see that no further shipments are being made. Our reputation will be harmed further if we are forced to stop production for a second time and place the mine into care and maintenance.
30. Placing the mine into care and maintenance will mean that SL Mining will be forced to lay off its employees and contractors. If this were to occur, then based on my experience, I expect that many of these individuals would obtain alternative employment and not return to SL Mining in the event that we later attempt to reopen the mine. They would have new employers, have possibly moved away from the area, and would be reluctant to rejoin SL Mining due to the uncertainty and risk of the Government ordering the mine to shut down again. Losing our experienced employees and consultants would significantly hinder SL Mining's ability to reopen the Marampa Mine in the future, as first-hand knowledge of the mine site, the mining seams, the processing machinery, and know-how are critical in the highly-techichal field of mining.
26 Email from SL Mining to the Government and the Emergency Arbitrator, 28 August 2019 (00:53).
31. I also fear that layoffs may lead to dangerous riots, protests, and civil disruptions, which may cause further damage to the mine site and impede or prevent SL Mining's ability to reopen the Marampa Mine in the future. I recall that serious riots, protests, and civil disruptions occurred when mines operated by Timis SL and African Minerals entered into care and maintenance in Sierra Leone.
32. There also is a high risk that local suppliers of the Marampa Project may go out of business and never reopen, which would further hinder our ability to restart the Marampa Project in the future and comply with our local content requirements.
33. Finally, there is a significant risk that forcing SL Mining to put the Marampa Mine into care and maintenance would permanently damage SL Mining's positive relationships with the local communities that it spent a considerable amount of time and resources to foster. SL Mining provides vital support to local schools and medical care in Sierra Leone. For example, in January 2019, SL Mining donated almost 100 tons of rice to communities surrounding the Marampa mine in support of the socio-economic welfare of families in the Lunsar region where the mine is located. Every registered household in Lunsar and the villages surrounding the mine received a 25 kg bag of rice, which recipients publicly acknowledged as the most generous charity in the history of mining operations at Marampa. If SL Mining is not in operation and unable to generate revenue, this support will no longer be provided which would be detrimental to the Lunsar and Port Loko communities and permanently affect SL Mining's future relations with the local communities.
i. Disposal of minerals to affiliates in breach of the agreed arm's-length sales obligation and without a prior Advance Pricing Agreement with Respondent;
ii. Failure to present documents requested pursuant to section 153 of the MMA;
iii. Failure to issue an obligatory performance bond in the sum of USD$ 1,000,000.00 to the Respondent and/or meet agreed targets; and
iv. Entering into an agreement with persons for the use of the operating assets of the Marampa Mine which were then under the legal custody and control of the Respondent without securing the consent or concurrence of the Respondent.
v. Failure to submit full audited financial statements for all periods since the formation of the SL Mining Company between October 2016 and October 2019.35
[W]e would ask that it be on terms that they could open an escrow account to be managed by the arbitration, and both parties be signatories to each and pay while the issues are being resolved 50 percent of -- on every shipment into the escrow account.36
MR. KANU: […] I'll just take you briefly to the three shipments have done. The first shipment done by MV Cooper, we believe that SL Mining and (inaudible) value on which the royalty (inaudible). Just for that shipment, we believe the Government of Sierra Leone slightly above around $60,000. And based on the three shipments you've done and --and the calculations that we've looked in accordance with our law, we believe that we're losing over $100,000.
MR. DOUGLAS: So for the three shipments in total, you believe that you've lost 100,000.
MR. KANU: Yes, over -- over that.39
d) In the event of any notified dispute hereunder, both parties agree to continue to perform their respective obligations hereunder until the dispute has been resolved in the manner described above.
G COSTS
The emergency arbitrator's Order shall fix the costs of the emergency arbitrator proceedings and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.
5 In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.
H ORDER
120.1. The Emergency Arbitrator has jurisdiction to issue this Order and the Application is admissible;
120.2. The Government of Sierra Leone shall lift the prohibition on shipping introduced in the "Temporary Suspension Order of Mineral Rights – ML 01/2017" issued by the Minister of Mines and Mineral Resources on 3 July 2019 and reaffirmed on 24 July 2019;
120.3. SL Mining will pay the amount of USD 33,000 for each of shipment made after this Order into an escrow account opened and administered by the Secretariat of the ICC in Paris;
120.4. The Emergency Arbitrator will exercise authority over the administration of the funds held in the escrow account until such time as an arbitral tribunal is constituted under Article 6.9 of the Agreement. Authority over the administration of the funds will be transferred to the arbitral tribunal upon the Emergency Arbitrator's receipt of a written request from the arbitral tribunal after its constitution;
120.5. The escrow arrangements stipulated in this Order will terminate either (i) when the arbitral tribunal constituted under Article 6.9 of the Agreement has finally disposed of the Parties' claims and counterclaims and the funds held in the escrow account have been distributed in accordance with the directions of the arbitral tribunal or (ii) by mutual agreement of the Parties or (iii) otherwise by order of the Emergency Arbitrator or the arbitral tribunal constituted under Article 6.9.
121.1. The Government of Sierra Leone shall confirm by an official communication to SL Mining and the Emergency Arbitrator that the prohibition on shipping has been lifted within two days of the issuance of this Order.
121.2. Upon receipt of the Government's official communication referred to above, the Emergency Arbitrator will request the Secretariat of the ICC to open an escrow account. The details of that account will be transmitted to the Parties as soon as possible by the Emergency Arbitrator.
121.3. SL Mining shall pay USD 33,000 into the escrow account upon SL Mining's receipt of a nomination of a vessel by the buyer under the FOB contract entered into by SL Mining for each shipment it makes following this Order;
121.4. In discharging its obligation in the preceding paragraph, SL Mining will provide a copy of the document recording the nomination of the vessel and proof of the transfer of funds to the escrow account to the Government of Sierra Leone and the Emergency Arbitrator within 24 hours of SL Mining's receipt of the nomination.
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