|List of Abbreviations
|ABL Solution||Anti-Bribery Laws Solution|
|Administration Order||The Administration Order issued by the Royal Court of Guernsey dated 6 March 2018 placing BSGR into voluntary administration|
|Base Convention||Basic Agreement between the Republic of Guinea and BSG Resources for the Exploitation of the Zogota I N'zerekore Iron Ore Deposits, between BSGR Guernsey, BSGR Guinea and the GoG, dated 16 December 2009|
|Boutros Contract||Subcontracting and Service Provision Agreement between LMS and BSGR Guinea|
|BSG Group||BSGR and related companies (unless otherwise defined)|
|BSG Metals and Mining||BSG Metals and Mining Limited|
|BSGR or Respondent||BSG Resources Limited|
|BSGR Guernsey||BSGR Resources (Guinea) Limited (incorporated in Guernsey)|
|BSGR Guinea||BSG Resources (Guinea) S.a.r.l|
|BSGR Guinea BVI||BSGR Resources (Guinea) Limited (incorporated in the British Virgin Islands)|
|BSGR-Pentler Milestone Agreement||Milestone Agreement between Pentler and BSGR Guinea BVI, dated 14 February 2006|
|BSGR Steel||BSGR Steel Holdings Limited|
|BVI||British Virgin Islands|
|Commission Contract||Commission Contract allegedly concluded between Matinda and BSGR Guinea BVI dated 27 February 2008|
|Concession Areas||Simandou Blocks 1 and 2 and Zogota|
|CPDM||Centre de Promotion et de Developpement Miniers|
|DOI||Descriptive Declaration of Importation dated 17 August 2009|
|FBI||United States’ Federal Bureau of Investigations|
|FCPA||Foreign Corrupt Practices Act (US)|
|February 2008 MoU||Memorandum of Understanding allegedly concluded between BSGR Guinea BVI and Matinda, dated 28 February 2008|
|Framework Agreement||Joint Venture Framework Agreement dated 30 April 2010 between the Claimant Vale and the Respondent BSG Resources Limited|
|GoG||Government of Guinea|
|IBA Rules on Evidence||IBA Rules on the Taking of Evidence in International Arbitration (2010, International Bar Association)|
|ICSID Proceedings||ICSID Arbitration Proceedings between BSGR and the Republic of Guinea registered as ICSID case no. ARB/14/22|
|I.S. Toure||lbrahima Sory Toure|
|Joint Venture Agreements||The Framework Agreement and the Shareholders Agreement|
|LCIA Rules||1998 Rules of Arbitration of the London Court of International Arbitration|
|LTS||Liberian Transport Solution|
|LMS||Logistics & Maintenance Services Sari|
|Matinda||Matinda and Co. Limited|
|Mme. Toure||Mamadie Toure|
|MoU||Memorandum of Understanding between BSGR Guinea BVI and the GoG, dated 20 February 2006|
|NMC||National Mining Commission|
|Nysco||Nysco Management Corporation Limited|
|Onyx||Onyx Financial Advisors Limited|
|Parties||Vale and BSGR|
|Pentler||Pentler Holdings Limited|
|Pentler-Bah Milestone Agreement||Milestone Agreement between Pentler, I.S. Toure and Bah, dated 20 February 2006|
|Pentler-Daou Milestone Agreement||Milestone Agreement between Pentler and lsmaila Daou, dated 20 February 2006|
|Pentler-Daou Shareholding Agreement||Shareholding Agreement between Pentler and lsmaila Daou, dated 20 February 2006|
|Pentler Shareholders Agreement||Shareholders Agreement between BSGR Steel, Pentler and BSGR Guinea BVI, backdated to 10 March 2006|
|Project Hills||The Project which was the subject of the Joint Venture Agreements|
|Rio Tinto||Rio Tinto pie|
|Rio Tinto Proceedings||Proceedings brought by Rio Tinto pie against Vale, VBG and BSGR and other defendants on 30 April 2014 in the Southern District of New York, docket no. 14-cv-3042|
|Services Agreement||Services and Co-operation Agreement between Pentler and BSG Metals and Mining Limited, backdated to 15 October 2005|
|Settlement Agreement||Settlement Agreement between Pentler and BSGR Steel, dated 25 July 2009|
|SHA||Shareholders' Agreement between Vale, BSGR and BSGR Guernsey dated 30 April 2010|
|Share Purchase Agreement||Share Purchase Agreement of Shares in BSG Resources (Guinea) Ltd between BSGR Steel and Pentler, dated 24 March 2008|
|Simandou Blocks 1 and 2||Blocks 1 and 2 of the Simandou iron ore deposit|
|Toure MoU||The Memorandum of Understanding signed by Pentler and Mme. Toure, dated 20 February 2006|
|UBO||Ultimate Beneficial Owner|
|USO||United States dollar|
|U.S. DOJ||United States Department of Justice|
|Vale or Claimant||Vale S.A.|
|Vale GmbH||Vale International Holdings GmbH|
|Vale International||Vale International S.A.|
|VBG||Vale BSGR Guinea Limited (Guernsey incorporated)|
|Zogota Feasibility Study||BSGR’s Feasibility Study for Zogota, completed at the end of October 2009 and submitted to the Ministry of Mines on 16 November 2009|
|Agnelli, Roger||Chief Executive Officer, Vale, 2001 to 2011|
|Antaki, Paul||New Business Development Manager, Vale|
|Avidan, Asher||Chief Executive Officer, BSGR Guinea; President, BSGR, May 2010to present|
|Bah, Aboubacar||Businessman from Mali who resided in Guinea|
|Bangoura, Issiaga||Security Director, BSGR|
|Barnett, David||Internal Counsel, BSGR|
|Boutros, Ghassan||Lebanese businessman; BSGR equipment supplier and alleged consultant operations|
|Camara, M'Bemba||Security Agent for the company "Fist Interim"|
|Camara, Moussa Dadis||President of the Republic of Guinea from 23 December 2008 to 3 December 2009|
|Cilins, Frederic||Principal of Pentler|
|Clark, David||Director, BSGR; Director and Group Treasurer, BSGR Guinea|
|Conde, Alpha||President of the Republic of Guinea from 21 December 2010to present|
|Conte, Lansana||President of the Republic of Guinea from 26 March 1984 to 22 December 2008|
|Cramer, Dag||Director, BSGR; Chief Executive Officer, Onyx Financial Advisors|
|Daou, Ismaila||Malian businessman|
|Doumbia, Mohammed L.||BSGR's local Guinean counsel|
|Etchart, Eduardo||General Manager for Exploration in Africa, Vale; presently Manager for the Evaluation of Mineral Resources, Vale Mozambique|
|Fofana, Ibrahima Kassory||Economy and Finance Minister of the Republic of Guinea from 1997 to 2000; principal of IF Global LLC; consultant to BSGR|
|Freeh, Louis||Attorney commissioned by the Balda Foundation to conduct an internal investigation into BSGR's acquisition of mining rights in Guinea|
|Hennig, Walter||South African businessman Allegedly attempted to "blackmail" BSGR|
|Kante, Ahmed||Minister of Mines of the Republic of Guinea from March 2007 to August 2008|
|Kleinfeld, George||Partner, Clifford Chance Advised Vale during the Project Hills negotiations|
|Konate, Sekouba||President of the Republic of Guinea from 3 December 2009 to 21 December 2010|
|Kouyate, Lansana||Prime Minister of the Republic of Guinea from March 2007 to May 2008|
|Ledsham, Eduardo||Exploration Department Executive Director, Vale from 2010-2011|
|Lev Ran, Avraham||Principal of Pentler|
|Lieberman, Joseph||Attorney commissioned by the Balda Foundation to conduct an internal investigation into BSGR's acquisition of mining rights in Guinea|
|Mebiame, Samuel||Gabonese businessman; alleged associate of Walter Hennig|
|Merloni-Horemans, Sandra||Director, BSGR and Onyx Financial Advisors'|
|Monteiro, Alex||General Manager of Corporate Mergers & Acquisitions Department, Vale from 2010-2011; Director of Mergers & Acquisitions Department, Vale from 2011-2014; presently Director of Production, Planning, Governance and Operational Excellence for Base Metals, Vale Canada|
|Nabe, Dr Lounceny||Minister of Mines of the Republic of Guinea between August and December 2008|
|Noy, Michael||Principal of Pentler|
|Oran, Roy||Chief Executive Officer, BSGR until April 2007|
|Pollak, Daniel||Business Development Manager and Consultant, BSGR; Country Manager, VBG Logistics|
|Saad, Ricardo||Director and CEO, VBG Guinea from 2010 to 2012|
|Saada, Patrick||Director, Steinmetz Diamonds Group from 1990 to 2007; Vice Chairman and Chief Marketing Officer of Octea Ltd from 2007 to 2013; Director of Koidu Holdings|
|Sidibe, Adama||Business associate of Ghassan Boutros|
|Souare, Dr. Ahmed Tidiane||Minister of Mines of the Republic of Guinea from 2005 to 2006 under President Lansana Conte; Prime Minister from May 2008 to December 2008|
|Soumah, Fode||Minister of Youth and Sports of the Republic of Guinea under President Lansana Conte|
|Soumah, Mamady Sam||Secretary General to the President of the Republic of Guinea under President Lansana Conte|
|Steinmetz, Benjamin ("Beny")||Beneficial owner of BSGR|
|Struik, Marc||Director, BSGR Guernsey, BSGR Guinea/VBG Guinea and BSGR BVI; CEO of BSG Metals and Mining from May 2007 to present|
|Tchelet, Yossie||Chief Financial Officer, BSGR|
|Teles, Leandro||Simandou Finance Manager and Project Leader for VBG Guinea from August 2010to June 2015|
|Thiam, Mahmoud||Minister of Mines of the Republic of Guinea from 2009 to 2010 under President Moussa Dadis Camara|
|Toure, lbrahima Sory (LS.)||Half-brother of Mamadie Toure Pentler's local partner; Director of External Relations, BSGR Guinea S.a.r.l, from 2007 to 2010; Vice-President, BSGR Guinea S.a.r.l from 2010 to 2011|
|Toure, Mamadie||Fourth wife of President Conte; owner of Matinda & Co. Ltd; "Confidential Witness" in FBI investigation|
|Toure, Sekou||President of Guinea from 1958 until 1984|
|Balda Foundation||Liechtenstein trust and BSGR's ultimate holding company, of which Steinmetz and his family are the sole beneficiaries|
|BSG Resources Limited||Respondent in this arbitration; wholly owned by Nysco; 100% owner of BSGR Guernsey, BSGR Guinea BVI, BSGR Guinea, BSGR Liberia, and BSGR Liberia BVI|
|BSG Resources (Guinea) Limited||BSGR subsidiary registered in the BVI Party to the Shareholders Agreement with Pentler|
|BSG Resources (Guinea) Limited||BSGR subsidiary registered in Guernsey; 100% owner of BSGR Guinea as of 2009|
|BSG Resources (Guinea) S.a.r.l.||BSGR subsidiary registered in Guinea; wholly owned by BSGR Guernsey as of 2009 Permit-holder ofBSGR's Guinean mining rights|
|BSG Resources (Liberia) Limited (Liberia) ("BSGR Liberia")||BSGR subsidiary registered in Liberia; wholly owned by BSGR Liberia BVI Permit holder of BSGR's Liberian mining rights|
|BSG Resources (Liberia) Limited (BVI) ("BSGR Liberia BVI")||BSGR subsidiary registered in Liberia|
|BSGR Treasury Services Limited (BVI)||BSGR subsidiary|
|BSGR Steel Holdings Limited||BSGR subsidiary; co-shareholder and party to Shareholders Agreement in BSGR Guinea BVI alongside Pender; party to Share Purchase Agreement with Pender regarding the buyback of its stake in BSGR Guinea BVI; party to Settlement Agreement with Pender|
|CW France||Pender affiliate|
|FMA International Trading (Pty) Ltd.||Pender affiliate|
|Koidu Holdings||BSGR subsidiary; diamond mining operation based in Sierra Leone|
|Logistic and Maintenance Services SARL||Company owned by Boutros; service and equipment provider to BSGR|
|Margali Management Corporation||Onyx subsidiary; sole director ofBSGR Steel; sole director of Pender until 15 February 2006|
|Matinda & Co. Ltd.||Company owned by Mamadie Toure|
|Matinda & Co. LLC||Limited liability company owned by Mamadie Toure|
|Nysco Management Corp.||Holding company registered in the BVI wholly owned by Balda; wholly owns BSGR|
|Onyx Financial Advisors S.A.||BSGR's English agent and management company; includes companies incorporated in the British Virgin Islands, Switzerland and the U.K.|
|Pentler Holdings||BVI shelf company sold by Onyx to Cilins, Lev Ran, and Noy in February 2006|
|Resources Advisory Services (BVI)||BSGR subsidiary used to procure advisory and consulting services for BSGR's operations in Guinea|
|Thiam & Co.||Company owned by former Minister of Mines Mahmoud Thiam|
|Vale BSGR Guinea Limited||Joint Venture company and owner of mining rights -formerly BSG Resources (Guinea) S.a.r.l.|
|Vale International Holdings GmbH||Wholly owned subsidiary of Vale, registered in Austria|
|Vale International S.A.||Wholly owned subsidiary of Vale, registered in Switzerland|
|Vale S.A.||A publicly limited company registered in Brazil|
|Windpoint Overseas Limited ("Windpoint")||BSGR affiliate|
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
NY 10006 New York
And by Mr. Jonathan Kelly of:
Cleary Gottlieb Steen & Hamilton LLP
City Place House
55 Basinghall Street
London EC2V 5EH
16.10 Governing Law; Arbitration
a) This Agreement is governed by English law. The Parties agree that all disputes arising out of or in connection with this Agreement, or with its negotiation, legal validity or enforceability, or with its consequences, whether the alleged liability shall be said to arise under the law of England or under the law of some other country, and whether the same shall be regarded as contractual claims or not, shall be exclusively governed by and determined only in accordance with English law.
b) Any dispute, controversy or claim arising between any of the Parties to this Agreement out of or in connection with this Agreement, including any question regarding the existence, validity, or termination of this Agreement, shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the London Court of International Arbitration (the "LCIA Rules"), which Rules are deemed to be incorporated by reference into this Section 16.10. There shall be three arbitrators, and the Parties agree that one arbitrator shall be nominated by each Party to the arbitration for appointment by the LCIA Court in accordance with the LCIA Rules. The third arbitrator, who shall act as the chairman of the tribunal, shall be nominated by agreement of the two Party nominated arbitrators within 14 days of the confirmation of the appointment of the second arbitrator, or in default of such agreement, appointed by the LCIA Court. The seat or place of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The award shall be final and binding on the parties to the arbitration and may be entered and enforced in any court having jurisdiction. Any request for arbitration shall be served on the other party pursuant to the notice provision in Section 16.2 of this Agreement.
c) In order to facilitate the comprehensive resolution of related disputes, and upon request of any party to an arbitration pursuant to this Section 16.10, an arbitral tribunal may, within 90 days of its appointment, consolidate the arbitration proceedings before it with any other arbitration proceedings or proposed arbitration proceedings involving the Parties. An arbitral tribunal shall not consolidate such arbitration proceedings unless it determines that (i) there are issues of fact or law common to the arbitrations in question so that a consolidated proceeding would be more efficient than separate proceedings and (ii) no party to the proceedings sought to be consolidated would be materially prejudiced as a result of such consolidation for any reason, including (a) a failure to have an equal say in the formation of the arbitral tribunal which would hear the consolidated proceedings, (b) a failure to be heard on the issue of consolidation or (c) undue delay. Unless the parties to the proceeding sought to be consolidated agree otherwise, the arbitral tribunal first formed shall determine the disputes arising in the consolidated proceedings. In the event of different rulings on the question of consolidation by differently constituted arbitral tribunals formed pursuant to this Section 16.10, there shall be no consolidation of proceedings unless all of the parties to the proceedings sought to be consolidated agree otherwise.
d) By agreeing to arbitration in accordance with this Section 16.10, the Parties do not intend to deprive any competent court of its jurisdiction to issue a prearbitral injunction, pre-arbitral attachment or other order in aid of the arbitration proceedings or the enforcement of any award. The arbitral tribunal shall have full authority to order a Party to seek modification or vacation of any order issued by a national court, and to award damages or give other appropriate relief for the failure of any Party to respect the arbitral tribunal's orders to that effect.
e) The Parties hereby waive their rights to apply or appeal under Sections 45 and 69 of the Arbitration Act 1996.
f) To the extent that any Party hereto (including permitted assignees of any Party's rights or obligations under the Agreement) may be entitled, in any jurisdiction, to claim for itself or its revenues, assets or properties, sovereign immunity from service of process, from suit, from the jurisdiction of any court, from attachment prior to judgment, from attachment in aid of execution of an arbitral award or judgment (interlocutory or final), or from any other legal process, and to the extent that, in any such jurisdiction there may be. attributed such a sovereign immunity (whether claimed or not), each Party hereto hereby irrevocably agrees, to the extent permitted by law, not to claim, and hereby irrevocably waives generally, to the extent permitted by law, such sovereign immunity.
g) Vale hereby confirms that it has irrevocably appointed TMF Corporate Services Limited at its registered office for the time being, being at the date hereof Pellipar House, 1st floor, 9 Cloak Lane, London, EC4R 2RU as its authorized agent for service of process in England of the kind described in Section 16.10(b) above. If for any reason Vale does not have such an agent in England, it will promptly appoint a substitute process agent and notify BSGR of such appointment. Nothing herein shall affect the right to serve process in any other manner permitted by law.
h) BSGR hereby confirms that it has irrevocably appointed BSG Management Services Limited, a company registered in England and Wales with registered no. 05459227 at its registered office for the time being, being at the date hereof Level 3, 7 Old Park Lane, London, W1K 1QR as its authorized agent for service of process in England of the kind described in Section 16.10(b) above. If for any reason BSGR does not have such an agent in England, it will promptly appoint a substitute process agent and notify Vale of such appointment. Nothing herein shall affect the right to serve process in any other manner permitted by law.
1. The initial phase of the arbitral procedure
2. Procedural Order No. 1 and Procedural Order No. 2
3. Respondent's Stay Application and Procedural Order No. 3
4. Procedural Order No. 4
5. Procedural Order No. 5 and U.S. Discovery
6. Second Stay Application
7. BSGR's Statement of Defence
8. Procedural Order No. 6
9. Procedural Order No. 7
10. Document Production and U.S. Discovery
11. Procedural Order No. 8
12. Procedural Order No. 9 and Second Decision on Document Production
13. Procedural Order No. 10
14. Third Decision on Document Production
15. Vale's Statement of Reply and Procedural Order No. 11
16. Further Document Production Issues
17. The Respondent's First Challenge against all three Tribunal members in May 2016
66.1. Ground 1: The Tribunal improperly delegated its role to the Secretary by systematically entrusting the Secretary with a number of tasks beyond what was permissible under the LCIA Rules and the LCIA Policy on the use of arbitral secretaries;
66.2. Ground 2: The Chairman breached his mandate as an arbitrator and his duty not to delegate by seeking the views of a person who was neither a party to the arbitration nor a member of the tribunal on substantial procedural issues (i.e. the Secretary);
66.3. Ground 3: The other members of the Tribunal equally breached their mandate as arbitrators and their duty not to delegate by not sufficiently participating in the arbitration proceedings and the decision-making process;
66.4. Ground 4: Circumstances existed which gave rise to justifiable doubts as to the Chairman’s independence or impartiality; these arose out of comments the Chairman had made at an international conference;
66.5. Ground 5: The Chairman breached his duty to maintain the confidentiality of the arbitral proceedings.
18. Procedural Order No. 12 and Procedural Order No. 13
19. Fourth Decision on Document Production
20. BSGR's Statement of Rejoinder
21. Procedural Order No. 14
22. LCIA Decision on the First Challenge
23. The Appointment of a New Chair by the Parties
24. The Appointment of a New Chair of the Tribunal
25. Vale's Rejoinder on Counterclaims
26. The Appointment of a New Chair by the LCIA
27. Respondent's Second Challenge to co-arbitrators Hwang and Williams and Procedural Order No. 16
28. Procedural Order No. 15. cancellation of hearing scheduled for 29 August -16 September. and establishment of educational hearing for 5 - 9 September 2016
29. Respondent announces it will not attend the Educatory Hearing until its Second Challenge was decided by the LCIA
30. Respondent announces it will not appear at the Educatory Hearing
Pre-Hearing Written Submissions and wrote to the Tribunal in response to BSGR, expressing the view that the Tribunal should proceed with the Hearing to resolve any outstanding procedural issues, and to schedule a merits hearing.
31. The 5-8 September 2016 Educatory Hearing
32. Respondent announces High Court Proceedings for removal of co arbitrators Hwang and Williams
33. Procedural Order No. 17 - Procedural Order following reconstitution of the Tribunal
34. Procedural Order No. 18
35. The Challenge to the ICSID Tribunal is denied
36. The LCIA Division dismisses the Second Challenge
37. Procedural Order No. 19
38. Respondent advises that it will not participate in the merits hearing
39. Procedural Order No. 20
40. English High Court dismisses BSGR application to remove arbitrators and for a document disclosure order
41. Procedural Order No. 21
42. Merits Hearing 20 - 22 February 2017
43. Procedural Order No. 23
44. Respondent's non-payment of deposit
45. Corrections to transcript
46. Claimant's application to introduce new exhibits and to amend its costs submissions
47. Procedural Order No. 24
(a) Vale's proposed amendment to its Submission on Costs; and
(b) The three Thiam documents it sought to admit into the record, as was the transcript of the FBI interview of Thiam that BSGR requested be admitted.
The Tribunal stayed the application to admit the ICSID transcript pending the Tribunal's deliberations and preparation of the Award. The application to admit the forensic report to be provided in the ICSID case was dismissed as premature, but BSGR was granted leave to apply to admit the report into the record if and when it became available.
48. Procedural Order No. 25
49. Administration Order and Procedural Order No. 26
155.1. acknowledged receipt of the Administration Order;
155.2. acknowledged BSGR's counsel's right to continue to represent BSGR based on Mishcon de Reya's representation that it continued to represent BSGR and without prejudice to the Tribunal’s decision as to the effects of the 6 March 2018 Order on the arbitration proceedings; and
155.3; requested the parties to comment further on the effect of the Administration Order on proceedings in this arbitration.
156.1. the Tribunal was not convinced that recognition of the Order in the UK could be obtained in a matter of weeks, as suggested by BSGR; and
156.2. it was unclear whether recognition would be granted by the English High Court.
167.1. First, the ICSID proceedings are separate proceedings with different substantive principles and procedural rules as compared to this arbitration. Whether a particular conduct involves breach of a treaty (as alleged in the ICSID proceedings) is not determined by asking whether there has been a breach of contract or the commission of a tort, which are the key issues in this arbitration. As a result, it is difficult to know what, if any, weight could be given in this arbitration to evidence received from that proceeding. This is particularly so in relation to the transcripts of witness evidence where neither the Tribunal nor the Claimant in this arbitration had any opportunity to observe and evaluate the relevance of such evidence or assess the credibility of the witnesses or ask questions of them.
167.2. Secondly, BSGR - in the Tribunal’s opinion-failed, save for the forensic report, to specifically indicate what precise evidence from the ICSID proceedings it sought to submit. Instead, BSGR sought to submit the full ICSID hearing transcript without any sufficient precision as to what material was relevant and why. To have accepted this evidence would have risked reopening the full LCIA arbitration or major parts of it The same holds true for BSGR’s request to submit the ICSID hearing transcripts in relation to six Guinean fact witnesses, three of whom were heard by this Tribunal. Although the latter three are easily identifiable by the Tribunal, the identity of the other three Guinean fact witnesses heard by the ICSID Tribunal but not by this Tribunal, was not disclosed nor was the precise scope of their witness evidence in the ICSID proceedings explained to this Tribunal. Indeed, as a matter of principle, the Tribunal would, absent exceptional circumstances, take the view that the findings of another tribunal between different parties on different issues would not be binding on this Tribunal or even relevant to its inquiry. And if the findings of such other tribunal are not relevant, it follows that, again subject to exceptional circumstances, the evidence in support of such findings would be equally irrelevant.
167.3. Thirdly, leaving aside the issue of specificity just discussed, the Tribunal considers that BSGR did not make a sufficiently compelling case that the evidence from the ICSID proceedings it intended to submit in these proceedings was sufficiently relevant to this case or material to its outcome. For example, with regard to the six Guinean fact witnesses, BSGR failed to indicate to what extent the witness evidence of the three Guinean witnesses heard in these proceedings, Ahmed Kanté ("Kanté"), Dr. Louncény Nabé ("Nabé") and Dr. Ahmed Tidiane Souaré ("Souaré") (all former Minister of Mines), was identical, similar or contradictory to their evidence in the ICSID proceedings and whether that was relevant or material in this case. Similarly, the Tribunal is not convinced that the evidence of the three other Guinean fact witnesses before the ICSID Tribunal would be relevant or material to the issues to be decided by this Tribunal, which differ considerably from those at issue in the ICSID proceedings. Moreover, it was never suggested by BSGR that these witnesses were to be called before this Tribunal for examination and without hearing these witnesses it would of course be difficult, if not impossible, to assess their veracity. This is particularly so in light of the fact that the corruption issues addressed by this Tribunal as part of the misrepresentation and warranty allegations primarily concern the interaction between Mamadie Touré ("Mme. Touré") (fourth wife of President Conté) and Pentler Holdings Limited ("Pentier") as to which other members of the GoG did not have first-hand knowledge.
167.4. Fourthly, in relation to Kanté, Nabé and Souaré, BSGR chose not to appear at the Merits Hearing and thus not to cross examine these witnesses produced by Claimant.
167.5. Fifthly, regarding the forensic expert report, BSGR did not apply for leave to submit the actual forensic report, if any, produced in the ICSID proceedings. The Tribunal would have considered this request on its merits, had BSGR decided to make such a request when the report became available.
167.6. Finally, regarding the Post-Hearing Briefs, the Tribunal considers that a request for submission of evidence from other proceedings does not extend to pleadings and submissions in these other proceedings. The Post-Hearing Briefs merely contain the submissions of BSGR, which would presumably make reference to the evidence of certain witnesses but would not contain the actual testimony of such witnesses (except possibly on a selective basis) nor the context in which selected extracts of such testimony was given. There can be no evidential value in submissions, as opposed to testimonial evidence, which has already been discussed in paragraphs 167.2 and 167.3 above. Consequently, there is no sound basis upon which the Briefs should have been admitted in these proceedings.
170.1. The rule under English common law was that hearsay evidence is generally inadmissible, subject to certain limited exceptions. The orthodox justification for this rule is that hearsay evidence is not the "best evidence". However, while the rule may sometimes serve to promote accurate truth-finding, the rule has been criticised on the basis that hearsay evidence in certain cases may well be highly reliable (and sometimes the only available) evidence. In recognition of these criticisms, the U.K. Parliament passed the Civil Evidence Act 1995 which virtually abolished the rule in civil proceedings.
170.2. Another rule in English common law was that a judgment in personam delivered in civil or criminal proceedings is generally inadmissible against a stranger as evidence of the facts found or legal conclusions drawn in that judgment.
170.3. The governing law of the dispute in this arbitration is English law and the arbitration is seated in London. However, the Tribunal is not bound to apply the strict rules of evidence at common law, because it is empowered by section 34(2)(f) of the English Arbitration Act 1996 and Article 22(f) of the LCIA Rules 1998 to decide "whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion" (subject to the Parties’ right to agree otherwise). This is consistent with Article 9(1) of the IBA Rules on Evidence9, which requires the Tribunal to "determine the admissibility, relevance, materiality and weight of evidence" without specifying the rules to be applied to make that determination. This effectively confers upon the Tribunal a discretion to decide these issues.
170.4. In the experience of all members of the Tribunal, the general practice in international arbitration is that arbitral tribunals would (in the absence of special circumstances) refrain from excluding evidence on technical grounds of inadmissibility, and evaluate the relevance, credibility, and weight of the evidence instead. The Tribunal’s settled approach to hearsay evidence and earlier judgments tendered in this arbitration is therefore to regard them as admissible, but to assess their weight individually, having regard to the surrounding circumstances that would shed light on their reliability. For example, in respect of witness testimony in other proceedings by persons who are not called as witnesses in this arbitration, such as Mme. Touré’s written statement to the U.S. authorities (which the Technical Committee relied on in its Report)10 and Ghassan Boutros’ oral testimony in Guinean and Swiss proceedings,11 the Tribunal considers that the accuracy of these testimony and the credibility of the persons giving these testimony are particularly vital, because they bear upon critical (and deeply contested) factual issues in this arbitration. These are qualities which can only be tested in cross-examination, and the Tribunal would ascribe little, if any weight to such testimony if the persons giving such testimony have not been called as witnesses in this arbitration.
[Onyx is] an ostensibly "independent" company that is the financial arm of the Beny Steinmetz Group. BSGR has admitted that Onyx is related to BSGR. The Onyx name has been used by the Beny Steinmetz Group in several jurisdictions. Indeed, "Onyx’s former name was BSG Management Services Limited, which was changed to Onyx on 7 March 2011." There are clear ties between the two companies, including an overlap in directors and officers, such as Dag Cramer and Sandra Merloni-Horemans. Onyx Financial Advisors even shares an address with BSGR.14
This letter serves to clarify the relationship between BSGR (Guinea) and Pentier with regards to the Simandou iron ore project, located in the Republic of Guinea.
BSGR (Guinea) affords Pentier an interest of 15% (free carry) in the Simandou iron ore project. In order to effect this interest, the 17.65% shareholding in BSGR Guinea will be made available to Pentier.
Further details of the relationship will be formulated in a Shareholders' Agreement.
With specific regard to the Simandou iron ore project, success fees are based on the mutually agreed milestones as shown in the table overleaf.
Pentier has agreed to continue its efforts to reach an agreement for Blocks 1 and 2, and assist in acquiring these blocks for the Simandou iron ore project and assist in any possible manner with the Simandou iron ore project.
201.1. Pentier "agrees to offer its deal flow in the mining sector to BSGR" (clause 3.1); and
201.2. the Parties "hereby agree to provide consideration to the other Party for their respective cooperation as they may agree upon from time to time on a case by case basis" (clause.4.1).
244.1. a payment of USD 50,000 in early 2009; and
244.2. a payment of USD 998,000 on 3 September 2009 from Ghassan Boutros ("Boutros") (Lebanese businessman and allegedly BSGR’s agent/consultant), plus an additional $2,000 from Boutros in December 2009.
270.1. review of documents provided by BSGR in an electronic data room;
270.2. separate review of the principal entities and persons connected with Project Hills;
270.3. legal advice from local counsel in Guinea regarding compliance with local law;
270.4. two compliance due diligence questionnaires addressed to BSGR;121
270.5. a legal due diligence questionnaire and a financial due diligence questionnaire which included questions related to anti-bribery and corruption issues;122
270.6. a follow-up due diligence request list dated 4 April 2010;123
270.7. anti-bribery certifications by BSGR as an entity given by David Clark ("Clark") (Director of BSGR) and an additional certification given by Steinmetz personally;
270.8. interview of BSGR’s principals in London (Avidan, Tchelet, Struik and Cramer);124 and
270.9. FCPA contractual protections, including several representationsand warranties.
276.1. USD 149,970 on 21 July 2010;
276.2. USD 100,000 on 27 July 2010; and
276.3. USD 50,000 and USD 99,970 on 5 August 2010.
279.1. Pentier and Mme. Touré allegedly signed an agreement on 8 July 2010 whereby Mme. Touré would receive USD 5 million from Pentier. The payment was subject to the "proper implementation and functioning and the next stages of the operation conducted by our partners on the Simandou project in Guinea."142 Of the five agreements detailed in this paragraph, there are two agreements that reference the Simandou project by name: the one referred to in this subparagraph and the one referred to in the following subparagraph. BSGR alleges (based on Noy’s written evidence) that the agreement referred to in this subparagraph is a forgery.143
279.2. On the same date, Mme. Touré and Pentier appear to have entered into another contract. The Tribunal has been provided with a translation of this contract (which was disclosed by BSGR during the arbitration) but it has not seen the original.144 Its terms are similar to those in the undated agreement described below at paragraph 279.5, but the amount to be paid was USD 5.5 million. The contract also specifically states that Mme. Touré "agree to delivery [sic] all the originals & copies of the documents and agreements signed with the company Pentier Holdings Ltd. & its partners with regard to the SIMONDOU project in Guinea".
279.3. On 3 August 2010, Mme. Touré and Pentier signed an agreement under which she would receive an "extra sum" of USD 5 million over the next four years following the successful completion of the next stages of Pentier’s activities in Guinea.145 Matinda agreed to "refrain from making use of this document... against company Pentier and/or its partners and/or its associates in Guinea." Mme. Touré agreed to take responsibility for "all actions taken in Guinea by any third party against Pentier and/or its associates".
279.4. Yet another agreement, also signed on 3 August 2010, provided that Mme Touré would receive the sum of USD 5.5 million for her "participation in all activities conducted in Guinea."146 Noy gave evidence that the two agreements of 3 August 2010 (which totalled USD 10.5 million) provided Mme. Touré with her share of the buyback money paid to Pentier by BSGR for the shares in BSGR Guinea BVI (i.e., 33% of USD 30 million).147
279.5. An undated "Agreement" references Pentier’s role in Guinea as "advisor and business provider" in the commercial, mining and medical fields and the contribution Matinda had made to Pentier’s success in those areas. Under that agreement, in recognition of that contribution, Matinda would receive USD 3.1 million.148 Noy has explained that this was the balance of the 5.5 million initially promised (2.4 million of which had already been paid).149 This agreement also guaranteed the "absolute confidentiality" of all common business conducted in Guinea and that Matinda would not contact any of the Guinean companies with which they had collaborated. The agreement also formally terminated all previous contracts and obligations between the two parties. Finally, Matinda undertook responsibility for any "complaints, actions, concerns or any other requests" filed by Guinean institutions against Pentier.
279.6. There is also a statement confirming that Matinda had received USD 2.4 million from Pentier pursuant to a "collaboration agreement" signed in 2005.150
Although we never formally transferred 33% of Pentier to Mamadie Touré, we felt we had entered into an agreement with her and therefore it was right to pay her. We had just received most of the $30 million agreed with BSGR for our share in BSGR (Guinea). I therefore calculated that a fair sum to pay Mamadie Touré for her share was around $10 million.
294.1. Vale claims that BSGR made fraudulent misrepresentations during the due diligence phase of contractual negotiations which induced Vale to enter into the joint venture with BSGR. Vale seeks relief in the form of rescission of the Framework Agreement and the SHA and damages in the amount of USD 1.45 billion (plus interest); or
294.2. Vale claims that BSGR breached certain warranties provided in the joint venture agreements. Vale claims damages of USD 1.45 million (plus interest) for this breach; or
294.3. Vale seeks a declaration that the Framework Agreement and the SHA are discharged by frustration, with restitution in the amount of USD 1.45 billion (plus interest).
THE CHAIRMAN: Before you continue, if I may interrupt, can you explain to us what the relationship is between these three different freestanding causes of action? Is one an alternative cause of action, an alternative prayer for relief, as to the former one? You want us first to rule on fraudulent misrepresentation. If the end result is, dismissed, then we go to breach of warranty. If the end result is, dismissed, then we go to frustration? Is that how we have to see that relationship?
MR KELLY: Yes, Mr Chairman, that certainly may be one way of approaching the legal analysis. In practice, you will be looking at the same facts with each of those different legal cloaks on on those facts. So the fraudulent misrepresentation, if we cannot prove that BSGR was dishonest, that cause of action falls away. Into its place steps breach of warranty, which doesn't require dishonesty for these purposes. That requires an objective assessment of what the contract meant and what in fact happened. If that falls away, you look at frustration. Then you look at what were the circumstances and events surrounding the frustrating event, the revocation of the licences, and, to an extent, you then may have to look back at the involvement of one or other of the parties and whether they provided for it in their contract.
THE CHAIRMAN: It is the same question again, so to clarify, the road map for the Tribunal requested by Claimant is: first look into our fraudulent misrepresentation cause of action, then look into breach of warranties, and then only then look to frustration. Is that how we need to understand the relationship between the three causes of action?
MR KELLY: Correct.177
299.1. Mme. Touré, the fourth wife of President Conté, who influenced her husband to award mining rights to BSGR. Vale alleges that Mme. Touré received millions of dollars in illicit payments in return for exercising her influence over the President and other officials in BSGR’s favour. She also provided access to the President for BSGR. In addition to the payments, she allegedly received a 5.88% indirect interest in BSGR Guinea through Pentier and other gifts, such as two Land Cruisers in July 2008.179
299.2. Mohammed Thiam, Minister of Mines from 2009-2010. Vale submits that Thiam oversaw key steps in confirming BSGR’s rights prior to the signing of the Base Convention granting BSGR the right to exploit Zogota (Simandou South). Vale contends that BSGR bribed Thiam to help "fend off Rio Tinto’s challenges to BSGR’s newly-acquired rights"180 and to assist in attracting potential joint venture partners (including Vale). Vale alleges that Thiam helped to induce it to enter into the Framework Agreement and Shareholders Agreement with BSGR by providing assurances that the mining rights had been legally obtained. Vale submitted evidence that BSGR rewarded Thiam for his assistance through (a) the purchase of real estate in the US (funds to acquire a USD 3.75 million property at 771 Duell Road in Dutchess County, New York181), (b) reimbursement for travel and (c) payments totalling approximately USD 23,000. According to BSGR’s own witnesses these payments "would have been connected to work that BSGR was doing with Mr Thiam" and indeed "likely" related to BSGR’s mining rights;182 and
299.3. President Conté was given gifts by BSGR, including:
299.3.1. a gold watch presented by Oron inlaid with Steinmetz diamonds, which had an approximate value of USD 60,000;183
299.3.2. a miniature Formula 1 car plated in gold and diamonds was presented to President Conté by Struik and another such car had been previously given to Souaré (Minister of Mines) who also gave the car to the President.184
300.1. Pentier and its principals should have been disclosed as BSGR’s consultants, agents and/or intermediaries.
300.2. Contracts between BSG entities and Pentier should have been included in the data room. These include the BSGR-Pentler Milestone Agreement, the Shareholders Agreement, the Share Purchase Agreement and the Settlement Agreement.
300.3. Pentier should have been revealed as the "minority shareholder" of the BSGR Guinea BVI shares that were the subject of the USD 22 million buyback.
300.4. The assistance Pentier provided in obtaining the mining rights should have been revealed.
302.1. Avidan stated in his written evidence in this case that he made a point of meeting with Mme Touré on many occasions and contemporaneous emails from Avidan described her as one of the "key people" in Guinea for advancing BSGR’s plan to obtain mining rights. This is supported by Mme. Touré’s attendance at many of the key meetings between BSGR and the President of the Republic of Guinea. Vale alleges that Mme. Touré was responsible for arranging many of these meetings.185
302.2. Three contracts between BSGR and Mme. Touré (dated 20 June 2007, 27 and 28 February 2008 respectively) which Cilins attempted to get Mme. Touré to destroy in 2013. Vale rejects BSGR’s assertions that these contracts were forgeries, and notes that BSGR’s records show that it produced company stamps around the time the February 2008 contracts were signed.186 Vale points out that the contracts were signed in duplicate, which accounts for any discrepancies in the place and date of signing,187 and that Cilins’ efforts to get the contracts destroyed also supports the conclusion that they were genuine.188
304.1. all relevant consulting agreements had been disclosed;
304.2. all relevant documents and information relating to the share capital and ownership had been disclosed;
304.3. all requested contracts, including those incapable of performance within six months of date of entry and contracts otherwise than at arm’s length had been disclosed;
304.4. all material settlements and potential litigation had been disclosed;
304.5. no BSGR personnel/shareholder or their families were Government Officials;
304.6. BSGR was not involved in the Government’s decision to revoke Rio Tinto’s mining rights;
304.7. BSGR had no financial or business relationship with any Government Official or spouse;
304.8. BSGR had not made any payments to Government Officials in connection with obtaining the mining rights; and
304.9. BSGR had not engaged in bribery or corruption.
307.1. Cilins’ conviction in the United States for obstruction of justice, based on recorded conversations with Mme. Touré, where she was asked to destroy incriminating documents and to lie about her association with BSGR.
307.2. Contracts between Pentier and Mme. Touré and between BSGR and Mme. Touré for the payment of substantial sums of money in return for her assistance in obtaining the mining rights.
307.3. Witness accounts of Mme. Touré’s attendance at meetings regarding the mining rights and her influence over her ailing husband.
307.4. Records of payments made to Mme. Touré, Pentier and others for which BSGR has provided no plausible explanation. For example, Pentier received around USD 34.5 million from BSGR, which cannot be explained by the limited role BSGR suggests Pentier played in introducing BSGR to the initial opportunity.
309.1 Section 2.1 of Schedule 4 to the Framework Agreement "The information in [the] [Framework] Agreement, Disclosure Bundle and Disclosure Letter is accurate in all material respects".
309.2. Section 3.1 of Schedule 4 to the Framework Agreement: "The business of each BSGR Guinea Group Company has been carried out in compliance with all Applicable Law".
309.3. Section 3.2 of Schedule 4 to the Framework Agreement: "no BSGR Guinea Group Company is aware of the existence of circumstances which represent a real threat that any Relevant Permit [...] is likely to be revoked".
309.4. Section 3.5 of Schedule 4 to the Framework Agreement: No corrupt payment was made to a Government Official.
309.5. Section 3.6 of Schedule 4 to the Framework Agreement: No violation of the OECD Convention on Bribery of Foreign Public Officials in International Business Transactions was committed.
309.6. Section 4.2 of Schedule 4 to the Framework Agreement: "No litigation [or other proceedings] are threatened or pending by or against any BSGR Guinea Group Company [...] which would adversely affect any BSGR Guinea Group Company in the performance of its obligations under [the] [Framework] Agreement".
309.7. Anti-corruption warranties contained in Section 16.1 of the SHA.
311.1. Vale addresses BSGR’s submission that it was under no duty to disclose Pentier because of the limited scope of Vale’s due diligence requests, that it was indeed advised not do so to by its legal counsel (Skadden Arps) and that in any case Pentier was implicitly disclosed. Vale asserts that BSGR not only failed to disclose the existence of Pentier, but also took affirmative steps to hide any connection between itself and Pentier or its principals.192 Vale also submits that BSGR’s reliance on Skadden Arps' alleged advice was not credible.193 It suggests BSGR’s claim that Pentier was "disclosed" implicitly further evidences BSGR’s obfuscation.194
311.2. Vale submits that BSGR failed to produce any evidence suggesting a legitimate reason for granting Pentier a 17.65% interest in the mining rights, let alone making a payment of such a large sum for that interest.195
311.3. Vale submits that BSGR’s arguments regarding Mme. Touré’s lack of credibility are meritless. Vale has provided evidence in support of its assertion that Mme. Touré has not profited from testifying in the US Department of Justice criminal investigation.
311.4. Vale asserts that BSGR’s "internal investigations" expose rather than disprove BSGR’s involvement in corruption. The investigations were "deeply flawed" as they were commissioned by BSGR and the investigators were on BSGR’s payroll.196
312.1. USD 500 million paid for a 51% participation in the joint venture;
312.2. USD 781 million in loans provided to VGB as operating funds (this includes loans totalling approximately USD 581 million, plus interest of USD 199 million as at 29 April 2014);
312.3. USD 85.4 million to fund the feasibility study;
312.4. USD 80.5 million costs relating to personnel, travel, services, and other costs incurred by Vale to support the joint venture’s operations outside of Guinea in 2010-2013.