Having read the "Decision on Jurisdiction" in full: why...

Having read the "Decision on Jurisidiction" in full: why would parties invest in Indonesia after read the Indonesian Gov+t's arguments. 

Now this is a little verbose and I'm not known for Brevity, for those followers not interested I would recommend ignoring this post in its entirety. Parties should ideally read all the document, I've made a few notes (thoughts) specifically relating to the analysis and continuing issues. You may have downloaded the document already but for those parties looking to take the risk, common sense prevails that the Jurisdictional Decision is the most useful document so far. 

Churchill Mining the Case So Far

Items to Read Page 30 V Analysis

Very interesting item 87 – which clearly upholds Churchill Planet’s rights to protection under the BIT agreement. Reaffirmed by Item 88. As per below:

 87. Article 25(1) of the ICSID Convention reads in relevant part as follows: The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State […] and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.

88. Accordingly, Article 25 of the ICSID Convention provides for four requirements for jurisdiction. There must be (i) a dispute between a Contracting State and a national of another Contracting State,100 (ii) of a legal nature, (iii) arising directly from an investment,101 and (iv) the Parties must have consented in writing to arbitration.

More importantly:

90. Article XI of the BIT reads in relevant part as follows:

1. In the event of a dispute between a Party and an investor of the other party relating to an investment, the parties to the dispute shall initially seek to resolve the dispute by consultations and negotiations.

2. In the event that such a dispute cannot be settled through consultations and negotiations, the investor in question may submit the dispute, for settlement:

a. in accordance with the laws and regulations of the Party which has admitted the investment to the competent judicial or administrative bodies of that Party; or

b. to the International Centre for the Settlement of Investment Disputes (“the Centre”) for the application of the conciliation or arbitration procedures provided by the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“the Convention”).

[…]

4. Where a dispute is referred to the Centre pursuant to sub-paragraph 2(b):

a. where that action is taken by an investor of one Party, the other Party shall consent in writing to the submission of the dispute to the Centre within forty-five days of receiving such a request from the investor; or

b. if the parties to the dispute cannot agree whether conciliation or arbitration is the more appropriate procedure, the investor affected shall have the right to choose.

91. It is undisputed that Indonesia is a Contracting Party of the BIT, and that Planet qualifies as an “investor of the other party”, i.e. of Australia. It is equally undisputed that the dispute is “relating to an investment”.

Page 29 in its entirety covering consent and the assumption of ‘non-consent’ and has to be established on evidence.

Item 116 about Indonesia’s viewpoint – warped and mislead.

Items 203-208 & continuing to 215 where they focus on the small print and deliberate manipulation of the terms to avoid “giving or expressing” consent from the President in my view.

Amazing summary really, but more importantly outlines the risks associated with ‘approvals’ and also the licenses approved for the conduct of 'which' type of business. Indonesia’s argument about conducting “mining” activities is a mere distraction. The balance is that Churchill and Planet acted properly and were approved to invest in the associated structures that Indonesia now contends as illegal operations and fabrication of facts / documentation.

This case, when read in full just on the jurisdictional issues, clearly shows Indonesia’s contempt just for “consent” to International Arbitration nevermind the reluctance to be willing to comply with the process.  Exciting times ahead in my view, nevermind the potential, but not without acknowledging the “claims” made by Indonesia that hint at their defence for why they should not be held accountable or made to comply with the Indonesian/Australian BIT agreement. These facts, I would invite people to consider fully rather than make assumptions of a clear ‘cut’ victory.

One thing outstanding, and as mentioned previously is Churchills need for finance, the Directors have already shown a willingness to conserve cash by the payment of renumeration/salaries via share issue. This however won’t pay lawyers unless a funding agreement whether direct or via third party funder is agreed. Admittedly Churchill have so far been prudent in their fundraisers, it doesn’t not guarantee the future equity placings will also be at a premium.

All the best, Fraser