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.
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
