Im curious. - do you know for a fact, that DRC have applied for an extension for their response comments, or is this speculation?
AVZ Discussion 2022
- Thread starter GazDix
- Start date
Mr_Tones83
Regular
I just checked that too. Yesterday was still saying latest development was 16th Jan... some movement at the station, not sure what it means though
An explanation would be nice though... as well as an update on ICC which was handing down their ruling on jurisdiction for Zijin 'late January'.
Carlos Danger
Top 20
The point of my post yesterday was to highlight the denial of responsibility by the DRC government. They see us as the bad guys that according to the MoM's decree a year ago are 'holding the project hostage' and they will self rationalise complete nonsense to absolve themselves of their wrong doing. Cominiere's immediate reaction to the interim orders on Twitter was to question the applicability of the decision. If anything the DRC government are asking for annulment or revision of the interim orders on interpretation grounds. But all this talk of FiNaL oRdErS is absolute copium based on both the ICSID rules and AVZ's official announcement being wrong.
Provisional Measures - ICSID Convention Arbitration (2022 Rules) | ICSID
Except as the parties otherwise agree, the Tribunal may recommend any provisional measures necessary to preserve the parties’ rights (Article 47 of the ICSID Convention, Arbitration Rule 47). For example, a party may request provisional measures to:
Provisional Measures - ICSID Convention Arbitration (2022 Rules)
Except as the parties otherwise agree, the Tribunal may recommend any provisional measures necessary to preserve the parties’ rights (Article 47 of the ICSID Convention, Arbitration Rule 47).
For example, a party may request provisional measures to:
• prevent action that is likely to cause current or imminent harm to that party or prejudice to the arbitral process (e.g., preventing prejudicial interference by one party)
• maintain or restore the status quo (e.g., staying parallel domestic or arbitral proceedings, or staying the execution of administrative decisions)
• preserve evidence that is relevant to the resolution of the dispute.
Provisional measures may be sought at any time during the proceeding. The party requesting provisional measures must specify the rights to be preserved, the measures requested, and the circumstances that require such measures (Arbitration Rule 47(2)(a)). The Tribunal determines the briefing schedule in consultation with the parties, unless the request is made before the constitution of the Tribunal, in which case the Secretary-General of ICSID fixes the time limits for written submissions (Arbitration Rule 47(2)(c)).
The Tribunal may hold a hearing but is not required to, and it must issue its decision within 30 days after its constitution (if all submissions have been previously filed) or after the last submission on the request (if that submission is filed after Tribunal constitution).
The Tribunal must consider all relevant circumstances when deciding whether to recommend a provisional measures. In particular, the Tribunal must consider whether the measures are necessary and urgent, and the effect that they may have on each party (Arbitration Rule 47(3)).
Parties must disclose any material change in the circumstances upon which the provisional measures were recommended (Arbitration Rule 47(5)).
The Tribunal may recommend, modify or revoke provisional measures on its own initiative or at the request of a party after giving each party an opportunity to present its observations (Arbitration Rule 47(6)).
A party can request provisional measures from a judicial or other authority provided that it is authorized to do so under the instrument of consent.
Requests for Security for Costs are addressed pursuant to Arbitration Rule 53.
Chapter VI: Special Procedures | ICSID
Rule 47: Provisional Measures
(1) A party may at any time request that the Tribunal recommend provisional measures to preserve that party’s rights, including measures to:
(a) prevent action that is likely to cause current or imminent harm to that party or prejudice to the arbitral process;
(b) maintain or restore the status quo pending determination of the dispute; or
(c) preserve evidence that may be relevant to the resolution of the dispute.
(2) The following procedure shall apply:
(a) the request shall specify the rights to be preserved, the measures requested, and the circumstances that require such measures;
(b) the Tribunal shall fix time limits for submissions on the request;
(c) if a party requests provisional measures before the constitution of the Tribunal, the Secretary-General shall fix time limits for written submissions on the request so that the Tribunal may consider the request promptly upon its constitution; and
(d) the Tribunal shall issue its decision on the request within 30 days after the later of the constitution of the Tribunal or the last submission on the request.
(3) In deciding whether to recommend provisional measures, the Tribunal shall consider all relevant circumstances, including:
(a) whether the measures are urgent and necessary; and
(b) the effect that the measures may have on each party.
(4) The Tribunal may recommend provisional measures on its own initiative. The Tribunal may also recommend provisional measures different from those requested by a party.
(5) A party shall promptly disclose any material change in the circumstances upon which the Tribunal recommended provisional measures.
(6) The Tribunal may at any time modify or revoke the provisional measures, on its own initiative or upon a party’s request.
(7) A party may request any judicial or other authority to order provisional measures if such recourse is permitted by the instrument recording the parties’ consent to arbitration.
Cumquat Cap
Regular
Wonder what suspended means in this context
D
Deleted member 2378
Guest
Suspension, Settlement, and Discontinuance - ICSID Convention Arbitration (2022 Rules)
The proceeding may be suspended or discontinued by agreement of the parties or upon the request of a party (Arbitration Rules 54-56). Proceedings may also be discontinued if the parties fail to act (Arbitration Rule 57) or to pay the requested advances on costs (ICSID Administrative and Financial Regulation 16) .Suspension (Arbitration Rule 54)
The parties may agree to suspend the proceeding at any time (Arbitration Rule 54(1) and (7)) and may agree to extend the suspension as needed (Arbitration Rule 54(5)). They should notify the Tribunal or the Secretary-General (if the Tribunal has not yet been constituted or if there is a vacancy on the Tribunal) of the period of suspension and any agreed terms, including any necessary changes to the procedural calendar once the proceeding resumes. The Tribunal will incorporate these terms into an order (Arbitration Rule 54(4)).
The Tribunal may also suspend the proceeding or extend an existing suspension upon the request of a party or on its own initiative (Arbitration Rule 54(2) and (6)), after giving both parties an opportunity to make observations.
D
Deleted member 2378
Guest
(1) The Tribunal shall suspend the proceeding by agreement of the parties.
(2) The Tribunal may suspend the proceeding upon the request of either party or on its own initiative, except as otherwise provided in the ICSID Administrative and Financial Regulations or these Rules.
(3) The Tribunal shall give the parties the opportunity to make observations before ordering a suspension pursuant to paragraph (2).
(4) In its order suspending the proceeding, the Tribunal shall specify:
(a) the period of the suspension;
(b) any relevant terms; and
(c) a modified procedural calendar to take effect on resumption of the proceeding, if necessary.
(5) The Tribunal shall extend the period of a suspension prior to its expiry by agreement of the parties.
(6) The Tribunal may extend the period of a suspension prior to its expiry, on its own initiative or upon a party’s request, after giving the parties an opportunity to make observations.
(7) The Secretary-General shall suspend the proceeding pursuant to paragraph (1) or extend the suspension pursuant to paragraph (5) if the Tribunal has not yet been constituted or if there is a vacancy on the Tribunal. The parties shall inform the Secretary-General of the period of the suspension and any terms agreed to by the parties.
(2) The Tribunal may suspend the proceeding upon the request of either party or on its own initiative, except as otherwise provided in the ICSID Administrative and Financial Regulations or these Rules.
(3) The Tribunal shall give the parties the opportunity to make observations before ordering a suspension pursuant to paragraph (2).
(4) In its order suspending the proceeding, the Tribunal shall specify:
(a) the period of the suspension;
(b) any relevant terms; and
(c) a modified procedural calendar to take effect on resumption of the proceeding, if necessary.
(5) The Tribunal shall extend the period of a suspension prior to its expiry by agreement of the parties.
(6) The Tribunal may extend the period of a suspension prior to its expiry, on its own initiative or upon a party’s request, after giving the parties an opportunity to make observations.
(7) The Secretary-General shall suspend the proceeding pursuant to paragraph (1) or extend the suspension pursuant to paragraph (5) if the Tribunal has not yet been constituted or if there is a vacancy on the Tribunal. The parties shall inform the Secretary-General of the period of the suspension and any terms agreed to by the parties.
Mr_Tones83
Regular
Is it more likely that there is an agreement to suspend rather than an order to suspend in this case? Surely AVZ would have had fierce objections to the ordering of a suspension.
(3) The Tribunal shall give the parties the opportunity to make observations before ordering a suspension pursuant to paragraph (2).
D
Deleted member 2378
Guest
I think it’s a delay tactic from the DRC.
c) a modified procedural calendar to take effect on resumption of the proceeding, if necessary.
That would also mean, if a final order really exist for measures, it’s suspended now.
After trading suspension the chance against the trading suspension is suspended. Ironically.
D
Deleted member 2378
Guest
After cominiere laughed about the provisional measures I don’t think it’s likely that AVZ would agree to a suspension of the proceedings. Our management knows the DRC is not trustworthy and the proceedings can only be stopped if the DRC follows their laws and give us a ML. A suspension with delay of the proceeding dates would be a shot in the own knee, because the proceedings could easily continue until the DRC really follow the rules and laws or a deal is done. Personally I think the DRC lawyers found a way against the measures or a way to delay the proceedings.
Not surprised . Has been stall and delay tactics from day 1 of this sh1t fight . It's the only way they can defeat AVZ .
Mr_Tones83
Regular
Cominiere were laughing because they were saying they weren't a party to the ICSID arbitration. But they are ruled by the MoP and the government. If the government have formalised something to discuss with AVZ to avoid proceedings going any further then maybe (just MAYBE) management is willing to see what can be done.
Caveat being we all know how untrustworthy everyone involved has been so far.
Guess we'll find out sooner or later...
Frank
Top 20
Get jonnno @jonnnono in there as well
He is truly a champion for the good of the DRC
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Wouldn't AVZ have had to agree to the suspension though? I can't see Nigel taking the Nuclear option down ICSID and DRC going "Ok ok we are ready to talk" and Nigel just saying "Oh ok".
Surely, to suspend proceedings (that were going in our favour) he would have had agreed to suspend under certain minimum conditions?
Cumquat Cap
Regular
Yeah i'll probably avoid taking anything on board from you, i'm sure you think all could be sorted if Management resigned, you are a troll and cocksucka
Cumquat Cap
Regular
100% avz would have had to agree to suspension - arbitration courts don't work to serve the entity who is being shown to be corrupt - unless they have proven an arbitrator is biased it would have had to been accepted by avz
Scoota30
Regular
My pleb understanding of the situation was that the ICSID proceedings would only agree to be suspended if the DRC signed an MoU with a specific date period assigned to it - i.e 30 or 60 days to do all of the below stated otherwise the ICSID proceeding continues to roll on.
Either way, that ICSID suspension is on the 2nd of Feb, it is now the 7th of Feb. Does it take 5 days for a pigeon to get from ICSID to AVZ and then from AVZ to the ASX? Wtf is going on.
Either way, that ICSID suspension is on the 2nd of Feb, it is now the 7th of Feb. Does it take 5 days for a pigeon to get from ICSID to AVZ and then from AVZ to the ASX? Wtf is going on.
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