22/10/2022
First5Last
Roon-Aus Posted
MMCS having been trying it on for years. The main thrust of their argument refers to a section of the DRC mining code, which outlines that if a licence holder's mining and exploration rights have been revoked, the rights will nonetheless remain valid throughout the duration of an appeal - if one is launched against the revocation order.
MMCS (and parent organization Manomin), argue that they launched an appeal against the August 2016 Revocation of their exploration licence by the Minister of Mines, and therefore claim that the rights remained valid until the point where the appeal was dismissed by the DRC supreme Court in 2017. They then argue that despite the appeal being pending, and thus their rights over the area remaining in play, the minister for mines granted a new exploration licence (13359), which covered a zone including its licenced territory. They claim this is unlawful, as the mining code forbids this overlap in an exclusive licence area, and that it can't be sold out from under them whilst rights remained valid.
They have also repeatedly argued that AVZ was aware of these particulars throughout its due diligence entrance period and neglected to inform the market of the full situation, just pushing ahead with the purchase from Dathomir anyway.
There does seem to be some minor potential merit in this argument, and the transfer of the licence did appear to have involved some relatively shady dealings. However in my view the case wouldn't have gone anywhere because Manomin didn't appeal straight away upon revocation, but only after like 6 months when it realised that there was going to be money at play. They shouldn't be able to expect the state to sit on its hands and not do anything with the territory for an extended period after the revocation, just in case the company decided to launch an appeal somewhere down the line. Where does that end?
They subsequently lost the DRC appeal, and also lost a ruling from the Minister if Mines which upheld the cancellation of the original licence. They then lodged the case in the WA Supreme Court. 3 days before it was scheduled to be heard, where AVZ were going to present (and win) a motion for a permanent stay, arguing that the court was not the appropriate jurisdiction for this challenge, MMCS abandoned that claim. They instead sought an order for AVZ to publicly state it made deceptive and misleading announcements by not informing the public that Manomin's rights couldn't be legally conferred to Cominiere whilst it's appeal was ongoing. AVZ rejected this push, which IMO was intended to build background evidence for an ICC arbitration which was later launched but to date remains dormant.
IMO theyre just coming out of the woodwork again now in seek of some financial restitution. The same law firm has guided their proceedings throughout the case since 2016, and likely sees the current chaotic period and ownership disputes as an opportunity both to have another crack, but also to further muddy the waters in a bit of revenge for what they see as a major rug pull of the billions of dollars which should've be theirs. Even though they had done f* all towards proving up the land in all the years they held the licence.
So does their argument have any standing at all? Perhaps a tiny little bit depending on your intepretation of the Mining Code. Will this go anywhere though? IMO no, not at all, they may try to ask for some compensation, but will get jack.
16/01/2023
Manono's lithium, the DRC escapes a scam in Paris
The COMINIERE trial against MMCS STRATEGIC 1 opened on Monday, January 16, 2023 at the International Chamber of Arbitration in Paris is decisive for the DRC. On Tuesday, the second hearing was decisive for the Congolese party, defended by the lawyers of Cabinet Élite. The strongest and most inattachable technical arguments foreshadow the victory of the DRC, but extreme caution is required. A verdict in favor of the COMINIERE, will make the exploitation of Manono lithium by AVZ a reality.
By Gaby Kuba Bekanga
Delegation of the COMINIERE to the trial in Paris @Photo Third-party rights
published on January 20, 2023 at 07:00:00
The ICC had notified the COMINIERE since June 2022 that the pleading would take place from 16 to 20 January 2023 in Paris. The MMCS complainant fully agreed. But, with the attention of the Congolese authorities more focused on the aggression that the country is suffering from its Rwandan and Ugandan neighbors, MMCS wanted to take advantage of the probable absence of the DRC from the trial to raise the auction. In the absence of the COMINIERE, the DRC should have been convicted by default because of negligence like the past. In such a case, the Mauritian company would claim damages. For what investment in Congo? Is taken, who thought to take, it is said. MMCS was unpleasantly surprised by the arrival of the Congolese delegation in Paris.
Deciful arguments to block the AVZ project
Litigation has two aspects: legal and technical. The last component better explains MMCS failures. The argument that MMCS did not conduct research and carried out a feasibility study is archifal.
According to our sources, the mining engineer, Raphaël Ngoy Mushila, a mining and career agent with 36 years of experience in the sector, was a major contribution to the defense of the DRC. Recruited by the Cabinet Élite to give technical advice, the expert enriched the debate. Having worked in Canada, Australia, Latin America and Africa in mines, he demonstrated in black and white that the argument of the energy deficit invoked by MMCS was
"s
charlatanism and mining heresy".
The company required 15 megawatts of the COMINIERE before carrying out any research and carrying out a feasibility study. According to expert Ngoy,
"MMCS didn't even need an amp or a watt. Not even a candle." Such a claim is comparable to a concession freeze prohibited by the mining code. The mining law also provides for the forfeiture of securities when the operator has not developed the project within the legal period. This gave arguments to the government at the time to remove MMCS of its titles.
From trial to arrangement, a strategy or a failure?
From Paris, we learn that MMCS has
"upupted" the Court to suspend pleadings to grant two months to the parties for an amicable settlement. A request that reflects the weakness of MMCS at the trial. But the COMINIERE understood that this elastic strategy aims to block the evolution of the lithium exploitation project, because the arbitration has been going on for 5 years. The elasticity of the approach would allow MMCS to bounce back differently. In arguing, the Court must rule within 90 days. This is how the COMINIERE opted for pleading.
This timing gives MMCS the opportunity to negotiate before the verdict and asks it to act urgently. Because, by dragging the step, the sentence will fall before the desired compromise. However, the saying
"better be a bad arrangement than a good trial" remains valid for all parties.
While waiting for the sentence...
The 3- to 90-day window is important for the negotiations that MMCS is now forced to conduct, with its back to the wall. It is therefore necessary to update the challenges of this project with a feasibility study taking into account lithium prices. It is urgent to reassess the contribution of each party to the project to restart the construction phase. It makes sense to involve the Elite firm on this file to divert the recurring and fatal mistake of parachute UFOs, businessmen and combinards. Congo is not entitled to make a mistake!
With anticipations before November 2023, President Tshisekedi can end his first five-year term with the production of lithium and rare earths, essential for technological innovation. The launch of the lithium-tantal-tungsten-tain and rare earth plant will be a success. The project will be profitable. Natural resource diplomacy can be played at this level, because all the world's powers need lithium, staniferous minerals and the rare earths available to the DRC.
Vigilance and extreme caution for the COMINIERE
The MMCS party tried to save the furniture by aligning 4 witnesses. But their performance in the Court's questions showed that MMCS had never done
"due diligence" when entering a joint venture. No credible miner can skip this step. It makes it possible to identify all risks and binding tasks, including non-negotiable tasks that result in the forfeiture of securities.
Cut off suspicious connections and networks
MMCS has not yet abdicated. A reliable source indicates that one of the witnesses, chosen by MMCS, is a mining agent. Son of a former Attorney General of the Republic, he is also a bar president. Curiously, he is both a judge and a party. He was one of the leaders of the
"JV stillborn, Manono Mineral (MANOMINE)" between COMINIERE and MMCS. It represents the interests of MMCS. Therefore, he has a conflict of interest. Another credible source, based in Kinshasa, has reportedly intercepted bizarre contacts and calls between a relative of MMCS and the Ministries of Justice, Mines and Portfolio since the beginning of the trial this week. A simple coincidence or a suspicious movement tending to influence the game against the DRC? He is under the radar.
The general manager of MMMCS acknowledged that she has never developed a business plan, a compass for any serious mining operator. It is clear that its management mode was a visual navigation without any landmark. This project was nowhere to go.
A copy and paste that does not hold
The calculation of the damage allegedly suffered by MMCS was based on data from the AVZ feasibility study. Plagiarism or copy and paste vigorously contested by the COMINIERE during the trial. Study data are never transposable. We are not far from the forgery and use of forgery. Even two bidders on the same mining project will never have the same process, the same recovery yield, the same operating costs, the same capex and the same impurities in the finished product. MMCS was unable to produce a feasibility study.
Extreme caution for the DRC and not blissful optimism
The last hearing took place this Wednesday. By mid-April, a series of activities will take place: the circulation of pleading transcripts, the transmission of post-punishments and possible replicas.
https://ouragan.cd/2023/02/lithium-de-manono-un-tasmanien-fait-deja-fortune-avant-lexploitation/
It is strongly recommended that the COMINIERE be careful with regard to the
"full-contact" that has just taken place. It is certain that MMCS will seek an outcome before the sentence. But this step must be carefully prepared on the Congolese side by resource persons who master this file. The Cabinet Élite has proven that it can do the job well. The government must avoid unnecessarily inflating the team with per diem hunters, arrivals, profiteers and calculators as is often the case in Congo.
Le procès COMINIERE contre MMCS STRATEGIC 1 ouvert lundi 16 janvier 2023 à la Chambre internationale d’arbitrage à Paris est déterminant pour la RDC. Mardi, la deuxième audience a été décisive pour la partie congolaise, défendue par les avocats du Cabinet Élite. Les arguments techniques les plus...
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