Bay View Group LLC and The Spalena Company LLC v. Republic of Rwanda, Hearing Transcript - Day 1

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In the matter of an arbitration

under the Rules of Arbitration of

the International Centre for

Settlement of Investment Disputes

Case No. ARB/18/21

Video conference

via Zoom

Monday, 21st June 2021

Hearing on Jurisdiction and the Merits

Before:

RT HON LORD PHILLIPS KG PC

MR J TRUMAN BIDWELL JR

MS BARBARA DOHMANN QC

==================================================

BAY VIEW GROUP LLC

and

THE SPALENA COMPANY LLC

Claimants

-v-

GOVERNMENT OF RWANDA

Respondent

==================================================

Secretary to the Tribunal: ALEX B KAPLAN

==================================================

Transcript produced by Anne-Marie Stallard

and Georgina Vaughn on behalf of Trevor McGowan

APPEARANCES

FOR CLAIMANTS

STEVEN COWLEY, Duane Morris LLP

BRYAN HARRISON, Duane Morris LLP

RODERICK MARSHALL, Bay View Group LLC

FOR RESPONDENT

RICHARD HILL QC, 4 Stone Buildings

ALASTAIR TOMSON, 4 Stone Buildings

MICHELLE DUNCAN, Joseph Hage Aaronson LLP

DANIEL McCARTHY, Joseph Hage Aaronson LLP

DANIELLE DUFFIELD, Joseph Hage Aaronson LLP

LUCY NEEDLE, Joseph Hage Aaronson LLP

NARCISSE DUSHIMIMANA, Rwanda Mining Board

SPECIOZA KABIBI, MINIJUST, Government of Rwanda

THIRD PARTY OBSERVERS

LISA GROSH, United States Office of International Claims and

Investment Disputes

JOHN DALEY, United States Office of International Claims and

Investment Dispute

NICOLE THORNTON, United States Office of International

Claims and Investment Dispute

CATHERINE GIBSON, Office of the United States Trade

Representative

MICHAEL COFFEE, United States Department of Justice

DONNA CHAPIN, United States Department of Justice

INTERPRETERS

SARAH ROSSI, French-English interpreter

ELIZA BURNHAM, French-English interpreter

ROBERT WOLFENSTEIN, French-English interpreter

JEAN CLAUDE MUGENZI, Kinyarwandan-English interpreter

ROSE-MARIE MUKARUTABANA, Kinyarwandan-English interpreter

SUPPORT STAFF

JAMES WATKINS, FTI Consulting

DAVID BRODSKY, FTI Consulting

ANNA LOUTFI, assistant to the Tribunal

COLLEEN FERGUSON, ICSID paralegal

IZABELA CHABINSKA, ICSID intern

INDEX

PAGE

Discussion re procedural matters ....................1

Opening statement on behalf of the ...................12

Claimants

By Mr Cowley ....................................12

Tribunal questions ...............................22

Tribunal questions ...............................33

Tribunal questions ...............................78

Tribunal questions ...............................83

Opening statement on behalf of the ...................90

Respondent

By Mr Hill .......................................90

Tribunal questions ..............................110

MR RODERICK MARSHALL (called) ......................171

Direct examination by MR COWLEY ....................171

Cross-examination by MR HILL .......................176

Tribunal questions ..............................211

[Page 1]

12:01 1

Monday, 21st June 2021

(Transcript times are British Summer Time)

3 (12.01 pm)

THE PRESIDENT: Welcome, everybody, to Day 1 of this merits

hearing, by Zoom, of the ICSID arbitration between

Bay View Group and The Spalena Company v the Government

of Rwanda.

We have 15 minutes allowed for preliminary matters.

First of all, I understand that Mr Hill will be speaking

for the Respondent and Mr Cowley for the Claimants in

these proceedings. Is that correct?

MR COWLEY: Yes. When you say "these proceedings", with

regard to the --

14 THE PRESIDENT: Today, in the openings.

15 MR HILL: Yes, that's correct.

16 THE PRESIDENT: Good.

Now, according to Procedural Order No. 7, witnesses

should not be listening to submissions. I just wanted

to raise the question of whether the Respondent wishes

this to be applied in the case of Mr Marshall, who will

be giving evidence immediately after the opening

statements, or whether they prefer to have Mr Marshall

listening to what they say in their opening.

24 MR HILL: No, from our perspective we're happy that the

regime stays as it is and Mr Marshall is excluded.

[Page 2]

12:03 1 THE PRESIDENT: Very well. So be it.

Now, there are one or two matters that we left open

to resolve in this initial stage. The first was the

position of Mr Rwamasirabo, who is going to give

evidence but there is an issue as to the capacity in

which he gives it. I'm not quite sure procedurally what

turns on this. Is it whether he gives a 15-minute

introduction or makes a presentation?

MR HILL: Just on that, I think from our perspective nothing

turns on it for the purposes of the procedure. We are

not going to object to him giving a 15-minute

presentation. In terms of the positioning in the

timetable, he comes at the end. We will be making

submissions in due course about the weight to be

attached. But in terms of the procedure I don't think

there's any problem that arises.

17 THE PRESIDENT: Well, in that case, there wouldn't seem to

be any issue to resolve at this stage; is that right?

19 MR COWLEY: Agreed.

20 THE PRESIDENT: Right.

The next matter, and it's a small matter: these

proceedings will in due course be screened for the

public, but because the proceedings are being conducted

remotely, the normal course that ICSID follows will not

be followed. What is proposed is that the public

[Page 3]

12:04 1

screening of these proceedings will take place after the

hearing has been concluded, and before the proceedings

are screened publicly, they will be shown to each side,

so that each side will have the opportunity to draw

attention to any matters which are confidential and

should not be put into the public arena.

Is that arrangement satisfactory?

MR COWLEY: Claimants agree.

MR HILL: Yes, and the Respondent also.

THE PRESIDENT: Good.

Now, the third matter to be resolved relates to the

Claimants' application to adduce additional evidence.

The Tribunal has discussed this application in the light

of the Respondent's response to it. We don't wish to

invite further argument about it, but there are just one

or two matters we would like assistance on.

First of all, Mr Cowley, could you explain why it is

that this application has been made only one working day

before the start of the hearing?

MR COWLEY: It was the deadline that was agreed to some time

ago, when we scheduled all the proceedings. The request

for submission of new evidence was set as the deadline

of Thursday. We simply followed the order.

24 THE PRESIDENT: I'm not aware of any order that applications

should not be made before a deadline. There is

[Page 4]

12:06 1

a practice, which is not one that I'm enthusiastic

about, of always waiting for the deadline before doing

anything. But if one is dealing with an application to

adduce additional evidence, the sooner it is made the

better, surely.

MR COWLEY: Well, our apologies. We did not propose

anything that we were holding that was our own. There

are two in particular that -- these are Respondent's

documents, especially with regard to Mr Ehlers's

communication; he's had them the whole time. The

only -- we would raise the question, if we were still in

an earlier phase, as to why it wasn't produced, you

know, in response to our request.

THE PRESIDENT: Well, the only question -- I was not

inviting argument about whether it should come in;

I just wanted to know why it was that the application

was made so late.

Could I turn to the three particular items of

evidence. The first is documents relating to Tinco's

agreement with the Respondent.

Mr Hill, the primary objection that's been made to

this is on the grounds of relevance. Relevance is

something that we wouldn't wish to predetermine at this

stage. Is there any other reason why the Respondent

can't deal with this evidence?

[Page 5]

12:07 1 MR HILL: Well, it comes so late -- we don't actually have

the evidence; we haven't, obviously, looked at it. So

we are, at this very short notice, prejudiced by seeking

to deal with it at all. As I say, we don't understand

the relevance, and there has been no submission made or

explanation given as to why it's so late. It's been

around for over a year. Trying to explain the degree of

prejudice is inherently difficult because we haven't

seen the material. But at the last day, we're certainly

not in a position to deal with it today and we don't

know if we'll be in a position to deal with it at any

stage during this week.

THE PRESIDENT: Do you not have the document? It's

a document that evidences what is alleged to be dealings

of the Respondent.

MR HILL: Well, I'm not in a position to answer that, I'm

afraid. But we certainly would be prejudiced in

addressing -- even on the assumption we have the

document, we would certainly be prejudiced in seeking to

deal with it, to discuss it with our witnesses, in the

short time available. And in the circumstances where

there is a lot in this case and it's immaterial, we do

say it shouldn't be admitted.

24 THE PRESIDENT: Will it be open to the Claimants to

cross-examine on what has occurred since disclosure of

[Page 6]

12:09 1

documents? Because if so, this is going to be put to

your witnesses.

3 MR HILL: Well, if there's a witness that they think it's

relevant to cross-examine on, they can attempt to do so.

I would suggest that would be an unuseful expenditure of

their time in cross-examination because it's

an immaterial issue.

8 THE PRESIDENT: Yes. Can we just go into a private session

for a moment, please.

10 (12.10 pm)

(The members of the Tribunal withdraw)

12 (12.11 pm)

13 THE PRESIDENT: Mr Cowley, can you hear me? Is it your

intention that this evidence should be put in

cross-examination to any of the Respondent's witnesses?

16 MR COWLEY: Yes, it was our expectation, it was our

understanding of paragraph 22 of Procedural Order 7 that

we were only afforded an opportunity to ask for the

submission of new evidence for cross-examination.

This is something that only became available in the

last month to anyone, and not us. We had to obtain this

through --

23 THE PRESIDENT: Yes, can you state which witness or

witnesses you're going to ask about this?

25 MR COWLEY: Well, I believe it's at least directly relevant

[Page 7]

12:11 1

to Mr Evode Imena, but I would not want to say right now

that we have mapped out our cross-examination so tightly

that we know every topic we are going to cover and all

the issues in the documents. So I would say that I know

it's relevant to at least one.

THE PRESIDENT: Well, our direction is that by start of

business tomorrow you shall have decided which witnesses

you are going to put this evidence to, give notice of

those witnesses. When you come to cross-examine them,

at that point, if an objection is taken, we will deal

with it then.

MR COWLEY: In the meantime, your Honour, just so

I understand, what are we to do with the documents?

Respondent's counsel suggests he doesn't have them,

although they're actually Respondent's documents. We're

happy to provide them to them.

THE PRESIDENT: You should certainly provide them to the

Respondent without further delay.

MR COWLEY: I just wanted to know what our next step was.

THE PRESIDENT: Yes.

MR COWLEY: And we will advise tomorrow who we intend to

examine on the topic that's addressed in the document.

23 THE PRESIDENT: Moving to the second category, which are

human rights reports, we decided that these are not

going to be admitted at this very late stage. They

[Page 8]

12:13 1

cover very wide ground, they are hearsay documents; some

of them have been available for a very long time. They

are of questionable relevance and impact, and we do not

consider that the circumstances justify their admission

at this late stage.

The third category, in relation to the cooperation

agreement, we've decided shall be admitted. They are

plainly documents of relevance to the case being

advanced by the Claimants, and we don't consider that

prejudice will be caused to the Respondent because

although the application is made at a very late stage,

there are still going to be, I think, four or five days

elapsing before any use is made of those particular

documents. But we would invite, please, Mr Ehlers to

produce a short written statement in relation to this

material.

MR COWLEY: I'm sorry, Mr who?

THE PRESIDENT: Mr Ehlers.

MR COWLEY: Your Honour, again, just so that I know --

20 THE PRESIDENT: This is a matter for the Respondent.

21 MR COWLEY: I apologise.

22 THE PRESIDENT: Mr Hill?

MR HILL: Yes, we've understood that, Mr President. We

will --

25 THE PRESIDENT: Yes, how long would you like for that?

[Page 9]

12:15 1 MR HILL: Well, Mr Ehlers is obviously a mere witness of

ours.

THE PRESIDENT: Yes.

4 MR HILL: I would ask for three days.

5 THE PRESIDENT: Very well.

6 MR HILL: Thank you.

THE PRESIDENT: 15 minutes. Any other matters of

housekeeping?

MR COWLEY: Your Honour, just as clarification, again, what

do we do with the documents? Are we to submit them to

the Tribunal now as additional Claimants' exhibits?

I take it that the --

13 THE PRESIDENT: Yes.

14 MR COWLEY: -- Respondent has copies already. So we'll get

them to the Tribunal by tomorrow; is that acceptable?

16 THE PRESIDENT: That's acceptable.

17 MR HILL: Just to clarify, we don't have copies. Mr Ehlers

does not have this email and we haven't seen it, so we

will need to be provided with it.

20 MR COWLEY: We will get that out today, as best we can after

the hearing is over. We'll get them out as soon as we

can. We just need to mark them as the next exhibits.

So it's just a step away.

Lastly, I hate to be so particular but I don't want

to fail to deliver something that's expected: when we

[Page 10]

12:16 1

send out the documents to the Tribunal relating to

number 3, the email and its attachment, do we also send

the Tribunal the two different agreements with Tinco

that are covered by item 1, along with the --

5 THE PRESIDENT: Yes, please.

6 MR COWLEY: Okay, thank you.

MR HILL: Could I just raise one more point on that timing?

8 THE PRESIDENT: Yes.

MR HILL: We would be keen to have the email and the

cooperation agreement immediately. So while

I understand the idea about marking up exhibits and that

can be done later, just as between the parties, if the

provision of that document could be provided

immediately, that would -- because we've only got three

days in order for Mr Ehlers to comment on it.

THE PRESIDENT: That's a reasonable request. Mr Cowley,

could you put in train arrangements so that the

documents are transmitted immediately?

MR COWLEY: We will. When you say "immediately", we don't

have any staff in the office, and you're looking at the

entire team, the litigation team, sitting here with you.

So immediately means as soon as we can today, when

someone --

24 THE PRESIDENT: As soon as possible. Very well.

25 MR COWLEY: We do have one other item that we would like to

[Page 11]

12:17 1

ask the Tribunal's assistance with.

2 THE PRESIDENT: Yes.

MR COWLEY: There is a document in Respondent's production

that is not translated in full from Kinyarwandan to

English, as required by Procedural Order No. 1. It is

only selectively translated, for two paragraphs. It's

Respondent's document R-191. And we would like to ask

that the Tribunal direct Respondent to provide the full

translation of the entire document.

THE PRESIDENT: How long is it?

MR COWLEY: 11 pages, I believe. 11-15 pages, something

like that.

THE PRESIDENT: Can you tell us what the document is?

MR COWLEY: It appears to be a judgment of some sort against

Evode Imena, Mr Imena. He cites it for the two

paragraphs, but there are at least ten pages of

additional written something in the order that we cannot

read and translate -- we could hire a translator, but we

can't be assured that we have agreement with the other

side. And I don't think it makes any sense for us to

question Mr Imena line by line to get a reading of the

other paragraphs and try to get agreement as to what

they say, as opposed to have in writing the translation

that we know Respondent agrees to because it has

provided it.

[Page 12]

12:19 1

THE PRESIDENT: Yes. Mr Hill, can that be done?

MR HILL: Yes, I've just had some brief instructions.

I understand it is quite a lengthy document and relevant

only in part.

Just on the original point from Mr Cowley, we were

only required to provide excerpts. Obviously, in light

of what the President said, I will find out how easily

it can be done and revert if there is a difficulty.

9 THE PRESIDENT: Alright. Thank you very much.

So, Mr Cowley, over to you.

11 (12.20 pm)

Opening statement on behalf of the Claimants

MR COWLEY: We are bringing up a PowerPoint presentation.

It will take just a couple of seconds because we need to

share our screen. This was submitted earlier this

morning to Mr Kaplan. (Pause)

So if it hopefully makes more sense of my opening,

we prepared a timeline to direct chronologically what we

believe we presented, and obviously will be explored

further, in much greater detail, by testimony and the

points in context, both by Claimants' witnesses and

Respondent's witnesses.

I do not intend to provide the level of detail and

quotes, but for a brief few indications of portions of

documents and portions of testimony. I leave out,

[Page 13]

12:21 1

obviously, much detail, and I say that upfront. I'm not

suggesting that this opening is a comprehensive analysis

of all the documents on these topics or all the contents

of the documents we point to. We are trying to provide

an overview and direction of the case as we see it and

we believe we presented it, and will obviously defend it

over the course of the next two weeks in these hearings.

The Claimants here, and the acts and issues that

give rise to the claims by the Claimants, all centre

unquestionably around Mr Marshall's activities in

becoming an investor in Rwanda, in the mining industry

specifically in Rwanda, and he brought with him other US

investors.

How it came to be that Mr Marshall was in a position

to identify an opportunity to invest in this industry

starts actually with who Mr Marshall is and what his

relationship with Rwanda was prior to making this

investment. He was not a commercial miner that was

looking around the world for various opportunities and

simply, at arm's length, passed in an application for

concessions. Mr Marshall first developed

a relationship, a trusted relationship, where he acted

as both legal advisor and general consultant on business

to important institutions and individuals within the

Rwandan Government.

[Page 14]

12:23 1

This relationship goes all the way back to

December 2004. Mr Marshall, at the time in his career,

he was an international transactional attorney,

practising in Eastern Europe. He started in the

United States and moved to Eastern Europe and was

practising: he was providing advice to international

companies and to nation states, sovereign entities. And

he developed a speciality and had relationships with

a number of governments, countries, agencies within

governments and companies doing business with him.

That's how he became introduced to and started

a relationship with Rwanda.

(Slide 2) In December 2004 Mr Marshall and his

partner at the time providing these legal services and

other transactional advice and consulting signed

an agreement to provide such services to the Rwandan

Investment and Export Promotion Agency. And it's a very

high-level agreement because it's not specific as to

projects, but agrees and sets the basis for what turned

out to be a very long-term relationship.

(Slide 3) And as you can see from -- as we bring up

some documents, the specific document numbers that are

referenced on the documents correspond with the document

in the hearing bundle. I will try to remember them and

point them out, but the PowerPoint presentation has been

[Page 15]

12:25 1

provided, so all of these documents or snippets from

documents can be traced back or found based on the

individual slides: they have the document numbers on

them.

So Claimants' Exhibit [132] will show that it's

a very high-level document, and what Mr Marshall and his

partner did -- and over time it became primarily

Mr Marshall who developed this relationship and

continued working on it -- they provided these services

on a pro bono basis. Given the nature of Rwanda's early

stages of privatisation and getting involved in

international transactions, it was not in a position to

pay for some of the types of legal services and other

needs that it had, that other nation states did, and

Mr Marshall began working with them with that knowledge

and understanding.

It became over time a very close relationship. And

when I say it's long term, this relationship, the role

of trusted legal and business advisor to elements within

the Rwandan Government, other institutions -- over time

it became far more centred on the military and its

transactional arm -- lasted until 2016, until the events

that really ended Mr Marshall's investment in Rwanda.

He worked for them in this role throughout all the

events we see here, all the events we're going to deal

[Page 16]

12:26 1

with here, as an investor. And it's important -- and we

point this out now at the beginning, in this opening,

because keeping in mind the way Mr Marshall's claims,

even the basic representations about things that were

provided to him in writing, the accusations back about

fraud, manipulation, lying, distortion, trying to get

something from the government, the way he has been

handled -- not as a good faith dispute or disagreement

about a contract or its rights, disagreements about what

happened on the ground, that could happen between

anybody, but accusing him of actively manipulating and

lying throughout -- is coming from a government that was

using Mr Marshall this entire time as a spokesperson, as

a representative, as a liaison to other governments; as

someone who would handle not only specific transactions

but big-picture developing relationships that Rwanda

felt were important in Eastern Europe for them. They

relied on him in that role until 2016.

So hearing now the approach they take and the

accusations levelled at Mr Marshall, it should always be

remembered, at the time and in context: how did they

actually view Mr Marshall, how did they actually treat

him? Like a liar and someone not to be trusted? Or

like someone who they trusted so much they could use as

their voice and their representative with others?

[Page 17]

12:28 1

Through this relationship and Mr Marshall's work in

understanding about the different types of transactions

that Rwanda was looking to get involved in, and his own

speciality in working on similar transactions in other

countries, specifically in Eastern Europe, Mr Marshall

was introduced to and learned about the privatisation

efforts. And at one point it focused on the mines, on

the mining concessions. Rwanda was interested in

getting foreign investment; specifically, through

Mr Marshall, they hoped, US investment, interested in

getting in early and helping privatise, build out,

Rwandan mines in the mining industry.

(Slide 4) Mr Marshall was introduced to this early

in his relationship, and by December 12th 2006 there was

discussion about what it would look like if he was

interested -- he had expressed interest in trying to put

together an investment group to get involved -- what the

steps would be.

And December 12th 2006, one of the communications

from RIEPA (C-139) -- I want to point out here because,

again, I do this because, in terms of the

communications, not by any stretch was this the only

one; by no stretch are we saying this email is the

agreement on something. There's numerous discussions

and conversations. But we point this out because we

[Page 18]

12:30 1

think it is indicative of the way business was actually

done, how things were actually handled.

Again, we think it's completely out of context and

completely distorted once it gets into the legal realm

that we have now, and we have lawyer positions and legal

analysis and reasoning about what documents should mean

and what things must have been intended or not because

of the language. What I'm trying to draw the court's

attention to with this email is: how was business

actually done when Mr Marshall was trying to get

involved, and later did get involved, and he was dealing

with representatives of Rwanda and the ministry that was

handling the privatisation of mines? How were they

actually handling their own written policies and

procedures?

Well, we see right here, on December 12th 2006,

Mr Marshall was told quite explicitly, "You do not have

to go through RIEPA" or the privatisation scheme that

was in place, early as it was, loose as it was, in terms

of the written programmes. "Don't worry about that",

they say, "just write a letter explaining your interest,

and we're working with you". And that informality, that

"Trust us, this is how we're going to do it; don't worry

too much about what things say, let's get involved,

let's get you going and get to an agreement about how

[Page 19]

12:31 1

we're going to do it", working together cooperatively

was how things were handled from the very beginning.

So to suggest now, all these years later, when

things did not turn out right and Mr Marshall asserts

a claim, that it was completely unreasonable to expect

that what he was told meant anything, given what was in

writing; it wasn't. It wasn't unreasonable because he

was always assured and he knew from his experience how

things were done, business was actually done, through

the personal relationships and working cooperatively.

From the get-go, they assured him, "That's how we do

things".

To draw your attention -- I'm sorry, this turns out

to be a lot smaller on my screen and I'm hunching over;

I don't mean to do that, but I don't know how to enlarge

it. When I say the "cooperative" nature of the

relationship, I just want to draw the Tribunal's

attention to the last line. In submitting plans and

submitting proposals and analysis of what he's going to

do, it was made quite clear to them the Rwandan

Government was going to be working with him to come up

with satisfactory documentation and proposals. They

were going to assist in his presentations because they

wanted to be successful.

It was not handled the way we're now hearing it and

[Page 20]

12:33 1

presented, where "You submit something, we'll judge it",

and that's all. Instead, it was always a matter of "You

help me by telling me what you need; we'll see if we can

do it and how we can do it". And that was true from the

very beginning.

(Slide 6) NRD received its contract for mining

concessions on November 24th 2006.

(Slide 7) That NRD initial award, the initial

licence, is at Claimants' Exhibit C-017. The only thing

I'd like to point out and remind the Tribunal at this

point is: the initial agreement from its initial

investment, NRD -- well, NRD's then owners and investors

in NRD acquired the rights to five mines: Rutsiro, Mara,

Sebeya and Giciye, four of the mining concessions, were

in the Western Province; one, Nemba, was not.

The reason I just point that out is, in putting in

context as the hearings go on, you'll hear about the way

things were done, sometimes only focusing on the

Western Provinces and only things that affected those

mining concessions. So I just wanted to point out that

four of NRD's five mining concessions were located

there.

(Slide 9) In November 2010 Mr Marshall, who was not

with NRD previously, was not one of the initial

investors in NRD, became involved, became an investor.

[Page 21]

12:35 1

If I could just take a step back, up until this

point, or prior to the investment by BVG in NRD,

Mr Marshall's initial investment, when he did move

forward with RIEPA conversations and ultimately applied

for a concession, it was for a mining concession called

Bisesero. That is not a concession that's at issue in

this case, in the sense that there's no claims asserted

about the fact that Mr Marshall's companies do not have

long-term concessions there, but it's admitted that they

don't.

Things did not work out at Bisesero. And

Mr Marshall's company, his investment company, through

which he and other American investors put their initial

roots, if you will, into the investment that later

became the groundwork for the investment in NRD going

forward, they initially put that into Bisesero and they

were, over time, unable, based on essentially bad

relationships and -- bad performance of relationships

and who they relied on, disputes about what happened

left them in quite a hole, quite a bind there. And when

Bisesero was taken from them, Mr Marshall, already

facing problems with that investment, made the decision

not to fight about Bisesero, not to argue about whether

he had rights to continue, but to walk away and to

reinvest in other concessions that he knew became

[Page 22]

12:37 1

available.

The NRD owner originally when the concessions were

awarded, Starck company, a German company, wanted out,

wanted out of Rwanda. Mr Marshall and others became

aware of their interest in transferring their

investment, transferring NRD. And Mr Marshall acquired

that Starck interest, in a private transaction he

acquired -- they acquired the Starck investment in NRD

through Spalena, an investment vehicle that was set up

simply to address the fact that Bay View Group was no

longer recognised and listed in Rwanda as a company

registered to do business there. So acquiring NRD in

Bay View Group's name was not in compliance with Rwandan

law, and Bay View put its money through a new investment

vehicle that Mr Marshall and his other investors formed,

an affiliate that they controlled.

17 THE PRESIDENT: Could I just intervene. Is there any

evidence in relation to the fact that Bay View was not

permitted, under Rwandan law, to take over the business?

20 MR COWLEY: To make the acquisition of the shares --

21 THE PRESIDENT: I understood the Claimants' case to be that

Mr Marshall had no idea why this was.

23 MR COWLEY: He had no idea why Rwanda stood its ground and

insisted that Bay View Group could not renew its

registration when -- and it's in Mr Marshall's

[Page 23]

12:39 1

testimony, and I don't recall -- it's a very fair

question, and I have to say I don't specifically recall

if it was also addressed by Olivier Rwamasirabo, because

I don't recall it and I can't say that he specifically

addressed it. But there was a period of time when

Rwanda undertook to acquire the foreign corporations

doing business there all to renew their registration,

and he was told not for Bay View Group. That he doesn't

understand.

Why Bay View Group needed to put its money into

another affiliated entity with a different name to then

buy ownership and control of NRD's parent from Starck he

does understand, because it simply needed to be

a vehicle, a company, that was on the books in Rwanda.

So it was an affiliate with no distinction between the

investors, the managers or the money. The money was the

same money that BVG -- first of all, much of the

investment that was already put into Bisesero was

transferred, the assets were transferred; and the

monetary commitment that was going in directly from BVG

then became a monetary commitment and investment going

from BVG through its affiliated controlled company,

Spalena, into the parent company of NRD and then

directly to NRD, once it owned the shares.

So he understands why he put the money in the way he

[Page 24]

12:41 1

did. He has never been given an explanation for why it

mattered. Because there is no question -- none has been

raised, and there certainly is no question based on

Mr Marshall's presentation -- that this was not done

behind the backs of anybody in Rwanda. Mr Marshall was

not blocked, his investors that he had behind him were

not blocked. This was not a group of individuals who

knew Rwanda did not permit them to invest in the

country, invest in the mining business themselves,

directly or more specifically. They weren't getting

around anything there. They were getting around

a roadblock of the name that they had to put the money

in. They did that by opening up an empty shell, so to

speak, additional company, and putting their money in

through that.

But the entire time, Mr Marshall was always the

representative, Mr Marshall was always the controlling

investor, Mr Marshall was always the managing director

of BVG, Spalena; and then, when they acquired ownership

of NRD, took over as the director of NRD and was always

dealing directly with the representatives of Rwanda.

So it was certainly nothing to get around people in

Rwanda, decision-makers in Rwanda, the Mining Minister

specifically in Rwanda, knowing that Mr Marshall and his

investors were continuing and reinvesting in a new set

[Page 25]

12:43 1

of concessions.

I hope that answers the question. Because what they

do know and what they don't know in terms of the

decision is frustrating even to this day on our side.

We simply do not know why Rwanda wanted to leave it in

that state. But they did, and the parties went forward.

(Slide 10) So the way that this is handled is BVG

had put some money into Bisesero, and that money was

used to buy equipment; that money was used to pay miners

and pay other operational costs. It was now switched so

that what could be moved and reinvested as hard assets,

it committed to transferring to NRD, again through

transferring it to Spalena and then, through the

acquisition of the owner, the parent company of NRD,

putting it into NRD directly and then going and working

to build it out with miners and operate.

BVG put in hard equipment and put in $100,000 loaned

to NRD for use to operate its mining concessions, the

same way he understood that the operational costs,

maintenance of equipment, use of equipment, employees,

et cetera, all required investment to continue to

develop, as profitability was a ways off. So the

investment was not to get an asset that was throwing

money out; the investment was to get an asset that was

requiring additional money just to keep moving towards

[Page 26]

12:45 1

the day when profitability would be available. So BVG

made $100,000 of immediate cash available for that

purpose and transferred assets.

This cooperation agreement (C-122) was heavily

attacked, we think completely inappropriately, and we

intend that this will be now the subject of discussion

with Mr Ehlers as to why he denied that this was a real

document. But the fact of the matter is, not only is

the document real, but this happened. BVG put this

money in. Starck was out.

There is no dispute between the parties, despite all

the shadow that is cast over the lack of records that

exist from the headquarters or the operating offices of

NRD, when all is said and done, to take back the years

of records of payroll and other expenses, the

day-to-day, week-to-week expenses -- we don't have them,

and such shadow is cast over that as to how it couldn't

possibly have been.

But nobody has ever come forward from Rwanda and

disputed there were miners there. There were miners

there working, they were being paid; there was security

there the whole time; there was equipment the miners

were using, it had to be maintained. The money was not

coming from Starck. The money was not coming from

profits earned by NRD. The money was coming -- which

[Page 27]

12:46 1

started with $100,000 invested into NRD in cash from the

beginning, and it kept coming, and it included things

like payment of tax responsibilities, et cetera. The

money grew in size, all of which we understand -- and

we're not going to cross the line in terms of the

bifurcation; we are not to get into how much money was

lost and how much damages exist as a result.

But the idea that money was put in is attacked by

saying the document is false, so therefore nothing was

put in. But then nobody explains how years of

operations, maintenance, security, et cetera, were paid

for, if it wasn't BVG putting money, through Spalena,

into NRD. This was the beginning.

(Slide 11) In November 2010 NRD applied for the

long-term licences, as its initial licences were coming

to a close. The long-term licences at this time -- and

I'll repeat it in a moment -- were 30-year licences,

that's what it was looking for. And I'll explain that

in a moment.

(Slide 12) Rwanda now has a theory that: well, NRD

actually, what you bought into -- what they were

actually seeking was only a five-year licence. And they

point to language in this long document and long

submission that NRD made. Admittedly, this was before

the full ownership of NRD was acquired from Starck, but

[Page 28]

12:48 1

BVG was already investing in NRD because that was the

transaction it was contemplating working on, heading

toward, and it needed to keep NRD moving, keep it

operational. So it had already made its investment

direct and made the acquisition shortly; and in between,

before the initial licences expired, NRD submitted this

application.

Like the initial licences discussed, it needed to

have certain information about each investment, its

feasibility study, a projection of how that investment

was going to be used to build out the mining operations

of the concessions, in a way, because environmental

analyses were also required, and alleviation was also

a focus of what was required to be submitted as well.

How it was going to be built out, not only in a way to

get the investor to profits, but in a way that would not

harm Rwanda's long-term environmental and other

interests, all this needed to be explained at the time

of the application.

And because the feasibility aspects, all of which --

all of those aspects of the required submission are

intertwined in this document and -- I'm sorry, I don't

see the --

This is Claimants' Exhibit 35. I apologise for not

noticing before that it's not on the face of this

[Page 29]

12:50 1

document. But C-035, a very lengthy document.

When the Tribunal focuses on it, you'll see that the

required elements of the application for long-term

licences -- it required a feasibility study, analysis of

the investment that was intended to be made over the

life of the investment, over the 30 years, what money

was going to be coming in, who is going to back it up

financially, what environmental studies and analyses

were presented to show how this was going to be done

safely -- all of this is intertwined and repeated, in

terms of breaking out and intertwining, concession by

concession. In other words, there's not one --

THE PRESIDENT: Mr Cowley, could we look at the top of

page 13 of this document?

MR COWLEY: Could you bring up C-035 from the bundle.

It's not in the PowerPoint, so we have to toggle

over to the bundle to do that.

THE PRESIDENT: Well, I'll read it slowly:

"It is herewith applied to retain the concessions of

Rutsiro, Giciye and Sebeya as Exploration Licences,

albeit with a reduced areal extent ..."

Can you show us which part of this document applies

to 30-year concessions?

24 MR COWLEY: Yes, and I started with the cover because I know

that Rwanda pointed to that: the "Application for the

[Page 30]

12:51 1

Renewal of Exploration Licences ... and Application for

the Allocation of Mining Licences". It's both, it's two

things; they're applying for both.

And the reason for that language, the reason for

that focus, as we understand it -- now, obviously

Mr Marshall did not himself submit this document, but he

is aware not only of this document but he is aware of

the submissions relating to others -- is everyone did

a five-year projection and feasibility study. No one

could, in the mining industry -- no one they worked with

as consultants, no one they worked with as geologists,

other experts -- no one was prepared to do a 30-year

analysis and study of feasibility long term in that

period of time.

So it was referred to, in terms of the exploration,

as: that was the feasibility aspect of the submission

that was required by the initial exploration licences,

and that was only for five years. I believe in the

comparators that we're aware of, one was for six years;

everyone else that we're aware of is five years only.

And according to our submissions, our understanding, all

the experts, all the people that were working on this in

the mining industry would only speak in terms of five or

six years and nothing else.

So you're right that that language is there, but

[Page 31]

12:53 1

that language is not the only application. It's not

only asking them to approve feasibility for only

five years, because that's all they were prepared to

submit and provide information about, but they're asking

for the allocation of mining licences. And thirty years

is not mentioned in the document by NRD because it would

have been irrelevant. It would have been unusual to

think in terms of having to name how long the licence

was at the time this was submitted.

It's only an issue now because we're looking at this

and arguing about this through the prism of Rwanda

deciding to change the law. And they changed the law

during the course of the process of the negotiations of

the contract that was being drafted as a result of this

application. They changed the law, and the 2014 law

talks about applications for shorter periods and longer

periods, and what would be required of each. But not

then.

If you go to the next slide (13), what in fact that

application for mining licences was governed by, what

anybody who would submit it would be referring to, [is]

the law that was in existence since 2008. This is

marked Claimants' Exhibit 20; again, it's a longer

document.

But if you go forward (slide 14), there's various

[Page 32]

12:54 1

articles about the mining application after the initial

exploration period and a mining licence for a large

concession. And not only were all of NRD's concessions

large; to Claimants' knowledge, these are the largest.

If not the five largest, they're within -- all of

them -- the top ten group of largest mining concessions

in the country.

So they're clearly applying in each instance for

large mining concessions. "... shall be for a period of

thirty (30) years", period. That's it. So no one

submitting an application for a mining licence for

a large concession in 2010 would deign to say, "We want

it for 30 years".

They did want approval and sign-off on a feasibility

study of only five years because that, they felt, would

be all that was -- and Mr Marshall will be addressing

this, and I'm sure he has addressed it somewhat in his

papers already -- that was all that anyone in the

industry was ever willing to take on. So they did want

to get Rwanda to agree to accept the feasibility study

and the projection out for only five years, as opposed

to thirty; but the licences it wanted were for

thirty years. That was the only licence to be given

under the law.

25 THE PRESIDENT: Yes.

[Page 33]

12:56 1 MR COWLEY: (Slide 15) Later that year the discussions with

Starck culminated. And because of Mr Marshall's

difficulties getting an explanation for how to address

BVG going forward with Rwanda's ministry regarding the

corporations registration, they founded Spalena and

acquired the ownership interest of NRD and inherited its

investment, including its application for a long-term

licence.

(Slide 16) That document is the Claimants'

Exhibit 68.

One moment, sorry.

MS DOHMANN: Mr Cowley, there is reference, as we see in

Chapter IV of the Mining Law of 2008 -- it's Law 37 --

Article 57 refers to a "vast mining concession", and you

have helpfully included that in your presentation

(slide 14). Can you explain to us what the "vast mining

concession" is about, and whether there was

an application that Mr Marshall relies on in relation to

a vast mining concession?

20 MR COWLEY: Well, a very good question, and I do not mean to

be unprepared to answer it, but I don't think I've

actually posed and gotten an answer directly the way

you've posed it.

I can say from my understanding and work with the

Claimants in this case throughout, my expectation and

[Page 34]

12:58 1

understanding of the answer to a question like that from

Mr Marshall, and the other Claimants' witnesses that

were involved in the mining industry and their own

specific mining concessions that they applied for

licences, refers to the large concessions as different

from small mines, where artisanal mining was the

long-term projected only economic use.

I haven't asked them to distinguish and identify in

writing whether what they refer to as "large"

concessions were all the ones designated as "vast".

I can't say, therefore, that there was a written

document between the owners of mining concessions and

the licences in Rwanda that specified by name the

so-called "vast concessions", as used in the law of

2008.

What I can say is the Claimants' witnesses who I've

spoken to that are involved in investment in mining

concessions talk about and acknowledge an understanding

within the industry that there was a divide between

large concessions and small concessions, and I have

always taken and understood what they reference as the

large concessions is the vast concessions as referenced

in the law. And someone investing in one of those

concessions was being asked to invest in developing,

industrialising, making significant long-term inroads to

[Page 35]

13:00 1

fully exploit a large quantity of valuable minerals, but

it would take a lot of investment over a long period of

time to extract them.

Someone had to come in with expertise and plan how

to do it; not only how to do it profitably, but how to

do it safely for Rwandans and the environment,

et cetera. They needed to be professionals, those with

real experience in the industry that would be paid to

come in and get it right. And that's why they asked for

these expert -- that's why they understood, at least,

they were being asked for these expert analyses,

feasibility studies, et cetera, to explain how someone

comes in and develops out a large-scale mine.

On the other side of the divide are mines that

no one was contemplating someone would find profitable

enough to do something like that, and that it was far

more opportunistic mining. Artisanal mining -- the

industry uses "artisanal mining" as, seemingly, a term

of art that everyone understands. But apparently, as

I've come to understand it, it could capture under that

umbrella individuals with a bucket, a pail and a shovel;

and it could include a more professionalised group of

workers tapping a vein and running with it.

But it wasn't such a rich vein, it wasn't so deeply

varied that significant equipment and other measures for

[Page 36]

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safety and significant entry to the vein and extraction,

et cetera, was required; individuals could do it with

manual labour, working together, and some equipment.

And industrialisation imposed as -- not just the vast

equipment, but power tools, you know, air compressors,

jackhammers, that sort of thing, where it would require

some capital, some business investment and oversight and

management, and a number of employees.

And those different groups -- and I'm sure those are

just a couple of permutations in the whole range -- all

fit under the umbrella, as I've come to understand it,

of what's referred to in the mining industry as

"artisanal mining".

As I have had explained to me, the divide in the

2008 law between the vast and the non-vast, or the small

mines, was the concept that non-vast mines would be

long-term artisanal mining, and the idea was to

opportunistically -- again, safely and environmentally

soundly, but opportunistically -- someone to come in,

exploit it and leave, and there was much less concern

about long-term damage and other things, because that

was never going to be put in the ground.

The vast mines include all of these concessions for

NRD. All of these concessions are, if not the largest

in their category for the minerals that are identified,

[Page 37]

13:03 1

they're within the top couple for the categories for the

minerals that are primarily expected to be extracted

from there.

Frankly, that became a bit of a sticking point as

time went on. Significant pressure was put on to break

it up: okay, Starck got five, Starck got five of the

biggest; maybe they should be broken up. Maybe give up

something and you'll be allowed to proceed. And the

reason, we say, that lingered behind that was because of

the size, because of the long-term value of these

concessions.

So they were clearly all on the vast side by

definition; that's our understanding. And that will be

far better explained by witnesses such as -- well, first

of all Mr Marshall, but he has other witnesses in the

mining industry that could talk about the distinctions

between the mines, and the size, and what constituted

the vast, and how they differed long term in terms of

projections and what was expected of them. I hope that

answers the question.

(Slide 17) So from that period of time, now

Mr Marshall is NRD. He's in charge, he's the director

on the ground. His equipment is coming over, working

with the miners who are operating it, putting their

money in to NRD. And he takes over the negotiation,

[Page 38]

13:05 1

from the submission that has already been on file, the

application, he takes over those discussions about

moving it forward as they anticipated.

Again, his understanding of the process was not new.

Through acquiring through investment the NRD interest,

Mr Marshall knew about the process, had the whole

understanding of how it worked, who to work with,

et cetera, for years, because he was involved with

Bisesero and he did understand from his own experience

exactly what he was doing.

He gave up Bisesero, in the sense that he was

willing to allow it to be taken back without arguing

about it, there's no question. But he was never really

gone from the mining industry. He focused on investing

in NRD, Starck's interest in taking it over.

So Mr Marshall was involved in the mining industry

throughout. He understood it. Taking over -- he was

working people he already worked with, people he already

knew; he was working with a process he already knew. So

this was all very familiar to him, he understood it, and

he had ongoing discussions for quite a long time.

Those discussions moved beyond the application.

What was submitted, was it correct, did it have all the

information, was the necessary first step, because the

initial NRD exploration licences expired in 2010. Their

[Page 39]

13:07 1

application to go forward and get the long-term licences

needed to comply with what they were required to submit.

That had to be reviewed.

(Slide 18) It did progress beyond that in the

discussions, and there's a witness statement, and you'll

hear from the witness -- I apologise, I forgot

Mr Bidega's [first] name, and I apologise to Mr Bidega

in his absence. Dominique Bidega and Mr Marshall on

behalf of NRD undertook, as 2011 went on, to be

discussing cooperatively -- just like from the

beginning, there's cooperation on "Let us tell you what

we're looking for, let us tell you what we're expecting

in the contracts, let's look at others".

This was nothing new to Mr Marshall and Mr Bidega.

We saw from the early 2006 emails it was the way things

were done. Everybody on the mining industry side wanted

the investors to come in and succeed. All the investors

came in and wanted to succeed. They worked together to

help build this out. It was a new, young industry, in

terms of privatisation, on both sides.

The cooperative working together was not nefarious.

The cooperative working together was not clandestine and

hidden. I say that, I feel I have to point that out,

because that's exactly how it's treated in Rwanda's

papers.

[Page 40]

13:08 1

Mr Bidega worked closely with Mr Marshall or NRD's

proposed contract because that's what was expected of

them. They wanted the contract to be acceptable to the

ministry, and ultimately the cabinet, with the

ministry's support. They didn't want it to fail.

So Rwanda now points out that somehow something

nefarious must be going on because Yahoo accounts of

Mr Bidega were used in these negotiations. That was

just true of the time. Having a rwanda.gov email

account was relatively new, and how it rolled out for

what employees at what time, we can't say. But they had

conducted business with their own personal accounts,

government business, for years.

And the lingering use of both, when they existed, is

true not just for -- and as the course of the hearings

go on, we will point out where others, including

Rwanda's witnesses, continued to use personal accounts

with absolutely no question or concern that that was

somehow inappropriate, at the same time as they had

government accounts, because it was such a long-standing

necessity to use those individual accounts for so many

years in the country. It continued.

Mr Bidega at this time will explain why he signed

this email (C-207) as director. His official title as

assistant is something that was also a mix, because, you

[Page 41]

13:10 1

know, Dr Michael, the official director, was both on

leave for studies abroad and on sick leave at different

periods, and therefore Mr Bidega had to assume the

responsibilities of director in his absence.

So Mr Bidega, officially the assistant director --

one of, perhaps -- but for the Rwanda Geology and Mines

Authority was working with Mr Marshall. And Mr Marshall

understood, as I understand from Mr Bidega -- true of

other applicants -- he was working with them on

contracts.

We're at a stage in 2011 where the administrative

agency that's responsible for working with the minister

of the mining industry that's ultimately to approve the

licences, he's working on behalf of the government, is

working on a contract for the long-term licences. That

means the application was not rejected, it was not

looked at as insufficient, it wasn't looked at as a step

that hadn't been met yet. You don't get to talk about

a contract until you're talking about finalising what

was expected to be approval.

Now, we argue the expectations, and that's obviously

an issue that the Tribunal's going to decide. But what

I'm suggesting here is the expectation that that's the

goal, the expectation that having in a provable

contract, one that will first and foremost be put

[Page 42]

13:12 1

forward and supported by the GMA -- or, excuse me, the

office is referred to repeatedly in documents as "OGMR",

Mr Bidega's office -- was only a step if the application

was something that was excepted to be acted on.

So when I say that there were expectations of

progressing towards a long-term licence, it's supported,

it's coming back to Mr Marshall that this is progressing

as normal, as always expected. The licences are to be

issued; the question is what are the terms, what will be

acceptable to the minister, et cetera. And those

discussions were well under way in 2011.

(Slide 19) In 2012 things hit a bump and they go

sideways, and the report back out as to "Is the contract

approved?" lingers. And Mr Marshall has spent a lot of

time and others of Claimants' witnesses have spent a lot

of time in their witness statements -- and I'm sure

you'll hear a lot of testimony and questions presented

to them about that during these hearings -- there's

a lot that went into; things started to go wrong.

In hindsight, in retrospect, what you can see -- it

seems apparent on its face -- is a string of things

going wrong in terms of Mr Marshall's expectation that

the contract negotiations would be completed,

face-to-face negotiations, terms documented, finalised,

never quite getting there. It was a long endurance

[Page 43]

13:14 1

test, and apparently one that he wasn't supposed to

endure and come out the other side of. Giving up seems

to be the -- having NRD, Mr Marshall and his investors

give up seems to have become the intent somewhere in

this period.

But at the time he did not know that. At the time

when we say his expectations were that the contract was

about to be approved, it's because of the discussions

that led to it and preceded it, and the purpose always

was: he should be successful. The Rwandan offices that

he was dealing with, the minister ultimately wanted

investors to be successful; Mr Marshall had no reason to

think otherwise. So the investments by BVG continued.

(Slide 20) March 2012, BVG invests more money in

acquiring -- over time, it wasn't all at one fell swoop;

I'm just suggesting this is the date of the

documentation as to the transfer of ownership -- but

equipment, heavy, small, et cetera, acquired by BVG,

starting with its original investment in Bisesero.

Going on and considering building out, developing,

meeting the feasibility analysis and expectations that

were submitted for the NRD concessions, all required

investment in physical equipment.

(Slides 21 to 25) Purchases were being made around

the world. Significant amounts of equipment were

[Page 44]

13:16 1

purchased by BVG's investors. These were all

transferred to Spalena. So that BVG, the investors,

treated the BVG interest as now part and parcel of

ownership of Spalena, which owns the parent company, all

of which is funnelling the money from the outside

investors to NRD in the country to operate/run the

mines, and all the equipment that is being acquired and

purchased with that long-term development of the mining

concessions is transferred for that very purpose, for

NRD's benefit and long-term use.

Because again, at this time Mr Marshall and his

investors' expectation was things were going as they

should be going. Keeping in mind that the investment

that they had made to date, the investment that they're

making in acquiring this large inventory of equipment,

this is not sufficient to meet the long-term goals in

build-out of five mining concessions owned by NRD.

The successful progress forward, including the award

of the licences, is necessary to fund raise much more

significant investment outside. Primarily, again,

Mr Marshall was identified again as the person with the

contacts in the US for investment. The idea was

investors would come in on those contracts with

a 30-year period of investment to realise the profits

from their investment.

[Page 45]

13:18 1

So BVG wanted their ownership of Spalena to be

clear, and this is how this transaction is documented,

so that BVG is clearly a major shareholder in Spalena,

and anybody putting money into BVG would be acquiring

an interest in the company that owned the parent of NRD.

So this internal transaction, and lining it up for

future investment, again consistent with the idea that

it all matters, that investment is going to be, you

know, one of the next steps after getting those

long-term licences for the concessions, was to raise

more money and more investors. They are lining it up so

that that investment vehicle makes sense, Bay View takes

a major shareholding in Spalena and it's all uniform:

a clean set of investment books for someone to come in

from the outside and add more to.

So this list we point to as some of the in-kind, the

assets, hard investments that BVG made in NRD,

through -- transferred to Spalena.

(Slide 26) But as 2012 goes on, those discussions

that Mr Marshall was expecting face-to-face with the

minister or otherwise, who the minister sought to work

with, finalising the contract just weren't scheduled,

didn't happen, and operational questions, operational

blocks for NRD started to pop up. The Rutsiro mining

operations, the minister's office shut them down in

[Page 46]

13:20 1

March.

(Slide 27) C-047 documents Mr Marshall on behalf of

NRD's complaint about the fact that this order of

shutdown comes and he doesn't understand it. There's no

explanation. Why is this happening? Discussions about

this getting back on track start taking over. And as

we'll see, and as you've already seen in the witness

statements, they become what -- all the energy becomes

burned up. What all the activity and energy is about is

just getting back to the minister treating them as

operational and moving forward, and that continues

throughout 2012.

(Slide 28) I point out that while this was going on,

while there seems to have been a gradual -- there

certainly was a pause in the discussions of the contract

to be signed for the 30-year licences. There seems to

be agitation about how the minister feels about

Mr Marshall or his investors, NRD as a whole. Perhaps

the concessions is the focus, but there seems to be some

agitation inside about how to deal with them.

Nevertheless, there was no question at that time,

contemporaneous, that Rwanda understood there was

significant investment in NRD for these five

concessions, stand-out investment compared to the other

mining concessions at the time.

[Page 47]

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(Slide 29) So in C-014 you'll see a promotional

manual put together by the Respondent, (slide 30) and

you'll see NRD identified as one of the investors.

Spalena is the owner, they acknowledged that.

(Slide 31) They go on to quantify a $39 million

investment. So in promoting the idea, soliciting other

interests in investment in the mining industry, they're

identifying the investors in NRD as already putting in

$39.5 million for their concessions.

Now we see and hear from Rwanda a very different

perspective: that somehow there's all sorts of

questions, and Mr Marshall can't document and back up

his investment. There was no question at the time.

They were so confident of it, they were telling other

investors to rely on their information.

(Slide 32) In August 2012 Mr Benzinge, one of the

early investors with the predecessor to Starck in NRD,

starts agitating that somehow he has a greater interest,

but he far overstates his interest. And the dispute of

that covers a number of topics that you're going to be

presented with in the course of the witness testimony,

because advising the co-investors at the time as to how

to deal with Mr Benzinge's interest and get all that

right and move forward so that their interest as a group

could be sold to Starck as sole owner, Rwanda's witness

[Page 48]

13:24 1

advised on that, his firm advised on that and helped

approve. Now it's all called into question, not only by

Rwanda but by the same individual.

(Slide 33) But Mr Benzinge's calling it into

question was promptly resolved by the office in Rwanda

responsible for maintaining the records of corporate

ownership, registering who the correct owners were. The

agency with the final say resolved this concern. [It

was a] very disruptive concern for a week, but it was

resolved by August 8th. So between August 2nd and

August 8th, Mr Benzinge was able to agitate and cause

a great deal of stress and problems for Mr Marshall.

Now, keeping in mind none of Mr Benzinge's

complaints about how he was handled and what was done

with his interest involved Mr Marshall. That's not his

investment. He bought it from someone who bought what

they understood to be all the shares in the company, and

the former shareholders, Mr Benzinge included, and the

Zarnacks, being paid by Starck, all of that was handled

before Mr Marshall, through Spalena, made their

acquisition from Starck.

But a great deal of agitation and disruption to

Mr Marshall's on-the-ground directorship and management

of NRD through his investor group's ownership was quite

a problem that Mr Benzinge forced him to deal with. And

[Page 49]

13:26 1

RDB did deal with it, got it straight, and Mr Benzinge

was put back out. And the RDB, in analysing the

situation, agreed as to who owned controlling shares of

the company, who was the majority owner, who had the

right to appoint the director.

Mr Marshall was restored to that recognised spot,

and at that time he thought it was over. It was very

disruptive. He was concerned that anyone within the

government would let someone like Mr Benzinge do this

all these years later, and based on his allegations. He

was complaining about it at the time. But it was

resolved by those people charged with the responsibility

to look into it; at least that's what Mr Marshall

believed.

(Slide 35) In September 2012, as the period for the

discussion about the contract finalisation of its terms

in signing the contracts for the long-term licences

continued to drag out, to Mr Marshall's frustration at

the time, nevertheless the Respondent identified that

they were remaining licensee at the concessions while

that application was being considered.

(Slide 36) I point this out not because, again, it's

the only communication about this; as Mr Marshall's

statements have made clear, there were numerous

conversations, in person and otherwise, about "Where are

[Page 50]

13:28 1

we on getting to these meetings and discussions and

finalisation?" But the reason for pointing out C-045 is

the spin that's put on it in an extremely legalistic

analysis of "What can we call something?"

Rwanda's position now is they want to decide as if

they're somehow gifted: they're permitted to remain, but

with no rights to be there after expiration of the

exploration licences, past the application period for

the long-term licences. NRD, they say, was not really

a licensee anymore. That's what reportedly they say to

them and to the general concession holders in

September 2012, a written acknowledgment that as these

discussions were continuing with the concession holders,

the existing concession holders -- I actually just

quoted from the part that's not highlighted, in between

the two highlightings:

"... as has been communicated to all the existing

concession holders ..."

That's how they're talking about NRD, Mr Marshall

and his investment group at the time: they're "existing

concession holders". Because "new contracts that will

be negotiated". They're being told, "We will be talking

to you about the contracts".

Again, I pause here. This is September 2012, months

after the application was filed, months in -- you know,

[Page 51]

13:30 1

it was the prior year that a draft contract was -- it

was in 2011. We saw a December communication. But in

2011 there were communications about, "Beyond the

application, let's start drafting a contract. What are

you looking for? What is acceptable?"

In September 2012 Mr Marshall is again being told,

his investor group is being told, "new contracts ...

will be negotiated". You're only in the phase of

negotiating a new contract with the original exploration

licence holders if their application was timely

submitted and considered appropriately, fully submitted

at the end of the exploration licences for the long-term

licences. That's all that exists under the law at the

time, the law that Mr Marshall thought was applying to

him and the other concession holders thought was

applying to them.

So when being told that, "We will negotiate

contracts with you", there is no question on the table

that, "We're considering your application and aren't

sure that you timely submitted one, we're not sure you

qualify". None of that happens at the time. That's not

contemporaneously what they say. [There's] only later

an explanation of, "Well, in fact you didn't and it

wasn't good enough; you must do something different".

But at the time, when Mr Marshall is saying, "That's not

[Page 52]

13:31 1

our expectation, that's not our understanding, that's

not what we were being told", and he's being accused of

lying when he's saying it, he points to Respondent's own

language, Respondent's own letters, and he says, "No,

what I'm saying I expected is what you're telling me to

expect: you will negotiate the contract with us. It's

just taking longer".

(Slide 37) But the disruptions to the actual

operations continue.

(Slide 38) In September, an example of a letter

complaining about, summarising some of those disruptions

that are going on with government officials' backing,

support, is C-049. Arrests and disruptions of the

miners and activities at the concession make it appear

that somehow there's a question whether the ownership,

the management, can maintain the security. But

Mr Marshall complains they're being singled out for such

bad treatment, they're being put upon, and the miners

are calling into question what is happening when no

question should exist.

(Slides 40 and 41) Then in September again, just to

stop operations.

(Slide 42) October, operations were allowed to

continue. After the stop in the western regions for

everyone, October becomes, "Well, operations may

[Page 53]

13:33 1

continue, but not NRD".

(Slide 43) C-050, a December 14th 2012 letter from

Mr Marshall, points that out, complains about this.

Again, why are they being singled out? Why are the

other concession holders being treated as if this

problem, this concern that's supposed to shut everybody

down, their operations can continue, they can continue

building out, they can continue trying to make the

revenue flow for their miners, et cetera, during this

time period; we can't? You know, why are we being

singled out? This becomes the constant theme of the

concerns that are going back and forth. Mr Marshall is

saying, "But you're treating NRD differently".

(Slide 44) It wasn't until February 2013 that

finally NRD can resume the mining activities.

(Slide 45) "... as we proceed with negotiations on

your request for new contracts ..." (C-056)

So the disruptions, the problems, the

head-scratching lack of answers to what's happening, the

ominous signals that he's not liked, or his company is

not liked, his other investors aren't liked, the fact

that he has these five big concessions isn't liked;

something is off somewhere, it seems, to cause these

constant problems. But again, repeated, despite the

problems, you're seeing one thing, you're experiencing

[Page 54]

13:35 1

one thing, "But hey, we're going to negotiate that

contract".

Again, we recite back. There's no question what

that means to anybody who's familiar with the 2008 law;

they've been operating under it. Contract for your

side's concessions: 30 years. That's what we're going

to negotiate with you. (Pause)

(Slide 46) In April Mr Marshall, on behalf of NRD,

is invited to continue to negotiate for those licences.

(Slide 47) He thanks them for that opportunity,

again confirming what he said his expectations were.

This is the communication that's going on on one level,

this is the discussion. He's expecting the negotiation

of a contract means terms will be set down and the

licence will issue, and he's being told to expect it

repeatedly, being invited to participate, and it doesn't

happen anyway. Not -- as you've heard from Mr Marshall

in his witness statements, and you'll hear if there's

any questions to him asked about it -- not because of

lack of effort by Mr Marshall, Ms Zuzana -- I apologise

for not being very good at saying her last name,

especially with a dry mouth. You've seen their reports:

efforts were continuous and they were tireless to make

it happen, but they're not happening.

(Slide 48) By October 2013, still it's out on the

[Page 55]

13:37 1

table, it's going to happen, it's going to be discussed:

"Let's sit down and talk about the mining licences".

(Slide 49) But look, it's April to October, it's

still being left as "Let's schedule a time, let's have

the conversations". The ability to get the contracts,

supposedly just some negotiations and discussions away,

but that dangled negotiation didn't happen.

Meanwhile, the entire time, the investment

continues. There's no abandonment of the concessions.

There's no stop of work, to the extent it could be done,

there's no stop of security, there's no lack of

maintenance. The concessions are being invested in just

to be maintained.

It is not the case that the investment, like a light

switch, goes on and off as you generate minerals from

a mine. To have roads to bring in the equipment to

bring out the minerals, to do things long term that meet

the feasibility study, work has to be done, preparations

have to be made, money has to be put in the ground. And

what is there and what is being done, and what people

are making the smaller revenues from artisanal mining

that's occurring has to be, again, maintained.

Employees have to be there, they have to be housed.

Money is going in. Not the kind of money that will

flow to build out the full-scale mines after the

[Page 56]

13:39 1

concessions, but that's doesn't mean nothing. And

that's how it's being treated here: as if somehow

there's some mystery that Mr Marshall must prove,

because records, you know, accounts, payroll, the rental

payments, the purchases for the equipment coming in and

building roads, because we can't put them on the table,

can't be. The roads were there, the people were there,

the housing was there. The plant that was, you know,

the best industrialisation example in the country at the

time, the plant had to be maintained. Whether it was

processing tonnes of minerals a day or not, it had to be

maintained; it couldn't just sit.

So whilst this is not happening in terms of the

30-year licence and more money is not pouring in to

ratchet up everything, money is still going in.

(Slide 50) Then things change. Now suddenly it's

the prism of: well, start over. And that's because the

2014 law passed. And in hindsight, the long-awaited,

long-dangled but somehow couldn't get held conversations

and discussions on the terms of those contracts that are

going to issue to you seems to be a stall tactic. It

seems to have been a wait-and-see, "This is what we want

before we have another meaningful conversation with

you". Because there was no explanation ever given why

a meeting couldn't be held about the contract. It was

[Page 57]

13:40 1

well underway in 2011. We're now in 2014, and suddenly

the world is supposed to change for NRD, because of the

enactment of the 2014 law.

(Slide 51) The position takes a 180 about-face.

We're negotiating new mining negotiations, but under the

new regulations. And as Mr Marshall has testified, and

as other witnesses have testified, there is an aspect of

the claim that is: well, again, NRD is singled out on

this. Again, NRD is being treated differently than

others on this point that were in the same situation:

original exploration licences, applications for

long-term licences. And other examples, not even as

good a state of current investment and development as

NRD, they're not reapplying and starting anew. That's

one aspect of it.

But the purpose of the selection of these items of

communication, to be very blunt about it, is to say: you

don't even have to look outside of NRD itself to see

a complete and utter change in position, that it does

not fit. This is not preceded by any reasonable

expectation that an investor prior to this date would

have as to what Rwanda's intention was with regard to

long-term licences for the five concessions, without

even asking: well, what are you doing with the other

concession holders?

[Page 58]

13:42 1

(Slide 52) July 14th, Mr Benzinge comes back and

says that he obtained an arbitration award,

an arbitration that NRD didn't attend, in which he

disputes a transaction that Mr Marshall and his

investors weren't involved in, and he says that the

result of that arbitration and what he says the

arbitrator said his real shareholding should be, that he

was deprived of, should allow him to take over NRD as it

currently existed.

Now, there's an awful lot to be said -- and there

has been some discussion by Mr Marshall at least, and

Zuzana as well, I believe -- about how challenging this

presentation was of Mr Benzinge in terms of going

forward with an arbitration where they had identified

a conflict of interest with the arbitrator and

Mr Benzinge and were expecting that conflict to be

addressed, and meanwhile the next thing they hear is

an award issued.

But more importantly, the logic of an idea that

someone who went from less than 1% interest holding to

a full 15% interest holding because of a shareholding

agreement with two owners removed, those owners who

treated him as a less than 1% interest holder in going

forward with a transaction, and were paid and left with

the money, Mr Benzinge said his award established they

[Page 59]

13:44 1

didn't treat him correctly. But to come to interest

holders later and say, "I want your company", as opposed

to going over the Zarnacks, who got the money and,

according to your maths, got your share very wrong,

"They're fine, I'll leave them alone; I want the

company". For a 15% interest holding, he wants the

whole company. And the Respondent gave it to him.

(Slide 53) Showed up with the bailiffs, took

possession, waving around an arbitration provision

calling him the 15% holder, 15% interest holding not

recognised. And Mr Marshall was put out, Zuzana was put

out. Now suddenly they're told, "You're not really the

owners/managers/directors; we'll deal with Mr Benzinge".

That's first by the bailiff, and then the minister

says, "Well, this is a big concern to us", which is, at

a whole other level, extremely frustrating to the

investors in NRD. Why is the Minister of Mines, the

mining industry, getting involved in what a shareholder

agreement on a transaction long ago occurred, [that] may

have been honoured or not honoured, and what it may mean

in terms of what Mr Benzinge is owed, why is the

Minister of Mines getting involved in that, if that

interest holder wants more money for a 15% share and was

treated as less than 1% owner?

NRD still exists. NRD has been handling the

[Page 60]

13:46 1

concessions. NRD has been investing, the entity in its

original licences, application for new licences,

contract proposal for the terms of those new licences,

all on the table. And to say, "Well, we can't deal with

you any more because Mr Benzinge says he owns 15%, so

nobody is getting anything, nothing's happening. And

you know what? You can't even sell your minerals".

There are miners. There's money being put in to

both secure, protect the concessions and the miners.

There's work being done, people are housed, things --

weekly, monthly, et cetera, money is going in to make

this happen, all relying on the revenues that can be

expecting some revenues to be generated while this

continues from that mining. And now suddenly it's all:

can't move, can't do anything with it. You can mine;

you can't generate a sale. We're just going to prevent

you from tagging.

And the background of this so-called "tagging"

requirement, all put in place to deal with the US import

regulations and statutes that prohibited importing

minerals or products made from minerals from so-called

"conflict countries", requiring assurances, requiring

averments about the lack of any such minerals coming

into the country from those importing. All this is

a huge concern. How are you going to deal with it when,

[Page 61]

13:48 1

for the long history -- as you've heard from some of the

Claimants' witnesses -- minerals were coming from Congo,

a conflict country, conflict minerals had been in

Rwanda? How are we going to assure that they are not

what is being exported from Rwanda?

(Slide 55) There's the tagging process. There's

going to be an independent body in place as to

assurances. And the tags are everything, because if

it's not tagged, well then it's not assured that it's

not a conflict mineral, you can't import it into the US.

So you can't really sell it in the open market if the US

imports are excluded.

(Slide 56) This is the lifeblood of the ongoing

industry in artisanal, as it may be at the time, smaller

scale, as it may be at the time. The ongoing mining and

selling of minerals in Rwanda from its mines requires

the application of these tags. Rwanda is in control of

it, working with iTSCi. And the Minister of Mines says

no more, no more to NRD.

If Mr Benzinge is a 1% interest holder or a 15%

interest holder, those minerals came from where they

came from. Those miners who put in the labour put it in

and need to be compensated. NRD needs its share of the

revenues to keep paying for the things that allow that

to happen and not have it fall apart. There's no

[Page 62]

13:50 1

question what stopping the tagging means. And the stark

disconnect between tagging minerals as validly mined on

site in Rwanda and Mr Benzinge saying, "I want what

Mr Marshall has, because other people years ago did

something that I don't like and that I think is wrong",

is astounding.

Nevertheless, in justifying this, Mr Evode Imena,

the minister at the time who made this decision -- it

was a personal decision -- he specifically, looking at

NRD, chose not to let them participate in a supposedly

neutral, as to be applied to everyone equally, law. And

he felt perfectly comfortable. So comfortable he's come

to you and said, "Yes, I did that, that's what I did,

the decision to specifically say no to NRD, because

I want to put pressure on them to regularise their

operations".

Operations, regularising operations -- operations

are being managed by Mr Marshall and his investment

group. So Mr Imena, looking at Mr Marshall and the

investors, said, "I want to send them a message about

what I want to see happening, so I'm going to stop

giving them the benefit of the law". That, we say, we

start this proceeding with a concession of a violation

of a treaty.

(Slide 57) The pressure then continues from

[Page 63]

13:52 1

Mr Imena's office. Got to reapply, got start over.

Somehow now, after the law of 2014 was passed, despite

what was treated and the reasons that have come forward

and nobody has got an explanation for -- "Okay, others

don't have to do it for all these reasons" -- we've got

to start over, as if the application was not timely and

fully filed. They're treating the 2010 application for

30-year licences as non-existent. Got to start over.

But as we've seen consistently prior to the law of

2014 passing, when apparently they knew what they were

looking for in the law and they were working to have it

accomplished, but it didn't exist, they were referring

to the contract negotiation stage. We're past the

application stage. And then it all becomes focused on,

"Well, your new application has got to be submitted".

There was a push for that again in August 2014.

(Slide 61) In October 2014, C-119, "Sorry to inform

you, the ministry has decided not to grant you mining

licences based on your new application".

So according to Rwanda's current position, of

course, when something like that is said, that's

definitely final, right? If they tell you "no", no

means no and you're done. That's not how it works.

That's not how it worked in Rwanda. They say

Mr Marshall is completely unreasonable to suggest he

[Page 64]

13:54 1

ever had an expectation that a yes could result after

a no, and yet after a "No, sorry, you're done", next

communication, at least the next communication I'm going

to highlight -- as I pointed out, I do not represent

that there are no communications in between; as a matter

of fact, I was going to refer to one.

(Slide 63) C-087 shows that -- I'm sorry, the date

is blocked -- oh, I'm sorry, it's at the top:

November 12th 2014. Because you pushed back to the no,

we say, "Submit new things": we are back and considering

a new application note. So no becomes yes -- well, no,

excuse me, I completely misstated that. I did not

intend to say it that way. No becomes "Maybe, let's

keep talking, keep trying". That's what he's in as

of November. That's what the investors are in as

of November.

Try again but start over. They of course say: we

did successfully start the application process, we're in

the contract negotiation phase, but they're trying to

comply. They're trying to appease Minister Imena.

Next slide. Oh, I'm sorry, this goes onto a little

bit of a different topic. So we have -- it's been

pointed out to me that we have five minutes to a break.

Before I jumble back and forth, I ask the Tribunal:

would you like us to break now? I will try to summarise

[Page 65]

13:55 1

this thing quickly and finish --

THE PRESIDENT: Yes, I think we'll break now, but we will

come back in 20 minutes.

MR COWLEY: Thank you, your Honour.

5 THE PRESIDENT: Break now and come back in 20 minutes.

6 (1.56 pm)

(A short break)

8 (2.22 pm)

9 MR COWLEY: Your Honour, may we start again? I'll wait for

your word. (Pause)

11 THE PRESIDENT: Can everybody hear me now?

12 MR COWLEY: Yes, sir.

13 MR WATKINS: Yes, we can.

14 THE PRESIDENT: Good.

I was apologising for the length of the break, which

was caused by the fact that the Tribunal had been thrown

into confusion by the hearing agenda, which is

defective, in that it suggests that in London we are now

going to sit until 5.00 pm -- that is for two and

three quarter hours -- when it should be 4.00 pm. So we

are going to sit, as I understand it, for one and

three quarter hours now.

At the end of the day I want to discuss tomorrow's

timing because the current timetable is not

satisfactory. The Tribunal needs a break of half

[Page 66]

14:24 1

an hour at the end of the first session of one and

three quarter or two hours, so that we can eat

a sandwich. And when people are present from Kigali,

they'll also probably want to have a bite to eat at that

stage of the proceedings, rather than waiting until it's

almost time for dinner before we have our lunchtime

sandwich.

Anyway, we'll sort that out at the end of today.

Meanwhile, let's go ahead until 4 o'clock our time.

MR COWLEY: Yes, sir, and my apologies for the error in the

hearing schedule.

12 THE PRESIDENT: One other point, please. The Respondent has

vanished from the screen. The Tribunal would be

grateful if the parties always have somebody on screen,

as it were, throughout the hearing.

16 MR COWLEY: Thank you, sir. May I begin?

17 THE PRESIDENT: Yes.

18 MR COWLEY: So in our timeline -- and as I mentioned before,

as a reminder, I am not suggesting that this is the next

event. Mr Marshall, Ms Mruskovicova -- I apologise for

mispronouncing her name again -- provided services to

Rwandan entities and agencies, but I highlight a couple

here, just for example purposes, and I'll go through

them really quickly. The substance is not something I'm

going to dwell on.

[Page 67]

14:26 1

(Slide 65) But in December 2014, in their other

capacity, Mr Marshall and Zuzana were working with

Ngali, which is an entity owned by the Rwandan

Government, at least in part. They were working with

them on a transactional manner, in a consulting and

advising role. (Slide 66) Exhibit C-133.

(Slides 67 and 68) December 2014, another request,

somewhat critical (C-095). They're asking again for

documentation that they want them to -- everything at

this time is from the perspective of "You must reapply".

They're citing the new application guidelines,

requirements; "new" being the 2014 law.

As you know, the parties' positions differ on this,

they have a split of views, and this was consistent at

the time. NRD/Mr Marshall believed that the application

was timely and correct, and accepted under the 2008 law,

and this was just not a point that the minister was

giving on. And Mr Marshall did the best he could to

maintain his position and yet try to comply by

resubmitting a renewed application.

(Slide 70) Work continues in their other capacity:

in this case, on behalf of the Rwandan Government.

Ngali, the entity that's owned by the Rwandan

Government, at least in part, in a United States

transaction, purchased helicopters. Again, I apologise

[Page 68]

14:28 1

for going quickly here, but I'm not getting into the

substance of the work being done here as important to

this presentation. I will explain shortly the reason;

I'm just laying out the context.

(Slide 72) In February 2015 Minister Biruta confirms

on behalf of the Respondent that the renewed application

is under review. (Slide 73) Again, referring to it as

the "long-term license" application. And still work is

going on.

(Slide 74) The other capacity that Mr Marshall and

Ms Mruskovicova were in the country from the earliest of

days, working with Rwanda in their advisory and

consulting capacity, handling another -- helping to

facilitate. So this is the role of sort of a face,

a representative for Rwanda in making a relationship

connection, so that a transaction could be discussed

between the representatives of Rwanda and the

Slovak Republic.

Again, I stress this as just the context of: this is

a very trusted capacity. Rwanda is relying on

Mr Marshall as a face, as a voice for it in dealing with

very serious, presumably very valuable transactions and

other matters for the country, while this is happening.

(Slide 76) In March, NRD meets with the RDB to

discuss ongoing issues and concerns relating to the

[Page 69]

14:31 1 operations of NRD, ongoing concerns about how they're

2 being treated and dealt with. They're not in

3 a satisfactory position yet as to how they're being

4 treated on this application, on this side, with regard

5 to the mining investment, at the same time that these

6 other transactions and other relationships with

7 Mr Marshall and Ms Mruskovicova are continuing.

8 (Slide 78) Then we get to May. After a few months

9 of considering it, Mr Imena informs NRD -- Mr Marshall,

10 on behalf of NRD -- that the renewed application is

11 denied.

12 (Slide 79) Similar: "I ... regret to inform you that

13 you will not get them" (C-038). Similar "no" as in

14 2014.

15 (Slide 80) But it goes on. In order to finalise

16 this -- we're saying no, recognising that they're there,

17 they're operating, they're maintaining, they are

18 running, to the extent they can, the mining concessions.

19 No one else is. You're going to have to hand them over.

20 The government is saying no; the government is going to

21 go forward and take over. And all five concessions are

22 expected to be handed over, because those perimeters,

23 those areas, the security for those areas is being

24 provided by the investors' money, NRD's owners' money.

25 The maintenance, the extent anybody is acting

[Page 70]

14:32 1 responsibly to maintain them and continue them, all

2 through this time has just been the investors in NRD.

3 So that's going to be turned over now because of the no.

4 (Slide 81) That doesn't happen. And just like in

5 2014, where we were told no, Mr Marshall has provided

6 a witness statement saying, "I didn't expect we were

7 done. I expected the process to continue. We continued

8 to make efforts to negotiate and find what the issue was

9 that was holding up the willingness to issue the 30-year

10 long-term licences, negotiate an agreement on how to

11 resolve it and go forward". He believed sticking with

12 that process was the only way to get what they invested

13 in and have a potentially favourable outcome, as opposed

14 to being done, calling it quits and suing.

15 Rwanda's position is, "It's completely unreasonable;

16 you never would have expected it". But that's exactly

17 what happened in 2014. Months go by; the no wasn't

18 really "no", the no was "maybe". Further

19 considerations, further discussions held out as

20 possible, four long-term licences, as they said, despite

21 the no. And it's not just no: it's no and "We're taking

22 them over". Well, when are you taking them over? Then

23 we're done.

24 They don't take them over. They do not take any

25 steps to actually implement the no. And yet Rwanda's

[Page 71]

14:34 1 position is: NRD's investors must have known it was

2 over. They had to leave. There was no possible

3 reasonable expectation of a yes from here.

4 Well, if they left, they would have been abandoning

5 the site. The government wasn't taking them over, not

6 from them, and not really ending their control and

7 possession of the concessions; not for quite a long

8 time.

9 (Slide 82) It's not just Mr Marshall who says in

10 this interim period, "I did not believe we were done.

11 I did not think it was over and declared that Rwanda was

12 not going to issue the concessions, not leave us with

13 the concessions, and instead take them back". We see in

14 the record Mr Marshall has presented -- the Claimants

15 have presented other interactions with the government

16 where confusion is expressed as to, "Well, who actually

17 owns it now?" The government is not saying externally

18 or internally to others any clear answer that suggests

19 the Claimants aren't the owners, through NRD, of those

20 concessions and in charge of them.

21 In this particular June 16th 2015 communication

22 (C-120), there's reference by a potential outside

23 investor, who is in the country to look at potential

24 investments, being shown the NRD concessions and having

25 it referenced to him. Now, this is not Mr Marshall

[Page 72]

14:36 1 doing this and inviting them in; this is the government.

2 They refer to Mr Marshall as the owner, and he's

3 reaching out for some information about their

4 concessions and their operations. That's based on

5 information they're getting from the government and

6 whoever they're working with to talk about a potential

7 investment. That is not Mr Marshall causing the

8 confusion: he's just receiving this and recognising

9 they're still being referred to as the owners of the

10 concession. It's June 2015.

11 (Slide 83) There's an iTSCi transaction report

12 (R-226). As we've mentioned earlier, we've heard a lot

13 and you've seen a lot of detailed information about the

14 tagging of the minerals and the import, and who is

15 running it is iTSCi. There's an occurrence report that

16 iTSCi prepares, and this is reporting to the government,

17 and this is an agency that's working with the government

18 to implement its laws, its process of tagging and

19 monitoring the mines for the government.

20 There was a death at one of the concessions in

21 September 2015. The government's arm, the body it

22 worked with to set up and to help it implement its rules

23 and its laws regarding mines, is reporting on its

24 incident report in September 2015: this is an incident

25 at NRD's concession.

[Page 73]

14:37 1 Now, the Respondent is saying here: Mr Marshall is

2 not telling the truth when he says that after May, he

3 considered himself still at the concessions, with

4 potential ongoing interest in them and ownership, and

5 that everything was going to turn out with, you know,

6 right for what they understood all along was eventually

7 a negotiation of a mutually acceptable term for 30-year

8 licences. That's completely unreasonable, he's making

9 that up, couldn't possibly.

10 Internally, so to speak, within the government's

11 dealings with iTSCi, it's not reporting to iTSCi, "Those

12 are our concessions now, so this is an incident where

13 the government is in charge of the area where this death

14 occurred". That doesn't happen until, if you see

15 because this is obviously a system that is interactive

16 and ongoing, because if you see in the green at the top,

17 "Rwanda: July to December 2015 (status as [of the]

18 end" -- excuse me, "July to December 2015", and this

19 status, this report, was printed at the end of 2016.

20 So information is being added over time. The

21 initial start date is shown as a September date in 2015;

22 the end date, the last entry, is a date in 2016. That

23 end date entry in 2016 is that the site is to be

24 publicly tendered.

25 The GMD was contacted about the question of NRD and

[Page 74]

14:39 1 the site is to be publicly tendered. That's reported to

2 iTSCi as to who's in charge, who it should be dealing

3 with to try to remediate/address incidents like a death.

4 The government finally tells it in 2016, "Well, that's

5 us. You're not dealing with NRD anymore; you're dealing

6 with us". And as the Claimants have explained, it's

7 2016 when they really knew they were done, they really

8 knew they were out.

9 (Slide 84) In September 2015 they were told to take

10 all their belongings and get out of the offices. So it

11 wasn't even until September 2015 that the government

12 took any action to prevent NRD's investors, the

13 Claimants, from operating the main offices. They had

14 them take their materials out, closed off their office

15 to them in October 2015.

16 (Slide 85) C-163 is the text messages in which they

17 were informed that was happening at the moment. No

18 advance notice, just: this is happening now, they're

19 going to close up your offices and you've got to be out,

20 you're not going back in.

21 (Slide 86) In January 2016 Mr Marshall, in response

22 to discussions that he was having -- and I'm going to

23 cover that backwards in a moment -- but despite the

24 discussions that were happening up until then, where he

25 was encouraged that things may not turn out as badly as

[Page 75]

14:41 1 the May letter suggested, "Stay with the process, don't

2 do anything precipitous" -- I'll come back to that in

3 a moment -- in January 2016 he was told it changed, and

4 now that's no longer a possibility. "Rod, it's not safe

5 for you to come back to the country, it's not safe for

6 you here, it's over".

7 That was January 2016. Between 2014, 2015, through

8 January 2016 and in fact longer, the Claimants were

9 spending the money on security. The Claimants were

10 spending money on maintenance for the equipment and the

11 plant that was on the ground, to keep it ready to be

12 pushed forward and operated for mining. They were

13 paying for all that; the government wasn't. They

14 continued to pay for it even after January 2016, but

15 they were trying to cooperate. And certainly with

16 Zuzana remaining in the country, they weren't going to

17 do anything that made anybody react in a way that

18 Mr Marshall was warned he would be treated if he came

19 back to the country.

20 So from January 2016 on, they tried to appease and

21 just turn over quietly control, and they continued to

22 pay out of their pocket for certain expenses. But he

23 knew then, and for the first time, the concessions were

24 not possibly going to be the Claimants'.

25 The reason I highlighted but didn't spend any time

[Page 76]

14:43 1 on the substance of the representational capacity in

2 which Rwanda was relying on, utilising, working,

3 cooperating with and trusting the principals of the

4 Claimants throughout 2014/2015 is when Mr Marshall in

5 his witness statement says that he was being encouraged

6 to stay with the process, "Don't do anything

7 precipitous", he firmly believed -- had every reason to

8 believe -- that the people who wanted him there, who

9 wanted him to succeed in his investment, to be

10 a successful investor in Rwanda with the concessions,

11 and continue to be there and work in the capacity as

12 representative of Rwanda, he had every reason to believe

13 they were just as powerful, just as influential; that

14 ultimately their view of what should happen may prevail,

15 and not Minister Imena's.

16 The suggestion by Rwanda that once Mr Imena spoke,

17 the only assumption the Claimants could draw is that he

18 spoke and it's done simply does not align with the

19 reality that it's a very fluid situation, and others who

20 have as much ability to potentially influence and

21 dictate the outcome of this were on the other side, and

22 did not want Rod and the Claimants to leave, did not

23 want them to do anything themselves to end the

24 investment in the concession, and it was entirely

25 reasonable to believe that they may have the ultimate

[Page 77]

14:44 1 say. Knowing how closely they worked internally in the

2 Rwandan Government, the Claimants knew the outcome was

3 not determined until it was determined. And that

4 message as to how it was determined was delivered in

5 January 2016.

6 (Slide 87) It wasn't until March 2016 that

7 Respondent actually tendered the concessions and

8 nationalised them, took -- you know, obtained new money,

9 profited from taking back the concessions that were

10 originally awarded to NRD's investors and re-awarding

11 them.

12 (Slide 88) So the violation of expropriation really

13 occurs ultimately in March 2016. There were many steps

14 along the way that impaired the value, but the value was

15 nationalised and taken back and capitalised on in

16 March 2016.

17 (Slide 89) In January 2017 former minister

18 Evode Imena was arrested.

19 (Slide 90) Allegations against him included he was

20 charged with favouritism in how he was awarding licences

21 (C-190):

"Prosecution alleges that [Mr Imena and his

23 co-conspirators] registered a company which was

24 fraudulently awarded a license to conduct mining [in one

25 of the concessions]."

[Page 78]

14:46 1 And that these events happened in 2013/2014. Again,

2 raised with the context in terms of whether Mr Imena's

3 position within the government, what he was doing and

4 how people viewed him and what they wanted to see as

5 an outcome, was clearly going to dictate -- Mr Marshall

6 points to this and says the reason why some people felt

7 he was very vulnerable and would not have the final say,

8 and ultimately be around, were reasonable to believe,

9 could very well have turned out to be true, and --

10 THE PRESIDENT: Is it correct that he was acquitted of these

11 charges?

12 MR COWLEY: The document that you ordered be given to us in

13 full translation will tell us the full content of what

14 was said in one judgment. We're not sure if it's all.

15 We do know that in the document that they point to,

16 there was a private party that was looking for

17 compensation. We know that from the two paragraphs that

18 were translated.

19 I don't have any ability to say, on the face of

20 those two paragraphs and these articles, how those two

21 align. Why a private party would be seeking

22 compensation in a court proceeding, and that be the

23 court proceeding in which criminal liability is

24 determined, I don't know. The primary reason we ask for

25 the full translation is: before we fully comment on the

[Page 79]

14:48 1 import of those two paragraphs, we would like to know

2 the entire context in which they were rendered.

3 We do know that the co-conspirators were found

4 guilty, which wasn't reported by Mr Imena. So the idea

5 that there was nothing to this is greatly exaggerated.

6 (Slide 91) The sum total, in terms of summing up our

7 presentation -- I apologise for going so quickly at the

8 end and slowly up until now, trying to hold to our time.

9 There's four articles of the investment treaty that we

10 say have been breached, have been violated. They are

11 obviously -- as in many cases is true -- overlapping in

12 terms of the conduct and actions that relate to one and

13 relate to the others.

14 (Slide 92) In terms of national treatment, clearly

15 the American investors were not given -- and we've

16 established and we've put forward some of those early

17 exploration licence holders who were in no better

18 position, in submitting applications for long-term

19 licences, to get them, in terms of the very issues that

20 are held out as the reasons for rejecting Claimants in

21 the end.

22 The amount of industrialisation: well, Claimants had

23 more. The status of the investment. Just like the

24 Claimants, the real investment in developing was held

25 out by Tinco as: after the licences are issued, that's

[Page 80]

14:50 1 when our outside investors will come in and the real

2 money will be put in. Everybody understands why.

3 Everybody gets the nature of big business and what

4 they're looking for in terms of a secure investment. It

5 was accepted as reasonable for Tinco; wasn't accepted as

6 reasonable, or put forward as a ground of, "No, we're

7 not willing to accept it from you, Claimants".

8 (Slide 93) Well, the issue for the treaty is Tinco's

9 joint venture, at the time of the award, with

10 a state-owned mining company, about 90% of that company.

11 So the award, the benefit of the award, the benefit of

12 their interpretation of how these requirements should

13 apply to Tinco was for the benefit of a Rwandan

14 investment, the state itself, and one of its commercial

15 arms, primarily. That only changed very recently in

16 terms of giving Tinco the majority control, and that was

17 another issue in terms of the documents that we talked

18 about this morning. So for the entire period that was

19 applicable to these applications, this different

20 treatment was for Rwandan benefit, primarily.

21 (Slide 94) Most favoured nation treatment, a clause

22 that just inexplicably is not really dealt with by

23 Respondent or the United States, but clearly any

24 investor would look at this.

25 (Slide 95) If they're an American investor, they

[Page 81]

14:51 1 can't be treated worse than anybody else. Nobody else

2 is going to get favoured deals or favoured treatment.

3 Again, for the reasons we just stated, that's not

4 true. You know, the Rwandan, and dealing with the

5 South African joint venture, was clearly given better

6 interpretation. A different application to the

7 application of 2008 law, not 2014. A different view of

8 what meets the standards, even though the standards

9 overlap to a large degree. And it can't be said that

10 the same rules were applied to both sets of investors.

11 (Slides 96 and 97) Minimum standard of treatment.

12 At the end of the day they can't be grossly unfair. And

13 what we put up regarding some of the conduct in 2012 and

14 the details, you have far more events and conduct. The

15 number of events that impaired the ability of the US

16 investors just to maintain what they had and wait out

17 the award of the licences until more fundraising would

18 come in was constantly being jeopardised and impeded,

19 seemingly as a way to just exhaust them and make them

20 leave. If they give up, then they have no claim under

21 the treaty or claim under the original licences.

22 (Slide 98) The bad acts in terms of unexplained

23 shutdowns, reopenings with the exclusion of the

24 Claimants' concessions, without differentiation or

25 explanation.

[Page 82]

14:53 1 The failure to tag, so that in Mr Imena's mind the

2 operations of NRD and the people operating it,

3 presumably is what he meant, could be regularised. What

4 does "regularised" mean? What he wants to say. So make

5 him happy, the tags will happen. Without the tags, no

6 money is flowing. What will happen other than, at some

7 point, you exhaust the people holding the concessions

8 and make them leave?

9 That, we say, is all knowing violation of just basic

10 minimum standards of treating an investor like someone

11 who has an interest in the country that you're going to

12 recognise and treat fairly.

13 (Slides 99 and 100) And obviously, expropriation.

14 There was expropriation of certain aspects of the value

15 of the investment: the flow of revenues from tagging,

16 minerals that can't be sold. Now those minerals

17 disappear, they go somewhere else. The tagging problem

18 and the mis-tagging of problems associated with smuggled

19 minerals from Rwanda was always one of the problems, and

20 I'll get back to that in a moment.

21 So the minerals are all somehow getting to market,

22 but not tagged in a way that the Claimants' concessions

23 share in any of that revenue for a prolonged period of

24 time. Well, you could call that an expropriation.

25 There were events like that that expropriated certain

[Page 83]

14:54 1 aspects of the profits or revenues that would flow from

2 the concessions while they were being held. But the

3 real expropriation in terms of the value of the right

4 occurred in March 2016, when the concessions themselves

5 were resold by the Respondent.

6 THE PRESIDENT: Could I ask for a little clarification on

7 this point. I have no difficulty in understanding what

8 you talk about, the real expropriation: your claim, you

9 say, that you didn't appreciate until March 2016 that

10 you were not going to get the 30-year long-term

11 concessions that you contend your clients were entitled

12 to. That I follow.

13 But during the year 2012, there are a number of

14 incidents that occurred, of which you complain, which

15 would have resulted in loss to NRD, individual losses,

16 such as losses when they were unable to tag minerals for

17 sale. Are you making independent claims for those

18 losses, or is your claim limited to a claim for the

19 deprivation of the 30-year concession?

20 MR COWLEY: I'm going to answer that it's the latter, but

21 the explanation is it's not as clean-cut as one or the

22 other, in this sense: in the loss -- the expropriation

23 of the 30-year licences, the right that they bought into

24 to have the 30-year licences awarded under the 2008 act,

25 the expropriation was a very long, slow process,

[Page 84]

14:56 1 dangling the whole time, "We're going to negotiate that

2 with you". But it was very prolonged, and ultimately,

3 in the end, intended not to issue the licence but to put

4 in place first a law that would so-called "justify"

5 saying no.

6 That treatment, the expropriation by staying, not

7 processing, then putting in place something and pointing

8 to it and saying, "Well, now we get to take it back",

9 winds up including the -- throughout that time, if we

10 weren't going to give up, if we were going to be able to

11 maintain the concessions, the Claimants had to continue

12 to put a lot of money into maintaining operations,

13 securing, et cetera.

14 So expropriation isn't just: (inaudible) you lost,

15 let's quantify, have someone come in and say what's the

16 value of those concessions on that day; it's bleeding

17 them of all the money over time. No question that the

18 amount of money they have to put in goes up based on the

19 events that caused cost, caused losses, but the

20 expropriation was not a one-time event. If our claim is

21 upheld, that means they had the right to those licences

22 in 2012, and they were bled for quite a long time until

23 the entire situation could be repostured and then

24 supposedly justified in saying, "You know what? You're

25 not going to get them at all anymore". And we say that

[Page 85]

14:58 1 significant losses were sustained as part of the

2 expropriation over the period of time.

3 I hope that answers the question. I would say it

4 this way, I think it's a clear answer this way: in 2015

5 the powers that be that were encouraging Rod to stay the

6 course, do not walk away, continue to press for the

7 concessions and this all may turn around, did turn

8 around: Minister Imena was replaced at the time, in my

9 hypothetical; concessions were awarded.

10 Do I believe that under the treaty a claim could be

11 made that, despite owning the concessions for the

12 long-term value, being able to work, money was lost

13 based on actions by the Respondent that caused some

14 seizure of property, some blocking of being able to

15 profit and earn revenue from minerals and seizing of

16 other property which wound up in losses with the conduct

17 of their agent, the person they worked through,

18 Mr Benzinge, or the person they allowed to act in such

19 a malicious way, taking materials? I believe a claim

20 could be made, even with the concessions, that that

21 constitutes expropriation of some value of the

22 concessions, some property that was invested, and they

23 would have to decide just to sue for that or not, and

24 they haven't, they didn't.

25 So as a standalone event, the seizure of the

[Page 86]

15:00 1 property and then return of the property, and now

2 equipment is missing, now things are gone, the loss of

3 profits over the period of time that there was no

4 tagging, are not being sued upon independently. They

5 are part of the sustained losses that went into

6 a prolonged expropriation, through which time the

7 Claimants were losing money the whole time, waiting it

8 out.

9 THE PRESIDENT: Thank you very much.

10 Does that conclude your opening submissions? If you

11 need ten more minutes, you're entitled to them, because

12 we ate into the time --

13 MR COWLEY: (Slide 101) This is the last slide, and I will

14 be brief. I think my intention all along was never to

15 take the full time, and I didn't do a good job. That's

16 my fault. I will just try to briefly summarise.

17 The statute of limitations element is one of the

18 defences put forward that says: well, regardless of the

19 merits, regardless of how the dispute comes out as to

20 who did what to whom when, sued too late. The Claimants

21 did not sue too late. At least one of the claims only

22 triggers in 2016 and the other claims trigger after

23 2015. At some point a decision was made not to issue

24 the licences. But until then, the Claimants were in,

25 actually vying for licences that could issue, and well

[Page 87]

15:01 1 within the statutory period.

2 In terms of personal jurisdiction as to BVG, BVG

3 made an investment in NRD before it completed the

4 transaction with Starck, selling the owner of NRD to the

5 Spalena entity created to take the shares of the holding

6 company. It already invested and started to plan for

7 pursuing its mining interests through NRD. That's

8 sufficient to trigger personal jurisdiction from BVG.

9 Arguments about how much to quantify it, nit-picking

10 about whether somebody saw every aspect on a list of

11 properties that were invested in addition to cash, all

12 of which goes to the second stage. Not only were we not

13 required to quantify it in detail, we were told we

14 couldn't. We're not here to present how big a loss all

15 this was.

16 So all we've done is show that BVG is a qualified

17 investor. Spalena acquired the shares. BVG's money was

18 put into it to make it happen, and it became a co-owner

19 of Spalena. But even before, when Spalena first

20 acquired the shares in the holding company, BVG was

21 already directly an investor.

22 In terms of subject matter jurisdiction, clearly

23 that's a different way of spinning a legal argument on

24 the same argument that the investment is not the right

25 type of investment. Of course it is.

[Page 88]

15:03 1 I don't understand how any US investor, but through

2 vehicles such as this, would invest in NRD, but for

3 loaning it money to buy operations and pay for

4 operations on the ground, putting in more capital so

5 that big equipment could be purchased, et cetera. The

6 same course would have followed when millions more were

7 raised in future investment, as planned, with the

8 long-term licences, but it would have been the same

9 vehicle and the same transaction. That's the only way

10 to invest in these mines for the US investors.

11 In terms of consent to arbitrate, it's entirely

12 superficial and it is entirely created for the purposes

13 of this argument that anybody from the Respondent ever

14 asked for a distinction as to which hat Mr Marshall was

15 wearing, Spalena or BVG or NRD director; now put on

16 a different hat and talk about your managing investor

17 role for BVG or Spalena. It's all artificial. Of

18 course, as the lead investor, as given control by his

19 other investors of both investment vehicles, and as the

20 director in charge of all operations of NRD, in which

21 their investment was being managed, Mr Marshall was the

22 only point of contact.

23 So the idea that, in response to BVG's notice,

24 Rwanda, who decided it had no intention to talk to him

25 about resolving his claims at all and let that pass,

[Page 89]

15:05 1 should have been told -- and Spalena too, to the extent

2 that the transaction that closed the purchase to acquire

3 the shares of the holding companies in Spalena's name --

4 wearing that hat, Mr Marshall also invites you to

5 resolve the loss of his investment based on these

6 claims, then they would have discussed it with him in

7 that hat, is completely artificial, is an attempt to

8 say: we can do everything wrong, but until you tick

9 every box on which capacity you might be talking to us,

10 we are not knowing and [will] not talk to you, but we're

11 saying you're waiving your rights, silently.

12 This is clearly a challenge with no meaning

13 whatsoever in terms of the purpose of the requirement

14 for notice and the parties to try to resolve things

15 without bringing it to this level.

16 I apologise for going a little over what the stated

17 time was, and I appreciate your patience throughout this

18 argument.

19 THE PRESIDENT: Thank you very much.

20 Mr Hill, we'll go on until 4.07 our time, so that

21 you make up the fact that you're starting a little bit

22 late, and we'll shorten the next break by seven minutes.

23 MR HILL: Thank you, Mr President.

24 (3.06 pm)

[Page 90]

15:06 1 Opening statement on behalf of the Respondent

2 MR HILL: We would submit that this is an unmeritorious

3 claim that fails on its merits, and also fails because

4 of the preliminary objections to it that we have.

5 I propose to deal with our points in that order,

6 spending most of my time today on the merits of the

7 substantive case, so I can give what I hope is a helpful

8 guide to the evidential material you're going to see

9 this week, and then say a little about some of our

10 preliminary objections, which we suggest are also fatal.

11 So beginning with the merits, as we sought to

12 explain in our skeleton, at its heart this is quite

13 a straightforward case, and one where the merits are

14 wholly one way, and against the Claimants; and all that

15 one needs to do is go through the history of events,

16 sorting the wood from the trees, to see that. That's

17 what I hope to assist you with today, and also in the

18 cross-examination you will see, in particular of

19 Mr Marshall.

20 We would suggest that a lot of the picture from

21 Mr Cowley that you saw painted today did go some way

22 beyond what the evidence in this case actually shows.

23 There's one key aspect of the Claimants' claims and

24 then a number of sideshow or subsidiary points.

25 The key aspect of the case relates to the Claimants'

[Page 91]

15:07 1 allegations regarding NRD's alleged entitlement to

2 long-term licences over the five concessions. As you

3 know, the gist of the Claimants' case -- and you've

4 heard it again today -- is that there was an assurance

5 and a guarantee of long-term licences, on the strength

6 of which investments were made, and that that guarantee

7 is to be found in the 2006 contract and also in various

8 other assurances they say have been made.

9 The Claimants then say that NRD made an application

10 for long-term licences in November 2010, and they say

11 that while the licences were not immediately awarded,

12 the assurance of long-term licences was reinforced by

13 various extensions that Rwanda gave, or indulgences

14 allowing NRD to stay on in the concessions.

15 The Claimants say that when NRD was not ultimately

16 awarded licences, and in 2015 was told to vacate the

17 concessions, that this amounted to an expropriation and

18 breached the Claimants' rights as investors in Rwanda,

19 through NRD, under the bilateral investment treaty or

20 under customary international law. By the time of the

21 Reply, this case has been, in fact, fleshed out by way

22 of a somewhat absurd, we suggest, conspiracy theory,

23 which does keep growing, and I'll come back to that.

24 Now, none of that case has any substance. We would

25 highlight eleven points at the outset.

[Page 92]

15:09 1 First, there was quite obviously no guarantee of

2 long-term licences in the 2006 contract. NRD was given

3 a right to four-year licences and, as you would expect,

4 any expectation that this would then lead to long-term

5 licences depended on NRD fulfilling its obligations in

6 the four years and then delivering a satisfactory

7 feasibility study to prove to the government's

8 satisfaction that it was deserving thereafter of

9 long-term licences.

10 Secondly, there were no assurances outside the

11 contract that NRD was automatically entitled to

12 long-term licences or anything like that. We will go

13 through some of the sources for these assurances that

14 have been identified by the Claimants in their memorials

15 and identified by Mr Marshall, and there is nothing in

16 any of them. Much of it consists of what we would

17 suggest is a grotesque misreading of many of the

18 documents in the case.

19 It's worth remembering that Mr Marshall was not on

20 the scene at all vis-à-vis NRD when the NRD contractual

21 relationship started with the government in 2006. He

22 didn't arrive, as regards NRD, until late 2010. There's

23 no evidence whatsoever of any assurance before his

24 arrival, and all the evidence is to the contrary.

25 Now, Mr Marshall, I would say, did have previous

[Page 93]

15:10 1 form in running -- unsuccessfully -- a concession at

2 Bisesero, which had been granted to Bay View Group. The

3 licence to that concession was not renewed, as a result

4 of BVG's underperformance, and no complaint has ever

5 been pursued that that was unlawful. So Mr Marshall

6 cannot seriously suggest he received any assurance in

7 that capacity either, even were that relevant.

8 Thirdly, when Mr Marshall's company Spalena

9 purchased NRD for just [Redacted] at the end of 2010, he

10 knew that there was no assurance of a long-term licence,

11 and indeed he was specifically told that NRD was

12 unlikely to obtain long-term licences. What he was

13 told -- correctly -- was that the level of exploration,

14 resource estimation and industrialisation done by NRD

15 had fallen far short of what was expected of any

16 operator looking for a long-term licence, and the most

17 that NRD could hope for would be a renewal of five-year

18 exploration licences to give them a chance of doing what

19 they should have done in the first four years, but even

20 that was uncertain.

21 Fourthly, when NRD applied for a renewal of its

22 licences shortly before the expiry of the four-year

23 terms, they didn't even apply for long-term licences.

24 Because of the limited exploration and industrialisation

25 work that had been done, NRD knew that long-term

[Page 94]

15:12 1 licences were out of the question, and they applied for

2 a renewal of five-year licences.

3 It's worth looking at paragraph 18 of the Claimants'

4 pre-hearing brief on this, if that could be pulled up.

5 MR BRODSKY: Yes, I can pull that up. Can you help me:

6 that's in the pleadings?

7 MR HILL: I don't know, I'm afraid, is the answer to that.

8 They were filed on Thursday, last Thursday. I don't

9 know where ... It is, I'm afraid, worth taking a moment,

10 because I've got one or two other references to this

11 document. So it would be helpful if that could be

12 located.

13 MR BRODSKY: I will look for that amongst the files that

14 I have access to.

15 MR KAPLAN: I don't believe it is with FTI, given it was

16 just filed, but I can get it to FTI. It will take a few

17 moments.

18 THE PRESIDENT: Ms Dohmann has got a hard copy. I've got

19 a hard copy which I will share. So we can proceed

20 straightaway.

21 MR HILL: I'm very grateful.

22 In paragraph 18, what's said in the second sentence

23 is:

24 "The contemporaneous evidence demonstrates that

25 Respondent represented to Claimants that it intended

[Page 95]

15:13 1

[to] negotiate the terms of the long term licences with

2 Claimants, based on the application submitted.

3 Respondent's after-the-fact characterization of the

4 parties' discussions cannot change the fact that the

5 understanding at the time was that Claimants'

6 application, styled as a five-year extension, was for a

7 long term licence of the concessions."

8 It's difficult to know what's meant here. There is

9 no contemporaneous evidence at all demonstrating that

10 the Respondent represented that it intended to negotiate

11 long-term licences, and it's right to say the

12 application was styled as a five-year extension, and

13 that is because it was indeed an application for

14 a five-year extension.

15 What is more, Mr Marshall knew that a five-year

16 extension was all that had been pitched for when he

17 arrived on the scene to acquire NRD at the end of 2010.

18 All of that of itself shows that the case here that

19 there was an expectation of long-term licences is, in my

20 submission, hopeless.

21 Just pausing here, it's worth just staying with

22 paragraph 18 to get something of a flavour of the way

23 the Claimants' submissions operate. The next sentence

24 says:

"Claimants' principal, Mr Marshall, was told by

[Page 96]

15:15 1 Respondent that the application would be considered for

2 that purpose."

3 There is no evidential basis anywhere for that

4 assertion, not to be found in any witness statement.

5 I don't know if we're going to see something coming in

6 by way of evidence-in-chief; we'll have to see.

7 The next sentence:

"This is confirmed by the fact that Respondent

9 granted an extension of NRD licenses in order to

10 negotiate the terms of the long term license and then

11 NRD did in fact begin negotiating the long term license

12 with Dominique Bidega, the then Acting Director of

13 OMGR."

14 There's nothing in the extension letters, any of

15 them, which suggests that the Respondent granted an

16 extension to negotiate long-term licences. That is just

17 an invention. And we'll be looking at the extension

18 letter that's referred to, and indeed other extension

19 letters, in due course.

20 The reference to Mr Bidega is something different.

21 That relates to a curious episode which happened in late

22 2011, which we'll be referring to later. The Claimants

23 refer to it a lot. All I would say at this point is

24 that that episode of Mr Bidega does not assist the

25 Claimants at all.

[Page 97]

15:16 1 My fifth point is that the November 2010 application

2 for renewal of the five-year licences was itself thin

3 and unsatisfactory. The lack of progress made by NRD in

4 the four-year period, and the paucity of the exploration

5 and sampling work and the evaluation of the mineral

6 reserves that were required, was obvious on the face of

7 the application. NRD knew at the time -- and

8 Mr Marshall was told when he bought in -- that this

9 application was inadequate even to justify the five-year

10 licences being sought, and very, very far short of what

11 was required to justify long-term licences.

12 Sixthly, NRD was notified in August 2011 that it had

13 not complied with its contractual obligations and,

14 following that, there were no extant rights of any kind

15 in respect of long-term licences arising from the

16 contract.

17 Seventhly, the licences themselves expired in

18 January 2011. They were extended consensually until

19 October 2012 to allow for further negotiations between

20 NRD and the government, and after that, there were no

21 further extensions; although the government did, as

22 a matter of indulgence, make temporary allowances for

23 NRD to remain on the concessions while they applied for

24 new licences.

25 The point here is, again, that none of these

[Page 98]

15:17 1 extensions or allowances ever confirmed any right or

2 expectation to long-term licences or involved any

3 assurances or anything of that kind. The repeated

4 refrain that they did is, in our submission, untenable

5 and derives from, at best, a misreading of the

6 documents.

7 Related to that, we would say on our side that the

8 fact that the government did keep making allowances so

9 as to give NRD a chance to make an adequate application

10 for a licence is in fact inconsistent with the

11 Claimants' case theory, and in particular their

12 extravagant case theory about there being a conspiracy

13 to oust NRD from the concessions. If there was such

14 a conspiracy, the government would never have been as

15 indulgent and as generous as it was. What you will see

16 in the evidence is that instead of being harsh on NRD,

17 the government in fact gave NRD chance after chance

18 after chance.

19 While we are on assurances, we have an enhanced

20 story developed by the Claimants in their skeleton at

21 page 10 of that document, and you heard more of it

22 today. This is about personal assurances being given to

23 Mr Marshall by people in the military with whom he says

24 he worked.

25 Well, it's worth noting that what's said at

[Page 99]

15:19 1 paragraph 10 about assurances from the director of the

2 military, he says at the end of this paragraph:

"... while simultaneously reaffirming its guarantees

4 and continuing negotiations towards the promised

5 long term licenses, which included assurances from the

6 Rwandan military, who valued Mr Marshall's services,

7 that so long as he remained patient ... NRD would obtain

8 the long term licenses."

9 Well, that is not in Mr Marshall's witness statement

10 and goes well beyond what is in Mr Marshall's witness

11 statement. And it's hard, in any event, to understand

12 the relevance of some conversation that Mr Marshall now

13 says he had with someone in the military to his

14 application to the Ministry of Natural Resources for new

15 licences. Those applications, and any application made,

16 obviously need to be considered on its merits, and it

17 would be odd if it wasn't.

18 One gets a similar point at paragraph 31 of

19 Mr Cowley's pre-hearing brief, where he again makes

20 a new evidential point, not in the evidence, about

21 assurances from the military.

22 We heard more of it in the oral submissions today,

23 at the outset of the Claimants' submissions, some of the

24 first points that were made today, referring to

25 Mr Marshall as acting as a "voice" for the military.

[Page 100]

15:21 1 Again, that's a new point, not in evidence and, we

2 suggest, irrelevant.

3 It seemed from part of that submission that the

4 Claimants' case didn't seem to be that the Claimants

5 should have received fair and equal treatment; they

6 appeared to be suggesting the Claimants should have

7 received some special treatment that other investors

8 didn't get, as a result of some personal relationship

9 that Mr Marshall had with the military. Not the proper

10 subject of a claim of this kind.

11 My eighth point is that throughout the period of the

12 voluntary extension to the licences and the ad hoc

13 indulgences thereafter -- that's after October 2012 --

14 NRD had every opportunity to put in a compliant and

15 adequate application for long-term licences if it was

16 able to. But it was unable to, and its attempts were

17 weak and unprofessional.

18 Specifically on those points, what you will see in

19 the evidence is that after the inadequate November 2010

20 application for a renewed licence, there was

21 an extremely feeble application for long-term licences

22 in January 2013. That had no real substance at all, and

23 NRD could never have expected it to have any real chance

24 of being adequate, and it was interesting to see that

25 that wasn't even mentioned today in the submissions.

[Page 101]

15:22 1 Thereafter, given that the licences had expired in

2 October 2012, NRD had to be, in fact, chased by the

3 government repeatedly to apply for new licences. Again,

4 that all gives the lie to the conspiracy theory of the

5 government trying to get them out.

6 Mr Imena specifically chased NRD repeatedly in late

7 2013 and then repeatedly in 2014, and eventually in late

8 2014 the NRD did apply for licences. They did, at that

9 point, apply for long-term licences, but the

10 applications were again palpably deficient, and in

11 particular there was nothing of substance that was

12 additional to the applications that were themselves weak

13 when they were made in 2010.

14 My ninth point is that it was unsurprising that the

15 licence applications after 2010 were unforthcoming, and

16 that when they did come, they were deficient and didn't

17 add materially to the original November 2010

18 application. The reason for that is that after

19 Mr Marshall and Spalena arrived at the end of 2010,

20 paying [Redacted], they made no material further investment

21 into NRD, either in industrialising the mining on the

22 concessions or in exploratory work and evaluating the

23 reserves. What they did do instead was to allow

24 artisanal mining to carry on in the NRD concessions and

25 make money out of buying the minerals dug out by

[Page 102]

15:24 1 individual artisanal miners.

2 As a result of all that, NRD, post-2010, was never

3 going to be in a position to make a more impressive

4 application than it had made in 2010, because it simply

5 wasn't putting in any work or investment to improve the

6 position it was in by carrying out further proper

7 exploration or taking further steps to industrialise.

8 Relating to that, what we actually see on the

9 evidence is that, if anything, matters deteriorated

10 under Mr Marshall's watch, rather than improved. The

11 financial condition of the company worsened, with debts

12 owed to trading partners, to employees, and the Revenue.

13 For example, NRD could never have secured long-term

14 licences without a Revenue clearance certificate. But

15 it was in fact running up debts to the Revenue which

16 were unpaid, and indeed subject to enforcement. And

17 given its debt to the Revenue, it could never have

18 obtained the relevant tax clearance that was a necessary

19 part of any licence application.

20 It's not just the finances of the company, although

21 that is important. NRD, under Mr Marshall's watch, also

22 permitted illegal mining, or at the very least was

23 unable to prevent it because of management failings and

24 failure to invest in sufficient security. The

25 combination of illegal mining and NRD's own activities

[Page 103]

15:25 1 also meant that there was continual environmental

2 damage.

3 It's also worth keeping in mind here that

4 Mr Marshall's whole scheme was evidently to try to

5 secure long-term licences mainly by applying political

6 pressure or bullying, as we'll see in the

7 correspondence, without actually investing in order to

8 obtain them.

9 What he wanted to do -- and he's actually quite

10 candid about this in one of his witness statements -- is

11 obtain financing after, and on the back of, the

12 long-term licences. But the problem with that is that

13 the 2006 contract and the scheme of the government's

14 Mining Policy, published in early 2010, simply don't

15 work that way.

16 Mr Marshall should have known -- and must have

17 known, we would say -- the purpose of the initial

18 short-term licences was for the concession holder to

19 commence industrialisation and undertake proper

20 exploration work. That requires investment, and that

21 was necessary in order to justify the long-term licence.

22 So you had to invest upfront.

23 That's why the Zarnacks' original business plan,

24 right back at the beginning of the NRD contract,

25 envisages as much as $39 million of investment. In

[Page 104]

15:26 1 fact, it would be generous to think that even a third of

2 that was spent, even on NRD's own figures as contained

3 in its 2010 November application.

4 So Mr Marshall's business strategy of securing

5 long-term licences without spending or sourcing

6 investment to do so could never have worked.

7 Just as an aside, in relation to that $39 million

8 figure, this morning Mr Cowley referred to C-014, which

9 is a document that he said suggested a $39 million

10 investment. The impression given in this morning's

11 submissions was that somehow that investment might have

12 been made in NRD. If that suggestion was meant, it was

13 unfortunate.

14 That reference to $39 million in C-014 is quite

15 obviously a reference to the original projected

16 investment put forward by the Zarnacks in the business

17 plan under which the 2006 contract was granted. I had

18 thought it was common ground -- and all the evidence

19 shows it -- that only around a maximum of $13 million,

20 even taking the Claimants' figures at face value, was in

21 fact invested during the Zarnack and Starck era. The

22 Claimants have never suggested previously that

23 $39 million was invested, and it's inconsistent with

24 what they have suggested. So I hope that wasn't the

25 submission that was really being advanced.

[Page 105]

15:28 1 My tenth point is that the government behaved both

2 fairly and indeed generously to NRD in dealing with the

3 licence applications when they were made. When the 2014

4 applications were made, they were evaluated objectively

5 by a team of people who gave a sensible and rational

6 recommendation to the minister, with reasons for why the

7 application should be rejected.

8 Moreover, NRD was specifically told in late 2014 and

9 2015 what was deficient or missing in the 2014

10 applications, and was given three opportunities to

11 submit additional documentation. Those opportunities

12 were met with a feeble response from NRD. And as I've

13 stated, NRD's own deficiencies meant that it could never

14 have put in an adequately compliant licence application,

15 although it's fair to say its efforts to address the

16 problems were meagre.

17 Eleventh point. When the government finally

18 declined the licence applications in mid-2015, and

19 thereafter put the concessions out to tender, it was

20 fully justified in doing so. This wasn't

21 an expropriation of any kind at all.

22 The licences themselves had in fact expired a very

23 long time previously, in October 2012. NRD was at that

24 point only continuing to occupy at all on a temporary

25 indulgence, to give it the opportunity to make

[Page 106]

15:29 1 an adequate application. It was unable to do so. And

2 once the licence applications were determined against

3 NRD, it was entirely right that they should leave the

4 concessions, as unlicensed operators with no contractual

5 or other right to occupy or exploit the concessions, and

6 of course entirely right that the concessions should be

7 put out to tender.

8 So we would submit that those are the essential

9 points on the key area of the case that you will see

10 from the evidence as it emerges this week. Once the

11 facts are seen and understood, they speak for

12 themselves, and there isn't, in our submission, a shred

13 of a case here.

14 One thing that that summary I've just given doesn't

15 get across is the flavour of the communications by which

16 NRD and Mr Marshall carried on their business. What you

17 will see time and time again is the individuals in the

18 ministries on the Rwandan side doing their job, writing

19 straightforward, sensible, professional letters to NRD;

20 but as they did so, if there was anything that smacked

21 of criticism of NRD or even thwarted Mr Marshall's plans

22 in any way, what one sees is the most extraordinary

23 response from Mr Marshall.

24 There is letter after letter in which Mr Marshall,

25 on the flimsiest pretext, launches into allegations of

[Page 107]

15:31 1 expropriation, and even corruption and criminality on

2 the part of ministers and others. In my submission, the

3 Tribunal will have to assess for itself what Mr Marshall

4 was up to in some of this extraordinary correspondence.

5 It is truly littered with distortions of reality.

6 You will also see that the letters are copied to

7 a number of people in each case, including various other

8 ministers and usually the US ambassador.

9 We would submit that, on any view, Mr Marshall was

10 seeking to lay a paper trail by his misleading account

11 of things, and in particular for a future arbitration of

12 this kind; but he was also, it appears, seeking to bully

13 and pressurise ministers with the tenor of his

14 correspondence. And we do say that the overall effect

15 is something that it is remarkable to see in a business

16 and commercial context. It's a long, long way from the

17 behaviour you would expect from any serious,

18 professional applicant for a mining licence.

19 So that's the main area of the case. There are also

20 a number of sideshow or smokescreen issues, and they are

21 issues thrown up by the Claimants, it looks like in the

22 hope of muddying the waters, and I'll just run through

23 the main ones briefly.

24 The first is a long and complicated episode

25 involving Mr Benzinge. He was one of the original

[Page 108]

15:32 1 shareholders of NRD. He founded the company along with

2 the Zarnacks. He took issue with the sale of the shares

3 by the Zarnacks to Starck, HC Starck, and in

4 consequence, as a result, took issue with the on-sale to

5 Spalena.

6 Mr Benzinge challenged the legitimacy of the

7 appointment of Mr Marshall and Ms Mruskovicova, which

8 resulted from their acquisition of shares, and there are

9 two episodes that the Tribunal will see involving

10 Mr Benzinge in this case. None of them actually adds

11 anything to this case or could conceivably give rise to

12 a realistic claim.

13 The first one was something that happened over

14 a very short period of a few days in August 2012.

15 Mr Benzinge managed to persuade staff at the RDB, the

16 Rwanda Development Board, which deals with public

17 company registration, he managed to persuade them that

18 the correct position was that he should be registered as

19 director on the records, rather than Mr Marshall or

20 Ms Mruskovicova.

21 Within a very short time, a day or so, Mr Marshall

22 complained to the RDB. The matter was then taken up by

23 the RDB, who dealt with it promptly and professionally.

24 Within three days, Mr Benzinge had been suspended from

25 acting as director while RDB investigated; and within

[Page 109]

15:34 1 a further one day, the RDB directed the return of

2 company property to Mr Marshall.

3 So it was a problem that lasted a few days, and

4 where the evidence plainly shows the RDB acted honestly,

5 impartially and fairly.

6 The Claimants complain about the actions of

7 Mr Benzinge and things that he did in that short period,

8 but those of course are the actions of Mr Benzinge as

9 a private individual and cannot conceivably ground

10 a claim in an arbitration of this nature.

11 Just to give, again, a flavour of the way the

12 Claimants are trying to present this case in this

13 arbitration, it's worth taking up the pre-hearing brief

14 again at paragraph 19. They say in relation to this

15 August 2012 episode:

"... Mr Benzinge had no role in the company.

17 Claimants could not have known it at the time, but this

18 was one of the first bad acts in a long line of bad acts

19 perpetrated by Respondent in an effort to force

20 Claimants to abandon their investment."

21 Now, two points about that.

22 First, Mr Marshall accepted at the time that the RDB

23 personnel who were initially persuaded by Mr Benzinge to

24 change the registered information were not in any way

25 collusive or acting in bad faith. They were just

[Page 110]

15:35 1 persuaded by the information given by Mr Benzinge that

2 this was the correct thing to do on behalf of the

3 company.

4 Secondly, once this difficulty was escalated,

5 because there was a dispute between the shareholders

6 about it, there was a very prompt investigation, and

7 obvious neutrality and professionalism shown by the RDB.

8 I would submit that this sentence about it being

9 a "first bad act[] in a long line of bad acts" is

10 an untenable characterisation of events, and it does

11 demonstrate the kind of way in which the Claimants are

12 putting this case that we will all have to wade through.

13 Now, back to Mr Benzinge. He felt aggrieved at

14 losing that first round, and he pursued his arguments

15 later in 2012, and he did so by launching an arbitration

16 involving him and NRD, which was subject to various

17 inter partes court rulings at the early stages of

18 identifying the arbitrator and the like.

19 So just to flesh out that point, it's not as if this

20 was some private arbitration that the NRD or the

21 Claimants never knew about; they were actually involved

22 in the arbitration at an early stage, in various court

23 hearings dealing with the constitution of a tribunal.

24 THE PRESIDENT: Could I just intervene, because I have been

25 very puzzled by this particular proceeding:

[Page 111]

15:37 1 an arbitration in which an individual challenges

2 a company as to who is the correct chief executive of

3 the company. It seems to have its origin in a court

4 order, and I find it difficult to identify any

5 comparable civil proceedings in this country. One would

6 have thought it would be some kind of proceeding under

7 a Companies Act. But we've got very tenuous evidence

8 about this, both from the Claimants and the Respondent.

9 MR HILL: Well, we have some evidence on it from Mr Mugisha.

10 Rather than shooting from the hip, I might make sure

11 I characterise it accurately and come back to you on

12 that, just so that I make sure I'm making the correct

13 submission.

14 THE PRESIDENT: Thank you.

15 MR HILL: What I think I can say, because I'm sure my

16 recollection on this is accurate, is that both parties,

17 both the NRD side -- or the Claimants' side, I should

18 say -- and Mr Benzinge, were consensual about there

19 being an arbitration. I think there was

20 a falling-out -- and this is the subject of the court

21 hearings -- about how the tribunal should be

22 constituted.

23 The Claimants' side wanted a three-man tribunal;

24 Mr Benzinge wanted a one-man tribunal. Initially the

25 Claimants were successful and then Mr Benzinge was

[Page 112]

15:38 1 successful, in various rounds of court hearing. But as

2 far as I recall, there was no problem from either party

3 about this being dealt with by an arbitration rather

4 than by some court proceeding.

5 So that resulted in an arbitration held in

6 April 2013. It's clear -- and it's clear from the

7 subsequent appeal judgment -- that NRD were duly

8 notified of the arbitration hearing, but they chose not

9 to turn up to it. And they chose not to turn up to it

10 by writing a letter on the day before the first of the

11 arbitration hearings objecting to the arbitrator, but

12 not taking any other steps, other than writing one

13 letter to the chairman of the arbitration centre, which,

14 in our submission, falls far short of the steps that

15 should have been taken if that was a challenge they

16 wanted to pursue.

17 In the event, there was an arbitration hearing, and

18 that was a substantive hearing -- it wasn't a default

19 hearing or anything like that; it was the hearing on the

20 merits -- and Mr Benzinge's claims were determined in

21 his favour. And Mr Mugisha deals with the consequences

22 of that, which is that the shareholdings reverted to the

23 position they were before the transfer by the Zarnacks,

24 and that meant that Mr Benzinge could pursue his claim

25 that the shareholdings should revert back to the

[Page 113]

15:40 1 original position. He would still, obviously, only be

2 a minority shareholder, but the shareholdings would

3 revert, and the subsequent resolutions consequent on the

4 transfer of shares were invalidated.

5 Now, NRD appealed that, and their appeals were

6 rejected at two levels of appeal, the final Supreme

7 Court decision being given in May 2014.

8 It's important to note in relation to those appeals

9 that the Claimants' submission in this case -- and it

10 was a point flagged up in that letter I mentioned -- is

11 that the arbitrator was in some way conflicted or

12 biased. If that were the case, then NRD would indeed

13 have had a valid ground of objection to the arbitration

14 award. But that is not a ground of objection they in

15 fact pursued on appeal, at either level of appeal. It's

16 something they've brought up in these proceedings, and

17 it wasn't a point they took at the time or pursued at

18 the time.

19 Now, on the back of that award --

20 THE PRESIDENT: Sorry. If that award was correct, wouldn't

21 it follow that Spalena has no locus standi of any kind

22 in this arbitration?

23 MR HILL: Well, it certainly could follow. That's the

24 implications of Mr Mugisha's evidence. And we say --

25 THE PRESIDENT: That's a far more fundamental point than any

[Page 114]

15:41 1 that's been taken.

2 MR HILL: Well, if you look at our pre-hearing brief, we've

3 certainly not accepted that they are proper

4 shareholders, for that reason.

5 Now, on the back of that award, confirmed by the

6 Supreme Court ruling, Mr Benzinge made various attempts

7 to enforce his award. The Claimants complain this

8 resulted in NRD being shut out of their Kigali office

9 and parts of their concessions at the time. And none of

10 those points take Claimants anywhere.

11 Mr Benzinge had the rights that he had under his

12 award and the Supreme Court judgment, and the bailiff he

13 instructed also had his professional rights and

14 obligations to enforce the judgments. The Claimants

15 haven't, in our submission, advanced any coherent case

16 that the bailiff, Mr Bosco, who is going to be

17 a witness, exceeded his rights and duties in any way.

18 But even if he had, none of that involved actions of the

19 state, or participated in by the state in any way.

20 The Claimants do suggest that this episode is

21 relevant on a different area because Mr Imena, the

22 State Minister in Charge of Mining, was unwilling to

23 issue tags for minerals to NRD in part on the basis of

24 Mr Benzinge's claims, and we heard more about that this

25 morning. Two points on that.

[Page 115]

15:43 1 First, the reason why Mr Imena refused to issue tags

2 for minerals was, in fact, twofold. One of the reasons

3 why tags were not issued by him to Mr Marshall was that

4 tags were only supposed to be given to licensed mining

5 operators, and we have other evidence on that. NRD did

6 not have a mining licence, and despite repeated requests

7 from Mr Imena to apply for one, they hadn't done so at

8 that stage.

9 So it was quite right for Mr Imena to say, "You are

10 an unlicensed operator. I've been trying to get you to

11 apply for licences repeatedly. You must now apply for

12 licences, and I'm not going to allow you to keep

13 receiving tags as an unlicensed operator, and benefiting

14 from them, without making the application you should

15 make, and which you're required to make under the

16 scheme".

17 THE PRESIDENT: My understanding is that NRD were given

18 informal permission to act as if they had a licence. Is

19 that correct?

20 MR HILL: They were given informal permission to remain on

21 the concessions, but subject to the fact that from

22 October 2013, and repeatedly in 2014, they were being

23 pressed to apply for licences and were declining to do

24 so.

25 So in our submission, it was entirely fair for the

[Page 116]

15:44 1 person issuing tags to say, "I'm not going to give you

2 the indulgence of keeping on treating you as licenced

3 pro tem while you make an application when you're not in

4 fact making this application".

5 THE PRESIDENT: Yes. I would be grateful at some stage for

6 a bit of further assistance with the status that they

7 had under these informal permissions that were granted.

8 MR HILL: Yes.

9 THE PRESIDENT: But you needn't deal with that at this

10 point.

11 MR HILL: I'm grateful.

12 I can just foreshadow what will be said, which is:

13 these were not, by any means, formal licences; they were

14 indulgences. To take tagging as an example, they should

15 have had proper licences, which they were being asked to

16 apply for, and it went beyond the scheme of the policy

17 to be granting them tags when they were not licensed.

18 That was very much an indulgence. And entirely proper

19 and right to say, "You must now get a licence, and I'm

20 going to stop giving you these tags until you do".

21 So that was the first reason from Mr Imena. And

22 a second reason was that he was faced with competing

23 claims from Mr Benzinge and from Mr Marshall for being

24 the people who were entitled to represent NRD and

25 receive these tags, and in fact he was being threatened

[Page 117]

15:45 1 with being sued by Mr Benzinge.

2 So in those circumstances also, fair enough not to

3 issue tags and not to take sides. And we don't accept

4 the suggestion from the Claimants that Mr Imena was

5 siding with Benzinge. He wasn't: he was standing in the

6 middle.

7 Now, just on all those points, we do say that you

8 will notice in the contemporaneous approach by

9 Mr Marshall, and also in the Claimants' case, that they

10 repeatedly underplay the fact that Mr Benzinge had the

11 benefit of this arbitration award, backed by the appeal

12 judgments, and which supported his claims in respect of

13 the management and ownership of the company.

14 So, for instance, going back to the pre-hearing

15 brief, if one goes to paragraph 26, they say:

"Mr Imena's argument that there was a dispute over

17 NRD's ownership is unfounded and outrageous. Mr Imena

18 casually admits that, upon threats from Mr Benzinge to

19 sue MINIRENA, he decided to prevent NRD from receiving

20 mineral tags. This is an astonishing admission. He

21 blocked Claimants' ability to operate their investment

22 upon the mere threat of litigation by a Rwandan

23 national."

24 It wasn't a "mere threat of litigation by a Rwandan

25 national". Mr Benzinge had the arbitration award and

[Page 118]

15:47 1 a Supreme Court judgment which supported his position,

2 although you might not have appreciated that from this

3 paragraph.

4 The Claimants then go on:

"Any issue over ownership had already been resolved

6 in Spalena's and Mr Marshall's favour when Mr Benzinge

7 tried a similar trick. In 2012 the RDB expressly

8 recognised Spalena's ownership of NRD and that

9 Mr Marshall was the Managing Director. Mr Marshall

10 provided Mr Imena RDB's registration information and

11 informed him that Mr Benzinge, working with a court

12 bailiff, blocked Claimants from NRD's offices and

13 confiscated NRD's property, on June 13, 2014.

14 Mr Imena's contention that he was unaware of such

15 activity is false."

16 Now, there's a bit of unfortunate sleight of hand

17 here. Whatever the RDB decided in 2012, that's referred

18 to there, was of course before the 2013 arbitration

19 award and before the 2014 Supreme Court judgment. So

20 whatever the RDB thought in 2012, Mr Imena was entirely

21 reasonable to see the position as disputed, and one in

22 which he needed to see a resolution and to consider it

23 would be inappropriate for him to take sides.

24 Then in paragraph 28 of this pre-hearing brief, the

25 Claimants say:

[Page 119]

15:48 1

"By Mr Imena's own admission, he was using the

2 tagging system as a political tool to harm a foreign

3 investor."

4 That is a quite unfair spin. Mr Imena was acting

5 for these two reasons that I've suggested, and the

6 Claimants haven't even dealt fairly at all with the

7 first reason, which is that tags are for licensed

8 operators and that NRD had declined to apply. And we do

9 say that Mr Imena was entirely justified in the approach

10 he took to tagging.

11 We will also say -- and it will be apparent from

12 some of the correspondence we'll go to -- that at the

13 time Mr Marshall very significantly ignored or

14 underplayed the fact that Mr Benzinge had this

15 arbitration award from an arbitration that NRD had

16 chosen not to attend, and had it backed by Appeal Court

17 judgments.

18 So that's the Benzinge episode. The next episode,

19 or set of episodes, relates to Mr Bosco Nsengiyuma, and

20 he is the professional bailiff.

21 Now, Mr Bosco is a highly experienced bailiff.

22 During the period with which this arbitration is

23 concerned, he was involved in executing a number of

24 judgments against NRD. There was first an unfair

25 dismissal claim; then there was Mr Benzinge's judgment;

[Page 120]

15:50 1 and there were also judgments from employee claims

2 against NRD from some 25 employees.

3 The ins and outs of the various enforcement

4 processes from Mr Bosco are lengthy. We would suggest

5 they are immaterial to this case. Mr Bosco Nsengiyuma

6 has put in two witness statements which explain his

7 actions in detail. And we will suggest that he's

8 clearly an experienced professional bailiff, clearly

9 doing his best to comply with his duties faithfully and

10 executing on lawful judgments.

11 This is another area of the case where we suggest

12 the Claimants simply don't like what was happening and

13 leap to theories of conspiracy or corruption, where the

14 short point is that there were judgment debts, because

15 NRD was in default and had not paid its debts, and there

16 was a bailiff who was entitled to execute on those debts

17 and who was doing so.

18 As I say, there are a lot of ins and outs. For

19 an active account of the detail, I would commend to the

20 Tribunal the detailed explanation that Mr Bosco gives in

21 his two witness statements. We would also reiterate the

22 point that, in any event, his actions cannot be

23 attributed to the Rwandan Government.

24 That brings me to the third sideshow point, which

25 relates to the conspiracy theory advanced by the

[Page 121]

15:51 1 Claimants, involving smuggling minerals from the DRC and

2 selling them as Rwandan minerals. It is difficult, in

3 our submission, to even understand the theory. It was

4 set out somewhat vaguely in the Claimants' Memorial. It

5 grew in the telling by the time of the Reply, and now

6 involves an unnamed oligarch who, at an unspecified time

7 and in an unspecified way, may have wanted NRD to assist

8 in smuggling, which Mr Marshall says they did not do;

9 and in some other unspecified way, it's then said that

10 the expropriation that Mr Marshall says has occurred is

11 in some way at the behest of this unspecified oligarch.

12 Now, there is a total -- and I mean total -- absence

13 of evidence to support this case. There is also a total

14 absence of sufficient detail even to understand it. But

15 even if those points weren't themselves fatal to this

16 conspiracy theory, the case is evidently nonsensical.

17 First, and most importantly, we can actually see

18 from all the evidence what in fact happened to NRD's

19 applications for long-term licences. We can see who was

20 involved and we can see what they decided and why they

21 decided what they did. This was a contemporaneously

22 documented, transparent process. It involved teams

23 analysing the applications, explaining why the

24 applications were deficient, and such that it should

25 never have been any surprise that NRD didn't make the

[Page 122]

15:53 1 grade. Mr Marshall had, of course, been told of the

2 problems in 2010 when he bought into the company, and

3 hadn't improved on the position in the years that

4 followed.

5 Secondly, on this conspiracy theory, to the extent

6 one needs to even think about it, one can see that the

7 underlying premise is untenable. Rwanda has, in fact,

8 well observed and thorough processes in place for

9 preventing smuggling, and is a main proponent in the

10 region of measures to prevent smuggling. So, while no

11 systems can be foolproof, there is no conceivable basis

12 for any suggestion that Rwanda is promoting or even

13 condoning smuggling: it does the opposite, extensively,

14 and as observed by third-party partners, such as the

15 representatives of the Tin Council initiative, and it

16 could never be in Rwanda's interest to condone

17 smuggling, and it does the very opposite.

18 Thirdly, the only material that the Claimants seek

19 to rely on -- and they do so inferentially to support

20 their theory -- is various bits of data or statistics

21 which the Claimants suggest show that more minerals are

22 exported than are produced. Well, the data doesn't in

23 fact show that. They've misinterpreted it or drawn

24 incorrect inferences from the data, and this is

25 a misguided exercise, and that is dealt with by our

[Page 123]

15:54 1 witnesses.

2 So if you turn to the Claimants' pre-hearing brief

3 again and look at, for instance, paragraph 13, one can

4 see sentences like:

"Claimants did not, and would not, participate in

6 smuggling, and therefore NRD was singled out and treated

7 differently, in violation of the [bilateral investment

8 treaty]."

9 This is, in our submission, simply an allegation not

10 anchored in reality and with no evidence.

11 The next sideshow issue relates to the fact that

12 from time to time, NRD was made subject to requirements

13 to cease mining in parts of their concessions because of

14 local issues arising from illegal mining and

15 environmental problems.

16 The short point here is that there were indeed

17 problems from both illegal mining and environmental

18 issues on NRD's concessions. These problems got worse

19 over the period in which Mr Marshall and Spalena was in

20 control. One sees in Mr Marshall's protestations at the

21 time -- and this is repeated by the Claimants -- the

22 allegations that NRD was not being fairly treated, but

23 that is unfair again on the Claimants' part.

24 On illegal mining, what they say is that Rwanda

25 should have prevented illegal mining on NRD's

[Page 124]

15:55 1 concessions. That's a bad point and it's not how it

2 works. The duty to prevent illegal mining on the

3 concessions was the concession holder's, NRD's. And if

4 they couldn't do it, if NRD couldn't do it, that was

5 a function of them having areas of concessions that were

6 too large for what they could cope with, that they

7 simply weren't working themselves, they were leaving

8 unprotected, and simply too large for the scale of

9 operation and investment that they were engaged in.

10 Indeed, NRD recognised that it was their

11 responsibility at the time, because eventually they

12 promised to do something about it by hiring demobilised

13 soldiers to help police the concessions. And when they

14 did so, when they promised to do so, they were permitted

15 to work again on the concessions. So no unfairness

16 there.

17 On environmental issues, the Claimants repeatedly

18 said and say that the environmental damage in the

19 concessions was not NRD's fault because it was the fault

20 of the illegal miners or an environmental hangover from

21 colonial mining practices by the Belgians. But neither

22 of these points in fact wash.

23 The illegal miners should themselves have been

24 prevented by NRD, as I've just mentioned. And the point

25 about colonial practices is an exaggeration, because

[Page 125]

15:57 1 what was in fact discovered was that NRD's work, and its

2 failure to control illegal mining, was exacerbating the

3 environmental issues. Even though I'm sure it's fair to

4 say there were some original hangover from the colonial

5 period, the problem was that whatever damage was done in

6 the colonial period was being exacerbated in the way in

7 which the mines were still being exploited during the

8 period of NRD's control.

9 Now, the last sideshow issue relates to the

10 allegations that other operators, and in particular

11 Tinco and Rutongo Mining, were in some way treated more

12 favourably because they didn't end up with long-term

13 licences. There is nothing in this either.

14 Quite simply, they were justifiably regarded as

15 having made strong applications because they were some

16 of the best-performing mining operators, unlike NRD.

17 The documents show at the time that Mr Marshall regarded

18 them as having 20 times NRD's productivity on much

19 smaller concessions. These companies had made properly

20 substantiated, timely applications for mining licences,

21 unlike NRD. So there's no surprising or unfair

22 differentiation and treatment.

23 Relatedly, there's another allegation about

24 a company called Ngali Mining you might have come

25 across, and that's again focused on by the company now.

[Page 126]

15:58 1 But again, the Claimants don't begin to establish that

2 Ngali Mining is in a materially similar situation to NRD

3 so you've got the starting point for some differential

4 treatment by reference to the national treatment

5 standard.

6 Ngali Mining was in fact a gold miner. It had been

7 granted licences to mine a different mineral -- gold --

8 to that which NRD mined, using different techniques,

9 against a totally different contractual background, and

10 indeed in a different period, several years later, under

11 a new 2018 Mining Law. So there's just no relevant

12 comparison in order to conduct any useful exercise.

13 So those are really the issues in the case that we

14 will be covering, and I've given you a cross-section of

15 them by reference to the issues. What I was proposing

16 to do -- and perhaps now would be a good time to

17 break -- is give you a cross-section of the case in

18 a different way, which is chronologically, just trying

19 to divide the period into blocks of time, and just to

20 tell the Tribunal what particular milestones or points

21 that are likely to be covered in the evidence are to be

22 looked out for in each block of time, which I hope will

23 be helpful.

24 THE PRESIDENT: Thank you. We will break now, but we will

25 break for 40 minutes, not 45 minutes. Thank you.

[Page 127]

16:00 1 (4.00 pm)

2 (Adjourned until 4.40 pm)

3 (4.42 pm)

4 THE PRESIDENT: Hello, Mr Hill, we are ready for you.

5 MR HILL: I'm grateful. I'm sorry, I didn't hear you,

6 Mr President.

7 THE PRESIDENT: We are now ready.

8 MR HILL: I'm grateful.

9 Just before I resume, could I just mention that, as

10 far as I'm aware, we haven't had the email of Mr Ehlers

11 and the cooperation agreement email. Apologies if it's

12 in the ether as I speak, but we really must have it, and

13 I wonder if Mr Cowley could tell us if it is in fact

14 coming.

15 MR COWLEY: It's coming. It's what we've been working on --

16 I'm not going to take any credit for working on it.

17 It's what Mr Harrison has been working on during the

18 break, while trying to also eat something. So, yes,

19 it's on its way.

20 THE PRESIDENT: On its way.

21 MR HILL: Thank you.

22 I was going to do a more chronological cross-section

23 now, taking the period of the case in a series of

24 blocks.

25 The first block or era would be what one might call

[Page 128]

16:43 1 the Zarnack era. And that covers the period from 2006,

2 when the Zarnacks and Mr Benzinge incorporated NRD,

3 through to 2008, when the Zarnacks sold to HC Starck,

4 a mining company.

5 Now, in that first period there was obviously the

6 contract, which was issued in November 2006, and the

7 four-year licences, which were subsequently issued.

8 It's just worth pulling up the contract briefly. It's

9 at C-017. And I would submit it's quite telling that

10 this morning Mr Cowley didn't spend any time on the

11 contract, even though it's said to be where there's

12 a guarantee of rights to a long-term licence.

13 If we look at page 1, we can see from Article 1 that

14 there is a four-year period, four-year term of the

15 contract. In fact, I'm not sure -- thank you, FTI --

16 I'm not sure it needs to be blown up, unless anyone

17 particularly wants it. I think one can see from the

18 full screen. So it's an authorisation for four years.

19 There are then a series of obligations, starting in

20 Article 2, which are obligations on NRD. These

21 obligations amounted to conditions of obtaining

22 a long-term licence later, as Mr Mugisha explains. And

23 just in that context, it's worth noting that Article 5

24 always provides for the ability to terminate for breach

25 of the obligations.

[Page 129]

16:44 1 Mr Gatare, in his witness statement, has explained

2 that a number of these licences were issued as part of

3 the privatisation of mining, the goal being to improve

4 production and move away from artisanal mining, which

5 can be as simple as individuals with picks and shovels,

6 towards a more industrial model. The idea of the

7 four-year licence was for the private investors to prove

8 themselves as serious operators.

9 So they were to commence industrialisation and,

10 importantly, conduct exploratory work and evaluate the

11 mineral reserves, so that at the end of the four-year

12 period they could produce a feasibility study. And the

13 government needed to be satisfied about the adequacy of

14 the information and the proposals in the feasibility

15 study, including the resource estimates and the

16 exploratory work done, before it would grant a long-term

17 licence.

18 You can see this reflected in the contract. So

19 Article 2.2 provides for the provision of an investment

20 plan, as well as an environmental protection plan. And

21 in the case of the Zarnacks, that was the one that

22 resulted in a $39 million proposed investment over the

23 four years.

24 Article 2.3 then provides for the concessionaire to

25 move to industrial exploitation immediately; in other

[Page 130]

16:46 1 words, as per the government's strategy, don't just

2 continue with artisanal mining. And that is,

3 unfortunately, what NRD very largely did, because --

4 just jumping ahead -- in three out of its five

5 concessions, on any view there was no industrialisation

6 of any kind at all. In two of them, there was very

7 limited infrastructure work, which I will come back to.

8 Article 2.5 provides for evaluation reports of the

9 reserves. So that would require substantial

10 exploration, drilling and sampling and the like to

11 evaluate reserves. And what's also required is

12 a feasibility study after four years.

13 Now, we've seen this reference to a feasibility

14 study. It's worth understanding what a feasibility

15 study is. And this arises because we fully accept that

16 there was some accompanying material with NRD's

17 November 2010 application, and indeed its 2014

18 application, and the Claimants say that this amounted to

19 a feasibility study as required by the contract.

20 We would suggest it's worth looking to see what

21 Mr Imena says about that. He is a geologist. He became

22 the State Minister of Mining. And in his supplemental

23 statement, he explains at paragraphs 13 and 14 why the

24 material in the November 2010 application did not amount

25 to a feasibility study, or indeed an evaluation of

[Page 131]

16:47 1 reserves as required by the contract.

2 So we'll come back in a moment to the contract, but

3 if FTI could pull up Mr Imena's supplemental witness

4 statement, I would be grateful. It's paragraphs 13 and

5 14, where he says he explains further why the

6 November 2010 application -- that's fine. So:

"13. First, the report NRD provided talks largely

8 about gathering already existing information (a desktop

9 study) giving an introduction to geology and

10 mineralization, setting out achieved production and

11 providing some information about remote sensing. This

12 kind of information is simply a preliminary description

13 of the concessions and a summary of what NRD produced in

14 the previous 4 years. It is not a feasibility study for

15 a professional, industrial mining project, as was

16 required under the contract.

17 "14. A feasibility study for an industrial mining

18 project should be a comprehensive and detailed document

19 that contains, among other things; the study of the

20 geology, geophysical and geochemical studies,

21 geological, geophysical and geochemical maps, the ore

22 reserves as per standard definitions, the mineral

23 reserves models, geotechnical studies, studies on

24 environment, studies on infrastructure, studies on

25 markets, the mine design based on the mineral reserves

[Page 132]

16:48 1 models, the mine sections and mine plans, the mining

2 methods and extraction sequences, the ore handling

3 processes, the results of the metallurgical tests, the

4 process plant design and flow sheet, the mine

5 construction budget and schedule, the production

6 schedule, the capital and operating costs estimate cash

7 flow study, the financial evaluation and risks analysis.

NRD's report did not include any of [that] ..."

9 I'm not going to go into NRD's report at this stage,

10 but I will be doing that in due course. But that gives

11 you a picture of what one would be expecting to see in

12 a serious application for a long-term mining contract,

13 and NRD never came close to producing a study of this

14 kind. And as I say, Mr Marshall was warned when he

15 bought into this project by NRD, the existing people at

16 NRD, that the work just hadn't been done to meet the

17 requirements of the contract. And once he arrived on

18 the scene, he never invested so as to procure that the

19 work was done.

20 FTI, if I could go back to Article 4 of the contract

21 (C-017), please, that we were on just now. Thank you.

22 So the provision of a feasibility study is

23 an obligation under Article 2. Then Article 4 provides:

"After positive evaluation of the submitted

25 feasibility study [NRD] will be granted the mining

[Page 133]

16:50 1 concessions."

2 That's in the English. There is an issue about

3 French and English translations that doesn't matter for

4 this purpose. But what's clear is that not only is

5 there an obligation to provide the feasibility study, if

6 the concessionaire is to be provided with a long-term

7 licence, this requires positive evaluation. So in other

8 words, the government needs to be satisfied with the

9 feasibility study before it will grant a long-term

10 licence.

11 Just pausing there, one can see immediately that the

12 Claimants' case is untenable that there was a guarantee

13 of a long-term contract, because you can see that that

14 doesn't work on the face of the contract. The purpose

15 of the contract was for the concession holder to prove

16 itself; and unless it did, it wouldn't be granted

17 a long-term contract. So it needed to comply with

18 Article 2 and it also needed to have the feasibility

19 study positively evaluated.

20 So I'm coming to the end of the Zarnack era. That

21 ended in 2008, by which point very little had been done

22 on the concessions at all, and very little invested.

23 That's explained when you see Professor Rupiya's

24 evidence. He was a geologist at NRD. He explains that

25 very little had been done by the end of 2008.

[Page 134]

16:51 1 The next period is between 2008 and 2010. In this

2 period NRD was substantially owned by HC Starck, which

3 is a mining company.

4 Now, this was the only period in which any material

5 degree of proper investment was done. They did

6 undertake some infrastructure investment and they also

7 undertook some exploratory work, but even that

8 investment was, in fact, quite limited. It fell very

9 far short of the kind of money envisaged in the

10 Zarnacks' $39 million investment plan. It seems at most

11 to have been about $13 million, about a third of the

12 proposed level of investment.

13 In fact, what one sees in the evidence is that there

14 was a very heavy emphasis and focus by Starck on one

15 single piece of infrastructure, which was a wolframite

16 or tungsten processing plant on the Rutsiro concession.

17 And unfortunately that turned out to be a white

18 elephant, and I'll come back to why in a moment.

19 Mr Ehlers, one of our witnesses, is a mining

20 engineer, and he was the MD of NRD during the Starck era

21 and in the early part of the period after Mr Marshall

22 took over. In his witness statement he explains the

23 state of play in late 2010, when the four-year period

24 was up and when NRD was applying for a renewed licence,

25 and his evidence coincides and chimes very well with

[Page 135]

16:52 1 Professor Rupiya's, who was also there on the scene as

2 the geologist.

3 There were five concessions. Starck had focused

4 their investments in one of them, Rutsiro, and

5 specifically on this processing plant, which was

6 expensive, and it was a plant which did end up being

7 a white elephant and it never went into production,

8 although it did have some testing.

9 As a result of NRD's failure to carry out proper

10 exploratory work in advance of building this plant, the

11 plant could never be commercial. And the main problem

12 was that the premise for the build was that it could be

13 used to process rocks which were in the local scree,

14 which were a result of previous colonial mining, the

15 premise being that that scree was itself rich in

16 tungsten, following which at some point they would be

17 delving into the primary ore, which it was thought was

18 also sufficiently rich in tungsten.

19 All those premises turned out to be wrong, and as

20 a result there was never the ability to produce

21 a commercially viable amount of ore of the right grade

22 to make the plant worth operating, and as a result the

23 plant never worked at all. When I say "never worked at

24 all", I'm not suggesting that at the testing phase it

25 wasn't operable, but it was never commercially viable

[Page 136]

16:54 1 and never actually processed any ore.

2 So Mr Cowley said this morning that whether or not

3 it was processing minerals, the plant had to be

4 maintained. That's actually not correct and not borne

5 out by the evidence. The evidence is that not only did

6 it not work because it was not commercially viable, it

7 actually wasn't maintained and couldn't even have been

8 made to work, or at least not without some further

9 rehabilitation. So that's Rutsiro.

10 There's then Nemba, which was a tin mine, and the

11 one that already had the most infrastructure as a result

12 of mining from the colonial era. Starck, on that

13 concession, had made also some limited further

14 investment, but in neither of those two concessions was

15 there any significant level of industrialisation.

16 For the other three concessions, which are Giciye,

17 Mara and Sebeya, there was no industrialisation at all;

18 there was just a continuation of artisanal mining.

19 So that's industrialisation, which didn't comply

20 with the obligations under Article 2. And it wasn't

21 just the industrialisation that was limited; it was also

22 the exploration work and the reserve estimates, which

23 are particularly important when you come to consider the

24 ability to produce a feasibility study.

25 Professor Rupiya gives evidence about that, and his

[Page 137]

16:55 1 point is that NRD had only done superficial exploratory

2 work and only approximate estimates of reserves, which,

3 as he says, were more guesswork than anything else

4 because of the superficial level of sampling that had

5 been carried out. That's dealt with, just for your

6 note, in the witness statement at paragraphs 18-21.

7 Because of all that, the only hope in the 2010

8 application was not to get a long-term contract, but to

9 be given a five-year licence to essentially have another

10 go, the hope being that NRD might do a better job on the

11 concession areas in the next five years, and they might

12 at that point have a shot at a thirty-year licence.

13 That is why, of course, the 2010 application is

14 indeed only aimed at a five-year licence. Both NRD and

15 the government understood that it was an application for

16 a five-year licence, and Mr Marshall understood that

17 too, and we will be going to some of the evidence on

18 that with him in cross-examination.

19 There is nothing in the 2010 application to support

20 the suggestion that this was an application for a vast

21 mining licence under Article 57 of the Mining Law. All

22 the documents point to this being an application for

23 a five-year licence under Article 45 and a small mines

24 exportation licence, and there's nothing in the document

25 that goes beyond a five-year window.

[Page 138]

16:57 1 Mr Cowley suggested this morning that it's normal in

2 the industry not to go beyond a five-year window, but no

3 evidence for that proposition either. And it's

4 inconsistent with NRD's own later application, which

5 does indeed produce figures going beyond the five-year

6 window and out to the thirty years that was sought.

7 Professor Rupiya was there, and his understanding

8 was that NRD was applying for a small mining licence for

9 five years under Article 45.

10 Now, part of, as I understood, Mr Cowley's

11 submission this morning was that any application for

12 a mining licence must have been for a long-term vast

13 concession licence. That's simply not right, because

14 there's a mining licence under Article 45, which is

15 a small mining licence, which is indeed what NRD were

16 after. It's quite clear, we suggest, that Mr Marshall

17 understood this at the time, and we'll come to that.

18 Now, that's the second block of time. The next

19 block of time is really the period from the end of 2010,

20 after Mr Marshall's arrival and Spalena's acquisition of

21 NRD, until about the beginning of 2012.

22 Dealing with the acquisition by Spalena, what's

23 important to note is that Mr Marshall conducted due

24 diligence and spent some time with Mr Ehlers and was

25 specifically told about the limitations in the work that

[Page 139]

16:58 1 had been done in the previous eras, and specifically

2 told about the limitations in the application.

3 He was also specifically told that because of the

4 limited work done, NRD thought that if any further

5 licences were granted, these would be on a short-term

6 basis. So he went in with his eyes open, he paid

7 a desultory price of [Redacted] for the company, and the

8 idea that he thought that there were long-term licences

9 guaranteed and assured is, in my submission, absurd; not

10 only at odds with the contract in fact in place, but

11 also at odds with what he was told by NRD at the time

12 and at odds with the application that had already gone

13 in.

14 That application needed to be assessed and was

15 assessed against Rwanda's 2010 Mining Policy, and that

16 stressed the need to critically assess and evaluate

17 applications to make sure that in these four-year

18 periods, effective exploration work was being done, and

19 the concessionaires weren't simply conducting artisanal

20 mining on the concessions.

21 We've set out quite a long quote at paragraph 19 of

22 our skeleton. What the policy is effectively doing is

23 warning against exactly the kind of practices that NRD

24 was guilty of across its extremely large concessions, in

25 three of which NRD wasn't even pretending to do anything

[Page 140]

17:00 1 other than purely artisanal mining.

2 While I'm dealing with this shift from artisanal to

3 industrial mining that Rwanda was seeking to push, can

4 I just pick up on one point in paragraph 38 of the

5 Claimants' pre-hearing brief. If I could start in the

6 middle of the paragraph, the Claimants say:

"Astoundingly, Mr Gatare, in his second witness

8 statement, states that 'the Rwandan mining industry

9 remains largely artisanal.'"

10 There's nothing astounding at all about anything

11 Mr Gatare says in his second witness statement, and at

12 some point -- we could go to it now, but I'll just note

13 it now -- paragraph 20 of Mr Gatare's second witness

14 statement is entirely clear.

15 What he's saying is the aim and the policy of Rwanda

16 is to industrialise from artisanal mining, and

17 concessions are awarded on that basis. But the process

18 of industrialisation is of course a gradual one, and the

19 point that he's dealing with in this paragraph is that

20 for so long as the industry has a largely artisanal

21 component, you will see fluctuations in production

22 volumes, because miners and productivity can wax and

23 wane, depending on things like the price of minerals and

24 whether mining at an artisanal level is sufficiently

25 economical for the individual miners as compared with

[Page 141]

17:01 1 other activities.

2 So when you get to a sentence lower down in

3 paragraph 38, the Claimants say:

"Mr Gatare goes a step further and actually

5 dismisses the benefits of 'industrial mines,' such as

6 the ones that NRD was purportedly required to build,

7 because of the 'substantial sunk cost[s]' associated

8 with running such large mines."

9 Now, this is a regrettable part of the paragraph.

10 It simply doesn't characterise what Mr Gatare says in

11 his witness statement. He doesn't dismiss the benefits

12 of industrial mining at all in paragraph 20 of his

13 supplemental witness statement, and no fair reader of

14 that statement could have thought he was. He in fact,

15 in that paragraph, explicitly extols the benefit of

16 industrial mining. But he does say that so long as

17 there are still significant levels of artisanal mining,

18 you will have this side effect of fluctuating levels of

19 productivity.

20 Again, I do say it's unfortunate. I've had to spend

21 time -- and we've all had to spend time -- unpicking

22 points like this because they are simply inaccurate.

23 Coming back to the acquisition by Spalena of NRD,

24 you will have seen that there is a dispute about whether

25 there were other components or bits of consideration in

[Page 142]

17:03 1 the purchase of NRD, and those are points that are said

2 to be relevant to Bay View's standing to pursue a claim

3 in this arbitration. [Redacted]

5 We will go to the detail of all of that with

6 Mr Marshall, and we will be suggesting that the

7 Claimants have cooked up a story about the alleged

8 liabilities that NRD had to Bay View Group at the time

9 of the acquisition. We'll come back to this in

10 evidence.

11 The other point to note about this period -- this is

12 the early part of Mr Marshall's arrival -- is that there

13 was and is no evidence to suggest that Spalena had, or

14 currently has, any financial substance to it.

15 The evidence shows that by the end of 2010, when

16 Mr Marshall arrived, NRD itself was in deep financial

17 trouble -- we suggest that that's reflected by the

18 purchase price -- and Spalena didn't bring

19 anything to the table. It didn't invest, and there's no

20 suggestion that it ever had the resources to do so.

21 So when we get to the 2014 application and we see

22 that one of the problems with the application, as

23 identified by the Rwandan teams at the time, was NRD's

24 inability to demonstrate that it or its owners had any

25 adequate financial resources, that's a deficiency that

[Page 143]

17:04 1 was inherent in the purchase.

2 Now, the evidence is that Mr Marshall and his

3 partner Ms Mruskovicova ran NRD as a briefcase company:

4 they borrowed from traders, they ran up debt, they

5 drained the company's working capital. And this meant

6 that the situation worsened under Mr Marshall's watch:

7 no investment, drop in production levels from the start

8 times, and less ability to control the concessions in

9 terms of illegal mining and environmental damage.

10 The November 2010 application was evaluated by

11 Rwanda in 2011. As with the later licence applications,

12 there was an objective evaluation by a senior geologist

13 and staff member, Dr Michael Biryabarema, who is

14 a witness. In line with what NRD themselves expected

15 when they made the application, he determined that the

16 November 2010 application was deficient, in particular

17 in respect of the exploration works and the resource

18 evaluation. Just for your reference, it's at R-111, and

19 we will be going to it in due course.

20 As we saw in Mr Imena's witness statement that we

21 looked at earlier, there was no proper feasibility study

22 or resource evaluation as required by Article 2 of the

23 contract. So what that means is that Article 2 was not

24 complied with, even before you get to the question of

25 whether there could be a positive evaluation of any

[Page 144]

17:06 1 feasibility study for the purposes of Article 4.

2 NRD were informed of this in August 2011 by a letter

3 from Mr Kamanzi. By that point, as Mr Mugisha explains,

4 all rights under the contract to a long-term licence

5 were at an end. But Mr Kamanzi did give NRD

6 an extension of the licences for six months, to give NRD

7 an opportunity to prove it was entitled to be granted

8 any further licences.

9 Those licence extensions didn't extend the contract,

10 but they did amount to extensions of the licences. And

11 there was indeed a subsequent licence extension, and the

12 last licence extension expired in October 2012. None of

13 these licence extensions -- and we'll look at the

14 documents -- none of them involved any assurance that

15 any long-term contract would ultimately result, or

16 anything remotely of that kind.

17 Just pausing there, it is unfortunate, we will be

18 submitting, that the Claimants have given so many

19 distorted quotes from these extension letters, to give

20 the impression that these extensions were themselves

21 somehow envisaging or encouraging the Claimants in the

22 belief of long-term licences. They simply weren't, and

23 we can look at the documents.

24 There is then, still in this period 2010-2012, what

25 we submit is a curious episode which occurs in late

[Page 145]

17:07 1 2011.

2 The Claimants' case, their version of events, is

3 that NRD agreed a draft long-term contract with

4 an employee of the mining industry, Mr Bidega, who is

5 one of their witnesses. The Claimants say that

6 Mr Bidega went so far as to have the contract approved

7 by the minister and submitted to cabinet.

8 This is inaccurate, and we will be exploring that

9 with the witnesses. Mr Bidega was an employee who was

10 just about to join NRD at this point, and did join NRD

11 immediately after the events in question. We dispute

12 that any draft was ever agreed, or that Mr Bidega would

13 ever have been duly authorised to do so. And no such

14 draft was in fact ever put to, let alone approved by the

15 minister, still less ever submitted to cabinet. That is

16 another factual distortion in the case.

17 One thing I would say about this episode, and the

18 2011 draft that Mr Marshall himself prepared and sent to

19 Mr Bidega, is it is quite clearly a draft contract for

20 a five-year licence. That's quite an important point,

21 because the Claimants' case is that he always understood

22 that there was an assurance of a long-term licence, and

23 they even say that the November 2010 application was for

24 a long-term licence. It's impossible to reconcile that

25 with what Mr Marshall was up to in late 2011, which is

[Page 146]

17:09 1 drawing up a five-year licence.

2 What in fact happened in this period -- we're now at

3 late 2011 -- was that Dr Biryabarema told NRD that it

4 should be applying for short-term licences for only two

5 of the concessions. What he was saying was that NRD

6 should be focusing its limited resources on what it

7 thought were the two most promising concessions. But

8 after this, NRD insisted at all times in holding out for

9 all five concessions, even though it didn't in fact make

10 any renewed application of any kind for any length of

11 licence. And indeed, by this stage NRD had never made

12 any application for a long-term licence.

13 So that's the end of 2011. The next period is 2012.

14 In that period there was the further licence extension

15 until October 2012, and after that no further formal

16 licence extensions, although we accept there were ad hoc

17 permissions to remain on-site. And just to reiterate,

18 none of the ad hoc permissions either could have been

19 thought to convey any assurance of a long-term licence.

20 Just give me one moment to read my own note to

21 myself. I apologise. (Pause)

22 Yes, it's just to pick up on one point from this

23 morning. Just to clarify our case, contrary to what

24 Mr Cowley thought our case was, we do certainly accept

25 that there were formal licence extensions up until

[Page 147]

17:10 1 October 2012, just not beyond. We're not saying there

2 were no licence extensions after August 2011.

3 In August 2012 we have, just for the timeline, the

4 first incident involving Mr Benzinge and the RDB, which

5 I talked about earlier. And by the end of that year,

6 the way things stood was like this: first, the licences

7 had expired in October 2012; secondly, there had never

8 been an application for long-term licences; thirdly, at

9 this point there were environmental and illegal mining

10 issues in NRD's western concessions, which had led to

11 NRD being suspended from operating in those concessions.

12 The next block of time is 2013. In January of that

13 year, NRD did put in what purported to be an application

14 for long-term licences. But it was a desultory

15 document, and we do say it was somewhat telling that in

16 his account of things this morning, Mr Cowley didn't

17 even mention this document and it didn't feature on his

18 timeline. The reason for that is that it doesn't fit

19 into his case theory that the 2010 application was still

20 somehow live and that the 2010 application was in some

21 way for long-term licences. It wasn't live, Mr Marshall

22 knew it, and it wasn't for long-term licences. And

23 that's why he put in this desultory document in

24 January 2013.

25 For your note, that's at C-054. It was quite

[Page 148]

17:12 1 literally only a nine-page rehash of points in the

2 earlier November 2010 document which had previously been

3 seen as inadequate. There's no new material in it at

4 all. We would suggest that this could not really

5 seriously have been regarded by NRD as a serious and

6 real application.

7 In May of that year, the RDB countered with what was

8 a realistic and serious position, because they indicated

9 that the RDB would be prepared to negotiate for each

10 concession separately, and they wanted to start

11 discussions for a small-scale five-year licence at the

12 Nemba concession, which was the most productive

13 concession by a distance. So that is a sensible

14 position: there was one apparently productive mine, and

15 they said to NRD, "Focus your resources on applying for

16 a five-year licence for this productive mine".

17 That discussion led to one of the letters from

18 Mr Marshall to Mr Imena of the kind we'll see a lot of

19 in this case: a tirade of complaints and factual

20 distortions. And one of the distortions was the

21 proposition that NRD was automatically entitled to

22 long-term licences, which Mr Marshall had known from the

23 outset was never the case.

24 Now, by this stage I should say that NRD -- this is

25 the summer of 2013 -- had been allowed back onto its

[Page 149]

17:13 1 western concessions, following its own promise that it
2 could curb illegal mining on its concessions by
3 recruiting demobilised soldiers.
4 Now, later in that year -- so I've just referred to
5 NRD being invited to apply for a Nemba five-year
6 licence. They didn't. And later in that year, it again
7 needed to be the government, specifically Mr Imena,
8 pushing the NRD to apply. He did that in October 2013,
9 making the point to NRD that for a year or so, it had
10 now been operating without a licence; the time had come
11 it needed to apply. And he also reiterated the point
12 that NRD didn't seem to have capacity for five
13 concessions and should focus on two, Nemba and Rutsiro.
14 Again, this advice was ignored. NRD made no new
15 licence application. And we would suggest that despite
16 this prompting and chasing, the failure to do so does
17 demonstrate part of the unprofessionalism of NRD's
18 approach.
19 So that's 2013. We then move to 2014. A new Mining
20 Law came in in the first half of 2014, and NRD needed to
21 apply for a licence under the new law. NRD didn't hold
22 an existing licence, so it couldn't take advantage of
23 the grandfathering provisions. And also another
24 technical issue was that the terms of NRD's licences
25 wouldn't have permitted it to rely on grandfathering

[Page 150]

17:15 1 provisions anyway.
2 So NRD needed to apply for new licences anyway and
3 it had to be prompted by the government to apply. First
4 it was prompted in April 2014, which NRD ignored, and
5 then it was prompted again in the summer of 2014.
6 I'll come back to that in a moment, because in
7 between those two prompts we have the Benzinge issues
8 coming up again, and that starts to happen after
9 May 2014. Because by May 2014 there had been the
10 arbitration in April 2013, and there had been two rounds
11 of appeal after that, with the Supreme Court decision
12 being given in May 2014. And from that point onwards,
13 Mr Benzinge had the benefit of that award and those
14 judgments.
15 So in August 2014 Mr Imena made his follow-up
16 request that NRD make a new application for licences
17 under the new Mining Law, and this time he gave them
18 a deadline: 30 days. It's worth noting that the request
19 from Mr Imena specifically identified exactly what
20 needed to be provided in the application, and he asked
21 that the application be made on
22 a concession-by-concession basis.
23 It's worth picking up on this: again, the Claimants'
24 pre-hearing brief, paragraph 22, where they say:
25 "Despite assurances from Mr Imena that negotiations

[Page 151]

17:17 1 of the long term licenses would resume, he inexplicably
2 demanded that NRD 're-apply' for its licenses,
3 supposedly as a result of the enactment of the new 2014
4 mining law. This was entirely inconsistent with prior
5 communications in which Claimants were assured that the
6 stalled negotiations towards completion of long term
7 licenses based upon the submitted application and draft
8 long term license would continue. There was never
9 a discussion of the need to 'reapply' because Claimants
10 had already applied and were in the midst of a process
11 to complete the negotiation of the long term licenses."
12 We would submit that this is part of the pre-hearing
13 brief that loses all contact with reality and what in
14 fact the documents show.
15 First, it's worth flagging up that a feature we see
16 in this paragraph, and also in paragraph 20 just above
17 it, a feature of the Claimants' case approach, both in
18 the Claimants' memorials and in Mr Marshall's witness
19 statement, [is that] whenever a document or a meeting
20 refers at all to an extension being given or discussions
21 being had about a licence, at each point the Claimants
22 interpolate the expression "long term licenses" or "long
23 term contracts", to give the impression that the
24 relevant document or discussion was indeed about
25 a long-term licence and gave the Claimants the

[Page 152]

17:18 1 expectation that NRD would get a long-term licence.
2 Just to give an example, you'll see one just above
3 it. If you go back to paragraph 20, one can see:
4 "When Respondent provided another explicit extension
5 of the short term license in October 2012, Respondent
6 stated that 'new contracts...will be negotiated as has
7 been communicated to all the existing concession
8 holders' further confirming Claimants' expectation that
9 NRD would receive the long term license."
10 Now, one might get the impression from that that
11 there was something in this letter that did foster the
12 impression that NRD would get or would be negotiating
13 long-term contracts, but that document is not
14 referenced. That document is the one at C-033.
15 I'm going to come back to this pre-hearing brief,
16 paragraph 22 in a minute, but if FTI could also pull up
17 C-033.
18 All that's being said here is -- paragraph 1 refers
19 back to extending the previous licence. It then says:
20 "In view of the ongoing work on reorganizing the
21 mining sector which will have a bearing on the new
22 contracts that will be negotiated as has been
23 communicated to all the existing concession holders,
24 I have the pleasure to extend your license ..."
25 So in other words, all that's being said is: there's

[Page 153]

17:19 1 a new law, all concession holders are being told that
2 the new law will have a bearing on licence applications,
3 and he's extending the licence. One cannot possibly
4 read anything in this letter as giving any indication or
5 assurance about a long-term contract or a long-term
6 licence. That's just one example, and there are very
7 many in this case.
8 But coming back in the pre-hearing brief to
9 paragraph 22, which I just read, looking at that first
10 sentence, there was nothing inexplicable in Mr Imena
11 demanding that the Claimants reapply under the new law.
12 Mr Imena had already been pressing NRD to apply for
13 a licence repeatedly, and for nearly one year by this
14 stage. The application needed to be under the new law
15 because that was what the law required.
16 The rest of the paragraph is also a fiction. There
17 were no "stalled negotiations" in respect of long-term
18 licences.
19 The true position is that NRD had made a hopeless
20 request, in this desultory nine-page document, for
21 a long-term licence in January 2013. NRD had then been
22 re-directed, in May 2013, towards making a realistic
23 application for a five-year licence, starting with
24 Nemba. Since then, since October 2013, Mr Imena had
25 repeatedly asked NRD to make a proper application,

[Page 154]

17:21 1 suggesting they focus on two of the five. They had been
2 asked again in April 2014 to make an application and
3 hadn't done so. And he was finally, in August 2014,
4 giving them a 30-day deadline. Nothing at all
5 surprising, except all that's surprising is NRD's
6 failure and unprofessionalism in not applying for
7 a licence sooner.
8 So we then go to September 2014, where NRD did make
9 an application as required by Mr Imena, but that
10 application was itself hopelessly deficient. It was
11 another rehash of the 2010 application, and NRD ignored
12 the request to apply on a concession-by-concession
13 basis. They declined to provide much of the material
14 that had been specifically requested. Recall that
15 Mr Imena helpfully gave a list of what needed to be
16 provided. That material wasn't provided, and what they
17 did provide was very far short of what could be expected
18 for a realistic application even for a short-term
19 licence.
20 Just pausing there, the Claimants repeatedly make
21 the point that NRD didn't have proper access to their
22 Kigali office. There's nothing in this. There are
23 evidential points here where we don't accept Claimants'
24 premise, which we'll be coming to. But leaving all that
25 aside, the critical deficiencies in the application had

[Page 155]

17:23 1 nothing to do with whether or not certain material could
2 or could not be obtained from the office. The critical
3 deficiencies arose because NRD couldn't possibly ever
4 supply compliant material because its operations and the
5 work done on the concessions was so deficient.
6 To give an example, NRD didn't provide adequate
7 information about the financial substance of NRD and
8 those behind NRD, such as the Claimants. They didn't do
9 so because NRD and those behind it didn't have the
10 financial substance. If they had had the financial
11 substance, the material could have been provided.
12 A similar point arises with information relating in
13 essence to feasibility study points: exploration,
14 evaluation of reserves and the like.
15 We have the 2014 application: it does have
16 accompanying documentation. That doesn't have any new
17 material from the 2010 report, and the reason for that
18 is that there hadn't been any material investment or
19 exploration or resource evaluation in the meantime. So
20 it's got nothing to do with what's available in the
21 Kigali office. Core material that was needed to support
22 a serious application didn't exist, and couldn't have
23 existed.
24 There was also, in the application, misleading
25 information that was given as to the level of investment

[Page 156]

17:24 1 from NRD, and we'll come back to that.
2 I've referred at the beginning of my submissions to
3 what happened to this application; I'm not going to
4 repeat it at length. It was evaluated by a team; they
5 recommended it was rejected, and it duly was. NRD was
6 given two further opportunities to improve the
7 application, and was even told exactly what was wrong
8 with it. By this stage we are going to 2015, and the
9 further information provided by NRD was desultory.
10 On each occasion, with each round of further
11 information, there was an objective review by Rwanda, by
12 a team; and the recommendation to the minister, quite
13 rightly, in each case was that the application was
14 inadequate and that it should be rejected, and that's
15 duly what happened in May 2015.
16 Throughout this process, Mr Marshall was still
17 writing bullying letters. They included letters to the
18 President and others making what we suggest are
19 outrageous allegations of corruption, and with
20 significant distortions of fact which are evident on the
21 face of the letters.
22 But one thing that does emerge from these letters is
23 that if the Claimants did have a claim of any kind, that
24 claim is, on any view, out of time, because the
25 Claimants had sufficient knowledge before the cut-off

[Page 157]

17:25 1 date. That knowledge is evident from the correspondence
2 which Mr Marshall sent. It even includes threats to
3 bring proceedings under the bilateral investment treaty
4 made as early as January 2012.
5 This is an insuperable difficulty for the Claimants.
6 They try to grapple with it at paragraph 30 of their
7 skeleton, where they suggest that the Claimants regarded
8 the final letter of 19th May 2015, which said their
9 applications were refused and they should vacate the
10 concessions, they regarded that as a "bump in the road".
11 That's untenable, not only in the face of the facts but
12 also in the face of Mr Marshall's own contemporaneous
13 correspondence.
14 Just while we're looking at paragraph 30 -- if
15 I could ask FTI to pull it up. It's the "bump in the
16 road" paragraph. They say:
17 "This was confirmed by Claimants['] dealings with
18 Respondent after receipt of the May 19, 2015 letter.
19 For example, Mr Imena continued to represent to
20 third-parties that NRD owned and operated the mines in
21 its Concessions."
22 This is also a hopeless submission which was covered
23 off in the evidence. Mr Imena met with these relevant
24 third parties -- and you were shown the document this
25 morning at C-120 -- he met with these third parties in

[Page 158]

17:27 1 2014, when NRD was still on the concessions. So the
2 fact that the third parties didn't write to Mr Marshall
3 in 2015 is by the by. The Claimants have repeated this
4 submission this morning as if they hadn't even read the
5 evidence that makes it clear that this is a bad point.
6 As we explain in our skeleton, there was ultimately
7 a retendering of the concessions. The concessions, once
8 they are retendered, didn't go to the military, didn't
9 go to entities connected with the military. That's just
10 another conspiracy theory.
11 So, as I said at the beginning of my opening, once
12 one understands and analyses the story, one can readily
13 see that there simply isn't anything in this case.
14 There's no expropriation or anything like it.
15 NRD had every opportunity to make well-founded
16 applications for licences. The government was generous
17 in giving them opportunities. The government looked
18 fairly and objectively at all the applications that were
19 made. And the applications fell far, far short of
20 making the grade, as Mr Marshall should always have
21 known they would, because he was told of the problems at
22 the outset when he bought in, and he thereafter did
23 nothing to improve the problems or conduct further
24 exploration or further industrialisation that would have
25 enhanced the position.

[Page 159]

17:29 1 That's all a whistle-stop tour, and we'll see quite
2 a lot more of the detail with Mr Marshall.
3 I'm going to mention something briefly about the
4 preliminary objection points. Before I do, could I just
5 pick up one other development in the Claimants' case,
6 which we do suggest is constantly shifting. This
7 relates to the public tender process.
8 There was a normal, objective tender process, and
9 the winning tender was duly chosen. The Claimants have
10 run an entirely false point that the winning tenderer
11 was Ngali Mining, being a company organised under the
12 Ministry of Defence. That is wrong. That's a point
13 made in the Claimants' Memorial at paragraph 270, and
14 it's wrong, as we've explained in detail in our
15 memorials and our evidence.
16 There is now, in the Claimants' skeleton
17 (paragraph 43), a new allegation that seems to be
18 a variation on this -- it's unpleaded and it's not
19 supported by any evidence -- that the concessions were
20 "transferred to a Rwandan investor with close ties to
21 [the government]". That's never been said before.
22 I apologise, I'll give you the reference; I've not
23 got it in my note.
24 "... the Concessions ... were transferred to
25 a Rwandan investor with close ties to [the government]."

[Page 160]

17:30 1 That's never been said before. No particulars have
2 been given, nor any explanation as to how this relates
3 to the public tender process that took place.
4 We do say that unevidenced allegations advanced by
5 way of assertion are unhelpful and they're inappropriate
6 in any arbitration or litigation. But they're even more
7 inappropriate, we would suggest, when the nature of the
8 allegation is extremely serious. These are public
9 proceedings, as the Claimants well know, and they should
10 be taking care not to make serious allegations without
11 proper evidence. But what we've seen here is the
12 opposite of them taking care.
13 I've already mentioned the extravagant claims
14 regarding Rwanda's approach to mineral smuggling and the
15 manufactured claims about an unnamed oligarch. Those
16 are allegations that simply shouldn't have been made:
17 there's no evidence to support them at all.
18 I've also mentioned the extreme claims of corruption
19 and the like against Mr Imena made by Mr Marshall, which
20 are still repeated in the Claimants' memorials. And
21 there are two other allegations that I just want to
22 mention now.
23 The first is the reference to Mr Imena's criminal
24 prosecution. As the President rightly picked up with
25 Mr Cowley, Mr Imena was acquitted of all charges.

[Page 161]

17:31 1 Mr Cowley suggested this morning that the
2 co-conspirators might not have been. We don't even
3 accept that. But in any event, that point is
4 irrelevant. Mr Imena was acquitted.
5 Mr Cowley, on being asked about that, the best he
6 could put it was that he didn't really know and he
7 wanted to look a bit more at the documents. Well, he
8 should simply not be advancing allegations essentially
9 insinuating that Mr Imena was guilty of criminal charges
10 when the evidence shows he was acquitted and Mr Cowley
11 cannot suggest otherwise. That allegation should be
12 withdrawn, and that should happen at some stage this
13 week, in my submission.
14 Just before I move to the second allegation,
15 I didn't give you a reference to the point I made
16 a little earlier about the tender process. It's
17 paragraph 11 of their pre-hearing brief.
18 The other allegation that I would like to mention
19 now is an allegation in the Claimants' evidence, which
20 we suggest is simply untrue, that Mr Marshall received
21 indirectly, via Ms Mruskovicova, a warning from
22 a Rwandan senior policeman that he had angered some
23 dangerous people and his life was in danger. We suggest
24 that is simply untrue.
25 But worse than that, we now see in the Claimants'

[Page 162]

17:33 1 skeleton that even this serious allegation has now been
2 distorted to become something even more serious. And if
3 I could just invite you to read what's said at
4 paragraph 11 of the skeleton in the last sentence and
5 what's said in paragraph 44 in the second sentence.
6 These are extremely serious allegations. They are
7 untrue. They are unsupported by any evidence, because
8 the evidence that is given -- and we suggest that that
9 is itself untrue -- which is in the witness statements,
10 it doesn't establish or come close to establishing the
11 propositions advanced in paragraphs 11 and paragraph 44.
12 Again, this is the opposite of taking the kind of
13 care that the Claimants should be taking with extremely
14 serious allegations of this kind. It's inappropriate,
15 it shouldn't have happened. And what's more, this
16 allegation doesn't even form any proper part of the
17 claim in this case. It's not relied on as a breach of
18 the bilateral investment treaty. And we, on our side,
19 don't consider it appropriate for our side even to be
20 required to spend material amounts of time addressing
21 this allegation that falls outside any proper claim that
22 can be advanced.
23 That's what I wanted to say on the substantive
24 merits points. We've also dealt at length in our
25 memorials with the legal analysis, and we've summarised

[Page 163]

17:35 1 that at paragraphs 78-94 of our skeleton and we've given
2 references to our Counter-Memorial and to our Rejoinder.
3 If I could just pick up on a point from the
4 Claimants' skeleton relating to the expropriation claim
5 and how that's advanced.
6 In their pre-hearing brief at paragraphs 41 and 45,
7 the Claimants explain, what seems to be to us for the
8 first time, what assets they consider to have been
9 expropriated. They now seek to say it's:
10 "... a processing plant, roads, bridges, reservoirs,
11 piping networks, a testing laboratory and other
12 buildings ... vehicles, equipment, and other tools ..."
13 But that point is advanced for the first time, and
14 there's in fact no evidence either of their property
15 rights to these items or of any taking of these items by
16 Rwanda.
17 I just want to now move on to say a few words about
18 the preliminary or jurisdictional objections that we
19 have. We've obviously explained these at length in our
20 Memorial on Preliminary Objections and our Rejoinder.
21 We do suggest this case fails in limine, before one
22 needs to consider all the merits points that I've been
23 spending time on.
24 As the Tribunal knows, our objections are of five
25 kinds. The first is temporal, and there are two aspects

[Page 164]

17:36 1 to that which we explain at paragraphs 51 to 59 of our
2 skeleton, giving the references to our Rejoinder and our
3 Memorial on Preliminary Objections.
4 The first aspect is that some of the Claimants'
5 claims, on analysis, amount to a complaint about matters
6 that took place before the treaty even came into force,
7 and the treaty doesn't operate retroactively.
8 Secondly -- and this is more of a point for this
9 week -- the claims are out of time because they were
10 submitted to arbitration more than three years after the
11 date on which the Claimants acquired knowledge, or
12 should have acquired knowledge, of the breaches alleged.
13 For that purpose, the relevant date to have in mind,
14 we suggest, is 12th June 2015, which is when this claim
15 was submitted. The Claimants are wrong in their
16 suggestion that 14th May 2015 is the cut-off date,
17 because that's the date of the submission of a different
18 claim to arbitration including a different party, and
19 that claim was not accepted by ICSID. We would suggest
20 that the claims are clearly out of time, in any event,
21 on either cut-off date.
22 This is an aspect that we would invite you to
23 particularly keep in mind when you listen to all the
24 evidence, because all these alleged breaches, all the
25 relevant conduct and matters complained of, all took

[Page 165]

17:37 1 place long before the cut-off date. The Claimants knew
2 all about them because NRD -- or Mr Marshall -- was in
3 fact complaining vociferously at the time. We say his
4 complaints were tendentious and without merit, but it's
5 impossible for the Claimants to suggest they weren't
6 fully aware of the matters complained of. They were
7 even complaining at the time that there was a breach of
8 treaty obligations and expropriation by the government.
9 The second area of preliminary objection relates to
10 standing. And in terms of this week's focus,
11 I particularly pick up on the BVG points, because we say
12 BVG simply has no standing because it has no interest in
13 NRD or in Spalena.
14 We'll be spending a little time with Mr Marshall on
15 the Claimants' allegations that BVG somehow did acquire
16 a sufficient interest in NRD as a result of money
17 allegedly lent to NRD under this cooperation agreement,
18 or out of alleged claims that NRD had against BVG out of
19 that agreement, or out of alleged transfer of assets to
20 NRD. Even leaving aside all the legal problems that
21 arise with the way the Claimants' case is put, we
22 suggest that the facts and the evidence relied on for
23 all those points involve a high degree of invention on
24 the Claimants' part, which we'll be exploring.
25 The third area of objection relates to the lack of

[Page 166]

17:39 1 jurisdiction ratione materiae, which we address at
2 paragraphs 67-72 of our skeleton. And for this week, we
3 will be particularly inviting the Tribunal to pay
4 particular regard to the evidence showing the complete
5 lack of any relevant investment or substantial
6 contribution to Rwanda's economic development by the
7 Claimants.
8 Spalena acquired NRD for [Redacted] You will see at
9 times the Claimants seeking to give the false impression
10 that the investment purportedly made by Starck prior to
11 the arrival of the Claimants was in some way the
12 Claimants' only investment.
13 You'll see an example of this, just to pick up the
14 pre-hearing brief again, at paragraph 35. You see in
15 the middle of this paragraph:
16 "Contemporaneous documents demonstrate that
17 Claimants invested at least €13 million by the end of
18 2010 ..."
19 By the end of 2010, of course, the Claimants'
20 hadn't; they only acquired NRD for $[Redacted] at the end of
21 2010. That €13 million figure is not a reference to any
22 investment by the Claimants. That is the figure that
23 I said was the Starck and Zarnack -- although in
24 practice almost all Starck -- investment in the prior
25 period, which, as I said, was a third of the amount

[Page 167]

17:40 1 foreshadowed.
2 We say that NRD's and the Claimants' account of the
3 investments that were made by NRD are highly unreliable,
4 and we'll be exploring that in the evidence. And when
5 it comes to the Claimants themselves, leaving aside
6 Starck, we don't accept that there were any material
7 investments after their [Redacted] acquisition, and indeed
8 that was one of the reasons why their 2014 application
9 was so hopeless.
10 I would just invite the Tribunal to note that the
11 lack of any investment by the Tribunal now, in fact,
12 appears to be largely accepted, at least impliedly. One
13 sees this from paragraph 9 of this document. If FTI
14 could go back to paragraph 9.
15 There's a reference to various work done, which is,
16 I should just point out, in fact new assertion, not
17 supported by evidence. So there's a lot of new
18 assertion here. But then the punchline is:
19 "Most of this investment came from retained earnings
20 and Claimants['] intention was to invest more heavily in
21 the Concessions after the receipt of the long term
22 licenses, which was necessary in order to attract
23 substantial investment."
24 So there's an implied concession here, an implied
25 acceptance that the Claimants didn't actually put any

[Page 168]

17:42 1 new money, despite what we'll see are untrue assertions
2 to the contrary given by Mr Marshall at the time.
3 The fourth area of objection relates to the lack of
4 any prior notification or request for settlement by
5 Spalena, as required by Articles 23 and 24 of the
6 treaty. We say that, put shortly, the claim by Spalena
7 is the one pursued in this arbitration, and there was no
8 compliance at all with the articles in respect of that
9 claim.
10 The Claimants' argument in their skeleton is that
11 the Claimants are functionally identical to claims that
12 were notified, and that's obviously wrong. One only
13 needs to look at the various points that we make in our
14 memorials, both on the merits and in relation to
15 jurisdiction points, to see that the centrality of
16 Spalena as the entity bringing the claims, and the idea
17 that notification of a claim not brought by Spalena
18 constitutes notification of a claim by Spalena, is, we
19 submit, hopeless.
20 We're about to move on to the evidential stage, and
21 Mr Marshall I know is going to start. Just one point on
22 the evidence.
23 We've noticed on our side quite a lot of factual
24 assertions in the Claimants' skeleton that are new and
25 unsupported by evidence. I know the parties have

[Page 169]

17:43 1 an opportunity to supplement their evidence with
2 evidence-in-chief, but we hope that this doesn't
3 foreshadow that the Claimants are going to seek to use
4 evidence-in-chief to advance extensive new evidence
5 that's never been notified to us. We submit that would
6 not be an appropriate use of their time.
7 I would also add that we would ask Mr Cowley or
8 Mr Harrison, whoever is doing the evidence-in-chief, to
9 please avoid putting leading questions to elicit
10 evidence-in-chief. It goes without saying that the same
11 applies to re-direct. And if there are any leading
12 questions, we will -- I just put down a marker -- be
13 inviting the Tribunal to discount any evidence that's
14 elicited in that way.
15 So unless I can help further, that's what I wanted
16 to say by way of opening.
17 THE PRESIDENT: Thank you very much. As I read the
18 timetable, you are half an hour ahead of your
19 allocation.
20 MR HILL: Well, I've got a lot to get through with
21 Mr Marshall, so I'm delighted.
22 THE PRESIDENT: Very well. I don't know whether Mr Marshall
23 is immediately available.
24 MR HILL: Also, I should say, I would be happy if everyone
25 wants to stop for ten minutes to organise --

[Page 170]

17:44 1 THE PRESIDENT: Shall we have a ten-minute break? I think
2 that would be very welcome. Thank you very much.
3 (5.44 pm)
4 (A short break)
5 (5.57 pm)
6 MR HILL: Mr President, while [the witness] is coming in,
7 can I just say I'm afraid we still haven't had the
8 Ehlers email. As I understood from the application, it
9 was one email with one attached document, and I really
10 struggle now to see why we haven't got it.
11 THE PRESIDENT: Mr Cowley?
12 MR COWLEY: Apologies, my understanding is Mr Harrison is
13 sending it now. When we were talking before --
14 Mr Harrison, like I said, is here with me. Just by way
15 of brief explanation, the way our system works, we can't
16 be on a Zoom call, we can't be on anything that requires
17 out-of-office connection, like working from home,
18 working in a conference room, and be on Zoom. It will
19 not hold.
20 So to be on here and present, you know, attending,
21 and to be on the network are two different things. So
22 while we're going, once we started up again, he hadn't
23 hit send yet; he had to stop and go back on to the
24 system. My apologies, but we are in our office, but we
25 have to maintain a separateness in order to maintain

[Page 171]

17:59 1 connection with Zoom. I did not understand that when
2 I said it was being sent now, that it hadn't been
3 completed yet. It wasn't completed during the
4 [opening]; it's being completed now. Mr Harrison will
5 stay offline and stay off the Zoom until it goes out.
6 THE PRESIDENT: Very well.
7 Let's continue then with Mr Marshall.
8 (6.00 pm)
9 MR RODERICK MARSHALL (called)
10 MR COWLEY: Mr Marshall, I would like to ask you to
11 introduce yourself to the Tribunal and, in addition to
12 introducing yourself by name, can you provide for the
13 Tribunal a brief explanation of the background of your
14 professional career?
15 THE PRESIDENT: Yes, Mr Marshall first of all has to make
16 a declaration.
17 MR MARSHALL: I solemnly declare upon my honour and
18 conscience that I shall speak the truth, the whole
19 truth, and nothing but the truth.
20 THE PRESIDENT: Thank you.
21 You can carry on with the direct.
22 MR COWLEY: Thank you, your Honour.
23 (6.01 pm)
24 Direct examination by MR COWLEY
25 MR COWLEY: Mr Marshall, please introduce yourself to the

[Page 172]

18:01 1 Tribunal and, in addition to introducing yourself by
2 name, please give a brief explanation of the background
3 of your professional career.
4 A. My name is Roderick Marshall. I, as a young lawyer,
5 moved to Slovakia in the Czech Republic when socialism
6 collapsed. I was with a larger firm at that time. We
7 started advising -- in fact, we were the -- I was the
8 only resident lawyer in Slovakia at that time. There
9 were many foreign lawyers in Prague, but only me in
10 Slovakia.
11 Their biggest problem: they did not have experience
12 of anything to do with the markets, sort of common-sense
13 things that you and I might automatically take for
14 granted. Their desperate need was for liquidity. They
15 started a series of financing Slovak Republic -- even
16 more so when they split from the Czech Republic, end of
17 2012, I guess.
18 So I was -- with only limited background in
19 sovereign debt financing, began working with a very
20 senior partner from my then law firm, which was Squire,
21 Sanders & Dempsey. We provided that service for the
22 Slovak Government. There were some conflicts between
23 the Slovak Government and our law firm, and we split off
24 and we continued performing sovereign debt financing for
25 the Slovak Government.

[Page 173]

18:02 1 We kept it very simple. In a certain way, blind
2 luck for both us and the Slovak Republic. We set the
3 terms of the loan arrangements. We did not allow
4 significant variations. So Slovakia paid in full and on
5 time, and was always able to refinance in successive
6 transactions because it had a good reputation.
7 I should add that Slovakia was unique in central
8 Europe at that time, being the only country which --
9 THE PRESIDENT: Mr Marshall, you've only got ten minutes, so
10 I suggest you don't spend too long in Slovakia.
11 A. Yes, thank you for that.
12 In 2003 the market in Slovakia was changing. I was
13 approached by USAID, because we're a very small firm and
14 could provide the sovereign debt financing services
15 cheaply, to provide -- to offer to provide it to Rwanda.
16 So at the urgence, as I say, of the State Department and
17 USAID, I met with, first, a group of Rwandans in
18 a delegation in Boston. They asked me to come and
19 visit. I visited. We began providing them with
20 pro bono ad hoc assistance on sovereign debt issues.
21 And at that same time --
22 MR COWLEY: I'm going to ask you to stop, only because I'm
23 trying to get to just the highlights at this point.
24 A. Yes.
25 Q. How long did a relationship with Rwanda regarding such

[Page 174]

18:04 1 services, your professional services as a lawyer,
2 transactional attorney specifically, how long did that
3 continue?
4 A. The whole time. It began -- you know, it was very
5 ad hoc at first, because, you know, they were just
6 coming off the Congo war. There was really a lot of
7 chaos. People were in positions where they didn't have
8 good experience. Everybody needed help of one kind or
9 another, and they wanted to be able to -- they were
10 particularly appreciative of what we were offering
11 because, you know, we had done it in Europe, we knew
12 what we were doing, and they were able to be sure
13 without having to pay very much -- in this case, nothing
14 at first -- to get the same services we provided to
15 European countries, sovereigns.
16 So it was very ad hoc for the Central Bank:
17 questions from time to time, sort of ongoing dialogue.
18 Very quickly they asked us, "Look, you know, we also
19 very badly need US investment in Rwanda", and the reason
20 being that they were the highest per capita recipient of
21 US foreign aid, not including military aid. So -- and
22 there were no investments from the United States, zero.
23 So they said, "Can you put together a group?"
24 Long story short, we did put together a group. We
25 went back and forth. They created most of the documents

[Page 175]

18:06 1 for us in the preparation for a request for licence, for
2 a long-term mining licence, they were issuing. Then by
3 statute under Rwandan law there are defined provisions
4 for how mining concessions are held and operated, and
5 that's what was being issued at that time, not more
6 generic licences.
7 So that's what we did.
8 Q. Mr Marshall, how long did you provide services, legal
9 services and related professional services, to entities
10 within Rwanda? Until what period of time?
11 A. Well, it was very much ad hoc until really 2010, because
12 we -- there was so much organisation -- these were
13 greenfields, there was nothing there, for Bisesero. So
14 we were spending enormous -- 24 hours a day of our time
15 working on sorting those things out.
16 We would get occasional requests for something.
17 People would come and see us, even though we were in
18 a remote area, and say, "What about this? How do we do
19 this?" And we were travelling back and forth to Kigali,
20 so we also had communications there.
21 It really became a significant portion of our time,
22 beginning in 2011, as we were taking responsibility for
23 NRD and were more frequently in Kigali, and then even
24 more so when -- it's odd to say, but when we didn't have
25 tags and couldn't sell materials, our business was

[Page 176]

18:07 1 frozen. So the military then came and bombarded us with
2 requests for memos and assistance in meeting companies
3 in Slovakia. We had delegations going back and forth.
4 That was a key element for them of gaining access to
5 European Union technology through the European Union
6 process.
7 But that really began in 20 -- in earnest, although
8 it was ongoing, but in earnest, 2014, 2015 and into
9 2016.
10 MR COWLEY: Thank you. Nothing further on direct.
11 THE PRESIDENT: Thank you.
12 Yes, Mr Hill.
13 (6.08 pm)
14 Cross-examination by MR HILL
15 MR HILL: Mr Marshall, you explain in your first witness
16 statement that you are the president of The Spalena
17 Company and the president of Bay View Group; yes?
18 A. Yes.
19 Q. And you had those roles since the formation of those
20 companies; correct?
21 A. Certainly with regard to Bay View, I had previously used
22 The Spalena Company as an entity to run a redevelopment
23 project, reconstruction of a building in Prague --
24 that's what the name Spalena is. It was a joint venture
25 with the archdiocese. And whether I was always the

[Page 177]

18:09 1 president, I can't say for sure. But that company went
2 inactive when the project was over.
3 Q. You are responsible for giving instructions on behalf of
4 both Claimant companies to the Claimants' lawyers in
5 this arbitration, Duane Morris; yes? You've given the
6 instructions?
7 A. Primarily.
8 Q. And you presumably read and approved the Claimants'
9 various memorials in this arbitration before they were
10 served?
11 A. Yes, I believe I did.
12 Q. So that would be the Claimants' Memorial, the Reply
13 Memorial and their Counter-Memorial on Preliminary
14 Objections; yes?
15 A. As far as I recall, yes.
16 Q. And in each case you were satisfied that the factual
17 version of events that was set out was the version of
18 events that you wanted to give to the Tribunal in this
19 arbitration; yes?
20 A. Yes. If you're implying somehow that there was
21 an error, I'm not aware of it.
22 Q. Now, The Spalena -- I apologise if my pronunciation
23 isn't right, but I've called it "Spalena" --
24 A. "Spalena".
25 Q. -- Spalena Company was a company incorporated in 1998;

[Page 178]

18:10 1 yes?
2 A. Yes.
3 Q. Bay View incorporated in 2007; yes?
4 A. Yes.
5 Q. Your Memorial --
6 A. That's my recollection.
7 Q. Sorry, I didn't mean to cut across.
8 A. That's my recollection, yes.
9 Q. Your Memorial suggests -- Claimants' Memorial suggests
10 at paragraph 7 (sic) that Spalena is "an investment
11 vehicle of [the] Bay View Group". But Spalena was in
12 fact formed before Bay View and isn't any kind of
13 subsidiary of that group, is it?
14 A. Well, I have to unpack what you just said.
15 Q. Well, why don't you unpack what your Memorial says. Do
16 you want to look at it? I'm sure it can be brought up
17 on the screen. Paragraph 7.
18 A. Yes, but you're using a defined term by saying it was
19 an investment vehicle of -- sorry, Spalena was
20 an investment vehicle of Bay View Group, right? So
21 I don't know when it was ... I can give you
22 an explanation of the dates, of the approximate dates of
23 what occurred when, if that's what you're -- without
24 being able to --
25 Q. I just want to understand, making sure I've got your

[Page 179]

18:11 1 evidence on the relationship between Spalena and
2 Bay View Group.
3 A. Can you make them bigger?
4 Q. I may have given you a wrong reference, Mr Marshall.
5 Can you just tell us what you say the relationship
6 is between Spalena and Bay View, bearing in mind that
7 Spalena was incorporated before Bay View?
8 A. Yes, yes. No, it was a question of the circumstances
9 forced on us by Rwanda that we followed through this
10 pattern of changes. Bay View Group was the holder of
11 Bisesero, okay?
12 Q. Carry on, yes.
13 A. Bay View Group was the holder of the Bisesero licence.
14 It was registered in Rwanda not as a Rwandan corporation
15 but as a Delaware corporation licensed to do business in
16 Rwanda.
17 Q. Well, just going back to paragraph -- if FTI could look
18 at paragraph 6:
19 "Spalena is an investment vehicle of [the] Bay View
20 Group ..."
21 Now, that suggests that Spalena is in some way under
22 the control and owned by the Bay View Group. What do
23 you say is the shareholding relationship between Spalena
24 and Bay View?
25 A. No, both companies -- there are two Delaware companies,

[Page 180]

18:13 1 okay? And when -- I don't, you know, want to -- I need
2 to explain to you the background, because otherwise, you
3 know, you're presuming an answer that isn't necessarily
4 correct.
5 Spalena is an investment vehicle of Bay View Group
6 in the sense that Bay View's assets were contributed to
7 Spalena. We had no choice. That was forced on us by
8 the Rwanda Government.
9 Q. Who owns Spalena? Who owns Bay View?
10 A. It's a group of US investors that are the same in both
11 cases.
12 Q. You're saying the same investors own both; yes?
13 A. Yes.
14 Q. We'll come back to that.
15 A. I don't know that that's always been the case, but yes.
16 Q. Can we just look at paragraph 15 of your first witness
17 statement. (Pause)
18 This is in a section -- if FTI could just go back
19 a page to see where the section starts. We've got
20 a section entitled "BVG became a Concession Holder and
21 subsequently invested in NRD".
22 A. Yes, through Spalena.
23 Q. Yes.
24 Now, you then get to paragraph 15 of this witness
25 statement. So you're dealing with the question of BVG

[Page 181]

18:15 1 investing in NRD, and you say:
2 "At the end of 2010, BVG's investors invested in
3 Spalena, so that Spalena had capital to acquire the
4 shares of the parent of NRD. BVG's investors did so in
5 order to continue investing in Rwanda's mining industry.
6 In this way, BVG invested in Spalena, which invested in
7 NRD, which served as the local Rwandan investment
8 vehicle ... BVG and Spalena are commonly owned
9 affiliates. BVG and Spalena then capitalized and funded
10 NRD's liabilities and expenses in order to develop and
11 operate the mining concessions."
12 Do you see that?
13 A. Yes.
14 Q. You were not suggesting in your first witness statement
15 that BVG had any shareholding in Spalena, were you?
16 A. I don't know what you mean. In my first witness
17 statement?
18 Q. In this paragraph you are not suggesting that BVG had
19 any holding in Spalena? The point you're making there
20 is the point, in fact, I think you just made orally that
21 you have common investors: investors of BVG also own
22 Spalena?
23 A. I'm not following you. It says:
24 "... BVG's investors invested in Spalena ..."
25 Q. Yes.

[Page 182]

18:16 1 A. You're saying it's not that, or what do you mean?
2 Q. No, I'm not at this stage taking issue with your
3 proposition that the same investors own BVG and own
4 Spalena. I'm trying to establish whether you are saying
5 that BVG has a stake in Spalena. And you are not saying
6 that in this paragraph, are you?
7 A. I am saying that in this paragraph.
8 Q. Well, where?
9 A. "... BVG's investors invested in Spalena ..."
10 Q. Yes, but BVG didn't. That's your point: they have
11 common investors. But BVG, on your evidence, has no
12 interest in Spalena.
13 A. (Laughs) I'm sorry, I shouldn't -- yes, I think you're
14 misinterpreting the meaning of that.
15 Q. Well, I'm making what looks like --
16 A. In this way, the second sentence says -- third sentence:
17 "In this way, BVG invested in Spalena, which
18 invested in NRD ..."
19 Q. But "In this way" results from saying, "BVG's investors
20 invested in Spalena". There's no evidence from you
21 about BVG taking any stake in Spalena, is there?
22 A. They had to. We were forced to. We had no choice.
23 Q. If you had considered that BVG had itself any direct
24 interest in Spalena, you would have explained that in
25 this witness statement, wouldn't you?

[Page 183]

18:18 1 A. No, I think you're misrepresenting it.
2 Q. Well, I'm just reading your statement, in a section --
3 A. "... in this way, BVG invested in Spalena ..."
4 I don't think -- I mean, that's pretty clear, right?
5 Q. Well, it's clear. But "In this way" is "BVG's investors
6 invested in Spalena": that's what the first line says.
7 A. Well, I don't read it that way.
8 Q. Well, tell me how you read "BVG's investors invested in
9 Spalena"?
10 A. Well, I would have -- obviously the intention, maybe not
11 to you now, but it was always understood in Rwanda that
12 BVG's assets all got contributed to Spalena, because BVG
13 could no longer function because they were denied the
14 possibility of continuing to be a foreign investor
15 operating in Rwanda. So when we lost that possibility,
16 we had to transfer the assets of BV -- BVG had to
17 transfer the assets to Spalena; and in exchange for
18 that, they became an investor in Spalena.
19 If you think that's inartfully worded, I'm sorry for
20 it. But that's not -- you're -- I'm not going to
21 understand it the way you read it, the way you said you
22 read it.
23 Q. What has in fact happened is that had you considered --
24 sorry, I'll start my question again.
25 Had you considered that BVG did have a direct

[Page 184]

18:19 1 interest in Spalena, you would have mentioned that in
2 your witness statement, wouldn't you?
3 A. I'm sorry, ask me again. I missed that.
4 Q. Well, Mr Marshall, you're a lawyer dealing in commercial
5 transactions and an intelligent man. You know precisely
6 what I mean when I refer to direct shareholdings. Had
7 you thought that BVG had an interest in Spalena, you
8 would have mentioned that in this witness statement,
9 wouldn't you?
10 A. That's what it said:
11 "... BVG invested in Spalena ..."
12 Q. You recall, don't you, that in May 2019 the Respondent
13 in this arbitration filed a Memorial on Preliminary
14 Objections in which it identified a number of
15 preliminary objections to the Claimants' case, and one
16 of the preliminary objections was that BVG was not
17 an investor in NRD and did not have standing? Do you
18 recall that?
19 A. No.
20 Q. You don't recall that?
21 A. No.
22 Q. Well, in August 2019 the Claimants filed a memorial in
23 response, and that was accompanied by your supplemental
24 witness statement dated 16th August 2019.
25 If we could go to that statement, we have a section

[Page 185]

18:20 1 headed "BVG's Investment in NRD and Control of BVG". Do
2 you have that? It starts at paragraph 3. I'm just
3 taking you to your own -- this is your supplemental
4 witness statement of 16th August.
5 MR BRODSKY: Thank you. I have two here.
6 MR HILL: It's the first one, not the second supplemental.
7 That's it.
8 MR BRODSKY: Thank you.
9 MR HILL: Starting at paragraph -- we can start with page 2,
10 thank you.
11 So you've got a section headed "BVG's Investment in
12 NRD and Control of NRD", and you make two points in this
13 section.
14 Actually, FTI, don't blow it up, if you would,
15 unless someone else asks. Can you not blow it up,
16 because I think it's easy to read.
17 A. No, it's not. I can't --
18 Q. Well, I'm going to ask you to look at two pages. Do you
19 have a small screen which means you can't read it?
20 A. I don't know. It's micro-print right now.
21 Q. Alright. In that case, perhaps blow up paragraphs 4 and
22 5, if FTI can do that.
23 MR BRODSKY: Simultaneously, it will still be a little bit
24 small, if they're both on screen at the same time.
25 MR HILL: Well, at paragraph 4 and paragraph 5 you deal with

[Page 186]

18:22 1 a claim that you say BVG had against NRD. Perhaps FTI
2 could blow up [paragraph] 5. It's your witness
3 statement, so I hope you're reasonably familiar with it.
4 (Pause)
5 So you say in those paragraphs that there's this
6 claim that BVG had against NRD.
7 Then if FTI could go to paragraph 6. You say there
8 that the claim was written off and assigned to Spalena.
9 So that's the first point you make: you've got this idea
10 of a claim that was written off.
11 Then you say at paragraph 7 that BVG had assets
12 totalling $2.25 million, which it transferred in
13 exchange for an ownership stake.
14 So that's what you're saying in your supplemental
15 witness statement. Both of those points were relied on
16 in the Claimants' Memorial in Response to Preliminary
17 Objections.
18 Now, my question -- and I'm just reminding you of
19 your witness statement -- my question to you is that
20 neither of these points featured at all in your first
21 witness statement that you filed in support of the claim
22 in this arbitration, did they?
23 A. I don't know.
24 Q. Well --
25 A. You'll have to show me that --

[Page 187]

18:24 1 Q. -- we looked at your first witness statement, where you
2 dealt with the topic of BVG investing in NRD, and
3 neither of the points that you make in your supplemental
4 witness statement feature at all in your first witness
5 statement, do they?
6 A. I'm sorry, you're going to have to show me back where
7 you're --
8 Q. No, please do. If you could be shown again first
9 witness statement, paragraphs 13, 14 and 15.
10 Do you have a hardcopy witness statement with you or
11 not? Do you have your own witness statements?
12 A. No.
13 Q. Okay.
14 Paragraphs 14 and 15. There, just leave it like
15 that. Mr Marshall can say if he can't read it.
16 A. No.
17 Q. I wonder if over the course of the next day or two --
18 Mr Marshall, are you in the Duane Morris offices or not?
19 A. Yes.
20 Q. I wonder if he could be given a bigger screen, because
21 it's enormous on my screen. And we've got a lot of
22 documents to get through and I do need to be able to
23 pull up a page. Are you on a small laptop screen or
24 something?
25 A. I think this is FTI, this is not Duane Morris's screens.

[Page 188]

18:25 1 Q. But is it a small laptop screen that you're on?
2 A. Yes, but sideways.
3 Q. Well, if FTI could, in turn, blow up paragraphs 14 and
4 15. Thank you.
5 So nowhere do you make either of the two points that
6 you see in your supplemental witness statement, do you?
7 A. You mean I don't talk here about what those assets --
8 where it says, "BVG's investors did so in order to
9 continue investing in Rwanda's mining industry", but it
10 doesn't list them here; is that what you mean?
11 Q. It doesn't really say anything, does it? You have made
12 points in your supplemental witness statement that
13 simply aren't there in your --
14 A. Well, you're character -- I mean, as I understand it,
15 you're saying that means that it didn't happen. But
16 this language, to me, what it was intended to say was
17 that investment was made.
18 Q. Now, let's go back to paragraphs 4 and 5 of your
19 supplemental witness statement. I'm going to suggest to
20 you that you've come up with the versions of events in
21 this statement in order to meet the Claimants'
22 objections, their preliminary objections. Do you want
23 to comment on that now or shall we do so afterwards?
24 You've come up with a version of events that BVG has
25 a stake in Spalena, haven't you?

[Page 189]

18:27 1 A. I'm sorry, I've lost the thread here.
2 Q. You've come up with this version of events that BVG has
3 a stake in Spalena, haven't you?
4 A. I understood that you said that, but where am I looking
5 at, or where --
6 Q. I'm asking you. I'm just asking you.
7 A. Did I, in order -- no. The events on the ground drove
8 what happened to us and why we had to contribute BVG's
9 assets to Spalena.
10 Q. Let's start with paragraphs 4 and 5.
11 A. We had no choice.
12 Q. Let's start with paragraphs 4 and 5. So you say that
13 there was this cooperation agreement between NRD and BVG
14 on 1st November 2010; that's your evidence, yes?
15 A. I think that's the evidence in the trial, yes.
16 Q. Then you say it involved NRD working on the Bisesero
17 concession; yes?
18 A. Jointly, yes.
19 Q. And you say [Redacted]
20 [Redacted]; yes?
21 A. NRD borrowed, yes.
22 Q. And you say that in the period prior to the acquisition
23 agreement from Starck -- so this is a seven-week
24 period -- [Redacted]
25 [Redacted]

[Page 190]

18:28 1 [Redacted] Is that what
2 you're saying?
3 A. Yes, but you're mischaracterising it by phrasing it that
4 way, I think.
5 What had happened was we started this cooperation
6 agreement really in, I would say, mid-September, and it
7 carried on -- it was not documented until November 1st
8 by Ehlers, with whoever he, on his NRD board, had to get
9 permission from. Whether it was a tacit permission
10 before, I don't know on what basis they were operating,
11 if they didn't have it authorised before. But it was
12 memorialised in the November 1st agreement.
13 Q. Now, this cooperation agreement didn't feature at all in
14 the Claimants' Memorial or in your witness statement; do
15 you accept that?
16 A. Didn't feature where?
17 Q. At all in Claimants' Memorial or your first witness
18 statement.
19 A. I don't -- I would have to go through it to see.
20 Q. Are you able to explain why?
21 A. I didn't even know it wasn't there, so I can't explain
22 why.
23 Q. Your current case in this arbitration is that [Redacted]
24 amounted to an investment in
25 NRD. But we saw your witness statement: your first

[Page 191]

18:30 1 witness statement had a whole section of BVG's
2 investment in NRD, and there's no mention at all of
3 a [Redacted] is there?
4 A. I would be surprised if it isn't there.
5 Q. You would be surprised if it ...?
6 A. Is not there.
7 Q. Well, it's not there.
8 A. Okay.
9 Q. And the reason it's not there is because there was no
10 [Redacted]?
11 A. That's simply not true.
12 Q. Your current case also suggests that there is an alleged
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 Again, if those liabilities had
17 truly existed, they would have been mentioned too in
18 your first witness statement, wouldn't they?
19 A. No, they wouldn't, necessarily.
20 Q. Coming back to C-122, if we could look at this
21 cooperation agreement document, if FTI could bring that
22 up. We can see from the third line of this document
23 that on the face of this agreement, this is NRD and BVG
24 agreeing to cooperate in the management of the Bisesero
25 concession; that's right, isn't it?

[Page 192]

18:31 1 A. Yes.
2 Q. Then paragraphs 2-4 deal with what, on the face of this
3 document, NRD is to do. It's to buy necessary artisan
4 mining support equipment for BVG, using money provided
5 by BVG, and then also loan its own equipment to the
6 artisans, and they're to buy enough artisan support
7 equipment so the artisans in the concession can generate
8 the maximum possible minerals, and there's reference to
9 this [Redacted] NRD has got to keep proper
10 financial accounts of the transactions made on behalf of
11 BVG. Then NRD has got to loan its bulldozer, wheel
12 loader and tipper trucks. Then the NRD equipment should
13 be provided for such a period of time by BVG. And
14 they've got to loan enough machinery and equipment for
15 minerals to be processed on site. And then NRD shall
16 create a programme of artisanal miners.
17 So on the face of this document, BVG was asking NRD
18 to conduct the operations for BVG at the Bisesero
19 concession; yes?
20 A. No.
21 Q. Did you say no?
22 A. No.
23 Q. Well, you explain what your understanding is.
24 A. Well, the way it was operating -- this is
25 Anthony Ehlers's draft that he wanted approved for his

[Page 193]

18:33 1 board, or I don't know what authorisation process he had
2 at NRD internally.
3 What we were doing was we were running the two
4 concessions jointly. NRD had substantially more
5 equipment. They had the plant, which was nearing
6 completion at that time. They had a lot of staff, a lot
7 of mining minerals expertise, which was a great boon for
8 us, since we could cooperate. They needed some of our
9 equipment for operating the plant. They needed our
10 staff, who had different kinds of relationships with
11 different people. And so it was a real cooperation.
12 This is Anthony Ehlers's attempt to memorialise it
13 for his board, for our --
14 Q. Take it in stages. What clearly is involved is that NRD
15 is going to be conducting, managing the Bisesero
16 concession, isn't it?
17 A. That was -- no, it was cooperation in running of it.
18 It's not like we left and he came in and ran it. That's
19 a complete misunderstanding.
20 Q. And it did involve purchasing equipment with a loan from
21 BVG; yes?
22 A. Yes.
23 Q. And it involved lending BVG NRD's bulldozer, wheel
24 loader and tipper trucks; yes?
25 A. Yes.

[Page 194]

18:34 1 Q. That's presumably because BVG needed to borrow those
2 from NRD because it didn't have its own; yes?
3 A. No.
4 Q. Well, you can see the whole scheme in paragraph 2 of NRD
5 having to provide --
6 A. I agree that's what it says, but the function was not
7 because we didn't have it. We had different kinds of
8 speciality equipment, which is why he needed our
9 speciality equipment as well. It was a benefit to him
10 at the same time.
11 Q. And you can see at paragraph 3, at the end, that:
12 "NRD [is to] loan enough machinery and equipment for
13 minerals to be processed on site ..."
14 So in other words, BVG is dependent on the loan from
15 NRD and sufficient equipment to enable minerals to be
16 processed?
17 A. Yes, but that -- again, you know, the way -- these
18 concessions are large areas and there are different
19 deposits at different places, and Bigugu had what they
20 had identified was a very promising deposit. And
21 instead of shifting equipment from somewhere else on our
22 concession, we agreed that it would be better to bring
23 in new equipment just for Bigugu.
24 Q. Now, NRD is, under this agreement, represented by
25 Mr Ehlers, the managing director, on the face of this

[Page 195]

18:36 1 agreement; yes?
2 A. Yes.
3 Q. And that signature at the bottom of the page, which is
4 purportedly Mr Ehlers's, I understand you now accept is
5 not his; yes?
6 A. We never said that it was his. It was authorised by him
7 to sign it.
8 Q. And when you put the document --
9 A. There are other counterpart signed versions.
10 Q. When you put this document in in this arbitration, you
11 didn't say that this was not in fact Mr Ehlers's
12 signature, did you?
13 A. I'm sorry, that would never even occur to me. If you
14 put somebody's name/somebody else's initials, that
15 suggests, I think universally, that that's not his
16 signature, but it's authorised by him to sign.
17 Q. Just explain that again. So you consider that this is
18 not representing to the reader that this is Mr Ehlers's
19 signature?
20 A. No, it is representing to the reader that Mr Ehlers
21 authorised it and had somebody else sign it because he
22 wasn't there, or whatever the circumstances were on that
23 day.
24 Q. You're a lawyer by profession, Mr Marshall. You don't
25 really think, do you, that this was telling the reader

[Page 196]

18:37 1 that this is not Mr Ehlers's signature but that it's
2 something else?
3 A. 100%. If you put somebody's name/somebody else's
4 initials, that means somebody else signed it on their
5 behalf.
6 Q. I suggest you don't really think that, do you?
7 A. I suggest you're sorely mistaken. Maybe it's a British
8 practice which is not the same in the United States.
9 I don't know any lawyer who wouldn't assume that there
10 was something that they need to look at with regard to
11 that signature.
12 A signature is a signature. If you put a slash and
13 you put somebody else's initials, that means that the
14 signature was presumably signed by somebody else, and
15 I've never understood the convention otherwise.
16 Q. Paragraph 2 of this document refers to a [Redacted]
17 You have suggested in your witness
18 statement that this [Redacted] was in fact advanced,
19 and that's not true, is it?
20 A. Yes, it was advanced.
21 Q. How was it advanced and by what means?
22 A. I don't recall. But I'm sure it was advanced.
23 Q. You were aware that the Respondent disputes this, and
24 you haven't produced a single piece of evidence to
25 suggest that this [Redacted] was advanced, have you?

[Page 197]

18:38 1 A. I don't know whether there's another exhibit which shows
2 that it's been advanced or not. But I'm certain that it
3 was advanced because I was involved in it. In fact, it
4 was somewhat delayed, and Mr Ehlers and I got into
5 a short spat about: it had been a week late and he had
6 been embarrassed.
7 Q. Mr Marshall, you're making it up, aren't you? You're
8 making it up. Do you want to answer that? You're
9 making this up.
10 A. I find that really condescending.
11 Q. Well, it's a question. Are you denying it?
12 A. I find it condescending and I'm denying it.
13 Q. If it had been advanced, you would have been able to
14 produce a bank statement from BVG or some evidence of
15 some kind to support this statement, wouldn't you?
16 A. No. What you've taken from our offices -- and this is
17 the period -- and still, when your -- all of these
18 documents would have been in our offices, and your
19 client took them. So if we can get all those documents
20 back, I guarantee you we'll be able to show them to you.
21 Q. Come on, Mr Marshall. You're not suggesting that
22 whatever happened in the office in Kigali in 2014 would
23 have prevented you, BVG, which is a Delaware company,
24 from going to its bankers to establish proof of this
25 [Redacted]?

[Page 198]

18:40 1 A. It would not have been -- it was in -- no, I'm sorry,
2 I think you're missing the essential aspects of how
3 these transactions worked.
4 The money would have been -- and I don't know which
5 bank account because we had several, because of troubles
6 and various issues going on. The money would have been
7 in Rwanda. The money would have been transferred to
8 Ehlers. He may have insisted on it in cash. Very
9 rarely did you do bank-to-bank transfers.
10 Q. You're suggesting there was a [Redacted]
11 A. I know that this happened because of the argument that
12 I had with Anthony Ehlers and had to apologise because
13 it was some handful of days late.
14 Q. You're not suggesting there is a [Redacted]
15 are you?
16 A. No. It was paid in instalments, over the time as they
17 needed it. We would not have given him [Redacted]
18 would I?
19 Q. And you would have had no difficulty of getting evidence
20 of this from BVG's bankers to validate this, would you,
21 if it had been true?
22 A. No, you're again insinuating facts that are not --
23 completely untrue.
24 Q. You see that NRD was obliged, under paragraph 2, to keep
25 proper financial accounts of these transactions.

[Page 199]

18:41 1 Mr Sindayigaya was the senior accountant of NRD at the
2 time: he was not aware of any of these liabilities.
3 A. You will have to take that up with Mr Sindayigaya.
4 Q. Mr Cowley can take it up with Mr Sindayigaya. What it
5 demonstrates, doesn't it, is that these liabilities
6 didn't exist; because if they did, NRD's senior
7 accountant would obviously have been aware of them,
8 wouldn't he?
9 A. Well, I think it's interesting that he calls himself
10 a senior accountant. He was a bookkeeper and he should
11 have been aware of it. My expectation was that he, in
12 fact, would have handled it. For him to deny it is
13 extraordinary and false.
14 Q. Now, you say at paragraph 5 of your witness statement
15 that [Redacted] That is also
16 something where you haven't identified a single document
17 to establish the existence of this claim; correct?
18 A. No, I think we may have included it in the police
19 report. That may have been still available from our
20 office; if not from the office, from the police. You
21 know --
22 Q. If this had been true, Mr Marshall, you would have been
23 able to produce emails between you and NRD, or the
24 controllers of NRD, saying, "Look, there's
25 [Redacted]"

[Page 200]

18:43 1 [Redacted]"
2 Not a single document has been produced by you to
3 establish this assertion.
4 A. I don't know whether that's true or not. I know the
5 facts were what the facts were. We had an inventory.
6 Whether it was Mr Ehlers or somebody else -- we believed
7 it was Mr Ehlers. Mr Ehlers committed several
8 embezzlements and that was part of the reason that we
9 fired him, including human trafficking and other things.
10 So we were very, very upset. What we have been
11 focused on, the [Redacted] given all of the other crimes
12 that he was committing at that time, I'm not sure. I'm
13 not sure.
14 Q. I'm not talking now about the [Redacted] I'm talking now
15 about what you say is [Redacted]
16 A. That was the inventory of our minerals in Bisesero,
17 which we had not sold any.
18 Q. Mr Sindayigaya has heard nothing at all about this
19 alleged claim for [Redacted]; and again,
20 he was a senior accountant.
21 A. Well, he was not a senior accountant, he was
22 a bookkeeper. And he embezzled money, so we fired him.
23 Q. He also says, in his second witness statement, that it's
24 impossible for that kind of [Redacted]
25 [Redacted]

[Page 201]

18:44 1 [Redacted]
2 [Redacted]
3 That's correct, isn't it?
4 A. He's mistaken.
5 Q. Which bit is he mistaken about?
6 A. We began operations in Bisesero in 2007. We had -- in
7 retrospect, I would not have stored them and kept them.
8 To me it was like money in the bank. But I believed
9 them to be secure. They disappeared. Whether it was
10 Mr Ehlers or Aime Sindayigaya himself, I don't know who
11 stole it. But we did not get the financial benefit from
12 those minerals.
13 Q. Can we look at the sale and purchase agreement between
14 you and Starck. This is C-068 at page 9.
15 A. Steve, this is subject to the non-disclosure agreement.
16 I don't know if there's some process you have to alert
17 somebody that this is subject to a non-disclosure.
18 Q. Let's look at page 9 and f).
19 MR COWLEY: May I ask the Tribunal that I could just
20 reassure Mr Marshall that there has been a process about
21 how to select out for public viewing those materials
22 that are considered confidential by the parties before
23 they become fully public.
24 MR HILL: So looking at f), you will see that:
25 [Redacted]

[Page 202]

18:46 1 [Redacted]
2 [Redacted]
3 [Redacted]
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 A. No, I don't believe so. I think this refers to only
13 [Redacted]
14 [Redacted]
15 Q. But [Redacted] It's
16 saying the target --
17 A. [Redacted]
18 [Redacted]
19 [Redacted]
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 [Redacted]
25 [Redacted]

[Page 203]

18:48 1 [Redacted]
2 Q. Sorry, that is on page 12.
3 Again:
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 A. [Redacted]
13 Q. [Redacted]
14 [Redacted]
15 A. [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 Q. Will you go to n):
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 Carry on.
25 [Redacted]

[Page 204]

18:49 1 [Redacted]
2 [Redacted]
3 A. [Redacted]
4 [Redacted]
5 [Redacted]
6 Q. If you go to the last page of the document, this is the
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 [Redacted]
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 [Redacted]
25 [Redacted]

[Page 205]

18:51 1 [Redacted]
2 [Redacted]
3 [Redacted]
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 [Redacted]
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 [Redacted]
25 [Redacted]

[Page 206]

18:52 1 [Redacted]
2 [Redacted]
3 [Redacted]
4 Q. You're not answering my question. I'm going to ask you
5 to focus on my question.
6 You've said this is a misrepresentation. This is
7 a sale by Starck: this is a professional mining company.
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 [Redacted]
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 Q. Let's move on to the other interest that you say BVG
25 acquired in Spalena, and that is an interest, you say,

[Page 207]

18:53 1 that arises by virtue of an alleged asset transfer from
2 BVG. Do you know what I'm talking about?
3 A. No.
4 Q. Well, your case is that BVG acquired an interest in
5 Spalena because there are assets from BVG, various bits
6 of plant and equipment, that were transferred from BVG
7 to NRD, giving rise to an interest in Spalena; yes? You
8 know that part of the case I'm talking about?
9 A. Yes.
10 Q. Now, can we go to C-123. This is a resolution from
11 7th March 2012.
12 A. 27th March.
13 Q. Yes, sorry, 27th March 2012. So before this document,
14 on any view, Bay View had no interest in Spalena; is
15 that right?
16 A. We were the same people. How do you mean? Bay View
17 Group as an entity? What was the liabilities of
18 Bay View Group versus Spalena?
19 Spalena was -- at the time of the purchase was
20 simply a shell. We wanted Bay View Group to buy the
21 parent of NRD. That would have been the Starck
22 transaction. Starck was aware that Dr Michael had, for
23 reasons we don't know, prohibited Bay View Group --
24 there was -- in 2011 there was an amendment to the
25 corporate laws of Rwanda: all companies had to

[Page 208]

18:55 1 re-register. BVG, as a foreign company licensed to do
2 business in Rwanda, was not given that opportunity, and
3 we think it was part of his effort to push us.
4 So we suddenly, with the agreed-upon gentlemen's
5 agreement, BVG could no longer operate in Rwanda.
6 Q. I'm going to come back -- don't worry, you'll get
7 a chance to talk about that bit of the story later
8 because I'm going to come back to that. Let's just
9 focus on this resolution.
10 So this is a resolution from you, as president and
11 sole director of Bay View Group LLC. And we also have
12 the equivalent document for Spalena at C-124, if that
13 could be brought up.
14 A. Yes. Right.
15 Q. Now, were you aware -- and I'm sure you are, because you
16 read the memorials -- that the Respondent doesn't accept
17 the authenticity of these two documents?
18 A. I'm aware that they don't accept the authenticity of
19 almost everything we submitted.
20 Q. Now, the Respondent made its position clear in its
21 Rejoinder. If these had been genuine documents, there
22 would inevitably have been some contemporaneous
23 documents -- emails, drafts -- to demonstrate their
24 existence in March 2012, wouldn't there?
25 A. We were out of -- we had lost Bisesero: the police had

[Page 209]

18:57 1 come and taken it. What else --
2 Q. You have --
3 A. Sorry?
4 Q. We know how you operate your emails: you have your own
5 email account. There would have been no -- if these
6 documents had existed in 2012, you would have had no
7 difficulty producing emails which demonstrated their
8 existence, would you?
9 A. To who? This is an administrative or bookkeeping
10 procedure. We don't -- we have -- you know,
11 I'm guessing, but half a million/a million dollars'
12 worth of equipment on the ground. I know that that will
13 be the second hearing. But the assets are on the ground
14 and there's now no owner.
15 Q. If these had been genuine documents, it would have been
16 easy for you to produce contemporaneous material showing
17 their existence at the time?
18 A. To who? To what purpose?
19 Q. Well, documents tend to be produced and then circulated,
20 for example, by email.
21 A. To who? Yes, I understand the concept. But why would
22 this be necessary? We have assets in the company that
23 no longer can operate in Rwanda. So there is no owner.
24 We had to transfer them.
25 Q. Let's look at what the resolution says now.

[Page 210]

18:58 1 On its face, this resolution authorises you "To take
2 any and all actions necessary" to effect a sale; yes?
3 So on the Spalena version, "take any and all actions
4 necessary ... to purchase"; and on the other resolution,
5 C-123, on the Bay View Group version, "take any
6 actions necessary ... to ... sell".
7 What you don't have is any actual sale agreement
8 between the two parties, do you?
9 A. Well, I smile because, you know, you're not going to be
10 happy. But you took all of our documents. The fact
11 that we retained these, for reasons I don't know, in
12 a different place is not our fault.
13 Q. Sorry, are you suggesting that there was an agreement
14 that has got lost? Or are you just making --
15 A. It would have been two sentences if there was.
16 Q. Well, you don't know, so you're speculating?
17 A. I don't recall one way or another, no. I can't imagine
18 I would not have created -- because otherwise how was it
19 effected. This is the authorisation to act on behalf of
20 BVG, the other is the authorisation to act on behalf of
21 Spalena, and then you have a two-sentence purchase and
22 sale agreement. So I can't imagine that I didn't do it.
23 Q. You don't know, because the reality is that there was no
24 sale and no transfer of assets, and this is another
25 invention for the purposes of this arbitration,

[Page 211]

19:00 1 isn't it?
2 A. No, that's not true.
3 THE PRESIDENT: Mr Marshall, you have said these documents
4 were kept in a different place. Where were they kept?
5 A. We had -- I don't -- there were -- we had an office
6 which was seized, as you'll recall, and we had
7 an apartment. So sometimes -- I would often take
8 documents home. This is not a document, where I was
9 going, that I would have sent to my investors. This was
10 just an administrative housekeeping matter. So --
11 MR HILL: The reality is, Mr Marshall, we've got a very
12 large number of documents from your side in this
13 arbitration. We don't have difficulty getting hold of
14 documents where they actually exist. And the reason
15 that you haven't identified any documents showing any
16 existence of this transfer is that you've made up what
17 you do have for the purposes of this arbitration; yes?
18 A. No, that's not true. And you can't guess the number of
19 documents there would have been because you have no
20 idea, with all due respect. You say we have a lot of
21 documents, and I'm glad and grateful for that, but you
22 can't guess at how many documents there were. You're
23 assuming that it's insignificant, and that's not a fair
24 assumption for you to be drawing.
25 Q. Let's go to C-123. I would like to now go to the second

[Page 212]

19:01 1 page of this document. You will see there that there's
2 a list of the items purportedly purchased, involving
3 five truck tractors and a number of other trucks and
4 bulldozers and other vehicles. And on the next page --
5 if FTI could just go to the next page -- a list of heavy
6 mining equipment, including crushers and other items,
7 and the list goes on.
8 Mr Ehlers, as managing director of NRD, has
9 confirmed in his witness statement that you took him out
10 to look at BVG's Bisesero site in late 2012, and these
11 assets were not visible there at all. That's correct,
12 isn't it?
13 A. No. Some were there. We, in anticipation that this was
14 a greenfield mining site, had been -- when we realised
15 we were going to be receiving the long-term concession
16 in 2007, we started buying materials in the United
17 States. We travelled around and bought them at numerous
18 places, because they were advantageous prices, and we
19 orchestrated them to be shipped over there as we were
20 building up the mines.
21 You know, I'm sorry, I know you don't have mining
22 experience, but you don't bring everything there and
23 assemble it like, you know, Tinkertoys. That's not the
24 process. You bring assets as and when you need them.
25 Q. Mr Ehlers has confirmed that there were no operating

[Page 213]

19:03 1 vehicles and no processing facilities at Bisesero, and
2 he is right, isn't he?
3 A. No.
4 Q. The assets you've mentioned in this list did not exist
5 at the Bisesero site at all, did they?
6 A. Some of them did, were present in Bisesero. As you
7 know, when you're mining, you don't build a plant first:
8 you provide jackhammers, you provide compressors and
9 generators, so the artisans can generate better
10 production than they were by hand.
11 Q. So you're suggesting that the jackhammers might have
12 been there, but not the other material; is that what
13 you're saying?
14 A. No. I would have to go through the list and have to sit
15 down with our logistics people to find out which ones
16 were there and which ones were not.
17 Q. Well, there's a lot of processing equipment --
18 A. Ehlers arrived in June 2010, formed the joint venture
19 with us a month later, saw what we had, needed some of
20 our pieces of equipment for what he was doing, was very
21 keen to have this cooperation agreement, with the
22 expectation that it would be a long-term joint venture.
23 We were delighted, you know. Independent of
24 Mr Starck -- I mean, of Mr Ehlers, HC Starck --
25 Q. I'm just going to stop you there, Mr Marshall, because

[Page 214]

19:05 1 that's not at all an answer to my question. I want you
2 to focus on my question.
3 A. Okay.
4 Q. This material was not on site at Bisesero, was it, and
5 BVG did not have it to sell to NRD; correct?
6 A. No. Some of it was on site and BVG did have it
7 available for sale to Spalena.
8 Q. No, Mr Sindayigaya was at NRD until September 2012,
9 nine months after the resolution that we've just been
10 looking at; and not only was he there at NRD, he also
11 visited the Bisesero site on several occasions and he
12 also says these assets were not there. And he is
13 correct too, isn't he?
14 A. No, he's not correct either. And he was suspended for,
15 I think, maybe six months of that period, until the end
16 of 2012. So he was not even in the office during that
17 time.
18 There were some of these materials here. Which
19 ones? I need to get a logistics guy in to say which
20 ones were there and which ones were not.
21 Q. He confirms that none of the trucks or heavy mining
22 equipment that were listed were there, and he's right?
23 A. No.
24 Q. And perhaps more significant, he also confirmed that
25 none of these assets were transferred to NRD. And he's

[Page 215]

19:06 1 right about that as well, isn't he?
2 A. No.
3 Q. Well, he would know, wouldn't he?
4 A. No.
5 Q. Well, of course he would, because he's doing the books
6 for this company and he's going to know if all of this
7 equipment is being transferred to NRD, isn't he?
8 A. No, it was transferred to Spalena, and Spalena was
9 transferring it to NRD. What he knew when, we were very
10 disappointed in him.
11 Q. This asset transfer never happened and these assets were
12 never provided to NRD, were they?
13 A. They were provided to NRD.
14 Q. This is another invention for the purposes of this
15 arbitration, isn't it?
16 A. No, it isn't.
17 Q. You haven't, in fact, produced any corporate
18 documentation of either BVG or Spalena which suggests
19 that BVG has an interest in Spalena, have you?
20 A. Which BVG ... I thought we had.
21 Q. Well, you haven't.
22 Now, let's come back to the US investors. You say
23 the same US investors are behind both Spalena and BVG.
24 Who are these investors?
25 A. Because of the death threats, I don't want to give their

[Page 216]

19:07 1 names.
2 Q. Do you say it is you or family trusts in which you or
3 other members of your family are beneficiaries?
4 A. I don't wish to -- out of fear of safety, I'm not going
5 to comment on that.
6 Q. Well, let's look at C-070. This is a letter from the
7 Rwanda Development Board, from the registrar general
8 there, and this is to the mayor of the
9 Bugesera District, and it says:
10 "Reference is made to our communication of
11 06/08/2012 regarding the suspension of the position of
12 Managing Director in the above named company."
13 And that's NRD.
14 "We have recently received legal and authenticated
15 document showing that the holding company of NRD Ltd,
16 NRD Holding Gmbh, is wholly owned by Spalena Company
17 LLC, an American Company, incorporated in Delaware that
18 in turn is wholly owned by Mr Roderick Marshall.
19 "In his capacity therefore as sole shareholder of
20 the holding company, he submitted copies of a notarized
21 resolution ..."
22 So you were telling RDB and providing them with
23 material to show that you were the whole owner of
24 Spalena?
25 A. No.

[Page 217]

19:09 1 Q. Well, that's what you were telling RDB, isn't it?
2 A. No.
3 Q. So the US investors are you?
4 A. No.
5 Q. Why were you telling RDB that?
6 A. I didn't.
7 Q. They've got it wrong, have they?
8 A. This letter is wrong, and they know it.
9 Q. That's exactly what you were telling RDB at the time,
10 wasn't it?
11 A. No.
12 Q. I'm going to come on now to the acquisition by Spalena
13 of NRD.
14 A. I'm happy to introduce all of the investors to the
15 arbitration panel, but I don't want their names
16 released.
17 Q. I'm going to come on to Spalena's entry into the NRD
18 story following its acquisition in December 2010.
19 Before I do, I just want to ask you about some of your
20 evidence that relates to the period before
21 December 2010, so before Spalena got involved in buying
22 NRD.
23 You suggest at paragraph 6 of your witness statement
24 that between 2003 and 2007, RDB representatives
25 "urgently asked [you] to form a group and a have

[Page 218]

19:10 1 a recognizable US-owned mining investment in Rwanda".
2 Do you see that at paragraph 6?
3 A. Yes.
4 Q. That's not correct, is it?
5 A. Why?
6 Q. It's simply untrue.
7 A. No, that's true.
8 Q. Can we go to [Redacted]
9 A. Hold on a second. Lambert and his staff were calling me
10 certainly every week.
11 Q. Shall we go to R-100?
12 A. I'm sorry?
13 Q. Let's go to R-100. This is an email chain involving
14 Ms Mruskovicova, who I know we'll be hearing from.
15 Can you go to the second page of this document.
16 Ms Mruskovicova says:
17 "Here are addresses which I found on internet.
18 Please let me know if they are current or we need to
19 update them. These are institutions we think the
20 material should be send. Also probably to Williams,
21 Alex and some other people in RIPA. I hope you are
22 arround. Or should I ask somebody in RIPA? Please let
23 me know what you suggest."
24 Then if we go over to the [previous] page, Mr Mucyo
25 responds:

[Page 219]

19:12 1 "Thank you for your email, i will sent you update
2 email addresses, Tommorrow, some have changes. You will
3 send the proposal with a signed transmission letter ..."
4 Then he explains what you have to do underneath that
5 with regards to the consulate.
6 What we can see in this thread is that it is you
7 pitching to the Government of Rwanda, and not the other
8 way round; correct?
9 A. No.
10 Q. That's what was happening: you were making a pitch to
11 the Government of Rwanda and getting the right email
12 addresses to do so; yes?
13 A. No. Well, I can imagine that we were being told that
14 this is the process that we needed to send the documents
15 that they had prepared jointly with us to these
16 entities. But this is not our initiative. This is the
17 process as explained to us.
18 Q. Can you go to C-138. On your side, this is a document
19 that you rely on to demonstrate that Rwanda were
20 soliciting investments from you. This is the material
21 you rely on. Now, this document comes after the email
22 we've just been looking at.
23 A. This is 20 --
24 Q. Sorry, C-138. I think this might be R-138. If FTI can
25 pull up C-138.

[Page 220]

19:13 1 MR BRODSKY: My apologies.
2 MR HILL: That's alright.
3 So this is the document that your side rely on to
4 demonstrate that Rwanda, you say, were soliciting
5 investments from you or people connected to you, and it
6 comes after the email we've just looked at. And in the
7 third and fourth paragraphs, what's said is -- this is
8 from Rwanda:
9 "Your proposition are very interesting but for the
10 finalization of the joint venture process in short
11 period, we ask you to send the offer of your company
12 before the 30th September 2005. This includes your
13 identification (certified copies), your experience in
14 the mining industry, your investment plan and your
15 action plan.
16 "In the preparation of your investment plan, take
17 into consideration our proposition included in the terms
18 of reference sent to you in April 2005. In other words,
19 the investment plan should take into consideration the
20 choice of equipment on the basis of rational methods
21 applied in the research and mining and the treatment of
22 ores."
23 Again, quite clear that it's you who has been
24 promoting a proposal to Rwanda, and on the Rwandan side
25 they're telling you which targets you need to hit; yes?

[Page 221]

19:14 1 A. Well, I appreciate your interpretation of it, but that's
2 not the way the process worked.
3 Q. Well, it's what's evident from the document, isn't it?
4 A. I don't know that it's evident from all the documents.
5 We -- as I recall, Lambert communicated after this
6 letter to us saying, "Yes, yes, yes, that's the official
7 process, but we need your investment, so here's how this
8 is going to work", and it had nothing to do with this
9 process.
10 Q. This is going to be a bit of a refrain, isn't it,
11 Mr Marshall, this idea that there are assurances from
12 people which are not reflected in this document; is that
13 right?
14 A. I don't know.
15 Q. Because the documents do not show any assurances of the
16 kind that you seek to rely on, and in fact they're
17 inconsistent with them.
18 A. I don't know that that's going to be the case.
19 Q. Shall we go to paragraph 7 of your witness statement
20 now? You say that:
21 "The most significant aspect of their solicitation
22 was that our investment in Rwanda would be strongly
23 supported by the Government and State agencies,
24 including guaranteed security for our future company's
25 staff and property. The RDB took me to dozens of

[Page 222]

19:16 1 meetings with State officials who reassured me that
2 RDB's representations were true and correct. They
3 convinced me that Claimants' investment in Rwanda was so
4 significant to Rwanda that the Government would
5 gratefully work to ensure our business success."
6 A. Yes.
7 Q. Now, none of that is true either, is it?
8 A. All of that is true.
9 Q. We've seen the documents. It was you trying to seek
10 support from Rwandan officials for your proposals, and
11 you received none of these assurances, did you?
12 A. I understand that those are your conclusions from those
13 select documents, but that's not what happened.
14 Q. Can we look at paragraph 8.
15 A. There were not just written communications, I think you
16 appreciate; you know, not -- in addition to whatever has
17 been taken by the government out of our offices. You're
18 characterising a system which was never in practice in
19 Rwanda; never.
20 Q. Well, when you say -- when you just said earlier "not in
21 the documents that" -- one moment. (Pause)
22 When you say "your conclusions from those select
23 documents", I'm just going to the documents that you
24 have relied on in this arbitration in support of these
25 so-called "assurances".

[Page 223]

19:17 1 A. These are the documents we have available. We're forced
2 to rely on what we have. But it's you that took our
3 documents.
4 Q. If you look at paragraph 8, you say:
5 "I was repeatedly assured that if I invested in
6 a Concession, the Government of Rwanda would assure that
7 I would receive a long term contract and be the
8 statutorily-defined Concession Holder for 30 years with
9 the possibility of an extension. I learned that all
10 Concession Holders had received the same guarantee."
11 That's not true either, is it?
12 A. Yes, it is true.
13 Q. Just give me one moment, Mr Marshall.
14 A. I'm sorry?
15 Q. Just give me one moment. (Pause)
16 I'm just trying to understand what your evidence is.
17 Your last answer was to the effect that Rwanda had taken
18 your documents, and that's why the material is not
19 available. But your earlier answer -- and this is at
20 the transcript at 19.15 (page 221) -- you say:
21 "[But] I don't know that it's [in evidence] from the
22 documents ... Lambert communicated after this letter ...
23 saying, 'Yes, yes, that's the official process, but we
24 need your investment ...'"
25 So is your evidence that this thing is undocumented

[Page 224]

19:18 1 or that there were documents that have been lost?
2 A. I think my memory -- if my memory is correct, I was just
3 looking at that document yesterday or the day before.
4 Lambert says, "Yes, you know, there is this process, but
5 what you need to do is just to write the head of the
6 Privatisation Ministry and the process will be finished
7 for you".
8 Q. There are no documents suggesting any assurances given
9 and there were in fact no assurances given; that's
10 correct, isn't it?
11 A. No.
12 Q. Let's go back now to the acquisition of NRD. One of the
13 things you did, when considering whether to acquire the
14 company, was to review the contract between Rwanda and
15 NRD relating to the concessions; correct?
16 A. That's the November --
17 Q. Yes. One of the things you did when you were thinking
18 of acquiring NRD was review the contract relating to the
19 concessions: that's the November 2006 contract?
20 A. Yes.
21 Q. Just to place this in time, we're talking about
22 a November 2006 contract and then an acquisition by you
23 in December 2010; yes? Four years later.
24 A. That's correct.
25 Q. We're about to look at the contract. But it's right to

[Page 225]

19:20 1 say isn't it, that you had no involvement in the
2 negotiation of that contract, because of course that was
3 done at the time of the Zarnacks, a long time before you
4 got involved; yes?
5 A. Yes.
6 Q. So the actual understandings of any parties to this
7 contract at the time, in the course of the negotiations,
8 is not something which you can give any evidence on; correct?
9 A. Well, only in the event that there's no course of
10 dealings after the signing of the contract.
11 Q. Well, that's right, isn't it, after the end of 2010, you
12 can't give any evidence on that either, can you?
13 A. No, hearsay, that's right.
14 Q. And you haven't called any witness who was involved at
15 the time, have you?
16 A. No.
17 Q. So in terms of any understandings about a guarantee of
18 a long-term concession for NRD or anything like that,
19 you don't know, outside the terms of the contract,
20 because you weren't there; correct?
21 A. No, I would say that the communication between us and
22 the Zarnacks and then us and Starck were on several times
23 a week. We understood what they told us.
24 Q. Well, are you going to suggest that there were
25 communications between the Zarnacks and Starck where --

[Page 226]

19:21 1 they expressed an understanding about a long-term --
2 about a guarantee that you've never mentioned before in
3 your memorials or your witness statement?
4 A. I think you're a little bit confused. You know, we had
5 all been asked to accommodate Rwanda. Mining companies,
6 nobody -- you know, nobody would take that risk. "Here's
7 our millions of dollars of investment, and now you will
8 us whether we get a licence". This is unprecedented.
9 And the reason --
10 Q. Just define it down to something you can express
11 accurate evidence on, do you have any idea about
12 understanding on NRD's part at any period before you get
13 involved in late 2010, do you?
14 A. All I know is that we went as a group, and there was
15 maybe ten of us, as I started to express before: all of
16 us had the same understanding that this was our safety
17 net for all of us. Everybody had the same -- with
18 slightly different wording in a few places, but
19 everybody had the same.
20 We're not inventing this because of the guarantee, the
21 representations being made to us now. We understand
22 that Rwanda is disorganised and needs to get their law
23 in place and several other administrative steps. But
24 we all expect a commercially reasonable long-term
25 concession agreement.

[Page 227]

19:23 1 Q. You don't know what --
2 A. No exception.
3 Q. You don't know what NRD expected, and you didn't
4 yourself have any assurance of a long-term concession,
5 did you?
6 A. We all had the same understanding of that contract.
7 That's what we were told it represented.
8 Q. Let's go to paragraph 19 of Mr Gatare's witness
9 statement.
10 A. Sorry, I just want to add one thing. Because otherwise
11 Rwanda is scamming. You know they can't make any
12 sense. "Please come here, invest $20 million, or
13 however much, and then we'll tell you whether you can
14 stay"? That never happens in the mining industry.
15 These are tough, tough companies.
16 Q. What they told you --
17 A. Rwanda was an exception because of their extraordinary
18 history, and that's why.
19 What they told you was, "Come here, spend four years
20 industrialising and, if on the back of that you can
21 provide a feasibility study that is
22 satisfactory to the government, then you can look at
23 a long-term concession". That's what they told you,
24 isn't it?
25 A. No. You know, everything that you just described --

[Page 228]

19:24 1 industrialising -- exploration -- this takes enormous
2 amounts of money.
3 Q. That's what the Zarnacks said they were going to put
4 forward: $9 million.
5 A. The Zarnacks expected the long-term concession. They
6 said that they were going to put in $50 million. That's
7 what they knew and that was the future success of
8 Rwanda.
9 Q. They knew and you knew that unless you could do some
10 serious exploration and industrialisation, and on the
11 back of that, produce a feasibility report that
12 satisfied the government, you wouldn't be getting
13 a long-term concession?
14 A. It's a feasibility report that satisfied our investors
15 to continue, not the Rwanda Government.
16 Q. Can we look at Mr Gatare's witness statement at
17 paragraph 19. This relates to your assertion that you
18 were assured that if you invest in a concession, the
19 government would ensure a long-term contract was
20 provided.
21 A. Yes.
22 Q. Mr Gatare says:
23 "I do not believe that Mr Marshall was given any
24 such assurances and even if he had been it would have
25 been clear to him as soon as he read the concession

[Page 229]

19:25 1 agreement between BVG and the Government of Rwanda which
2 he signed on 23 March 2007, that the grant of
3 a long-term concession was subject to certain conditions
4 and did not contain any Government guarantee. The same
5 is true in relation to the four year agreement signed
6 between NRD and the Government in 2006 ... although that
7 was obviously prior to Mr Marshall's involvement ..."
8 That's correct, isn't it?
9 A. No.
10 Q. You would have known that there was no such assurance:
11 you knew that in relation to Bisesero, and you would
12 have known that when you reviewed the contract in
13 relation to NRD?
14 A. No, and not only -- we were being asked, as you used
15 someplace else, for an "indulgence": "Please help Rwanda
16 get their mining system jump-started, give assistance,
17 because all of Rwandan mining is artisan support.
18 Please help us. Please take that jump, and we promise
19 you will be made whole. We promise you will not suffer.
20 We promise that you will have a commercially reasonable
21 long-term licence".
22 Q. Contrary to evidence you've also given, there's no
23 understanding in the mining community that the
24 application for a long-term licence is a mere formality,
25 is there?

[Page 230]

19:26 1 A. No, long-term licence agreements are not a formality;
2 they are a real negotiation, prior to any works being
3 done. No mining company, with the exception of maybe
4 some very superficial exploratory work, is not going to
5 spend any money and any deposit without knowing in
6 advance that it has a long-term licence concession. You
7 can't afford to.
8 Q. On that argument, Mr Marshall, you would simply have
9 a long-term licence. You wouldn't have what you in fact
10 see, which is a contract for a five-year (sic)
11 exploration licence, coupled with conditions and
12 a requirement for a satisfactory feasibility study.
13 It's completely different from what you say was the
14 deal.
15 A. I'm sorry, you're going to have to rephrase that.
16 Q. Well, on your argument, one would simply just move
17 straight to a 30-year licence, wouldn't you?
18 A. Most companies do. Everywhere else tends to: Uganda,
19 Congo, Kenya.
20 Q. In this case, what instead happens is you are given
21 five years to prove yourself before there is a long-term
22 licence being offered; correct?
23 A. No.
24 Q. Just coming back to your earlier answer about what the
25 mining community expects, the mining community would

[Page 231]

19:27 1 expect that any one party's rights would depend upon the
2 terms of its contract, wouldn't it?
3 A. I'm sorry?
4 Q. The mining community would expect that any party's
5 rights would depend on the terms of their contract?
6 A. Sure.
7 Q. And amongst other things, it would depend on the mining
8 operator fulfilling their side of the bargain in the
9 initial period; correct?
10 A. Yes.
11 Q. Now let's look at the contract itself. Go to C-017.
12 I should say, sorry, I said to you in one of my
13 questions earlier "five-year period"; I meant four-year
14 period, just to be clear.
15 So this is a contract you would have reviewed as you
16 were contemplating acquiring this company. So you would
17 have seen from Article 1 that this was a four-year
18 contract; yes?
19 A. Yes.
20 Q. Then in Article 2, you would have known that there are
21 these obligations of NRD under the contract; yes?
22 A. Yes.
23 Q. And you would have known that if NRD was in breach of
24 its obligations, the contract was capable of being
25 terminated; yes?

[Page 232]

19:28 1 A. Yes, that's what the language says.
2 Q. Yes. So you would have known even at that point that,
3 far from being a guarantee of the long-term licence, it
4 was already conditional on whether NRD could meet its
5 obligations; yes?
6 A. No.
7 Q. Well, how else would you have understood it?
8 A. This isn't the only communication. You know, they came
9 to us and said, "Look, we don't have our long-term
10 Mining Act in place". So we're being instructed that
11 we're going to do these short-term arrangements so that
12 we can -- (answer cut off by questioning).
13 Q. Are you suggesting that the real -- are you suggesting
14 that the contract doesn't represent, as you understood
15 it, the rights of NRD?
16 A. No, I would say that the rights of NRD are greater than
17 in the agreement. Representations were made to us: "If
18 you invest money and you do things that we will be able
19 to work you through, in close cooperation with the
20 government, then this is -- that's just
21 an administrative act, when you get the written
22 long-term licence agreement".
23 Q. Well, you say, "Representations were made to us". They
24 weren't made to you, because this is NRD's contract and
25 you weren't even there.

[Page 233]

19:30 1 A. All of the contracts are almost the same. All of us had
2 the same experience, the same presentations, et cetera.
3 Q. But you don't know what representations were made to
4 anyone at NRD when this contract was entered into
5 because you weren't there; correct?
6 A. It is true that I wasn't there. And if all those
7 conclusions are necessarily from the fact that I was not
8 there in person, I was with them at every Mining
9 Investment Forum meeting. I knew them. We all shared
10 agreements. I'd seen this agreement before. We were
11 all, as far as we knew, in the same boat.
12 Q. When you bought into this company, the rights and
13 obligations that NRD had were reflected in this
14 contract; yes? That's what you would have thought at
15 the time?
16 A. I understood this contract to be part of a larger
17 relationship, and I knew that Rwanda was good for its
18 word. If somebody comes and invests $10 million,
19 whatever number it is, $20 million, $30 million, they're
20 not going to just throw them out. They don't behave
21 that way. They talk to you till they're blue in the
22 face about the fact that that's the way they work. They
23 have to get people who understand their situation, their
24 desperation. They're trying to pull a country together
25 after a war.

[Page 234]

19:31 1 Q. Just to be clear, is it your evidence that you knew at
2 the time that this guarantee of a long-term licence was
3 not in the contract?
4 A. It's not in this contract document, but we understood it
5 to be in other documents.
6 Q. So you knew at the time that the contract document that
7 gave --
8 A. We understood the (overspeaking) -- I understand that
9 they don't use the word "guarantee" here. But we
10 understood the meaning of this, the way it was going to
11 be interpreted.
12 Q. Again, Mr Marshall, you are a lawyer, and
13 a transactional lawyer: you know very well that parties'
14 rights are reflected in the contracts that they have.
15 And you knew very well that this did not contain the
16 assurance or guarantee that you now say existed?
17 A. Well, two things: (1) -- and I know you and I will be in
18 an argument about it --
19 THE PRESIDENT: May I just interrupt a moment. It may be
20 that we're going to be cut off. We're just trying to
21 deal with this. We've got a notice saying we're going
22 to be cut off in one minute.
23 MR HILL: Well, if you freeze, then I will stop.
24 A. In Article 4, we were told that that gave us
25 an automatic right to a commercially reasonable

[Page 235]

19:33 1 long-term agreement --
2 MR HILL: Sorry, stop, Mr Marshall. I think the Tribunal
3 have been cut off. I'll just wait until this is sorted
4 out.
5 (Pause to resolve a technical problem)
6 MR HILL: What I'm wondering, just while the Tribunal is out
7 is -- we're about 25 minutes before time -- whether we
8 should just simply break and try and find this
9 25 minutes in some other part of the rest of the week.
10 MR KAPLAN: I can definitely relay that request. I know
11 that the President had some administrative points he
12 wanted to raise with the parties. And we do have a full
13 schedule, so there's also the difficulty in finding the
14 25 minutes.
15 Let me see what we can do. Hold on, please.
16 (Pause to resolve a technical problem)
17 THE PRESIDENT: What I suggest we do is adjourn until
18 tomorrow morning. We've only got 20 minutes to go.
19 Alright? And we must try and sort this out.
20 MR HILL: Could I just ask -- I know the President can't
21 hear me.
22 THE PRESIDENT: I can't hear anything you're saying. I can
23 see you. But you can obviously hear me.
24 So the first thing I'm going to say is that
25 tomorrow -- now I've lost sight of you. I don't know

[Page 236]

19:37 1 whether you can even hear me.
2 Can you hear me, Alex?
3 MR KAPLAN: Yes.
4 THE PRESIDENT: You can hear me? Right.
5 Tomorrow the timetable will be changed inasmuch as
6 we will have a 30-minute break at the first break and
7 a 30-minute break at the second break.
8 The second request -- and I don't know whether this
9 will get to them -- is that the Tribunal would like to
10 have delivered to the hearing room hard copies of the
11 transcripts, printed on both sides of each page. Is
12 that possible?
13 MR KAPLAN: Yes, it's possible.
14 THE PRESIDENT: We can't hear you anyway. But you think
15 that can be done?
16 MR KAPLAN: Yes.
17 THE PRESIDENT: Okay. Well, then I think it remains for us
18 to say farewell until tomorrow morning. We've made good
19 progress, I think.
20 MR HILL: The Tribunal hasn't given the witness warning.
21 Mr Harrison, you understand the witness warning about
22 Mr Marshall not speaking in between the breaks. I'm
23 sure the President would have given it, were he here.
24 But can I rely you on, Mr Cowley, to give the warning to
25 the witness?

[Page 237]

19:38 1 MR HARRISON: Mr Cowley has still stepped out.
2 MR HILL: If you explain what I have said to Mr Cowley, I'm
3 sure he will give the warning to the witness.
4 MR HARRISON: He just came back in.
5 THE PRESIDENT: Alright. Farewell until tomorrow.
6 MR COWLEY: I apologise for being out.
7 MR HILL: Yes. Mr Cowley, where we've got to, the Tribunal
8 has given some directions that can be explained by
9 Mr Harrison. They can't hear us. They weren't able to
10 give the witness warning. So I wonder if you could give
11 the witness warning to Mr Marshall, just about not
12 speaking to anyone about his evidence while he's giving
13 evidence.
14 MR COWLEY: I'm sorry, I didn't hear everything that you
15 said. Are you saying the Tribunal wants to give this
16 instruction or are you asking --
17 MR HILL: No, I'm asking you, because we can't communicate
18 with the Tribunal. So I'm asking you, unless you
19 disagree, to make sure that Mr Marshall understands he's
20 not allowed to speak with anyone about his evidence
21 while he's giving it, in the breaks.
22 MR COWLEY: I have no problem. But if you're putting on me
23 the responsibility, I just want to just agree that the
24 language I read to him is exactly the language as
25 I should be saying it. So if I can ask of you --

[Page 238]

19:39 1 because this is sort of a bit of a curve ball to me --
2 just tell me what provision of the --
3 MR HILL: Yes, well I'll say it. It's simply that while
4 he is giving evidence, as he is now, when he has breaks
5 and overnight breaks, he shouldn't speak with anyone,
6 his lawyers or anyone else, about his evidence or about
7 the case. Obviously it doesn't prevent him speaking
8 about other things, but he shouldn't be speaking about
9 the case or his evidence to anyone.
10 MR COWLEY: That's fine. I simply ask, is there
11 a procedural order section that should be read to him?
12 I'll make sure he reads it and --
13 MR HILL: I don't think -- well, I'm not aware of one.
14 MR KAPLAN: No, it's just -- I don't believe in our
15 procedural orders we have that. But it is a customary
16 undertaking at ICSID, given that Mr Marshall is
17 basically still in the witness chair but will be,
18 obviously, not physically in it until tomorrow morning,
19 or tomorrow -- yes, tomorrow morning. So just the
20 understanding not to --
21 MR COWLEY: So you're done; you're saying you stated the
22 warning, nothing else to be read or shown to him?
23 MR HILL: Mr Marshall obviously understands it because he is
24 listening; that's right, yes, Mr Marshall?
25 THE WITNESS: Yes, I understand what you're saying.

[Page 239]

19:41 1 MR HILL: Thank you.
2 MR KAPLAN: And this will apply to all witnesses, of course,
3 through the hearing.
4 MR HILL: Yes.
5 MR KAPLAN: Okay. Well, Mr Cowley, while you were having
6 a break --
7 MR COWLEY: Indisposed.
8 MR KAPLAN: Indisposed, comfort break -- this is not
9 resolvable right now, the technical issue, so the
10 President had suggested to adjourn for the night. The
11 parties should please produce an agreed schedule for
12 tomorrow that shows the first and second breaks at
13 30 minutes. And we will arrange, upon the Tribunal's
14 request, for hardcopy transcripts to be delivered to the
15 Tribunal as they requested. And that's what you missed.
16 MR COWLEY: Thank you.
17 MR KAPLAN: Sure. We'll see everybody tomorrow.
18 (7.42 pm)
19 (The hearing adjourned until 12.00 noon the following day)
20
21
22
23
24
25

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68:20,22,22 76:19

78:7,9 79:19 80:15

83:25 84:2 86:9

89:19 94:21 97:10

97:10 102:22

105:22 108:14,21

110:6,25 111:7

116:18 119:13

122:17 130:3,6

133:21,22,25 134:8

134:14,25 153:6

154:17 169:17,22

170:2,2 171:6

172:19 173:1,13

174:4,13,16,18,19

175:11 194:20

198:8 200:10,10

203:17 205:16

211:11 213:20

215:9 220:9 230:4

234:13,15

via 1:5 161:21

viable 135:21,25

136:6

Video 1:5

view 1:15 2:4 1:6

16:22 22:10,13,14

22:18,24 23:8,10

45:12 76:14 81:7

93:2 107:9 130:5

142:8 152:20

156:24 176:17,21

178:3,11,12,20

179:2,6,7,10,13,19

179:22,24 180:5,9

207:14,14,16,18,20

207:23 208:11

210:5

viewed 78:4

viewing 201:21

views 67:14

View's 142:2 180:6

violated 79:10 189:24

199:15

violation 62:23 77:12

82:9 123:7

virtue 207:1

visible 212:11

visit 173:19

visited 173:19 214:11

vis-à-vis 92:20

vital 203:8

vociferously 165:3

voice 16:25 68:21

99:25

volume 200:24

volumes 140:22

voluntary 100:12

vulnerable 78:7

vying 86:25

wade 110:12

wait 65:9 81:16 235:3

waiting 4:2 66:5 86:7

wait-and-see 56:22

waived 191:15

waiving 89:11

walk 21:24 85:6

wane 140:23

want 7:1 9:24 17:20

19:17 32:12,14,19

40:5 50:5 56:22

59:2,5 62:3,15,20

62:21 65:23 66:4

67:9 76:22,23

160:21 163:17

178:16,25 180:1

188:22 197:8

203:14 206:15

214:1 215:25

217:15,19 227:10

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wanted 1:18 4:16 7:19

19:24 20:20 22:3,4

25:5 32:22 39:16,18

40:3 43:11 45:1

76:8,9 78:4 103:9

111:23,24 112:16

121:7 148:10 161:7

162:23 169:15

174:9 177:18

192:25 206:14,17

207:20 235:12

wants 59:6,23 82:4

128:17 169:25

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war 174:6 233:25

warned 75:18 132:14

warning 139:23

161:21 236:20,21

236:24 237:3,10,11

238:22

warranties 202:6

wash 124:22

wasn't 4:12 19:7,7

27:12 35:24,24

41:17 43:1,15 51:24

53:14 70:17 71:5

74:11 75:13 77:6

79:4 80:5 99:17

100:25 102:5

104:24 105:20

112:18 113:17

117:5,24 135:25

136:7,20 139:25

147:21,22 154:16

171:3 190:21

195:22 200:25

217:10 233:6

watch 102:10,21

143:6

waters 107:22

WATKINS 2:22

65:13

waving 59:9

wax 140:22

way 14:1 16:3,7 18:1

19:25 20:17 23:25

25:7,19 28:12,15,16

33:22 39:15 42:11

64:13 70:12 75:17

77:14 81:19 82:22

85:4,4,19 87:23

88:9 90:14,21 91:21

95:22 96:6 103:15

106:22 107:16

109:11,24 110:11

113:11 114:17,19

121:7,9,11 125:6,11

126:18 127:19,20

147:6,21 160:5

165:21 166:11

169:14,16 170:14

170:15 173:1

179:21 181:6

182:16,17,19 183:3

183:5,7,21,21 190:4

192:24 194:17

210:17 219:8 221:2

233:21,22 234:10

ways 25:22

weak 100:17 101:12

wealth 205:19,19

wearing 88:15 89:4

week 5:12 48:9 90:9

106:10 161:13

164:9 166:2 197:5

218:10 225:23

235:9

weekly 60:11

weeks 13:7

week's 165:10

week-to-week 26:16

weight 2:14

welcome 1:4 170:2

Welle 202:1

well-founded 158:15

went 25:6 37:5 39:9

42:19 58:20 86:5

116:16 135:7 139:6

145:6 174:25 177:1

202:17,24 205:6

weren't 24:10 45:22

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we'll 5:11 9:14,21 20:1

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we're 1:24 5:9 7:15

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19:25 27:5 30:19,20

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63:13 64:18 69:16

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232:10,11 234:20

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we've 8:7,23 10:14

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111:7 114:2 127:15

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160:11 162:24,25

163:1,19 168:23

180:19 187:21

211:11 214:9

219:22 220:6 222:9

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whatsoever 89:13

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while 10:10 46:13,14

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238:3 239:5

whilst 56:13

whistle-stop 159:1

white 134:17 135:7

whole 4:10 26:22

36:10 38:6 46:18

59:7,16 84:1 86:7

103:4 171:18 174:4

191:1 194:4 203:15

216:23 229:19

wholly 90:14 216:16

216:18

wide 8:1

Williams 218:20

willing 32:19 38:12

80:7 202:25 205:13

willingness 70:9

window 137:25 138:2

138:6

winds 84:9

winning 159:9,10

wish 3:14 4:23 216:4

wishes 1:19

withdraw 6:11

withdrawn 161:12

witness 6:3,23 9:1

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140:7,11,13 141:11

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181:14,16 182:25

184:2,8,24 185:4

186:2,15,19,21

187:1,4,4,9,10,11

188:6,12,19 190:14

190:17,25 191:1,18

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225:14 226:3 227:8

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witnesses 1:17 5:20

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37:14,15 40:17

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123:1 134:19 145:5

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WOLFENSTEIN

2:19

wolframite 134:15

wonder 127:13 187:17

187:20 237:10

wondering 235:6

wood 90:16

word 65:10 233:18

234:9

worded 183:19

wording 226:18

words 29:12 130:1

133:8 152:25

163:17 194:14

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work 17:1 21:11 33:24

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60:10 67:21 68:2,8

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103:15,20 124:15

125:1 129:10,16

130:7 132:16,19

133:14 134:7

135:10 136:6,8,22

137:2 138:25 139:4

[Page 23]

139:18 152:20

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233:22

worked 15:24 30:10

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40:1 63:24 72:22

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workers 35:23

working 3:18 15:9,15

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19:21 25:15 26:21

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wrong 42:19,22 59:4

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156:7 159:12,14

164:15 168:12

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Yahoo 40:7

year 5:7 33:1 51:1

83:13 147:5,13

148:7 149:4,6,9

153:13 203:7

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years 19:3 26:14

27:10 29:6 30:18,19

30:20,24 31:3,5

32:10,13,15,21,23

38:8 40:13,22 49:10

54:6 62:4 92:6

93:19 122:3 126:10

128:18 129:23

130:12 131:14

137:11 138:6,9

164:10 223:8

224:23 227:19

230:21

yesterday 224:3

young 39:19 172:4

Zarnack 104:21 128:1

133:20 166:23

Zarnacks 48:19 59:3

103:23 104:16

108:2,3 112:23

128:2,3 129:21

134:10 225:3,22,25

228:3,5

zero 174:22

Zoom 1:5 1:5 170:16

170:18 171:1,5

Zuzana 54:20 58:12

59:11 67:2 75:16

$1-2 189:25 191:13

199:16 200:1,15,19

202:10

$10 233:18

$10,000 93:9 101:20

139:7 142:18 166:8

166:20 167:7

$100,000 25:17 26:2

27:1 189:19 190:24

191:3,10 192:9

196:16,18,25

197:25 198:10,14

198:17 200:11,14

202:10 206:10

$13 104:19 134:11

$140,000 202:18

$2.25 186:12

$20 227:12 233:19

$30 233:19

$39 47:5 103:25 104:7

104:9,14,23 129:22

134:10 228:4,6

$39.5 47:9

$80,000 202:24

06/08/2012 216:11

1 3:3 1:4 10:4 11:5

128:13,13 152:18

231:17 234:17

1st 189:14 190:7,12

1% 58:20,23 59:24

61:20

1.56 65:6

10 25:7 98:21 99:1

100 82:13

100% 196:3

101 86:13

11 11:11 27:14 161:17

162:4,11

11-15 11:11

110 3:13

12 3:4,5 27:20 203:2

12th 17:14,19 18:16

64:9 164:14

12.00 239:19

12.01 1:3

12.10 6:10

12.11 6:12

12.20 12:11

13 29:14 31:19 118:13

123:3 130:23 131:4

131:7 166:17,21

187:9

132 15:5

14 31:25 33:16 130:23

131:5,17 187:9,14

188:3

14th 53:2 58:1 164:16

15 1:8 9:7 33:1 180:16

180:24 187:9,14

188:4

15% 58:21 59:6,10,10

59:23 60:5 61:20

15-minute 2:7,11

16 33:9

16th 71:21 184:24

185:4

17 37:21

171 3:14,15

176 3:16

18 39:4 94:3,22 95:22

18-21 137:6

180 57:4

19 42:12 109:14

139:21 157:18

227:8 228:17

19th 157:8

19.15 223:20

1998 177:25

2 14:13 128:20 132:23

133:18 136:20

143:22,23 185:9

194:4 196:16

198:24 231:20

2nd 48:10

2-4 192:2

2.2 129:19

2.22 65:8

2.3 129:24

2.5 130:8

20 31:23 43:14 65:3,5

125:18 140:13

141:12 151:16

152:3 176:7 205:17

219:23 235:18

2003 173:12 217:24

2004 14:2,13

2005 220:12,18

2006 17:14,19 18:16

20:7 39:15 91:7

92:2,21 103:13

104:17 128:1,6

224:19,22 229:6

2007 178:3 201:6

212:16 217:24

229:2

2008 31:22 33:13

34:15 36:15 54:4

67:16 81:7 83:24

128:3 133:21,25

134:1

2010 20:23 27:14

32:12 38:25 63:7

91:10 92:22 93:9

95:17 97:1 100:19

101:13,15,17,19

102:4 103:14 104:3

122:2 130:17,24

131:6 134:1,23

137:7,13,19 138:19

139:15 142:15

143:10,16 145:23

147:19,20 148:2

154:11 155:17

166:18,19,21

175:11 181:2

189:14 202:4

213:18 217:18,21

224:23 225:11

226:13

2010-2012 144:24

2011 39:9 41:11 42:11

51:2,3 57:1 96:22

97:12,18 143:11

144:2 145:1,18,25

146:3,13 147:2

175:22 207:24

2012 42:12 43:14

45:19 46:12 47:16

49:15 50:12,24 51:6

53:2 81:13 83:13

84:22 97:19 100:13

101:2 105:23

108:14 109:15

110:15 118:7,17,20

138:21 144:12

146:13,15 147:1,3,7

152:5 157:4 172:17

207:11,13 208:24

209:6 212:10 214:8

214:16

2013 53:14 54:25

100:22 101:7 112:6

115:22 118:18

147:12,24 148:25

149:8,19 150:10

153:21,22,24

2013/2014 78:1

2014 31:15 56:18 57:1

57:3 63:2,10,16,17

64:9 67:1,7,12

69:14 70:5,17 75:7

81:7 101:7,8 105:3

105:8,9 113:7

115:22 118:13,19

130:17 142:21

149:19,20 150:4,5,9

150:9,12,15 151:3

154:2,3,8 155:15

158:1 167:8 176:8

197:22

2014/2015 76:4

2015 68:5 71:21 72:10

72:21,24 73:17,18

73:21 74:9,11,15

75:7 85:4 86:23

91:16 105:9 156:8

156:15 157:8,18

158:3 164:14,16

176:8

2016 15:22 16:18

73:19,22,23 74:4,7

74:21 75:3,7,8,14

75:20 77:5,6,13,16

83:4,9 86:22 176:9

2017 77:17

2018 126:11

2019 184:12,22,24

2021 1:7 1:1

21 43:24

21st 1:7 1:1

211 3:17

22 3:6 6:17 150:24

152:16 153:9

221 223:20

23 168:5 229:2

24 168:5 175:14

24th 20:7

25 43:24 120:2 235:7,9

235:14

26 45:19 117:15

27 46:2

27th 207:12,13

270 159:13

28 46:13 118:24

29 47:1

3 10:2 14:21 185:2

194:11

3.06 89:24

30 29:6 32:10,13 47:2

54:6 150:18 157:6

157:14 223:8

239:13

30th 220:12

30-day 154:4

30-minute 236:6,7

30-year 27:17 29:23

30:12 44:24 46:16

56:14 63:8 70:9

73:7 83:10,19,23,24

230:17

31 47:5 99:18

32 47:16

33 3:7 48:4

35 28:24 49:15 166:14

36 49:22

37 33:13 52:8

38 52:10 140:4 141:3

4 2:6,6 17:13 66:9

131:14 132:20,23

144:1 185:21,25

188:18 189:10,12

234:24

4.00 65:20 127:1

4.07 89:20

4.40 127:2

4.42 127:3

40 52:21 126:25

41 52:21 163:6

42 52:23

43 53:2 159:17

44 53:14 162:5,11

45 53:16 126:25

137:23 138:9,14

163:6

46 54:8

47 54:10

48 54:25

49 55:3

5 128:23 185:22,25

186:2 188:18

189:10,12 199:14

5.00 65:19

5.44 170:3

5.57 170:5

50 56:16

50,000 203:7

51 57:4 164:1

52 58:1

53 59:8

55 61:6

56 61:13

57 33:14 62:25 137:21

59 164:1

6 20:6 179:18 186:7

217:23 218:2

6.00 171:8

6.01 171:23

6.08 176:13

61 63:17

63 64:7

65 67:1

66 67:6

67 67:7

67-72 166:2

68 33:10 67:7

7 1:17 6:17 20:8

178:10,17 186:11

221:19

7th 207:11

7.42 239:18

70 67:21

[Page 24]

72 68:5

73 68:7

74 68:10

76 68:24

78 3:8 69:8

78-94 163:1

79 69:12

8 222:14 223:4

8th 48:10,11

80 69:15

81 70:4

82 71:9

83 3:9 72:11

84 74:9

85 74:16

86 74:21

87 77:6

88 77:12

89 77:17

9 20:23 167:13,14

201:14,18

90 3:10,12 77:19

90% 80:10

91 79:6

92 79:14

93 80:8

94 80:21

95 80:25

96 81:11

97 81:11

98 81:22

99 82:13