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
Wednesday, 23rd 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
STEVEN COWLEY, Duane Morris LLP
BRYAN HARRISON, Duane Morris LLP
RODERICK MARSHALL, Bay View Group LLC
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
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
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
JAMES WATKINS, FTI Consulting
DAVID BRODSKY, FTI Consulting
ANNA LOUTFI, assistant to the Tribunal
COLLEEN FERGUSON, ICSID paralegal
IZABELA CHABINSKA, ICSID intern
PAGE
Discussion re procedural matters ........................1
MR RODERICK MARSHALL (continued) ....................5
Discussion re procedural matters .......................74
Tribunal questions ........................141
Discussion re procedural matters ......................143
[Page 1]
12:00 1 Wednesday, 23rd June 2021
2 (Transcript times are British Summer Time)
3 (12.00 pm)
4 THE PRESIDENT: Yes, let's see if there are any matters of
5 housekeeping.
6 MR HILL: There's one matter from my side, Mr President.
7 THE PRESIDENT: Yes, Mr Hill.
8 MR HILL: There was a request yesterday from Mr Cowley for
9 metadata in relation to three documents. That was, if
10 you like, put reciprocally, because we had asked for
11 metadata in relation to one document.
12 THE PRESIDENT: Yes.
13 MR HILL: We have provided the metadata in relation to three
14 documents -- sorry, I should say we have provided the
15 metadata that we have in relation to two documents, the
16 other one is in hard copy so there is no metadata, and
17 we provided that a little while ago to both ICSID, so it
18 should get to the Tribunal, and also to Mr Cowley. So
19 that's just the housekeeping. So we obviously await his
20 version as soon as possible. One point that emerges --
21 THE PRESIDENT: Excuse me, just before -- I'm very ignorant.
22 I'm not quite sure what metadata is. I imagine it's the
23 data that tells you the genesis of the electronic
24 document?
25 MR HILL: Exactly, it tells you the information in
[Page 2]
12:01 1 particular when it was created or worked on.
2 THE PRESIDENT: Yes, thanks, yes.
3 MR HILL: And one point just arises out of that, which is
4 that one of the documents -- we've asked for the
5 documents to be uploaded in native form onto the system
6 so that in cross-examination or submission, anyone who
7 wants to can ask FTI to actually pull up the native form
8 and demonstrate the metadata. We assumed that would be
9 uncontentious, but Mr Cowley has put in an objection.
10 Now, it may well be, and I completely understand, he
11 simply hasn't had time to digest or think, but I would
12 like to put, or perhaps put, one of the documents in its
13 native form to Mr Marshall while he is in the witness
14 stand, so if Mr Cowley could confirm his consent in the
15 course of today, that would be helpful.
16 THE PRESIDENT: Hi, Mr Cowley. Have you any comments to
17 make about that?
18 MR COWLEY: At 6.46 we received an email with a letter, and
19 the letter apparently refers -- I won't challenge what
20 Mr Hill says it says, or what it contains, we haven't
21 even opened it. We have no idea what it really contains
22 and I can't possibly comment on it.
23 But I can say this: in 2020 -- what was the date of
24 our request? At the latest early last year, and perhaps
25 before, there were a number of discovery disputes put to
[Page 3]
12:03 1 the Tribunal. We requested metadata for these
2 documents. We made the request directly of the
3 Respondent. They refused. We had to put the dispute to
4 the Tribunal, and the Tribunal made no ruling. They
5 stood by their dispute, they said absolutely not, it
6 wasn't appropriate, it wasn't relevant, it wasn't
7 reasonable to request them to get it and they weren't
8 going to provide it. The Tribunal specifically made the
9 decision that it was not going to make a decision, and
10 instead it was going to leave to cross-examination our
11 exploration of, you know, that fact.
12 So having come to the hearings expressly refusing to
13 give us any notice of metadata, refusing to let us look
14 at it, test it, analyse it, Mr Marshall has tried to get
15 access to this and prepare for the hearings and they
16 refused, and then now to say that they believe it's
17 uncontested, that they can just throw it at us without
18 him reviewing it and then question him on it, I think is
19 highly inappropriate.
20 It was a request we made for them to send it to us.
21 They say they did. We'll look at it, we'll talk to
22 them. If they want to make a request to submit it at
23 some time to the Tribunal, we'll talk to them about that
24 because we may have a similar request for our own
25 metadata on documents that they challenged, but this
[Page 4]
12:04 1 should be a subject of discussion between the parties
2 and not an ambush of Mr Marshall at these hearings.
3 THE PRESIDENT: My understanding of the request that's been
4 made to you is that it's a request in relation to the
5 form in which one document is put in cross-examination
6 to your witness. What I suggest is, we're going to have
7 a half an hour break after an hour and three-quarters.
8 In that break, that will give you a chance to open the
9 envelope, see what's in it, and decide on your response
10 to it; is that fair enough?
11 MR COWLEY: But Mr Marshall will not, as I understand it,
12 and the only reason they don't have our metadata yet is
13 because we're not permitted to speak with Mr Marshall
14 about our evidence. Our evidence includes the document
15 that they want in metadata form, so no one from our firm
16 has sat down and worked with Mr Marshall to obtain it in
17 native format yet. We were expressly told not to talk
18 to him about such records. We're waiting for the
19 opportunity to do so and we'll provide it to them.
20 I never had the chance to review --
21 THE PRESIDENT: Just pausing there, I think if we have a
22 word with Mr Hill he certainly will make no objection to
23 your discussing that matter with Mr Marshall.
24 MR HILL: Yes, two points. If it were a real point we
25 certainly wouldn't object to that limited discussion,
[Page 5]
12:05 1 but we don't actually understand that point because he
2 has the document on email which means he has the
3 document in its native form. There's nothing to discuss
4 with Mr Marshall.
5 THE PRESIDENT: Yes, Mr Cowley, I think there may be some
6 crossed wires at the moment. What is being requested
7 is, as I understand it, a very simple request in
8 relation to one document. There will be no objection to
9 your discussing that request with Mr Marshall in the
10 30-minute break that we will be having in just under
11 an hour and three-quarters now, so let's leave it until
12 then. If you have further problems, we'll look at them
13 after the break.
14 MR HILL: No other housekeeping from me, Mr President.
15 THE PRESIDENT: Right.
16 Anything else you wish to raise, Mr Cowley?
17 MR COWLEY: No, your Honour.
18 THE PRESIDENT: No. In that case let us invite Mr Marshall
19 to return.
20 MR WATKINS: Okay, bringing in the witness right now.
21 MR RODERICK MARSHALL (continued)
22 Cross-examination by MR HILL (continued)
23 MR HILL: Mr Marshall, good morning. We were looking
24 yesterday at R-040. Can we call that back up? You will
25 recall that that was Mr Imena's evaluation in May 2012.
[Page 6]
12:07 1 Do you recall that yesterday you made an allegation that
2 this was a fabricated document, fabricated for this
3 arbitration; yes? Do you recall that?
4 A. I don't believe it was written in May 2012, definitely
5 not.
6 Q. Well, in the light of what you were saying in your
7 evidence, we have been back to that document and
8 provided your lawyers, and indeed the Tribunal, with
9 electronic information of that document, establishing
10 that it was in existence in May 2012. Do you have any
11 basis for your allegation that this was a document not
12 in existence in May 2012?
13 MR COWLEY: Mr President, unfortunately I have to lodge
14 an objection to a representation on the record that we
15 just explored in our housekeeping discussion. No one
16 has seen this document, that representation cannot
17 possibly be contested, and to spring it at Mr Marshall
18 as if it's truth established with us is simply
19 inappropriate.
20 MR HILL: Well, I'm in the Tribunal's hands. I see this
21 question as an appropriate one. I am asking if he has
22 any basis for his allegation that this is a fabricated
23 document?
24 A. I don't believe that Evode was in that position at that
25 time. He had been a tag manager, he had come over,
[Page 7]
12:09 1 I don't know, some time after being a tag manager to
2 work in the GMD office.
3 He never contacted us. It is not the procedure in
4 Rwanda for anybody to be preparing documents based on
5 somebody else's evaluation. It's always very much
6 hands-on, they always come and talk to you, so I don't
7 believe it.
8 Q. During the course of yesterday's cross-examination, you
9 also gave evidence that the Nyatubindi mine had been
10 closed since the Starck time, and you said maybe before
11 Starck.
12 Now, I'm just going to ask you to go to bundle
13 C-035?
14 A. Can we go back to point 4 on this document or are we
15 moving away from this document now?
16 Q. Yes, if you want to make a point about point 4,
17 I'm happy to, because that is the assessment of
18 Dr Michael Biryabarema which is referred to in
19 the May 2012 document. Is there something you wanted to
20 say about it?
21 A. No, that's section 0.4., I'm talking about section 4
22 "The management", is it? Section 5.
23 Q. Yes, that's the point you made yesterday, and I asked
24 you, you will recall, whether you were aware of any
25 letter that actually did have the correct date from
[Page 8]
12:10 1 the chairman of NRD of 14th October 2012; do you recall
2 that?
3 A. Do you recall my answer was that I don't know, because
4 I don't have the documents in front of me? I would have
5 to look to see what that was.
6 Q. But you are not aware of any document?
7 A. I'm aware of lots of documents, but --
8 Q. No doubt if you are --
9 A. One which is dated October 14th, 2012, I can't say which
10 one it would have been, and whether it's the chairman's
11 letter to MINIRENA I can't be sure without looking at
12 the documents.
13 My point was different. My point was that's a date
14 after he claims to have written this report.
15 Q. And that's why I asked you if you were aware of any
16 document with the correct date of 14th October 2012. No
17 doubt if there is one, your attorney can put it to you
18 in re-direct.
19 No, I was asking you about the Nyatubindi mine, and
20 during the course of yesterday's cross-examination, as
21 I said, you gave evidence that this mine had been closed
22 since before Starck's time or maybe even before Starck,
23 you said, and I'm going to ask FTI to call up bundle
24 C-035 and go to page 11. This was the November 2010
25 application, which we've already looked at before, and
[Page 9]
12:11 1 page 11 it says near the top:
2 "At Nyatubindi three massive dam walls were raised
3 in sequence along the Nyatubindi River to retain
4 suspended material that is introduced through mining
5 activities ..."
6 And perhaps just to be clear on what we're talking
7 about, if FTI could go one page back, so it's
8 environmental mitigation 2011 to 2015.
9 So back on the page we were on:
10 "At Nyatubindi three massive dam walls were raised
11 in sequence along the Nyatubindi River to retain
12 suspended material that is introduced through mining
13 activities ... further upstream."
14 Nyatubindi I to V. So just pausing there, it is
15 quite clear, isn't it, that in the period being dealt
16 with there are continuing mining activities as a result
17 of which environmental action is proposed; yes?
18 A. No. My understanding at that time, and certainly during
19 the period we were there we were doing a lot of
20 environmental work. This is what I referred to
21 yesterday as where the Belgians had done a lot of what
22 they called ground sluice mining, which means they
23 literally turn on fire hoses and wash down the hillside,
24 and there was no mining going on there specifically
25 because it was too complicated to try and dam up the
[Page 10]
12:13 1 silt that would have come down if we were continuing
2 that approach. It's a large site of 3 kilometres wide.
3 To my knowledge there may be some illegals, I mean, this
4 is not a small area, which were stirring up the area and
5 thereby creating silt. Our work there was remedial. We
6 were, at this time, before 2010 and during our time,
7 this is why we brought over the team of environmental
8 management from Olomouc University, and that team was
9 specifically focused on environmental works. There was
10 no mining going on.
11 Q. Just to be clear, this document is an NRD document, it's
12 talking about dam walls being raised to retain suspended
13 material that is introduced through mining activities.
14 So it's dealing with continuing mining activities, isn't
15 it?
16 A. You need to go visit. It's illegal mining activities
17 which is increasing the suspension of silt, not legal
18 mining activities. We --
19 Q. Can you go to page 83 of this document?
20 A. We were not mining there and it would be irresponsible
21 to do it.
22 Q. At page 83 of this document, we have production on the
23 Nemba site there, and if you go on to page 85, still in
24 production we have production aggregated for Rutsiro,
25 Sebeya, Kabaya, Nyatubindi and Mara. So Nyatubindi
[Page 11]
12:15 1 figures are included in the aggregate production figures
2 from January 2010, aren't they?
3 A. Yes, but, you know, you're confusing terms. Nyatubindi
4 is reference to an area. The whole area is maybe,
5 I don't know, 15 kilometres by 10 kilometres. There are
6 some particularly sensitive areas where the ground
7 sluicing is going on, there was something going on in
8 some other part of it which was not going into the
9 Sebeya River catchment, possibly. Not during my time,
10 but possibly before. But certainly not contributing --
11 everybody is -- for NRD, this was the most sensitive
12 area because everybody knew that the Belgians had left
13 a mess -- not just the Belgians. The Belgian and the
14 national mining industry when it was owned by the State
15 continued it (overspeaking) --
16 Q. I suggest to you -- sorry, carry on?
17 A. -- it's a very sensitive issue and very sensitive place.
18 Q. Well, I would suggest to you that it's quite clear that
19 there was continuing mining on Nyatubindi and that
20 Minister Kamanzi's letter, to which you gave an
21 intemperate response was a fair one, and that is
22 reflected by your subsequent, more moderate response to
23 the Mayor that we looked at yesterday.
24 A. No, no, I think you're mistaken. The Mayor went
25 immediately in front of a crowd of 300 people, riled
[Page 12]
12:16 1 them up, caused us a great deal of worry whether we were
2 going to be harmed or killed. It was a political rally.
3 He was not talking about Nyatubindi -- he was not
4 talking about Rutsiro, which is where he claimed he was,
5 it was Nyatubindi which is an entirely different place,
6 and he went so far as to threaten to take away all of
7 our concessions if we didn't clean up the Belgian works
8 within, I forget what he said, a month or two months.
9 Q. We've looked at exactly what he said in his letter and
10 we can look at a fair characterisation in his letter.
11 Now, I'm going to move on. We were dealing
12 yesterday evening with the Benzinge story
13 in August 2012. Can we go to bundle R-231. And this is
14 your letter complaining on 3rd August to the RDB, and
15 can FTI go on in this letter, please. A bit more. Keep
16 going. My apologies, one back, FTI, please.
17 Thank you. So you're complaining about RDB being
18 taken in by Mr Benzinge, and you say, fourth paragraph:
19 "I am sorry to tell you this, but what Ben Benzinge
20 has argued to you and your staff is breathtaking in its
21 absurdity. It is astounding that your staff believes
22 him, or, indeed, that they think that it is their job to
23 make determinations on issues where the Rwanda courts
24 have already made their decision. The facts are
25 these ..."
[Page 13]
12:18 1 And so on. So you are going in quite hard in this
2 letter, but not suggesting for a moment that there have
3 been physical threats to the RDB staff which was
4 a suggestion you made in your testimony yesterday?
5 A. No, not to the staff, to the registrar herself. That
6 was -- what she told us was the reason she made the
7 change. I'm not sure you understand how --
8 Q. You're dealing -- just to interrupt -- I'm sorry to
9 interrupt, but just to be clear --
10 A. -- (overspeaking) I answered this.
11 Q. -- I'm going to take it a stage at a time, you can give
12 your answer in a minute. You are dealing in this letter
13 with your complaint at the RDB staff for making this
14 change. So if you had a complaint that it was a
15 registrar who was responsible because she was
16 threatened, you would have said so in this letter,
17 wouldn't you?
18 A. We didn't know how it was decided at this time. What we
19 knew was we were owners of a company, we were management
20 of a company, we have a group of foreign investors, and
21 now it's all gone. All of it.
22 Q. That's now a different version of events from your
23 version of events yesterday --
24 A. I'm sorry. I'm sorry, can I finish please?
25 Q. Please finish?
[Page 14]
12:19 1 A. Please don't keep interrupting me, it's very --
2 Q. But please try and keep your answers concise, then.
3 A. Thank you. The reason that this was such an emotional
4 moment for us was we had done, as far as we knew,
5 everything right, we had checked with the US Embassy on
6 everything, we had done every step according to Rwandan
7 law, and all of a sudden we were informed, not by the
8 Ministry, not by the registry, but by Ben Benzinge who
9 shows up in our office and says "I own your company".
10 This was a very frightening moment for us.
11 Q. I let you run on, but that was not in fact an answer to
12 my question. My question was, this is a different
13 version of events from your version yesterday. Your
14 version yesterday was that you did know, on your case,
15 that some member of staff had been threatened, but you
16 were choosing not to mention it in your letter to the
17 RDB and your version of events today is that you didn't
18 know. Which is true?
19 A. You're intentionally mixing up the timeline for purposes
20 of not getting the facts right.
21 This letter was written before we knew how
22 Ben Benzinge had persuaded them, or threatened them in
23 this case, to remove us from the commercial registrar
24 certificate. The only identification so far as I know
25 as to who owns property, company property, is that
[Page 15]
12:20 1 registrar. At the time that I wrote this letter, we
2 didn't know how that had come about. Ben Benzinge had
3 showed up in our office and said: you guys go home,
4 I now own everything.
5 Q. Well, Mr Marshall --
6 A. This was a very frightening prospect for us --
7 Q. Mr Marshall --
8 A. We had a series of meetings and in those series of
9 meetings we came to find out that the registrar had been
10 threatened by Ben Benzinge.
11 Q. Mr Marshall, I'm going to suggest that is a different
12 version of events to yesterday's and we can all go and
13 look at yesterday's transcript to confirm that.
14 I'm going to move on. Only three days after this
15 letter on 3rd August, the RDB responded to you with
16 a letter that we have at C-146. This is a letter from
17 the Rwanda Development Board and they say:
18 "Reference is made to our previous discussions
19 regarding the status of Natural Resources Development.
20 Following our recent meeting with you and your lawyer,
21 we have received documentation ..."
22 I should say, this is addressed to Mr Benzinge, not
23 to you:
24 "... from the majority shareholder; Natural
25 Resources Holding GmbH ... this documentation shows the
[Page 16]
12:22 1 legal representative and sole Managing Director of the
2 holding company to be Mr Roderick Marshall. In this
3 capacity, he is mandated to secure the interests of the
4 holding company in the Rwandan subsidiary ..."
5 He then explains about:
6 "... he has forwarded a written complaint company
7 (herewith attached)... you have transferred a
8 significant amount of company assets ... please note
9 that as the Managing Director, you have fiduciary duties
10 towards the company and therefore may not embark on any
11 actions that are either to the detriment of the company
12 or against the express interests or consent of the
13 shareholders. Failure to respect these duties may
14 result in civil liabilities.
15 "Due to these complaints from the authorised
16 representative of the holding company protesting that
17 the interests of the majority shareholder are being
18 jeopardised, we hereby inform you that the position of
19 Managing Director has been suspended and no person shall
20 hold this position in the company until we have further
21 investigated these complaints to ensure that the
22 interests of all the shareholders in NRD Rwanda are
23 secure."
24 So, just pausing there, the RDB have been faced with
25 at this stage competing positions, and in the light of
[Page 17]
12:23 1 that they are warning Mr Benzinge about his fiduciary
2 duties and suspending the position of managing director
3 until further investigation is taken; do you recall
4 that?
5 A. I recall the letter. I still don't understand what it
6 really means.
7 Q. Well, it's a fair and reasonable position for them to
8 take, isn't it?
9 A. I understand, but maybe you can explain to me what it
10 means.
11 Q. Well, I'll go on. Now go to bundle R-114.
12 A. But what does this letter mean? You know, you can't --
13 somebody has to be running the company.
14 Q. Now go to bundle R-114.
15 A. What we understood the letter to mean was that they were
16 saying: we're embarrassed by what has happened so we're
17 going to suspend Mr Benzinge.
18 Q. Yes, they were suspending him and suspending the
19 position of managing director altogether for what you
20 will see is a short time while they investigate.
21 Then you go to bundle R-114. So the last letter we
22 looked at was 6th August and here we have a letter the
23 next day, 7th August, from the RDB, so 24 hours later:
24 "We refer to your letter to the Rwanda Development
25 Board ... in which you question the Registrar General's
[Page 18]
12:24 1 decision to rectify the registration of Managing
2 Director from Roderick Marshall to Ben Benzinge. You
3 make misrepresentations about RDB's role and/or
4 intention in this matter and I would like to emphasise
5 that RDB is a facilitator of shareholders' wishes and
6 cannot appoint or remove a Managing Director as that is
7 within the remit of shareholders.
8 "I have, nonetheless, raised the issues in your
9 letter to the Registrar General, who is empowered by law
10 to oversee company registration matters. I take note
11 that she has written to you and Mr Benzinge; copies of
12 which are attached hereto, and decided to suspend any
13 holder of that title until you furnish her with
14 information currently absent in your file. I am
15 therefore confident that the existing issues will be
16 resolved. Please do cooperation with the Registrar
17 General until it is ... resolved."
18 And that is, again, a fair position for the RDB to
19 take, isn't it, given the absence of material in your
20 file and given that there are competing claims from
21 people purporting to be shareholders?
22 A. Well, that's exactly the point. There was no absence of
23 material, in fact, they had a stack of materials which
24 at the time they claimed were missing. They
25 subsequently found those materials and then reappointed
[Page 19]
12:25 1 me, but what was interesting -- and I don't think you're
2 recognising here -- the first letter from the RDB --
3 sorry -- the registrar's office is under the auspices of
4 the RDB and that's why you saw in the other letter RDB
5 Office of the Registrar as the heading. There was some
6 confusion at this time whether -- Ben Benzinge seemed to
7 believe that being the managing director meant being the
8 owner of the company, not that the owners of the company
9 appoint a managing director, and so this was part of the
10 ongoing confusion. It's not that there was Ben Benzinge
11 who was considered the majority shareholder: he
12 interpreted it as being ownership, and that's why it
13 went back and forth and became very heated, because we
14 had been dispossessed without explanation, without
15 notice.
16 Q. I'm asking you to focus on the position of the RDB,
17 faced with these competing claims, and the position
18 they've taken so far, which is they're suspending the
19 position of managing director pending investigation is
20 a fair one to take, isn't it?
21 A. And what I'm trying to explain to you is what the
22 meaning of those words are. There was no lack of
23 documentation. There was no competing claim by
24 Ben Benzinge. Ben Benzinge did not have ownership in
25 our opinion. He claimed to have a 15% ownership. In
[Page 20]
12:26 1 either case it didn't give him the right to appoint
2 himself as managing director.
3 Q. Well now let's go to bundle C-070.
4 A. Not only managing director; he claimed to own 100% of
5 the company.
6 Q. Now we go to C-070. Same day, so they're obviously
7 continuing investigations, and on the same day the RDB
8 write to the Mayor of Bugesera, and they say:
9 "We have recently received legal and authenticated
10 documentation showing that the holding company of
11 NRD Ltd... is wholly owned by Spalena ... an American
12 company, incorporated in Delaware ...
13 "In his capacity therefore as the sole shareholder
14 of the holding company, he submitted copies of a
15 notarised resolution appointing an acting managing
16 director for the company. The appointed Managing
17 Director is Roderick Marshall (please find attached all
18 the relevant documentation ...)
19 "In this regard, we therefore request that you
20 facilitate the transfer of the company property
21 including keys to the premise of the company to
22 Mr Roderick Marshall."
23 So within five days of your initial complaint, RDB
24 had responded to your representations and, based on the
25 information you provided, they had taken steps to ensure
[Page 21]
12:28 1 company and property and access was returned to you;
2 correct?
3 A. Partly correct. The documentation says that we were
4 not -- the assets and our bank accounts were not
5 returned so quickly, but they had made a written
6 decision within five days, yes.
7 Q. Now, you have a complaint about actions that you suggest
8 Mr Benzinge took in the few days after the registration
9 information was changed, and before the position was
10 restored, but you accept, don't you, that those were the
11 actions of Mr Benzinge and not of the RDB or of any
12 state body; correct?
13 A. Without the enablement of the body, he could not have
14 done those things.
15 Q. Can we go to bundle C-048. This is a letter you wrote
16 after these events, copied to a number of people. Can
17 we just look at the last page of the letter. This is on
18 10th August. You say:
19 "It is clear to me and our investors that the RDB
20 staff was completely misled by the threats and illegal
21 actions of this man, Ben Benzinge. It appears that he
22 has taken advantage of RDB's goodwill and exploited
23 a gap in Rwanda's laws. This is not a civil matter, it
24 is a criminal matter."
25 So your view at the time, on 10th August, was that
[Page 22]
12:29 1 the RDB had been misled by Mr Benzinge; yes?
2 A. I couldn't perform my own investigation, it was some
3 combination. Was I giving them an out? I was certainly
4 trying to.
5 Q. You weren't suggesting at the time the proposition you
6 advanced in your testimony yesterday, that there had
7 been some registrar or member of staff who had been
8 physically threatened; correct?
9 A. There was. Just ask her, call her up, she's not going
10 to deny it. This was a terrible time.
11 Q. Nor are you suggesting that RDB were in any way
12 collusive in Mr Benzinge's actions, or behaving
13 corruptly, or anything like that?
14 A. Whatever actions Ben Benzinge took to get them to
15 pretend that they had lost all our files, which were
16 subsequently all rediscovered, yes, somebody, or some
17 people, were participating in this scam, and they
18 were --
19 Q. Could you -- sorry, I interrupted. You finish.
20 A. They were certainly surprised that we objected to losing
21 all of our property.
22 Q. Could you go to the Claimants' Counter-Memorial on
23 preliminary objections at paragraph 35. So
24 paragraph 35. Sorry not to give you a page number.
25 Thank you. You deal here with this episode and you say
[Page 23]
12:31 1 there, in your Memorial, that Ben Benzinge, second
2 sentence, was:
3 "... inexplicably and falsely credited by the RDB as
4 the managing director of NRD."
5 Then you explain about your complaints about what
6 Mr Benzinge did, and you say:
7 "In essence, Respondent, by and through the RDB,
8 used Benzinge as a pawn to make clear to Claimants that
9 they could be stripped of their entire investment on
10 a whim."
11 Now, that is not at all what you thought at the time
12 was happening?
13 A. It was absolutely what I thought at the time.
14 Q. Because we've seen your letters where you accepted at
15 the time that RDB had been misled by Mr Benzinge, and
16 we've also seen that RDB, as soon as you made the
17 complaint, investigated and corrected matters; yes?
18 A. No. Mr Benzinge, in collusion with some people of the
19 RDB, did these things. Who they were, I don't know.
20 All our files, as I say, went missing. As a way of
21 enabling the registrar to have some kind of face-saving,
22 I used the phrase that "somebody had been misled". That
23 was a courtesy, an indulgence on my part. These were
24 criminal acts. We had been dispossessed, we were not
25 sure that we were going to get it back. I had a very
[Page 24]
12:33 1 difficult and very unpleasant conversation with the head
2 of the RDB, Clare Akamanzi, who was explaining to me why
3 I was no longer the owner the company. That's not
4 unintentional; that's very intentional. We wouldn't have
5 had that ongoing dispute if that hadn't been the
6 case.
7 Q. Now, again you are introducing allegations that have
8 never been said before, in any witness statement of
9 yours, or even in your Memorial, and you are making it
10 up as you go along, aren't you, Mr Marshall?
11 A. No. If it was a thousand pages, maybe you would get
12 more of this kind of information, but for you to dismiss
13 it is very unfair.
14 Q. No, it's right to say, isn't it, that Mr Benzinge
15 subsequently lodged an appeal against the RDB decision
16 to suspend him; do you recall that?
17 A. No, I didn't know that.
18 Q. And he subsequently -- well, don't worry, because
19 I'm going to try and press on -- he subsequently
20 launched arbitration proceedings in October of that
21 year, so that's 2012, to vindicate what he saw as his
22 rights; you recall that, yes?
23 A. Yes.
24 Q. I'm going to come back to that arbitration, and first,
25 because I'm going to try to keep it broadly
[Page 25]
12:34 1 chronological so we can all follow, I'm first going to
2 come to something else that happened in the second half
3 of 2012, and you have a complaint about this period
4 about what you say are military arrests and seizures of
5 minerals in Sebeya.
6 Now, can you go to Mr Niyonsaba's second witness
7 statement where he has an annex, and can I ask you to be
8 shown the annex to his second witness statement.
9 MR BRODSKY: Can you say that name one more time?
10 MR HILL: Yes, Niyonsaba, and his second witness statement.
11 Mr Niyonsaba, of course, is the man who was working
12 in the Pact ITRI programme. I just want to look at the
13 annex to this, there's an annexure 1 at the end of the
14 statement, it's on the seventh page.
15 So this is dealing with the complaint by you that
16 you see in the summary in the second row:
17 "NRD had informed iTSCi that the Rwandan military
18 had allegedly come to the site, seized minerals, and
19 arrested 5 employees. Subsequent iTSCi investigations
20 revealed that NRD has been suspended by the Government
21 for environmental reasons. Reports of the seizure of
22 minerals could not be confirmed."
23 Then the iTSCi report has "Actions ... to be taken":
24 "GMD was informed. Joint field visit by GMD/iTSCi
25 to be done next month. The site was visited on
[Page 26]
12:36 1 13 March 2013. The site manager Mr Gaspard said that
2 the police commander came on site and seized around
3 750kg of wolfram at Bucyangenda's house in Bwiza center,
4 Murundi sector. The police was alerted by the neighbour
5 of Bucyangenda. Contacted, the police commander in
6 Rutsiro district said that the minerals were seized but
7 no people arrested; the report was done and it's ready
8 to be sent to Gihango court. In the meantime, the
9 mineral is still kept at Rutsiro police station. During
10 the visit, it was observed that lots of illegal miners
11 are on the site. The company manager tries to resolve
12 this..."
13 And just going over the page:
14 "... situation but face difficulty. During the day
15 of the visit, the iTSCi technician attended a meeting
16 organised by the district environment officer Mr Olivier
17 Kabanda Manzi, the NRD representative, during which it
18 was agreed that illegal miners for a cooperative.
19 However, iTSCi reminded that the site was still
20 suspended. August 2016: NRD suspended by GMD and no
21 tags and logbooks. No further action possible."
22 So that gives a different complexion, doesn't it, to
23 your story of military arrests and seizures?
24 A. No, those are unrelated. This is a different
25 description of a different series of events.
[Page 27]
12:37 1 Q. Now, staying in the second half of 2012, I'm going to
2 come back to the licence --
3 A. Can I explain where your error is, or do you want to
4 move on?
5 Q. I may be coming back to that so you may get another
6 chance, or if not it can be picked up in re-direct,
7 I really need to try and move on because I want to try
8 and --
9 A. You can't throw out -- I'm sorry but I thought this was
10 getting to the truth --
11 Q. But I'm asking you, and I'm happy to take your evidence.
12 A. -- and the way of getting to the truth is being able to
13 respond to concrete allegations. You say -- if you go
14 back one page, I can explain to you why the military
15 arrests was in a completely different location than the
16 area described here.
17 Q. Well, you have just said that. I am going to move on.
18 Could we go to bundle C-045. I'm going to come back to
19 the licence issue, and here we have -- we're now at
20 so we're in the second half of 2012. Yes, they are
21 in September of 2012.
22 A. Sorry, what's the date? September what?
23 Q. 13th September 2012.
24 A. Okay.
25 Q. And it's a letter from Mr Kamanzi and he says:
[Page 28]
12:39 1 "Reference is made to my letter dated
2 20th February 2012, extending the previous licence of
3 Natural Resources Development (NRD) for three months
4 which expired in May 2012.
5 "In view of the ongoing work on reorganising the
6 mining sector which will have a bearing on the new
7 contracts that will be negotiated as has been
8 communicated to all the existing concession holders,
9 I have the pleasure to extend your licence up to October
10 2012, to allow for the ongoing work to be completed."
11 And --
12 A. But this struck us as particularly odd because as you
13 pointed out, the letter is dated September 13th, and
14 it's the licence up to October 2012, so for roughly two
15 weeks' extension, and we couldn't understand why he
16 would send that when there was no communications between
17 us at that point.
18 I mean, it was very nice, very pleasant of him to
19 send a two-week extension, but it was meaningless to us.
20 Q. But you're saying meaningless; by this stage your
21 previous extension had expired?
22 A. No --
23 Q. You were operating without a licence?
24 A. It's something political. All other concession holders
25 were in progress negotiating long-term concession
[Page 29]
12:40 1 licences. We were the only one at this point who was
2 not actively in negotiations because they wouldn't, and
3 we don't know why to this day. We got this letter in
4 the middle of that saying: okay, you're extended for two
5 weeks.
6 Q. Now, I would like you just to focus, rather than making
7 speeches, Mr Marshall, I want you to answer my question.
8 A. (Overspeaking) information.
9 Q. Just please focus on my questions and answer them.
10 The reason you needed to have a letter of this kind
11 is that your last licence extension had expired, and for
12 you not to be an unlicensed operator, you needed to be
13 given a licence extension; correct?
14 A. Our licence was an ongoing -- for all concession
15 holders, we were all treated the same in this respect,
16 that all of them were deemed to be continuing
17 licences --
18 Q. No, it's not a question of deemed to be continuing.
19 You've seen the correspondence.
20 A. There are specific -- there are specific rights and
21 responsibilities of a concession holder. At all times
22 we were treated to have those rights and
23 responsibilities as a concession holder. It never
24 changed.
25 Q. We've seen the correspondence where there was a previous
[Page 30]
12:41 1 licence extension. You needed to be a licensed
2 operator, and this licence was granted -- here we have
3 another licence extension granted until October 2012;
4 yes?
5 A. Yes. So a two-week extension.
6 Q. And it's making sure you are a licensed operator over
7 until October 2012, otherwise you would not be
8 a licensed operator.
9 A. Up to October 2012.
10 Q. And there's nothing in here promising that a long-term
11 licence is going to result, is there?
12 A. No. All concession holders at this time in 2012 were in
13 active negotiations for the terms and conditions of that
14 long-term licence. We never had that opportunity.
15 Q. So I think you're agreeing with me, there's nothing in
16 this letter indicating that a long-term licence is going
17 to result, is there?
18 A. There's nothing which contradicts it, and there are lots
19 of other forms of communication which you've decided to
20 take from our -- your client has decided to take from
21 our offices.
22 Q. Well, you keep saying that, and just, I should make
23 clear that's not accepted, that Rwanda has removed
24 anything from your offices, and it's also not accepted
25 that you do not have access to vast amounts of material.
[Page 31]
12:42 1 I just want to make that clear.
2 Now, by this stage, you had not made any application
3 for a long-term licence, had you?
4 A. Yes, we had.
5 Q. Subject to your point about your argument that
6 the November 2010 application counted?
7 A. That was deemed an application for a long-term licence
8 according to the staff at the licensing and supervision
9 division.
10 Q. Now let's keep that page on the screen, if we can, and
11 look at paragraph 34 of your witness statement. You say
12 at paragraph 34:
13 "On September 13, 2012, Minister Kamanzi wrote to
14 NRD granting another extension of the NRD mining
15 licences, stating that the long term contracts 'will be
16 negotiated'."
17 Could you just show me where in the letter from
18 Mr Kamanzi he says that the long-term contracts will be
19 negotiated?
20 A. It says "new contracts", referring to long-term
21 contracts, "that will be negotiated".
22 Q. Why do you say that's referring to long-term contracts?
23 A. Because everybody was being treated the same.
24 Q. You had no basis for thinking long-term contracts were
25 being negotiated because all you had applied for was
[Page 32]
12:44 1 a five-year contract by this time; is that not true?
2 A. No.
3 Q. Now, that licence extension has expired, as we see here,
4 in October 2012, and it's right to say that at no point
5 after that did you have any actual extensions to your
6 licence granted by the Minister, or anyone; correct?
7 A. I don't recall.
8 Q. Now, we are still in September 2012. Mr Sindayigaya
9 left in September 2012, didn't he?
10 A. He was fired in -- after a criminal investigation
11 in August or September 2012.
12 Q. Well, the accurate position is that he left in
13 circumstances where he had not been paid for some time
14 and had had enough; correct?
15 A. That is entirely inaccurate.
16 Q. And at that point, you made a number of serious but
17 unfounded allegations against Mr Sindayigaya, didn't
18 you?
19 A. No, we had a detailed criminal investigation, the police
20 came, they interviewed him, they interviewed others.
21 They agreed with what had happened and money was
22 missing. In fact --
23 Q. Let's go to bundle C-182. This is a purported letter
24 from you to the police in September 2012. Now, you
25 never actually sent this letter, did you?
[Page 33]
12:46 1 A. I don't know. Are you claiming that it was not
2 received?
3 Q. Yes. It was not received because it was not sent.
4 A. I would have to go back and check whatever logs we have.
5 Can you show me the signature page?
6 Q. Yes. It's going to be the last page of the letter, and
7 you will see it's signed although there's no company
8 stamp on the document?
9 A. Yes, it would be very unusual if I hadn't -- you would
10 have to check with Zuzana. I would guess that I had.
11 There's no reason for us not to. We came, we had
12 several meetings with them explaining what had happened.
13 So I don't know what the content of the letter was, it
14 may have been -- if you believe that it had not been
15 sent, there may be a different version, you know, which
16 was sent, but it would be very unusual for me to sign
17 a document and not have sent it.
18 Q. Can we go to Mr Sindayigaya's second witness statement
19 at paragraph 15.
20 A. I believe the statement in the document to be true, by
21 the way.
22 Q. In Mr Sindayigaya's second witness statement at
23 paragraph 15, Mr Sindayigaya gives evidence on this
24 document. He says in paragraph 15:
25 "I have never seen this document before, and all of
[Page 34]
12:47 1 the allegations made in it against me are false. I also
2 do not believe that this letter was ever sent to the
3 police, for the following reasons.
4 "The letter is addressed 'Kigali Chief Police
5 Supervisor'..."
6 And then he goes on at 15.1, if FTI could pull that
7 up:
8 "The letter is addressed 'Kigali Police Chief
9 Supervisor' at 'Kigali Police'. I do not believe such
10 a position exists, or that there is such a thing as
11 'Kigali Police'. Each district has its own police
12 station, and that is where complaints are made.
13 Whenever we had complaints to make to the police, we
14 would submit them to either the Remera or Kimihurura
15 Police Stations in Kigali which were the nearest to the
16 NRD offices. When complaint documents are presented at
17 the police station, they are stamped stating the date of
18 reception and the name of the receiving officer and a
19 copy provided to the person making the complaint. The
20 September 2012 Letter is not stamped and therefore does
21 not appear to have been presented to any police station
22 at all.
23 "15.2. I believe that Mr Marshall was familiar with
24 this process of submitting complaints to the police as
25 I understood that he had filed complaints against
[Page 35]
12:48 1 former employees of NRD including William Quam ...
2 Julius Kabera ... and Valery Mpongo..."
3 "15.3 If the September 2012 Letter had been
4 submitted to the police, I would have been summoned to a
5 police station and interviewed about the allegations
6 which on the face of the letter are very serious. This
7 never happened. Nor did Mr Marshall ever raise these
8 allegations with me in person. Instead, I had only
9 attended the Remera Police Station the previous month to
10 give a witness testimony concerning the wrongful actions
11 of Mr Mpongo, which I discuss in further detail below.
12 In fact, during my employment with NRD, my only
13 involvement with the police was as a whistleblower in
14 two cases that led to the firing of employees and police
15 investigations ..."
16 And, contrary to what you just said in an earlier
17 answer, Mr Sindayigaya wasn't interviewed by the police,
18 was he?
19 A. I'm sure he was interviewed by the police. I can't
20 imagine that we would have presented the letter to him
21 prior to our filing it with the police, and whether, you
22 know, we had addressed it to the right location, you
23 know, we delivered everything by hand, there is no mail
24 service. So you go there, ordinarily there would have
25 been the stamp, and there is not a stamp on the front of
[Page 36]
12:50 1 this, so that would not -- sorry, let me back up.
2 When you're delivering a letter to any government
3 ministry you deliver a copy and you get them to stamp
4 your copy as evidence that you have delivered that
5 letter.
6 The version -- the copy of the letter you have
7 provided to me doesn't have any of those stamps on it,
8 so my guess is that it's a different version that would
9 have had the record of it being distributed. It
10 certainly never would have been shown to Aime before it
11 was placed there. The police had an ongoing
12 investigation, because they came more than once, to see
13 what Aime had been doing, both in the books and with
14 regard to self-dealing by renting company bulldozers and
15 other equipment for his own personal gain.
16 Q. Now, we can see what you're doing here, which is
17 conflating different stories. Firstly, you did not send
18 this letter and Mr Sindayigaya was not interviewed by
19 the police; that's right, isn't it?
20 A. I can't imagine -- I wasn't involved with an interview
21 between him and the police, so I can't say for sure.
22 100% this was delivered. It was the basis on which we
23 fired him. We did an investigation, we found out that
24 he had been cooking the books, we found out that he had
25 been self-dealing and with certainty he was fired.
[Page 37]
12:51 1 Q. Secondly --
2 A. (Overspeaking) the police filing, whether it's this copy
3 or a different copy, I can't say.
4 Q. Secondly, you are conflating two different stories in
5 that you do have complaints about a bulldozer and money
6 that had been made from the hire of it, but
7 Mr Sindayigaya had actually been the whistleblower on
8 that complaint, and you and Mr Sindayigaya had made
9 a complaint to the police about the actions of the other
10 employee, and that's correct?
11 A. Valery Mpongo was doing it with Aime.
12 Q. Well, Mr Sindayigaya had been the whistleblower and
13 assisting you in the complaint to the police about
14 Mr Mpongo, that's correct, isn't it?
15 A. Not that I know of. He certainly never shared to me
16 that he was, in effect, fingering his partner.
17 Q. And you and he had jointly made a complaint to the
18 police about the hire of the bulldozer; correct?
19 A. He was the one who was leasing it. I personally went to
20 find where the bulldozer was because it was missing, and
21 it was at a woman's house and it had been leased to her
22 by Aime.
23 Q. What you have done in this complaint is used
24 Mr Sindayigaya's assistance in explaining the story
25 about the other employee and reworked it into a false
[Page 38]
12:52 1 complaint against Mr Sindayigaya, haven't you?
2 A. No, that's not true.
3 Q. And you've also in this document made a number of other
4 serious false allegations. We don't have time to pick
5 them all up, I'm just going to pick up some. Can we go
6 to the penultimate page?
7 A. If I could suggest, you should speak to our CFO who was
8 handling the matter, including the internal
9 investigation at that time.
10 Q. I'm going to just pick up some of the complaints in this
11 document. Can we go to the second to the last page of
12 the letter.
13 MR BRODSKY: Which document number?
14 MR HILL: Still in the letter, sorry, I'm still in C-182.
15 MR BRODSKY: Thank you.
16 MR HILL: And I'm going to the second to last page, it's not
17 numbered, or at least in my version it isn't. Thank
18 you.
19 These are other complaints you make to the police.
20 In item 12 you say:
21 "His role in the situation regarding illegal Actros
22 sale and his relationship to Mr Kayomba which resulted
23 in 150 million Rwf loss."
24 Can we keep that up and also have Mr Sindayigaya's
25 second witness statement up at paragraph 23.12. Now,
[Page 39]
12:54 1 Mr Sindayigaya deals with all your allegation. I'm only
2 picking out some of them. 23.12:
3 "Mr Marshall states that he wants an explanation to
4 my 'role in the situation regarding illegal Actros sale
5 and [the] relationship with Mr Kayombya which resulted
6 in 150 million Rfw loss'. The sale of the Actros truck
7 was arranged by Mr Julius Kabera, NRD's CFO who sold the
8 truck at a substantial undervalue -- he sold it at its
9 book (ie depreciation) value rather than at market value
10 which was substantially higher. I was not involved in
11 the transaction. In fact, I reported..."
12 FTI, could you go over.
13 "... [this] irregularity to Mr Marshall and am now
14 shocked to see him trying to blame me for this."
15 That's correct, isn't it?
16 A. No.
17 Q. Can we go --
18 A. I would refer you to Zuzana Mruskovicova who was
19 handling these transactions and the internal
20 investigation. I don't have direct -- at the moment
21 a direct memory of this.
22 Q. Can we go on into item 15. Your next complaint is:
23 "His role in the Motorcycles business resulting in
24 15 million loss to NRD."
25 And then we can see Mr Sindayigaya's response:
[Page 40]
12:55 1 "Mr Marshall asked for an explanation as to my 'role
2 in the Motorcycles business resulting in 15 million loss
3 to NRD'. I assume this is a reference to the fact that
4 each supervisor had a motorcycle purchased for them so
5 that they could travel to remote areas. These
6 transactions were executed before I joined NRD."
7 And that's correct, isn't it?
8 A. Just one moment, please. (Pause).
9 I don't recollect this issue, so I have to refer you
10 to Ms Zuzana Mruskovicova.
11 Q. And then item 18:
12 "His role in the situation regarding accident of
13 workers."
14 Let's look at what Mr Sindayigaya says about that:
15 "Mr Marshall states that he seeks an explanation as
16 to my 'role in the situation regarding accident of
17 workers'. There were some accidents in the mines during
18 my time at NRD, and each site manager would be
19 responsible for responding in the appropriate way to
20 these. As an accountant, I had no involvement in
21 this -- it was not my area of responsibility."
22 And that's correct, isn't it?
23 A. I don't have a recollection. I would refer you to
24 Zuzana Mruskovicova about the CFO who was handling the
25 internal investigation.
[Page 41]
12:56 1 Q. And if you had sent this letter to the police, which
2 I don't accept, you wouldn't have any basis, would you,
3 for making a complaint to the police, for example, about
4 Mr Sindayigaya's role in the situation regarding
5 accidents of workers?
6 A. I don't recall what the issue is or what it was
7 referring to when it says "Regarding accident of
8 workers", so I can't help you on that.
9 Q. It's just an example, isn't it, Mr Marshall, of how you
10 make unfounded allegations against anyone who you
11 disagree with; correct?
12 A. That's slanderous and outrageous and really not helpful
13 in trying to elicit truth in this process.
14 Q. Let's move on.
15 THE PRESIDENT: Mr Hill.
16 MR HILL: Yes.
17 THE PRESIDENT: It's not clear to me -- and I doubt if it's
18 clear to Mr Marshall -- whether you are suggesting that
19 this letter was not typed on 20th September 2012 but has
20 been produced much more recently for the purpose of this
21 arbitration.
22 MR HILL: Mr Marshall, would you like to give -- you've
23 heard the President's question. Would you like to say
24 your understanding of whether this letter has been typed
25 more recently, or not?
[Page 42]
12:58 1 A. You mean is it a fraudulent document?
2 Q. Is it a late document?
3 A. It's certainly not a fraudulent document, no, we don't
4 do that.
5 Q. Well, you have presented it as something that was sent
6 to the Kigali police, and that's not true, is it?
7 A. As far as I know it would have been sent to the police,
8 but I refer you to Zuzana Mruskovicova who was handling
9 it. This would be unlikely to be a copy that would have
10 been confirmed by the police. As I say, when we
11 delivered letters to the police or any ministry, we
12 would take a copy, a signed copy, but photocopy, and
13 take it to wherever we were delivering it and have them
14 put the stamp on it to indicate that it had been
15 received.
16 So this is not that copy. I don't know what this
17 copy is, it may be --
18 THE PRESIDENT: Mr Marshall, is it your signature on that
19 letter?
20 A. Yes.
21 THE PRESIDENT: And was that letter typed on the day that
22 of the date it bears, or has it been typed more
23 recently?
24 A. It certainly was not in preparation -- if you mean in
25 preparation for these hearings, 100% not true.
[Page 43]
12:59 1 Whether it was typed -- I'm sorry, I don't know what
2 the date on it is, I can't see it.
3 THE PRESIDENT: Well, the date is 20th September.
4 A. Yes, if this was a draft and we decided not to send it,
5 we sent a different version, I don't know.
6 20th September.
7 But I would refer you to Zuzana Mruskovicova about
8 this. This would have been, you know, her
9 investigation, her preparation of these materials.
10 So this was certainly a draft. Whether it was
11 actually delivered in this form or a different form,
12 I couldn't be sure unless I had the copy which had the
13 stamp on it.
14 THE PRESIDENT: Well, I understand your answer that this is
15 a contemporaneous document --
16 A. Yes.
17 THE PRESIDENT: -- produced with the date that it bears.
18 A. Yes. It's certainly contemporaneous.
19 THE PRESIDENT: Thank you, Mr Hill.
20 MR HILL: I'm going to move on now to a different
21 topic. September 2012, Minister Kamanzi suspended all
22 mining activities in the Sebeya catchment in the
23 Western Provinces; correct?
24 A. Am I looking at --
25 Q. Do you recall that? I hope it isn't contentious, I just
[Page 44]
13:00 1 want to help everyone on the timeline.
2 So September 2012 was when Minister Kamanzi suspended
3 mining activities in the Sebeya catchment?
4 A. I don't know what month it was. He did suspend them in
5 2012, yes.
6 Q. Yes. And that was as a result of concerns about
7 environmental damage, as well as illegal mining; yes?
8 A. That's what his letter says, as I recall.
9 Q. Now, by the end of 2012, where one gets to is that by
10 that stage your licences have expired, haven't they,
11 because the October extension had now expired; correct?
12 A. They're all being treated the same and they're all being
13 deemed to be still large-scale mining concession
14 holders --
15 Q. And by that stage --
16 A. -- (overspeaking) statutes.
17 Q. -- by that stage, end of October, your November 2010
18 application had not been accepted; correct?
19 A. Yes, it had been accepted. We had not been told that it
20 had been refused.
21 Q. Well, it was clear, I would suggest, from
22 your August 2011 letter you received from Mr Kamanzi
23 what the position was; correct?
24 A. No. No, because we -- at that point we were negotiating
25 the language of the long-term concession with the
[Page 45]
13:02 1 licensing and regulation department.
2 Q. And by this stage, the end of 2012, subject to your
3 argument about the November 2010 application, you hadn't
4 otherwise applied for any long-term licences, had you?
5 A. We were -- no one had said we were not in compliance.
6 We had the same kind of application as every other
7 concession holder and every other concession holder at
8 that time was in active negotiations for a long-term
9 licence. We were the only ones who were not at that
10 point --
11 Q. And we know --
12 A. -- because we had already been through that process in
13 2011.
14 Q. But we know, for instance, from Mr Kamanzi's letter that
15 we looked at yesterday that from the beginning of 2012
16 you had been asked to focus on two concessions and there
17 was no possibility of you just getting a long-term
18 licence for all your concessions.
19 A. That's not how that was resolved. We went back to
20 Minister Kamanzi's office and explained that he had been
21 misled by Dr Michael in saying that Dr Michael had
22 offered two concessions instead of five. That
23 conversation had not happened.
24 So his letter was mistaken in its premise, because
25 he had been misled by Dr Michael and we would like to
[Page 46]
13:03 1 have a meeting to talk about going forward, negotiating
2 long-term concession agreements. We were waiting for
3 an invitation.
4 Q. Let's look at C-160. This is a letter from the Minister
5 of Natural Resources, Mr Kamanzi, to the acting CEO,
6 Ms Akamanzi, of the RDB, and it says:
7 "This is to request you to initiate negotiations
8 with the above company."
9 A. I'm sorry, can you go back to the top for a second?
10 Q. Yes. So it's January 2013, so we're now at the
11 beginning of 2013.
12 A. So this is a letter to the RDB?
13 Q. Yes, from Mr Kamanzi, as I said.
14 A. Okay, sorry.
15 Q. So:
16 "This is to request you to initiate negotiations
17 with the above company. Its initial licence for four
18 years expired some time back. The company has been
19 operating on short term extensions as we wait for the
20 conclusion of the new type of agreement with them, if
21 any.
22 "Their existing licence incorporated five former
23 government concessions of Nemba, Rutsiro, Giciye, Sebeya
24 and Mara, which were too many for one licence. The way
25 forward should be to negotiate a licence for each
[Page 47]
13:04 1 concession so that each of them should be evaluated
2 separately.
3 "The [key] activities of the company have been
4 temporarily stopped in the concessions of Rutsiro and
5 Sebeya because of serious environment degradation.
6 However, negotiations could begin with concessions that
7 currently have no serious issues. I will ... appreciate
8 your prompt response to conclude these negotiations as
9 soon as possible."
10 So he is still of the view that he expressed to you
11 in the correspondence we saw yesterday that you should
12 press ahead with those concessions that you had -- that
13 you could make a viable application for; correct?
14 A. I've never seen this letter. I've never had that
15 discussion. I don't even know how this came up, or what
16 they mean by "serious environmental degradation". The
17 only area where the government had asked us to make
18 environmental repairs is in Giciye, not in Rutsiro or
19 Sebeya, and it's at the Nyatubindi site where the ground
20 sluicing had occurred for 50 years, and we were not
21 mining. There were no other allegations of
22 environmental degradation against us at that time.
23 Q. You just suggested that somehow Mr Kamanzi had been
24 corrected in discussion with you after his position he
25 articulated in 2012, and it's quite clear the reality is
[Page 48]
13:06 1 that he remains of the same view, which is that if any
2 new licences were to be obtained, they should be
3 negotiated for on a concession by concession basis;
4 correct?
5 A. This is all new information for me. I'd never seen this
6 document.
7 Q. The same information as he had already given you in
8 2012; correct?
9 A. No.
10 Q. And by that point you hadn't put in an application on
11 a concession by concession basis, as he had asked, had
12 you?
13 A. I put in the same kind of application as everybody else
14 did, and everybody else was in negotiation.
15 Q. Can we go to bundle C-054. Now, this is an application
16 that you put in in January 2013, and this is
17 an application for a long-term licence; do you recall
18 that?
19 A. I recall we got called by the Ministry to say: yes, we
20 have your application from 2010, here's what we want you
21 to do, and we sat down with them and they said: please
22 make this a high level, if you will, sort of a summary
23 of a number of items, and send it to us now.
24 Q. Now, that, again, is something you've just made up and
25 is not in any of your witness statements, is it?
[Page 49]
13:07 1 A. It is not what I've made up, and that's exactly what
2 happened.
3 Q. And let's look at the covering letter. You start off by
4 saying:
5 "This letter is to provide you with an update of the
6 amended application of [NRD] for a long-term mining
7 concession licence. The original NRD request for the
8 long-term mining licence was submitted to your office on
9 or about 11/29/2010 (a copy is enclosed for your
10 convenience)."
11 Now, that was trying to give the false impression,
12 wasn't it, that the previous application had been for
13 a long-term licence; yes?
14 A. No.
15 Q. Let's go on.
16 A. This was -- this was at their request. This was not our
17 initiative.
18 Q. If it had been at their request you would no doubt have
19 said:
20 "Further to your request, here is an application."
21 Correct?
22 A. No.
23 Q. And if it had been at their request, you would have
24 mentioned that at some point previously in these
25 proceedings, either in one of your memorials or in your
[Page 50]
13:08 1 witness statements?
2 A. There is lots and lots of communication that are not
3 reflected in this narrow thread of sentences that you're
4 trying to hook together to come up with your own
5 narrative.
6 Q. Now, if you look at the next paragraph, you refer to
7 an investment of approximately €15 million. Can we go
8 to page 4 of the document. You describe there
9 achievements in research, production and processing
10 versus targets, and then you talk about the original
11 business plan being submitted by NRD in 2006, and you
12 refer to the 39 million figure, and you say in the last
13 sentence of that paragraph:
14 "The targets outlined in the original business plan
15 and the operating practices that have since been
16 discovered were seriously flawed and inappropriate."
17 And that's a rehash of something that was said in
18 the November 2010 application; correct?
19 A. That was addressing Zarnacks' proposal to build
20 a tantalum processing refinery which cost many hundreds
21 of millions of dollars.
22 Q. Just in answer to my question: that is a rehash of
23 something that that was said in the 2010 application;
24 correct?
25 A. I don't know that it's a rehash; it's a reference to
[Page 51]
13:09 1 Mr Zarnack's original business plan proposal.
2 Q. It's virtually the same words, isn't it?
3 A. I don't know.
4 Q. Then look at the next paragraph:
5 "When the management of NRD was changed in the end
6 of 2010, the focus of activities and investments changed
7 to support realistic projects to support and
8 significantly increase semi-industrial mining in a way
9 that will also greatly small-scale artisanal mining in
10 multiple places, with an emphasis on increasing the
11 standards of safety in the workplace and protecting the
12 environment. During the period 2008 through 2012, total
13 capital investment and other expenditures of more than
14 €15 million were made and are evident of a commitment to
15 the development of a sustainable mining industry of
16 Rwanda and its people."
17 So you're claiming an increase of €6 million on the
18 €9 million said to have been invested in the 2010
19 application; yes?
20 A. I don't recall what the numbers were, but that's what
21 this says.
22 Q. And then if you go to the next page, you can see the
23 figures, and these are the figures I took you to on the
24 first day of your cross-examination.
25 A. Yes.
[Page 52]
13:11 1 Q. Or I think it was the first day, earlier, anyway. And
2 it's the €6 million that you referred to is wholly
3 represented by your estimate for foreign consulting and
4 engineering costs; correct?
5 A. That's what that line reads, yes.
6 Q. And for the reasons we discussed earlier, that was
7 a fictitious number, wasn't it?
8 A. For the reasons we discussed earlier, it is a -- wholly
9 accurate, but an estimate.
10 Q. It's right to say, isn't it, that this update was
11 essentially a short, nine-page rehash of
12 the November 2010 application; correct?
13 A. All I recall is that we were doing what they sat down
14 and asked us to do to prepare this document.
15 Q. You didn't identify any new --
16 A. There's no misrepresentation here, Mr [Hill], and
17 I object to your insinuation.
18 Q. You didn't identify any new material investment or
19 exploration in this document, did you?
20 A. I am not prepared to answer that question because we
21 didn't go through this in anticipation that this would
22 be an issue to be dealt with in the calculation of
23 damages.
24 Q. Let's look at page 3 of this document. This deals with
25 exploration highlights, and you don't, in your
[Page 53]
13:12 1 exploration highlights, identify any material new
2 exploration since the 2010 application; that's correct,
3 isn't it?
4 A. This is what we were told to put here, yes.
5 Q. And then the exploration that you had identified had
6 previously been considered deficient, hadn't it --
7 A. No.
8 Q. -- on the previous occasion?
9 A. No.
10 Q. Let's go to page 5 of the document.
11 A. We had an ongoing sampling programme, we were the only
12 mining company that had our own laboratory, so every day
13 that we were mining, we were sampling the minerals, so
14 we had a much better idea than virtually any other
15 mining company in the country because we had
16 a laboratory and we were unique in that regard.
17 Q. If you had any material information derived from
18 sampling that was new from the 2010 application, you
19 would certainly have included it in this application or
20 one of your other applications, wouldn't you?
21 A. No. We got called to the Ministry, as I recall, we got
22 called and said: here's what we need you to do, you
23 don't need to rewrite it, here's what we need to be able
24 to resubmit it, and so we did what we were told.
25 Q. Now let's look at pages 5 and 6 of the document?
[Page 54]
13:13 1 A. This was not an open-ended: please tell us the history
2 of your company. This was very narrowly targeted by the
3 advisor to the Minister.
4 Q. If you look at -- so pages 5 and 6 you set out your
5 proposed activity plan for the period 2013 to 2018. If
6 we look at page 6 we can see that the reserve -- that
7 for your plan for 2013 to 2018, involved a number of
8 projects and deposits prioritised and earmarked for
9 follow-up investigation. Then you have a list there:
10 "Rutsiro: Detailed calculation of reserves of
11 Rutsiro primary wolframite deposits.
12 "Nemba: Detailed calculation of Nyatubindi Laterite
13 deposit...
14 "Nemba: Reserve calculation of all other secondary
15 cassiterite deposits.
16 "Nyatubindi: Detailed reserve calculation..."
17 Now, two points here. Firstly, these are the same
18 proposals, aren't they, as was proposed in the 2010
19 application; correct?
20 A. I don't know. We were under instruction. As far as
21 I know, these tables were provided to us by the Ministry
22 for inclusion. I can ask --
23 Q. Just to be clear, I'm not looking at the table,
24 I'm looking at the bullet points underneath "Reserve
25 calculations".
[Page 55]
13:15 1 A. The same formulation. These sources, both technical
2 information and the expectations for production were
3 provided to us by the Ministry. This was not our
4 document in that sense. This is --
5 Q. Well, that's simply not the case.
6 A. This is what the Minister wanted from us for this to be
7 proposed.
8 Q. Mr Marshall, that is simply not the case --
9 A. 100%.
10 Q. -- this is just a rehash, a rehash, isn't it, of your
11 proposals, or the company's proposals, in the 2010
12 application; that's correct, isn't it?
13 A. It's not the way Rwanda works, until the 2014
14 application, or 2015 application process, when they
15 started sending us one-line requests without giving us
16 any detailed background or information or idea of their
17 expectation, it's all done on a cooperative basis, all
18 of these are, with all concession holders.
19 Q. And that's, again, simply a made-up story, Mr Marshall,
20 that if it were true, would have featured before in this
21 arbitration.
22 A. No, I think your client hasn't informed you about how
23 the process works.
24 Q. Well, if you had really thought that the content of your
25 applications had been dictated to you by the government,
[Page 56]
13:16 1 you would have said so loud and clear when you said it
2 was unfair that the applications hadn't been accepted.
3 A. No, there are two issues. The applications that weren't
4 accepted were those where we didn't have the technical
5 information because our offices had been seized.
6 This document, and the original 2010 application, in
7 fact going back to the 2007 application for a mining
8 licence, all that technical information is provided by
9 the Ministry. That's what they expect. It's their way
10 of saying what they expect from the mining companies,
11 and if the mining companies can't fulfil that
12 expectation, then there would be some negotiation. You
13 could even lose your licence. But the process is very
14 cooperative throughout, until the 2014/2015 one-liners.
15 Q. Mr Marshall, the reality here, and we can see it from
16 the other document, is that all you have done is
17 rehashed material that was in the 2010 application, and
18 that shows a number of things, Mr Marshall --
19 A. You're not listening, I'm sorry, I'm explaining it's all
20 an interactive process, this is what the Ministry says,
21 this is what they identify, the deposit area, and they
22 say: well, this is what we think you should be able to
23 get out of it, and that's what we expect to be able to
24 hold you to.
25 Q. And this shows a number of things, Mr Marshall --
[Page 57]
13:18 1 A. (Overspeaking) negotiation in that respect.
2 Q. One of the things this shows is that no further material
3 exploratory research or calculating of reserves had been
4 done since you acquired the company at the end of 2010,
5 even though we're now in 2013; correct?
6 A. No.
7 Q. Because all you're doing is giving the same programme --
8 A. You're asking me why the material wasn't included, and
9 that would have been a question for them: do you want
10 this other information included? We had a whole series
11 of teams of geologists, consulting geologists coming
12 from Europe, who were performing a number of tests in
13 opening up additional deposit areas for exploitation.
14 Nobody ever asked us for that. This is at their
15 instruction.
16 Q. Mr Marshall, the other thing this shows is that you must
17 have known that this was not a viable application for
18 a long-term licence because this is showing exactly the
19 kind of thing that should have been done in the
20 four-year period and hadn't been done; correct?
21 A. No, and I have to refer you back to this whole
22 principle, you know: they asked us to come, please take
23 a risk, please invest money, we know that this is
24 nothing like what the ordinary arrangement is in the
25 mining industry, do this as an indulgence to us, you
[Page 58]
13:19 1 will be given a commercially reasonable long-term
2 licence agreement. Everybody else was in negotiation
3 for what that commercially reasonable long-term licence
4 agreement would say; we were not.
5 Q. And this was work that needed to be done under Article 2
6 of the contract, and you were told in August that it
7 hadn't been done, August 2011 hadn't been done?
8 A. You're making stuff up now. We were told to put this
9 document together in this format. They did not ask for
10 the other geological research which was ongoing by our
11 European, Czech and Slovak geologists and their team.
12 Q. Can we go back to the bottom of --
13 A. We had more ex-pat geologists working in Rwanda than any
14 other company.
15 Q. Can we go back to the bottom of page 3. We have
16 "Production highlights" and you give production figures
17 for 2007 to 2011, and it's right to say, isn't it, that
18 the reason you don't give production figures for 2012 is
19 that they were so low under your watch; correct?
20 A. I don't know that that would have been the reason.
21 I don't know why it's not here.
22 Q. Can we go to Dr Biryabarema's witness statement at
23 paragraph 15. He says:
24 "On 30 January 2013, NRD made what it called
25 an updated application for a 30-year concession,
[Page 59]
13:21 1 although this was in fact the first application that it
2 had made for a 30-year concession at all, because the
3 application made in November 2010 was for new five-year
4 licences. The January 2013 application was entirely
5 inadequate -- it contained none of the detail that would
6 have been required even for short term licences, let
7 alone the 30-year licences now being requested."
8 And that's a fair and reasonable view and summary,
9 isn't it?
10 A. Absolutely outrageous and completely inconsistent with
11 everybody else we spoke to at the Ministry.
12 Q. Well, Dr Biryabarema, as you know, was one of the people
13 who would have been evaluating this?
14 A. He was also under criminal investigation for most of the
15 period we were there.
16 Q. Mr Marshall, this is yet another extravagant claim from
17 you, isn't it?
18 A. No. We spent many meetings discussing Dr Michael's
19 corruption with internal intelligence, indeed, external
20 intelligence.
21 Q. Until you got into the witness box you have never
22 suggested that Dr Michael Biryabarema was corrupt in any
23 way, have you?
24 A. Yes, I did. In fact, I think I told you that he was
25 being bribed by Anthony Ehlers or Anthony Ehlers had
[Page 60]
13:22 1 disclosed to us that (overspeaking) --
2 Q. Until you got into the witness stand, you have never
3 made any allegation of this kind, have you?
4 A. To the Rwandan authorities, yes. You should talk to
5 them.
6 Q. In this arbitration you've never made any allegation of
7 this kind, have you?
8 A. I don't know whether it's included in any of our other
9 documents but it's true.
10 Q. It's not, and the reason it's not is because you have
11 just made that up, speaking from the witness stand?
12 A. No, that's not true. Talk to internal intelligence,
13 talk to external intelligence. I suspected that he was
14 going to be gone before we were.
15 Q. Let's look at Mr Imena's witness statement at
16 paragraph 23.
17 A. The military people that we were working for just asked
18 us to be patient, do nothing precipitous, but he was
19 being investigated for corruption. We fully expected
20 him to be removed from his position. He's known
21 throughout the community for corruption.
22 Q. Let's look at paragraph 23. This is Mr Imena's reaction
23 to your application:
24 "That draft agreement had been sent with what was
25 described as an 'investment plan report summary' in
[Page 61]
13:23 1 relation to a 30-year concession. The letter itself
2 referred to it as an 'update' of the amended application
3 of a long-term mining concession licence, and
4 mischaracterised the November 2010 Application for
5 five-year licences as 'the original NRD request for the
6 long-term mining licence ... '. The 'investment plan
7 report summary' was only nine pages long, contained very
8 little detail and much of it appeared to have been
9 copied or pasted from the November 2010 Report. There
10 was no proper analysis or supporting documentation with
11 it at all. If Mr Marshall really considered this to be
12 a serious application for a 30-year licence -- the first
13 made by NRD at all -- then it demonstrated his
14 fundamental lack of understanding of what was required."
15 And that is entirely fair, isn't it?
16 A. It's entirely outrageous. Nothing like that was ever
17 communicated to us. The people who said, who were
18 responsible on the licensing and supervision board
19 always told us that of all the applications, and we read
20 many of them from many of the other concession holders,
21 ours was far superior to any other application. So
22 I think this was just prepared for the arbitration and
23 nothing else.
24 Q. Well, these people who you say said it was far superior,
25 who are they? Mr Bidega has gone by then.
[Page 62]
13:24 1 A. Well, you would have to ask Mr Bidega who the staff were
2 at that time and others who were there at that time.
3 Q. That doesn't work. He had left by then. He was with
4 you. He had joined your organisation shortly after the
5 correspondence that we were looking at.
6 A. You're really talking about several things, right?
7 You're talking about the 2010 application. That was
8 reviewed by the application licensing and supervision
9 board as being the best of all the applications.
10 Q. Mr Marshall, I'm looking at this application. You
11 say --
12 A. But you're saying that it was later deemed to be
13 insufficient for some reason. That was never
14 communicated to us.
15 Q. We've already seen in this testimony over the last days
16 various examples of you being told it was insufficient.
17 So it was communicated to you?
18 A. Yes, and I think I have told you in response, most of
19 those are due to bias because of allegations of
20 corruption and other matters.
21 Q. Let's go back to Mr Imena's witness statement --
22 A. As far as we knew our application had not been surpassed
23 by anybody else and nobody else had done more research
24 than we had.
25 Q. Mr Marshall, I don't want to argue with you but you
[Page 63]
13:25 1 could not possibly have thought that given the
2 correspondence you were in fact receiving.
3 A. I absolutely knew it because I'd been to all the other
4 sites.
5 Q. And the only things you rely on to support your
6 suggestion you took a different view is conversations,
7 or some parallel stream of communication, that are not
8 supported by the material that we have; correct?
9 A. No, it's -- those conversations occurred, we were having
10 regular, several times a week meeting with senior grade
11 officers from the military who repeatedly assured us
12 just to be patient. We visited every other concession.
13 We viewed every other concession application.
14 You know, the only application I think which was
15 superior in some respects was Rutongo, and for the very
16 simple reason that they had had access to all of the
17 Belgian resources and research for their 40 years of
18 working at Rutongo, so it was an additional process that
19 they were doing, not a greenfield site like we were
20 doing.
21 Q. Staying in Mr Imena's witness statement, can we just go
22 back to paragraph 22. He is dealing there with the
23 draft contract that you attach to this application. He
24 says:
25 "At paragraph 36 of his witness statement
[Page 64]
13:27 1 Mr Marshall suggests that the draft long-term licence
2 agreement that was enclosed with his 30 January 2013
3 letter to Minister Kamanzi had been agreed with us.
4 That is not correct in fact we never actually reached
5 the point of discussing contractual terms with NRD
6 because we never got to the point in their application
7 process at which it was necessary to do so. I do not
8 know the origin of the draft agreement enclosed with
9 Mr Marshall's 30 January 2013 letter, but I do not
10 believe it was prepared or produced by the Government.
11 Although Mr Marshall states that it is 'in conformity
12 with the template which your Ministry provided to us',
13 it is not in a style or format that we would use and
14 includes information, for example, investment and
15 profitability estimates, that I do not believe we ever
16 include in the body of our agreements."
17 And that is entirely correct, isn't it?
18 A. No, I would say that's entirely made up for the purposes
19 of this arbitration. We negotiated in good faith with
20 Dominique Bidega and his staff, they gave us the
21 template, as I think I explained to you yesterday or the
22 day before, it was the Gifurwe -- you can check it --
23 Gifurwe Mining concession template that they gave us to
24 make changes to, and so we did, and we reached the end
25 of that negotiation, he explained to us that it had been
[Page 65]
13:28 1 referred up to Dr Michael and that then Minister Kamanzi
2 and it had been approved and had been sent to the
3 cabinet with a positive recommendation.
4 Q. I don't want to go back round on that, but it's quite
5 obvious if that had been remotely true, you would have
6 been saying so in the letter to Mr Kamanzi, saying this
7 has already been agreed, approved by Dr Biryabarema,
8 approved by you, Mr Kamanzi, and sent to cabinet. None
9 of that happened because none of that is true; correct?
10 A. No, of course it happened, and they knew it perfectly.
11 Q. Why didn't you say so in your letter?
12 A. I obviously didn't think it was necessary. There's
13 nothing that they didn't know about this process.
14 Q. Why didn't you mention in your letter that Mr Kamanzi
15 has already approved this, Minister Kamanzi has already
16 approved this contract and it is sitting with cabinet?
17 A. I don't know that it was sitting at cabinet at that
18 point.
19 Q. What's the purpose of the application on your case?
20 What's the purpose of this letter at all if he had
21 already agreed this contract and it's gone up to
22 cabinet?
23 A. He's renegotiating, that's my point.
24 Q. That's volunteered by you, isn't it?
25 A. He knows the language of the original agreement, he
[Page 66]
13:29 1 knows it's been agreed, he knows it's gone to cabinet.
2 It was not rejected by the cabinet, as I understand it,
3 it was simply tabled and no action was ever taken.
4 Q. Mr Marshall, he is not negotiating; you volunteered?
5 MR COWLEY: May I ask Mr Hill just please to let him finish
6 before you start the next question.
7 MR HILL: Yes.
8 A. It was tabled that no action was taken, I interpreted
9 that to mean that okay, this meant there was going to be
10 another round of negotiations, so I expected that
11 template, that agreed-upon language to be the basis on
12 which we would continue and find terms that were
13 acceptable, since obviously that was not acceptable but
14 I had not been told why or what provisions were
15 unacceptable.
16 So to me this was already understood, we were
17 working from this template. If they were going to bring
18 in the new agreement, then we would have taken a look at
19 it and started that negotiation.
20 In fact, we did get a new draft agreement, which was
21 substantially different from the one that had been
22 submitted at the end of 2011.
23 Q. So, Mr Marshall, you don't have any answer, do you, to
24 why, on your case, if Minister Kamanzi had approved this
25 long-term licence already and was prepared to submit it
[Page 67]
13:31 1 to cabinet, you are making an application for
2 a long-term licence and trying to justify one and
3 providing a new draft -- providing a draft agreement?
4 A. No, things are often less than regular in Rwanda. So
5 the fact that they were asking us to negotiate from
6 a new template was not particularly surprising to me.
7 We had hoped that the original one was going to be
8 accepted. They had approved it, sent it to Parliament.
9 Now they wanted to do a renegotiation. Okay, let's see
10 what you have to say.
11 Q. Let's look at paragraph 35 of your witness statement.
12 You say:
13 "Following each of the extensions, I continued to
14 expect that NRD would be awarded a long term contract.
15 Throughout all of these extensions, the Rwandan
16 Government representatives we interacted with always
17 referred to long term contracts for the Concessions as
18 a guarantee or a foregone conclusion. They never
19 suggested to us that Rwanda may not honour the
20 Concessions with long term contracts. I continued to
21 invest in NRD with the understanding that the long term
22 contracts were forthcoming."
23 None of that is true, is it?
24 A. No, all of that is true.
25 Q. Now, we were referring earlier to the fact you had been
[Page 68]
13:32 1 prevented from mining the western concessions due to
2 environmental concerns. Can you now please go to C-056.
3 A. Not all of the western concessions were closed, by the
4 way, just to alert you.
5 Q. Can we just look at C-056. This is from Dr Biryabarema
6 in February 2013. He says:
7 "Reference is made to your letter dated
8 6th February 2013, requesting for the resumption of
9 mining activities in Rutsiro, Sebeya and Giciye
10 Concessions of NRD and also have the opportunity to
11 remedy the harm been done in those concessions by
12 illegal miners. Following our conversation with you on
13 [6 February 2013] we recognise and appreciate your
14 suggestions to curb illegal mining practices by using
15 demobilised soldiers ... to provide security for these
16 concessions. As you informed us this group has proved
17 effective in Nemba, another NRD controlled concession.
18 "We agree with your proposal and request you to
19 proceed with discussions with the demobilised soldiers
20 and work out a security strategy. On the strength of
21 this strategy, NRD will be permitted to resume
22 activities in the short term as we proceed with
23 negotiations on your request for new contracts for the
24 concessions. For any other support, please do not
25 hesitate to contact us."
[Page 69]
13:33 1 So you were allowed to resume activities in the
2 short term while negotiations progressed, correct?
3 A. That's what it reads, that negotiations did not
4 progress, but that's what it reads.
5 Q. And this wasn't a letter from the Minister which would
6 have been granting an actual extension; this is from
7 Dr Biryabarema giving you, if you like, an ad hoc,
8 informal permission to remain on the concessions;
9 correct?
10 A. No, we were always treated as mining concession holders
11 as defined by law, except with respect -- no, always
12 treated as mining concession holders. In a few select
13 instances like this issue of the Sebeya River catchment,
14 there was a declaration that the catchment was closed,
15 but we were always treated with respect as long-term
16 concession holders.
17 Q. But this didn't involve an extension of the licence,
18 that's my -- just focus on my question: this didn't
19 involve an extension of the licence, did it?
20 A. Your question was whether we had independent rights, and
21 my point is, we were always treated like long-term
22 concession holders, it's the course of dealing.
23 Q. Right, you're relying on a course of dealing?
24 A. May I finish, please? We never changed from when we got
25 the licences in 2007, we were always treated with both
[Page 70]
13:35 1 rights and responsibilities, except that in certain
2 cases, like Sebeya River catchment, things were closed
3 because of, in this case, environmental degradation.
4 Q. And nothing on this letter gave you any assurance that
5 any long-term licence would be given; correct?
6 A. "... Proceed with [the] negotiation on your request for
7 new contracts..."
8 Q. Exactly. And this permission was given on the strength
9 of your assurance that you would curb illegal mining on
10 the concessions through the hiring of demobilised
11 soldiers; yes?
12 A. I would point out to you, you were accusing us earlier
13 of mining in this area, and here this letter is talking
14 about mining by illegal miners, not by NRD miners in
15 this area.
16 Q. This permission was given on the strength of your
17 assurance that you would curb illegal mining on your
18 concessions through the use of -- the hire of
19 demobilised soldiers; yes?
20 A. That's what they wanted us to do, yes.
21 Q. And that reflected, didn't it, that it was NRD's
22 responsibility to maintain order on its concessions and
23 prevent damage on its concessions?
24 A. No, that's not true in Rwanda. You can make reasonable
25 efforts. The country is so crowded that you cannot
[Page 71]
13:36 1 it's not like in many countries where you can fence off
2 a mining area. The areas in the concessions are large,
3 they're in some cases hundreds of thousands of people.
4 So people do come and mine selectively where they want,
5 and you can't control it.
6 Q. Well, it was --
7 A. Rutongo was able to get support from the military.
8 We don't know why. We tried to get support from the
9 military, and two brigades -- two entire brigades were
10 posted at their concessions to stop the illegal mining.
11 Q. Well, your concessions were particularly --
12 A. (Overspeaking).
13 Q. Mr Marshall, your concessions were particularly large
14 and that was one of the problems you faced: was that you
15 couldn't control activity on your concessions; correct?
16 A. No. The concession areas are established by law. It's
17 not something that anybody had an option to, unless they
18 were going to change the law before granting them to us.
19 The concession areas, as a matter of practice, are
20 always handled as a police matter. It's not like you
21 can control someone going in or coming out; these are
22 widely scattered, very small deposits, and what you do
23 is you provide those artisan miners with various kinds
24 of support.
25 Q. Plainly, Mr Marshall, the government thought that you
[Page 72]
13:37 1 could curb illegal mining, and it was your
2 responsibility --
3 A. No, that's --
4 Q. -- because the basis on which you're allowed back onto
5 the concessions, as we can see, is your assurance you
6 will hire demobilised soldiers to get in control of
7 illegal mining; yes?
8 A. That hadn't been tried before, so we proposed it to the
9 government, maybe what we can do, because this is
10 a mutual problem, it's a police problem, it's a security
11 problem, but these are not mines where long-term --
12 large-scale mining concession holders ever had
13 a responsibility for that. They have some security
14 responsibilities for immediate dangers, like making sure
15 people don't fall into holes, and that kind of thing.
16 But for policing of illegal mining, nowhere in the
17 country is that solved by the concession holder.
18 Q. Well, that's exactly what's happening here, and your
19 undertaking to hire demobilised soldiers arose because
20 you accepted it was your responsibility; correct?
21 A. So, you know, you're attributing bad intentions by my
22 not including some phrases in documents, and here you're
23 interpreting a bad intention by saying: well, you had
24 to, because you had no other choice.
25 We did this out of good faith. The police could not
[Page 73]
13:39 1 handle this problem. So we were unique among the mining
2 concession holders and said: why don't we set up
3 a programme to hire these demobilised soldiers, it
4 solves a government problem of what to do with
5 demobilised soldiers who may be difficult to deal with,
6 and we can give them work.
7 Q. Mr Marshall, something that --
8 A. So a jobs programme, from our point of view, and
9 innovative: nobody else had done that.
10 Q. Mr Marshall, something that was happening as a matter of
11 good faith was that the Rwandan Government were granting
12 you an indulgence by permitting you to remain on the
13 concessions after your licences had expired; correct?
14 A. No, we had -- we were deemed to be long-term mining
15 concession holders, which is a defined term under Rwanda
16 statute. That never varied. Concession --
17 Q. Come on, Mr Marshall, you were not deemed to be
18 long-term concession holders, were you?
19 A. Yes, we were.
20 Q. You never had a long-term concession.
21 A. Everybody was --
22 Q. You had a contract for four years, which by this stage
23 was no longer extant --
24 A. Everybody.
25 Q. Just listen to my question. You had a contract for four
[Page 74]
13:40 1 years, which was no longer extant, and you had licences
2 which were expired. You were never deemed to be
3 long-term concession holders, were you?
4 A. No, our contracts were executory. We had done -- we had
5 granted the indulgence that the Rwanda Government had
6 asked us, we had set up operations, we had invested
7 considerable amounts, with the expectation that we would
8 be granted this long-term commercially reasonable
9 contract, and as a matter of law we were deemed to be
10 long-term concession holders, and specifically holders
11 of those concessions, by statute, not by right. We had
12 fully performed under the contract, we had done what
13 we had promised to do. They promised to give us
14 a commercially reasonable long-term licence agreement,
15 and that was the negotiation and the agreement we were
16 waiting for.
17 MR HILL: Mr President, I wonder if that is a convenient
18 moment for a break?
19 THE PRESIDENT: Yes, I think it's a very convenient moment
20 and we'll have an extra five minutes, I think, and come
21 back in 35 minutes, at quarter-past.
22 (1.41 pm)
23 (A short break)
24 (2.16 pm)
25
[Page 75]
14:16 1 THE PRESIDENT: Yes, could I just ask Mr Cowley?
2 MR COWLEY: Yes.
3 THE PRESIDENT: Did you have time to open the envelope and
4 consider its contents?
5 MR COWLEY: We opened the original email. The
6 representation to us was we were going to be asked to
7 confer with our client about one document.
8 THE PRESIDENT: Yes.
9 MR COWLEY: And admitting it today for questioning of Rod
10 Marshall. I never received such a request. I took it
11 as probably indicative of the fact that the questions
12 they asked have already been asked, but if not, I still
13 did two things: I looked into -- our IT staff has
14 received the package, they have the metadata that was
15 submitted to us by letter this morning.
16 I've got follow-up questions for them about what --
17 their comments. They don't know anything about the
18 trial, the background, they don't know what to really be
19 looking for. So I have follow-up questions with them,
20 and I may answer all my questions, or those follow-up
21 questions may have to be answered by Respondent's
22 counsel.
23 I also have questions for them about what this new
24 ability to produce metadata by the Respondent covers
25 beyond what we're holding, so I have additional
[Page 76]
14:18 1 questions and, in any event, I ask Mr Marshall as
2 an academic matter, should anybody have an email in
3 native format or another document in Word format, PDF
4 format, in native as opposed to electronic or PDF, does
5 he have any ability to talk about the differences
6 between the two, does he have any ability to talk about
7 metadata in native compared to something else, and he
8 says absolutely not. I confirmed with him that in order
9 for him to even talk about what is in metadata or in
10 a particular document in metadata, he has to confer with
11 an IT professional.
12 So there is no substantive testimony from the
13 witness that could be obtained today in any event,
14 regarding metadata, so I suggest this change in position
15 with regard to discovery and production of documents
16 should be a subject of actual discussion between the
17 parties' counsel -- we've never had any -- and we report
18 back to the Tribunal, probably not today, but we report
19 back after we have had an actual conversation.
20 THE PRESIDENT: Right. Thank you.
21 Mr Hill, that sounds sensible.
22 MR HILL: Well, we certainly can't deal with it now.
23 THE PRESIDENT: Yes.
24 MR HILL: So let's park it now, I think.
25 THE PRESIDENT: Thank you.
[Page 77]
14:19 1 Then let us have Mr Marshall back, please.
2 MR WATKINS: Okay, bringing the witness in right now.
3 MR HILL: Mr Marshall, can you be given C-057. This is
4 a letter from the RDB to NRD setting out its position in
5 respect of the licences, and the RDB note in the first
6 paragraph that the contract expired in 2011, and the
7 company has been working on a short-term extensions;
8 yes, do you see that?
9 A. Yes.
10 Q. And as they say there:
11 "As the Government of Rwanda has taken the decision
12 to negotiate licence agreements separately for each
13 mining site, we wish to initiate negotiations with the
14 company for the issuance of a small mine exploitation
15 licence for the Nemba site."
16 So at this stage the government is making it clear,
17 isn't it, that they want to negotiate licence agreements
18 separately for each concession, and at this stage
19 they're interested in negotiating a small mine licence
20 for Nemba; correct?
21 A. Possibly. It also may be that they were not
22 articulating the situation well and that they were in
23 error. For example, right at the top of the page, it's
24 addressed to Mr Zarnack, who hadn't been associated with
25 the company for many years.
[Page 78]
14:21 1 I don't know, we were certainly -- we took it as
2 an invitation to come and negotiate a long-term
3 concession licence --
4 Q. How could you have taken it as that, Mr Marshall, given
5 they're telling you they want to negotiate each one
6 separately and they're inviting you to negotiate for
7 a five-year small mine licence for one concession?
8 A. Well, I don't know that that's truly what they meant.
9 All the other concession holders were in long-term
10 licence concession holder agreements.
11 Q. But it is truly what they said, isn't it?
12 A. Sorry?
13 Q. It's truly what they said in this letter.
14 A. You mean the sentence you're reading?
15 Q. That's what they're saying.
16 A. They're contradicting me; is that what you mean?
17 Q. Yes. Are you saying you don't know what that's meant,
18 but it's exactly what they said.
19 A. Yes, and my point is that everybody is at this point
20 going through a negotiation for long-term concession
21 licence. We had no reason to believe that we were going
22 to be treated any differently even though it is written
23 inartfully here.
24 Q. You say everybody at this point, but that is simply not
25 the case, is it? They're explaining what they're
[Page 79]
14:22 1 prepared to negotiate and it is not long-term concession
2 licences; correct?
3 A. As far as I know, all large-scale mining concession
4 holders were being brought in for long-term licence
5 contracts, and all of them are negotiating what both
6 parties would hopefully find to be a commercially
7 reasonable agreement.
8 Q. Shall we look at your response to this?
9 A. For Rutongo, for example, it took them three years of
10 negotiation, I don't know why, but we hadn't even begun.
11 So we were -- we were glad to find somebody willing to
12 talk about what had happened to us and what the original
13 long-term licence agreement text had been.
14 Q. You say you hadn't even begun, but I thought your
15 evidence elsewhere was that you had begun and indeed you
16 had an agreed contract which had been agreed by the
17 Minister and gone to cabinet.
18 A. You're trying to twist my words, I think, sir, so excuse
19 me. What I'm trying to say is I think you will
20 appreciate we had negotiated a long-term contract, it
21 had gone to the Parliament, cabinet, so we were told, it
22 was tabled, it had not gone ahead. We saw that this
23 was -- this letter we were optimistic that we were going
24 to be able to be like everybody else, like every other
25 large-scale concession holder negotiating for
[Page 80]
14:23 1 a long-term concession agreement.
2 Q. Let's look at your response to this, Mr Marshall.
3 C-058?
4 A. By the way, let me give you just one important side to
5 this. They had all the leverage in the world because
6 they had our assets --
7 Q. I'm going to stop you there, Mr Marshall, because that
8 is not beginning to be an answer to any of my questions
9 and we must get on and I'm not going to allow you to
10 digress into matters which are not answers to my
11 questions. So will you please go to C-058.
12 Now, this is your response to the letter from the
13 RDB, and we pick up in the beginning, first paragraph,
14 a point about the addressee. I'm not going to bother
15 you with that. I'm going to look at your next
16 paragraph:
17 "I perhaps should add that, as you note in CEO
18 Akamanzi 'invitation letter', the term of the original
19 'Contract' has passed without NRD receiving the agreed
20 upon 'Long Term Licence' and we would like to express
21 our appreciation that we can now discuss that."
22 Just pausing there, you knew that there was no
23 agreed-upon long-term licence and you knew that you were
24 not being invited to discuss a long-term licence, didn't
25 you?
[Page 81]
14:25 1 A. No. As you said before, this is the plain language. We
2 expected to be negotiating for a long-term licence,
3 similarly to how we had been negotiating it with
4 Dominique Bidega in 2011.
5 Q. So this is a deliberate, I would suggest,
6 misinterpretation of a letter which you have copied,
7 amongst other things, amongst other people, to the US
8 Ambassador; yes?
9 A. That's the double question. Can I answer the first one
10 first, please?
11 Q. Yes, please.
12 A. What we understood was that we were being finally
13 invited to negotiate commercially reasonable long-term
14 licences. We hadn't had anybody to talk to about the
15 terms of that licence. From our perspective, we had
16 fully performed. We had negotiated the agreement once,
17 it had been sent to the cabinet, tabled, and it hadn't
18 gone ahead. Now we were given a second opportunity to
19 be able to negotiate what the language of that long-term
20 licence would be --
21 Q. You wanted to give a full -- yes, carry on?
22 A. What was your second question?
23 Q. Yes, you sent it to -- and I suggested, and it's the
24 same suggestion I'm making again now, you sent this
25 letter to a number of other recipients in order to give
[Page 82]
14:26 1 a false impression that there was some agreement of
2 a long-term licence, didn't you?
3 A. This is a very small community. Everybody knew
4 everything about what was going on. If the Rwandan
5 Government -- if these people in the Rwandan Government
6 were jockeying to be able to say: okay, we did have
7 an agreement, we're now going to breach that agreement
8 by offering you something different than what we
9 promised, then everybody needs to know what that process
10 is. We were trying to play with all the cards face-up.
11 That was the only reason.
12 THE PRESIDENT: Could I just intervene to ask a question
13 which has been puzzling me from the outset. When we
14 look at this letter it has, by the Ministry of Natural
15 Resources, the Rwanda Development Board, and the
16 American Embassy. How is it that one document bears
17 these three stamps of receipt?
18 A. Ordinarily what we do is that it's an administrative
19 practice in Rwanda where you deliver the original to the
20 named recipient, and when you're delivering copies, you
21 get a -- you go to their office and they give you
22 a stamp on your copy, so that you have a record of
23 everywhere you delivered it.
24 THE PRESIDENT: So all these documents were delivered by
25 hand in hard copy; is that right?
[Page 83]
14:28 1 A. All documents in Rwanda are delivered by hand. There's
2 really no meaningful mail service. So, for example, the
3 stamp there next to the addressee, I don't see others,
4 the Rwanda Natural Resources Authority, that meant that
5 we took it to them, and our copy we were keeping, we got
6 them to stamp it as evidence that they had received it.
7 THE PRESIDENT: Thank you. I understand.
8 MR HILL: Thank you, Mr President. I'm just seeing if I can
9 skip the next thing just to try and move things along
10 a bit. If you just give me one moment.
11 A. I would add, Mr President, two additional administrative
12 practices in Rwanda is, one, that all documents, all
13 received letters are entered into a logbook, so when
14 they stamp it they also enter it into their logbook, and
15 every letter that they send out, where the minister
16 sends out a letter, for example, they also enter that
17 into a logbook, so it's like the US Army, where they
18 keep a record of every communication, and then there's
19 some dispute about whether it's seven days, or seven
20 business days, you have to respond to that letter on
21 both sides.
22 THE PRESIDENT: Thank you. That's the practice.
23 A. That's the practice, sir.
24 MR HILL: Yes. Can you now go to C-159. This is a meeting
25 of the RDB that you attended, and you see at the
[Page 84]
14:29 1 beginning of the note of the meeting it says, second
2 sentence:
3 "Ms Rusagara informed NRD that it had not received
4 any comments from the Company on the Mining Agreement
5 and the due diligence questions that it had submitted to
6 NRD on 4th April 2013 ... Ms Rusagara noted that in the
7 absence of comments from NRD, the meeting could be used
8 to focus on broader issues [relating] to the Agreement
9 and due diligence questions, or addressing
10 clarifications in connection with that Agreement."
11 So the RDB went into this meeting wanting to
12 negotiate or to discuss the agreement which you had not
13 yet commented on, and that was the five-year Nemba
14 agreement; correct?
15 A. I don't know what the draft was. I don't recall.
16 Q. And what happened at this meeting is you weren't ready
17 to discuss that draft, and I don't want to go to the
18 detail of the minute, but it's clear from the minute
19 that you raised a number of complaints, and it was
20 agreed that there would be a meeting with Mr Imena,
21 which took place subsequently; do you recall that?
22 A. I recall that there was no meeting with Dr Imena
23 subsequently, that this was a preliminary meeting for
24 purposes of negotiating a long-term contract. That was
25 my recollection.
[Page 85]
14:31 1 Q. Well, I'll just interrupt you there -- sorry, I don't
2 mean to interrupt -- following up on you there: it
3 wasn't a preliminary meeting for discussing the
4 long-term licence, it's quite clear that from RDB's
5 point of view it was a preliminary meeting for
6 discussing the short-term licence that you were not in
7 a position to discuss; correct?
8 A. I don't ever recall that there was a conversation of us
9 having a discussion about a short-term agreement at all,
10 so, that's my recollection.
11 Q. Then we have your letter to Mr Imena.
12 A. Can I read the rest of this --
13 Q. And you say --
14 A. Can I read the rest of this? It may remind me.
15 Q. Well, no, because I simply need to move on. I don't
16 have a question on it and we are not going to finish
17 your cross-examination if you read every letter.
18 A. I want to give you a more complete answer, if you want
19 a more complete answer.
20 Q. No, I don't want a more complete answer, I want to move
21 on or we don't finish this cross-examination. Can we go
22 to C-059. This is your letter to Mr Imena where you
23 say:
24 "In our joint discussions with RDB, it was suggested
25 that we have a meeting directly with you and RDB about
[Page 86]
14:32 1 the business/legal/regulate situation facing NRD. All
2 at the meeting agreed that if these issues can be
3 resolved, the negotiation for the long-term concession
4 would be easier and more straightforward."
5 And just pausing there, again, that is you twisting
6 things to try to give the impression that there was some
7 discussion and negotiation for a long-term concession
8 that everyone thought would be more straightforward if
9 you had a discussion with Mr Imena, which is not what
10 took place; correct?
11 A. I don't believe there was any inconsistency between that
12 and the prior minutes, but you wouldn't let me read the
13 prior minutes so I'm not sure what you're referring to.
14 Q. Now you then say --
15 A. (overspeaking) we weren't twisting any language, we
16 weren't misrepresenting anything.
17 Q. Now, I would suggest to you this is one of a very large
18 number of examples where you seek to give the impression
19 in your correspondence that there was some agreement or
20 negotiation as to a long-term concession when that
21 wasn't in fact happening; correct?
22 A. We were treated as long-term concession holders from the
23 beginning, with a mandatory 30-year period. We expected
24 that was what was going to be the subject of
25 a commercially reasonable long-term licence agreement.
[Page 87]
14:33 1 Q. You then say:
2 "We had originally understood that the topics for
3 discussion should be presented to you through RDB. We
4 now understand that we are to present the list of topics
5 to you ..."
6 And then you attach a list, and this is another
7 letter that you copy to the US Ambassador; correct?
8 A. We were in constant communication with the US Embassy,
9 about everything, particularly at this time because we
10 were also working for the Rwanda military.
11 Q. Now, let's just look at some of the items on your list.
12 If you go on to page 2, the second page of this
13 document.
14 MR BRODSKY: I'm sorry, including the cover email, the
15 second page of the PDF or the second page of the letter?
16 MR HILL: That's right, where you are, that's fine.
17 MR BRODSKY: Okay, thank you.
18 MR HILL: So you pick out some issues that you want to
19 discuss with Mr Imena, starting with A at the bottom of
20 the page:
21 "The continuing harassment of NRD, which includes
22 the de facto closure of NRD's western mining concessions
23 as a result of the lack of security and of the actions
24 taken by the Rwanda Natural Resources Authority."
25 Now, that itself is a very unfair characterisation,
[Page 88]
14:35 1 isn't it, because the western concessions were closed
2 down for environmental reasons and only opened up on the
3 basis of your assurance that you could hire demobilised
4 soldiers to curb the problems?
5 A. No, the area that was closed, don't forget, was the
6 Sebeya River catchment, not all of the western
7 concessions were closed. Just so you're aware, as
8 an administrative matter, when we send a letter like
9 this, they have seven days to respond if there's
10 anything which is incorrect. Their lack of response
11 suggested that they agreed with what is written here.
12 Q. Is that one of the reasons, Mr Marshall, why we can see
13 so often you put "distorted information" in the letter
14 so you can somehow rely on it and say against the
15 minister that there was something they hadn't responded
16 to within seven days?
17 A. That's their administrative practice. We write what we
18 believe to be the truth and they respond as they believe
19 to be the truth.
20 Q. Now let's look at the next page of the letter. We can
21 see what you're asking for. You say:
22 "[We] would respectfully ask the Ministry of Natural
23 Resources to do the following.
24 "1. Explain why NRD alone among the mining
25 companies is the 'target' of official and unofficial
[Page 89]
14:36 1 State action. Is it because RNRA wants to compel NRD
2 investors to give up their investment in the Rwanda
3 mining industry?"
4 So this is a letter that emerges from you to the
5 Minister in response to the request to negotiate
6 a five-year licence for Nemba, and do you consider this
7 is an appropriate request to make of the Minister?
8 A. I think you're mischaracterising it again. The issue
9 that was decided was that we would be raising issues
10 that were impediments to our ongoing ability to work in
11 Rwanda of any kind, and so these were an opportunity to
12 discuss issues we wanted to discuss with Minister Imena
13 who, until this point, was really unwilling to speak to
14 us.
15 Q. The reality is, there hadn't been any --
16 A. In fact, I would like to make one last point: there are
17 maximum 10 large concession mining companies in the
18 whole country. The fact that he did not find time to
19 talk to us meant that he was avoiding us, not that he
20 was too busy with other matters.
21 Q. And far from being the target of any official or
22 unofficial state action, all of NRD's problems are ones
23 it had brought upon itself, for example, by being unable
24 to curb illegal mining on its large concessions;
25 correct?
[Page 90]
14:37 1 A. No.
2 Q. Let's look at the next item, paragraph 2.
3 A. Other mining concession holders had much more difficulty
4 with illegal mining than we did. Rutongo was among the
5 biggest complainers about that.
6 Q. Let's look at the next item:
7 "Grant to NRD the long-term 30-year mining
8 concession provided by Rwandan law and promised under
9 the 2006 exploration and exploitation Agreement, which
10 grant has been repeatedly delayed and manipulated by
11 RNRA. NRD has fully performed under the 2006 Agreement
12 and, in accordance with that Agreement, NRD has
13 confirmed that it is satisfied by its exploration
14 results in some concessions and, in some areas within
15 a concession, wishes to continue exploration."
16 Now, let's take this in stages. There's no 30-year
17 licence promised under the 2006 contract, is there, that
18 was a distortion of the contract; correct?
19 A. No, at all times we were the statutorily defined
20 long-term large-scale mining concession holder, which is
21 a defined term under Rwanda statute, and there it
22 specifies as the long-term holder it is for a mandatory
23 30 years, there's no lesser period. And the Rwanda
24 Government always was making the argument: we would like
25 to be sure of what the terms of the so-called
[Page 91]
14:39 1 commercially reasonable long-term licence say and that
2 was the sole reason for their delaying it.
3 Q. And there had been no, as you say, manipulation, by the
4 RNRA, had there? The first application by you for a
5 long-term licence was not until January 2013, and that
6 was the nine-pager that we looked at earlier; correct?
7 A. No, this is your fanciful narrative and I understand
8 that you are trying to thread together lines from
9 different sentences, but that is not what was happening
10 on the ground.
11 Q. And then you say that NRD had fully performed under the
12 agreement, but you had already been told repeatedly by
13 the government that NRD had not fully performed under
14 the agreement, hadn't you?
15 A. That's not true. We had been given some letters from
16 Dr Michael, Minister Kamanzi, and later from
17 Minister Evode, but virtually everybody else in the
18 Ministry had confirmed that we had fully performed -- in
19 fact, performed better than anybody else.
20 Q. So all your letters --
21 A. And more than that -- if I may finish, please -- and
22 more than that we had a parallel line of negotiation
23 with the government through the Rwanda military and they
24 were telling us that we had fully performed and there
25 was a corruption problem that their internal security
[Page 92]
14:40 1 was working on.
2 Q. All the letters from the people with senior
3 responsibility and authority were against that position,
4 but you're relying, are you, on conversations with
5 people like Mr Bidega who joined your organisation; yes?
6 A. I'm -- it's an ongoing negotiation. We knew what people
7 thought. We knew that they were investigating
8 corruption. We believed Dr Michael and Minister Evode
9 were going to be removed almost immediately. In fact,
10 Evode was removed, but six months after we left the
11 country.
12 Q. And this was a wholly distorted position --
13 A. No.
14 Q. -- that you were presenting to the Minister and copying
15 to the US Ambassador so that he himself --
16 A. The US Ambassador --
17 Q. Just let me finish -- so that he himself would have
18 a false impression of what was going on; that is fair,
19 isn't it?
20 A. No. He has his own sources of information, he is fully
21 part of the community, everybody in the US Embassy is
22 fully part of the community. We played with all of the
23 cards facing up. They knew what was good, what was bad,
24 what was happening day-by-day, and they always, always
25 provided a representative from the US Embassy to go with
[Page 93]
14:41 1 us to those meetings. That's very unusual. Very rarely
2 does an US Embassy official go with a private citizen to
3 a business meeting, but they came with us dozens and
4 dozens of times because they could see how unfair this
5 was.
6 Q. They were being told by you, inaccurately --
7 A. (Overspeaking).
8 Q. -- they were being told by you inaccurately how unfair
9 things were; correct?
10 A. I think you're overjudging my capabilities. They are
11 very adept people, they understand the Rwanda community,
12 they knew what they were doing, they knew who they were
13 talking to, and that yes, we were being treated much
14 less fairly than anybody else.
15 Q. Now, we've arrived in the story at the second half of
16 2013. Mr Kagubare joined NRD in the second half of
17 2013, didn't he; yes? Remember him?
18 A. He started, I want to say, November, but it was -- he
19 was a consultant, not an employee, and his real job was
20 for the Directorate of Military Intelligence, and he was
21 sort of our go-between with General Jack Nziza to
22 prepare memoranda for him on topics that were
23 interesting.
24 Q. Let's look at what he says, following his arrival.
25 Paragraph 9 of his witness statement. So he explains
[Page 94]
14:43 1 his witness statement, he's a mechanical and civil
2 engineer by profession. And he says at paragraph 9:
3 "I started work in the second half of 2013 and very
4 quickly discovered that the company was not being run in
5 a professional manner, but rather that Mr Marshall and
6 Ms Mruskovicova were effectively running NRD as
7 a 'briefcase' company. For example, although the
8 company had an office in Kigali, its own staff were 2
9 women whose job was to prepare accounts that could be
10 presented to the ... RRA in the event that the RRA asked
11 for the company's records. The business itself was
12 mostly run out of Mr Marshall's and Ms Mruskovicova's
13 apartment and Mr Marshall and Ms Mruskovicova rarely
14 visited the Kigali office."
15 That's fair, isn't it?
16 A. No, it's completely outrageous, we were running the
17 business from the office, we were at the office every
18 day, our staff were there every day. I don't know about
19 John's professional background, if I may go back to
20 that. I know that he was a construction worker in the
21 UK for a number of years, and ran a taxi, until he came
22 back for better opportunities in Rwanda. He was working
23 for the Directorate of Military Intelligence, he was our
24 liaison with General Jack Nziza who wanted very concrete
25 information about the mining industry and how it should
[Page 95]
14:44 1 be run and what kinds of recommendations we would
2 propose or we thought would be appropriate, and then he
3 had a shift into military procurement. John Kagubare
4 came with us as his representative to meet with the
5 armaments companies in Czech and Slovakia.
6 Q. That was all a very long answer to a question about what
7 he found in relation to the way you ran the company.
8 Can you please try to keep yourself to the answers to my
9 questions or we will not finish this cross-examination.
10 Next question, please go to paragraph 15 of
11 Mr Kagubare's witness statement. He says that what he
12 found is although -- as he arrived at the end of 2013:
13 "Although the company was entirely dependent on
14 artisanal mining, it did not manage its staff and
15 contractors in an effective way. Ms Mruskovicova had
16 a habit of firing people at will. It was not uncommon
17 for her to walk up to an employee or miner and fire them
18 for allegedly stealing, or because she thought they were
19 lazy. Ms Mruskovicova also seemed to regard payments
20 due to the artisanal miners as discretionary rather than
21 obligatory, and would sometimes decide that they should
22 not be paid as agreed (after every sale) claiming there
23 were more urgent issues to sort out. An excuse
24 I disapproved and got to learn was the cause of the
25 company's many legal problems with its employees and
[Page 96]
14:45 1 contractors and it was involved in a large number of
2 court cases concerning claims for unpaid salary,
3 wrongful dismissal or failing to pay the artisanal
4 miners for their minerals. I remember at least one court
5 case that was brought by a group of miners who had not
6 been paid -- although a settlement was eventually agreed
7 and a payment programme implemented, NRD did not comply
8 with the payment programme and the miners went unpaid.
9 So far as I can [tell], NRD lost almost all of the cases
10 brought against it but still refused to pay their former
11 employees and the miners the amounts that were due to
12 them."
13 And that fairly sums up the position: NRD did not
14 manage its staff and miners in a professional way, did
15 it?
16 A. That's a wholly fabricated statement, completely untrue.
17 All companies are dependent on giving support to groups
18 of artisanal miners. That's the fact in Rwanda. We
19 managed them in an effective way, I would say we were
20 better at managing them than most companies, I don't
21 have a clear parameter for that, but I know our staff
22 were always paid and always paid in full.
23 To the extent that there may have been any legal
24 problems with any miners, the only ones that I know
25 about were from the Starck period, and I don't even know
[Page 97]
14:47 1 that they know that these people had sued the company.
2 We could never find out any information about who they
3 were or what they sued for. As far as I know, we never
4 had a lawsuit for unlawful dismissal, except in those
5 cases where there was a perfunctory lawsuit where we had
6 fired someone for theft or embezzlement, like Aime, for
7 example, he may have brought a claim. As far as I know,
8 those would have been dismissed, although the courts are
9 very reluctant not to give some kind of damages, even as
10 nominal damages (overspeaking) --
11 Q. Mr Marshall, we know there were lots of court cases --
12 A. -- unfair dismissal claim.
13 Q. Mr Marshall, we know there are lots of court cases and
14 judgments, including judgment for unfair dismissal --
15 A. No, it's a gross misrepresentation. No, it's not true.
16 The bailiff came to us with a list of so-called
17 employees from maybe the west, we don't know where, we
18 couldn't -- we never get -- wait a second. He would
19 never give us a judgment, he would never give us a court
20 document. We don't know who they were.
21 Q. The more accurate position is that the bailiff came and
22 he had judgments that he was enforcing?
23 A. If he did, he wasn't showing them. That's my point.
24 Q. We'll come back to that. Can we go back to
25 paragraph 16?
[Page 98]
14:48 1 A. All of this is fraudulent and I would ask you to address
2 these issues to Ms Mruskovicova.
3 Q. Back to paragraph 16:
4 "Although I had been hired on the understanding that
5 I would assist NRD in its production strategies and
6 security, which I believed involved industrialising its
7 operations, none of the sort happened as Mr Marshall and
8 Ms Mruskovicova were not willing to invest any money in
9 the company. It quickly became apparent to me that NRD
10 was happy to continue buying minerals from artisanal
11 miners and reselling those minerals for a profit rather
12 than investing in and developing the company's
13 operations. During the time that I worked for the
14 company, it made very little capital investment. It did
15 not make any investment into industrialising its
16 operations".
17 And that is accurate, isn't it?
18 A. No, it is not. He was a full-time employee of the
19 Directorate of Military Intelligence, he was giving us
20 assistance on security matters. It was represented to
21 me by a mutual friend that he could help because he
22 carried the weight of the Directorate of Military
23 Intelligence to be able to stop some of the harassment
24 we were getting by small communities and small mafia
25 groups. All of this is creative writing, at best.
[Page 99]
14:49 1 Q. We know it's accurate, Mr Marshall, because it coincides
2 with the documents you have produced, which show the
3 company -- which are the company's documents which show
4 an absence of investment in the period of NRD --
5 A. That's not true.
6 Q. -- and we've been through that material.
7 A. That's not true. You bifurcated the proceedings, you
8 did not want that information until the second part.
9 With regard to this specifically, "I believed this
10 involved industrialising mining", he knows well that
11 industrialising mining in Rwanda is interpreted to mean
12 giving more and more assistance and support to artisan
13 miners and their mining activities; it's not to create
14 massive open-pit mining operations, and it's
15 a misrepresentation to say that we were happy to
16 continue buying minerals from artisan miners. That's
17 what every mining company does. Everybody -- no, there
18 are no full-time miners. There are full-time support
19 staff, but there are no full-time miners. Everybody
20 buys from the miners and sells that production to the
21 comptoirs or traders.
22 Q. Now let's look at page 18 of his statement, dealing with
23 Rutsiro.
24 A. Well, you go through a sentence -- excuse me, just to
25 make an observation --
[Page 100]
14:50 1 Q. No, I'm not allowing you to make an observation,
2 Mr Marshall, you have answered my question. Please go
3 to paragraph 18 --
4 A. Can I interject a comment, please? You read a paragraph
5 and you say "That's all true, isn't it", and you don't
6 let me respond to it item by item, and that's not very
7 fair.
8 Q. I've given you a long opportunity -- very many
9 opportunities for long answers, Mr Marshall, I need to
10 move on.
11 A. You can't -- you're reading six or eight sentences and
12 you don't give me an opportunity to answer each of those
13 allegations.
14 Q. Let's look at paragraph 18, Mr Marshall. He deals there
15 with the Rutsiro plant and what he says in the middle of
16 the paragraph is:
17 "That plant at Rutsiro was not operational and I was
18 told by employees that had worked for NRD when it was
19 owned by HC Starck, that the plant had never worked and
20 could not process any minerals because it had several
21 missing parts."
22 He's dealing here with 2013 now, and it's right to
23 say, isn't it, that that plant was not operational?
24 A. The plant was absolutely operational. It's a farcical
25 statement, it's so bluntly untrue. Not only were we
[Page 101]
14:51 1 operating it -- we were certainly operating it once
2 a month, but sometimes more often if we had a major load
3 of material to put through it. It was always available
4 for artisan miners to use some part of it like the
5 washing tables. Again, you're misrepresenting what
6 a processing plant is: it's a group of processing
7 equipment organised so that it can be most efficient and
8 minimising labour. That's not the biggest problem in
9 Rwanda. It is the only plant in Rwanda at this time.
10 Q. Now let's go back to the licence story now. Mr Imena,
11 now a State Minister of Mining, invited you to a meeting
12 in October 2013; do you recall that?
13 A. Yes.
14 Q. Can we go to the invitation, which is at C-060. He
15 says:
16 "I am pleased to invite you to a discussion meeting
17 between your Company and the Ministry of Natural
18 Resources to be held in the Ministry's meeting room on
19 Tuesday October 29, 2013, at 9.00 am.
20 "During this meeting we will discuss several issues
21 related to mining activities of your company including:
22 "Mining licences;
23 "Environment, safety and security concerns in NRD's
24 western mining perimeters;
25 "and complaints against NRD raised by Districts'
[Page 102]
14:53 1 authorities."
2 So he wasn't avoiding you, was he; he was inviting
3 you to a meeting, correct?
4 A. I don't remember receiving this message. He was
5 avoiding us. The sole purpose of the meeting was the
6 OECD delegation that was coming to Kigali, I would say,
7 within a matter of four or five days. He was very
8 worried about -- and this was to deal with the tagging
9 process and whether it was causing undue harm in the
10 DRC, and whether there was a knock-on effect in Rwanda.
11 The OECD meeting had never been held in Rwanda
12 before. They were very worried about what was going to
13 be said, and whether we, as the mining association, were
14 going to be able to sufficiently articulate that there
15 were challenges to the tagging process which were not
16 being addressed. That was the sole topic of the
17 meeting. If he sent this, I don't remember, but 100% we
18 didn't discuss any of these issues because he had a much
19 more important thing to worry about.
20 Q. None of this is true, and we're about to go and look at
21 what was discussed at the meeting, but let's start --
22 before we get there, let's start by seeing what you say
23 in your witness statement about this letter. You say --
24 you've just given evidence that you don't remember
25 receiving this message, but you in fact deal with it in
[Page 103]
14:54 1 your witness statement.
2 A. Okay.
3 Q. Paragraph 38. So why did you tell the Tribunal you
4 don't remember receiving this message when it's one you
5 actually deal with? So it's the first sentence --
6 A. Yes, okay. I had misremembered.
7 Q. So first sentence.
8 A. "... we received a letter inviting us ..."
9 Yes, fair enough.
10 Q. Well it says -- what you say in fact is:
11 "... inviting us to discuss the terms of the long
12 term concession agreement ..."
13 But of course, if FTI can pull that letter back up,
14 this is your witness statement, you can explain to the
15 Tribunal where in this letter there is an invitation to
16 discuss a long-term concession agreement.
17 A. Well, it says:
18 "During this meeting we will discuss several issues
19 related to mining activities of your company including:
20 "Mining licences..."
21 Q. Well, that's not an invitation to discussion a long-term
22 concession agreement, is it?
23 A. That's your distinction.
24 Q. Especially as you know --
25 A. (overspeaking).
[Page 104]
14:55 1 Q. Especially as you know that RDB had only invited you to
2 discuss at this point a five-year concession agreement
3 for Nemba. It's a misreading of a letter, isn't it?
4 A. No. I was leading the mining association discussions
5 with the OECD. He had one concern. We believed we were
6 going to be included as all the other long-term
7 mining concession holders were in negotiations, we
8 expected that we were going to be brought into that same
9 kind of process. As far as I know, I'm 100% sure that
10 the majority of the discussion was about what was going
11 to be said, what our presentation was. We went through
12 the presentation with him, to the OECD meeting, it was
13 very controversial at the time. He wished us luck, he
14 needed us very badly. We were arguing that the tagging
15 system created a de facto embargo and he needed
16 an explanation of what a de facto embargo was, and so
17 that was the subject of this meeting.
18 Whether you can parse his sentence to say mining
19 licences means it's not a long-term concession
20 agreement, I disagree with that.
21 Q. Now, you just gave another answer about the subject of
22 the OECD meeting and tagging, and that's also something
23 you said a little earlier in your evidence a few answers
24 ago where you said:
25 "They were very worried about what was going to be
[Page 105]
14:57 1 said, whether we the mining association were going to be
2 able to sufficiently articulate that there were
3 challenges to the tagging process which were not being
4 addressed. That was the sole topic of the meeting."
5 That's what you just told the Tribunal.
6 But even on the basis of your witness statement, if
7 we look at paragraph 38, you are dealing with
8 a different topic of the meeting because it's about
9 licences, on this version of events, and negotiations
10 for a long-term licence.
11 MR COWLEY: Mr Hill, if I might be permitted, I hate to
12 interrupt you, but yesterday you were reminded about
13 talking quickly. You talked so quickly that time
14 I didn't catch much of what you said. That's not as
15 important as me just reminding you, again, when you talk
16 so quickly it's very hard to follow a whole question
17 like that.
18 MR HILL: Thank you, Mr Cowley.
19 So, Mr Marshall, to ask this question again, the
20 answer you gave to the Tribunal a moment ago about this
21 meeting and its topic, you said:
22 "They were very worried about what was going to be
23 said and whether we as the mining association were going
24 to be able to sufficiently articulate that there were
25 challenges to the tagging process, which were not being
[Page 106]
14:58 1 addressed. That was the sole topic of the meeting."
2 But when we go to paragraph 38 of your witness
3 statement you describe a completely different topic of
4 the meeting.
5 A. Well, with regard to the topic of the licences, this was
6 said: the meeting was almost entirely about the OECD
7 delegation.
8 Q. Can we go to --
9 A. It was enough for us because it was very reassuring, he
10 needed our help, he reassured us that the language of
11 the agreement would be continuing shortly, the
12 discussion of the language of the agreement would be
13 continuing shortly.
14 Q. What in fact was said at this meeting was a number of
15 things: first, he told you you had been operating
16 without a licence since October 2012; correct?
17 A. No. He never said that.
18 Q. Secondly, he told you that that could not continue, and
19 you needed to make a compliant application for
20 a licence?
21 A. Not at this meeting, he never said anything like that.
22 Q. Thirdly, he told you that he considered that NRD did not
23 have the capacity for five sites and should focus on
24 two, Nemba and Rutsiro, with redrawn mapping to exclude
25 protected areas; yes?
[Page 107]
14:59 1 A. No, never happened. That was never discussed in this
2 meeting. This meeting was almost exclusive about the
3 OECD meeting coming up within a few days, it may have
4 been a week, I don't recall. He did give us assurances
5 as a way to assure us: look, please, we know that you
6 are helping us out here, be patient, everything is
7 working out.
8 Q. Can you go to bundle R-112.
9 A. Part of the reason for that by the way is they had
10 nobody else to articulate a position for the Rwanda
11 Government on the tagging process.
12 Q. This is R-112, this is a minute of the meeting, and if
13 you look at the second page, you can see it was prepared
14 by Mr -- yes, we have both pages open. We can see this
15 minute was prepared by the third gentleman on the list,
16 Mr Peter Martin Niyigena, who was an advisor to the
17 Minister, so its meeting minute. Of the three points
18 that I just suggested to you, we can see them in the
19 minute, we see at the bottom of the page, having first
20 recited the same points as were in the invitation
21 letter, it says:
22 "[Honourable] Imena continued his remarks by
23 acknowledging the efforts done by NRD Ltd, eg
24 construction of the plant; however he added on that NRD
25 licence was expired and not yet renewed. It is now time
[Page 108]
15:01 1 to get new one."
2 So you were told, weren't you, that you needed to
3 apply for a new licence, yes?
4 A. I believe that this is a fraudulent document. Some of
5 the information in this document I believe is true, but
6 not at this meeting.
7 Q. He also said --
8 A. Minister Evode never told us it's now time to get a new
9 one, except in the context of: we can tell you that the
10 negotiations will shortly begin with the RDB. It was
11 not his staff; it was the RDB that was negotiating these
12 things.
13 Q. Next paragraph of the minute, there's a point about
14 production:
15 "[NRD's] production considerably decreased all along
16 this year. For this reason, NRD effort should focus to
17 only two mine sites; Rutsiro, where the plant has been
18 installed, and Nemba, however the first mine site will
19 be remapped to exclude the protected areas such as
20 rivers and forests."
21 So it's right, isn't it, as I said, that you were
22 told to focus on two areas because of your capacity;
23 yes?
24 A. It certainly didn't come up in this meeting, and I don't
25 know that this came up in any meeting, as articulated by
[Page 109]
15:02 1 Minister Evode. There are some elements in here, but
2 they're from a later meeting after the OECD meeting.
3 I can only think that maybe Mr Peter Martin got his
4 dates confused and what was discussed confused. Before
5 these proceedings I had never seen these minutes.
6 Q. Well, we can see --
7 A. Ordinarily -- ordinarily you circulate them to both
8 sides, and he did not circulate this to us.
9 Q. Well, we can see that what was discussed is precisely
10 the agenda in the invitation letter that he had sent to
11 you shortly before the meeting; correct?
12 A. I don't know if it's precisely, but it covers some of
13 the topics that are in the agenda, but they were not
14 discussed at that OECD meeting, at that precursor to the
15 OECD meeting, sorry.
16 Q. Then if we look at the paragraphs that follow, we can
17 see that you and Ms Mruskovicova explain the steps that
18 are being taken to try and gain control of your
19 concessions with guards; yes?
20 A. Yes, as I say, there are elements of truth to this but
21 this is not how it was discussed and it was certainly
22 not at this meeting.
23 Q. And it was envisaged at this meeting that there would be
24 a series of follow-up meetings, although in fact only
25 one follow-up meeting took place; do you recall that?
[Page 110]
15:04 1 A. I recall a meeting where it was discussed there would be
2 follow-up meetings, and in fact, it is true only one
3 follow-up meeting occurred.
4 Q. And nowhere in this meeting --
5 A. I recollect.
6 Q. -- is there a discussion of OECD and tags and so on
7 which you suggested to the Tribunal a moment ago was the
8 sole topic of this meeting?
9 A. I'm talking about the meeting on October 30th. It seems
10 to be a hodgepodge of a number of meetings.
11 The October 30th meeting, we were completely consumed
12 with the OECD delegation coming to Kigali and what the
13 message was on the Rwanda side, and us as the mining
14 association, how we would be representing those issues.
15 Q. You say that, but that's not even --
16 A. (overspeaking) -- I'm sorry.
17 Q. You say that, Mr Marshall, but that's not even
18 consistent with your witness statement. Let's go back
19 to paragraph 38. Nothing to do with OECD and tags and
20 so on, not even mentioned in paragraph 38. All you do
21 is make a suggestion, an inaccurate one --
22 A. We're addressing here the long-term licence issues. We
23 had other meetings, we had other discussions with him
24 which are not referred to in the witness statement.
25 Q. You say on October 30th, that's the same date:
[Page 111]
15:05 1 "... we met Minister Evode and again asked when we
2 would be issued the long term licence agreement. He
3 assured us that negotiations on the language of the
4 agreement would be continuing shortly at the RDB
5 offices."
6 Just pausing there, that evidence is inaccurate,
7 isn't it, because we can see from the minute that he in
8 fact told you it was time to get a new licence and that
9 you should focus on two concessions; yes?
10 A. You're sticking to a false narrative. The language in
11 this paragraph talks about what was going to happen with
12 the long-term licence. The purpose of the October 30th
13 meeting was only OECD. He may have made comment: Rod,
14 please be patient, you know, this is going to all work
15 out. The minutes that you have from the October 30th
16 meeting never happened, not on October 30th, and I think
17 they are mischaracterisations of a later meeting.
18 Q. Now, we agree, I think, that there was only one
19 follow-up meeting and the reason that there was only one
20 follow-up meeting was that at that meeting you were
21 insistent that NRD should try and hold out for all five
22 concessions for future licences?
23 A. That never came up in any meeting I've ever had. Nobody
24 ever said: Rod, we want you to take two instead of five
25 or four instead of five or one instead of five. Nobody
[Page 112]
15:06 1 ever did that.
2 Q. Well, they did.
3 A. Dr Michael's letter from 2012 says that he had that
4 conversation with me in his report to the Minister.
5 That conversation never happened.
6 Q. Well, it was confirmed --
7 A. (Overspeaking) deferred.
8 Q. That conversation was confirmed --
9 A. It was not confirmed.
10 Q. -- (overspeaking) in time going backwards, Mr Marshall,
11 but that conversation --
12 A. It was not confirmed.
13 Q. Listen to the question --
14 A. He said "I prefer(?) it", as you read in my letter.
15 It's not the same thing.
16 Q. That conversation was confirmed and that position on the
17 part of the government was confirmed by
18 Minister Kamanzi's letter in January 2013 that we looked
19 at, and it's being confirmed again at this meeting by
20 Mr Imena; correct?
21 A. No. No. As you'll recall, Minister Kamanzi's letter
22 says: I understand from Dr Michael you were offered two
23 of the five or you would take nothing, is the threat,
24 and therefore since you're not willing to take two of
25 the five, then you take nothing. And that never
[Page 113]
15:07 1 happened. That conversation with Dr Michael, the
2 precursor conversation never happened. I was never
3 offered two. I was never offered five. I was never
4 offered any of them. I was offered a long-term
5 concession licence.
6 You can include lots of things in a commercially
7 reasonable long term concession licence, but that's not
8 what this process was.
9 Q. Now, despite Mr Imena telling you again in October 2013
10 that your licence had expired and you needed to be
11 applying for new licences --
12 A. No, 100% he did not say that in that meeting.
13 Q. -- you didn't in fact do so for nearly a year; that's
14 correct, isn't it?
15 A. No, that never happened. That conversation never
16 happened in that meeting.
17 Q. Now, I'm going to move to 2014 and you're aware, aren't
18 you, that between February and May 2014, the previous
19 2008 Mining Law was repealed and a new 2014 Mining Law
20 came into effect; correct?
21 A. I'll take your word for it.
22 Q. Don't worry, this isn't a memory test in that respect.
23 By 2014, you accept, don't you, that you didn't have
24 any existing licence because your last extensions
25 expired in October 2012?
[Page 114]
15:08 1 A. No, we were treated for all purposes of law as long-term
2 concession holder as all other long-term concession
3 holders were being treated. We were de facto long term
4 concession holders. We were waiting for performance by
5 the Rwanda Government.
6 At this time, I should add, Minister Evode decided
7 that Ben Benzinge was the owner, so he stopped our
8 tagging. We couldn't understand it. We were shut down
9 and we were the only people that that process applied
10 to. Nobody else was ever --
11 Q. Again, Mr Marshall, I'm going to stop you, because that
12 is not remotely connected to an answer to my question.
13 We are going to come onto the tagging questions, so you
14 will get your opportunity. Please focus on my
15 questions.
16 Now let's go to C-063. This is a letter from
17 Mr Imena written to you in April 2014 inviting you to
18 negotiate new mining agreements under the new law. Do
19 you see he says in the second paragraph:
20 "In this regard, the Ministry of Natural Resources
21 would like to call your company (NRD ... Limited), as
22 a former holder of mining licences over the above
23 mentioned concessions, to renegotiate new mining
24 agreements, under the terms of the new regulations."
25 So we're now in April 2014, and by that stage you
[Page 115]
15:10 1 hadn't applied for any new licences, had you?
2 A. We fully applied for long-term mining licences under the
3 old law. I see that he is making a representation that
4 under the new law that those contracts are deemed void.
5 That was not our interpretation. As far as we were
6 concerned, our contract was fully executory. We had
7 performed. We were waiting for Rwanda to perform.
8 Q. Now, can we go to paragraph 39 of your witness
9 statement, and keeping that -- FTI, if you could keep
10 the previous letter on the screen as well so we can see
11 both at the same time. You say in paragraph 39:
12 "On April 2, 2014, Minister Evode invited NRD to
13 negotiate the terms of the long term contract."
14 Where do you say in this letter Minister Evode is
15 inviting you to negotiate the terms of a long-term
16 contract?
17 A. "In this regard, the Minister of Natural Resources would
18 like to call your company ... to renegotiate new mining
19 agreements..."
20 Q. He's not saying anything about a long-term contract, is
21 he?
22 A. Well, do you mean does it say the words "long-term
23 contract"? No, it does not say the words "long-term
24 contract".
25 Q. And you didn't apply --
[Page 116]
15:11 1 A. (Overspeaking) before that under our existing contract,
2 we were still treated, for all legal purposes as
3 a long-term large-scale mining concession holder as
4 defined by the law.
5 Q. And you did not apply for new licences in response to
6 that letter, did you, and had to be chased in August
7 before making a new application in September of that
8 year; correct?
9 A. We certainly were never asked for a new application.
10 I don't think this letter is a request for a new
11 application.
12 Q. Now, I'm going to come back to that point, but I first
13 want to deal again with Mr Benzinge, because by this
14 stage we're in the middle of the --
15 A. The negotiations would be chaired by the Rwanda
16 Development Board for renegotiation of the mining
17 licences -- mining agreements.
18 Q. I'm going to come back to that point in a moment. First
19 I want to go to Mr Benzinge, because we're now in
20 mid-August -- sorry, the middle of 2014. Now, you will
21 recall, we were looking at documents relating to
22 Mr Benzinge's attempts to have the RDB change the
23 registered information in August 2012, and as we agreed,
24 he subsequently commenced an arbitration. That
25 arbitration came up for hearing in April 2013; correct?
[Page 117]
15:13 1 A. Yes.
2 Q. And if you go to C-144, there's a letter here from you
3 to the Arbitration Centre in Kigali, addressed to the
4 chairman of the Arbitration Centre, in which you sought
5 to object to the arbitration hearing by this letter
6 which you sent only the day before the hearing; correct?
7 A. That was the process.
8 Q. You had been on notice of the hearing for some time
9 before --
10 A. Our lawyer, Alloys Mutabingwa was giving us instruction
11 on what this letter should say. As far as I can recall
12 it, he actually drafted this letter and it was submitted
13 timely.
14 Q. You had been on notice of the hearing for some time
15 before that, hadn't you?
16 A. Yes.
17 Q. And having sent this letter to the chairman of the
18 Arbitration Centre, you didn't then attend the
19 arbitration hearing, did you?
20 A. That was the process. You submitted an objection the
21 day before the hearing, under their law, and you do not
22 appear.
23 Q. You also -- NRD had been aware of the arbitration itself
24 from an early stage, hadn't you, and you had
25 participated in court proceedings relating to the
[Page 118]
15:14 1 constitution of the panel; correct?
2 A. I'm sorry, where are you reading from?
3 Q. I'm not reading from anything, I'm asking if you
4 remember?
5 A. I'm sorry, you'll have to ask me again.
6 Q. I'll put it again. NRD had been aware of the
7 arbitration from the outset; correct, and it had
8 participated in court proceedings relating to the
9 constitution of a Tribunal?
10 A. Yes. Both. We had objected on numerous grounds because
11 it was without merit and we went to court to be able to
12 argue that it was without merit, and no basis for
13 an arbitration.
14 Q. Just to be clear, you didn't object to the idea of there
15 being an arbitration. The dispute, we can see from the
16 description of it, was as to the constitution of the
17 panel, in particular, NRD's --
18 A. No --
19 Q. Sorry, just let me finish the question and you can tell
20 me if you think I'm wrong.
21 NRD's position was that there should be three
22 arbitrators, Mr Benzinge's position was that there
23 should be one.
24 A. Two separate issues. First, we objected that there
25 should be any arbitration. Secondly, the court, as
[Page 119]
15:15 1 I had been told, said: no, there will be an arbitration.
2 Fine, then we went back and objected as to what
3 constituted -- who the arbitrators should be.
4 Q. Now, if we go to the award itself, we have that in
5 R-013.
6 A. So, just to be clear, we objected to Nelly, we were
7 informed that we should not attend, and then Nelly
8 issued this order after listening to Mr Benzinge alone.
9 Q. Let's go to the award, R-013. Now, starting on the
10 second page of the award, you see there that the --
11 excuse me one moment.
12 A. Ordinarily the arbitration authority would suspend the
13 arbitration until a determination could be made about
14 whether our objection to the suitability of Nelly was
15 appropriate or not. They did not do that, and that's
16 the reason that the arbitration went ahead without us.
17 Q. You can see what the arbitrator found, which is that the
18 arbitrator -- just pausing there, this suggestion that
19 you went through the right procedure to notify
20 the chairman of your objection and then didn't appear,
21 and that's your justification, that wasn't something you
22 pursued on appeal, as part of your grounds of appeal to
23 either of the appellate courts, is it?
24 A. I think we did, but I -- I don't remember concretely.
25 It's not something --
[Page 120]
15:17 1 Q. We have the judgments on both appellate courts in the
2 bundle and that point was never suggested as being
3 a point.
4 A. I would be very surprised.
5 Q. So if you had made the correct ground of objection to
6 the arbitrator and it had not been considered, then
7 that's obviously a point that would have been
8 an available point of appeal, but it's one you didn't
9 take; correct?
10 A. No, that's hypothetical. I don't know about it.
11 Q. Let's look at what actually happened. We can see from<
[Page 149]
16:26 1 A. No, not with regard to this case. Bailiff Bosco was 2 exceeding his authority for several months already at 3 this point. Pascal had been a contract employee of 4 HC Starck before we got there, so this was a Starck 5 liability that was now our responsibility. He is the 6 nephew of the Minister of Defence, and he brought 7 a claim for wrongful dismissal and was awarded the 8 unprecedented sum of $120,000, when an average judgment 9 for such claims is $2,000. He was by far the largest 10 recipient of a wrongful termination claim. 11 So Jean Bosco, Bailiff Bosco, began seizing 12 different assets from NRD, claiming that they all had to 13 be -- to satisfy this debt which was largely, as we saw 14 it, a political calculation by James Kabarebe and 15 therefore we objected and we were not cooperating with 16 the bailiff at that point. 17 Q. Now just looking at what you said there -- 18 A. At the time he had already seized more than $120,000 at 19 this point. 20 Q. -- from the position of the bailiff he was at all points 21 acting lawfully and on the basis of court judgments that 22 he had, wasn't he? 23 A. No, he was not. 24 Q. And afterwards, leaving aside that claim, he was also 25 appointed in 2014 as bailiff to execute on Mr Benzinge's
[Page 150]
16:27 1 judgment and the judgment of some 25 former employees; 2 correct? 3 A. Well, but your characterisation is a little misleading. 4 He is hired as a debt collector by these individuals. 5 He has a contract with them. It's not 6 a court-appointed -- while his function is 7 court-appointed, his job on behalf of any debt-holder is 8 by matter of contract. So he went around and was able 9 to gather up these individuals. As I say, he would 10 never provide us with any court documents or any 11 judgment information. We never knew what it was about. 12 Q. He was enforcing on judgments that he had, wasn't he? 13 A. He had been contracted by some debt holders to enforce 14 on judgments and went way beyond his authority. He 15 didn't follow any of the due process rules. 16 Q. And I'm going to suggest that at every stage, Mr Bosco 17 was following the due process rules and he was acting 18 entirely within his authority as bailiff executing 19 judgments, and that's right, isn't it? 20 A. Sorry, you said you're going to make that argument. 21 It's not possible, but you can try. 22 Q. Well, let's look at paragraph -- first, I'll say the 23 creditors who instructed Mr Bosco were not the only 24 creditors. NRD also owed money to Minerals Supply 25 Africa; correct? We've looked at that yesterday.
[Page 151]
16:29 1 A. No, we had a line of credit with Minerals Supply Africa. 2 We did not owe them money. There was nothing due under 3 that line of credit. 4 Q. If you go to R-115, this is a legal letter, essentially 5 a letter before action, from Minerals Supply Africa. If 6 you could scroll down, please: 7 "We act for and on behalf of our Client Minerals 8 Supply Africa ..." 9 And: 10 "With reference to a reliable documentation, it 11 appears to us that you have failed to reimburse to our 12 Client the outstanding balance of USD 601,836..." 13 So by this point, you have run up a debt to Minerals 14 Supply Africa of US$601,000; correct? 15 A. That's what it says but that's not correct. 16 Q. Coming back to Mr Bosco, can you go to R-074? 17 A. Can I explain what this is about or do you want to move 18 on? 19 Q. I would like to move on. Could you go to Mr Bosco, 20 R-074. This is a notice from Mr Bosco to all of you, 21 Ms Mruskovicova, and also Mr Benzinge, as 22 representatives of the company, requesting that you 23 present a letter of attorney, which would permit you to 24 speak on behalf of the company. And what he is doing in 25 this letter -- can you just scroll down, please, FTI --
[Page 152]
16:30 1 he's informing you about an auction that he intends to 2 hold, and he identifies indebtedness he is seeking to 3 satisfy, and it includes 28 people with individual 4 claims, and a claim from the Rwanda Revenue Authority 5 representing over a million francs; yes? Do you recall 6 that? 7 A. Absolutely not. This was prepared in preparation for 8 this hearing. 9 Q. So you're suggesting that this was another fabricated 10 document, are you? 11 A. Yes, I do. And it was certainly never delivered to us. 12 If he prepared it and put it into his filing cabinet 13 I wouldn't know. I was never, until this very moment, 14 aware that he claimed to represent the Rwanda Revenue 15 Authority. 16 Q. He was -- this is one of many examples and he explains 17 them in a witness statement, where he is acting in 18 a regular manner and observing his duties as bailiff; 19 yes? 20 A. All bailiffs are contract bailiffs. Did he receive 21 a contract from the Rwanda Revenue Authority? I never 22 heard it. I don't know -- and I'm sure that the 28 23 people -- we don't know any of these. He never 24 delivered any document to us which would give us 25 evidence of any indebtedness. The Pascal decision we
[Page 153]
16:32 1 knew from the court, but all the rest we did not. 2 Q. Can we go to C-071. This is a letter from you to 3 Mr Busingye. 4 A. No, this is to Johnston. This is the Minister of 5 Justice. 6 Q. Sorry, Mr Marshall. So, looking at the first three 7 paragraphs of this letter, you are updating Mr Busingye 8 on what you describe as the criminal acts of 9 Ben Benzinge and others, and you refer to taking 10 possession of the property, and then you refer to 11 complaints to the Ombudsman office, and then you say: 12 "We had discussions there today and as a result of 13 these discussions we were advised to send you this 14 request. Bailiff Nsengiyuma tried to have an auction of 15 the entire property of Natural Resources Development 16 Rwanda Ltd last Friday. That auction was cancelled 17 because nobody came to the announced place." 18 Now, just pausing there, you were aware of this 19 auction that I've just taken you to in the letter 20 because you deal with it in this letter from you? 21 MR COWLEY: Mr Hill, before he answers, I think you are 22 going to like this interruption again, I think you want 23 to correct, you started that question by saying the 24 letter was to Mr Benzinge. I don't think you meant 25 that. You might want to just look at the transcript.
[Page 154]
16:33 1 MR HILL: I hope I said Mr Busingye. 2 MR COWLEY: I'm sorry, I apologise. I misheard you. 3 A. It's easier to call him Johnston, that's what he's 4 colloquially called. 5 MR HILL: Then you say: 6 "Ombudsman office told us to write you a formal 7 request to suspend the auction until this case is 8 solved. If the auction goes ahead and all assets are 9 sold the damage will be un-repairable. 10 "This is a formal request to suspend the auction of 11 the property of Natural Resources ..." 12 And what you neglect to mention in this letter was 13 that Mr Bosco was simply acting as a bailiff enforcing 14 court judgments that he had; yes? 15 A. No, sorry, two corrections: one, his job is to act as 16 a debt collector. His title is bailiff. He collects on 17 behalf of any in his function, he could be collecting 18 on behalf of any legal debt. In this case, he claimed 19 that they were court orders. There's a highly 20 regimented process in Rwanda where you are given notice, 21 you are given information about what the claim is, 22 you're given the opportunity to discuss with whoever the 23 claimant may be. That has its own internal formal 24 process. He then has to give additional notice. He has 25 to be able to say whether agreement was reached or not.
[Page 155]
16:35 1 He then has to give notice of an auction. There are 2 commercial terms for that auction. And there has to be 3 so many participants, there has to be such and such 4 a percentage to the value. Following up that if there 5 is a sale, pursuant to such an auction, he has to 6 provide details and evidence of what happened to the 7 proceeds. 8 Never did he do even the first of those steps. He 9 comes around and is -- acts like mafia and waves 10 a document and says: I have a list of people who you or 11 Starck before you owe, and that's as far as he ever 12 went. There was never a legitimate process with Bailiff 13 Bosco. 14 Q. Can you go over the page here. You say: 15 "This letter is also to respectfully request that 16 your office suspend the mandate of Bailiff Nsengiyuma 17 Jean Bosco with respect to NRD and its assets until the 18 matter of the Bailiff's fraudulent sale of NRD minerals, 19 as reflected in the attached Court decision, is fully 20 investigated and resolved." 21 And that's a reference, isn't it, what you call the 22 fraudulent sale of minerals, isn't that a reference to 23 the MSA story that we've already looked at where Bosco 24 was in fact -- 25 A. No.
[Page 156]
16:36 1 Q. No? 2 A. No, that's a different transaction. 3 Q. But at all times -- 4 A. In that case he was able to seize the minerals, bring 5 them outside the compound, the MSA compound, and he 6 claims to have had an auction and we were never given 7 notice or information about it, and he went off with the 8 money. We don't know what happened to the proceeds. 9 Q. Well, that's not right. We know that the MSA minerals 10 is just one story. We know how it ends in the end, but 11 we also know at all stages in that story, Bosco was 12 acting in accordance with his duties, and his perception 13 that these were NRD minerals because they had been 14 tagged by NRD; correct? 15 A. No, you're confusing two incidents. He tried -- it's my 16 recollection, it may have been more than twice -- but he 17 tried to seize minerals at the MSA compound on more than 18 one occasion. 19 This one I think is referring to that instance where 20 he had -- he was able to get the minerals outside of the 21 MSA compound and he had an auction on the street. We 22 were never informed, we were never consulted on any -- 23 we have no idea what happened to the proceeds. 24 Q. Now, after receiving this letter from you with your 25 description of what Mr Bosco was up to, Mr Busingye, the
[Page 157]
16:37 1 Justice Minister, did in fact suspend Mr Bosco's powers 2 to carry on with his execution, didn't he? We can see 3 that at bundle C-072; do you remember that? 4 A. He did temporarily. 5 Q. And if we look at this document, C-072, that's in 6 Kinyarwandan, I'm not sure if the English is in the same 7 tab or not. It is. I think it might be in the same 8 tab. 9 A. Don't forget, I want to alert you that this date, so 10 this is July, they're still in possession of our entire 11 company. So -- 12 Q. Just focus on my questions, if you would? 13 A. I have to interject, because I'm not even sure that they 14 consider us to be owners of the company at this point. 15 You can say that: well, fine, you made these complaints, 16 but I'm not sure we were recognised as the owner at this 17 time. 18 Q. Just looking at here, what the Justice Minister in fact 19 says is he addresses Bosco and he says: 20 "Based on the letter of 14 July 2014 [that is the 21 letter we just looked at] addressed to me by NRD Rwanda 22 asking me to stop the auction of their assets that 23 you were anticipating to carry ... on ... and to stop 24 your projects." 25 And then he says:
[Page 158]
16:39 1 "After examining all issues that are based on the 2 way execution of judgments lost by NRD is being carried 3 out; after hearing what different bodies who observed by 4 closer the activities you have carried out related to 5 the execution of judgments between NRD and Ben Benzinge 6 and others that they mention, I find it concerning in 7 the way these judgments are being executed. 8 "For that reason, based on the responsibility of the 9 Ministry of Justice/Services of the Attorney General to 10 establish and inspect the execution of laws and justice 11 to all, and in order to respect justice for all 12 beneficiaries of the execution of judgments against NRD, 13 namely NRD themselves, Ben Benzinge, employees who 14 brought and won legal cases against the company ... 15 "You are currently suspended from all activities to 16 do with execution of judgments against NRD Rwanda ... so 17 that the status of issues in question may be examined to 18 know if they are disputes to be brought to the courts, 19 or functionality and management, or mindsets among all 20 who had interests in the case so that you will be able 21 to continue in peace the activities you are carrying 22 out." 23 So it's a temporary suspension, based on, in part, 24 your letter, and while further investigation is carried 25 out; correct?
[Page 159]
16:40 1 A. That's right. We're very grateful that he was willing, 2 for this purpose, to consider us at that time the owner 3 of NRD. 4 Q. And then we go to C-073. This is a letter from -- this 5 is after further investigation from the Minister of 6 Justice. He says -- 7 A. What's the date of it, can you tell me? 8 Q. This is 26 August. So it's about -- just over a month 9 later. 10 A. 26 August. 11 Q. He says: 12 "Dear Madam/Sir. 13 "Reference is made to my letter ... dated 14 [23 July 2014] which suspended temporarily the execution 15 of judgments and arbitration award rendered against NRD 16 Rwanda Ltd. 17 "Reference is also made to a number of judgments 18 (around fifteen) and an arbitration award pronounced 19 against NRD Rwanda Ltd annexed to the present letter. 20 "Further reference is made to lots of correspondence 21 that you have addressed or copied to me recently; 22 "In light of the above, we have studied the problem 23 and come to the conclusion that NRD Rwanda... has: 24 "(a) Corporate governance issues which it is their 25 duty to settle or seek resolution of the pending ones
[Page 160]
16:41 1 through legal channels. Over this the Attorney General 2 has no power. 3 "(b) Legitimate judgment creditors who won cases 4 against the company and must be paid. 5 "In respect of (a) above, I find the Attorney 6 General has no power to enforce solutions. Legal 7 channels exist." 8 And Mr Bosco's powers -- sorry, I should just say: 9 "In respect of (b) you are kindly advised to 10 voluntarily execute the judgments and award because, 11 short of that, the company's seized assets will be 12 liquidated to settle these judgments debts." 13 So he was explaining that on investigation the 14 Ministry of Justice was satisfied that these were 15 legitimate judgment creditors and therefore that Bosco 16 was entitled to execute; correct? 17 A. No, because you've lost the timeline here. What has 18 happened -- our company was seized about June 11th, 2014 19 by Bosco and Ben Benzinge. During the next 20 three months, they looted our concessions, they stole 21 our assets, and whether he called it execution or not, 22 he sold our assets. 23 By the end -- by the middle of August -- at the same 24 time as this is going on we're giving assistance to the 25 military because they were interested in procurement of
[Page 161]
16:42 1 military assets from the west, and that will become 2 important in a second. The military was with Bosco and 3 the bailiff. We were dispossessed of our entire 4 company, we were not recognised as owners for any 5 purposes, so the fact that at least nominally the 6 Minister was willing to recognise us for purposes of 7 these communications, we were appreciative. 8 During that 90 days or -- sorry, 60 days, they 9 looted the concessions, they looted our office, they had 10 riots, one man was -- (answer cut off by questioning). 11 Q. Mr Marshall, I'm going to stop you -- 12 A. I have to insist -- 13 Q. -- because this is not an answer to my question? 14 A. -- I have to insist -- you won't understand this letter 15 unless I explain this, please bear with me for two more 16 minutes. 17 Q. No, it's not the question -- 18 A. I'm sorry, you have to understand what happened. This 19 came -- this letter is after we got our concession back 20 and after the killing stopped. 40 people were murdered. 21 40. We were out of the concession area, we were left 22 alone. Do we suspect that maybe the military took us 23 out of there and gave it to Benzinge while the killing 24 was going on? We don't know. It was absolutely the 25 most terrifying time in my life.
[Page 162]
16:44 1 Q. Mr Marshall, what the Minister of Justice is explaining 2 is that his department have examined the issues and they 3 are satisfied that these were legitimate judgment 4 creditors and therefore that Bosco was entitled to 5 execute; correct? 6 A. No. Their execution was on our concessions. They took 7 over $800,000 worth of equipment, fencing, other 8 supplies. That was an execution. 9 Q. And all of Mr Bosco's actions at each stage were the 10 lawful actions of a bailiff, weren't they? 11 A. No. We never got one notice. We still don't know what 12 those claims were. We know the Pascal claim. 13 Q. And they arose because of a series of judgments against 14 NRD as a result of which NRD was a judgment debtor? 15 A. A series of so-called judgments which were not made 16 available to us. We have no idea who they were or what 17 those claims were, and the seizure of our NRD 18 concessions wasn't taken, in the sense of that was how 19 he was going to auction assets to pay the creditors, and 20 it was far less, it was maybe $30,000 in total, and 21 instead they took the whole concession and sold some by 22 auction, some by theft, some by whatever means, and only 23 on August 22nd did we get it back. The delegation 24 arrives with the military on the 24th, and the military 25 calls us up and says: please come and take
[Page 163]
16:45 1 responsibility for your concessions, and at that point 2 the killing stopped. 3 Q. That answer, I don't accept any of that at all, but it 4 has nothing to do with the questions I asked, and 5 I'm going to move on. 6 I'm now going to go back to the topic of -- 7 A. It's a bailiff seizure; isn't that responsive? 8 Q. I'm going to go back to the topic of the licences. 9 You will recall that you had been invited 10 in April 2014 to apply for licences under the new rules. 11 We looked at that earlier; yes? Do you recall that 12 letter? 13 By August 2014 -- 14 A. Nothing came up, I'm sorry. 15 Q. By August 2014, you had not made any application for new 16 licences, had you? 17 A. We had been making -- our application goes all the way 18 back to 2010. No document came up. I don't know what 19 you're referring to. 20 Q. Please go to C-064. 21 This is a letter from Mr Imena to NRD in August 22 2014, and you can see that it is addressed to the 23 company and not to any individual at the company in 24 particular; do you see that? 25 A. Yes.
[Page 164]
16:46 1 Q. He refers in the second paragraph to the fact that the 2 licence has expired: 3 "Further reference is made to the Letter of the 4 Honourable Minister of Natural Resources, 5 dated September 13, 2012, extending NRD's ..." 6 A. Sorry, what's the date of the letter? 7 Q. This is August 2014. 8 A. What day in August? 9 Q. I will come back to you and tell you the answer to that. 10 I don't think it matters for my questions but tell me if 11 you think it does when I ask them. 18 August. 12 Now, he says: 13 "Further reference is made to the Letter of the 14 Honourable Minister of Natural Resources, 15 dated September 13, 2012, extending NRD's licence for 16 three months expiring in October 2012." 17 So he's referring there to the fact that the licence 18 has expired, yes, in October 2012? 19 A. He says that that extension expired in October 2012. 20 Q. Yes. And then a little lower down the page -- 21 A. I don't know that he's saying that all of the licences 22 have expired. We interpreted it as executory, as 23 I think I told you. 24 Q. A little further down the page, he then says: 25 "Considering the fact that the negotiating process
[Page 165]
16:48 1 for the possible renewal of the mining licence for the 2 above mentioned concessions has stalled and did not 3 yield any positive result since its initiation in 4 2012..." 5 Then he refers to the new Mining Law, and then he 6 says at the bottom: 7 "... I am requesting NRD Ltd to re-apply for the 8 licences of some or all of the former mining areas. The 9 list of what is required in this application is attached 10 to this letter. Each concession is a separate entity 11 and should be applied for individually ... this 12 application should be done within 30 days ... each 13 application will be assessed on its own merit. It is 14 key to note while applying that the government is 15 looking for optimal investment in each of the mining 16 areas mentioned above." 17 So he's requesting you again to apply for licences; 18 correct? 19 A. It reads that way, under the new law. 20 Q. He makes clear that the application should be made 21 within 30 days, will be assessed on its merits, and 22 should be done separately for each of the concessions; 23 correct? 24 A. That's what I read. 25 Q. And he also provided an annex, didn't he, which gave you
[Page 166]
16:49 1 a detailed list of what was required to support the 2 application; correct? 3 A. I don't see it, but he may have. 4 Q. We can go to it. If FTI could keep going down, you'll 5 see the annex, which might prompt your memory. Do you 6 see there? 7 A. Okay. 8 Q. So that was the list of targets you had to hit for the 9 application? 10 A. It may well be. But you will understand, of course, 11 that there were two issues we were facing at this time. 12 One, we did not have any access to any of our 13 documentation. We were strictly custodians of the 14 mining concession at the instruction of the Rwanda 15 military. We had no other documentary evidence of 16 anything. This letter was sent to many companies but 17 not to the concession holders, except for us. Rutongo 18 was in exactly the same position and did not have to 19 re-apply. 20 Q. Rutongo, by this point, had a well advanced licence 21 application which had been on the cusp of receiving -- 22 for some time, had been on the cusp of receiving -- 23 long-term licences. They were in a completely different 24 position from you? 25 A. That's absolutely untrue. They didn't receive their
[Page 167]
16:50 1 licence until the beginning of 2015 and you can question 2 Kevin on it. 3 Q. And you've alleged that Minister Biruta told you that 4 the re-application was a formality, but that's not true, 5 is it? 6 A. We had the conversation with him, he absolutely assured 7 us that we had been mistreated, and in fact, his words 8 were, as I recall: as long I am minister, you are not 9 going to lose your long-term concessions. 10 Q. What he in fact would have said is as long as you comply 11 with the law you would be treated fairly? 12 A. No, he did not. It was a very different conversation. 13 I beg to differ with you. You were not there. 14 Q. And Mr Imena's letter made it clear that each 15 application would be assessed on its own merits, so you 16 had to make an application that hit the targets that he 17 had identified and would be considered on its own 18 merits; correct? 19 A. I don't see that, but -- 20 Q. That's what he said in the letter: each application 21 would be assessed on its own merit. 22 A. Yes, you know, for me, we were being treated 23 differently. We were being asked to re-apply for 24 something that we had already fully satisfied our 25 obligations under.
[Page 168]
16:51 1 Q. And you had no doubt at all, did you, what was required, 2 because you were told specifically what was required? 3 A. No, that's simply not true and you weren't there. You 4 know, we had a terrible time with Minister Evode because 5 he was off on his own frolic. We had started with 6 an indulgence, yes, we'll bring money, we'll bring 7 investment, and now they're again looking for 8 an opportunity, an excuse, to be able to say: oh, you 9 failed and now we're going to keep everything, without 10 compensation. 11 Q. Well -- 12 A. Rutongo, for legal purposes -- 13 Q. Just to be clear, Mr Marshall, my question is you had no 14 doubt about what was required because he told you in 15 this letter what you had to do, and gave you a list of 16 targets to hit, didn't he? 17 A. I understand, and I'm telling you that we had 18 communications with his office that this is not -- it 19 must be intended for other people but not for us because 20 you know us, you know what we have invested, you know 21 what research we've done and what is this formality. 22 Q. Now you've just invented that? 23 A. No, that's why we went to Minister Biruta and asked him 24 the question. He gave us absolute unconditional 25 assurance we were not going to lose our licences.
[Page 169]
16:52 1 Q. You just invented this story about other people in 2 Minister Imena's office telling you it was a formality 3 or whatever you just said, because the only evidence 4 you've given before is that Minister Biruta said 5 something, and now you've invented something about other 6 people in Minister Imena's office -- 7 A. I'm sorry, what was my quote, I don't ... 8 Q. Let's look at your quote. You said: 9 "I understand and I'm telling you that we had 10 communications with his office that this must be 11 intended for other people but not for us." 12 You have just invented that, haven't you? 13 A. No, we believe that to be true. This is a generic 14 letter written for people who have just arrived in the 15 country, not for somebody who has already been here for, 16 at this point it was seven years. It's written as if 17 they don't even know who we are or what our name is. 18 I would like to point out to you that, for example, 19 Musha, another concession holder, arrived and three 20 months later was awarded the 30-year concession without 21 any investment or any research so there's very disparate 22 treatment between people who are applying for licences. 23 At this point we had a problem with Dr Michael and 24 they were trying to create a false test process which 25 they would then declare we failed.
[Page 170]
16:54 1 Q. You say a false test process, but you've just said, even 2 on your own evidence, that this is something that other 3 people were required to comply with. It's not bespoke 4 to you, is it? 5 A. As if you'd never known them before. They've known us, 6 they've seen our work, they've seen our investment. 7 Q. But your work has been considered inadequate before and 8 you have been repeatedly told to apply to licences, 9 which you haven't done. 10 A. If your point were true then you would think that they 11 would have a narrowly tailored conversation about what 12 needed to be done differently. Not: please tell us your 13 name and do you have any bank accounts. 14 Q. I'm going to come back to the application you made. 15 Let's go onto the story of tagging because we're now in 16 the summer of 2014, and one of your complaints in this 17 arbitration is that from the summer of 2014, Mr Imena 18 was unwilling to provide tags to NRD for the mineral 19 tagging system; yes? That's one of your complaints? 20 A. Yes, I think it began in March -- well, the way the 21 tagging process worked is that some tags were -- 22 a quantity of tags, if there was a secure place in the 23 mine, would be kept at that mine site. So even though 24 Minister Imena instructed that no tagging be done on any 25 of our concessions anymore, it took some weeks before it
[Page 171]
16:55 1 fully kicked in and we were completely out of tags. 2 Q. Now, the tagging system was intended for licensed 3 operators, wasn't it? 4 A. All operating mines had tags. 5 Q. No, just answer my question. The tagging system was 6 intended for licensed operators, wasn't it? 7 A. All companies in our position had tags. 8 Q. If you go to Mr Niyonsaba's supplemental witness 9 statement at paragraph 16. 10 MR BRODSKY: Forgive me, that name one more time? 11 MR HILL: Niyonsaba. 12 MR BRODSKY: Thank you. 13 MR HILL: Paragraph 16. He is the man who is the Pact ITRI 14 man. He explains in paragraph 16 -- 15 MR BRODSKY: Supplemental? 16 MR HILL: Sorry, supplemental, I'm so sorry. 17 MR BRODSKY: That is, this is the supplemental. 18 MR HILL: Exactly: 19 "Tags are only issued to licensed mining 20 operations." 21 So the way the scheme works is you need to be a 22 licensed operator in order to have tags; yes? 23 A. We were the only mining operation in the history of ITRI 24 that had our tags withheld from us for no reason. 25 Q. Well, your licence had expired and you had been asked to
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16:57 1 apply for new licences and you hadn't done so. 2 A. All licences had expired. We were in exactly the same 3 position as every other company. 4 Q. You had been asked to apply for new licences and you had 5 not done so? 6 A. Rutongo was in the same position, they had no licence. 7 Q. Rutongo had applied for new licences, hadn't they? 8 A. With the same application we had given. 9 Q. Not remotely the same application you had given, because 10 your application had not been accepted and you had made 11 no renewed application as you had been asked to do by 12 this stage repeatedly, correct? 13 A. No, it's completely a misrepresentation of the fact 14 pattern and, more than that, you know, as Dr Michael 15 kept saying, look, these are half of all the mining 16 areas in Rwanda are being held by NRD, and by 17 withholding tagging from us, that meant effectively the 18 tagging system had no effect in Rwanda. 19 Q. And by the summer of 2014 you should have been applying 20 for a licence, shouldn't you, and you had been asked to; 21 correct? 22 A. You're misrepresenting, he didn't ask us for anything. 23 He said: Ben Benzinge owns your mines and therefore 24 we're not going to give you the tags. He later came up 25 with the argument that the tagging licence hadn't been
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16:58 1 applied for and he wanted to, as he put it, regularise 2 our licensing position. 3 Q. And one of the points about making an application for 4 a licence is that that's the process by which the 5 government gets to determine whether you're entitled to 6 a licence and whether you're a worthy licence-holder; 7 correct? 8 A. You'll have to rephrase the question, I'm sorry. 9 Q. One of the points of having a licence is it's a process 10 by which the government can make an assessment about 11 whether you deserve a licence and you are a worthy 12 licence-holder; correct? 13 A. Yes. Within the indulgence that we started off with 14 from the beginning: please come and invest and the 15 licence will follow. 16 Q. Mr Imena -- I'm sorry, I cut across you. Had you 17 finished? 18 A. Please. 19 Q. Mr Imena explained to you in September 2014 that there 20 were two impediments to him providing the tags. The 21 first one was that you did not have a licence, and 22 providing you with tags would just be encouraging you to 23 carry on as an unlicensed operator, making money out of 24 non-industrialised artisanal mining and not bothering to 25 apply for a licence, and that's --
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16:59 1 A. That's completely (overspeaking) -- 2 Q. -- that fairly summarises what you're up to, doesn't it? 3 A. Absolutely not. 4 Q. And that would be contrary to the scheme of the iTSCi 5 system, isn't it? 6 A. No, the iTSCi system is -- and I'm sorry, I don't want 7 to lecture you -- but the iTSCi system is tags are 8 withdrawn from those companies who violate iTSCi rules, 9 no other reason. We are the only company who on 10 Mr Evode's say so, had the tags withdrawn. No other 11 company in the history of the iTSCi programme did that 12 happen to. 13 Q. Now, the second point that Mr Imena made is that 14 Mr Benzinge had the benefit of this arbitral award, 15 supported by court decisions, and the effect of that was 16 that you were neither the lawful management nor the 17 correct shareholders of NRD, and that was a fair summary 18 of the consequence of the arbitral award, wasn't it? 19 A. No, obviously not, because the registrar didn't change 20 the registration. 21 Q. And Mr Benzinge -- 22 A. Mr Benzinge, at the end, before and after the 23 arbitration, still held 0.2% of all shares. Nothing 24 more. 25 Q. And at that point, Mr Benzinge was himself threatening
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17:00 1 proceedings if GMD issued tags to you, or to you as 2 purported controllers of the company, such that Mr Imena 3 was at that stage faced with competing claims, wasn't 4 he? 5 A. No, I never heard he was going to bring a claim but 6 I wonder if I had threatened to bring a claim whether he 7 would have reversed himself. So as I take it from your 8 comment, if you threaten suit, then they buckle and say 9 the owner is not the owner and we're not going to give 10 tags to anybody? 11 Q. It isn't a question of threatening suit, is it, 12 Mr Marshall -- 13 A. Well, it sounds like he's threatening suit. 14 Q. -- Mr Benzinge at that point had a Supreme Court 15 judgment which validated his possession, didn't he? 16 A. No, you just said that Mr Evode was faced with the 17 threat of a suit from Benzinge. 18 Q. Yes, he was faced with competing claims and one of the 19 claims on the other side to you was a claim from someone 20 who said he shouldn't be issuing tags to you because you 21 weren't the lawful controller of the company and he had 22 a Supreme Court judgment to back him up; that's fair? 23 A. No. Under Rwanda law, the registrar of a company 24 registry is the one who records who owns what. It's not 25 a matter of ongoing debate to be determined by
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17:02 1 a minister of mining. 2 Q. Now, that's your legal -- 3 A. We were the owners of the company; Ben Benzinge was not 4 the owner of the company. 5 Q. Mr Marshall that's your legal proposition about the 6 effect of Rwandan law, but that's actually not the 7 effect of the Rwandan law, is it? The judgment of the 8 RDB is not determinative, is it? 9 A. It's the first I've heard of it. 10 Q. Now, let's go to -- 11 A. On what basis do you say that? 12 Q. --R-203. This is the note of a meeting with Mr Imena 13 in September, and can we look at what -- 14 A. Can we say that the reverse is true, by your 15 supposition? 16 Q. I'm not answering your questions, and that issue on 17 Rwandan law is actually one of the legal matters for the 18 Tribunal so I can move on. 19 A. I just don't understand the point. What you're saying 20 is -- 21 Q. No, no, I'm not going to engage on debate in this, 22 Mr Marshall, I'm going to ask you about the next 23 document, which is R-203, and this is the note of the 24 meeting which you held -- 25 A. Well, no, I need to understand -- you're going to ask
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17:03 1 questions that's based on that question. What's the 2 point -- 3 Q. No, I'm not, I'm just asking you about what happened at 4 a meeting and I'm going to ask you to now go to the 5 minute of the meeting. R-203, this is the note of the 6 meeting with Mr Imena in September, and I'm going to 7 look at what you said at this meeting, and you can see 8 that the first discussion is about NRD and Benzinge. 9 I'm going to ask, can we go to page 2 of this minute. 10 We have here: 11 "Next discussed point was -- tags. NRD in its 12 letter (as attached) asked the Minister to provide tags 13 for the NRD concessions. Minister said that he will not 14 approve to provide the tags if NRD doesn't have licence. 15 NRD pointed out that from 2011 there is no licence and 16 NRD was allowed to mine and tag. Invitation for the 17 negotiations for the long term licence was sent from 18 Minister in April 2014." 19 And that's right. 20 "Then the Minister said that he received letter last 21 week from Benzinge that Benzinge doesn't want the 22 Minister to give NRD tags. Benzinge signed it as 23 'Managing Director of NRD'. NRD said that it makes no 24 sense if individual is sending letter and Minister 25 ignores the letter sent by Minister of Justice in which
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17:04 1 the bailiff, awards and judgments were suspended." 2 Now, just looking at that, you -- this idea NRD says 3 it makes no sense, you're referring there to the letter 4 that we looked at earlier where the Justice Minister 5 suspended execution; yes? We saw that earlier. 6 A. I wasn't at this meeting and I don't know. I would 7 prefer if you asked Ms Mruskovicova. 8 Q. Do you want me to -- that's fair enough. You weren't at 9 the meeting, I will -- it enables me to save some time, 10 I'll move on and I'll ask Ms Mruskovicova. 11 Now, in this meeting you'll see that what was 12 requested was an extension of time for making a licence 13 application, and the Minister refused the extension 14 saying that your problems were your own, not his, and 15 you should provide what you're able to in accordance 16 with the deadline and supplement it as necessary. 17 A. Well, I would suppose not being there, I can't be 18 sure, but I would suppose that that was a reference to 19 the fact that the government still had our offices and 20 we had no access to the documents that were being sought 21 in the application. 22 Q. Just so you can see, it's on the first page, this 23 particular part of the meeting is dealt with, and 24 that's -- it's just dealt with something at the second 25 half of that second paragraph.
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17:06 1 Now, it's right, isn't it, that you didn't request 2 this extension until this meeting which was on 3 16 September, only two days before the deadline; yes? 4 A. My recollection is they couldn't get a meeting until two 5 days before it was due. 6 Q. And you didn't request an extension until then, either 7 by correspondence or in a meeting; correct? 8 A. You'll have to ask Ms Mruskovicova, I don't know that. 9 Q. And the problems, as the Minister said, the problems of 10 getting into your Kigali office were indeed your own 11 problems, weren't they, because they resulted from 12 lawful court rulings that NRD was subject to; correct? 13 A. No. No. We were the only company in Rwandan history, 14 as far as we know, that was seized in its entirety for 15 a debt which was a tiny, tiny fraction of some of the 16 value of its assets. 17 Q. And the reality was that you and Ms Mruskovicova ran 18 much of this operation anyway as a briefcase operation, 19 largely out of your accommodation in Kigali, so you had 20 a great deal of access to material in any event; 21 correct? 22 A. No. 23 Q. And much of the material that was required, and we 24 can -- we'll go to some of it in a moment, but it didn't 25 even need access to company files because it involved
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17:07 1 acquiring it from third parties; correct? 2 A. No. 3 Q. For example, you were required to obtain tax clearances 4 and that was just a question of seeking confirmation 5 from the Rwandan Revenue Authority; yes? 6 A. No. We were not recognised at that time as the owner of 7 the company, you will recall. RRA would not speak to 8 us. 9 Q. And the reason that you did not obtain tax clearances is 10 not for that reason, nor because you didn't have access 11 to your office, but because NRD hadn't been paying its 12 taxes and owed unpaid debts to the Revenue and you could 13 never have got a clearance from the Revenue, could you? 14 A. No, that's a gross misrepresentation and that's slander. 15 Q. You knew very well that the Revenue regarded you as 16 having outstanding debts to it, didn't they? 17 A. No, as we talked about yesterday or the day before, 18 there was an allegation from the Rwandan Revenue 19 Authority that HC Starck had not accounted for some of 20 the money that it had paid to casual labourers, and 21 pursuant to which some amount of social security tax 22 would be due. That was the beginning and the end of the 23 dispute. There was no -- I'm sure that HC Starck 24 accountants and others were not wrong in their judgment. 25 The agreement we had reached with the Rwanda Revenue
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17:08 1 Authority was that they would come in and do a proper 2 audit, which they had still not yet done, and the matter 3 was being left to that. There was no other outstanding 4 debt, as far as I know. 5 Q. They regarded you as having outstanding unpaid debts and 6 would never have given you a Revenue clearance, would 7 they? 8 A. That's untrue and slanderous. 9 Q. Let's look at the application you did put in on 10 18th September 2014. We have it at C-084. Now, 11 although it's dated 18th August on its face, it's common 12 ground, and there's no dispute, that that's supposed to 13 read 18th September 2014, so this is a September 14 application. 15 If we look at the first paragraph, you say: 16 "This letter and the attached information are 17 submitted to you based upon the discussion you had in 18 your office on Tuesday, 16 September ... with our 19 Finance Director ... and our Director of Operations ... 20 By way of short explanation, the instruction in your 21 letter dated 18 August 2014 that the investors in NRD 22 should submit 'requirements' to you was puzzling. We 23 were glad to receive the letter by email (to our 24 personal accounts) but had been informed that this was a 25 mass-mailing to all licence-holders and that the
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17:10 1 information requested from us, as investors, would wait 2 for resolution of the claims by Mr Benzinge." 3 Now, you knew very well, didn't you, that the 4 request for the application had been directed at NRD, as 5 a company, and Mr Imena was not concerning himself with 6 any particular investors; correct? 7 A. No. Our understanding that that was a letter that was 8 being sent to everybody, that this was how they were 9 going to proceed with new licence applications and it 10 was a new process, for new arrivals to Rwanda. 11 Q. You knew very well, didn't you, that -- well, let's look 12 at the second page. So this is the information that you 13 give. You say, starting with the third paragraph -- 14 well, you start in the second paragraph: 15 "The contract provides for purpose of the agreement 16 and for the rights and obligations of the parties to the 17 agreement and authorises NRD to proceed with its 18 obligated activities ..." 19 And then you say: 20 "Article 2 sets out certain of the obligations of 21 the parties and Article 3/4 provides for NRD's rights to 22 obtain an automatic and exclusive right to mine for 23 cassiterite, wolframite and tantalum anywhere within the 24 mining concession areas for a minimum period defined by 25 statute for 'mining concessions' of a minimum of
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17:11 1 35 years, renewable. The definition of 'mining 2 concessions' is specifically noted in Article 10 as 3 being defined under 'existing Rwandan legislation'. 4 "NRD has completed its obligations under Article 2 5 and 3/4 and the agreement has endured to date and has 6 not been terminated. 7 "It is therefore, respectfully, incumbent now on the 8 part of the Government of the Republic of Rwanda to 9 grant the necessary mining rights for a period of 10 35 years renewable to NRD, hereinafter referred to as 11 the 'long-term licence'." 12 Now you didn't think at all that it was the case 13 that the contract provided for automatic right to mine 14 for 35 years, did you? 15 A. I think it's an error, it should say 30 years. 16 Q. You didn't think that either, did you? 17 A. Yes, "It shall have the right" is the language of the 18 original contract. 19 Q. And you knew that you had not satisfied the requirements 20 of Article 2 of the contract in respect of the reserves 21 and feasibility report, didn't you? 22 A. The representations from the beginning were the same. 23 We were always treated as the long-term licence-holder 24 as defined by law, we, as an indulgence started the 25 investment before we were granted the long-term
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17:12 1 concession agreement which we expected them to be 2 commercially reasonable. 3 Q. Nor had you submitted at any point -- 4 A. Everybody else got a long-term concession licence except 5 us. 6 Q. Nor had you submitted at any point a feasibility report 7 that was at all likely to be seen positively by the 8 government; correct? 9 A. No, we had submitted a feasibility report. The 10 feasibility report was for us to be able to determine, 11 as in any long-term licence application in the mining 12 industry, as the basis on which we determined whether we 13 would want to go ahead with our investment. 14 Q. You also knew, didn't you, it was wrong to say the 15 agreement had endured to date; correct? 16 A. No, we believed it had been endured to date. We had 17 fully performed on our side of the agreement and we were 18 just waiting for performance on their side. 19 Q. Now, coming on to the next paragraph, you refer to the 20 injection of funds. You say: 21 "In a period starting before the signing of the 22 above named contract to this date, NRD has to date 23 invested funds in excess of US$20 million into the 24 project." 25 We've been through the amounts invested and that
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17:14 1 statement was untrue; correct? 2 A. No, it was correct. 3 Q. You then attached some limited documents, and we'll go 4 through those in a minute, but it's right, isn't it, 5 that you didn't even purport to put in an application on 6 a concession by concession basis as you had been 7 requested to, correct? 8 A. We had fulfilled the terms of the original arrangement. 9 We had submitted an application in 2010. The 10 application was deemed sufficient. If they were asking 11 for additional breakdown of information then it had 12 never been clearly articulated to us in a way that said 13 it's an amendment to the original agreement where we had 14 fully executed. 15 Q. You were told what to do, which is to apply on 16 a concession by concession basis, providing the 17 information requested, and you didn't even attempt to do 18 so, did you? 19 A. I'm sorry, where are you reading from, or what period? 20 Q. I'm reminding you of a letter we looked at only a few 21 moments ago, which is Mr Imena's letter in August, 22 telling you specifically you had 30 days to apply on a 23 concession by concession basis and to provide the 24 information requested? 25 A. The agreement we had with the government was that we
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17:15 1 submitted an application, then we start negotiating the 2 terms of a long-term concession. If there was some 3 reason, business reason for changing that procedure, we 4 would be happy to do it. 5 Q. So you just chose to ignore Mr Imena's letter? 6 A. We were not subject to this. Everybody else was treated 7 as a long-term concession holder and invited to 8 a negotiated agreement. If they wanted to at some point 9 be able to say in that negotiation: no, this concession 10 is too large or we need to allow you to focus on these 11 areas, that would be part of the long-term concession 12 agreement. 13 Q. He was telling you you were subject to it, and he sent 14 you a letter telling you what to do and you chose to 15 ignore it; that's fair, isn't it? 16 A. No. No. It's not fair. We disputed that we were 17 subject to it, we wanted to be treated the same as all 18 other holders. We had all of our documentation and 19 research and expertise in our office, and he was not 20 giving it to us, so we assumed that this was a set-up. 21 He just wanted to be able to say: you failed. Otherwise 22 he would have given us our office back. 23 Q. You provided what -- Mr Imena had no ability to give you 24 your office back, did he? 25 A. He absolutely did. He was in charge of the mining
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17:16 1 industry. He alone had the ability. 2 Q. Now, you provided what purported to be a feasibility 3 report, which we have at C-085, and can we go to that 4 document. Can we go to page 40. 5 A. This, by the way, is the environmental problem I was 6 telling you about where they did the ground sluicing. 7 The picture on the front. 8 Q. Page 40. This is a page summarising NRD's investments 9 in respect of infrastructure, where you identified two 10 particular pieces of infrastructure. 11 Sorry, FTI, could you make it slightly smaller so 12 I can just see the page. Thank you. 13 Yes, I'm looking at the bottom paragraph. I'm happy 14 for you to blow it up again. So it's the bottom 15 paragraph we're looking at, so this is under "NRD's 16 Investments Leading to Enhanced Exploration and Mining 17 Capacity" and you say: 18 "NRD investments in respect of the plants themselves 19 are summarised in the NRD Application 2010." 20 And if we just scroll a little further up, we can 21 see that that's dealing with two plants, the Rutsiro 22 plant and then further up the Nemba plant. See that 23 paragraph, including constructing the Rutsiro plant and 24 the Nemba plant. 25 So what you are saying in this application is that
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17:18 1 the investment that's been done was done 2 before November 2010 because the details about it are to 3 be found in the November 2010 application; correct? 4 A. No, the investments were ongoing. 5 Q. Well, you don't identify in this application, in this 6 feasibility study, any material new investment in 7 infrastructure, do you? 8 A. No, all investments were ongoing. The Nemba plant 9 didn't exist in 2010 so, you know, with regard to that 10 item alone, but all upgrades have to -- it's a work in 11 progress. You can't stop investing in the mining. 12 Q. Let's go back to that bottom paragraph and look at it 13 again. 14 A. Okay. 15 Q. "NRD's investments in respect of the plants themselves 16 are summarised in the NRD Application 2010." 17 Making it quite clear that the investment had taken 18 place before November 2010 and is summarised in that 19 document; yes? 20 A. In Nemba? No. 21 Q. That's what your document says that you submitted; 22 correct? 23 A. It may be inartfully worded, but the Nemba plant wasn't 24 built until after 2010. 25 Q. Can we go to page 71. This is a section dealing with
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17:19 1 exploration works. It actually starts, if you could go 2 back one page, if FTI can put the previous page up as 3 well at the same time. We've got a section dealing with 4 satellite image tools, and then on page 71, it says, 5 three paragraphs down: 6 "In addition to the research reflected in the 7 supplemental materials to this Feasibility Study ... 8 several field campaigns of exploration works were 9 performed..." 10 And then you say: 11 "In the text below we roughly summarise performed 12 work." 13 Can you see where I'm reading from? It's 14 immediately above the 4.9: 15 "For detail we refer on report NRD 2010 and 16 2008-2010 Annual Status Reports and supporting 17 materials." 18 So it's clear, isn't it, that as regards this work 19 also, surveying work, this feasibility study identified 20 no material new work that had not been identified in 21 the November 2010 application? 22 A. No -- well, I'm not saying that it's directly stated, 23 but certainly we had teams of geologists permanently in 24 Rwanda from the Czech and Slovak Republics. 25 Q. If you had done any material new surveying work you
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17:21 1 would have identified it in this application, wouldn't 2 you, and not just directed the reader to 3 the November 2010 application; correct? 4 A. No. 5 Q. Let's go to page 88. 6 A. It may be less promotional than it should be, it may be 7 less of a statement to show how great we are, but that's 8 what we wrote. 9 Q. And the reality is, also, Mr Marshall, it's not just 10 this document, although we'll keep going to it, you had 11 other opportunities to supplement your material, you 12 were given a number of opportunities by the government 13 and you never produced any updated investment or 14 surveying data, did you? 15 A. I beg to differ. I think we did provide -- every time 16 the geologists did work they spoke with their 17 counterparts at the Ministry, they would have provided 18 them with those studies -- 19 Q. You never -- 20 A. -- (overspeaking) not providing them to us today doesn't 21 mean that the work wasn't done. 22 Q. You never improved this part of your application, even 23 though you were given repeated attempts to improve on 24 your application, did you? 25 A. No, we did improve on this part of the application.
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17:22 1 Q. Now, let's look at paragraph 88. This is dealing with 2 mineral reserve modelling. Can we start with -- 3 starting with exploration and sampling, and at the 4 beginning of the first paragraph it says: 5 "Wolframite sampling: initial reserve estimates were 6 carried out (pre-2010) for the primary wolframite 7 deposits at Rutsiro and their associated secondary 8 tailings deposits." 9 So again there, the work done for reserve estimates 10 was pre-2010; yes? 11 A. No, that says initial reserve estimates were carried out 12 then. 13 Q. And no other work is identified; correct? 14 A. Well, you'll have to let me read it. If you want me to 15 read it, I'll double-check, but -- 16 Q. It's just describing the work that we see in 17 the November 2010 application? 18 A. Yes, but all of the sampling was ongoing. As we're 19 mining, we're sampling. We were unique among all mining 20 companies in the ability to do that because we were the 21 only mining company with a lab. I beg to differ with 22 you about what this means. If you are saying that we 23 failed because we didn't specify much of the exploratory 24 work after 2010, that's not to say it didn't happen. 25 I think your staff, your client's staff would be able to
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17:24 1 verify it. We took thousands of samples. 2 Q. If you had done that, you would have identified them. 3 Let's go to Mr Imena's witness statement at 4 paragraph 33. 5 A. These seem to be questions of fact to me, you know, and 6 I would urge you to go back and do a more detailed 7 investigation, since you are accusing me of not doing 8 something when you have the information to be able to 9 demonstrate whether it's true or not. 10 Q. Now, Mr Imena deals with this application, and he 11 summarises his take on it. He says: 12 "On 18 September 2014, NRD submitted a partially 13 complete application for the issuance of long-term 14 licences. It included a 'feasibility study update' 15 which, although some 90 pages in length, contributed 16 almost nothing new -- it was largely a reworking of 17 the November 2010 Application with some generic 18 geological reports obtained from public records." 19 And that is a fair assessment, isn't it, of the 20 feasibility report that you submitted? 21 A. It's entirely unfair, because I know that our staff 22 spent hundreds of hours on it, and I wish you would do 23 a close comparison rather than referring to conclusory 24 remarks by somebody who is very biased. 25 Q. We're very happy to do a close comparison of this
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17:25 1 document and the November 2010 application and, indeed, 2 one has been done, and you cannot identify any material 3 new investment in your November 2010 report. Sorry, in 4 your 2014 -- or exploration in your 2014 report. 5 A. I beg to differ. I know that the work was done. You 6 can make a claim -- but, by the way, I would also 7 encourage you to compare it to all other applications. 8 Other than Rutongo, ours was far superior. 9 Q. Let's go on in Mr Imena's witness statement, he says: 10 "The application overall (and despite the terms of 11 my letter of 18 August 2014, one application was made, 12 rather than a separate application for each individual 13 concession area with specific plans and studies relating 14 to that concession) was evaluated by the Licence ... 15 Team ..." 16 Now, just taking that in stages, it's right to say 17 you hadn't addressed the concession singly, as you had 18 been asked to; correct? 19 A. I stand by our position that Mr Evode had possession of 20 our offices and would not give us access to exactly the 21 information he has requested. 22 Q. You're not -- you didn't mean to suggest that Mr Evode 23 had possession of your offices, did you? 24 A. I mean the government had possession of our offices, 25 under the auspices of Mr Evode, yes.
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17:26 1 Q. You don't mean to suggest that either, do you? 2 A. I do. 3 Q. Given that the previous feasibility study was considered 4 insufficient for the five-year licence application in 5 2010 and 2011, this was never going to be considered 6 adequate for a long-term licence, was it? You must have 7 known that. 8 A. I'm sorry, repeat the question again. 9 Q. You must have known that this feasibility report was 10 never going to be considered sufficient for a long-term 11 licence because the last one hadn't been? 12 A. Far superior to all other applications, other than 13 Rutongo. We saw Gifurwe, we saw Rwinkwavu, we saw 14 New Bugarama. Our documents far exceeded those and 15 I would invite you to provide those other proposals to 16 the panel for a point of comparison for them. 17 Q. Can you look at your third witness statement, or your 18 second supplemental witness statement, as it's called, 19 paragraph 19. Sorry, paragraph 25, I should say. You 20 say there: 21 "NRD was the only company doing sampling on a daily 22 basis using the then new XRF spectrometers, which 23 enabled NRD to sample thousands of minerals on site." 24 Can we just see what Mr Imena says about that in his 25 supplemental report at paragraph 19.
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17:28 1 MR BRODSKY: Did you say Imena supplemental? 2 MR HILL: Imena supplemental, paragraph 19. 3 MR BRODSKY: Thank you. 4 MR HILL: He says: 5 "In my first statement at paragraphs 12 to 13 and 6 71, I explain how the sampling done by NRD was 7 superficial and that they had only obtained 115 samples 8 for three concessions, which equated to 1 sample for 9 every 191 hectares. At paragraph 25 of the second 10 supplemental statement of Mr Marshall, he claims that 11 NRD was the only company doing sampling on a daily basis 12 using new XRF spectrometers. This cannot be true, and 13 is not consistent with my understanding at the time. 14 First, if NRD was taking samples on a daily basis 15 I believe this would have been recorded in 16 their November 2010 Application (or indeed any later 17 applications) -- but it was not. The November 2010 18 Application states only that 'a total of 115 samples 19 were collected' and this is consistent with the 20 explanation I gave in my first statement. Second, NRD 21 was not the only company using a XRF spectrometer and in 22 fact they were commonly used in Rwanda." 23 And what he says is right, isn't it? 24 A. No, it's entirely untrue. A couple of traders, MSA and 25 Phoenix, had an XRF and I think those were the only
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17:29 1 three in the country, perhaps Chris Huber as a trader 2 also had an XRF, but other than that. They're 3 expensive, about $50,000 with the related equipment, and 4 so for most companies they would rather rely on the 5 judgment of the trader of -- for the value of the 6 minerals they were selling. We did not -- I would say 7 that he has also made several other conclusions which 8 are, you know, not based in reality -- not based in 9 truth. There were detailed samples that HC Starck sent 10 back to Europe for additional analysis, and as I recall, 11 and I would have to go back and look at the application, 12 those were the 115 samples, so it's a bag of 20 kilos 13 and 115 sent back for that specific purpose. 14 But they were ongoing -- they were doing ongoing 15 sampling and the XRF was a Bay View asset, Bay View 16 Group asset which was being used by NRD, I think, at 17 that point. 18 Q. Mr Marshall, if there had been lots and lots of samples, 19 as you suggest, you would have made that clear in your 20 application, but you didn't suggest that in your 21 application, did you? 22 A. No, I think you're making a mistake about what I thought 23 was relevant in the application and what you, with 20/20 24 hindsight, claimed is relevant. 25 Q. Now, you also supported this application with the
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17:31 1 document we have at C-092 as an indication of your 2 financial resources, and can we just look at C-092. 3 A. No, our financial resources was the investment we'd 4 already made. 5 Q. They are interested, the government are interested in 6 what investment you can make going forward in support of 7 your application for a long-term licence, aren't they? 8 That's what they're interested in? 9 A. No, they're interested in whether we're going to be able 10 to make any investment. Remember, this is a new 11 application. This is a list of transactions for me as 12 a professional. It's nothing to do with financial 13 capability. The investment they're interested in is can 14 you make any financial investment in Rwanda, and we'd 15 already made $20 million in investments. 16 Q. Well, this might be your answer. Let's just look at 17 this document. This is what you put in as being 18 relevant to your application to support the idea that 19 you had financial resources in order to make you 20 a worthy applicant for a long-term licence. 21 Let's look at what this document is. It's headed 22 "Jillson and Marshall Associates, Counselors at Law". 23 A. Can you show us the requirement, what provision this is 24 supposed to be responsive to, because this is not my 25 memory that this would have been submitted as responsive
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17:32 1 to a question of whether we had financial capability? 2 Q. Why do you think you submitted it? 3 A. I don't know that it was submitted. 4 Q. It was. This is one of the documents you relied on in 5 support of the application. 6 A. What does the language say, and then maybe I can give 7 you an explanation? 8 Q. It's your explanation and we don't have a description 9 from you why you're submitting it. 10 A. What does the government say the requirement was? What 11 were they asking for? 12 Q. It doesn't matter. You tell us why -- 13 A. It does matter, because I need to know what you're 14 claiming I'm responsive to. This is prepared by my 15 staff, I was not in the country, as you saw from the 16 meeting on the 16th. 17 Q. So you say you didn't read the application and the 18 supporting material? 19 A. I was not in the country. They were responding to all 20 of these provisions themselves. Did they make 21 a mistake? Entirely possible. But I'm asking you what 22 it says. 23 Q. You tell us what you think this document is. 24 A. This is a list of our transactions as a law firm. 25 Q. Yes. That's what I thought. This is a list of the
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17:33 1 transactions done by -- you've advised on as lawyers; 2 correct? 3 A. Yes. 4 Q. Thank you. 5 So it wouldn't assist at all, would it, do you 6 accept -- it may be your answer to this is it wasn't 7 intended to, but it wouldn't assist at all, would it, on 8 the question of NRD's financial capacity, or those of 9 its backers, to execute proposed activities during the 10 period of a licence; correct? 11 A. No, we may be unique in that we had already satisfied 12 this question. It's not what are you going to bring, 13 it's we already have satisfied that. 14 Q. So you considered that your application for a long-term 15 licence was sufficiently satisfied in terms of 16 resourcing and investment by the historic investment 17 that had been done; is that right? 18 A. That's what we were told was the deal. 19 Q. But that was your position -- 20 A. That was the representations that had been made to us 21 and the basis on which we invested. 22 Q. And you were not, then -- 23 A. We're not -- 24 Q. -- attempting to persuade the government that you could 25 bring anything else to the table for your long-term
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17:34 1 licence beyond the historic investment that had already 2 been done? 3 A. We had no ability to talk with anybody about what their 4 expectations might be over and above what we had already 5 invested. There was no dialogue. There was no -- all 6 of these processes are iterative. They're all done on 7 a colloquial -- collegial basis, we had no chance to 8 talk to anybody about what was expected in any item on 9 this list. As I say, I was out of the country at the 10 time, but I don't even understand why we were having 11 that discussion. We had an agreement. We had fulfilled 12 our part of the agreement, and now they're changing the 13 rules. 14 Q. Let's go to R-020. This is an evaluation provided of 15 your application -- that was made of your application by 16 a license application -- licence evaluation team, and 17 you can see that at the top of page 1. So it's to the 18 "Honourable Minister", from "Licence Evaluation Team", 19 and if you look at the -- just to see who the team are, 20 if you look at the last page of the document, page 8, 21 you can see there are four names as being the team. Do 22 you see that? 23 A. Yes. 24 Q. And then were you aware that there had been 25 an evaluation of your application by a team which made
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17:36 1 a recommendation to the Minister? 2 A. Of course not. 3 Q. Can we look at page 7 of the document. This is the 4 recommendation: 5 "After all observations seen above, the technical 6 evaluation team recommends that Natural Resources 7 Development (NRD) may not be granted five concessions, 8 namely Nemba, Rutsiro, Giciye, Mara and Sebeya. This is 9 because NRD did not submit all the requirements 10 requested, and even those that were submitted are deemed 11 not satisfactory according to request letter for the 12 Minister of State in charge of Mining, which requested 13 NRD to re-apply for some or all former mining areas by 14 NRD. 15 "The Evaluation ... team analysed documents 16 submitted by NRD and the team found that in the 17 motivation letter for the application of the licence, 18 NRD Rwanda ltd [did] not indicate which kind of Mining 19 Concession NRD Rwanda Ltd was willing to operate in, the 20 type of the licence was also not mentioned according to 21 the new law. And also the company did not indicate the 22 licence period it wanted." 23 And their recommendation was not to grant the 24 licences; yes? Do you see that? 25 A. I see the language you're pointing to. This is all new
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17:37 1 to me, and this is the first time I'm aware that they 2 ever held this kind of evaluation without simultaneously 3 conferring with people like us who might have been the 4 recipient of the licence. 5 Q. And between pages 3 and 6 of the document, if FTI could 6 go to page 3. What you will see is between pages 3 and 7 6, the team listed all the items Mr Imena had been 8 requested to be provided. Perhaps if 3 and 4 could come 9 up, thank you. In the letter of 18 August, and they 10 commented on whether they were provided and they made 11 observations on their content. 12 So, for example, if you look at the bottom of 13 page 3, there was "Tax Clearance Certificate from the 14 Rwanda Revenue Authority", "submitted: no", and then 15 their observation is that: 16 "The company is said to have [294] million Rwandan 17 francs as a tax liability to the Government of Rwanda. 18 This is according to the audit from 19 PricewaterhouseCoopers which can be evidenced in the 20 letter addressed to the commissioner general on 21 7 December 2010. See page 3 under summary of tax 22 liabilities. Further consultation can be done with RRA 23 to know the accurate liability." 24 So that's just one example of your failure to 25 provide a tax clearance and the perception by the
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17:38 1 government that there is in fact a tax liability; do you 2 see that? 3 A. I see the language. It's not correct. 4 Q. And then we look at the bottom of page 5. 5 A. This is the first I've seen this document. 6 THE PRESIDENT: Today? Today? That's the first time you've 7 seen it? 8 A. No, I never saw it during this period, sorry. 9 MR HILL: So you have seen it in preparation for this case, 10 presumably? 11 A. In preparation of this case, but not at that time. 12 I question whether it was contemporaneous. It's 13 surprising to me, and the reason I say that, it would be 14 very unusual for the government to prepare this kind of 15 document without sharing it with the party who is 16 applying. They ordinarily are very meticulous in going 17 through each item so they fairly give people a chance to 18 respond. 19 Q. Looking onto page 5, there's a section "Requirements of 20 Mining and Exploration Plan", and in a section which 21 says: 22 "Minimum investment commitment on each Mining area". 23 The answer: 24 "No. The company did not submit the requested 25 Minimum investment on each of the mining area ie Nemba,
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17:40 1 Giciye, Rutsiro, Mara and Sebeya. However in the 2 document submitted the company shows that it will spend 3 €382,000 to exploration over the five concessions. From 4 2011 to 2015. The evaluation team found out that that 5 this information is not an updated information rather 6 old one and there is no expenditures allocated to 7 Mining/exploitation." 8 And that's a fair analysis of the feasibility study 9 you submitted, isn't it? 10 A. No, as a practical matter, the Ministry provides the 11 applicant with the amount of the expected investment at 12 each and every location, and the expected amount of 13 production that would come from the mining. 14 The reason for that, just so you understand, is that 15 that's part of a commercially reasonable long-term 16 concession licence so that there are performance 17 characteristics, goals, requirements, in the contract 18 itself, which could lead to termination if you didn't 19 meet it. 20 But for us to -- we would never presume, and it's 21 always been the dialogue in the past: what do you think 22 this can provide, what do you think is the amount of 23 investment required. If we hadn't had that conversation 24 in recent couple of years, then we would have 25 necessarily gone back to the information that the
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17:41 1 Ministry had provided to us before. 2 Q. Well, you knew, didn't you, that this was one of the 3 items on Mr Imena's list, because this report is going 4 through the list. I'm going to pick up another one. Do 5 you want to answer that? 6 A. But my point is that by this process, they've changed 7 their approach. It's no longer a collegial give and 8 take about these issues. From what I'm hearing from you 9 is: he sent you these requirements, you didn't answer, 10 or you didn't answer in the way that he expected, 11 therefore you failed. That was never the process in 12 Rwanda before this time. 13 Q. Let's go to page 5. Let's go to page 5. You were asked 14 to provide minimum work commitment on each mining area, 15 to which their response is: 16 "No. The company did not submit the information 17 requested, however the company in its document that seem 18 to be not updated shows some proposed activity in 19 research, production, reserve, calculation, processing 20 environmental mitigation and work safety for the 21 period [January 2011] to [January 2015]." 22 And, again, your work proposal hadn't been updated 23 since the November 2010 application, had it? 24 A. No, you have the office, you have the documents, I can't 25 be sure because, again, this is the first time that this
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17:43 1 kind of comment would be made. In fact, I've never 2 heard of it being made without a consultation with the 3 applicant. 4 Q. Then the next bit, a little lower down on the same page, 5 the penultimate row: 6 "The financial capacity to support each commitment 7 with supporting documents to prove such a capacity, for 8 example a bank guarantee from any financial recognised 9 institution by the Rwandan Government." 10 So, again, you're being asked to demonstrate 11 financial capacity and their answer is no, their 12 evaluation is: 13 "No. The company did not submit any kind of proof 14 for financial capacity to support any of their 15 activities planned." 16 That, again, is a fair assessment of the application 17 you put in, isn't it? 18 A. No, it's very unfair. 19 Q. Are you suggesting you did submit proof of your 20 financial capacity to support the planned activities? 21 A. Correct me if I am wrong, but this is for all new 22 applicants, for people they don't know anything about, 23 not somebody that has invested significant amounts of 24 money already. 25 Q. In answer to my question --
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17:44 1 A. So where's the category for what has already been done? 2 Q. In answer to my question: you did not submit any kind of 3 proof for financial capacity to support any of the 4 activities planned, did you? 5 A. Well, I'm sorry, I don't mean to be rude, but we've 6 already invested. We've already invested $20 million, 7 isn't that proof of financial capacity? Why does it 8 start from zero? Why does the application suggest that 9 anything you've done so far is meaningless? Now tell us 10 what you're going to do and what it means in the future 11 without even talking to us? 12 Q. So the answer to my question is in terms of the planned 13 activities going forward, which is what this document 14 was supposed to indicate, you did not provide proof of 15 financial capacity, did you? 16 A. I have -- we were never asked in that context. 17 Q. You were asked specifically because it was one of the 18 items on the list; correct? 19 A. No. No. No, we were asked do we have the ability to 20 build out these concessions. We've invested $20 million 21 and now we -- we assume that that's to address that 22 question. What is your financial capacity? $20 million 23 this year. What more do you need? Nobody has invested 24 $20 million in the industry even since then. I don't 25 think there are three companies in Rwanda right now with
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17:45 1 more than a million dollars investment. 2 Q. No, I don't accept that $20 million figure for a moment 3 and we have been through that, but now let's look at 4 what Mr Imena says about your report. 5 A. Pick a number then. We've already invested. What 6 you're saying, if you follow the logical conclusion of 7 your question, what you're saying is everything that's 8 done doesn't count anymore, it's only about what you're 9 going to do now. That's a very -- "thank you very much, 10 you've given that to us". 11 Q. Mr Imena received this recommendation, can we look at 12 what he says at paragraph 33 of his witness statement. 13 And in the second half of that document he refers to the 14 evaluation by this team and he says: 15 "They found that NRD had failed to provide numerous 16 documents that were required of them including a Tax 17 Clearance Certificate a recommendation from the 18 Rwanda Environmental Management Authority on the status 19 of the environment at the five concession areas; proof 20 of financial capacity to support each commitment, ie to 21 invest and develop the mines; and work plans in relation 22 to each mining area, ie plans as to what they were 23 planning at each of the five concession areas and how 24 they would go about this. These documents were critical 25 to our evaluation of NRD's application; for example, the
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17:46 1 tax clearance certificate was necessary to demonstrate 2 that NRD had been paying taxes; and the recommendation 3 from REMA as to the status of the environment was 4 critical because we had concerns about environmental 5 damage occurring at NRD's sites." 6 And that was a fair evaluation of the flaws or some 7 of the flaws in your application, isn't it? 8 A. No, I think you're fundamentally mistaken. First of 9 all, we could not get anything from the Rwanda Revenue 10 Authority, they didn't recognise us, for whatever 11 reasons they had, as the owner. There was no basis on 12 which we could get them to negotiate anything. Would 13 not recognise us. We tried. 14 With regard to the Rwandan Environment Management 15 Authority, we went there to talk about what regions they 16 could either do or support, consult, to look at whether 17 there are environmental challenges that had to be met. 18 Their official position is, they don't do any work until 19 a licence is awarded. None, zero. They don't -- 20 they're not going to do speculative work. They say if 21 you own that licence for that specific area, then yes, 22 we will come and review it. So we were stymied there, 23 we had nothing more we could ask. 24 Q. Mr Marshall, you are again coming up with points which 25 are a fiction, aren't you?
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17:47 1 A. No, I am afraid your client hasn't informed you of the 2 full nature of what's going on in Rwanda. 3 Q. Can we look at paragraph 34? 4 A. This -- again, this was not presented to us at that 5 time, so these complaints we had no ability to discuss 6 with them. 7 Q. So here Mr Imena says: 8 "I have seen the document headed 'Selected financial 9 transactions from 1996' submitted by NRD as part of its 10 18 September 2014 application allegedly as evidence of 11 NRD's financial resources. That document contains no 12 information regarding NRD's financial resources or its 13 ability to finance the investment and development of the 14 five concession areas. On the face of it, the document 15 has no relationship to NRD at all. As evidence of NRD's 16 financial resources it was completely worthless. The 17 fact that NRD chose to submit this document as evidence 18 of its financial resources was further evidence to me 19 that neither NRD nor Mr Marshall were taking the 20 application process seriously. I do not believe that 21 NRD can have been under any doubt as to what was 22 required." 23 And that is a fair comment on the list of 24 transactions by your law firm that you provided, isn't 25 it?
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17:49 1 A. No, and I think he has entirely misunderstood what we 2 took to be the principle: that we should be like any new 3 investor, if you were considering us as a new investor, 4 that the $20 million that's already invested be credited 5 to us. What additional proof do you need of our 6 financial capability? 7 Q. Now, just a couple more questions on this area before 8 I move on, or before we have a break, in fact. 9 Paragraph 35 of this statement, Mr Imena summarises 10 his response, that the evaluation team determined that 11 many of the documents were: 12 "... unsatisfactory, including the financial 13 document I have referred to ... and that NRD had 14 [failed] to provide any tangible document that proved 15 its financial capacity to develop mines. Accordingly, 16 by letter dated 28 October 2014, I advised NRD that had 17 a decision had been made not to grant it any mining 18 licences, but that NRD had seven days to file an appeal 19 against this decision. I gave NRD this right to appeal 20 despite being under no obligation to do so." 21 And it's right, isn't it, that he gave you 22 a seven-day opportunity to appeal, despite not being 23 required to; yes? 24 A. My understanding from the Minister at that time was that 25 it was mandatory; that he, as part of due process
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17:50 1 rights, we had the right of appeal, and we took that 2 opportunity to appeal. 3 Q. And there has been nothing unfair, has there, in any 4 part of this process? You were told what you needed to 5 do, you didn't do it as you were asked to, there was 6 an evaluation by a team looking at things objectively, 7 and the Minister accepted the recommendation of his 8 team; that's fair, isn't it? 9 A. It's entirely unfair and entirely unreasonable. We 10 should have been treated exactly the same as all other 11 large-scale concession holders, and we were not. We 12 were singled out for this treatment. And the only one 13 among them singled out for this treatment. 14 Q. And by the time we get to 28 October, so some time after 15 you put in the application, when Mr Imena communicates 16 his refusal, you still hadn't attempted to supplement 17 the application in any way, had you? 18 A. I'm sorry? 19 Q. You hadn't attempted to supplement the application in 20 any way? 21 A. I think we submitted additional detail. He knew what he 22 was doing. He knew that we were not able to get access 23 to the office, he knew we had no tags, he knew we had no 24 rights to be able to mine. So this was, in our mind, 25 a perfect set-up, which is why we continued to rely on
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17:51 1 the advice of the military people who encouraged us to 2 wait for the internal investigations to play out. 3 Q. You did submit some very limited additional information, 4 but that was only in response to a request to do so from 5 Mr Imena which comes later, and I'm going to come to 6 that. 7 I wonder if now is a convenient moment, 8 Mr President? 9 THE PRESIDENT: Yes, let's break for 15 minutes. 10 (5.52 pm) 11 (A short break) 12 (6.07 pm) 13 MR COWLEY: I have a housekeeping issue, Mr President, and 14 I think Mr Hill, so do you, you may not be informed of 15 this because it doesn't immediately impact your schedule 16 with your witnesses, but it impacts the schedule for 17 questioning our witnesses. 18 We've been informed by FTI that there are two 19 packages trying to make their way through customs, 20 Rwandan customs, one package of materials that are 21 necessary to participate that holds all of the equipment 22 for Claimants' witnesses, one package holds all of the 23 equipment for Respondent's witnesses. Both packages are 24 still held up in customs, they're not through. 25 The next witness after re-direct of Mr Marshall is
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18:08 1 completed is Mr Buyskes, and I don't have the schedule 2 committed to memory, but I think it impacts the next 3 witness, though they may skip -- I bring it to the 4 Tribunal's attention not because I think the Tribunal 5 can solve it, but if there's any ability to suggest that 6 members of the Respondent who may not already know, but 7 that assistance may be needed and can probably be 8 helpfully provided by representatives of the Respondent 9 to get the packages through. 10 THE PRESIDENT: This is hardware, is it, to do with the 11 actual filming? 12 MR COWLEY: It's the computers and cameras. There's the 360 13 camera is -- 14 THE PRESIDENT: Yes. 15 MR COWLEY: So a computer that's connected to the internet, 16 whether it's FTI's or not, has the capability to link 17 in, but they don't necessarily have the same capability 18 to allow FTI to do everything they may need to do to 19 help people or other things, I'll let FTI explain the 20 difference between just anybody's computer and theirs. 21 The one big difference is most people don't have 22 available to them an equivalent 360-degree camera, that 23 make-do or workarounds for that might be far more 24 limited, and those are the two things I know. 25 THE PRESIDENT: Yes.
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18:09 1 Mr Hill, do you think your clients could do their 2 best to unblock the customs so that this stuff gets 3 through? 4 MR HILL: Yes, I hadn't, I am afraid, heard of this at all. 5 It hadn't got to me. I will take instructions and see 6 what can be done. I am afraid it's a complete unknown 7 to me, but I will certainly take instructions and see 8 what can be done. 9 THE PRESIDENT: Good. Thank you very much. 10 MR COWLEY: And just to be clear, I feel defensive here, but 11 I shouldn't be, but there are so many allegations being 12 thrown around. I'm not suggesting anybody has done 13 something wrong, I'm just pointing out what I heard. So 14 I'm just asking for help, not blaming anybody for the 15 situation we are all in, I think both packages are in 16 the same place. 17 THE PRESIDENT: Yes, understood, and I hadn't inferred any 18 criticism on your part. 19 MR HILL: No, nor me. 20 THE PRESIDENT: Right, let us continue, please, with the 21 last round of cross-examination for Mr Marshall. 22 MR WATKINS: Okay, we're bringing the witness in right now. 23 MR HILL: Mr Marshall, carrying on with the licence 24 application, we just dealt with Mr Imena's refusal of 25 your application following a recommendation from his
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18:11 1 team, and I would like to look at your response to 2 Mr Imena's refusal, which is at bundle C-165. This is 3 a letter from you to the Rwandan police; yes? That's 4 "CG, CID", isn't it? 5 A. Yes, that's the police. 6 Q. And it's headed "Formal Complaint Against Apparent 7 Corruption", and in this letter you are, on its face, 8 complaining to the police, aren't you, that Mr Imena has 9 been corrupt? 10 A. Yes. I haven't read this letter, but I do recall 11 sending a letter informing the police about Mr Imena's 12 corruption. 13 Q. And this is -- 14 A. That's not the only one. 15 Q. -- this is not stamped and doesn't have the company's 16 seal, this letter, and I'm just asking you, are you sure 17 you sent this letter? It seems unclear that you did? 18 A. I'm sure we sent the letter to the police about his 19 corruption. 20 Q. And can we look at the last page of the letter? We can 21 see that you copied the letter, if you did send it, to 22 the President, the Prime Minister, other ministers and 23 the US Ambassador? 24 A. Yes. 25 Q. You were seeking to do maximum damage, weren't you, to
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18:13 1 Mr Imena? 2 A. I don't recall that, but it's possible. 3 Q. Well, it says CC, and you were seeking to do maximum 4 damage to Mr Imena, weren't you? 5 A. No, my objective was to get fair treatment for our 6 investors and I knew Mr Imena was corrupt. 7 Q. Let's look at some of the points you make. Can you go 8 to the first page of your letter. We have this 9 complaint, and under the complaint you say: 10 "A. We have lost our mining business through what 11 appears to be a State 'taking' or nationalisation of our 12 company's assets, including mining licences ... which 13 was announced by Minister Evode on 28 October 2014." 14 So you are describing his notification that your 15 licence application has been unsuccessful as a State 16 "taking" or nationalisation of the company's assets, 17 which is a crime on his part; is that what you're 18 saying? 19 A. No, I think you're taking it out of context. I think 20 the seizure of our business, the closure of our office, 21 the shifting of an application from one that had already 22 been in process for a long time to a new one where there 23 was no communication other than a written response, of 24 which there was then no follow-up or no discussion, we 25 saw, to use the vernacular, we thought the fix was in.
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18:14 1 Q. You are saying, and you're referring to this taking or 2 nationalisation being announced by Minister Evode on 3 28 October 2014. That's his letter declining your 4 application for licences, and you are saying to the 5 police that this is a corrupt nationalisation of your 6 assets, aren't you? 7 A. I was giving the whole context for what had happened and 8 why we believed it to be corrupt, yes. 9 Q. And then underneath that, you say: 10 "There has been systematic stripping of our capital 11 investment assets by numerous criminal scams, including 12 Bailiff 'seizure' scams, which the authorities refuse or 13 are unable to stop." 14 But again, you had raised that with the Minister of 15 Justice and he had told you that on investigation that 16 these are lawful judgments that you should be getting on 17 and settling; correct? 18 A. No, no, that wasn't how we understood it. We did have 19 several meetings with the Minister of Justice. He, at 20 first, was very sympathetic. We were told that he had 21 gotten some political guidance and he changed his mind. 22 The bailiff was, you know, not behaving like a bailiff 23 should or could. We still had no information about, 24 other than the Pascal seizure, what any of the seizures 25 were, no court orders, and he followed none of the
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18:16 1 bailiff process, so to me that was corrupt. 2 Q. You then at E -- and I'm not going to take every point 3 in this letter, because it's a long letter. Taking up E 4 you say: 5 "We have lost millions of USD of income, beginning 6 more than 5 months ago, because Minister Evode illegally 7 shut down our business. He shut us down by refusing us 8 the ITRI 'control tags' which are required by law before 9 any minerals can be sold. This was illegal and without 10 due process: we had no hearing, received no notice of 11 closure, and were repeatedly refused an audience with 12 Minister Evode." 13 But, as we've seen, and as you don't explain here, 14 NRD had no licence, and Mr Imena was also facing 15 a competing claim; yes? 16 A. The licence issue as an excuse didn't come up until much 17 later. 18 Q. That's not right. Just stop there, Mr Marshall. That's 19 not right, because we've already been to the meeting 20 with you at which this was discussed, Mr Imena set out 21 his position in relation to the licence and that is 22 before this October letter. We've been to that meeting. 23 A. You're missing the timeline I'm referring to, I'm sorry. 24 Q. Well, you carry on. 25 A. He stopped the tagging in March. The tagging took full
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18:17 1 bite in the beginning of April 2014. And we didn't hear 2 from him what it was about or why, just he refused. 3 Then we had a meeting late May, you can tell me what the 4 date was, where he explained that Ben Benzinge was the 5 owner of our concessions. So there was no -- as of that 6 point, there was no discussion about "regularising", as 7 he called it, licences. Ben was the owner, we were out. 8 We were losing everything and being told in no uncertain 9 terms to go home. 10 So for us this was a very frustrating process. He 11 did refer to it as a piece of plastic and you should 12 just continue mining and storing, which was a very hard 13 concept for him to suggest we should follow. 14 Q. Contrary to what you say in this letter to the police, 15 you had had meetings with Minister Evode, hadn't you? 16 A. Not meaningful ones. We had a meeting with 17 Minister Evode in March with his lawyer, I mean May, 18 this is the exciting one where Isaac, formerly our 19 lawyer, announced that Ben was the owner and the 20 Minister agreed with him. 21 Q. Then you had a meeting in September, didn't you? 22 A. Well, we could have. 23 Q. We've been to that today. 24 A. Which was that -- oh, Zuzana had a meeting with him 25 in September, I'm sorry, I see what you're saying.
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18:18 1 Q. Minister Evode did meet with you, and what you said in 2 this letter is inaccurate? 3 A. Look, this is a very small community. Ordinarily we 4 would have near daily contact with these people. We had 5 been put out into the cold. No other mining company was 6 treated this way. We simply didn't know things. We had 7 to find things from the other mining concession holders 8 what was going on. In earlier periods, we had simply 9 stopped by, they would stop by our mine, it was very 10 collegial. It's a small group trying to solve a handful 11 of problems. 12 Q. Let's look at what's then said in item 2 of your 13 complaint: 14 "The letter dated 28 October 2014 from 15 Minister Evode to NRD is drafted to read as if 16 Minister Evode is merely denying a 'mining licence 17 application'. Minister Evode has selectively used the 18 facts to pretend that the relationship between NRD and 19 the Government of Rwanda is only in respect of 20 an application for a mining licence. This is not true. 21 In fact, it appears that because Minister Evode's letter 22 cancels 'all' relationships, he is 'taking' or 23 nationalising the NRD business. Minister Evode's letter 24 does not follow the usual and customary Rwandan 25 administrative practices."
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18:20 1 Minister Evode's letter, and we can go to it, if you 2 like, was simply declining your mining licence 3 application, wasn't it? 4 A. No, I think in the second paragraph, if you go to it, he 5 says this letter constitutes something like that, 6 cancelling of all relationships between NRD and the 7 Rwanda Government. 8 Q. Well, you didn't have any relationships beyond your 9 ability to mine on the concession, did you? That was 10 the contractual relationships that you had; correct? 11 A. No. No, of course not. 12 Q. You had an expired contract and you had expired 13 licences. 14 A. We'd been referring to -- we've made endless references 15 to you about that relationship with the Rwandan 16 military. We were -- with the closing down of our mines 17 we shifted over to terrible work and we shifted over to 18 primarily to working for the Rwandan military and the 19 Rwandan intelligence services. That's what we were 20 asked to do and that's what we were happy to do. 21 Q. Let's look at R-022. 22 A. This is why we knew about all of the smuggling going on 23 of the minerals from Congo. This was part of our work, 24 was understanding how to improve Rwanda's reputation in 25 the international community. They asked for help on
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18:21 1 acquiring arms. We helped them on acquiring arms. We 2 don't know what they ultimately purchased, but we set up 3 relationships they didn't otherwise have. 4 Q. Can you look at the second page. So this is from the 5 Ministry of Natural Resources. He says: 6 "This letter serves also to inform you that the 7 Ministry has terminated all prior working relations with 8 your company. Consequently, if no any other contrary 9 decision is taken within the notification period 10 mentioned ... you are requested to proceed with the 11 closure process of mining operations ..." 12 It's quite clear, isn't it, that what he is 13 regarding as at an end is your relationships with regard 14 the concession and the mining. Nothing to do with the 15 military or anything else, is it? 16 A. That's not the way we read it. 17 Q. That's what the letter says. 18 A. And that's why we asked our colleagues in the military 19 how we should handle it, and they advised us to raise it 20 as part of this letter that we prepared at that time. 21 Q. And this is a complete distortion, isn't it, that you're 22 putting forward to the police of what has happened in 23 Minister Evode's letter? 24 A. No, it's not. It's the truth. 25 Q. It's a long letter, I can't pick up all of it. Can we
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18:22 1 go to the fourth page of the letter, and I'm going to go 2 to item G. 3 MR BRODSKY: I'm sorry, in this same document? 4 MR HILL: Yes. It's the same -- sorry, I apologise, we're 5 back in C-165. 6 MR BRODSKY: Thank you. 7 MR HILL: Fourth page, item (g) at the bottom. You say: 8 "There are many instances where Minister Evode 9 indirectly threatened NRD and its management and owners. 10 Among these, on (or about) August 14th, 2014, he told 11 NRD business partner, David Bensusan ... that he 'will 12 nationalise NRD as a help to MSA' ..." 13 And then you go on: 14 "According to Bensusan, Minister Evode separately 15 told him that he will 'stop NRD from having income, 16 bankrupt them and take the mining licences'..." 17 And Mr Bensusan was shocked. 18 Now, none of that is true, is it? 19 A. It's absolutely true. 20 Q. We have Mr Bensusan's evidence on it and he gives 21 evidence, can we go to paragraph 8 of Mr Bensusan's 22 witness statement. He says: 23 "I have been shown a copy of Mr Marshall's letter to 24 the CID dated 30 October 2014 ..." 25 And then he quotes the bit I have just read out, and
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18:24 1 then he says at paragraph 9: 2 "These statements are false. Minister Imena did not 3 ever make [those] comments to me, and I certainly never 4 told Mr Marshall that he did." 5 Then if we go on to paragraph 10: 6 "Further, the suggestion that Minister Imena would 7 have made such statements to me is completely 8 implausible. I met Minister Imena on numerous occasions 9 through my position at MSA and always found him to be 10 highly professional. It is simply not credible that he 11 would have made such statements to me about any mining 12 company, including NRD." 13 And the truth is, you have invented this allegation 14 for the purposes of this letter, haven't you? 15 A. Absolutely not, and what you're saying is slanderous. 16 David is not mistaken, he is lying here. David had the 17 biggest concession comptoir in Rwanda, he was partners 18 with General James Kabarebe who was the then Minister of 19 Defence. I met with them on some occasions. Every 20 weekend they were meeting to talk about bringing 21 minerals in from Congo. They wanted our mining 22 concessions. He made repeated proposals to me at 23 various times, none of them were so that we could get 24 out. I was terribly worried if we merged with his 25 company he would squeeze us out and we might not be able
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18:25 1 to pay any of the investors back. 2 His effort, to use Evode, I would be guessing at, 3 but I know that he would tell me things when we were 4 good friends. We found him to be duplicitous, after 5 several years, it took a long time before we understood 6 it. We found that his business with General Kabarebe 7 and moving minerals and pretending that they were of 8 Rwandan origin was something we could never be part of 9 anyway, but for us -- 10 Q. Just pausing there, this is yet another person in a very 11 long list, Mr Marshall, who says something you disagree 12 with and you immediately launch into accusations of 13 criminality; yes? 14 A. No. We and several other investors in the Rwanda mining 15 community went to his parent company, Cronimet, a German 16 company owned by the Pilarski family. We all shared 17 information on the duplicitousness and he would do 18 things like he would change the internal computer in the 19 Niton so that he would get a different reading and 20 therefore didn't have to pay the miners the full amount 21 due to them. 22 Q. Mr Marshall, you are simply digressing into a series of 23 allegations you have never made before which are not 24 true and are simply illustrating your propensity to slur 25 anyone who you disagree with.
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18:26 1 A. They fired him. They closed the business. They left 2 the country. He was the biggest exporter at over 3 $150 million a year and they closed the company because 4 of his corruption. 5 Q. Let's go on in the letter to item 3: 6 "Minister Evode has also apparently conspired with 7 others to harass and intimidate NRD management and 8 investors ..." 9 And you are suggesting in these paragraphs that 10 Minister Evode has conspired, criminally conspired with 11 Ben Benzinge, and that's the representation you are 12 making to the police, isn't it? 13 A. I believe that there was a criminal conspiracy to harm 14 NRD, when Ben Benzinge had no valid claim to owning 100% 15 of the company, and yet he was treated like a 100% owner 16 of the company. 17 Q. You had no justification at all, did you, for the 18 allegation to the police that Mr Imena had criminally 19 conspired with Mr Benzinge. 20 A. That was the only explanation I could see for what was 21 happening to us. 22 Q. Mr Imena, as he explained to you, was faced with a claim 23 from Mr Benzinge; yes? 24 A. But the claim was that he be recognised as a 0.2% 25 shareholder; not that he be given ownership of 100% of
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18:28 1 the company. 2 Q. Mr Imena was faced with a claim from Mr Benzinge that he 3 was entitled to represent the company and you were not, 4 and that claim accorded with the Supreme Court judgment 5 that Mr Benzinge had; correct? 6 A. No. You're misreading it. He -- the arbitrator said 7 that Ben Benzinge shall be appointed the managing 8 director. We went to the commercial registry and the 9 commercial registrar, legal counsel, gave us advice: 10 fine, they can effect that for the 20 seconds of that 11 day, and then the owners of the company will remove him. 12 Q. Now, I'm not accepting the evidence that you just gave, 13 but leaving all that aside, Mr Imena, from his 14 perspective, was faced with a claim from Mr Benzinge who 15 was holding a Supreme Court judgment that validated his 16 claim, and you knew that when you wrote this letter? 17 A. Nobody interpreted the judgment to read that way. The 18 arbitration judgment, in operable language, said 19 "I don't understand what Mr Marshall is doing here", 20 not: "he's not the owner". She said "I don't know what 21 he's doing here". A very different concept. And 22 Mr Evode in his wisdom decided that meant that Ben was 23 the owner of the entire company. That's the basis of 24 their claim. 25 Q. He did not. He never said to you that he decided that
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18:29 1 Ben was the owner of the company. He was facing a claim 2 and he regarded there as being management issues that 3 needed to be resolved before he would issue tags. 4 A. No. 5 Q. And you had no basis whatsoever, did you, for your 6 allegation of criminal conspiracy? 7 A. No, you're being mean-spirited. Other concession 8 holders had internal disputes too; ours was the only one 9 where the Minister took a side in it and dispossessed us 10 from both our offices and our concessions. Those 11 decisions cannot be made without his authority. 12 Q. Now let's look at (c) in this, down at the bottom of the 13 page: 14 "Minister Evode has refused to give 'control tags' 15 to NRD because, according to him, the ownership of NRD 16 is in what he says is a 'dispute'. He has not provided 17 any evidence of that so-called 'dispute' other than by 18 repeating Benzinge's unsubstantiated allegations." 19 Now, what you describe as the unsubstantiated 20 allegations are, in fact, an award from an arbitrator 21 backed by judgment from the Supreme Court; correct? 22 A. That's not what the award says, which is where you're 23 misreading this. 24 Q. And this is a distortion of the position which you are 25 giving to the police, isn't it?
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18:30 1 A. No, the reason they gave it back to us in August 22 was 2 because they said: yes, you are the owner. 3 Q. Now, let's go to item 4. 4 A. It was only Minister Evode who was claiming, along with 5 Bailiff Bosco, that Ben was the owner. 6 Q. Let's go to item 4: 7 "In addition to the evident malfeasance by 8 Minister Evode, other State officials have apparently 9 'targeted' us and are victimising NRD. It would appear 10 that Minister Evode's harassment of NRD and its 11 management and investors has 'emboldened' others to 12 attack NRD and its assets. 13 "Most prominent amongst these is State Court Bailiff 14 Jean Bosco Nsengiyuma, who has committed several crimes 15 against NRD but who is apparently 'protected' by the 16 police and other State authorities." 17 You then go on and say that: 18 "Last Friday we were informed by Metropolitan Police 19 authorities that the Court Bailiff, Jean Bosco, has 20 announced to them that he will begin auctioning more NRD 21 assets to collect (approximately) $82,000 in alleged 22 court judgments. And yet these are the same Court 23 Judgments which he has already executed upon and fully 24 satisfied." 25 Now, this was a point -- it was not true, was it, to
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18:32 1 say that Mr Bosco was enforcing on judgments which were 2 fully satisfied? 3 A. Yes, it is. 4 Q. This was a point which was taken up in a meeting, wasn't 5 it, by the police and Mr Bosco and Ms Mruskovicova, and 6 she declined to provide any substantiation for this 7 assertion? 8 A. I'm sorry, you've got it backwards. It's the bailiff 9 that has to be able to substantiate what the claim is. 10 Q. No, he -- 11 A. We never got a document from the bailiff showing what 12 the orders were or on what basis he could make the 13 claim, never. 14 Q. Mr Marshall, you have it the wrong way around. The 15 bailiff had valid claims. You complained to the 16 Minister of Justice who told you to pay up on the valid 17 claims. Your next line of defence which was raised at a 18 meeting with the police attending was that somehow these 19 claims had already been paid off and you were asked to 20 provide substantiation for that and you did not do so, 21 and that's the correct position, isn't it? 22 A. You can ask Zuzana, I think some of the names were 23 recognised. We never got orders from the court to say 24 what those claims were, never. I'm repeating myself 100 25 times and I apologise for it, but you're missing the
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18:33 1 point. We don't know what those claims were. We 2 recognised some of the names and we sat down with some 3 of the people, not me, but Zuzana, and please ask her. 4 We don't know. 5 Q. This letter of yours contains a series of extreme and 6 unsubstantiated criminal allegations against Mr Imena, 7 doesn't it? 8 A. No, these are all factual. 9 Q. And do you consider this the kind of behaviour for a 10 realistic professional applicant for a long-term mining 11 licence? 12 A. No, we were being dispossessed of everything. They were 13 taking it from us. They've stripped Nemba from $800,000 14 worth of property without legal process, with a 15 so-called legal process but which was not a valid legal 16 process. There was never an accounting. Nobody ever 17 was coming to us to explain where the equipment or 18 minerals went that were stolen or the damages that were 19 done or how we were going to be compensated. It was as 20 if we stopped existing. 21 Q. Now, on the Respondent's side we don't accept for 22 a moment you have any valid claims at all, but if you 23 did consider you had claims to have been expropriated or 24 harshly treated, in contradiction to the treaty, it's 25 quite clear from this letter that that was all apparent
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18:34 1 to you at that point; yes? 2 A. That was -- 3 Q. You're complaining vociferously about what you describe 4 as your mistreatment, so the claims that you now pursue 5 in this arbitration were all apparent to you at this 6 point, weren't they? 7 A. Were all apparent? 8 Q. Were apparent to you at this point: you were aware of 9 the points that you now advance as claims in this 10 arbitration. We can see it from a letter, because you 11 are -- 12 A. I'm sorry, please ask the question a different way. 13 Q. You were aware -- 14 A. Yes. 15 Q. -- you were aware of the matters that you now complain 16 about in this arbitration, because you are complaining 17 about them in this letter. So you were already fully 18 aware of this proposition that you had been expropriated 19 by virtue of being declined licences, you were aware of 20 the suggestion you've been expropriated by or harshly 21 treated by reference to Mr Benzinge's actions and 22 Mr Bosco's actions, it's all there in this letter, isn't 23 it? 24 A. No, I disagree. You know, we wanted to be able to do 25 the right thing. We had a great relationship with the
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18:35 1 Rwanda military, they were very enthusiastic and 2 conveyed to us how much they valued our services. 3 They, in the Rwanda cultural hierarchy, are far 4 higher than anything to do with the Ministry or whatever 5 petty corruption was going on there. They were 6 instructing me to wait and be patient. I was addressing 7 here concrete examples of crimes which had been 8 committed against us, and our disappointment that the 9 police had not taken action in what was clearly theft, 10 no more. 11 Q. Now let's go to C-086. 12 A. Under the colour of law, but theft. 13 Q. Let's go to C-086. This is your next letter to 14 Mr Imena, which contains your appeal, and re-application 15 for a licence. Just underneath the italicised part: 16 "After giving us only 2 days to prepare the 17 so-called 'application', we expected inquiries from your 18 office as well as additional communications -- and not 19 a termination letter. We take the opportunity of seven 20 days to lodge this appeal against your decision." 21 Now, it's not true, is it, to say you were only 22 given two days; you were given 30 days to make this 23 application? 24 A. Yes, well, you are sort of right. The letter came but 25 it was a form letter that we understood was being sent
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18:37 1 to everybody. We had assumed that it was not applicable 2 to us because our offices were closed and that as -- 3 were our concessions. So we were already out of 4 business. We assumed that this letter was a mass 5 mailing and not specifically addressed to us, but we did 6 take the step of setting up a meeting with Minister 7 Biruta who had just taken on his functions roughly 8 a week before, and this was the first day we could speak 9 to him. Evode was not willing to speak to us at this 10 time. We got that meeting two days -- because of his 11 availability, two days before it was due, but you're 12 right, the mass mailing came out 30 days before the 13 18th. 14 Q. Go to the next page. You talk about another company 15 being given two years, but by this point you hadn't had 16 a licence, had you, since October 2012, so you have been 17 out of licence for more than two years; correct? 18 A. They were in exactly the same position: they had been 19 out of a licence for two years as well. This is Rutongo 20 I'm referring to. 21 Q. You had been out of licence for two years since your 22 licence had expired in October 2012; yes? 23 A. And they had been the same. 24 Q. And you had not made any application at all in that 25 licence period until this licence application; correct?
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18:38 1 A. This is a new argument that started much later. When we 2 submitted the application, it was by far the best, we 3 saw the other applications, we knew -- 4 Q. That's just not right, is it? We'll come onto Rutongo 5 a little later, but the reality is that Rutongo were in 6 a completely different position and that they had a well 7 advanced licence application which had already been 8 favourably received by the government, entirely 9 different from you who had no licence application on 10 foot until you launched this one in the autumn of 2014. 11 A. You are being casual about your terms. Their licences, 12 by your standard, expired the same time ours did. 13 I don't agree that they expired at all, but the 14 four-year period ended about the same time that ours 15 did. They had two side-by-side applications, Rutongo 16 and Tinco -- ETI, sorry. 17 Q. Don't worry, we're going to come to it because we have 18 evidence from Mr Imena explaining what happened at 19 Rutongo so I can show you exactly what happened. 20 MR COWLEY: Mr President, I would ask, the question was put 21 to him challenging him to disagree with Rutongo was in 22 a much better situation. 23 Now, when he tried to answer that, cutting him off 24 as if that's not responsive and moving on is not fair. 25 I would suggest the path forward is either to withdraw
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18:40 1 the question he asked, or to let him answer the question 2 he asked, but not to just say he's done answering it and 3 move on. 4 MR HILL: I don't mind if Mr Marshall wants to continue the 5 answer now, but we are coming back to this topic later, 6 so I hope he doesn't repeat it later. 7 A. You made the point that somehow you think Rutongo or 8 ETI, which is Nyakabingo, were somehow in a different 9 position. They were in exactly the same position we 10 were. Both of them were under long-term negotiation at 11 this point. They'd been talking about them for two 12 years. 13 But the terms of those licences were essentially 14 identical to ours, they were four-year agreements, they 15 had that four-year period, and I'm not agreeing it's at 16 termination, but that four-year period had ended 17 two years before. 18 They were being treated as a negotiation partner, 19 the negotiations were ongoing, and we had no chance to 20 negotiate our agreement, much less the two agreements 21 that they were negotiating side-by-side. 22 Q. Rutongo had 20 times your production levels, didn't 23 they? 24 A. I don't know that. 25 Q. Well, there is a document from you that confirms exactly
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18:41 1 that. Do you want me to show it to you? 2 A. Yes, please. 3 Q. Go to R-107. 4 A. What am I looking for? 5 Q. Just give me one moment. (Pause). 6 I'll come back to that question. I said I would 7 deal with Rutongo later, and I will. 8 No, let's go back to the letter we were on. So 9 we're in C-086, second page. And under "Prior 10 negotiations" you say: 11 "Note that NRD submitted the application for a long 12 term mining licence in 2010 and had to wait for 4 years 13 for this so-called 'opportunity' to 're-apply'." 14 Now, that is simply not correct, is it, because you 15 had been invited specifically to re-apply and you could 16 have re-applied at any point prior to now? 17 A. No. Those forms were not created until that time when 18 they requested the information. There was no process 19 before this, I think you're mistaken. You need to go 20 back and talk to your client. I'm certain about that. 21 Q. Well, Mr Marshall, the difficulty with that is you did 22 make an application, a very defective one, 23 in January 2013, didn't you? 24 A. Whatever application process we adhered to was at their 25 instruction.
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18:43 1 Q. You knew you could re-apply? 2 A. You started this question by saying we did not do 3 something which we ought to have done, and my point to 4 you is we were following all instructions at all times. 5 Q. You knew you could re-apply because you had an attempt 6 at re-applying in January 2013, which was the nine-pager 7 that we looked at; correct? 8 A. No, we follow the instructions of the Ministry. If the 9 Ministry calls up and says: we need an application, 10 which says X, Y, Z, that's what we put together. It's 11 not a question of our taking the initiative or not. 12 That's not the way the system works. They come to us 13 and say this is what you need to do now. 14 Q. And you had been specifically asked to re-apply by 15 Mr Imena at the end of -- in late 2013, and you hadn't 16 done so; correct? 17 A. I don't know what you're talking about. 18 Q. We looked at the meeting minute of the meeting in which 19 he asked you to re-apply. 20 A. I think I specifically told you that that meeting did 21 not cover that topic. 100%, I'm quite certain he did 22 not ask us to re-apply at that meeting. 23 Q. It is entirely wrong to say you have had to wait four 24 years -- 25 A. You're creating an assumption based on something that
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18:44 1 I disagreed with before. 2 Q. It's entirely wrong, isn't it, to say you had to wait 3 four years for an opportunity to re-apply for licences? 4 A. We had applied in 2010. We were waiting for the 5 negotiation which was ongoing for Rutongo. Why was 6 Rutongo given the opportunity to negotiate the long-term 7 agreement and instead we have to so-called re-apply. 8 Why didn't Rutongo have to re-apply, or Nyakabingo, or 9 any of the others? 10 Q. Let's go to the next page. 11 A. We were treated like we had just arrived and they didn't 12 know anything about it and it was very unfair. 13 Q. Let's go to the next page, first bullet. 14 A. (overspeaking) it was an excuse to be able to set us up 15 for taking our assets. That's the bottom line here. 16 It's not like neutral: okay, you can't invest here, 17 fine, you can go home. No, we've already invested and 18 they're trying to take it, and it was very upsetting. 19 Q. That's the point we are about to come to. Top of this 20 page, this bullet: 21 "Our investors invested over US$20 million of new 22 invested money (not reinvested from operational cash 23 flows)." 24 Now, that is a representation that there has been 25 $20 million of new invested money, and that is simply
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18:46 1 incorrect, isn't it? 2 A. Well, I think you need to, as you said, you are going to 3 bifurcate this process, and then you'll know that. 4 Q. We already have looked at that $20 million? 5 A. You keep announcing that it's untrue. I haven't 6 conceded that point. 7 Q. That $20 million figure is the figure in dollar 8 conversion that we've already looked at? 9 A. No, it is not a figure we've already looked at -- 10 Q. It's the lion's share of -- 11 A. -- we have not already agreed. We contributed from NRD, 12 I mean they (inaudible) to NRD. We already had the 13 investment which was made by HC Starck, and we intend to 14 be able to show you that that is the money. But you -- 15 Q. Now, the lion's share -- just listen to my question. 16 A. -- (overspeaking) process and bifurcated from this. 17 Q. If you listen to my question. The lion's share of that 18 money, as we saw earlier in this cross-examination, came 19 in from HC Starck, and even that money, there's no basis 20 for saying it's new invested money as opposed to 21 re-investment from operational cash flows; correct? We 22 talked about that earlier? 23 A. No, without going through that research I can't tell you 24 that. 25 Q. And then the other --
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18:47 1 A. (overspeaking). 2 Q. -- smaller portion of the $20 million is the estimated 3 €6 million that you put in, in square brackets, as 4 foreign consultants and engineering fees, and you got 5 no -- and two points about that: first, that money was 6 not invested at all; secondly, it certainly wasn't 7 invested as net new money, was it? 8 A. Well, I appreciate that you are raising issues for the 9 Government of Rwanda. The Government of Rwanda came, 10 they saw our books, they saw our investments, and they 11 never objected, and I wish you would give us the chance 12 to be able to go through those amounts and be able to 13 demonstrate what that number was, but I understand it's 14 a bifurcated process so we can do it then, or whatever 15 you suggest, but for me, this is a question of being 16 able to show that information, not reach it on 17 a conclusory basis. 18 Q. You have made in your correspondence along the way 19 a number of allegations about the $20 million 20 investment. Not until this point did you ever suggest 21 that this was $20 million of new invested money not 22 reinvested from operational cash flows; correct? 23 A. No. I can't tell you the answer to that information 24 without going through that exercise. 25 Q. That is an invention, isn't it, on your part?
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18:48 1 A. No, it's not an invention. Is there a mistake? I doubt 2 it, but you have to be able to let us go through that 3 process. 4 Q. Can someone pull up your skeleton argument -- 5 A. (Overspeaking) conclusions and then accuse me of being 6 a liar and that's just slanderous. 7 Q. Let's have a look at your own side's pre-hearing brief, 8 for this arbitration, at paragraph 9. What's said in 9 this paragraph in the second half after explaining about 10 investments: 11 "Most of this investment came from retained 12 earnings." 13 So your own position is that such investment as you 14 did provide mostly came from retained earnings; correct? 15 A. I can't comment on it without going through the 16 exercise. I don't know. 17 Q. And what was put in this letter in response to 18 Minister Imena was simply untrue, wasn't it? 19 A. No, and it's slanderous for you to say it's untrue. 20 There was significant investment. What that number was 21 I cannot précis, and we won't be able to précis until we 22 go through that exercise. 23 Q. And just staying with that letter, can we look at the 24 next paragraph? We're back to the letter. 25 A. If I may draw an example for you. I don't know of one
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18:50 1 other company other than Rutongo who invested $1, any 2 money. Maybe Musha Piran maybe has invested $1 million 3 or $2 million, I don't know it, but I don't know any 4 other mining company who has invested at all at this 5 point. All those that have invested for their own 6 reasons have left. 7 Q. So FTI, we're C-086, and now going to the next 8 paragraph. So I was just looking at -- yes, sorry, 9 we're on the next -- oh no, sorry, that's right. 10 Underneath that. Sorry, just give me one moment. 11 Yes, can you go to the next page, please. Yes, this 12 was the paragraph we were on. Thank you. You then say: 13 "And last but not least -- we have existing 14 agreements beginning in 2006, later amended and added 15 to, which created the base for our large investment and 16 for the future long term mining licence. We fully 17 performed under these contracts and have a right to 18 a long term mining licence. You make no mention of 19 these agreements except to announce that they are 20 'terminated'. Your termination, of course, is a breach 21 of those agreements in violation of the Bilateral 22 Investment Treaty ..." 23 And you regarded at that stage Rwanda's actions as 24 being a breach of the bilateral agreement treaty, do 25 you?
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18:51 1 Α. I'm making an argument, you know, for me. For them to 2 say that you now have to go home and you have to leave 3 your assets behind, that has a practical monetary result 4 for us. So, you know, if that's what they were going to 5 do, and that's what I was afraid they were going to do, 6 I wanted to alert them that there would be other people 7 looking at this, and hopefully somebody would review it 8 and at least encourage them to behave properly. 9 Q. That was on 1st November. You wrote another letter on 10 5th November, which we have at C-171, to 11 Minister Biruta. Let's look at that. And you say in 12 the first paragraph you've been. 13 "... victimised..." 14 A. Yes. 15 Q. "... by the acts of Minister of State Evode Imena and we 16 ask that you intervene..." 17 A. Yes. 18 Q. Then two paragraphs down you say: 19 "... Minister of State for Mining Evode has 20 maliciously targeted NRD..." 21 A. Yes. 22 Q. Then in the next line you refer to "abuse of powers"? 23 A. Yes. 24 Q. Then you have in this letter a list of accusations 25 against Mr Imena.
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18:53 1 A. Yes. 2 Q. And if we look at item 2, for instance, you say: 3 "NRD has been out of business since that time. We 4 have repeatedly asked Minister Evode to allow NRD to 5 resume business but Minister Evode has refused, arguing 6 that there is a 'dispute' about the ownership of NRD... 7 please note that the so-called 'dispute' is only 8 recognised by Minister Evode himself." 9 And again, as in other letters, ignoring the fact 10 that Mr Benzinge was confronting Mr Imena with an 11 arbitration award and a Supreme Court judgment; correct? 12 A. Yes, but you're again assuming what that judgment says, 13 you're not going into the detail of whether that 14 judgment means anything. For the arbitrator to say: 15 I don't know what Rod Marshall is doing here, and that 16 to be interpreted by Benzinge and only Minister Evode as 17 meaning Rod Marshall is no longer a shareholder but 18 Benzinge is the sole remaining shareholder, is not 19 a fair reading of that judgment. And for me that -- 20 I fully agree that these are very emotional terms, but 21 we were facing losing everything, and I was very 22 emotional, but my point being that there's no way you 23 could read that arbitration decision and say: Rod 24 Marshall and his investors are not the owners, it's 25 Ben Benzinge.
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18:54 1 Q. Let's look at item 8. 2 A. Sorry, it also begs the question of why he stopped us 3 from tagging if there was an investment dispute. The 4 tagging goes to the business, not to the individuals. 5 Q. Item 8. 6 A. Why would he stop the company being tagged if it was 7 a person-to-person or a group-to-group dispute? It made 8 no sense to us. That's -- 9 Q. It does make sense because you have different people 10 claiming to be in control of the company. Now let's go 11 to item 8. Minister Evode -- 12 A. You're misunderstanding the ITRI rules. The ITRI rules 13 are that the tags are issued to companies, companies 14 function -- if there is an internal dispute within the 15 company, that's not an ITRI issue. 16 Q. Let's go to item 8. 17 A. No ITRI participant was ever cancelled for that reason 18 other than us. 19 Q. Let's go to item 8: 20 "Minister Evode demanded a 're-application' from us 21 for all of the NRD mining areas and maliciously violated 22 normal Rwanda administrative procedures: 23 "(a) Minister Evode refuses to acknowledge ... that 24 agreements exist between the Government of Rwanda and 25 NRD dating back to 2006 ..."
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18:56 1 Do you see that? 2 A. Yes. 3 Q. Now, that agreement was no longer extant and you had not 4 met your obligations under it; correct? 5 A. It was fully executory; correct? 6 Q. No, that agreement was defunct because you had failed to 7 meet your obligations under it? 8 A. We had fully performed and we were waiting for the 9 negotiation for the language of the commercially 10 reasonable long-term licence. 11 Q. Item (b) in your complaint to Minister Biruta: 12 "(b) Minister Evode insisted that we 're-apply' for 13 the mining licences on 2-days notice ..." 14 That's simply incorrect, isn't it? He gave you 30 15 days' notice to apply? 16 A. We assumed that it did not apply to us for all the 17 reasons I've already given you. We had two days in 18 which to reply when we were told that yes, you have to 19 reply despite the fact you don't have access to your 20 files -- 21 Q. This is what you were putting forward to another 22 minister, incorrectly, as evidence of corruption on the 23 part of Minister Evode; correct? 24 A. No, I think it's absolutely correct: Minister Evode 25 would not meet with us, period.
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18:57 1 Q. Could you look at now C-098 -- 2 A. Until two days before. 3 Q. Let's look at C-098. This is the response from 4 Minister Biruta: 5 "Reference is made to your letter of 5 November 2014 6 requesting for urgent help in connection with your 7 company being victimised and seeking for my 8 intervention. 9 "Recalling different open dialogues the Ministry had 10 with you where you raised issues concerning your company 11 of re-application process for the expired mining 12 licence; the Ministry advised that you don't personalise 13 issues but rather comply with the mining law 14 requirements. 15 "Therefore, the Ministry takes this opportunity to 16 clarify that (1) Minister of State Evode Imena made 17 decisions on behalf of the Ministry and in his capacity 18 as State representative in charge of mining industry 19 developments in Rwanda; (2) the services you requested 20 cannot be accessed without a valid mining licence; (3) 21 you have gone beyond your boundaries to raise serious 22 baseless allegations against the Minister of State and 23 this is unacceptable. 24 "In this case, you are hereby requested to respect 25 the Government of Rwanda institutions and comply with
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18:58 1 the mining laws as other operators in the mining sector 2 do. 3 "Once again, your company is requested to comply 4 with the mining laws and regulations and go ahead to 5 submit the documents required for mining licence 6 re-application process being mindful of the specified 7 timeframe." 8 And that is an entirely fair response, isn't it, to 9 your (overspeaking)? 10 A. No, that's entirely unfair and ignoring all the issues 11 we were presenting to him. 12 Q. Now can we go to bundle C-087. This is a letter to you 13 on 12 November 2014 from the Ministry in response to 14 your letter to them that we've looked at, and I'm going 15 to read the second paragraph: 16 "As stated in your letters, I would like to clarify 17 that the terms of the above mentioned contract did not 18 give NRD the rights to obtain an automatic and exclusive 19 right for long term mining licences. However, as 20 specified in Articles 4 and 5 of the contract; granting 21 of mining licence is subject to a positive evaluation of 22 the submitted feasibility study, and fulfilment of 23 obligations under the article 2 of this contract." 24 So they were reminding you, correctly, that there 25 was no automatic right to long-term licences; yes?
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18:59 1 A. They didn't -- you were too quick for me. Can you 2 scroll up? 3 Q. I just read the second paragraph. 4 A. I understand. November 12th, 2014. And who is it from? 5 Q. This is from the Ministry of Natural Resources to you. 6 A. I understand, but who, particularly? Is this from 7 Minister Imena? 8 Q. This is from Imena, yes. So the first point he is 9 making is that, contrary to the suggestion in your 10 letter -- 11 A. We disagreed, it's clear. 12 Q. Now, the next point, if you go over the page, and in 13 fact if FTI could get up that second page, and also the 14 third page of the document, the next page of the 15 document, you can see that the Ministry gave you a list 16 of the missing documents and gave you an express 17 opportunity to improve your application; yes? 18 A. Yes. 19 Q. So, again -- 20 A. But we didn't see it as a question of improving 21 an application when we were being treated differently 22 from everybody else -- 23 Q. Again, fair -- 24 A. -- we could not (overspeaking) the process continue. 25 Q. Fair and transparent and more than they were required to
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19:01 1 do given you had made a defective application. 2 A. Not fair, not transparent, we were being treated 3 distinctly differently from all other concession 4 holders. 5 Q. Now let's go -- 6 A. We were the only ones being asked to provide this 7 additional detail as if they had never met us before. 8 Q. Let's look at the letter you wrote two days later in 9 response to this. This is R-214. This is a letter 10 you're now writing to the President of Rwanda. 11 A. Yes, I don't think this letter was sent. This letter 12 was contemporaneous, but I don't think this letter was 13 sent. 14 Q. Well, it may not be, it's not signed. You're suggesting 15 this one was not sent? (overspeaking) wasn't signed? 16 A. (overspeaking) I would have written -- it was 17 contemporaneous, I'm sure, I do remember writing it, but 18 we were very reluctant on what to write to the Minister 19 so I don't know that I sent this letter. We don't have 20 any document -- particularly with the President's office 21 we would certainly have gotten a stamp and that makes me 22 think I was just blowing off steam on this letter. 23 Q. In that case I won't take time on it. Let's go to 24 C-088. This is your letter providing further 25 information to Mr Imena.
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19:02 1 A. Yes. 2 Q. And we've been told at paragraph 88 what the totality of 3 the package of information you provided to Mr Imena was. 4 So we've already looked at C-085, which was the 2014 5 feasibility study update. We've looked at C-092, which 6 was your Jillson and Marshall transaction document, and 7 in addition to that, there was a company corporate 8 social responsibility plan, a CSI plan, and there was 9 an environmental impact study. 10 Now, that was the material that you provided by way 11 of totality by this stage, and that's clear from your 12 own side's Memorial. 13 Now, we're now going to ask you to go to C-095, 14 which is the letter from Mr Imena in December 2014, 15 following a further review of the material. And he 16 tells you that the material is still insufficient, and 17 if we look at the second paragraph he says: 18 "[Based] on the documents you submitted and on 19 explanations you gave and considering the requirements 20 of the Law we would like to inform you that there 21 are important information and documents which were 22 either lacking or for which you did not submit complete 23 information and yet they are the minimum requirement for 24 any further step." 25 And then he says:
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19:03 1 "The missing documents are into two categories: (1) 2 proofs of your company's capacity to develop the 3 concessions; and (2) Detailed plans for the period of 4 the licence being applied for." 5 And then he goes on and asks you to provide "in the 6 nature and form mentioned, the following", and he gives 7 you a list of what is missing. If we can scroll down: 8 "Clear evidence of NRD Rwanda ... financial 9 viability from supporting bank(s) or any other reputable 10 financial institution(s); 11 "Financial statements of NRD Rwanda Ltd's and 12 financial statements of NRD's parent company(ies), or 13 financial statement of the company(ies) owning NRD's 14 parent company; 15 "Any tangible documented proof showing the current 16 financial viability of either NRD's parent company of 17 the parent of its parent company; 18 "A tax clearance certificate issued by Rwanda 19 Revenue Authority. 20 "You are also requested to provide, separately for 21 each concession, the following: 22 "Detailed proposals with clear timeframe for work 23 plans and business plans for the period of the licence 24 being applied for. The planned activities and 25 investments needed shall be detailed enough."
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19:05 1 Can we scroll down, please, FTI: 2 "It is [also] important to note that only will be 3 considered valid the proofs of financial statements and 4 viability for NRD Rwanda, its parent company(ies) and 5 the parent of its parent company(ies) if they are 6 companies duly recognised in the certificate of company 7 registration issued by [RWB]. 8 "All the documents mentioned above should not 9 submitted not later than January 16 ... 10 "Please be also informed that it is of concern and 11 it doesn't help at all to say that 'Rutsiro plant is 12 operational and that it is the most successful design of 13 its kind in Rwanda and that it is designed to serve all 14 NRD's Western concessions' when it is known and obvious 15 that the plant barely worked in the several years it has 16 been in place." 17 So all of this is a fair and transparent approach, 18 isn't it? 19 A. No, I would say it is slanderous, manipulative, if they 20 had given us our office back we knew we couldn't 21 respond to many of these questions, and we didn't even 22 understand the point of it. 23 Q. He has identified -- 24 A. Why were we singled out for this kind of treatment and 25 why did they double down -- why not just give us our
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19:06 1 office back and then see what we could produce. 2 Q. He has identified genuine gaps in the material you have 3 provided and given you an opportunity to remedy it, 4 hasn't he? 5 A. No. You take away our office, you say: look, if you 6 happen to have it at your home we can use the material 7 that you have at your home, then you can apply, 8 otherwise, I'm sorry, too bad, you don't deserve to have 9 your office back and be able to supply a meaningful 10 application, much less the fact that nobody else among 11 the concession holders had to provide these kinds of 12 materials, nobody, not one. 13 Q. You didn't need your office to be able to give financial 14 information of the backers and the parent of NRD, did 15 you? 16 A. Yes, we do. 17 Q. No, you don't, Mr Marshall, because it's you and your -- 18 A. How can you possibly presume to know what's in our 19 office or not? 20 Q. Because it's you and your investors that you are being 21 asked to provide financial information in respect of, 22 that's the request, and you didn't need your office to 23 do that? 24 A. I'm sorry, but we understood the fix to be in and we 25 understood that it was sort of pro forma: yes, we will
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19:07 1 provide you the documentation that we have access to, 2 tax office, as you say, the environmental office are not 3 going to provide us with anything. We knew that you 4 were setting us up for failure. We knew. 5 Q. This is an opportunity Mr Imena didn't even need to give 6 and he is giving you a third chance and identifying the 7 missing material, isn't he? 8 A. You tell me. I don't know what Mr Imena by rule or 9 practice or law had to do or not do, all I know is we 10 were unfairly prevented from getting access to any of 11 our documentation for reasons I still don't know to this 12 day, and then yet unceremoniously, you know, four months 13 after you say we lose everything, you give us our office 14 back. What was the point of that? 15 Q. Let's see your response at C-096 on 16th January 2015. 16 A. I can well imagine they become increasingly intemperate. 17 Q. So you say at item 1, the company's financial viability: 18 "As per our previous correspondence, we mentioned to 19 you that in the recent past, although without a mining 20 licence, we were able to raise 2 million USD with 21 participation from the Dutch Government ... we also have 22 firm funding commitments from other internationally 23 recognised entities, and all this is as a result of our 24 impeccable investment reputation and track record." 25 Now, if you had had -- genuinely had firm funding
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19:08 1 commitments from internationally recognised entities, 2 you could have actually provided evidence of that and 3 rather than just asserted it in your letter, couldn't 4 you? Yes? 5 A. No, I -- I mean, there's no reason for us to do this. 6 You know, for us, did we believe that we could raise 7 funds to increasingly build it out? Yes, but we had to 8 have the long-term concession. 9 Q. You didn't have firm funding commitments from other 10 internationally recognised entities, did you? 11 A. Yes, I'm sure we did. I wouldn't have written it if we 12 hadn't. 13 Q. It was untrue when you wrote it, wasn't it? 14 A. No, and it's slanderous for you to say so. 15 Q. And if you had had firm funding commitments, you would 16 have been able to identify them and produce them in 17 support of this application, wouldn't you? 18 A. I'm sorry, but you're suggesting that we would share 19 everything we knew with the minister. At this point we 20 could see what was happening. 21 Q. And this is nothing to do with what is or is not in your 22 Kigali office because if you had had firm funding 23 commitments from internationally recognised entities 24 there would have been no impediment from the Kigali 25 office --
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19:09 1 A. What makes you think that that would have made the 2 slightest bit of difference at this point? We're being 3 set up. We understand that. We just don't know what 4 the next step is going to be. 5 Q. You then said in the next paragraph: 6 "In addition, we submitted to you our list of 7 successful investment transactions of over 40 billion 8 USD. These investors would gladly bear testimony of our 9 trustworthiness." 10 Now, that is a reference to the list of transactions 11 to which your legal firm gave transactional legal 12 advice; yes? 13 A. Yes. 14 Q. So that you were, as I put to you earlier, relying on 15 that as evidence of the company's financial viability? 16 A. This goes to trustworthiness, not to whether they were 17 going to provide cash for it. I don't know on what 18 basis or what the thinking was at the time. Is it 19 responsive, or it goes to our trustworthiness, certainly 20 more trustworthy than many of the people who are in the 21 mining industry in Rwanda, and we thought that that 22 would be helpful for the minister to understand who 23 he was dealing with. Maybe I was mistaken and, if so, 24 you know, so be it. 25 Q. Then if you go down --
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19:11 1 A. We weren't trying to mislead anybody. This is a very 2 difficult business. 3 Q. We then go down, you have "current financial viability". 4 So you say you were barred from the offices, but in fact 5 you were able to retrieve copies of NRD's financial 6 statements, so there is, in fact, no difficulty in 7 relation to NRD's financial statements, and then there's 8 a reference to -- 9 A. We had some as I think I mentioned to you, we have 10 the office computers and we have our home computers, and 11 if by chance we happened to have documents on our home 12 computers, yes, we had access. That was -- that's the 13 material we submitted. 14 Q. But what this is all showing is that the important 15 deficiencies in your application, which had been 16 identified to you, none of the problems arose from 17 having -- from the documents being in the Kigali office. 18 A. I couldn't -- 19 Q. We've dealt with company -- parent company. 20 A. I couldn't -- 21 Q. We're now looking at current financial viability. 22 A. Couldn't disagree more. From our point of view the 23 financial viability question had already -- nobody has 24 invested. Nobody. From our point of view we were the 25 sole standing investors who remained in the country, and
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19:12 1 that was proof. You didn't need additional proof. 2 Did they come back to us and say: well, what we want 3 to know is, okay, you've invested whatever disputed 4 amount you want to say, you've invested this much but 5 now we need to know that you're going to be able to 6 invest X more. Those conversations never happened. 7 We couldn't find anybody to talk to at this point. 8 Q. And the other point -- 9 A. I believe a political decision had been made. 10 Q. The other point that you make, in the next paragraph, is 11 about Spalena. You say: 12 "NRD's investors created The Spalena Company LLC. 13 An LLC is a legal entity widely used in the United 14 States where each investor is responsible for their own 15 taxes worldwide." 16 And beyond saying that, you're not providing any 17 further information, are you? 18 A. Because we didn't need to. We fully satisfied it by the 19 $20 million we had already put in. 20 Q. Let's look at the third item, which deals with tax 21 clearance. 22 "As to the tax clearance from Rwanda Revenue 23 Authority: 24 "Much as with other State institutions, Rwanda 25 Revenue Authority no longer considers us to be in
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19:13 1 business. It is only once we are granted a mining 2 licence we will be able to apply for the tax 3 clearance." 4 That was simply untrue, wasn't it? The reason you 5 didn't apply for a tax clearance is because you would 6 have been unable to get one because you owed tax? 7 A. Now you are accusing us of lying. No, my assistant -- 8 Zuzana Mruskovicova, our CFO, went to the tax office 9 and, as I understand it, that's the explanation for why 10 they would not give her a tax clearance. You can ask 11 her directly, but I'm sure she's not lying. 12 I wish you could find a different phrase of "You 13 were lying", because it's really distracting. 14 Q. Could you go to bundle C-179. This is an email from you 15 we looked at earlier. It's the email we looked at some 16 time ago to Mr Ehlers dealing with the financial 17 position. Can you just scroll down a bit, FTI. Stop 18 there. And amongst the other points you make, you 19 say -- do you see, in the bottom of the big paragraph: 20 "And this does not contemplate the tax obligations 21 identified by PwC for withholding on ex-pats." 22 A. Yes. 23 Q. And that was part of a tax issue which had never been 24 resolved by this point; correct? 25 A. It was partly resolved. The withholding on expats had
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19:15 1 been resolved. The only outstanding issue, as 2 I understood it, was the company had incurred expenses 3 for casuals, and by that I mean somebody would do a job 4 at a mine site and they would give them 5,000 francs, or 5 something. So it was very much what they called casual 6 labour, and Starck had not been properly documenting it, 7 and I don't know if the problem was in the field or it 8 was at the headquarters, but the complaint from the tax 9 office was that we had not set aside social security 10 contributions in respect of that one-time payment. 11 And it was a large amount of one-time payments, but 12 it was all accumulative of what they just called 13 payments for casuals. 14 Q. As a result of that you would not have been able to get 15 a tax clearance at that point in time; would you? 16 A. Zuzana's answer is the correct one. We went there and 17 they were told we're not a company and they don't 18 recognise us, so we were not able to get one. 19 Q. I don't accept that but, leaving that aside, you would 20 not have been able to get a clean bill of health, would 21 you, because they regarded you as owing tax; correct? 22 A. No. No. It was under -- the agreement we had reached 23 with them -- and this was 2011 -- that they would come 24 in and perform a true audit. They had done some kind of 25 superficial audit with Anthony Ehlers and not properly
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19:16 1 looked at the books. They agreed. And we were waiting 2 for them. 3 Q. Well -- 4 A. So this is four years later and we're still waiting for 5 them to -- 6 Q. Even on your version of events they regarded you as 7 owing tax, but they might have been prepared to 8 recalculate the amount; yes? 9 A. I don't know whether we're owed anything. It could have 10 been zero. In fact our point was that they owed us 11 because they held a $100,000 deposit from us. 12 Q. Let's go to R-023. 13 A. Zuzana had the direct -- participated in the 14 conversation with the tax office, so please ask her that 15 question. 16 Q. R-023, this is the MINIRENA team assessment of your 17 further round of information, and if we could just look 18 at item 1 on "Assessment and Comments": 19 "Item 1: Clear evidence of NRD['s] ... financial 20 viability... 21 "The company has provided no evidence at all as 22 regards its financial viability supported by any bank(s) 23 or financial institution(s) for its present and future 24 mining operations. Indeed, among documents submitted 25 none had any information with supporting elements as
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19:17 1 regards the company's financial viability. 2 "Rather, the company just mentioned its previous 3 financial investments and investment transactions which 4 have no supporting evidence." 5 That's a fair summary, isn't it? 6 A. No. We had already satisfied the requirement by 7 investing $20 million, and this was an exercise to be 8 able to try to say: oh, it's not enough, or whatever the 9 standard would be. 10 Q. And then at item 2 they deal with: 11 "NRD['s] ... financial statements, financial 12 statements of NRD's parent company, or financial 13 statement of the company (ies) owning NRD's parent 14 company." 15 And they identify that partial financial statements 16 had been provided for the company, but then they 17 identify no material for anything above the company, and 18 that's accurate as well, isn't it? 19 A. I'm sorry. Tell me again? 20 Q. It's -- I'm going to move on because I've actually shown 21 you the documents and I've put it to you by reference to 22 your application. Let's go to item 3. 23 A. I didn't understand the question. 24 Q. Don't worry, I'm going to move on. 25 "Item 3: Tangible documented proof showing the
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19:18 1 current financial viability of either the company's 2 parent company [or] the parent of the parent company. 3 "No documents have been submitted in this 4 respect ..." 5 And it's fair to say, isn't it, that despite being 6 given opportunity after opportunity, you had not met the 7 requirements given to you by the ministry? 8 A. Please, I'm sorry, again I'm going to repeat myself: 9 this is a question for a new investor who has just 10 appeared, they don't know anything about him, please 11 give us some proof of something so that we know or have 12 some idea. Not somebody who has been in the country for 13 eight years, invested $20 million, or whatever you claim 14 the disputed amount is. This is for a new person that 15 they don't know anything about. So for them to say: oh, 16 well your $20 million doesn't count so we need to see 17 something else. We interpreted this to mean: no, we've 18 proven our financial viability. If they're asking for 19 additional financial viability, that would make us 20 different from these guys, but that's not what's 21 happening here. 22 Q. Well, you knew what you were being asked because it was 23 being specifically identified to you in the letters? 24 A. And this is a question for a first-time applicant that 25 they don't know.
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19:20 1 Q. So you chose to ignore it because you regarded it as not 2 being -- 3 A. We believed it was fully satisfied. Somebody's invested 4 $20 million bucks. You don't say: oh, you have nothing, 5 goodbye. 6 Q. Let's look at item 5: 7 "Detailed work and business plans for each mining 8 perimeters and clear timeframe. 9 "There were no separate applications for each 10 'concession' as per the requirement in the Minister's 11 letter which would indicate the merits to consider when 12 assessing the application for each 'concession'. The 13 technical report submitted was of a very general nature 14 and did not present details on the work done in every 15 'concession'. It is, however, necessary to note here 16 that there was some useful information presented in the 17 session called 'Nemba Project' which provided a general 18 assessment of the resource (cassiterite and coltan) in 19 Nemba 'Concession' and the possibility of putting up 20 a processing plant. However, the information is 21 insufficient as regards proper mine development for the 22 Nemba mining perimeter. 23 "The company did not submit a detailed work and 24 business plan for each of the mining 'concessions' as 25 requested in the Minister's letter and there is no
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19:21 1 mentioning of the timeframe for operations for each 2 mining 'concession'". 3 And that is a fair summary, isn't it, of the 4 material you submitted? 5 A. No, I -- may I repeat my former points: we didn't have 6 our office, we didn't have access to any of that 7 information. This is for a new mining concession 8 applicant and this is the more detailed kind of 9 assessment that you would have expected from him. They 10 knew what we did, we met with them frequently prior to 11 this so-called dispute period, and this was not really 12 applicable, but if it was applicable then they needed to 13 give us our office so that we could respond. 14 Q. Let's go to R-024. This is Dr Biryabarema's review 15 from February 2015, and if you go to page 2, you can see 16 that he makes -- he deals also with NRD Rwanda Limited 17 financial statements, and essentially he makes the same 18 points as the previous reviewing team but adds his own 19 in relation to the financial statements, you can see at 20 2.2.1. So you can see he conducts an analysis of what 21 you have provided; yes? 22 A. I see his words and I -- he's certainly mistaken. 23 Q. Can you go to section 2.5 in his report. 24 A. You know, again, you can see by the tone, by the veiled 25 accusations, that it appears they don't want us there.
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19:23 1 Not: how do we help this company to follow the usual 2 administrative process of let's sit down and figure out 3 what we need and what they need and come up with 4 a solution. 5 Q. That's not fair at all is it, Mr Marshall? We just 6 looked at the evaluating team's assessment of your work 7 and business plan and they made a fair point that in 8 relation to the Nemba concession there was some useful 9 material. So where there is useful material, they do 10 say so. 11 A. No, I disagree with you, because they're giving credence 12 to one small application in one small respect. They 13 knew about our company. Some of them had spent many 14 hours with us, and that's the usual, as I say, collegial 15 process that everybody goes through until now. It's not 16 only a new process which gets applied to us as a holder 17 and not to anybody else. But it's a whole different 18 process where a list is given: oh, you didn't answer it 19 the way we wanted or what we expected, so sorry, you are 20 insufficient, and therefore not worthy of a license, so 21 goodbye. 22 Q. Then you have paragraph -- 23 A. This is (inaudible) extracting our mining assets from us 24 and not compensating for it. 25 Q. Then you have paragraph 2.5 from Mr Biryabarema's
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19:24 1 review. And he starts off by essentially saying the 2 same thing as his previous reviewing team, but he adds 3 to it, you can see in the middle of the paragraph: 4 "However, the information is insufficient as regards 5 the development of a proper mine plan for that 6 'concession'. There are no substantive technical 7 reports, either submitted in the past or in the recent 8 submitted documents that show advanced exploration work 9 done in any of the five 'concessions'. The reports on 10 exploration works in Rutsiro and Nemba (submitted in the 11 past) and the 'Nemba Project' provided in the current 12 documents are all of a reconnaissance nature. There has 13 never been any exploration report (past and recent) on 14 Mara, Giciye or Sebeya 'concessions'." 15 And that's all a fair summary, isn't it? 16 A. No, of course not. It's slanderous, and it begs the 17 question if they're so confident about our lack of 18 having performed in any respect, why didn't they give us 19 the office back? 20 Q. And if you go to his recommendations. 21 A. Or perhaps they knew that there was nothing left in the 22 office. 23 Q. In his recommendations he says: 24 "There is no basis for MINIRENA to grant a mining 25 licence to NRD (Rwanda) for the five 'concessions'.
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19:25 1 Technically NRD Ltd did not apply for any 'concession'. 2 It was clearly stated in the Minister's letter that each 3 'concession' should be applied for as an entity. 4 Secondly the documents submitted were insufficient and 5 not specific to any 'concession'. 6 "The company has not shown any financial or 7 technical viability and is therefore not qualified to 8 such a large and potential area. If it had been 9 cooperative, negotiations for one concession, say Nemba, 10 would be viable and reasonable. 11 "The company has publicly and on several occasions 12 stated that it has so far invested 20M US$ in the 13 concessions. A look at the list of expenditures 14 includes huge payables without documentation, like 15 a reported foreign consultation fees of about five 16 billion [Rwandan francs]. There might be need to 17 request the Auditor General's Office to audit the 18 finances of the company to stop it from making any 19 unsubstantiated claims." 20 And that is all a fair summary of the position, 21 isn't it? 22 A. No, I would suggest that they have retained British 23 counsel to come up with these arguments and this 24 language, because this is not the way they write and, 25 until this time, not the way they've ever communicated
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19:26 1 with us, and certainly not the words they ever would 2 have used with us. This is very confrontational, very 3 litigation-focused, and very distilled, entirely unlike 4 their usual writing style. Perhaps you gave him some 5 help in preparing this, but this is not what we've ever 6 seen, and not what I believe is their own work. 7 Q. And you know fully well, Mr Marshall, that this is 8 an entirely fair and objective review of the 9 deficiencies of your application, which we've seen by 10 looking at the application ourselves; correct? 11 A. No, absolutely not. I would say that this is a well 12 prepared and well documented effort to be able to 13 substantiate a decision they've already made. 14 Q. And you're aware, aren't you, that Mr Imena's further 15 refusal of your application in May came after further 16 consideration of the material, both by the reviewing 17 team and by Dr Biryabarema, and a negative 18 recommendation; yes? 19 A. If you tell me that's the case. These documents I have 20 not seen until this litigation, this arbitration. 21 Q. Can you go to -- 22 A. All this is new, and that's highly unusual in a country 23 like Rwanda where everything is done on a consultative 24 basis. 25 Q. Can you go to R-079. This is a statement of seizure of
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19:28 1 a car, done by Mr Bosco, and you can see it's done at 2 the request of the Rwanda Revenue Authority; do you see 3 that? Second line. 4 A. I had understood that the process from the Rwanda 5 Revenue Authority is if they have some claim against you 6 they give you notice. So, you know, until this process, 7 I was never aware that that was even possible. 8 Q. You knew, didn't you, that you had unpaid debts to the 9 Revenue and, indeed, they were seizing your assets; yes? 10 A. Definitely not. 100%. Not 99%, 100%. We had been told 11 that all our accounts were frozen until such time 12 a determination had been made about who was the owner. 13 That's why we also couldn't get a tax certificate. 14 Q. And, as I said earlier, the reason you couldn't get the 15 tax certificate is because you had unpaid debts and this 16 is just another example of how that it so. 17 A. I put it to you that in fact what you've been doing all 18 day long is trying to say what I say is the truth and 19 you say is a lie, and it's simply unreasonable. It's, 20 in fact, slanderous. 21 Q. Let's go to another document. We're going to go to the 22 RDB minute at C-101. 23 A. Certainly there was never any notice to us. If there 24 was ever a notice from the RRA to anybody, it didn't 25 come to us.
[Page 274]
19:29 1 MR HILL: Mr President -- 2 THE PRESIDENT: Mr Hill, it's 7.30. 3 MR HILL: Exactly, Mr President. I haven't finished, as you 4 can see. I know this is obviously eating into my time 5 with other witnesses. I think I will be less than 6 an hour, I think, I hope considerably less than an hour, 7 but less than an hour with Mr Marshall tomorrow morning, 8 and I know it's on my head and that we've got a chess 9 clock and it takes away my time with other witnesses. 10 I'm close, but not -- I hoped to finish today but 11 I haven't managed to. 12 THE PRESIDENT: Very well. We'll adjourn until midday 13 tomorrow. 14 (7.30 pm) 15 (The hearing adjourned until 12 noon the following day) 16 17 18 19 20 21 22 23 24 25
[Page 9]
46:22 74:20 102:7
106:23 111:21,24
111:25,25 112:23
112:25 113:3 201:7
204:3 208:19,23
210:14 270:9,25
271:15
five-year 32:1 59:3
61:5 78:7 84:13
89:6 104:2 194:4
fix 217:25 256:24
flawed 50:16
flaws 209:6,7
flows 240:23 241:21
242:22
focus 19:16 29:6,9
45:16 51:6 69:18
84:8 106:23 108:16
108:22 111:9
114:14 157:12
186:10
focused 10:9 142:8
follow 25:1 105:16
109:16 145:3
150:15 173:15
208:6 220:13
221:24 239:8 269:1
followed 218:25
following 15:20 34:3
67:13 68:12 85:2
88:23 93:24 150:17
155:4 215:25 239:4
253:15 254:6,21
274:15
follow-up 54:9 75:16
75:19,20 109:24,25
110:2,3 111:19,20
127:19 128:2
217:24
foot 236:10
force 124:6
foregone 67:18
foreign 13:20 52:3
136:18 242:4
271:15
forests 108:20
forget 12:8 88:5 157:9
Forgive 171:10
form 2:5,7,13 4:5,15
5:3 43:11,11 144:8
234:25 254:6
forma 256:25
formal 154:6,10,23
216:6
formality 167:4
168:21 169:2
format 4:17 58:9
64:13 76:3,3,4
former 35:1 46:22
96:10 114:22
145:17 150:1 165:8
201:13 268:5
formerly 220:18
forms 30:19 238:17
formulation 55:1
forth 19:13
forthcoming 67:22
forward 46:1,25 197:6
207:13 223:22
236:25 248:21
forwarded 16:6
found 18:25 36:23,24
95:7,12 119:17
120:24 121:2
123:21 133:7 188:3
201:16 204:4
208:15 225:9 226:4
226:6
four 46:17 73:22,25
102:7 111:25
200:21 239:23
240:3 257:12 264:4
fourth 12:18 224:1,7
four-year 57:20
236:14 237:14,15
237:16
fraction 179:15
francs 152:5 202:17
263:4 271:16
fraudulent 42:1,3
98:1 108:4 155:18
155:22
French-English 2:18
2:18,19
frequently 268:10
Friday 145:5 153:16
230:18
friend 98:21 139:8,11
friends 226:4
frightening 14:10 15:6
frolic 168:5
front 8:4 11:25 35:25
124:22 129:16
187:7
frozen 273:11
frustrating 220:10
FTI 2:22,22 2:7 8:23
9:7 12:15,16 34:6
39:12 103:13 115:9
136:10 140:19
151:25 166:4
187:11 189:2 202:5
213:18 214:18,19
244:7 251:13 255:1
262:17
FTI's 214:16
fulfil 56:11
fulfilled 185:8 200:11
fulfilment 250:22
full 81:21 96:22 144:7
210:2 219:25
226:20
fully 60:19 74:12
81:16 90:11 91:11
91:13,18,24 92:20
92:22 115:2,6
141:23 155:19
167:24 171:1
184:17 185:14
230:23 231:2
233:17 244:16
246:20 248:5,8
261:18 267:3 272:7
full-time 98:18 99:18
99:18,19
function 150:6 154:17
247:14
functionality 158:19
functions 235:7
fundamental 61:14
122:5
fundamentally 209:8
funding 132:23 134:1
257:22,25 258:9,15
258:22
funds 184:20,23 258:7
furnish 18:13
further 5:12 9:13
16:20 17:3 26:21
35:11 49:20 57:2
158:24 159:5,20
164:3,13,24 187:20
187:22 202:22
210:18 225:6
252:24 253:15,24
261:17 264:17
272:14,15
future 111:22 207:10
244:16 264:23
G
g 224:2,7
gain 36:15 109:18
gap 21:23
gaps 256:2
Gaspard 26:1
gather 150:9
gave 7:9 8:21 11:20
64:20,23 70:4
104:21 105:20
121:11 161:23
165:25 168:15,24
195:20 211:19,21
228:9,12 230:1
248:14 251:15,16
253:19 259:11
272:4
general 18:9,17 93:21
94:24 140:23 158:9
160:1,6 202:20
225:18 226:6
267:13,17
General's 17:25
271:17
generic 169:13 192:17
genesis 1:23
gentleman 107:15
142:25
genuine 256:2
genuinely 257:25
geological 58:10
192:18
geologists 57:11,11
58:11,13 189:23
190:16
Georgina 1:24
German 226:15
gets 44:9 130:11 144:7
173:5 215:2 269:16
getting 14:20 27:10,12
45:17 98:24 179:10
218:16 257:10
GIBSON 2:14
Giciye 46:23 47:18
68:9 201:8 204:1
270:14
Giciye/Nyatubindi
132:22
Gifurwe 64:22,23
194:13
Gihango 26:8
gist 148:4
give 3:13 4:8 13:11
20:1 22:24 35:10
41:22 49:11 58:16
58:18 73:6 74:13
80:4 81:21,25 82:21
83:10 85:18 86:6,18
89:2 97:9,19,19
100:12 107:4 137:8
152:24 154:24
155:1 172:24 175:9
177:22 182:13
186:23 193:20
198:6 203:17 205:7
229:14 238:5
242:11 244:10
250:18 255:25
256:13 257:5,13
262:10 263:4
266:11 268:13
270:18 273:6
given 18:19,20 29:13
48:7 58:1 63:1 70:5
70:8,16 77:3 78:4
81:18 91:15 100:8
102:24 123:5
130:22 134:18
154:20,21,22 156:6
169:4 172:8,9 181:6
186:22 190:12,23
194:3 208:10
227:25 234:22,22
235:15 240:6
248:17 252:1
255:20 256:3 266:6
266:7 269:18
gives 26:22 33:23
145:6 224:20 254:6
giving 22:3 55:15 57:7
69:7 96:17 98:19
99:12 117:10 140:8
160:24 186:20
218:7 229:25
234:16 257:6
269:11
glad 79:11 181:23
gladly 259:8
GmbH 15:25 121:17
GMD 7:2 25:24 26:20
175:1
GMD/ITSCi 25:24
goals 133:1 204:17
goes 34:6 138:11
154:8 163:17 247:4
254:5 259:16,19
269:15
gone 13:21 60:14
61:25 65:21 66:1
79:17,21,22 81:18
147:7 204:25
249:21
good 5:23 64:19 72:25
73:11 92:23 130:8
143:16 215:9 226:4
goodbye 267:5 269:21
goodwill 21:22
gotten 218:21 252:21
governance 159:24
government 1:18 2:9
25:20 36:2 46:23
47:17 55:25 64:10
67:16 71:25 72:9
73:4,11 74:5 77:11
77:16 82:5,5 90:24
91:13,23 107:11
112:17 114:5
165:14 173:5,10
178:19 183:8 184:8
185:25 190:12
193:24 197:5
198:10 199:24
202:17 203:1,14
206:9 221:19 222:7
236:8 242:9,9
247:24 249:25
257:21
Government's 132:21
go-between 93:21
grade 63:10
grant 90:7,10 132:16
132:20 133:24
134:22 183:9
201:23 211:17
270:24
granted 30:2,3 32:6
74:5,8 183:25 201:7
262:1
granting 31:14 69:6
71:18 73:11 250:20
grapple 144:9
grateful 143:7 145:10
159:1
great 12:1 179:20
190:7 233:25
greatly 51:9 133:3
greenfield 63:19
GROSH 2:11
gross 97:15 180:14
ground 9:22 11:6
47:19 91:10 120:5
132:3 181:12 187:6
grounds 118:10
119:22 123:18
124:11,25 139:9
group 1:15 2:4 13:20
68:16 96:5 101:6
196:16 221:10
groups 96:17 98:25
group-to-group 247:7
growth 132:24
guarantee 67:18 206:8
guards 109:19
guess 33:10 36:8
guessing 226:2
guidance 218:21
guys 15:3 266:20
H
habit 95:16
Hage 2:7,7,8,8
half 4:7 25:2 27:1,20
93:15,16 94:3
172:15 178:25
208:13 243:9
hand 35:23 82:25 83:1
handful 221:10
handle 73:1 223:19
handled 71:20 124:24
handling 38:8 39:19
40:24 42:8 124:13
hands 6:20 148:9
hands-on 7:6
happen 111:11 144:16
144:18 145:2
174:12 191:24
256:6
happened 17:16 25:2
32:21 33:12 35:7
45:23 49:2 65:9,10
79:12 84:16 98:7
107:1 111:16 112:5
113:1,2,15,16
120:11 127:9
130:16 134:11
139:6 148:22 155:6
156:8,23 160:18
161:18 177:3 218:7
223:22 236:18,19
260:11 261:6
happening 23:12
72:18 73:10 86:21
91:9 92:24 227:21
258:20 266:21
happens 120:22
148:11
happy 7:17 27:11
98:10 99:15 130:7
186:4 187:13
192:25 222:20
harass 227:7
harassment 87:21
98:23 230:10
hard 1:16 13:1 82:25
105:16 220:12
hardware 214:10
harm 68:11 102:9
227:13
harmed 12:2 137:5
HARRISON 2:3
harshly 232:24 233:20
hate 105:11
having 3:12 5:10 63:9
85:9 107:19 117:17
173:9 180:16 181:5
200:10 224:15
260:17 270:18
HC 100:19 121:18
131:20 149:4
180:19,23 196:9
241:13,19
head 24:1 136:16
[Page 10]
139:5 274:8
headed 197:21 210:8
216:6
heading 19:5 143:8
headquarters 263:8
health 263:20
hear 220:1
heard 41:23 126:18
152:22 175:5 176:9
206:2 215:4,13
hearing 1:8 116:25
117:5,6,8,14,19,21
123:12,14,16,20
126:21 137:21
139:3,4 144:13
145:2 152:8 158:3
205:8 219:10
274:15
hearings 3:12,15 4:2
42:25 129:17
138:13,17
heated 19:13
hectares 195:9
held 101:18 102:11
172:16 174:23
176:24 202:2
213:24 264:11
help 41:8 44:1 98:21
106:10 141:16
142:5 146:24
214:19 215:14
222:25 224:12
249:6 255:11 269:1
272:5
helped 223:1
helpful 2:15 41:12
259:22
helpfully 214:8
helping 107:6
her 18:13 22:9,9 37:21
43:8,9 95:17 124:5
124:7 125:18,25
127:4 137:18,21
138:6 139:1 232:3
262:10,11 264:14
hereinafter 183:10
hereto 18:12
herewith 16:7
herself 13:5 120:18
hesitate 68:25
Hi 2:16
hiding 128:8
hierarchy 234:3
high 48:22 123:7
144:23
higher 39:10 234:4
highlights 52:25 53:1
58:16
highly 3:19 154:19
225:10 272:22
Hill 2:6 3:5 1:6,7,8,13
1:25 2:3,20 4:22,24
5:14,22,23 6:20
25:10 38:14,16
41:15,16,22 43:19
43:20 52:16 66:5,7
74:17 76:21,22,24
77:3 83:8,24 87:16
87:18 105:11,18
129:20,24 130:15
141:15,17,22 142:4
142:14 143:2,7,11
143:15,18,23,25
144:5 145:4,10,13
153:21 154:1,5
171:11,13,16,18
195:2,4 203:9
213:14 215:1,4,19
215:23 224:4,7
237:4 274:1,2,3
hillside 9:23
him 3:18,18 4:18
12:22 17:18 20:1
24:16 28:18 32:20
35:20 36:21,23
39:14 60:20 66:5
76:8,9 93:17,22
104:12 110:23
127:19 135:13
137:5,8 140:6,8
144:18 154:3 167:6
168:23 173:20
175:22 220:2,13,20
220:24 224:15
225:9 226:4 227:1
228:11 229:15
235:9 236:21,21,23
237:1 250:11
266:10 268:9 272:4
himself 20:2 92:15,17
174:25 175:7 182:5
246:8
hindsight 196:24
hire 37:6,18 70:18
72:6,19 73:3 88:3
hired 98:4 150:4
hiring 70:10
historic 199:16 200:1
history 54:1 171:23
174:11 179:13
hit 166:8 167:16
168:16
hoc 69:7
hodgepodge 110:10
hold 16:20 56:24
111:21 152:2
holder 18:13 29:21,23
45:7,7 72:17 78:10
79:25 90:20,22
114:2,22 116:3
169:19 186:7
269:16
holders 28:8,24 29:15
30:12 44:14 55:18
61:20 69:10,12,16
69:22 72:12 73:2,15
73:18 74:3,10,10
78:9 79:4 86:22
90:3 104:7 114:3,4
134:6 150:13
166:17 186:18
212:11 221:7 229:8
252:4 256:11
holding 15:25 16:2,4
16:16 20:10,14
75:25 228:15
holds 213:21,22
holes 72:15
home 15:3 220:9
240:17 245:2 256:6
256:7 260:10,11
HON 1:11
honorary 136:13,15
136:18
honour 5:17 67:19
Honourable 107:22
132:18 164:4,14
200:18
hook 50:4
hope 43:25 154:1
237:6 274:6
hoped 67:7 274:10
hopefully 79:6 245:7
hoping 141:1
hoses 9:23
hot 130:25
hour 4:7,7 5:11 274:6
274:6,7
hours 17:23 192:22
269:14
house 26:3 37:21
housekeeping 1:5,19
5:14 6:15 143:23
213:13
Huber 196:1
huge 271:14
hundreds 50:20 71:3
192:22
hypothetical 120:10
I
ICSID 2:23,24 1:17
idea 2:21 53:14 55:16
118:14 138:10
156:23 162:16
178:2 197:18
266:12
identical 237:14
identification 14:24
identified 53:5 167:17
187:9 189:19,20
190:1 191:13 192:2
255:23 256:2
260:16 262:21
266:23
identifies 152:2
identify 52:15,18 53:1
56:21 188:5 193:2
258:16 265:15,17
identifying 257:6
ies 265:13
ignorance 138:25
ignorant 1:21
ignore 143:12 186:5
186:15 267:1
ignores 177:25
ignoring 246:9 250:10
illegal 10:16 21:20
26:10,18 38:21 39:4
44:7 68:12,14 70:9
70:14,17 71:10 72:1
72:7,16 89:24 90:4
123:1 219:9
illegally 219:6
illegals 10:3
illustrating 226:24
image 189:4
imagine 1:22 35:20
36:20 257:16
Imena 84:20,22 85:11
85:22 86:9 87:19
89:12 101:10
107:22 112:20
113:9 114:17
127:11 128:2
132:17 133:13,17
134:20 163:21
170:17,24 173:16
173:19 174:13
175:2 176:12 177:6
182:5 186:23
192:10 194:24
195:1,2 202:7 208:4
208:11 210:7 211:9
212:15 213:5 216:8
217:1,4,6 219:14,20
225:2,6,8 227:18,22
228:2,13 232:6
234:14 236:18
239:15 243:18
245:15,25 246:10
249:16 251:7,8
252:25 253:3,14
257:5,8
Imena's 5:25 60:15,22
62:21 63:21 167:14
169:2,6 185:21
186:5 192:3 193:9
205:3 215:24 216:2
216:11 272:14
immediate 72:14
immediately 11:25
92:9 189:14 213:15
226:12
impact 213:15 253:9
impacts 213:16 214:2
impeccable 257:24
impediment 258:24
impediments 89:10
173:20
implausible 225:8
implemented 96:7
important 80:4
102:19 105:15
128:24,25 130:10
143:14 161:2
253:21 255:2
260:14
impression 49:11 82:1
86:6,18 92:18
improper 148:18
impropriety 148:18
improve 190:23,25
222:24 251:17
improved 190:22
improving 251:20
inaccurate 32:15
110:21 111:6
131:16 138:1 221:2
inaccurately 93:6,8
inadequate 59:5 170:7
inappropriate 3:19
6:19 50:16
inartfully 78:23
188:23
inaudible 241:12
269:23
incidents 156:15
include 64:16 113:6
included 11:1 53:19
57:8,10 60:8 104:6
192:14
includes 4:14 64:14
87:21 152:3 271:14
including 20:21 35:1
38:8 72:22 87:14
97:14 101:21
103:19 125:7
139:21 187:23
208:16 211:12
217:12 218:11
225:12
inclusion 54:22
income 219:5 224:15
incomprehensible
126:1
inconsistency 86:11
inconsistent 59:10
incorporated 20:12
46:22
incorrect 88:10 241:1
248:14
incorrectly 248:22
increase 51:8,17
increasing 10:17
51:10
increasingly 257:16
258:7
incumbent 183:7
incurred 263:2
indebtedness 152:2,25
indeed 6:8 12:22
59:19 79:15 179:10
193:1 195:16
264:24 273:9
independent 69:20
INDEX 3:1
indicate 42:14 201:18
201:21 207:14
267:11
indicating 30:16
indication 197:1
indicative 75:11
indirectly 224:9
individual 147:1,4
152:3 163:23
177:24 193:12
individually 165:11
individuals 127:7
140:25 150:4,9
247:4
indulgence 23:23
57:25 73:12 74:5
168:6 173:13
183:24
industrialising 98:6
98:15 99:10,11
industry 11:14 51:15
57:25 89:3 94:25
184:12 187:1
207:24 249:18
259:21
ineffective 142:1
inexplicably 23:3
inferred 215:17
inform 16:18 223:6
253:20
informal 69:8
information 1:25 6:9
18:14 20:25 21:9
24:12 29:8 48:5,7
53:17 55:2,16 56:5
56:8 57:10 64:14
88:13 92:20 94:25
97:2 99:8 108:5
116:23 150:11
154:21 156:7
181:16 182:1,12
185:11,17,24 192:8
193:21 204:5,5,25
205:16 210:12
213:3 218:23
226:17 238:18
242:16,23 252:25
253:3,21,23 256:14
256:21 261:17
264:17,25 267:16
267:20 268:7 270:4
informed 14:7 25:17
25:24 55:22 68:16
84:3 119:7 133:5
156:22 181:24
210:1 213:14,18
230:18 255:10
informing 152:1
216:11
infrastructure 187:9
187:10 188:7
initial 20:23 46:17
191:5,11
initiate 46:7,16 77:13
initiation 165:3
initiative 49:17 239:11
injection 184:20
innovative 73:9
inquiries 234:17
insinuation 52:17
insist 161:12,14
insisted 127:17 248:12
insistent 111:21
inspect 158:10
installed 108:18
instance 45:14 130:9
156:19 246:2
instances 69:13 140:9
224:8
instead 3:10 35:8
45:22 111:24,25,25
129:22 139:7
162:21 240:7
institution 206:9
institutions 249:25
[Page 11]
261:24
institution(s) 254:10
264:23
instructed 122:7
127:1 135:14,19
139:2 145:16
150:23 170:24
instructing 135:15
234:6
instruction 54:20
57:15 117:10 123:4
166:14 181:20
238:25
instructions 215:5,7
239:4,8
insufficient 62:13,16
194:4 253:16
267:21 269:20
270:4 271:4
intelligence 59:19,20
60:12,13 93:20
94:23 98:19,23
222:19
intemperate 11:21
257:16
intend 241:13
intended 168:19
169:11 171:2,6
199:7
intends 129:21 152:1
intention 18:4 72:23
intentional 24:4
intentionally 14:19
intentions 72:21
interacted 67:16
interactive 56:20
interested 77:19
160:25 197:5,5,8,9
197:13
interesting 19:1 93:23
interests 16:3,12,17
16:22 158:20
interject 100:4 157:13
intern 2:24
internal 38:8 39:19
40:25 59:19 60:12
91:25 154:23 213:2
226:18 229:8
247:14
international 1:2 2:11
2:12,13 125:14,17
222:25
internationally
257:22 258:1,10,23
internet 214:15
interpret 123:2
interpretation 115:5
interpreted 19:12
66:8 99:11 122:21
164:22 228:17
246:16 266:17
interpreter 2:18,18,19
2:19,20
INTERPRETERS
2:17
interpreting 72:23
interrupt 13:8,9 85:1
85:2 105:12 129:25
interrupted 22:19
126:12
interrupting 14:1
interruption 130:7
153:22
intervene 82:12
245:16
intervention 249:8
interview 36:20
interviewed 32:20,20
35:5,17,19 36:18
intimidate 227:7
introduced 9:4,12
10:13
introducing 24:7
invented 168:22 169:1
169:5,12 225:13
invention 242:25
243:1
invest 57:23 67:21
98:8 173:14 208:21
240:16 261:6
invested 51:18 74:6
134:2 168:20
184:23,25 199:21
200:5 206:23 207:6
207:6,20,23 208:5
211:4 240:17,21,22
240:25 241:20
242:6,7,21 244:1,2
244:4,5 260:24
261:3,4 266:13
267:3 271:12
investigate 17:20
investigated 16:21
23:17 60:19 155:20
investigating 92:7
investigation 17:3
19:19 22:2 32:10,19
36:12,23 38:9 39:20
40:25 43:9 54:9
59:14 158:24 159:5
160:13 192:7
218:15
investigations 20:7
25:19 35:15 213:2
investing 98:12
188:11 265:7
investment 1:2 2:12
2:13,14 23:9 50:7
51:13 52:18 60:25
61:6 64:14 89:2
98:14,15 99:4
165:15 168:7
169:21 170:6
183:25 184:13
188:1,6,17 190:13
193:3 197:3,6,10,13
197:14 199:16,16
200:1 203:22,25
204:11,23 208:1
210:13 218:11
241:13 242:20
243:11,13,20
244:15,22 247:3
257:24 259:7 265:3
investments 51:6
187:8,16,18 188:4,8
188:15 197:15
242:10 243:10
254:25 265:3
investor 211:3,3
261:14 266:9
investors 13:20 21:19
89:2 181:21 182:1,6
217:6 226:1,14
227:8 230:11
240:21 246:24
256:20 259:8
260:25 261:12
invitation 46:3 78:2
80:18 101:14
103:15,21 107:20
109:10 177:16
invite 5:18 101:16
194:15
invited 80:24 81:13
101:11 104:1
115:12 163:9 186:7
238:15
inviting 78:6 102:2
103:8,11 114:17
115:15
involve 69:17,19
involved 36:20 39:10
54:7 96:1 98:6
99:10 123:23
133:25 179:25
involvement 35:13
40:20
in-house 121:24
irregularity 39:13
irresponsible 10:20
Isaac 220:18
issuance 77:14 192:13
issue 11:17 27:19 40:9
41:6 52:22 69:13
89:8 121:7 126:18
127:12 141:19,23
142:7,9,12,13
176:16 213:13
219:16 229:3
247:15 262:23
263:1
issued 111:2 119:8
125:25 127:3,4
139:8 171:19 175:1
247:13 254:18
255:7
issues 12:23 18:8,15
47:7 56:3 84:8 86:2
87:18 89:9,12 95:23
98:2 101:20 102:18
103:18 110:14,22
118:24 134:24
140:7,16 158:1,17
159:24 162:2
166:11 205:8 229:2
242:8 249:10,13
250:10
issuing 175:20
italicised 234:15
item 38:20 39:22
40:11 90:2,6 100:6
100:6 136:11 137:3
138:21 139:22
188:10 200:8
203:17 221:12
224:2,7 227:5 230:3
230:6 246:2 247:1,5
247:11,16,19
248:11 257:17
261:20 264:18,19
265:10,22,25 267:6
items 48:23 87:11
125:11 202:7 205:3
207:18
iterative 200:6
ITRI 25:12 171:13,23
219:8 247:12,12,15
247:17
iTSCi 25:17,19,23
26:15,19 174:4,6,7
174:8,11
IZABELA 2:24
J
J 1:11
Jack 93:21 94:24
James 2:22 149:14
225:18
January 11:2 46:10
48:16 58:24 59:4
64:2,9 91:5 112:18
205:21,21 238:23
239:6 255:9 257:15
Jean 2:19 145:14
149:11 155:17
230:14,19
jeopardised 16:18
Jillson 197:22 253:6
job 12:22 93:19 94:9
150:7 154:15 263:3
jobs 73:8 132:24
jockeying 82:6
John 2:12 95:3
Johnston 153:4 154:3
John's 94:19
joined 40:6 62:4 92:5
93:16
joint 25:24 85:24
jointly 37:17
Joseph 2:7,7,8,8
JR 1:11
judgment 97:14,19
120:25 121:23
122:10,16 124:25
125:2 131:17
138:24 140:5
145:17,21,25
146:13,13 148:5,10
148:12 149:8 150:1
150:1,11 160:3,15
162:3,14 175:15,22
176:7 180:24 196:5
228:4,15,17,18
229:21 246:11,12
246:14,19
judgments 97:14,22
120:1 149:21
150:12,14,19
154:14 158:2,5,7,12
158:16 159:15,17
160:10,12 162:13
162:15 178:1
218:16 230:22,23
231:1
Julius 35:2 39:7
July 157:10,20 159:14
June 1:7 1:1 131:11
131:11 135:2
160:18
jurisdiction 1:8 143:9
justice 2:15,16 123:3
135:23 136:6
139:19 140:4
141:11 153:5 157:1
157:18 158:10,11
159:6 160:14 162:1
177:25 178:4
218:15,19 231:16
Justice/Services 158:9
justification 119:21
227:17
justify 67:2
K
Kabanda 26:17
Kabarebe 149:14
225:18 226:6
Kabaya 10:25
Kabera 35:2 39:7
KABIBI 2:9
Kagubare 93:16 95:3
Kagubare's 95:11
Kamanzi 27:25 31:13
31:18 43:21 44:2,22
46:5,13 47:23 64:3
65:1,6,8,14,15
66:24 91:16
Kamanzi's 11:20
45:14,20 112:18,21
KAPLAN 1:22
Kayomba 38:22
Kayombya 39:5
keep 12:15 14:1,2
24:25 30:22 31:10
38:24 83:18 95:8
115:9 166:4 168:9
190:10 241:5
keeping 83:5 115:9
keeps 136:19
kept 26:9 170:23
172:15
Kevin 167:2
key 47:3 132:22
165:14
keys 20:21
KG 1:11
Kibelinka 146:25
147:6
kicked 171:1
Kigali 34:4,8,9,11,15
42:6 94:8,14 102:6
110:12 117:3
125:21 179:10,19
258:22,24 260:17
killed 12:2
killing 161:20,23
163:2
kilometres 10:2 11:5,5
kilos 196:12
Kimihurura 34:14
kind 23:21 24:12
29:10 45:6 48:13
57:19 60:3,7 72:15
89:11 97:9 104:9
142:3 201:18 202:2
203:14 206:1,13
207:2 232:9 255:13
255:24 263:24
268:8
kindly 160:9
kinds 71:23 95:1
256:11
Kinyarwandan 157:6
Kinyarwandan-Eng...
2:19,20
knew 11:12 13:19
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228:16 236:3 239:1
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knockout 142:23
143:4
knock-on 102:10
knowledge 10:3
known 57:17 60:20
170:5,5 194:7,9
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knows 65:25 66:1,1
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L
lab 191:21
laboratory 53:12,16
labour 101:8 263:6
labourers 180:20
lack 19:22 61:14 87:23
88:10 143:8 270:17
lacking 253:22
language 44:25 65:25
66:11 81:1,19 86:15
106:10,12 111:3,10
183:17 198:6
201:25 203:3
228:18 248:9
271:24
large 10:2 71:2,13
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largely 149:13 179:19
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largest 149:9
large-scale 44:13
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last 2:24 17:21 21:17
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50:12 62:15 89:16
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late 42:2 143:6 220:3
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launch 226:12
launched 24:20
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law 14:7 18:9 69:11
71:16,18 74:9 90:8
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lawful 162:10 174:16
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laws 21:23 158:10
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lawsuit 97:4,5
lawyer 15:20 117:10
120:20 131:7
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lawyers 6:8 121:12
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lazy 95:19
lead 204:18
leading 104:4 187:16
learn 95:24
leased 37:21
leasing 37:19
least 38:17 96:4 145:5
161:5 244:13 245:8
leave 3:10 5:11 141:15
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lecture 174:7
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left 11:12 32:9,12 62:3
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legal 10:17 16:1 20:9
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legislation 183:3
legitimate 155:12
160:3,15 162:3
length 133:6 192:15
lengthy 130:6 133:24
less 67:4 93:14 162:20
190:6,7 237:20
256:10 274:5,6,7
lesser 90:23
let 3:13 5:18 14:11
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80:4 86:12 92:17
100:6 118:19
128:13 129:6
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letters 23:14 42:11
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let's 1:4 5:11 20:3
31:10 32:23 40:14
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102:21,22 110:18
114:16 119:9
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134:20 136:22
140:14,17 143:18
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221:12 222:21
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247:10,16,19 249:3
252:5,8,23 257:15
261:20 264:12
265:22 267:6
268:14 269:2
273:21
level 48:22 144:23
levels 237:22
leverage 80:5
liabilities 16:14
202:22
liability 149:5 202:17
202:23 203:1
liaison 94:24
liar 243:6
licences 29:1,17 31:15
44:10 45:4 48:2
59:4,6,7 61:5 69:25
73:13 74:1 77:5
79:2 81:14 101:22
103:20 104:19
105:9 106:5 111:22
113:11 114:22
115:1,2 116:5,17
133:9,15,16,18
163:8,10,16 164:21
165:8,17 166:23
168:25 169:22
170:8 172:1,2,4,7
192:14 201:24
218:4 220:7 222:13
224:16 233:19
236:11 237:13
240:3 248:13
250:19,25
licence-holder 173:6
173:12 183:23
licence-holders
181:25
license 200:16 269:20
licensed 30:1,6,8
171:2,6,19,22
licensing 31:8 45:1
61:18 62:8 173:2
lie 273:19
life 161:25
light 6:6 16:25 159:22
like 1:10 2:12 18:4
22:13 29:6 41:22,23
45:25 57:24 61:16
63:19 69:7,13,21
70:2 71:1,20 72:14
79:24,24 80:20
83:17 88:8 89:16
90:24 92:5 97:6
101:4 105:17
106:21 114:21
115:18 122:24
129:24 130:6
151:19 153:22
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175:13 202:3 211:2
216:1 218:22 222:2
222:5 226:18
227:15 240:11,16
250:16 253:20
271:14 272:23
likely 184:7
limited 4:25 114:21
121:6 185:3 213:3
214:24 268:16
line 52:5 91:22 129:15
151:1,3 231:17
240:15 245:22
273:3
lines 91:8
link 214:16
lion's 241:10,15,17
liquidated 160:12
LISA 2:11
list 54:9 87:4,6,11
97:16 107:15 138:8
155:10 165:9 166:1
166:8 168:15
197:11 198:24,25
200:9 205:3,4
207:18 210:23
226:11 245:24
251:15 254:7 259:6
259:10 269:18
271:13
listed 202:7
listen 73:25 112:13
241:15,17
listened 127:3
listening 56:19 119:8
210:3 216:1,20
literally 9:23
litigation 139:1
272:20
litigation-focused
272:3
litigator 121:12 140:8
little 1:17 61:8 98:14
104:23 150:3
live 124:24
LLC 1:15,16 2:4
261:12,13
LLP 2:3,3,7,7,8,8
load 101:2
location 27:15 35:22
204:12
locus 142:3
lodge 6:13 234:20
lodged 24:15 137:24
logbook 83:13,14,17
logbooks 26:21
logged 144:15
logical 208:6
logs 33:4
long 31:15 61:7 67:14
67:17,20,21 80:20
95:6 100:8,9 103:11
111:2 113:7 114:3
115:13 128:22
134:7 167:8,10
177:17 217:22
219:3 223:25 226:5
226:11 238:11
244:16,18 250:19
273:18
longer 24:3 73:23 74:1
205:7 246:17 248:3
261:25
look 3:13,21 5:12 8:5
12:10 15:13 21:17
25:12 31:11 40:14
46:4 49:3 50:6 51:4
52:24 53:25 54:4,6
60:15,22 66:18
67:11 68:5 79:8
80:2,15 82:14 87:11
88:20 90:2,6 93:24
99:22 100:14
102:20 105:7 107:5
107:13 109:16
120:11 123:6
125:11 128:19
134:20 136:22
138:6 140:17 142:6
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157:5 169:8 172:15
176:13 177:7 181:9
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188:12 191:1
194:17 196:11
197:2,16,21 200:19
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202:12 203:4 208:3
208:11 209:16
217:7 221:3,12
222:21 223:4
229:12 243:7,23
245:11 246:2 247:1
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261:20 264:17
267:6 271:13
looked 8:25 11:23
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75:13 91:6 112:18
127:20 128:3,10
134:15 150:25
155:23 157:21
163:11 178:4
185:20 239:7,18
241:4,8,9 250:14
253:4,5 262:15,15
264:1 269:6
looking 5:23 8:11
43:24 54:23,24 62:5
62:10 75:19 116:21
149:17 153:6
157:18 165:15
168:7 178:2 187:13
187:15 203:19
212:6 238:4 244:8
245:7 260:21
272:10
looted 160:20 161:9,9
LORD 1:11
lose 56:13 167:9
168:25 257:13
losing 22:20 220:8
246:21
loss 38:23 39:6,24
40:2
lost 22:15 96:9 136:14
136:25 138:2 158:2
160:17 217:10
219:5
lot 9:19,21 138:12
lots 8:7 26:10 30:18
50:2,2 97:11,13
113:6 159:20
196:18,18
loud 56:1
LOUTFI 2:23
low 58:19
lower 164:20 206:4
ltd 20:11 107:23
153:16 159:16,19
165:7 201:18,19
271:1
Ltd's 254:11
luck 104:13
LUCY 2:8
lying 225:16 262:7,11
262:13
M
Madam/Sir 159:12
made 3:2,4,8,20 4:4
6:1 7:23 12:24 13:4
13:6 15:18 21:5
23:16 28:1 31:2
32:16 34:1,12 37:6
37:8,17 38:3 48:24
49:1 51:14 58:24
59:2,3 60:3,6,11
61:13 64:18 68:7
98:14 111:13
119:13 120:5
123:14 124:11
125:1 129:10
140:22 142:16
144:20 157:15
159:13,17,20
162:15 163:15
164:3,13 165:20
167:14 170:14
172:10 174:13
193:11 196:7,19
197:4,15 199:20
200:15,25 202:10
206:1,2 211:17
222:14 225:7,11,22
226:23 229:11
235:24 237:7
241:13 242:18
247:7 249:5,16
252:1 259:1 261:9
269:7 272:13
273:12
made-up 55:19
mafia 98:24 155:9
mail 35:23 83:2
mailing 235:5,12
maintain 70:22
maintained 131:3,4
major 101:2
majority 15:24 16:17
19:11 104:10
make 2:17 3:9,22 4:22
7:16 12:23 18:3
23:8 30:22 31:1
34:13 38:19 41:10
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makes 60:17 123:18
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making 12:1 18:2
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make-do 214:23
malicious 14:19 24:4
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41:4 42:10 72:11
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malfeasance 24:20
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man 107:15 142:25
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manage 96:19
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management 7:22
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managers 16:1 9:19
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mandate 155:23
mandatory 86:10
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manipulated 255:19
manner 20:2 44:18
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77:24 85:25 108:4
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Manson 86:7
manual 106:24
March 26:1 70:20
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market 39:9
marketing 64:9 94:12
193:22 244:18
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mass 235:4,12
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mass-mailing 181:25
massive 10:2 11:5,5
18:19,23 30:25
match 23:21 24:12
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material 18:25 24:23
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materials 23:24 38:4
40:1 89:21 91:2
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150:8 157:11
191:15 192:10
198:12,15 204:10
matter 1:20 23:17
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maximum 39:10
may 2:10 224:25
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maybe 2:10 8:22 11:4
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244:12 245:13
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McGowan 1:24
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48:18 52:1 57:17
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262:14 263:14
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means 5:2,2 28:16
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meant 197:12 207:10
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measure 86:8
120:18 121:1
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spirited 129:2
mediation 139:5
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members 14:15 22:7
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Memorial 3:1 24:9
memorials 49:25
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mention 39:21 113:22
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mentioned 49:24
114:10 124:20
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260:1 265:2
merely 118:12
122:18 123:16
merit 118:11,12
merits 1:8 138:23
165:21 167:15,18
267:11
mess 111:13
message 102:4,25
103:1,1,11,12
met 11:19 57:1
225:19,24 252:7
252:13 253:13
metadata 139:11,13,15
metres 10:2 11:5,5
3:25 4:1,12 5:7,15,14
6:13 7:1,15 143:24
144:4 149:13
meticulous 203:10
Michael 2:15 7:16
149:14 225:18
65:1 91:16 92:8
160:1,1,1,1,1,1
MICHELLE 2:7
middle 29:4 100:15
110:20 160:23
203:11
mid-August 116:15
might 1:20 2:11 26:23
154:25 264:7
265:17
military 25:4,17 26:23
26:24 71:7,9
71:7,9 87:10 91:23
98:19,22 137:1
137:1 222:19
224:24 266:15
million 152:5 202:17
263:4 271:16
Millennium 38:23 39:6,24
40:2 51:15 132:24
184:12 187:1
207:24 208:22
240:25 241:4,7
241:12 242:10
242:13 244:15
244:21 257:20
263:11 266:18
266:18 267:21
268:1 271:8
mindful 250:6
mine 79:18 170:23
170:23 171:4
mined 108:18
108:21 189:21
170:25 183:13
212:24 221:9 222:9
263:4,20 271:21 270:5
270:13
minimal 26:9 170:18
263:17
minerals 25:5 82:14
83:4 87:24 88:22
99:16 101:17
108:15 114:20,25
146:1,8,9,25
147:6,9,11,13
155:18,22 156:4,9
156:17 194:1
194:23 196:6 219:9
221:23 222:10
226:7 232:18
244:2,12 245:13
70:14,18 71:23
96:14,18 98:11
99:13 100:22
101:4 147:1,4,9,18
156:1,2,6,23,24
226:20
mines 40:17 72:11
171:20 222:15
226:17,21
MINEX 2:9
mining 101:8
108:16 171:3,16
203:22,25 205:14
206:19 207:1,11,13
210:13
MINIRENA 2:11
201:21 206:21
mining/exploitation
136:7 210:25
211:2,3
ministry 14:8 36:3
54:2,17 55:3 56:2,21
56:24 57:1,1,13
118:18 101:17
114:25 121:15
131:18 134:23
158:9 164:4,14
190:17 204:10
206:21 210:11,13
239:8,9 249:9,12,15
250:1,10 251:5
251:5,15 266:7
267:13,17 268:7
minus 185:21
minute 107:12,15,17,19
107:22 129:18
134:14 147:23
153:22 154:1,5,12
159:18 208:22
224:11 237:4
86:12,13 109:5
111:15 134:16,19
142:15,20 143:19
161:17 213:11
mischaracterisations
110:14
mischaracterised 61:4
misconduct 142:9
154:2
misinformed 127:9
mislead 127:15 140:15
260:1
misleading 127:21
140:15
misled 127:18 140:15
222:3 45:21,25
127:14 140:15
228:8 229:23
misremember 103:2
103:15
misrepresent 97:15 99:15
127:13 140:15
misrepresentation
18:24 23:20
24:20 25:1 32:22
39:2 120:16
127:13 130:21
254:1 257:20
mistake 139:24 196:22
mistaken 11:24 45:24
127:13 140:15
258:19 259:23
267:24
mistakes 167:1
misunderstanding
14:10
misunderstood 21:1
misuse 19:12
140:15
mixed 11:2 14:4
39:10 40:8 40:8
40:11 105:20
105:20
127:8 135:14
135:14 137:21
208:2 213:7 232:22
mixing 11:2 14:4
moments 185:21
money 12:22 17:5
18:16 86:8
151:2 168:6
172:15 184:23
206:24 240:22,25
241:14,17,20
242:5,7,12,12
[Page 14]
month 12:8 25:25
35:9 44:4 101:2
146:21,22,24 159:8
months 12:8 28:3
92:10 133:24 149:2
160:20 164:16
169:20 219:6
257:12
more 11:22 12:15
24:12 25:9 36:12
41:20,25 42:22
51:13 58:13 62:23
85:18,19,20 86:4,8
90:3 91:21,22 95:23
97:21 99:12,12
101:2 102:19
131:22 132:2,13
138:6 140:7 141:3
149:18 156:16,17
161:15 171:10
172:14 174:24
192:6 207:23 208:1
209:23 211:7
214:23 219:6
230:20 234:10
235:17 251:25
259:20 260:22
261:6 268:8
morning 5:23 75:15
274:7
Morris 2:3,3
most 11:11 59:14
62:18 96:20 101:7
121:7 128:25
132:12 161:25
196:4 214:21
230:13 243:11
255:12
mostly 94:12 243:14
motivation 201:17
motorcycle 40:4
Motorcycles 39:23
40:2
move 12:11 15:14 27:4
27:7,17 41:14 43:20
83:9 85:15,20
100:10 113:17
132:5 151:17,19
163:5 176:18
178:10 211:8 237:3
265:20,24
moved 146:25 147:16
moving 7:15 226:7
236:24
Mpongo 35:2,11
37:11,14
Mruskovicova 39:18
40:10,24 42:8 43:7
94:6,13 95:15,19
98:2,8 109:17
151:21 178:7,10
179:8,17 231:5
262:8
Mruskovicova's 94:12
MSA 147:9 148:9
155:23 156:5,9,17
156:21 195:24
224:12 225:9
much 7:5 41:20 53:14
61:8 90:3 93:13
102:18 105:14
179:18,23 191:23
208:9 215:9 219:16
234:2 236:1,22
237:20 256:10
261:4,24 263:5
MUGENZI 2:19
MUKARUTABANA
2:20
multiple 51:10
murdered 161:20
Murundi 26:4
Musha 169:19 244:2
must 57:16 80:9 147:7
160:4 168:19
169:10 194:6,9
Mutabingwa 117:10
mutual 72:10 98:21
myself 231:24 266:8
N
name 25:9 34:18
137:18 169:17
170:13 171:10
named 82:20 184:22
namely 158:13 201:8
names 200:21 231:22
232:2
NARCISSE 2:9
narrative 50:5 91:7
111:10 134:13
narrow 50:3
narrowly 54:2 170:11
national 11:14
nationalisation
217:11,16 218:2,5
nationalise 224:12
nationalising 221:23
native 2:5,7,13 4:17
5:3 76:3,4,7 144:8
Natural 15:19,24 28:3
46:5 82:14 83:4
87:24 88:22 101:17
114:20 115:17
153:15 154:11
164:4,14 201:6
223:5 251:5
nature 142:8 210:2
254:6 267:13
270:12
near 9:1 221:4
nearest 34:15
nearly 113:13
necessarily 204:25
214:17
necessary 64:7 65:12
121:13 178:16
183:9 209:1 213:21
267:15
need 10:16 27:7 53:22
53:23,23 85:15
100:9 120:22 142:5
142:15 145:1
171:21 176:25
179:25 186:10
198:13 207:23
211:5 214:18
238:19 239:9,13
241:2 256:13,22
257:5 261:1,5,18
266:16 269:3,3
271:16
needed 29:10,12 30:1
58:5 104:14,15
106:10,19 108:2
113:10 170:12
212:4 214:7 229:3
254:25 268:12
NEEDLE 2:8
needs 82:9
negative 272:17
neglect 154:12
negotiate 46:25 67:5
77:12,17 78:2,5,6
79:1 81:13,19 84:12
89:5 114:18 115:13
115:15 209:12
237:20 240:6
negotiated 28:7 31:16
31:19,21,25 48:3
64:19 79:20 81:16
186:8
negotiating 28:25
44:24 46:1 66:4
77:19 79:5,25 81:2
81:3 84:24 108:11
164:25 186:1
237:21
negotiation 48:14
56:12 57:1 58:2
64:25 66:19 70:6
74:15 78:20 79:10
86:3,7,20 91:22
92:6 186:9 237:10
237:18 240:5 248:9
negotiations 29:2
30:13 45:8 46:7,16
47:6,8 66:10 68:23
69:2,3 77:13 104:7
105:9 108:10 111:3
116:15 177:17
237:19 238:10
271:9
neighbour 26:4
neither 120:14 174:16
210:19
Nelly 119:6,7,14
125:17,21,23
126:25 137:18
139:8,10
Nemba 10:23 46:23
54:12,14 68:17
77:15,20 84:13 89:6
104:3 106:24
108:18 187:22,24
188:8,20,23 201:8
203:25 232:13
267:17,19,22 269:8
270:10,11 271:9
nephew 149:6
net 242:7
neutral 240:16
new 28:6 31:20 46:20
48:2,5 52:15,18
53:1,18 59:3 66:18
66:20 67:3,6 68:23
70:7 75:23 108:1,3
108:8 111:8 113:11
113:19 114:18,18
114:23,24 115:1,4
115:18 116:5,7,9,10
133:18,21 163:10
163:15 165:5,19
172:1,4,7 182:9,10
182:10 188:6
189:20,25 192:16
193:3 194:14,22
195:12 197:10
201:21,25 206:21
211:2,3 217:22
236:1 240:21,25
241:20 242:7,21
266:9,14 268:7
269:16 272:22
next 17:23 25:25
39:22 50:6 51:4,22
66:6 80:15 83:3,9
88:20 90:2,6 95:10
108:13 139:21
160:19 176:22
177:11 184:19
206:4 213:25 214:2
231:17 234:13
235:14 240:10,13
243:24 244:7,9,11
245:22 251:12,14
259:4,5 261:10
nice 28:18
NICOLE 2:13
nine 61:7
nine-page 52:11
nine-pager 91:6 239:6
Niton 226:19
Niyigena 107:16
Niyonsaba 25:10,11
171:11
Niyonsaba's 25:6
171:8
nobody 57:14 62:23
73:9 107:10 111:23
111:25 114:10
131:22 142:8
153:17 207:23
228:17 232:16
256:10,12 260:23
260:24
nominal 97:10
nominally 161:5
none 59:5 65:8,9
67:23 98:7 102:20
209:19 218:25
224:18 225:23
260:16 264:25
nonetheless 18:8
nonsensical 131:4
135:6
non-industrialised
173:24
noon 274:15
normal 247:22
normally 129:24
notarised 20:15
note 16:8 18:10 77:5
80:17 84:1 136:10
136:12 165:14
176:12,23 177:5
238:11 246:7 255:2
267:15
noted 84:6 183:2
nothing 5:3 30:10,15
30:18 57:24 60:18
61:16,23 65:13 70:4
110:19 112:23,25
136:24 138:6
145:10 151:2 163:4
163:14 174:23
192:16 197:12
209:23 212:3
223:14 258:21
267:4 270:21
notice 3:13 19:15
117:8,14 121:11
151:20 154:20,24
155:1 156:7 162:11
219:10 248:13,15
273:6,23,24
notification 217:14
223:9
notified 120:14,21
121:9 123:12,16,20
124:5 125:21
126:20,22 127:22
128:5 129:5,9
notify 119:19 120:18
Notwithstanding
135:25
November 8:24 31:6
44:17 45:3 50:18
52:12 59:3 61:4,9
93:18 188:2,3,18
189:21 190:3
191:17 192:17
193:1,3 195:16,17
205:23 245:9,10
249:5 250:13 251:4
nowhere 72:16 110:4
NRD's 39:7 70:21
87:22 89:22 101:23
108:15 118:17,21
123:7 147:3 148:21
164:5,15 182:21
187:8,15 188:15
199:8 208:25 209:5
210:11,12,15
254:12,13,16
255:14 260:5,7
261:12 265:12,13
Nsengiyuma 145:14
153:14 155:16
230:14
null 121:18
number 2:25 21:16
22:24 32:16 38:3,13
48:23 52:7 54:7
56:18,25 57:12
81:25 84:19 86:18
94:21 96:1 106:14
110:10 129:2,14
136:7 137:11
139:19 142:16
159:17 190:12
208:5 242:13,19
243:20
numbered 38:17
numbers 51:20
numerous 118:10
208:15 218:11
225:8
Nyakabingo 237:8
240:8
Nyatubindi 7:9 8:19
9:2,3,10,11,14
10:25,25 11:3,19
12:3,5 47:19 54:12
54:16
Nziza 93:21 94:24
0
object 4:25 52:17
117:5 118:14 139:3
objected 22:20 118:10
118:24 119:2,6
139:1,9 149:15
242:11
objecting 126:25
objection 2:9 4:22 5:8
6:14 117:20 119:14
119:20 120:5,19
121:11,13 137:20
137:24 142:17,20
145:9
objections 22:23
125:23 129:16
142:21
objective 217:5 272:8
objectively 212:6
obligated 182:18
obligation 144:2
211:20
obligations 167:25
182:16,20 183:4
248:4,7 250:23
262:20
obligatory 95:21
observation 99:25
100:1 202:15
observations 201:5
202:11
observed 26:10 158:3
OBSERVERS 2:10
observing 152:18
obtain 4:16 180:3,9
182:22 250:18
obtained 48:2 76:13
192:18 195:7
obvious 65:5 255:14
obviously 1:19 20:6
65:12 66:13 120:7
125:25 129:18
141:12 143:2
174:19 274:4
occasion 53:8 156:18
[Page 15]
Occasionally 130:5
occasions 225:8,19
271:11
occurred 47:20 63:9
110:3
occurring 209:5
October 8:1,9,16
24:20 28:9,14 30:3
30:7,9 32:4 44:11
44:17 101:12,19
106:16 110:9,11,25
111:12,15,16 113:9
113:25 134:7
164:16,18,19
211:16 212:14
217:13 218:3
219:22 221:14
224:24 235:16,22
odd 28:12 122:24
OECD 102:6,11 104:5
104:12,22 106:6
107:3 109:2,14,15
110:6,12,19 111:13
off 49:3 71:1 156:7
161:10 168:5
173:13 231:19
236:23 252:22
270:1
offered 45:22 112:22
113:3,3,4,4
offering 82:8
office 2:11,12,13,14
7:2 14:9 15:3 19:3,5
45:20 49:8 82:21
94:8,14,17,17
125:22 133:7
136:16,21 153:11
154:6 155:16 161:9
168:18 169:2,6,10
179:10 180:11
181:18 186:19,22
186:24 205:24
212:23 217:20
234:18 252:20
255:20 256:1,5,9,13
256:19,22 257:2,2
257:13 258:22,25
260:10,17 262:8
263:9 264:14 268:6
268:13 270:19,22
271:17
officer 26:16 34:18
officers 63:11
offices 30:21,24 34:16
56:5 111:5 131:10
136:3 178:19
193:20,23,24
229:10 235:2 260:4
official 88:25 89:21
93:2 209:18
officials 230:8
often 67:4 88:13 101:2
oh 168:8 220:24 244:9
265:8 266:15 267:4
269:18
okay 5:20 27:24 29:4
46:14 66:9 67:9
77:2 82:6 87:17
103:2,6 128:19
130:15,22 138:25
145:12 148:3 166:7
188:14 215:22
240:16 261:3
old 115:3 204:6
Olivier 26:16
Olomouc 10:8
Ombudsman 153:11
154:6
Ombudsman's 125:22
once 36:12 81:16
101:1 123:11
133:20 250:3 262:1
ones 45:9 89:22 96:24
129:11 159:25
220:16 252:6
one-line 55:15
one-liners 56:14
one-time 263:10,11
ongoing 19:10 24:5
28:5,10 29:14 36:11
53:11 58:10 89:10
92:6 175:25 188:4,8
191:18 196:14,14
237:19 240:5
online 144:14
only 4:12 14:24 15:14
20:4 29:1 35:8,12
39:1 45:9 47:17
53:11 61:7 63:5,14
82:11 88:2 96:24
100:25 101:9 104:1
108:17 109:3,24
110:2 111:13,18,19
114:9 117:6 126:2
135:2 141:7 148:20
150:23 162:22
169:3 171:19,23
174:9 179:3,13
185:20 191:21
194:21 195:7,11,18
195:21,25 208:8
212:12 213:4
216:14 221:19
227:20 229:8 230:4
234:16,21 246:7,16
252:6 255:2 262:1
263:1 269:16
onto 2:5 72:4 114:13
139:21 170:15
203:19 236:4
open 4:8 75:3 107:14
249:9
opened 2:21 75:5 88:2
opening 57:13
open-ended 54:1
open-pit 99:14
operable 228:18
operate 201:19
operating 28:23 46:19
50:15 101:1,1
106:15 171:4
operation 171:23
179:18,18
operational 100:17,23
100:24 240:22
241:21 242:22
255:12
operations 74:6 98:7
98:13,16 99:14
171:20 181:19
223:11 264:24
268:1
operator 29:12 30:2,6
30:8 171:22 173:23
operators 171:3,6
250:1
opinion 19:25
opportunities 94:22
100:9 190:11,12
opportunity 4:19
30:14 68:10 81:18
89:11 100:8,12
114:14 134:1
154:22 168:8
211:22 212:2
234:19 238:13
240:3,6 249:15
251:17 256:3 257:5
266:6,6
opposed 76:4 241:20
opposing 124:7
optimal 165:15
optimistic 79:23
option 71:17
order 70:22 76:8
81:25 119:8 122:12
144:8 148:15
158:11 171:22
197:19
orders 123:14 148:14
154:19 218:25
231:12,23
ordinarily 35:24
82:18 109:7,7
119:12 203:16
221:3
ordinary 57:24
organisation 62:4
92:5
organised 26:16 101:7
origin 64:8 226:8
original 49:7 50:10,14
51:1 56:6 61:5
65:25 67:7 75:5
79:12 80:18 82:19
131:14 144:25
183:18 185:8,13
originally 87:2
others 32:20 62:2 83:3
153:9 158:6 180:24
227:7 230:11 240:9
otherwise 30:7 45:4
121:15 186:21
223:3 256:8
ought 239:3
ourselves 272:10
out 2:3 15:9 22:3 27:9
28:13 36:23,24 39:2
54:4 56:23 68:20
70:12 71:21 72:25
77:4 83:15,16 87:18
94:12 95:23 97:2
107:6,7 111:15,21
131:10,12 134:25
143:9 158:3,4,22,25
161:21,23 169:18
171:1 173:23
177:15 179:19
182:20 191:6,11
200:9 204:4 207:20
212:12,13 213:2
215:13 217:19
219:20 220:7 221:5
224:25 225:24,25
235:3,12,17,19,21
246:3 255:24 258:7
269:2
outlined 50:14
outrageous 41:12
59:10 61:16 94:16
outset 82:13 118:7
outside 156:5,20
outstanding 143:25
151:12 180:16
181:3,5 263:1
over 6:25 10:7 26:13
30:6 39:12 62:15
114:22 130:24
131:17 144:11
152:5 155:14 159:8
160:1 162:7 200:4
204:3 222:17,17
227:2 240:21
251:12 259:7
overall 193:10
overcome 138:2
overjudging 93:10
oversee 18:10
overspeaking 11:15
13:10 29:8 37:2
44:16 57:1 60:1
71:12 86:15 93:7
97:10 103:25
110:16 112:7,10
116:1 128:12 174:1
190:20 240:14
241:16 242:1 243:5
250:9 251:24
252:15,16
owe 151:2 155:11
owed 150:24 180:12
262:6 264:9,10
owing 263:21 264:7
own 3:24 14:9 15:4
20:4 22:2 34:11
36:15 50:4 53:12
92:20 94:8 154:23
165:13 167:15,17
167:21 168:5 170:2
178:14 179:10
209:21 243:7,13
244:5 253:12
261:14 268:18
272:6
owned 11:14 20:11
100:19 127:15
135:9 226:16
owner 19:8 24:3 114:7
122:7 127:18,25
131:8 135:25
157:16 159:2 175:9
175:9 176:4 180:6
209:11 220:5,7,19
227:15 228:20,23
229:1 230:2,5
273:12
owners 13:19 19:8
130:21 131:8
135:16,17 142:2
157:14 161:4 176:3
224:9 228:11
246:24
ownership 19:12,24
19:25 121:6 131:2
131:19 134:24
147:4,25 227:25
229:15 246:6
owning 227:14 254:13
265:13
owns 14:25 172:23
175:24
P
package 75:14 213:20
213:22 253:3
packages 213:19,23
214:9 215:15
Pact 25:12 171:13
page 3:2 8:24 9:1,7,9
10:19,22,23 21:17
22:24 25:14 26:13
27:14 31:10 33:5,6
38:6,11,16 50:8
51:22 52:24 53:10
54:6 58:15 77:23
87:12,12,15,15,20
88:20 99:22 107:13
107:19 119:10
123:9 125:6,10,11
128:23 136:8,9,10
136:12,22 139:16
139:21 140:17
148:11 155:14
164:20,24 177:9
178:22 182:12
187:4,8,8,12 188:25
189:2,2,4 190:5
200:17,20,20 201:3
202:6,13,21 203:4
203:19 205:13,13
206:4 216:20 217:8
223:4 224:1,7
229:13 235:14
238:9 240:10,13,20
244:11 251:12,13
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[Page 17]
proceeds 155:7 156:8 156:23 process 34:24 41:13 45:12 55:14,23 56:13,20 63:18 64:7 65:13 82:9 100:20 102:9,15 104:9 105:3,25 107:11 113:8 114:9 117:7 117:20 120:21 122:9 132:8,9 133:25 138:7 139:2 150:15,17 154:20 154:24 155:12 164:25 169:24 170:1,21 173:4,9 182:10 205:6,11 210:20 211:25 212:4 217:22 219:1 219:10 220:10 223:11 232:14,15 232:16 238:18,24 241:3,16 242:14 243:3 249:11 250:6 251:24 269:2,15,16 269:18 273:4,6 processes 200:6 processing 50:9,20 101:6,6 205:19 267:20 procurement 95:3 160:25 produce 75:24 256:1 258:16 produced 1:23 41:20 43:17 64:10 99:2 190:13 production 10:22,24 10:24 11:1 50:9 55:2 58:16,16,18 76:15 98:5 99:20 108:14,15 204:13 205:19 237:22 profession 94:2 professional 76:11 94:5,19 96:14 197:12 225:10 232:10 profit 98:11 profitability 64:15 program 132:21 programme 25:12 53:11 57:7 73:3,8 96:7,8 174:11 progress 28:25 69:4 188:11 progressed 69:2 project 132:23 184:24 267:17 270:11 projects 51:7 54:8 157:24 prominent 230:13 promised 74:13,13 82:9 90:8,17 promising 30:10 promotional 190:6 prompt 47:8 166:5
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Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 18]
270:23 recommends 201:6 reconnaissance 270:12 reconsider 129:21 record 6:14 36:9 82:22 83:18 257:24 recorded 195:15 records 4:18 94:11 175:24 192:18 rectify 18:1 rediscovered 22:16 redrawn 106:24 refer 17:24 39:18 40:9 40:23 42:8 43:7 50:6,12 57:21 153:9 153:10 184:19 189:15 220:11 245:22 reference 11:4 15:18 28:1 40:3 50:25 68:7 151:10 155:21 155:22 159:13.17 159:20 164:3,13 178:18 233:21 249:5 259:10 260:8 265:21 references 222:14 referred 7:18 9:20 52:2 61:2 65:1 67:17 110:24 183:10 211:13 referring 31:20,22 41:7 67:25 86:13 124:1 156:19 163:19 164:17 178:3 192:23 218:1 219:23 222:14 235:20 refers 2:19 164:1 165:5 208:13 refinery 50:20 reflected 11:22 50:3 70:21 155:19 189:6 reflection 134:17 refusal 212:16 215:24 216:2 272:15 refuse 218:12 refused 3:3, 16 44:20 96:10 137:9 178:13 219:11 220:2 229:14 246:5 refuses 247:23 refusing 3:12,13 219:7 regard 20:19 36:14 53:16 76:15 95:19 99:9 106:5 114:20 115:17 149:1 188:9 209:14 223:13 regarded 180:15 181:5 229:2 244:23 263:21 264:6 267:1 regarding 15:19 38:21 39:4 40:12,16 41:4 41:7 76:14 210:12 223:13 regards 189:18 264:22
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Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 19]
135:4,7,8 137:23 142:2 145:3 146:20 146:24 150:19 156:9 159:1 177:19 179:1 182:22 183:13,17 185:4 193:16 195:23 199:17 207:25 211:19,21 212:1 215:20,22 219:18 219:19 233:25 234:24 235:12 236:4 244:9,17 250:19,25 rightly 123:21 rights 24:22 29:20,22 69:20 70:1 133:10 137:2 182:16,21 183:9 212:1,24 250:18 riled 11:25 riots 161:10 risk 57:23 River 9:3,11 11:9 69:13 70:2 88:6 rivers 108:20 RNRA 89:1 90:11 91:4 ROBERT 2:19 Rod 75:9 111:13,24 246:15,17,23 Roderick 2:4 3:4 5:21 16:2 18:2 20:17,22 role 18:3 38:21 39:4 39:23 40:1,12,16 41:4 room 101:18 ROSE-MARIE 2:20 ROSSI 2:18 roughly 28:14 189:11 235:7 round 65:4 66:10 215:21 264:17 row 25:16 206:5 RRA 94:10,10 180:7 202:22 273:24 RT 1:11 rude 207:5 rule 139:4 257:8 ruled 121:18 147:15 147:22,24 rules 1:1 150:15,17 163:10 174:8 200:13 247:12,12 ruling 3:4 125:2 rulings 179:12 run 14:11 94:4,12 95:1 142:18 143:6 151:13 running 17:13 94:6,16 Rusagara 84:3,6 rushed 130:10 rushing 132:11 Rutongo 63:15,18 71:7 79:9 90:4 166:17,20 168:12 172:6,7 193:8
194:13 235:19 236:4,5,15,19,21 237:7,22 238:7 240:5,6,8 244:1 Rutsiro 10:24 12:4 26:6,9 46:23 47:4 47:18 54:10,11 68:9 99:23 100:15,17 106:24 108:17 187:21,23 191:7 201:8 204:1 255:11 270:10 Rwandan 14:6 16:4 25:17 60:4 67:15 73:11 82:4,5 90:8 124:18 126:22 137:14 176:6,7,17 179:13 180:5,18 183:3 202:16 206:9 209:14 213:20 216:3 221:24 222:15,18,19 226:8 271:16 Rwanda's 21:23 222:24 244:23 RWB 255:7 Rwf 38:23 Rwinkwavu 194:13 R-013 119:5,9 R-014 122:23 123:7 R-020 200:14 R-022 222:21 R-023 264:12,16 R-024 268:14 R-032 125:3 R-036 132:15 R-040 5:24 R-055 148:6 R-074 151:16,20 R-079 272:25 R-107 238:3 R-112 107:8,12 R-114 17:11,14,21 R-115 151:4 R-198 135:24 136:6 R-201 139:16 R-203 176:12,23 177:5 R-214 252:9 R-231 12:13 S s 264:19 265:11 safety 51:11 101:23 205:20 saga 147:5,8 salary 96:2 145:17 sale 38:22 39:4,6 95:22 147:20,21 155:5,18,22 same 20:6,7 29:15 31:23 44:12 45:6 48:1,7,13 51:2 54:17 55:1 57:7 81:24 104:8 107:20 110:25 112:15 115:11 123:4 128:16 129:1 134:5 136:8 145:1 146:17 147:14 148:23 157:6,7 160:23 166:18 172:2,6,8,9 183:22 186:17 189:3 206:4 212:10 214:17 215:16 224:3,4 230:22 235:18,23 236:12 236:14 237:9 268:17 270:2 sample 194:23 195:8 samples 192:1 195:7 195:14,18 196:9,12 196:18 sampling 53:11,13,18 191:3,5,18,19 194:21 195:6,11 196:15 Sangano 121:23 SARAH 2:18 sat 4:16 48:21 52:13 232:2 satellite 189:4 satisfactory 201:11 satisfied 90:13 126:22 160:14 162:3 167:24 183:19 199:11,13,15 230:24 231:2 261:18 265:6 267:3 satisfy 149:13 152:3 save 128:15 178:9 saw 19:4 24:21 47:11 79:22 126:24 149:13 178:5 194:13,13,13 198:15 203:8 217:25 236:3 241:18 242:10,10 saying 6:6 17:16 28:20 29:4 30:22 45:21 49:4 56:10 62:12 65:6,6 72:23 78:15 78:17 115:20 128:1 130:20 131:8,23 132:2 135:20 137:23 148:4 153:23 164:21 172:15 176:19 178:14 187:25 189:22 191:22 208:6,7 217:18 218:1,4 220:25 225:15 239:2 241:20 261:16 270:1 says 2:20,20 9:1 14:9 21:3 27:25 31:18,20 33:24 40:14 41:7 44:8 46:6 51:21 56:20 58:23 63:24 68:6 76:8 84:1 93:24 94:2 95:11 100:15 101:15 103:10,17 107:21 112:3,22 114:19 134:21 151:15 155:10 157:19,19 157:25 159:6,11 162:25 164:12,19 164:24 165:6 178:2 188:21 189:4 191:4 191:11 192:11 193:9 194:24 195:4 195:23 198:22 203:21 208:4,12,14 210:7 217:3 222:5 223:5,17 224:22 225:1 226:11 229:16,22 239:9,10 246:12 253:17,25 270:23 scam 22:17 scams 218:11,12 scattered 71:22 schedule 213:15,16 214:1 scheduled 144:13 145:2 scheme 171:21 174:4 screen 31:10 115:10 scroll 139:16 151:6,25 187:20 251:2 254:7 255:1 262:17 seal 216:16 Sebeya 10:25 11:9 25:5 43:22 44:3 46:23 47:5,19 68:9 69:13 70:2 88:6 201:8 204:1 270:14 second 23:1 25:2,6,8 25:10,16 27:1,20 33:18,22 38:11,16 38:25 46:9 81:18,22 84:1 87:12,15,15 93:15,16 94:3 97:18 99:8 107:13 114:19 119:10 136:8 161:2 164:1 174:13 178:24,25 182:12 182:14 194:18 195:9,20 208:13 222:4 223:4 238:9 243:9 250:15 251:3 251:13 253:17 273:3 secondary 54:14 191:7 secondly 37:1,4 106:18 118:25 129:10 141:6 242:6 271:4 seconds 228:10 Secretary 1:22 section 7:21,21,22 130:11 188:25 189:3 203:19,20 268:23 sector 26:4 28:6 250:1 secure 16:3,23 170:22 security 68:15,20 72:10,13 87:23 91:25 98:6,20 101:23 180:21 263:9 see 1:4 4:9 6:20 8:5 17:20 25:16 32:3 33:7 36:12,16 39:14 39:25 43:2 51:22 54:6 56:15 67:9 72:5 77:8 83:3,25 88:12,21 93:4 107:13,14,18,19 109:6,9,17 111:7 114:19 115:3,10 118:15 119:10,17 120:11 125:6 136:7 136:7,9 139:18 140:19 144:7 148:3 148:5,5 157:2 163:22,24 166:3,5,6 167:19 177:7 178:11,22 187:12 187:21,22 189:13 191:16 194:24 200:17,19,21,22 201:24,25 202:6,21 203:2,3 215:5,7 216:21 220:25 227:20 233:10 248:1 251:15,20 256:1 257:15 258:20 262:19 266:16 268:15,19 268:20,22,24 270:3 273:1,2 274:4 seeing 83:8 102:22 seek 86:18 159:25 seeking 140:1 152:2 180:4 216:25 217:3 249:7 seeks 40:15 seem 142:24 192:5 205:17 seemed 19:6 95:19 seems 110:9 142:7 216:17 seen 6:16 23:14,16 29:19,25 33:25 47:14 48:5 62:15 109:5 129:1 170:6,6 184:7 201:5 203:5,7 203:9 210:8 219:13 272:6,9,20 seize 137:7 145:23,25 146:7 147:9 156:4 156:17 seized 25:18 26:2,6 56:5 149:18 160:11 160:18 179:14 seizing 149:11 273:9 seizure 25:21 146:4 148:8 162:17 163:7 217:20 218:12,24 272:25 seizures 25:4 26:23 146:3 218:24 select 69:12 Selected 210:8 selection 137:16 selectively 71:4 221:17 self-dealing 36:14,25 selling 196:6 sells 99:20 semi-industrial 51:8 send 3:20 28:16,19 36:17 43:4 48:23 83:15 88:8 153:13 216:21 sending 55:15 177:24 216:11 sends 83:16 senior 63:10 92:2 sense 55:4 148:1 162:18 177:24 178:3 247:8,9 sensible 76:21 sensitive 11:6,11,17 11:17 sent 26:8 32:25 33:3 33:15,16,17 34:2 41:1 42:5,7 43:5 60:24 65:2,8 67:8 81:17,23,24 102:17 109:10 117:6,17 127:6 133:4 136:8 139:15 144:24 166:16 177:17,25 182:8 186:13 196:9 196:13 205:9 216:17,18 234:25 252:11,13,15,19 sentence 23:2 50:13 78:14 84:2 99:24 103:5,7 104:18 sentences 50:3 91:9 100:11 separate 118:24 165:10 193:12 267:9 separately 47:2 77:12 77:18 78:6 165:22 224:14 254:20 September 27:21,22 27:23 28:13 31:13 32:8,9,11,24 34:20 35:3 41:19 43:3,6 43:21 44:2 116:7 164:5,15 173:19 176:13 177:6 179:3 181:10,13,13,18 192:12 210:10 220:21,25 sequence 9:3,11 series 15:8,8 26:25 57:10 109:24 162:13,15 226:22 232:5 serious 32:16 35:6 38:4 47:5,7,16 61:12 249:21 seriously 50:16 210:20 serve 255:13 served 130:7 serves 223:6
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 20]
service 35:24 83:2 services 121:15 222:19 234:2 249:19 serving 136:17 session 267:17 set 54:4 73:274:6 219:20 223:2 240:14 259:3 263:9 sets 182:20 setting 77:4 123:14 235:6 257:4 settle 159:25 160:12 settlement 1:2 96:6 settling 218:17 set-up 186:20 212:25 seven 83:19,19 88:9 88:16 169:16 211:18 234:19 seventh 25:14 seventh-most 133:25 seven-day 211:22 several 33:12 62:6 63:10 100:20 101:20 103:18 146:3 149:2 189:8 196:7 218:19 226:5 226:14 230:14 255:15 271:11 share 241:10,15,17 258:18 shared 37:15 226:16 shareholder 15:24 16:17 19:11 20:13 122:9 135:15 227:25 246:17,18 shareholders 16:13,22 18:5,7,21 135:17 137:6 174:17 shareholding 121:17 122:2,17 131:14,23 132:3 shareholdings 131:15 131:16 135:4 shares 135:10 141:25 174:23 sharing 203:15 shift 95:3 shifted 222:17,17 shifting 217:21 shocked 39:14 224:17 short 17:20 46:19 52:11 59:6 68:22 69:2 74:23 160:11 181:20 213:11 shortly 62:4 106:11,13 108:10 109:11 111:4 short-term 77:7 85:6 85:9 show 31:17 33:5 99:2 99:3 128:8,13 137:21 190:7 197:23 236:19 238:1 241:14 242:16 270:8 showed 15:3
showing 20:10 57:18 97:23 231:11 254:15 260:14 265:25 shown 25:8 36:10 224:23 265:20 271:6 shows 14:9 15:25 56:18,25 57:2,16 204:2 205:18 shut 114:8 131:10,12 219:7,7 side 1:6 80:4 110:13 144:1 175:19 184:17,18 229:9 232:21 sides 83:21 109:8 134:19 side's 243:7 253:12 side-by-side 236:15 237:21 sign 33:16 signature 33:5 42:18 signed 33:7 42:12 177:22 252:14,15 significant 16:8 121:7 206:23 243:20 significantly 51:8 signing 184:21 silt 10:1,5,17 similar 3:24 127:20 128:2,10 similarly 81:3 128:11 simple 5:7 63:16 simply 2:11 6:18 55:5 55:8,19 66:3 78:24 85:15 154:13 168:3 221:6,8 222:2 225:10 226:22,24 238:14 240:25 243:18 248:14 262:4 273:19 simultaneously 202:2 since 7:10 8:22 50:15 53:2 57:4 66:13 106:16 112:24 165:3 192:7 205:23 207:24 235:16,21 246:3 Sindayigaya 32:8,17 33:23 35:17 36:18 37:7,8,12 38:1 39:1 40:14 Sindayigaya's 33:18 33:22 37:24 38:24 39:25 41:4 singled 212:12,13 255:24 singly 193:17 sir 79:18 83:23 sit 269:2 site 10:2,23 25:18,25 26:1,2,11,19 40:18 47:19 63:19 77:13 77:15 108:18 170:23 194:23 263:4 sites 63:4 106:23 108:17 209:5 sitting 65:16,17 situated 144:17 situation 26:14 38:21 39:4 40:12,16 41:4 77:22 86:1 135:22 215:15 236:22 six 92:10 100:11 sixth 123:9 skeleton 243:4 skip 83:9 214:3 skipped 130:24 slander 180:14 slanderous 41:12 181:8 225:15 243:6 243:19 255:19 258:14 270:16 273:20 slightest 259:2 slightly 187:11 slip 130:6 Slovak 58:11 189:24 Slovakia 95:5 sluice 9:22 sluicing 11:7 47:20 187:6 slur 226:24 small 10:4 71:22 77:14 77:19 78:7 82:3 98:24,24 221:3,10 269:12,12 smaller 187:11 242:2 small-scale 51:9 smuggling 222:22 social 180:21 253:8 263:9 sold 39:7,8 147:12 154:9 160:22 162:21 219:9 soldiers 68:15,19 70:11,19 72:6,19 73:3,5 88:4 sole 16:1 20:13 91:2 102:5,16 105:4 106:1 110:8 246:18 260:25 solution 269:4 solutions 160:6 solve 214:5 221:10 solved 72:17 154:8 solves 73:4 some 3:23 5:5 7:1 10:3 11:6,8 14:15 19:5 22:2,7,16 23:18,21 32:13 38:5,10 39:2 40:17 46:18 49:24 56:12 62:13 63:7,15 71:3 72:13,22 82:1 83:19 86:6,19 87:11 87:18 90:14,14 91:15 97:9 98:23 101:4 108:4 109:1 109:12 117:8,14 129:18 141:13 142:5,15 144:24 145:13,24,25 146:7 146:8,14 150:1,13 162:21,22,22 165:8 166:22 170:21,25 178:9 179:15,24 180:19,21 185:3 186:2,8 192:15,17 201:13 205:18 209:6 212:14 213:3 217:7 218:21 225:19 231:22 232:2,2 260:9 262:15 263:24 266:11,12 267:16 269:8,13 272:4 273:5 somebody 7:5 17:13 22:16 23:22 79:11 131:23 147:7 169:15 192:24 206:23 245:7 263:3 266:12 Somebody's 267:3 somehow 47:23 88:14 231:18 237:7,8 someone 71:21 97:6 148:22 175:19 243:4 something 7:19 11:7 25:2 28:24 42:5 48:24 50:17,23 71:17 73:7,10 76:7 82:8 88:15 104:22 119:21,25 121:20 128:18 133:13 134:14 167:24 169:5,5 170:2 178:24 192:8 215:13 222:5 226:8 226:11 239:3.25 263:5 266:11,17 sometimes 95:21 101:2 soon 1:20 23:16 47:9 sorry 1:14 11:16 12:19 13:8,24,24 19:3 22:19,24 27:9 27:22 36:1 38:14 43:1 46:9,14 56:19 78:12 85:1 87:14 109:15 110:16 116:20 118:2,5,19 121:22 126:12 127:24 135:6 136:13,14 138:16 144:10 146:4 147:21,22 150:20 153:6 154:2,15 160:8 161:8,18 163:14 164:6 169:7 171:16,16 173:8,16 174:6 185:19 187:11 193:3 194:8 194:19 203:8 207:5 212:18 219:23 220:25 224:3,4 231:8 233:12 236:16 244:8,9,10 247:2 256:8,24 258:18 265:19 266:8 269:19 sort 48:22 93:21 95:23 98:7 122:24 143:9 234:24 256:25 sorted 134:25 sought 117:4 178:20 sounds 76:21 175:13 sources 55:1 92:20 so-called 90:25 97:16 162:15 229:17 232:15 234:17 238:13 240:7 246:7 268:11 Spalena 1:16 20:11 142:3 261:11,12 speak 4:13 38:7 89:13 151:24 180:7 235:8 235:9 speaking 60:11 specific 29:20,20 193:13 196:13 209:21 271:5 specifically 3:8 9:24 10:9 74:10 99:9 121:24 128:9 168:2 183:2 185:22 207:17 235:5 238:15 239:14,20 266:23 specified 250:6,20 specifies 90:22 specify 191:23 SPECIOZA 2:9 spectrometer 195:21 spectrometers 194:22 195:12 speculative 209:20 speeches 29:7 spend 204:2 spent 59:18 192:22 269:13 spoke 59:11 190:16 spring 6:17 square 242:3 squeeze 225:25 stack 18:23 staff 2:21 12:20,21 13:3,5,13 14:15 21:20 22:7 31:8 62:1 64:20 75:13 94:8,18 95:14 96:14 96:21 99:19 108:11 127:9 144:16 191:25,25 192:21 198:15 stage 13:11 16:25 28:20 31:2 44:10,15 44:17 45:2 73:22 77:16,18 114:25 116:14 117:24 133:17 148:18 150:16 162:9 172:12 175:3 244:23 253:11 stages 90:16 145:15 156:11 193:16 Stallard 1:23 stalled 165:2 stamp 33:8 35:25,25 36:3 42:14 43:13 82:22 83:3,6,14 252:21 stamped 34:17,20 216:15 stamps 36:7 82:17 stand 2:14 60:2,11 193:19 standard 236:12 265:9 standards 51:11 standing 142:17 260:25 Starck 7:10,11 8:22 96:25 100:19 121:18 131:20 149:4,4 155:11 180:19,23 196:9 241:13,19 263:6 Starck's 8:22 start 49:3 66:6 102:21 102:22 124:6 128:23 182:14 186:1 191:2 207:8 started 55:15 66:19 93:18 94:3 129:15 153:23 168:5 173:13 183:24 236:1 239:2 starting 87:19 119:9 182:13 184:21 191:3 starts 189:1 270:1 state 11:14 21:12 89:1 89:22 101:11 141:20 142:11 201:12 217:11,15 230:8,13,16 245:15 245:19 249:16,18 249:22 261:24 stated 189:22 250:16 271:2,12 statement 24:8 25:7,8 25:10,14 31:11 33:18,20,22 38:25 58:22 60:15 62:21 63:21,25 67:11 93:25 94:1 95:11 96:16 99:22 100:25 102:23 103:1,14 105:6 106:3 110:18 110:24 115:9 144:3 144:6,9 145:5 152:17 171:9 185:1 190:7 192:3 193:9 194:17,18 195:5,10 195:20 208:12 211:9 224:22 254:13 265:13 272:25 statements 48:25 50:1 225:2,7,11 254:11 254:12 255:3 260:6
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 21]
260:7 265:11,12,15 268:17,19 states 2:11,12,13,14 2:15,16 39:3 40:15 64:11 195:18 261:14 stating 31:15 34:17 station 26:9 34:12,17 34:21 35:5,9 Stations 34:15 status 15:19 158:17 189:16 208:18 209:3 statute 73:16 74:11 90:21 182:25 statutes 44:16 125:13 statutorily 90:19 staying 27:1 63:21 243:23 stealing 95:18 steam 252:22 step 14:6 235:6 253:24 259:4 steps 20:25 109:17 155:8 STEVEN 2:3 sticking 111:10 still 10:23 17:5 26:9 26:19 32:8 38:14,14 44:13 47:10 75:12 96:10 116:2 136:5 144:6 147:3,17,25 157:10 162:11 174:23 178:19 181:2 212:16 213:24 218:23 253:16 257:11 264:4 stirring 10:4 stole 160:20 stolen 232:18 Stone 2:6,6 stood 3:5 stop 71:10 80:7 98:23 114:11 157:22.23 161:11 188:11 218:13 219:18 221:9 224:15 247:6 262:17 271:18 stopped 47:4 114:7 161:20 163:2 219:25 221:9 232:20 247:2 stored 145:25 146:9 stories 36:17 37:4 storing 220:12 story 12:12 26:23 37:24 55:19 93:15 101:10 141:19 142:24 146:5,24 155:23 156:10,11 169:1 170:15 straightforward 86:4 86:8 strategies 98:5 strategy 68:20,21 stream 63:7
street 156:21 strength 68:20 70:8 70:16 strictly 166:13 stripped 23:9 232:13 stripping 218:10 struck 28:12 studied 159:22 studies 190:18 193:13 study 188:6 189:7,19 192:14 194:3 204:8 250:22 253:5,9 stuff 58:8 215:2 style 64:13 272:4 stymied 209:22 subject 4:1 31:5 45:2 76:16 86:24 104:17 104:21 138:13 179:12 186:6,13,17 250:21 submission 2:6 submissions 143:8 submit 3:22 34:14 66:25 181:22 201:9 203:24 205:16 206:13,19 207:2 210:17 213:3 250:5 253:22 267:23 submitted 20:14 35:4 49:8 50:11 66:22 75:15 84:5 117:12 117:20 181:17 184:3,6,9 185:9 186:1 188:21 192:12,20 197:25 198:2,3 201:10,16 202:14 204:2,9 210:9 212:21 236:2 238:11 250:22 253:18 255:9 259:6 260:13 264:24 266:3 267:13 268:4 270:7,8,10 271:4 submitting 34:24 198:9 subsequent 11:22 25:19 subsequently 18:25 22:16 24:15,18,19 84:21,23 116:24 subsidiary 16:4 substance 120:23 substantial 39:8 substantially 39:10 66:21 substantiate 231:9 272:13 substantiation 231:6 231:20 substantive 76:12 121:2 270:6 succeeded 148:6 successful 255:12 259:7 sudden 14:7 sued 97:1,3 sufficient 185:10 194:10 sufficiently 102:14 105:2,24 126:9 199:15 suggest 4:6 11:16,18 15:11 21:7 38:7 44:21 76:14 81:5 86:17 124:20 127:5 150:16 193:22 194:1 196:19,20 207:8 214:5 220:13 236:25 242:15,20 271:22 suggested 47:23 59:22 67:19 81:23 85:24 88:11 107:18 110:7 120:2 suggesting 13:2 22:5 22:11 41:18 152:9 206:19 215:12 227:9 252:14 258:18 suggestion 13:4 63:6 81:24 110:21 119:18 225:6 233:20 251:9 suggestions 68:14 suggests 64:1 suit 175:8,11,13,17 suitability 119:14 sum 149:8 summarise 189:11 summarised 187:19 188:16,18 summarises 174:2 192:11 211:9 summarising 187:8 summary 25:16 48:22 59:8 60:25 61:7 120:25 121:1,3 138:24 174:17 202:21 265:5 268:3 270:15 271:20 summer 1:2 170:16,17 172:19 summoned 35:4 120:13 sums 96:13 superficial 195:7 263:25 superior 61:21,24 63:15 193:8 194:12 supervision 31:8 61:18 62:8 supervisor 34:5,9 40:4 supplement 178:16 190:11 212:16,19 supplemental 171:8 171:15,16,17 189:7 194:18,25 195:1,2 195:10 supplies 162:8 supply 146:1,9 150:24 151:1,5,8,14 256:9 support 2:21 51:7,7 63:5 68:24 71:7,8 71:24 96:17 99:12 99:18 147:11 166:1 197:6,18 198:5 206:6,14,20 207:3 208:20 209:16 258:17 supported 63:8 174:15 196:25 264:22 supporting 61:10 189:16 198:18 206:7 254:9 264:25 265:4 suppose 178:17,18 supposed 137:17 181:12 197:24 207:14 supposition 176:15 Supreme 124:18 137:10 139:23 140:5 141:24 175:14,22 228:4,15 229:21 246:11 sure 1:22 8:11 13:7 23:25 30:6 35:19 36:21 43:12 72:14 86:13 90:25 104:9 130:1 136:21 142:13 143:24 146:11 152:22 157:6,13,16 178:18 180:23 205:25 216:16,18 252:17 258:11 262:11 surpassed 62:22 surprised 22:20 120:4 133:3 surprising 67:6 203:13 surveying 189:19,25 190:14 suspect 161:22 suspected 60:13 suspend 17:17 18:12 24:16 44:4 119:12 154:7,10 155:16 157:1 suspended 9:4,12 10:12 16:19 25:20 26:20,20 43:21 44:2 139:5 158:15 159:14 178:1,5 suspending 17:2,18,18 19:18 suspension 10:17 148:8,14 158:23 sustainable 51:15 sympathetic 218:20 system 2:5 104:15 144:15,23 170:19 171:2,5 172:18 174:5,6,7 239:12 systematic 218:10 T tab 157:7,8 table 54:23 199:25 tabled 66:3,8 79:22 tables 54:21 101:5 tag 6:25 7:1 177:16 tagged 147:17 156:14 247:6 tagging 102:8,15 104:14,22 105:3,25 107:11 114:8,13 170:15,19,21,24 171:2,5 172:17,18 172:25 219:25,25 247:3,4 tags 26:21 110:6,19 170:18,21,22 171:1 171:4,7,19,22,24 172:24 173:20,22 174:7,10 175:1,10 175:20 177:11,12 177:14,22 212:23 219:8 229:3,14 247:13 tailings 191:8 tailored 170:11 take 12:6 13:11 17:8 18:10,19 19:20 27:11 30:20,20 42:12,13 57:22 90:16 111:24 112:23,24,25 113:21 120:9 124:15 128:23 135:16 143:1,16,18 145:15 162:25 175:7 192:11 205:8 215:5,7 219:2 224:16 234:19 235:6 240:18 252:23 256:5 taken 12:18 17:3 19:18 20:25 21:22 25:23 66:3,8,18 77:11 78:4 87:24 109:18 124:4 130:12,14 132:13 142:12 153:19 162:18 188:17 223:9 231:4 234:9 235:7 takes 249:15 274:9 taking 142:22 148:17 153:9 193:16 195:14 210:19 217:11,16,19 218:1 219:3 221:22 232:13 239:11 240:15 talk 3:21,23 4:17 7:6 46:1 50:10 60:4,12 60:13 76:5,6,9 79:12 81:14 89:19 105:15 200:3,8 209:15 225:20 235:14 238:20 261:7 talked 105:13 129:17 129:17 180:17 241:22 talking 7:21 9:6 10:12 12:3,4 62:6,7 70:13 93:13 105:13 110:9 147:14 207:11 237:11 239:17 talks 111:11 tangible 211:14 254:15 265:25 tantalum 50:20 182:23 target 88:25 89:21 targeted 54:2 230:9 245:20 targets 50:10,14 166:8 167:16 168:16 tax 180:3,9,21 202:13 202:17,21,25 203:1 208:16 209:1 254:18 257:2 261:20,22 262:2,5,6 262:8,10,20,23 263:8,15,21 264:7 264:14 273:13,15 taxes 180:12 209:2 261:15 taxi 94:21 team 10:7,8 58:11 193:15 200:16,18 200:19,21,25 201:6 201:15,16 202:7 204:4 208:14 211:10 212:6,8 216:1 264:16 268:18 270:2 272:17 teams 57:11 189:23 team's 269:6 technical 55:1 56:4,8 201:5 267:13 270:6 271:7 Technically 271:1 technician 26:15 tell 12:19 54:1 96:9 103:3 108:9 118:19 121:12 159:7 164:9 164:10 170:12 198:12,23 207:9 220:3 226:3 241:23 242:23 257:8 265:19 272:19 telling 78:5 91:24 113:9 131:1 134:16 168:17 169:2,9 185:22 186:13,14 187:6 tells 1:23,25 253:16 template 64:12,21,23 66:11,17 67:6 temporarily 47:4 157:4 159:14 temporary 158:23 tendentious 127:6 term 31:15 46:19 59:6 67:14,17,20,21 68:22 69:2 73:15 80:18,20 90:21 103:12 111:2 113:7
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 22]
114:3 115:13 177:17 238:12 244:16,18 250:19 terminated 183:6 223:7 244:20 termination 149:10 204:18 234:19 237:16 244:20 terms 11:3 30:13 64:5 66:12 81:15 90:25 103:11 114:24 115:13,15 133:11 155:2 185:8 186:2 193:10 199:15 207:12 220:9 236:11 237:13 246:20 250:17 terrible 22:10 168:4 222:17 terribly 225:24 terrifying 161:25 test 3:14 113:22 169:24 170:1 testimony 13:4 22:6 35:10 62:15 76:12 259:8 tests 57:12 text 79:13 189:11 thank 12:17 14:3 22:25 38:15,17 43:19 76:20,25 83:7 83:8,22 87:17 105:18 171:12 187:12 195:3 199:4 202:9 208:9 215:9 224:6 244:12 thanks 2:2 theft 97:6 162:22 234:9,12 their 3:5 12:22,24 23:9 46:22 49:16,18 49:23 55:16 56:9 57:14 58:11 63:17 64:6 71:10 75:17 82:21 83:14 88:10 88:17 89:2 91:2,25 96:4,10 99:13 117:21 121:14,24 148:7 157:22 159:24 162:6 166:25 180:24 184:18 190:16 191:7 195:16 200:3 201:23 202:11,15 205:7,15 206:11,11 206:14 209:18 213:19 215:1 228:24 236:11 238:24 244:5 261:14 272:4,6 theirs 214:20 themselves 137:6 158:13 187:18 188:15 198:20 They'd 237:11 thing 34:10 57:16,19 72:15 83:9 102:19
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24:11 thousands 71:3 192:1 194:23 thread 50:3 91:8 threat 112:23 175:17 threaten 12:6 175:8 threatened 13:16 14:15,22 15:10 22:8 175:6 224:9 threatening 174:25 175:11,13 threats 13:3 21:20 three 1:9,13 9:2,10 15:14 28:3 79:9 82:17 107:17 118:21 125:14 137:17,25 153:6 160:20 164:16 169:19 189:5 195:8 196:1 207:25 three-quarters 4:7 5:11 through 9:4,12 10:13 23:7 45:12 51:12 52:21 70:10,18 78:20 87:3 91:23 99:6,24 101:3 104:11 119:19 123:11 126:6 130:10 132:11 140:22 160:1 184:25 185:4 203:17 205:4 208:3 213:19,24 214:9 215:3 217:10 225:9 241:23 242:12,24 243:2,15,22 269:15 throughout 56:14 60:21 67:15 throw 3:17 27:9 thrown 215:12 time 1:2 2:11 3:23 6:25 7:1,10 8:22 9:18 10:6,6 11:9 13:11,18 15:1 17:20 18:24 19:6 21:25 22:5,10 23:11,13,15 25:9 30:12 32:1,13 38:4,9 40:18 45:8 46:18 47:22 62:2.2 75:3 87:9 89:18 98:13 101:9 104:13 105:13 107:25 108:8 111:8 112:10 114:6 115:11 117:8 117:14 124:15 128:15,23 132:13 133:22 136:17,24 143:16 146:17 149:18 157:17 159:2 160:24 161:25 166:11,22 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106:1,3 106:5 110:8 132:15 141:15 163:6,8 237:5 239:21 topics 87:2,4 93:22 109:13 141:13 total 51:12 162:20 195:18 totality 253:2,11 towards 16:10 track 257:24 Trade 2:14 trader 147:13 196:1,5 traders 99:21 195:24 transaction 39:11 131:24 156:2 253:6 transactional 259:11 transactions 39:19 40:6 197:11 198:24 199:1 210:9,24 259:7,10 265:3 transcript 1:23 1:2 15:13 153:25 transcripts 130:3 transfer 20:20 transferred 16:7 transfers 121:17,19 141:25 translate 141:1 transmitting 144:11 transparent 251:25 252:2 255:17 travel 40:5 treated 29:15,22 31:23 44:12 69:10 69:12,15,21,25 78:22 86:22 93:13 114:1,3 116:2 167:11,22 183:23 186:6,17 212:10 221:6 227:15 232:24 233:21 237:18 240:11 251:21 252:2 treating 142:25 treatment 169:22 212:12,13 217:5 255:24 treaty 232:24 244:22 244:24 Trevor 1:24 trial 75:18 tribunal 1:22 2:23 3:7 1:18 3:1,4,4,8,23 6:8 76:18 103:3,15 105:5,20 110:7 118:9 120:17 176:18 214:4 Tribunal's 6:20 214:4 tried 3:14 71:8 72:8 153:14 156:15,17 209:13 236:23 tries 26:11 truck 39:6,8 true 14:18 32:1 33:20 38:2 42:6,25 55:20 60:9,12 65:5,9 67:23,24 70:24 91:15 97:15 99:5,7 100:5 102:20 108:5 110:2 123:17 167:4 168:3 169:13 170:10 176:14 192:9 195:12 221:20 224:18,19 226:24 230:25 234:21 263:24 truly 78:8,11,13 TRUMAN 1:11 trustworthiness 259:9 259:16,19 trustworthy 259:20 truth 6:18 27:10,12 41:13 88:18,19 109:20 133:15 196:9 223:24 225:13 273:18 try 9:25 14:2 24:19,25 27:7,7 83:9 86:6 95:8 109:18 111:21 143:6 145:15 146:5 150:21 265:8 trying 19:21 22:4 39:14 41:13 49:11 50:4 67:2 79:18,19 82:10 91:8 128:15 169:24 213:19 221:10 240:18 260:1 273:18 Tuesday 101:19 181:18 turn 9:23 twice 126:15 156:16 twist 79:18 twisting 86:5,15 two 1:15 4:24 12:8 28:14 29:4 35:14 37:4 45:16.22 54:17 56:3 71:9,9 75:13 76:6 83:11 106:24 108:17,22 111:9,24 112:22,24 113:3 118:24 129:7 132:23 154:15 156:15 161:15 166:11 173:20 179:3,4 187:9,21 213:18 214:24 234:22 235:10,11 235:15,17,19,21 236:15 237:11,17 237:20 242:5 245:18 248:17 249:2 252:8 254:1 two-week 28:19 30:5 type 46:20 201:20 typed 41:19,24 42:21 42:22 43:1 U UK 94:21 ultimate 142:2,9 ultimately 147:25 148:12 223:2 Umugwaneza 125:17 Umuqwaneza 125:21 unable 89:23 218:13 262:6 unacceptable 66:15 249:23 unblock 215:2 unceremoniously 257:12 uncertain 220:8 unclear 216:17 uncommon 95:16 unconditional 168:24
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 23]
uncontentious 2:9 uncontested 3:17 under 1:1 5:10 19:3 54:20 58:5,19 59:14 73:15 74:12 90:8,11 90:17,21 91:11,13 114:18,24 115:2,4 116:1 117:21 122:12 133:11 134:18 137:16 143:8 147:25 151:2 163:10 165:19 167:25 175:23 183:3,4 187:15 193:25 202:21 210:21 211:20 217:9 234:12 237:10 238:9 244:17 248:4,7 250:23 263:22 underneath 54:24 218:9 234:15 244:10 understand 2:10 4:11 5:1,7 13:7 17:5,9 28:15 43:14 66:2 83:7 87:4 91:7 93:11 112:22 114:8 134:16 136:20 141:18,23 144:22 147:11 161:14,18 166:10 168:17 169:9 176:19,25 200:10 204:14 228:19 242:13 251:4,6 255:22 259:3,22 262:9 265:23 understanding 4:3 9:18 41:24 61:14 67:21 98:4 122:5 141:18 145:19 182:7 195:13 211:24 222:24 understands 134:21 understood 17:15 34:25 66:16 81:12 87:2 127:8 139:2 140:16 143:15 215:17 218:18 226:5 234:25 256:24,25 263:2 273:4 undertaking 72:19 undervalue 39:8 undiplomatic 122:24 undue 102:9 unfair 24:13 56:2 87:25 93:4,8 97:12 97:14 140:9 141:12 143:5 192:21 206:18 212:3.9 240:12 250:10 unfairly 257:10 unfit 125:18 unfortunately 6:13 133:8
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153:7 upgrades 188:10 upheld 124:19 140:3 uploaded 2:5 upsetting 240:18 upshot 121:8 upstream 9:13 urge 192:6 urgent 95:23 249:6 USD 132:20,23 151:12 219:5 257:20 259:8 use 64:13 70:18 101:4 129:21 130:19 217:25 226:2 256:6 used 23:8,22 37:23 84:7 195:22 196:16 221:17 261:13 272:2 useful 267:16 269:8,9 using 68:14 194:22 195:12,21 usual 221:24 269:1,14 272:4 US$20 184:23 240:21 US$601,000 151:14 V v 1:17 9:14 vacate 140:5 vacated 139:23 Valery 35:2 37:11 valid 227:14 231:15 231:16 232:15,22 249:20 255:3 validated 175:15 228:15 validity 148:13 value 39:9,9 155:4 179:16 196:5 valued 234:2 varied 73:16 various 62:16 71:23 225:23 vast 30:25 Vaughn 1:24 veiled 268:24 verify 192:1 vernacular 217:25 version 1:20 13:22,23 14:13,13,14,17 15:12 33:15 36:6,8 38:17 43:5 105:9 264:6 versus 50:10 very 1:21 5:7 7:5 11:17,17 14:1,10 15:6 19:13 23:25 24:1,4,13 28:18,18 33:9,16 35:6 54:2 56:13 61:7 63:15 71:22 74:19 82:3 86:17 87:25 93:1,1 93:11 94:3,24 95:6 97:9 98:14 100:6,8 102:7,12 104:13,14 104:25 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250:14 253:2,4,5 260:19 266:17 272:5,9 274:8 whatsoever 229:5 while 1:17 2:13 17:20 69:2 150:6 158:24 161:23 165:14
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 24]
whim 23:10 whistleblower 35:13 37:7,12 whole 11:4 57:10,21 89:18 105:16 162:21 218:7 269:17 wholly 20:11 52:2,8 92:12 96:16 133:21 wide 10:2 widely 71:22 125:7 261:13 William 35:1 willing 79:11 98:8 112:24 159:1 161:6 201:19 235:9 wires 5:6 wisdom 228:22 wish 5:16 77:13 192:22 242:11 262:12 wished 104:13 wishes 18:5 90:15 withdraw 130:3 236:25 withdrawn 174:8,10 withheld 171:24 withholding 172:17 262:21,25 witness 2:13 4:6 5:20 24:8 25:6,8,10 31:11 33:18,22 35:10 38:25 48:25 50:1 58:22 59:21 60:2,11,15 62:21 63:21,25 67:11 76:13 77:2 93:25 94:1 95:11 102:23 103:1,14 105:6 106:2 110:18,24 115:8 129:16 144:3 144:6,9 145:5,12 152:17 171:8 192:3 193:9 194:17,18 208:12 213:25 214:3 215:22 224:22 witnesses 213:16,17 213:22,23 274:5,9 WOLFENSTEIN 2:19 wolfram 26:3 wolframite 54:11 182:23 191:5,6 woman's 37:21 women 94:9 won 148:1 158:14 160:3 wonder 74:17 145:4 175:6 213:7 word 4:22 76:3 113:21 129:20,21 130:19 130:21 worded 188:23 wording 121:20 words 19:22 51:2 79:18 115:22.23
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Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
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34 31:11,12 210:3 35 22:23,24 67:11 74:21 183:1,10,14 211:9 36 63:25 360 214:12 360-degree 214:22 38 103:3 105:7 106:2 110:19,20 382,000 204:3 39 50:12 115:8,11 4 4 2:6,6 7:14,16,21 50:8 125:6 202:8 230:3,6 238:12 250:20 4th 84:6 4.17 143:22 4.20 143:21 4.9 189:14 40 63:17 161:20,21 187:4,8 259:7 47 124:2 5 5 3:4,5 7:22 25:19 53:10,25 54:4 136:11 137:3 139:22 203:4,19 205:13,13 219:6 249:5 250:20 267:6 5th 245:10 5,000 263:4 5.52 213:10 50 47:20 6 6 51:17 52:2 53:25 54:4,6 68:13 202:5 202:7 242:3 6th 17:22 68:8 6.07 213:12 6.46 2:18 60 161:8 601,836 151:12 7 7 201:3 202:21 7th 17:23 7.30 274:2,14 71 188:25 189:4 195:6 74 3:6 750kg 26:3 8 8 200:20 224:21 247:1 247:5,11,16,19 83 10:19,22 85 10:23 88 190:5 191:1 253:2 9 9 51:18 93:25 94:2 225:1 243:8 9.00 101:19
90 161:8 192:15 99% 273:10
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties