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, 30th June 2021
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
FOR CLAIMANTS
STEVEN COWLEY, Duane Morris LLP
BRYAN HARRISON, Duane Morris LLP
RODERICK MARSHALL, Bay View Group LLC
FOR RESPONDENT
RICHARD HILL QC, 4 Stone Buildings
ALASTAIR TOMSON, 4 Stone Buildings
MICHELLE DUNCAN, Joseph Hage Aaronson LLP
DANIEL McCARTHY, Joseph Hage Aaronson LLP
DANIELLE DUFFIELD, Joseph Hage Aaronson LLP
LUCY NEEDLE, Joseph Hage Aaronson LLP
NARCISSE DUSHIMIMANA, Rwanda Mining Board
SPECIOZA KABIBI, MINIJUST, Government of Rwanda
LISA GROSH, United States Office of International Claims and
Investment Disputes
JOHN DALEY, United States Office of International Claims and
Investment Dispute
NICOLE THORNTON, United States Office of International
Claims and Investment Dispute
CATHERINE GIBSON, Office of the United States Trade
Representative
MICHAEL COFFEE, United States Department of Justice
DONNA CHAPIN, United States Department of Justice
INTERPRETERS
SARAH ROSSI, French-English interpreter
ELIZA BURNHAM, French-English interpreter
ROBERT WOLFENSTEIN, French-English interpreter
JEAN CLAUDE MUGENZI, Kinyarwandan-English interpreter
ROSE-MARIE MUKARUTABANA, Kinyarwandan-English interpreter
SUPPORT STAFF
JAMES WATKINS, FTI Consulting
DAVID BRODSKY, FTI Consulting
ANNA LOUTFI, assistant to the Tribunal
COLLEEN FERGUSON, ICSID paralegal
IZABELA CHABINSKA, ICSID intern
MR FRANCIS GATARE (called) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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[Page 1]
12:00 1 Wednesday, 30th June 2021
2 (Transcript times are British Summer Time)
3 (12.00 noon)
4 THE PRESIDENT: Good morning all. Is there any housekeeping
5 to deal with before we take Mr Gatare?
6 MR HILL: Nothing contentious, Mr President. We've agreed
7 on the timing. If it becomes necessary to use all of
8 it, the Claimants have 2 hours and 54 and we have
9 3 hours and 6 if necessary. We've also agreed on the
10 closing brief: it's agreed that we will have 25,000
11 words, which was our proposal. So I think peace has
12 broken out on all those fronts.
13 THE PRESIDENT: Right. Thank you very much.
14 MR COWLEY: I have one question. The Tribunal has raised
15 a couple of times as housekeeping the user-friendly
16 access to exhibits. We've discussed this with
17 Mr Kaplan. I just want to make sure that the loop is
18 closed: have the panel been instructed how to find the
19 right versions of the exhibits where they're broken out?
20 THE PRESIDENT: Thank you, Mr Cowley. Yes, we have.
21 MR COWLEY: Thank you.
22 THE PRESIDENT: It's a little bit complicated, but we seem
23 to have mastered it, I think. So no further problems on
24 that front.
25 Right, let's invite Mr Gatare to join us.
[Page 2]
12:01 1 MR WATKINS: Okay, we're bringing the witness in.
2 (12.02 pm)
3 MR FRANCIS GATARE (called)
4 THE PRESIDENT: Good morning, Mr Gatare.
5 MR GATARE: Hello. Good morning, good afternoon.
6 THE PRESIDENT: It's afternoon with you, is it?
7 MR GATARE: That's correct.
8 THE PRESIDENT: Yes. It is here now too, come to think of
9 it.
10 Do you see in front of you on the screen a witness
11 declaration?
12 MR GATARE: Yes, sir, I see it.
13 THE PRESIDENT: If you are happy with it, would you like to
14 read it aloud, please?
15 THE WITNESS: I solemnly declare upon my honour and
16 conscience that I shall speak the truth, the whole truth
17 and nothing but the truth.
18 THE PRESIDENT: Thank you.
19 (12.03 pm)
20 Direct examination by MR HILL
21 Q. Mr Gatare, you have made two witness statements in this
22 arbitration, haven't you?
23 A. That's correct, yes.
24 MR HILL: If you wait there, Mr Cowley, who represents the
25 Claimants in this arbitration, is going to ask you some
[Page 3]
12:03 1 questions.
2 MR GATARE: Thank you.
3 (12.03 pm)
4 Cross-examination by MR COWLEY
5 Q. Good afternoon, Mr Gatare.
6 A. Good afternoon, Mr Cowley.
7 Q. If I could ask that document C-015 be brought up. I'll
8 give you an opportunity to see what this is. If we
9 could open it up to the first page.
10 Are you familiar with this Green Paper that's
11 referenced in one of your witness statements?
12 A. Correct, yes.
13 Q. If I could ask that we go to [PDF] page 8 of the
14 exhibit.
15 If we look down, the top is a carryover series of
16 bullet points. If we go three paragraphs down from
17 there, if I could ask you to highlight that by bringing
18 it up and making it easier for Mr Gatare to read.
19 Drawing your attention to this -- and just to make
20 sure -- I should have said this a moment ago -- by
21 "Green Paper", that refers to the fact that this was
22 a proposed policy, a version of a policy that was under
23 discussion, but as of this time was not yet adopted as
24 a formal policy of the ministry; correct?
25 A. Can you give me a chance to read this text on the
[Page 4]
12:05 1 screen, please?
2 Q. Yes. (Pause)
3 A. I can read it now. Yes, I have read it.
4 Q. Okay. And just taking a step back, I referenced the
5 term "Green Paper" in my prior question. By "Green
6 Paper", that means that this was a draft of a policy
7 that was under discussion by members of the ministry,
8 but it was never adopted as a formal implemented policy
9 at any time; is that correct?
10 A. That's incorrect, sir. Although we don't use the
11 colour-coding of our policy documentation, but
12 I understand what you are saying. Nonetheless, this
13 policy document was discussed among various stakeholders
14 in the mining sector and it was accepted as a consensus
15 document, even though it was never published in the
16 Official Gazette.
17 Q. In this paragraph the policy document talks about "the
18 government's decision to privatize ... mineral
19 concessions" led to "a number of large players ...
20 enter[ing] the market", and it goes on to say that:
21 "They have to determine potential mineral deposits
22 in their large scale concessions in order to be given
23 a 30 year permit to develop industrial mining."
24 Do you see that?
25 A. I see it, yes.
[Page 5]
12:07 1 Q. At the time that this policy was discussed, it was
2 recognised that for international mining companies to
3 come in and invest in the concessions, the progress
4 between the artisanal mining that was primarily done
5 when privatisation started to industrialisation of the
6 mining concessions would be a long-term, 30-year
7 evolution; correct?
8 A. That's not how I understand it, sir. How I understand
9 it to mean is two things.
10 One, this policy to privatise government-owned
11 mining concessions was being implemented in the larger
12 context of the government policy to privatise existing
13 government assets, which included in the manufacturing
14 sector, in agriculture, in tourism and other areas. And
15 so this was a broader policy to privatise, to get
16 government out of the productive sectors and get private
17 companies to do that.
18 With respect to the mining sector, how I understand
19 this policy statement was that there was a requirement
20 for the private companies participating in this
21 privatisation exercise to undertake sufficient mineral
22 exploration exercise that would then allow them to
23 obtain a 30-year permit to develop industrial mining.
24 Q. And the development of that industrial mining from the
25 artisanal mining that was primarily taking place at the
[Page 6]
12:09 1 start of the privatisation would be a gradual process
2 over the life of the long-term concession; correct?
3 A. Industrialisation cannot be achieved overnight. It has
4 to have what begins and what comes sequentially after
5 another. If that's what you are asking about, yes,
6 that's correct.
7 Q. If I could ask you to bring up the supplemental witness
8 statement of Mr Gatare and go to paragraph 20.
9 In this paragraph of your supplemental witness
10 statement, you acknowledge in the first line that:
11 "... the Rwandan mining industry remains largely
12 artisanal, and part of the goal of professionalisation
13 and industrialisation means that this will change, there
14 has historically been substantial ability to be flexible
15 to changing demand in the minerals market."
16 That reference there is to what you just described
17 as the recognition in the policy that the progress to
18 industrialisation would be one step at a time over
19 a period of time, not immediate; correct?
20 A. This is out of context, sir. Paragraph 20 in my witness
21 statement was given in the context of explaining how we
22 have been able to realise quick production increases
23 over a short period of time, and I was mentioning here
24 the contrast between small-scale artisanal mining
25 practices and large-scale industrial mining practices.
[Page 7]
12:11 1 And I was explaining that because of the presence of
2 small-scale artisanal operators in our country, we have
3 an industry that is capable of responding to global
4 market changes very quickly because they tend to be
5 nimble. This was not in any way in reference to the
6 existing mining policy in the country, but rather to the
7 practical realities of how companies respond to global
8 market changes.
9 Q. Thank you. And what I was focusing on is the aspect of
10 the then current recognition at the time of this
11 statement that the Rwandan mining industry still remains
12 largely artisanal at this time, despite adopting
13 a policy some years ago to industrialise it; correct?
14 A. There is indeed a coexistence of small-scale mining
15 operators as well as large-scale industrial operators,
16 and this is recognised not only in our policy but also
17 in our legislations, which issue space for licensing
18 large-scale operators, medium-scale, as well as
19 small-scale operators. So this goes without saying,
20 because it's a consistent policy of our country.
21 Q. If I could draw your attention to the last sentence in
22 this paragraph, you confirm there that:
23 "... Rwanda's mining industry was, and still is,
24 dominated by artisanal mining ..."
25 Correct?
[Page 8]
12:13 1 A. By their nature, sir, the artisanal, small-scale
2 operators tend to be many; the large-scale operators,
3 industrial operators, tend to be fewer. Even though, if
4 you look at the capital invested, if you look at the
5 production done, even fewer industrial operators can
6 have a scale much larger than several small-scale.
7 So, yes, I was referring here to the number of
8 operators in our country. Certainly the small-scale
9 operators outnumber the large-scale ones.
10 Q. And the timing of this statement, where you're talking
11 about the present time as of the statement, that was
12 signed last year; correct?
13 A. That's correct, yes.
14 Q. If I could ask that the initial witness statement be
15 brought back up -- I'm sorry, brought up for the first
16 time. If we go to the original statement of Mr Gatare,
17 paragraph 24.
18 I would ask you to read that paragraph, sir, and let
19 me know when you're able to answer a question about it.
20 A. Can someone zoom it up for me, please? (Pause) I've
21 read it, yes.
22 Q. So to focus on the term "artisanal mining" for a moment,
23 I wanted to reference your description in this paragraph
24 of the context of the mining that is taking place.
25 The first sentence refers to:
[Page 9]
12:15 1 "... mining in Rwanda takes place in
2 communities ..."
3 By "communities", in fact you're talking about the
4 concessions themselves in large part; correct? Miners
5 live on the land that makes up the concessions; correct?
6 A. No, sir, it's not always the case. For example, in the
7 case of the large-scale concessions, particularly those
8 that have been previously in government hands that were
9 privatised, they were exclusively mining areas, not
10 inhabited areas. But there are some cases where mining
11 operations are close to settled areas of the
12 communities, yes.
13 Q. So in some instances, miners live on the land that makes
14 up some of the concessions that private companies now
15 own; correct?
16 A. Correct.
17 Q. And in others, the mining area is separate, but right
18 next to where people live; correct?
19 A. That's correct. Except that also even when mining
20 operation is far from settled area, in the broader sense
21 of the community, there is that coexistence of the
22 ecosystem, whether it's with water, with the
23 environment, with forestry and others, because of the
24 specific terrain of Rwanda. So even when it's far, the
25 impact can be felt by the communities, yes.
[Page 10]
12:17 1 Q. And the miners who are doing the work that's been
2 described as "artisanal mining", these are individuals
3 that live in these communities, either on or adjacent
4 to, in some instances, the concessions, who walk out of
5 their house with hand tools to do their mining; correct?
6 A. This is not the case that I was referring to here.
7 Mr Cowley, you may be familiar with the global trend
8 over the last couple of decades that is often referred
9 to as the social licence to operate in mining sector.
10 I was referring here to that requirement by society for
11 mining operators to obtain the social consensus that
12 this mining is acceptable in our community, because of
13 the direct impact that mining operations have on the
14 environment, on the communities that live there.
15 And so my reference here was particularly to mean
16 that a sensible mining operator must obtain the not
17 only the government licence, but also the community's
18 acceptance for them to operate. And there are many
19 cases around the world, including here in Rwanda, where
20 communities have complained and it has led to changes in
21 the licensing rights of the mine operators. That's what
22 I was referring to here.
23 Q. Thank you for that explanation. And I should say, as
24 clarification, while I appreciate your explaining this
25 paragraph, I was not attempting to challenge or question
[Page 11]
12:19 1 everything you said in the paragraph. I just used it at
2 the beginning of the question to draw your attention to
3 what you were referring to as "communities" so we could
4 explain the relationship between artisanal mining and
5 the communities in which the miners live. That was the
6 only purpose of referencing this paragraph.
7 So without questioning the rest of your points in
8 the paragraph, I would like to just continue to focus on
9 the miners themselves who are doing the work that we've
10 been referring to as "artisanal mining", just focusing
11 on them.
12 Those miners walk out of their house with hand tools
13 and conduct the mining for minerals that we've been
14 referring to as "artisanal mining"; correct?
15 A. Sir, artisanal mining is not about people and
16 communities. Artisanal mining is about methods used,
17 regardless of whether these are employees who are in
18 mining camp or whether they are people coming from their
19 homes. We refer to artisanal mining as a way of doing
20 things: the kind of tools they use, the practices that
21 they use to extract the minerals, which tend to be using
22 very simple, rudimentary tools, often in very unsafe
23 mining environments, very unproductive and wasteful,
24 that harms the environment.
25 So I wouldn't use people and where they live, but
[Page 12]
12:21 1 rather on the methods used in extracting the minerals.
2 That's what we mean by "artisanal mining": as a method
3 rather than people.
4 Q. Thank you. I'd like to focus on the miners that were
5 conducting mining activity on and around the NRD
6 concessions while they operated those under those
7 licences.
8 These were people that were going out every day and,
9 by hand, conducting mining activities described as
10 "artisanal mining" because they needed to obtain
11 minerals so they could sell them and earn money for
12 their family to live on; correct?
13 A. Sir, artisanal mining as a practice is only recognised
14 in the context of licensed people. When they are let
15 me put it differently. They are licensed companies that
16 have formal rights to operate mines that use artisanal
17 methods, and these companies sometimes use labour that
18 comes from far, and they live on the mine. Sometimes
19 they may use labour that is coming from the community
20 around where the mine is. So it's not always exclusive
21 that the miners will be from around that community; many
22 times they are brought in from far.
23 But with respect to artisanal mining, we refer to
24 the methods that they are using, not exclusively to
25 those who are living near the mine.
[Page 13]
12:22 1 Q. Okay, so I'm just going to refer to "miners". What
2 you've just described as some of the miners are made up
3 of people coming from a distance, some of the people who
4 are the miners live either on the concession or the
5 communities right next to it, that was true of NRD when
6 it operated under its licences; correct?
7 A. I can't comment on that. I actually have -- I was not
8 actively following on NRD activities on the ground. But
9 given the reports that I have read and statements that
10 I have seen from various individuals, NRD had a mix as
11 well of miners: some that lived near to the mines and
12 some that came in from far.
13 Q. Okay. You're familiar with the period beginning in
14 2014, when then Minister Evode barred Pact from issuing
15 mineral tags to NRD to use in selling minerals; correct?
16 A. I have seen some correspondences to that effect, yes.
17 Q. Do you recall how long that lasted?
18 A. No, sir, I have no recollection. I don't have a memory
19 of that.
20 Q. Do you recall NRD being given back the opportunity to
21 obtain tags and continue selling minerals at any point?
22 A. I'm not aware of that. I have no recollection.
23 I wasn't following it.
24 Q. For the period of time that Minister Evode did prevent
25 tags from being issued to NRD, the government understood
[Page 14]
12:24 1 that at least as to those miners who had been doing
2 their daily activities at the NRD concessions because
3 they lived very close to those concessions, that those
4 people still had to go out each day and do the same type
5 of mining to obtain the same types of minerals if they
6 were going to obtain cash for their families to live on;
7 correct?
8 A. I'm not aware of that. In any case, if the formerly
9 licensed company was no longer operating in the
10 concession, then there is no one allowed to operate that
11 concession until it's fully licensed. If anybody was
12 going to go on that concession to mine any minerals, it
13 would be illegal and they would have to be punished by
14 the law.
15 Q. Where did the government think the people went when the
16 tags weren't delivered to NRD to use to sell minerals?
17 Where did the miners go?
18 A. Mr Cowley, I -- that's a question I am not able to
19 answer.
20 But I can tell you that mining communities, from
21 whom labour comes from to go and work on the mines, are
22 not concentration camps. Often those who live in the
23 communities also have other economic activities, because
24 they live on their land, they have agriculture. In
25 fact, the experience we have is that labour in the
[Page 15]
12:26 1 mining sector tends to be seasonal: increases in the dry
2 season, when agricultural activities are low, and
3 reduces during the rainy season, when they have to work
4 on their agricultural fields.
5 So it would not be unusual that whoever was no
6 longer working at the NRD mines would have their farms
7 to work on and do agricultural work on their fields.
8 Q. Because a portion of the miners were made up by
9 individuals who also had agricultural fields that they
10 operated and had invested their time in, you knew they
11 weren't going to leave just because tags stopped being
12 delivered to NRD; they were going to stay, right?
13 A. Sir, these are questions that perhaps would be best
14 asked to Mr Evode. But I can tell you in general terms,
15 as a government official, knowing how people live, that
16 if there were people laid off from mining and they were
17 living on their land, they would have opportunities to
18 continue to work on their field for agriculture. And if
19 there were any individuals that would have any ideas to
20 carry out illegal mining activities, I can assure you
21 that they would not be tolerated because the local
22 administration would have a responsibility to stop that.
23 Q. Well, just as a matter of common sense, the government
24 understood that even though NRD could no longer buy
25 their minerals and sell them using the tag system, these
[Page 16]
12:28 1 miners needed to mine and sell minerals, so it was
2 taking place. Wasn't that understood?
3 A. I don't understand the question, sir. Could you repeat
4 it? Maybe you can ask it differently. I didn't quite
5 pick it.
6 Q. You just told us that if it happened, it would have been
7 against the law for these miners to go out and continue
8 to mine and obtain minerals once NRD lost its rights to
9 the concessions. I'm actually focusing on the period
10 where it was on the concessions but lost the ability to
11 have lawful tags applied. So the same point: that there
12 was no lawful way to sell the minerals under the tag
13 system.
14 Despite your statement that you knew it would be
15 illegal, just as a matter of common sense, you knew
16 these people had to keep doing it, right?
17 A. That's incorrect, sir. There's no such thing as common
18 sense that leads people to do illegal activities.
19 Absolutely not.
20 If people had lost their job at NRD and they are no
21 longer employed at the mine, it means they don't have
22 a job at the mine: it means they must do alternative
23 economic activities to get their income. And I'm saying
24 if there are people who were working there and live in
25 the communities, have their agricultural land, that
[Page 17]
12:29 1 would be the alternative for them to do it.
2 So it's not common sense to say that the next thing
3 to do is to go and do illegal activities. And I've said
4 if anybody went to do that, or considered to do that,
5 they would immediately understand that it's illegal and
6 the local administration would have to stop that.
7 Q. Did the Government of Rwanda ever look into whether the
8 miners who had been mining on NRD's concessions while
9 NRD was given tags continued to mine on those
10 concessions when the tags were taken away from NRD, and
11 just found some other way to sell their minerals for
12 money for their families?
13 A. So, sir, let me explain.
14 Minerals are not eaten. They can only be used in
15 industries. And so, yes, if anybody was going to carry
16 out mining, it would be for selling them.
17 But for minerals to have access to the market, there
18 is a requirement in Rwanda to have them tagged. And
19 there are not individuals that have access to tags; tags
20 for minerals are only issued to fully licensed companies
21 that are in operation. So if NRD was no longer
22 operating their concession and they don't have access to
23 tags, the minerals would not have any tags, and that
24 goes without saying they have no access to the market.
25 Q. Well, that's why I'm asking these questions. And what
[Page 18]
12:31 1 I'm asking right now is: didn't the government ask these
2 very questions? Because if it was taking place, that
3 would suggest everything you just said about how the
4 tagging system is supposed to work may not in fact be
5 how it's working on the ground, if miners can go out,
6 mine minerals, just like they did every day under the
7 NRD concessions when NRD had tags, and find ways to sell
8 them to people who could get them into the stream of
9 commerce anyway. Didn't the government ask this
10 question and look into it?
11 A. Sir, the Government of Rwanda cares about its people and
12 we always care to make sure that they have gainful
13 employment and income. So I am aware that when NRD was
14 no longer operating their mining concessions, it was
15 important for the government to quickly find alternative
16 companies that could take up the concessions so they can
17 provide employment to those who had lost their jobs.
18 Q. How quickly did that happen? After NRD lost the ability
19 to apply lawful tags to the miners' minerals, how
20 quickly did the government get another operator in who
21 had such right and could pay those miners?
22 A. Sir, I need to check. I don't know how long it took,
23 but I can check that and come back to you.
24 Q. I'll come back to that question.
25 A. Sure.
[Page 19]
12:33 1 Q. May I ask that the supplemental witness statement be
2 brought up at paragraph 18, and the third sentence
3 highlighted -- well, sir, I'll let you read this
4 paragraph before we do anything else, and tell me when
5 you're ready to answer the question. (Pause)
6 A. I have read it.
7 Q. Now, if the third sentence could be highlighted, I would
8 appreciate it.
9 So focusing just on that sentence of that paragraph,
10 talking about the iTSCi tagging system and comments that
11 were made by the Claimants about how production numbers,
12 as the Claimants count them, suggest more minerals are
13 going out of Rwanda than are actually mined in Rwanda,
14 you explain that in fact the system is tracked closely,
15 and you describe here, at least in part here -- I think
16 there's other paragraphs as well -- but you describe
17 what you mean by how the system works. And here you say
18 that:
19 "Production figures are reported on a mine by mine
20 basis ..."
21 So by that you mean within something like NRD's
22 licences, when it was operating under them, there were
23 five concessions: you could actually track concession by
24 concession how much of a particular mineral was mined in
25 a given time period, compared to other minerals mined at
[Page 20]
12:35 1 that concession in same time period, and compare that to
2 minerals mined at the other NRD concessions by mine;
3 correct?
4 A. That's correct, yes.
5 Q. If I could ask that R-118 be brought up. Just to orient
6 you, are you familiar with this document, sir? And we
7 can give you a chance to look at it. I don't have
8 specific questions about anything other than one
9 section, and I'll bring it to you and highlight it. But
10 I want to make sure you're comfortable, you know what
11 document you're looking at, in case you recognise it.
12 A. Can I have a look at the title and who wrote it,
13 perhaps? Maybe it would help me.
14 Q. Yes, my memory isn't the sharpest, at least right now --
15 I'm a little bit tired so I can't say that the name
16 is on there, but I believe it's not contested that
17 Dr Mike has explained that he wrote this.
18 A. Sir, I'm not familiar with this document. But you can
19 ask the question you want.
20 Q. Okay. That's all I -- right, and I just wanted to make
21 sure.
22 So I'm going to ask now that we turn to page 3, and
23 there's a chart on that page, and highlight the chart
24 and the language under it. There we go. I'm going to
25 ask you a question about this.
[Page 21]
12:37 1 Within that document, Dr Mike summarised some data
2 in this chart form, and that's a few different types of
3 minerals that were being mined on the NRD concessions
4 over different years; correct?
5 A. I can see the figures, yes.
6 Q. That's what it says. And it specifically cites the
7 source, and I want to break that apart to see that you
8 might be familiar with what he's referring to, even if
9 you didn't view the document and aren't familiar with
10 these numbers. I'm focusing more on the sources.
11 So he says for some of the years, the data is
12 sourced from the data itself, it's provided by NRD. Are
13 you familiar with how the concession licensees reported
14 data about the production on their mines to the
15 government?
16 A. I am not familiar with how they reported prior to 2011,
17 and I will explain.
18 The year 2011 is when the iTSCi traceability system
19 started to operate in Rwanda, and since that time we
20 established a very accurate network of data collection
21 where each volume of minerals that is produced at the
22 mine site is bagged and tagged with a unique tag, which
23 is identifiable with the volume in the bag. Since that
24 time, data has been collected, simultaneously kept at
25 the government offices, as well as at the iTSCi offices.
[Page 22]
12:39 1 Prior to that time, I'm not familiar with how data
2 was collected from the mining companies and shared.
3 Q. Now, we just looked at your witness statement and the
4 language about production being identified mine by mine.
5 You're talking about the 2011 to today current system
6 that you refer to as taking place under iTSCi; correct?
7 A. That's correct, yes.
8 Q. So for a portion of this time period that didn't apply,
9 and there's two years where it does; correct?
10 A. Yes, again depending -- I would have to check which
11 year -- sorry, which month in 2011 when the iTSCi system
12 started operating. So I am not confident that it
13 started in January 2011.
14 But anyhow, from whenever iTSCi system started,
15 I can comfortably say that the bag-and-tag system has
16 been able to also accurately reflect on the mineral
17 production figures.
18 Q. Yes. So focusing again -- I started the question about
19 the data provided by NRD itself. Even though you said
20 you didn't know the details of how it reported, were you
21 at least familiar with the concept that the licensees of
22 mining concessions had an obligation to report their
23 production on a regular basis from their mines to
24 MINIRENA?
25 A. Yes, that would be a reasonable expectation, yes.
[Page 23]
12:40 1 Q. And that agency collected the data and it held the data
2 itself. So in addition to NRD having this information,
3 MINIRENA should have had its own set of this data, if
4 NRD complied with its obligations to report?
5 A. That's correct, yes. If NRD or any other companies had
6 provided the data, then it would be reasonable to expect
7 that the institutions who received it would have it.
8 Q. Then from 2011, whenever in the year it started
9 following it -- at least this says, "2011 & 2012 data
10 provided by RNRA". So let me focus on that first.
11 RNRA is the Rwanda Natural Resources Administration;
12 is that correct?
13 A. Authority, sir. Natural Resources Authority.
14 Q. I apologise. Thank you. And is the iTSCi bagging and
15 tagging reporting system operated under RNRA?
16 A. Now, RNRA has evolved. It used to have a department
17 called the Department for Geology and Mining: that's the
18 one that followed on the minerals. And it had other
19 departments: land, forestry, water, all natural
20 resources. It has since evolved to become what I lead
21 today: the Rwanda Mining, Petroleum and Gas Board.
22 Q. Okay.
23 This says those two years' data was provided by
24 RNRA. Do you know whether RNRA in those years collected
25 the data that the iTSCi system was producing from its
[Page 24]
12:42 1 bagging and tagging system about production at each
2 mine?
3 A. That's correct, yes. In fact, iTSCi keeps a duplicate
4 copy that the government also receives.
5 Q. And who receives it today? You said it progressed to
6 a different department. But who today holds all that
7 data reported by the iTSCi bag-and-tag system?
8 A. The institution that I lead.
9 Q. And that institution, RDB, has data from that system on
10 a mine-by-mine basis; correct?
11 A. That's correct, yes.
12 Q. You do know that the Claimants have made a point in this
13 case about the fact that the Government of Rwanda
14 chooses on an annual basis not to report that data on
15 a mine-by-mine basis, but collectively for the whole
16 country. So no one could go back and test no one
17 with just the publicly reported data could go back and
18 test to say, "Well, that's not actually what they've
19 produced, it's a lot more", because you can't attribute
20 any portion of the total to one mine on your own;
21 correct?
22 A. It's incorrect, sir. The fact that there is no
23 publication of the mine-by-mine production data does not
24 mean that it does not exist, and neither does it mean
25 that there is anything to hide. It's just that there
[Page 25]
12:44 1 has never been a requirement to do that. And moreover,
2 to do it that way would require to publish individual
3 company confidential data that would require you to ask
4 for their consent. However, if anybody wanted to go and
5 find out, obviously every company would be happy to, or
6 if you complied with their requirements to have access
7 to it.
8 Now, as government, we have never found a necessity
9 to do that, because on the one hand we have export
10 statistics and on the other hand we have got import
11 statistics, and it's very easy and clear to attribute
12 the difference to local production. Now, moreover, we
13 have a system that traces from the mine upwards,
14 aggregating each mine with the other to the point of
15 export, that gives us confidence in our numbers.
16 So only a cynical mind would question our numbers,
17 but they are verifiable, they are accurate.
18 Q. Thank you for that explanation.
19 If I could ask to return to the supplemental witness
20 statement, and section IV that begins on page 7.
21 I don't know if it could be enlarged at all. It's one
22 page.
23 But, Mr Gatare, are you able to read this?
24 I'm going to draw your attention to two paragraphs, but
25 I want to make sure you know what you're looking at.
[Page 26]
12:46 1 A. Which paragraph, sir?
2 Q. I'm going to ask you questions about paragraphs 25 and
3 26. But do you recall giving testimony in your witness
4 statement about the process by which a mining company,
5 if it's asked to return concessions to the government,
6 actually doesn't have a formal process? You said: this
7 is how it works, and you described in these paragraphs
8 what happens. Do you recall giving that testimony?
9 A. Correct, yes.
10 Q. If we could bring it down to 25 and 26.
11 After describing what you understood were the formal
12 rules of it, you then say, "In essence", how the process
13 works. You say really it's notification, and then the
14 government gives the licensee -- the former licensee
15 90 days to take care of its loose ends and final
16 business, and then after that the government is free to
17 take possession itself, occupy itself. It gives
18 90 days, more or less, you describe, as a courtesy, but
19 then it's free to go in and occupy itself; correct?
20 A. That's an incorrect characterisation of the process,
21 sir.
22 What I was describing here is the wrapping-up
23 process, the closure process, the exit process from
24 a licence holder, regardless of what has caused the end
25 of the licence period. And I explained that a licence
[Page 27]
12:48 1 holder can voluntarily decide they no longer wish to
2 continue operating a mining licence, or it could be
3 because they have not met compliance-related
4 regulations, and there would have been due process to
5 arrive to the conclusion that this is -- this has got to
6 end.
7 And how that ends is that it starts by unofficial
8 notification, which we would include in the
9 circumstances that are explained in the end of this
10 licence, and then it would go ahead to give the official
11 period of the company to actually conclude their
12 presence at the mining concession, which at the end
13 of which there is no additional relationship between the
14 company and the government. Yes.
15 Q. In fact, after the description of those same events in
16 the information, in the language that was used in the
17 supplemental witness statement, you get down to
18 paragraph 26, which I believe is the last paragraph in
19 that section, and you start by saying:
20 "As a practical matter, there are no formal
21 procedures required other than [the] notification."
22 So, as you described, it could be notification in
23 some instances from the licence holder, it might have to
24 formally notify the government that it was giving up the
25 licence and leaving; or it could be that the government
[Page 28]
12:49 1 had to give notice to the licence holder that it lost
2 its rights under the licence and had to leave.
3 But other than that, you say there's no formal
4 procedure; correct?
5 A. What I mean by "formal procedures" is the kind of
6 protocol procedures of handover of this or that: you
7 know, people coming together to receive a concession
8 back or whatever. There is no formal event that
9 concludes that relationship.
10 The notification requires the company and it gives
11 the company an opportunity to wrap up their operations
12 properly, to meet some of the outstanding obligations,
13 whether it's with their employees or whether it's with
14 their suppliers or whether it's with other institutions
15 and companies they may have had a relationship with.
16 Of course the company has got also a right to
17 request an additional period, if they feel they have not
18 concluded what they needed to do. But other than this
19 notification, and the company carrying out those
20 concluding those obligations, there are no formal events
21 associated with this exercise.
22 Q. In your testimony you say that means you wouldn't even
23 expect much dialogue if it got to the endpoint where the
24 government was asking the licensee to leave, and within
25 90 days the government could occupy, without anything
[Page 29]
12:51 1 happening other than that formal notification; correct?
2 A. Indeed, if the company has not requested any additional
3 time for them to conclude any outstanding obligations,
4 then indeed it would be expected at the end of that
5 notification period that the concession is back in the
6 hands of the government.
7 Q. Yes.
8 If I could ask that C-038 be brought up.
9 This is a May 19th 2015 letter from then
10 Minister Evode Imena to NRD. Have you seen this before?
11 A. Can you zoom it up, please, for me to see? My sight is
12 not as good as it used to be.
13 Q. I can relate very well to that.
14 A. What's the date of this document, please?
15 Q. May 19th 2015.
16 A. Yes, I can see it. Thank you.
17 Q. Are you familiar with this letter?
18 A. I can't recall it. But I can see that we were copied,
19 at the Rwanda Development Board.
20 Q. Yes. And as you just read it, you saw the last
21 paragraph in the letter, in which Minister Imena stated
22 that NRD is asked to hand back over the concessions;
23 correct?
24 A. Can I see that? I did not read through the document;
25 I was scanning through the beginning and end.
[Page 30]
12:53 1 Q. Please highlight the last paragraph of the letter, on
2 the second page.
3 A. I can see that, yes.
4 Q. Based on the description we just read in your witness
5 statement, it's accurate to say, is it not, that after
6 sending this notice, Minister Imena shouldn't have
7 expected any further dialogue with NRD, but after
8 waiting -- whether it's the 60 days that he says or the
9 90 days that you say, after waiting that notice period,
10 he understood that the ministry was then free to occupy
11 the concessions itself, with nothing further from NRD;
12 correct?
13 A. This seems consistent with what I was describing.
14 Q. I'd like to touch on one point. In your first witness
15 statement you give a bit of a description of the
16 background of, first, as it started, RIEPA, and then
17 what then went into your department, your group in RDB.
18 You gave some testimony about the interest in
19 obtaining foreign investment in Rwanda throughout
20 a number of industries over a long period of time, and
21 that you were looking for people willing to assist,
22 people willing to invest -- broadly, not specifically to
23 Mr Marshall, for example, who you challenged his
24 statement about his specific solicitation -- and you
25 described how there was broad solicitation of investment
[Page 31]
12:55 1 and interest in a lot of industries; correct? Do you
2 remember that?
3 A. Sorry, I'm not sure I understand the question --
4 Q. Yes, it was a poor question. I'm trying to race here,
5 and I shouldn't.
6 Do you recall that in your first witness statement
7 you described the background of your department working
8 to get foreign investors in a number of industries
9 within Rwanda?
10 A. Correct, yes.
11 Q. Including the mining industry; correct?
12 A. Correct, yes.
13 Q. And because you wanted foreign investors to come in and
14 be successful, you did not the Government of Rwanda
15 did not place any prohibition on investors from selling
16 their shares to other investors over time; correct?
17 A. Prohibition? I'm not sure I understood. Can you repeat
18 that last part, please?
19 Q. Yes. When your group was working with investors to come
20 in and invest in companies in Rwanda, to do business in
21 various sectors, you didn't put any restrictions on
22 those investors from then selling those shares to others
23 who might want to pay them more for it, or pay them
24 whatever for it; correct?
25 A. No, no restrictions.
[Page 32]
12:57 1 Q. Because you understood if you placed restrictions on
2 investors' ability to sell their shares to others, it
3 would make it a much less attractive investment for them
4 to ever put any money in in the first place, right?
5 A. That is reasonable, yes.
6 Q. How many mining concessions were privatised in the
7 2005-2010 period? And I use the term "concessions";
8 I didn't ask how many licences were issued. How many
9 mining concessions were privatised?
10 A. I can't recall. So I wasn't even actively involved.
11 I can't give you a number, but there are quite a number
12 of them.
13 Q. One last document, if I could ask to bring it up: C-132.
14 Take a look at this document, sir, to refresh your
15 recollection about it. (Pause)
16 A. Can you go to the bottom of the document, please.
17 Further down, please. I'm trying to see if it's the one
18 I'm thinking about. Yes, okay.
19 Q. Do you recall in your supplemental witness statement
20 discussing your impression of this document? You
21 conclude that you say you don't think it was actually
22 signed by RIEPA and Mr Marshall.
23 A. I recall seeing this document and Mr Marshall's
24 allegations that this was indeed signed by my
25 predecessor, Mr Williams Nkurunziza, and I have
[Page 33]
12:59 1 questioned it on a number of grounds.
2 One, when I succeeded Mr Williams Nkurunziza as
3 general director of RIEPA, I never received this as
4 a handover relationship, which
5 Q. Mr Gatare, can I ask you about one ground only.
6 I wanted to focus on the document because I have
7 a question about one of the grounds that you gave. As
8 opposed to -- I'm not asking you about all your
9 testimony; it's in the witness statement.
10 But you did mention as one of the grounds that you
11 said the date of January 12th 2004, as referenced by
12 Mr Marshall, you think shows that this document is
13 inaccurate because RIEPA didn't exist in January, it
14 came into existence in September 2004; correct?
15 A. Correct, yes.
16 Q. Isn't an equally plausible explanation for that fact
17 that you noticed, instead of Mr Marshall lying about
18 this document actually being signed, the fact that
19 Mr Marshall, an American lawyer who had been living in
20 Europe, coming to Rwanda in 2004, dated a document using
21 the American month/day/year reference, instead of what
22 is familiar from our documents as the Rwandan accepted
23 day/month/year system, so when he looked back at it all
24 these months later, he said January 12th instead of
25 December 1st 2004? Isn't that equally plausible to
[Page 34]
13:01 1 making up the whole document?
2 A. I can -- if -- I do not know the American official
3 way
4 THE PRESIDENT: I'm not sure that the witness is the right
5 person to answer that question, as opposed to the
6 Tribunal.
7 MR COWLEY: Thank you. No further questions.
8 MR HILL: I have no re-examination.
9 THE PRESIDENT: Thank you very much, Mr Gatare. You're now
10 free to go.
11 MR GATARE: Thank you. Thank you, Mr President.
12 (The witness withdrew)
13 (Pause)
14 THE PRESIDENT: Is Mr Rwamasirabo ready to give evidence?
15 MR COWLEY: That's my understanding. I didn't hear
16 Mr Kaplan specify whether he's in the room and he's
17 connected with FTI, but that's our expectation: he was
18 to be available --
19 MR KAPLAN: Yes, that's my understanding. Please go ahead,
20 FTI.
21 MR WATKINS: I apologise. Yes, he is sitting in front of
22 his system, I can see him on the 360 camera and he is in
23 the waiting room, so we should be able to bring him in.
24 THE PRESIDENT: Well, I suggest we give him the ordinary
25 witness declaration, notwithstanding the fact that some
[Page 35]
13:04 1 of his evidence relates to law.
2 MR HILL: Yes. Mr President, the examination of this
3 witness is going to be conducted by Mr McCarthy on
4 behalf of the Respondent, rather than by me. So he will
5 appear on camera in a moment.
6 THE PRESIDENT: Thank you.
7 MR COWLEY: Before we start, can I just ask what time
8 I should pay attention to -- or the questioning is going
9 to be done by someone else, but what time should we be
10 paying attention to for the break?
11 THE PRESIDENT: We'll proceed for about three-quarters of
12 an hour and then we'll break for half an hour.
13 MR WATKINS: Would you like me to bring the witness in,
14 Mr President?
15 THE PRESIDENT: I would, please. (Pause)
16 Is there some problem?
17 MR KAPLAN: It shows his video is connected but we're seeing
18 a black screen.
19 MR WATKINS: It's still coming in. His internet
20 connectivity is very, very weak. We may have to turn
21 off his 360-degree camera to save bandwidth.
22 MR KAPLAN: Counsel, members of the Tribunal, may we do so,
23 so that his bandwidth is ...
24 THE PRESIDENT: Yes.
25 MR WATKINS: Was that a "Yes"? I apologise, I didn't hear.
[Page 36]
13:07 1 THE PRESIDENT: Sorry. It was a "Yes".
2 MR KAPLAN: Mr President, the witness is available.
3 (1.07 pm)
4 MR OLIVIER RWAMASIRABO (called)
5 THE PRESIDENT: Good afternoon, Mr Rwamasirabo.
6 MR RWAMASIRABO: Good afternoon.
7 THE PRESIDENT: If you would please look at your screen, and
8 there is a witness declaration that's normally designed
9 for a witness of fact, although it seems to the Tribunal
10 that some of your evidence relates to matters of law.
11 But we've decided that we would invite you to repeat
12 this declaration, if you are happy to do so, aloud.
13 MR RWAMASIRABO: I'm happy to do so.
14 THE PRESIDENT: Yes. Please will you then repeat the
15 witness declaration.
16 MR RWAMASIRABO: Sorry, I didn't get you.
17 THE PRESIDENT: Could you look at your screen.
18 MR RWAMASIRABO: Yes.
19 THE PRESIDENT: Do you see a witness declaration?
20 MR RWAMASIRABO: I cannot see it.
21 MR WATKINS: One moment.
22 MR RWAMASIRABO: Okay, yes. Sorry, yes.
23 THE PRESIDENT: I was explaining: that is a witness
24 declaration that is designed for witnesses of fact.
25 MR RWAMASIRABO: Okay.
[Page 37]
13:09 1 THE PRESIDENT: Some of your witness statement is dealing
2 with law. But we have thought it appropriate to invite
3 you to make this declaration, if you are happy to do so.
4 MR RWAMASIRABO: I'm happy to do so.
5 THE PRESIDENT: Well, then would you please repeat it aloud.
6 MR RWAMASIRABO: I solemnly declare upon my honour and
7 conscience that I shall speak the truth, the whole truth
8 and nothing but the truth.
9 THE PRESIDENT: Thank you.
10 (1.09 pm)
11 Cross-examination by MR MCCARTHY
12 Q. Good afternoon, Mr Rwamasirabo.
13 A. Good afternoon.
14 Q. I'd like to start by asking you some questions about the
15 contract. Operator, if we could have up Exhibit C-017.
16 This is the contract made between NRD and Rwanda for
17 acquiring the mining concessions; yes?
18 A. Yes.
19 MR MCCARTHY: Sorry, I can't hear Mr Rwamasirabo.
20 A. I said: yes, I can see it on the screen.
21 THE PRESIDENT: Did you hear anything?
22 MR RWAMASIRABO: Hello?
23 THE PRESIDENT: Mr McCarthy, did you hear the answer?
24 MR MCCARTHY: I didn't hear the answer, sorry, no. We had
25 a little problem here. Sorry.
[Page 38]
13:10 1 THE PRESIDENT: Right.
2 MR MCCARTHY: I think we're okay now.
3 Mr Rwamasirabo, Article 2 of the contract sets out
4 certain obligations on NRD?
5 A. Sure, yes. Can you just scroll down, so that the
6 article -- Article 2 can be visible. Scroll up. Yes,
7 thank you.
8 Q. Article 2.2 required NRD to provide the action plan, the
9 environmental protection plan and the investment plan?
10 A. Sure.
11 Q. Article 2.3 required NRD to:
12 "Proceed immediately to the industrial exploitation
13 in all given sites."
14 A. Sure.
15 Q. And Article 2.5 required NRD to:
16 "Provide ... reports of reserves and the feasibility
17 study after 4 years."
18 A. Sure.
19 MR WATKINS: Excuse me, Mr McCarthy. We're getting a lot of
20 feedback. Is there another system in your room that the
21 speaker is on?
22 MR MCCARTHY: Yes, sorry. If we can just take 30 seconds to
23 sort that out, sorry. (Pause)
24 Is that better?
25 MR WATKINS: Yes, it appears to be better. Thank you.
[Page 39]
13:12 1 MR MCCARTHY: If we could have a look at Mr Rwamasirabo's
2 first witness statement at paragraph 5, please,
3 operator: if we could look at that side by side with the
4 contract.
5 You say in paragraph 5 that:
6 "... once one party to a contract performs, that
7 party is entitled to all benefits owed to that party
8 under the contract."
9 A. Can you repeat that, please?
10 Q. You say that:
11 "... once one party to a contract performs, that
12 party is entitled to all benefits owed to that party
13 under the contract."
14 That is your first sentence, yes?
15 A. True.
16 Q. And you say in the next sentence that NRD was:
17 "... obligated ... to '[p]roceed immediately to the
18 industrial exploitation' and to perform other research
19 and planning activities."
20 A. True.
21 Q. You're referring there to the obligations under
22 Article 2 of the contract which we've just looked at,
23 and you can see on the slide?
24 A. True.
25 Q. You accept that NRD had to perform the obligations under
[Page 40]
13:13 1 Article 2 before it would be entitled to grant the
2 mining concessions?
3 A. True.
4 Q. It follows that if NRD didn't perform its obligations
5 under Article 2 of the contract, it would not be
6 entitled to the grant of the mining concessions?
7 A. True.
8 Q. And therefore there was no guarantee under the contract
9 that NRD would receive the grant of the mining
10 concessions, regardless of its own contractual
11 performance?
12 A. No, what I meant -- what I meant in this on that
13 paragraph is that as long as NRD performed their
14 contractual obligations under Article 2, they would be
15 entitled, they would have a right to a long-term
16 contract.
17 Q. Yes, Mr Rwamasirabo. I think you agree with me that
18 under the contract, there was no guarantee that NRD
19 would receive the mining concessions regardless of its
20 contractual performance?
21 A. There will be a guarantee as long as they have performed
22 their contractual obligations. And the other party will
23 also have to fulfil its contractual obligations, since
24 NRD had performed them.
25 Q. You accept that NRD had to perform its obligations under
[Page 41]
13:15 1 the contract?
2 A. Of course, and which they did.
3 Q. Well, Mr Rwamasirabo, that's a factual assertion and
4 we'll come to that a bit later on. For now I'd like to
5 move to Articles 3 and 4 of the contract, and if we
6 could focus on that again, operator.
7 Now, the French and English versions of the contract
8 have slightly different meanings. But under both
9 versions of the contract, NRD was first required under
10 Article 2.5 to submit a feasibility study?
11 A. Sure.
12 Q. And both versions required a "positive evaluation of the
13 submitted feasibility study"?
14 A. Sure.
15 Q. So that required the government to consider the
16 feasibility report submitted under Article 2.5?
17 A. Sure.
18 Q. And it was for the government to deem the submitted
19 feasibility study was satisfactory?
20 A. Sure.
21 Q. Now, operator, if we could look back at paragraph 5 of
22 Mr Rwamasirabo's witness statement.
23 In paragraph 5 you make no reference to NRD's
24 obligations under Article 4 of the contract?
25 A. Sure.
[Page 42]
13:16 1 Q. The government obligations under Article 4 were also
2 conditional on the positive evaluation of the
3 feasibility study?
4 A. It was one of the obligations that NRD had to fulfil.
5 Q. If we could have a look at paragraph 6 of your witness
6 statement, operator, please. You say there:
7 "... it was common knowledge in the mining industry
8 that once a mining company obtained a contract for ...
9 mining licenses, it was guaranteed long-term concessions
10 at the end of the original four-year term."
11 A. Sure, yes.
12 Q. But you yourself are not a member of the mining
13 industry, are you?
14 A. I'm not a member of the mining industry. But I have
15 experience in the mining sector, I have other clients in
16 the mining sector, and I have that knowledge.
17 Q. Yes, you're not a member of the mining industry and
18 you've taken this point on instructions from Claimants'
19 counsel, haven't you?
20 A. I beg your pardon, Daniel?
21 Q. You are not a member of the mining industry and you've
22 taken this point on instructions from Claimants'
23 counsel?
24 A. No.
25 Q. You have put forward no evidence to support your
[Page 43]
13:18 1 assertion as to what was common knowledge in the mining
2 industry?
3 A. It is -- I've given that statement based on my knowledge
4 of the Rwandan mining industry and what the practice has
5 been.
6 Q. And you're not properly in a position to make that
7 assertion?
8 A. I believe I have the knowledge, I have the skills, and
9 I've worked in the mining industry and I've followed
10 closely the mining sector in Rwanda.
11 Q. We'll come to your background a bit later on. For now,
12 I want to have a look at Exhibit RM-001. (Pause)
13 Sorry, we still don't have the right document.
14 Exhibit RM-001, please. It should be the 2011 Law
15 Governing Contracts. Thank you.
16 If we could go to page 50 of the PDF, operator. If
17 we could focus on Article 77.
18 This is Article 77 of the Rwandan 2011 Law Governing
19 Contracts; yes?
20 A. Yes.
21 Q. And it defines a "suspensive condition"?
22 A. Yes.
23 Q. This is:
24 "... an event which must occur before the
25 performance of the contract becomes due."
[Page 44]
13:20 1 A. Yes.
2 Q. And:
3 "An event may be a suspensive condition either by
4 agreement between the parties or by an order of the
5 court."
6 A. Yes.
7 Q. If we could also look at the same time, operator, at
8 C-017 again, at Articles 3 and 4, if that's possible,
9 please. (Pause) Thank you, operator.
10 The positive evaluation of the feasibility study was
11 an event which had to occur before the government would
12 be required to perform its obligations in respect of the
13 mining concessions?
14 A. Yes.
15 Q. The positive evaluation of the feasibility study under
16 Article 4 was therefore a suspensive condition under
17 Article 77?
18 A. I don't agree with that.
19 Q. Well, Mr Rwamasirabo, you agree that it's an event which
20 must occur before the performance of the contract
21 becomes due. It's plain from the language --
22 A. I don't --
23 Q. Sorry, can I just finish the question.
24 A. Yes.
25 Q. It's plain from the language of the contract that this
[Page 45]
13:21 1 is a suspensive condition, isn't it?
2 A. It's not mentioned anywhere that it's a suspensive
3 condition of the contract. If you look at Article 77,
4 paragraph 2, this event which is the feasibility
5 study, positive evaluation of the feasibility study
6 should have been an event that was agreed upon between
7 the two parties before that, or by a court order. And
8 we do not see anywhere in the contract where it was
9 agreed between the parties, okay? And neither do we
10 even have any court order in that regard.
11 So that is why I cannot -- I don't consider this to
12 be a suspensive condition; rather executory.
13 Q. Mr Rwamasirabo, the parties have agreed the terms of
14 Article 4, didn't they?
15 A. Yes, but they did not agree that it should be
16 a suspensive condition. It should be explicitly
17 mentioned in the contract, like many other contracts
18 where you find suspensive conditions.
19 Q. And Article 77 says nothing which requires a suspensive
20 condition to be expressly labelled as such in the
21 contract?
22 A. But it wasn't agreed between the parties at the
23 beginning, yes.
24 Q. Mr Rwamasirabo, if you could just focus on my question.
25 Article 77 does not require that a suspensive
[Page 46]
13:23 1 condition be explicitly labelled in the contract,
2 does it, as such?
3 A. But -- I get you. But it requires that that suspensive
4 condition should be agreed between the parties before
5 that.
6 Q. Yes, but just focus on the particular requirement which
7 you've asserted: that it must be expressly labelled.
8 There is nothing in Article 77 which requires
9 a suspensive condition to be expressly labelled as such
10 in the contract; yes?
11 A. There is nothing. But, sir, Article 77, paragraph 2,
12 requires that this should be agreed between the parties,
13 and this was not -- it wasn't done before then.
14 Q. Operator, if we could go down to Article 78, please.
15 This sets out the effect of the non-occurrence of
16 a suspensive condition?
17 A. Yes.
18 Q. And pursuant to Article 78 of the law, non-occurrence of
19 the suspensive condition extinguishes the obligation
20 under the contract?
21 A. Yes.
22 Q. So if the requirement for the positive evaluation of the
23 feasibility study was a suspensive condition, if it was
24 not positively evaluated, the government's obligation to
25 create long-term concessions was extinguished?
[Page 47]
13:24 1 A. Yes, if it was a suspensive condition.
2 Q. If we could go to Mr Rwamasirabo's first witness
3 statement at paragraph 7, please.
4 I don't think we've got the right witness statement,
5 sorry. Mr Rwamasirabo's first witness statement,
6 please. Thank you.
7 You say that there's a Rwandan administrative
8 practice that if one party fails to contest the other
9 party's performance, it is "deemed to be
10 an acknowledgment of performance"?
11 A. Yes.
12 Q. And you say that:
13 "Rwanda did not object to NRD's performance under
14 the terms of Article 4 ..."
15 A. Yes.
16 Q. And you say:
17 "As a result ... NRD's performance is deemed to be
18 acknowledged."
19 A. Yes.
20 Q. In paragraph 7 you've cited no provisions of Rwandan law
21 in support of the propositions you make there?
22 A. Yes.
23 Q. Operator, if we could get Exhibit C-062, please.
24 This is a letter dated 2nd August 2011 from
25 Minister Kamanzi to NRD?
[Page 48]
13:26 1 A. Yes.
2 Q. The letter expressly states that Rwanda considered that
3 the contract "had not been fully executed"?
4 A. Yes.
5 Q. "... more especially [as to] article 2 as regards the
6 presentation of the final report ... and [the] mining
7 feasibility studies ..."
8 A. Yes.
9 Q. So Rwanda did object to NRD's performance under the
10 contract?
11 A. In that letter, yes.
12 Q. You've also ignored other examples in the evidence which
13 record Rwanda's dissatisfaction with NRD's performance
14 of the contract, haven't you?
15 A. No, I have not. I did not see even prior to that
16 letter, I did not see anywhere where the government had
17 objected to the performance of NRD. And this letter
18 came almost a year -- almost one year after NRD made the
19 right application, in time and in full.
20 Q. You've also failed to mention that Rwanda proposed to
21 NRD that it would be prepared to negotiate on only two
22 of the five concessions because its performance under
23 the contract fell below what was expected?
24 A. No.
25 Q. Well, if we can go back to paragraph 7. Operator, if we
[Page 49]
13:28 1 could have paragraph 7 and Exhibit R-018 up at the same
2 time, please, of Mr Rwamasirabo's first witness
3 statement.
4 On the right-hand side is a letter of January 2012
5 to NRD, again from Minister Kamanzi.
6 A. Yes.
7 Q. Again, he is making clear that Rwanda's contractual
8 performance -- in the second paragraph -- fell short of
9 what was expected?
10 A. Yes.
11 Q. If we look back at paragraph 7, you fail to mention
12 Exhibit C-062; yes?
13 A. Can you repeat that, please?
14 Q. There's no reference there to Exhibit C-062 in
15 paragraph 7?
16 A. No.
17 Q. Correct?
18 A. Yes.
19 Q. And there's no reference to Exhibit R-018?
20 A. No.
21 Q. And your first witness statement at paragraph 7 is wrong
22 when it suggests that Rwanda did not object to NRD's
23 performance under the contract?
24 A. I don't fully agree. If ... I don't fully agree because
25 this partly came almost one or two years in silence,
[Page 50]
13:30 1 two years keeping NRD in total silence, two years of
2 inaction, and I consider that as having -- not having
3 exercised due process in terms of making the applicant
4 know within the time, within the time provided by the
5 law. If you look at the 2008 law, there was
6 a prescribed time which the Ministry of Natural
7 Resources had to reply to the applicants.
8 So in my assessing this application, and the
9 response that came more than a year after the
10 application, I considered it that they had not objected
11 to NRD's performance within the due time, within the
12 normal time, the normal practice within that sector.
13 Q. If we could have, operator, instead of R-018, if we
14 could have R-106, please. Sorry, it would be helpful to
15 keep the witness statement and have R-106 instead of
16 R-018, please. (Pause)
17 Sorry, I think we have the wrong exhibit, operator.
18 It should be R-106, please. We'll come back to the
19 contract if that's too complicated. Sorry. Thank you.
20 Sorry, operator, R-106 is the document we want.
21 This is a letter in 2009 to NRD from the minister,
22 and paragraph 4 is requesting a report on why NRD cannot
23 meet the obligations?
24 A. Yes, I can see.
25 Q. And again, Rwanda was calling into question NRD's
[Page 51]
13:33 1 performance of the contractual obligations?
2 A. Yes, I can see that.
3 Q. Looking back at paragraph 7, your statement is wrong
4 when it suggests that Rwanda did not object to NRD's
5 performance?
6 A. I don't believe it's wrong, because even after 2009, NRD
7 continued to get several extensions of the mining
8 concession. And I don't think -- I don't think any
9 regulator can extend mining -- the mining licences
10 several times if the company is not performing.
11 Q. You've made an unqualified, an unequivocal statement in
12 paragraph 7 that Rwanda did not object, and that's
13 wrong?
14 A. It did not object within the prescribed time, okay,
15 especially with regard to when they were examining the
16 applications for the long-term contract.
17 Q. And it's wrong to suggest that NRD's performance under
18 the contract was deemed to be acknowledged?
19 A. It's not wrong.
20 Q. If we could have a look at Mr Rwamasirabo's third
21 witness statement, please. Paragraph 6, please.
22 You say here that:
23 "[You] disagree with Mr Mugisha's conclusions ...
24 that ... the contract was not extended ..."
25 You say that:
[Page 52]
13:36 1 "... each time Rwanda extended the licenses,
2 explicitly or implicitly, it also implicitly extended
3 the Contract."
4 A. Yes.
5 Q. And again, you've cited no provision of Rwandan law to
6 support the assertion that extensions to the licences
7 implicitly extended the contract?
8 A. This was on the basis of Mugisha's assertion that as
9 long as the contract was not valid, he wouldn't get
10 NRD wouldn't have a mining licence. So in a sense, the
11 contract -- the licence stemmed from the contract. So
12 if they continued -- the government continued extending
13 NRD's licence, implicitly it was -- the contract was
14 still valid.
15 Q. My question, Mr Rwamasirabo, was that you've cited no
16 provision of Rwandan law in support of paragraph 6,
17 have you?
18 A. No.
19 Q. If we could go down to paragraph 7, please.
20 Again, on the fourth line you say that:
21 "... the Contract was implicitly extended with each
22 extension of the Licenses, or [you say] the Licenses
23 independently grant the right to conduct mining
24 operations at the Concessions covered by the licenses."
25 A. Yes.
[Page 53]
13:37 1 Q. But it's right that the licences only granted the right
2 to conduct mining operations only whilst they remained
3 on foot?
4 A. Can you repeat your question, please?
5 Q. It is right that the licences only granted the right to
6 conduct mining operations whilst they remained on foot?
7 A. Could you qualify "whil[e] staying on foot", please, for
8 me to understand clearly your question?
9 Q. So prior to the period before they'd expired.
10 A. Yes.
11 Q. Yes, you agree?
12 A. I don't agree.
13 Q. Well, it's right, isn't it, that the licences only grant
14 the right to conduct operations when the licence is
15 valid?
16 A. If you are granted a licence, if you are and when NRD
17 got extension of licence, it had a right to mine -- to
18 carry out mining operations in all the concessions for
19 which they are granted the extension.
20 Q. But if the licences no longer remained valid after
21 they'd expired, there's no right to conduct mining
22 operations?
23 A. I don't think so. But if also the regulator does not
24 stop the holder of the mining licence, even if it was
25 expired, and is made to believe -- is left to continue
[Page 54]
13:39 1 operating, to continue mining, I take it as implicitly
2 letting the -- you know, the company continue to do
3 their operations.
4 Q. You've not made that point in your witness statement and
5 you've not cited any provision of Rwandan law to support
6 that?
7 A. I responded to your question, Mr Daniel.
8 Q. Mr Rwamasirabo, if we could now consider due process.
9 Operator, if we could get up Mr Rwamasirabo's first
10 witness statement, paragraphs 9 to 12.
11 In paragraphs 9 to 12 you make various --
12 THE PRESIDENT: I think, Mr McCarthy, if you're getting into
13 a new topic, it might be a convenient moment to break
14 for 30 minutes.
15 MR McCARTHY: Sure.
16 (1.40 pm)
17 (A short break)
18 (2.15 pm)
19 THE PRESIDENT: Yes, Mr McCarthy.
20 MR MCCARTHY: Thank you, Mr President.
21 Mr Rwamasirabo, I'm going to ask you some questions
22 about due process.
23 Operator, please could we have Mr Rwamasirabo's
24 first witness statement at paragraphs 9 to 12.
25 In paragraph 9 you say that Minister Imena's failure
[Page 55]
14:16 1 to hold negotiations with NRD was a violation of NRD's
2 rights of due process under Rwandan law?
3 A. Yes.
4 Q. In paragraph 10 you say that:
5 "Under Rwandan law, a failure to initiate
6 negotiations following an invitation to negotiate is
7 a violation of due process."
8 A. Yes.
9 Q. And paragraph 11 you say that Minister Imena violated
10 NRD's rights of due process when he requested NRD to
11 submit documents in support of the application for
12 concessions under the 2014 law?
13 A. Yes.
14 Q. And in paragraph 12 you again make the allegation that
15 a refusal to meet with or communicate with NRD was
16 a violation of due process under Rwandan law?
17 A. Yes.
18 Q. In paragraphs 9 to 12 you have cited no provisions of
19 Rwandan law in support of the propositions you make in
20 relation to alleged violations of due process?
21 A. Yes.
22 Q. Operator, if we could get up Mr Mugisha's first report,
23 please, at paragraphs 53 and 54. That's page 14 of the
24 PDF.
25 Thank you. Sorry, this doesn't appear to be the
[Page 56]
14:17 1 correct document. Mr Mugisha's first expert report,
2 please. I think that's his witness statement.
3 At paragraph 54 Mr Mugisha explains that there is no
4 such law in Rwanda that a failure to initiate
5 negotiations is a violation of due process?
6 A. Yes, I can read that.
7 Q. In paragraph 56 Mr Mugisha says:
8 "There is no codified law on due process in Rwanda."
9 A. I can read that.
10 Q. And Mr Mugisha also says that requesting the submission
11 of relevant and required documents is also not illegal
12 under Rwandan law?
13 A. I can read that.
14 Q. Now, you've subsequently had an opportunity to respond
15 to Mr Mugisha's first report in your second and third
16 witness statements.
17 A. Mm-hm.
18 Q. Yes?
19 A. Yes.
20 Q. If we could have a look at your third witness statement,
21 please, paragraphs 21 and 22. You again make assertions
22 here that Rwanda violated NRD's due process rights?
23 A. True.
24 Q. Again, you do not cite any provisions of Rwandan law in
25 support of your assertions about the violation of due
[Page 57]
14:20 1 process rights?
2 A. Yes, I did not.
3 Q. You didn't challenge in either of your second or third
4 witness statements the conclusions in paragraphs 53
5 to 56 of Mr Mugisha's report that there is no such law
6 in Rwanda?
7 A. But I explained it -- I explained, and I can explain:
8 due process as a concept, due process as a legal
9 principle, is not necessarily -- it does not necessarily
10 need to be codified, because these are legal
11 requirements. It's reflected in the legal procedures,
12 the legal requirements that are afforded to any citizen,
13 and in our case afforded to NRD's right to the
14 concessions.
15 Q. Mr Rwamasirabo, if I could just repeat my question. You
16 did not challenge the conclusions of Mr Mugisha in
17 paragraphs 53 to 56 in either of your second or third
18 witness statements, do you?
19 A. Can you -- yes, can you put on screen paragraph 53,
20 please, of Mugisha's conclusions.
21 Q. Operator, if we could just have 53 to 56 back up,
22 please.
23 Those paragraphs you did not challenge anywhere in
24 your second or third witness statements, did you?
25 A. I think I challenged it in several statements I made
[Page 58]
14:22 1 about the due process. The actions, the statements that
2 were made by the ministry, the different officials in
3 the Ministry of Natural Resources, the actions, the
4 statements and the letters that were being sent to NRD.
5 I think we explained it.
6 Q. Mr Rwamasirabo, I'm putting to you that you didn't
7 challenge Mr Mugisha's conclusion that there is no such
8 law in Rwanda.
9 A. I've explained to you that due process does not
10 necessarily need to be codified. You don't necessarily
11 need to have a very specific, explicit clause in the law
12 to say that this is due process; no. It's reflected in
13 the legal procedures. It's reflected in the requirement
14 that before you take away somebody's property, in our
15 case, that person, that citizen, being an individual,
16 a company, has to be given the minimum due process: the
17 right to be heard, the right to know why that property
18 is being taken away or infringed on, the right of
19 response.
20 And in this case NRD waited almost two years to get
21 a response. And that's a --
22 Q. Mr Rwamasirabo, you cited -- sorry.
23 A. That's why I -- in my statement I said there was lack of
24 a minimum due process that was accorded to NRD, bearing
25 in mind of the heavy investment that it had made during
[Page 59]
14:23 1 the four years.
2 Q. You cited nothing at all in any of your statements
3 regarding due process, did you?
4 A. Can you repeat the question, please?
5 Q. You cited nothing at all in any of your witness
6 statements about Rwandan law on due process?
7 A. I've explained to you: due process is a legal principle
8 and it's a concept. You can see that through many laws.
9 It doesn't necessarily have to be codified.
10 Q. And that's because there is no Rwandan law imposing
11 obligations in respect of due process, as you claim in
12 your witness statement?
13 A. I think I've -- let me repeat it.
14 Due process is reflected in the various laws,
15 including the 2008, the 2014 law. For example, where
16 they say that within 60 days an application has to be
17 made, and within, I think, 60 days, again in the law --
18 the 2014 law -- that a response has to be made to the
19 applicant. And the reasons why -- they have to
20 communicate the reasons why the licence or the contract
21 has been denied; that is, if it has been denied.
22 But nothing was done. In the case of NRD, they had
23 to wait for more than a year, close to two years, to be
24 told that -- unilaterally be told that, "Your
25 application was rejected".
[Page 60]
14:25 1 Q. We don't accept you cited any provisions. But I'm going
2 to move on and I'm going to ask you now about your
3 background.
4 Operator, please could we have Exhibit R-243.
5 Page 7, please.
6 This is your curriculum vitae which you've submitted
7 as part of your declaration?
8 A. Yes.
9 Q. If we can go to page 2 of the CV, please, operator.
10 You set out your employment record?
11 A. Yes.
12 Q. Prior to 2015, you worked in regulatory affairs for
13 multinational companies outside of Rwanda --
14 A. Yes.
15 Q. -- in the period to 2007?
16 A. Yes.
17 Q. Then in 2015 you say you started as managing partner at
18 LegalWise Chambers in Rwanda?
19 A. Sure.
20 Q. If we could go back to page 1 of the CV, please.
21 You state you received your Graduate Diploma in
22 Legal Practice in 2016?
23 A. Yes.
24 Q. And that's a vocational course to be completed by those
25 who want to qualify and practise as an attorney in
[Page 61]
14:27 1 Rwanda?
2 A. To practise as an attorney in the courts of law, yes.
3 But you can you can you can be a consultant.
4 Q. And you --
5 A. You're allowed -- you're allowed to set up the law firm,
6 but you cannot represent a client in court.
7 Q. And you were admitted to the Role of Advocates in Rwanda
8 on 24th October 2017?
9 A. Yes.
10 Q. When you made your first witness statement in
11 February 2019, you'd been admitted to the roll for
12 around 18 months?
13 A. I beg your pardon?
14 Q. When you made your first witness statement in these
15 proceedings in February 2019, you'd been admitted to the
16 roll in Rwanda for around 18 months?
17 A. Yes.
18 Q. When preparing your evidence, you've done so in the form
19 of three witness statements?
20 A. Yes.
21 Q. And you subsequently made a declaration, which was made
22 after you'd prepared your three witness statements?
23 A. Yes.
24 Q. If we could just go up to page 3 of the current exhibit,
25 please, operator.
[Page 62]
14:28 1 This is the declaration you made on 18th May 2020.
2 Sorry, if we could just go on to the previous page. In
3 paragraph 2 you aver that you have complied with
4 Article 5.2 of the IBA Rules?
5 A. Yes.
6 Q. And that included you making a declaration of your
7 independence from the parties and their legal advisors?
8 A. Yes.
9 Q. When making your witness statements, you did not provide
10 any declaration as to your independence from the parties
11 and their legal advisors?
12 A. I did not, because I was requested by the Claimant to
13 provide an assessment, to provide assistance as to
14 whether his case as to whether his situation, okay,
15 will have a case in Rwanda, okay? And that's the reason
16 why I came in as a witness statement.
17 I acknowledge having signed a declaration. And
18 this, I accepted to sign it because when I received
19 a counter expert report from Richard responding to my
20 statement, he responded it as a lawyer. He raised the
21 legal issues. And other lawyer, I thought that I could
22 respond accordingly.
23 But this issue never came up again, as to whether
24 I should be an expert witness.
25 Q. When you gave your witness statements, you were not
[Page 63]
14:30 1 instructed to act as an independent expert in these
2 proceedings, were you?
3 A. No.
4 Q. We looked a moment ago at your CV and employment
5 background, and your employment record shows no evidence
6 of you being an expert in the mining industry. (Pause)
7 THE PRESIDENT: Is the witness still connected?
8 Ah, you're still there. You vanished from our
9 screen for a minute.
10 MR MCCARTHY: Mr Rwamasirabo, I think you are on mute. Did
11 you hear my question or would you like me to put it
12 again?
13 A. Can you put it again, please?
14 Q. I said: on the basis of your employment record --
15 A. Yes.
16 Q. that shows no evidence of you being an expert in the
17 mining industry.
18 A. If you look at page 2 of my CV, I was the head of
19 corporate and regulatory affairs, Africa and
20 Middle East, Vale Mozambique.
21 Vale is one of the top five mining companies,
22 specialising in metals, specialising in coal. I was in
23 charge of the regulatory affairs, particularly in charge
24 of negotiating concession agreements, mining
25 concessions, railway concessions, port concessions,
[Page 64]
14:33 1 across Africa and the Middle East.
2 So I consider that I have expertise in mining,
3 especially negotiation of licences and contracts.
4 Q. But that wasn't in Rwanda?
5 A. No.
6 Q. You do not have any direct knowledge of the facts of
7 this case, do you?
8 A. I was provided information from the Claimant, sufficient
9 documents, which I reviewed using my knowledge of the
10 mining sector. And I considered that having had
11 sufficient information on the case, sufficient facts on
12 which I based my assessment and my witness statement.
13 Q. You have no firsthand knowledge yourself?
14 A. Could you repeat that, please? Can you repeat your
15 question?
16 Q. Sorry. You have no firsthand knowledge yourself of the
17 facts?
18 A. I've relied on the documents and the facts provided by
19 the Claimant.
20 Q. Your knowledge is based on what you've been provided by
21 the Claimants and also your conversations with
22 Mr Marshall?
23 A. Of course. Of course, in working together with
24 Mr Marshall, I will get back to him, I interrupt with
25 him and ask questions. It's very normal that I will
[Page 65]
14:34 1 speak to him and we will have conversations, as
2 a client, as someone who sought my assistance.
3 Q. In your witness statement you've expressed various
4 opinions on the facts, haven't you?
5 A. Again, I said on the basis of the facts and the
6 documents I've reviewed, and on the basis of that
7 I expressed my opinion.
8 Q. If we could have a look at some of the examples in your
9 witness statement.
10 Operator, please, could we have Mr Rwamasirabo's
11 third witness statement at paragraph 9.
12 You say in paragraph 9, first sentence, that:
13 "... Rwanda [has] always acted as though the
14 Contract and Licenses remained in effect."
15 A. Yes, I did.
16 Q. If we could look at paragraph 10, please. You say that:
17 "... during the review process of NRD's
18 're-application,' Rwanda acknowledged that NRD's
19 Contract and Licenses remained valid."
20 A. Yes.
21 Q. If we could have a look at paragraph 13, please. You
22 say:
23 "Based upon [your] review of the documents and
24 evidence, NRD fulfilled its five contractual
25 obligations."
[Page 66]
14:36 1 A. Yes.
2 Q. These are all factual assertions [on] which the Tribunal
3 can form their own view, based on the evidence and
4 having seen the witnesses' testimony?
5 A. Yes, yes. And I made those statements on the basis of
6 the documents which had been submitted by the Claimant,
7 which had been provided to me, and I saw that they had
8 met the requirements of the law, they had submitted the
9 documents in time and in full.
10 Q. The preparation of these witness statements has not been
11 your only role in relation to these proceedings?
12 A. What do you mean exactly, Mr Daniel?
13 Q. You've had a bigger role in this case than simply
14 preparing your witness statements, haven't you?
15 A. No. My role was purely preparing a witness statement.
16 Q. You've assisted in the preparation of the Claimants'
17 factual evidence?
18 A. Can you please repeat your question, Mr Daniel?
19 Q. You assisted in the preparation of the Claimants'
20 factual evidence?
21 A. I assisted the Claimants in giving my assessments as to
22 what the case will hold vis-à-vis -- in Rwanda, yes.
23 Q. And you assisted in the preparation of Mr Bidega's
24 witness statement as well?
25 A. No.
[Page 67]
14:38 1 Q. Operator, if we could get up the transcript for Day 5,
2 please. If we could go to page 33.
3 Mr Cowley said on Day 5 that you assisted in the
4 preparation of Mr Bidega's witness statement.
5 MR COWLEY: I would appreciate that you let him read the
6 rest of what was said. We didn't discuss with this
7 witness anything about this testimony --
8 MR MCCARTHY: Mr Cowley, if you could let the witness
9 answer, please.
10 A. But this is not part of the witness -- my witness
11 statement. It's not part of the scope of my witness
12 statement, Mr Daniel.
13 Q. But Mr Cowley was right, was he, that you assisted in
14 the preparation of Mr Bidega's witness statement?
15 A. I said I did not participate in the preparation of that
16 statement. And again, it's out of the scope of my
17 witness statement, Mr Daniel.
18 Q. So what Mr Cowley says is wrong?
19 MR COWLEY: Again, I think this is greatly unfair, when
20 I have explained the assistance that was provided and
21 it's not being disclosed to this witness, yet he is
22 asked to opine on it, as to whether it's wrong, without
23 seeing it.
24 MR MCCARTHY: Operator, if I could get up CL-020, please.
25 This is the 2008 Mining Law. If we could go to
[Page 68]
14:40 1 Article 118, which is on page 75 of the PDF.
2 This provided for the repeal of the decree of 1976
3 and the 1971 Mining Law?
4 A. Yes.
5 Q. If we could have a look at Article 119. This provided
6 that the law came into force on the date of the
7 publication of the gazette. And if you look in the top
8 right-hand corner, you can see that the gazette was
9 published on 6th April 2009.
10 A. Yes.
11 Q. This is after the licences were granted to NRD in 2007?
12 A. Yes.
13 Q. So the relevant Mining Law in place when NRD were
14 granted the licence was the 1971 law?
15 A. Yes.
16 Q. Operator, please could we have CL-002. This is the 2014
17 Mining Law. And if we could go to Article 52, which
18 I think is on page 52.
19 These are transitional provisions under the
20 2014 Mining Law?
21 A. Mm-hm. Yes.
22 Q. The first paragraph provided that:
23 "Any mineral licence or quarry permit granted under
24 [the 2008 law] on mining and ... exploitation shall
25 remain in force until expiration of the period for which
[Page 69]
14:42 1 it was granted."
2 A. Yes.
3 Q. And the licences were granted under the 1971 law, so
4 this paragraph was not applicable in respect of NRD's
5 licences?
6 A. Can you just go down to the paragraph 2, just go down --
7 Q. I'm just focusing on paragraph 1, if that helps, for the
8 moment.
9 A. Okay. Okay.
10 Q. Paragraph 1 is not applicable because it relates to
11 licences under the 2008 law; yes?
12 A. Yes, yes.
13 Q. The second paragraph provides that:
14 "No mineral or quarry licence granted prior to this
15 law shall be extended or renewed. However, where the
16 mineral or quarry licence granted prior to this law
17 provided for a right to apply for a renewal or extension
18 of the licence, the holder ... may be granted, subject
19 to this law, a similar type of licence ..."
20 A. Yes.
21 Q. You've had a chance to review the licences which were
22 granted to NRD in preparing your witness statements?
23 A. As far as responding to expert Richard Mugisha's
24 statement.
25 Q. None of the licences granted in 2007 contained a right
[Page 70]
14:44 1 of renewal or extension?
2 A. Yes, if you read Article 52, paragraph 1.
3 Q. Sorry, my question was: none of the licences granted to
4 NRD in 2007 contained a right of renewal or extension?
5 A. It did.
6 Q. Operator, if we could have a look at C-018. This is the
7 licence granted to NRD in respect of Giciye. And if we
8 could just scroll through the document, please. Into
9 the English, please. Thank you. Could you just
10 continue into the operative provisions, please, and you
11 see Article 1 -- there's three pages. Sorry, you've
12 gone past it.
13 Now, Mr Rwamasirabo, I'm putting to you that in this
14 document --
15 A. Mm-hm.
16 Q. there was no right of renewal or extension.
17 A. Mm-hm.
18 Q. Yes?
19 A. Yes.
20 Q. And accordingly, the second paragraph of Article 52 did
21 not apply either?
22 A. Yes, to that case, yes.
23 Q. Mr Rwamasirabo, I'd like to ask you about the
24 arbitration between NRD and Mr Benzinge.
25 A. Okay, yes.
[Page 71]
14:46 1 Q. An arbitration award was made following a shareholder
2 dispute between NRD and Mr Benzinge?
3 A. Yes.
4 Q. The dispute concerned the appointment of Mr Marshall and
5 Ms Mruskovicova to the board of NRD and the legality of
6 the transfer of shares in NRD?
7 A. Yes.
8 Q. The arbitrator found the appointment of Ms Mruskovicova
9 and Mr Marshall was unlawful and they should be
10 dismissed as directors?
11 A. Yes.
12 Q. And the arbitrator declared that the transfer of the
13 shares to NRD Holding and HC Starck was illegal and null
14 and void?
15 A. That's what the arbitrator declared.
16 Q. The consequence of the arbitrator's decision is that the
17 legal shareholders of NRD reverted to being Mr Benzinge
18 and the Zarnacks?
19 A. That was the decision.
20 Q. And the board reverted to the composition it had before
21 the appointment of Ms Mruskovicova and Mr Marshall?
22 A. That would have been the implication of the ruling.
23 Q. Operator, if we could get Exhibit R-014. This is the
24 decision of the Rwandan High Court on NRD's appeal
25 against the arbitrator's decision.
[Page 72]
14:47 1 A. Yes.
2 Q. If we could go to paragraph 10, please.
3 The judgment records here that the ground of appeal
4 was that NRD sought the annulment of the arbitrator's
5 decision on the grounds that NRD had not been notified
6 of the hearing?
7 A. Yes.
8 Q. If we could go to paragraph 17, please.
9 Here the court ruled that the appeal failed because
10 NRD had in fact been notified of the arbitrator's
11 appointment?
12 A. Okay, yes.
13 Q. And NRD had not started any procedures opposing her
14 appointment, as provided for under the Rwandan
15 Arbitration Law?
16 A. I disagree with that. From the documents that
17 I reviewed, to the best of my knowledge from the
18 documents provided by the Claimant, the Claimant had
19 objected to the arbitration centre about one of the
20 arbitrators, citing conflict of interests. But it was
21 not acted upon.
22 Q. Well, I'm putting to you, Mr Rwamasirabo, that's not
23 what the judgment says. The judgment is clear that the
24 findings included that:
25 "... the company did not start any procedures
[Page 73]
14:49 1 opposing her appointment as provided for in the
2 [arbitration] law."
3 A. I've answered your question on the basis of the
4 documents that were furnished to me by the Claimant,
5 which I saw, reviewed, and having reviewed also the
6 procedures.
7 Q. There's nothing in the judgment which says what you've
8 just said?
9 A. I stand to my statement that I reviewed and I saw the
10 Claimant's notice objecting the appointment of the
11 arbitrator before the arbitration took place, in
12 accordance with the procedures.
13 Q. Yes, Mr Rwamasirabo, I'm trying to concentrate on what
14 the High Court found. And the High Court found that:
15 "... the company [had not] start[ed] any procedures
16 opposing her appointment as provided ... in the
17 [arbitration] law."
18 That's right, isn't it?
19 A. I do -- I do respect judgments, I do respect the
20 independence of the arbitrator. But I also say that
21 I have reviewed evidence, I've reviewed documents from
22 the Claimant objecting the appointment of the
23 arbitrator, and on the basis of my assessment, the
24 Claimant had followed the required procedures in terms
25 of objecting the appointment of the arbitrator.
[Page 74]
14:51 1 Q. If we could go to R-015, please. This is the
2 Supreme Court decision in respect of NRD's appeal.
3 A. Sure.
4 Q. Please could we go to paragraph 14.
5 Paragraph 14 records that NRD were appealing on the
6 basis that the procedure and the articles of association
7 of the company had not been complied with, and only one
8 arbitrator was appointed instead of three?
9 A. Yes.
10 Q. And those grounds of appeal were rejected by the
11 Supreme Court?
12 A. Yes.
13 Q. Now, in your third witness statement -- I can take you
14 to the paragraph if you want, but as you've already
15 mentioned it -- you say that the arbitrator failed to
16 disclose her relationship with Mr Benzinge?
17 A. True.
18 Q. Now, if we could have a look at RM-002, please.
19 Article 14.2, please, page 20. And the second
20 paragraph, where the cursor is, "An arbitrator may be
21 challenged", please.
22 Article 14.2 provides that:
23 "An arbitrator may [only] be challenged ... if
24 circumstances that exist give rise to justifiable
25 reasons as to his or her impartiality or independence,
[Page 75]
14:53 1 or if he or she does not possess qualifications agreed
2 to by the parties ..."
3 A. Yes.
4 Q. Article 15, please, operator.
5 This sets out the challenge procedure for the
6 disqualification of arbitrators; yes?
7 A. Yes.
8 Q. And the second paragraph provides that any challenge
9 must be made within seven days:
10 "... after becoming aware of the constitution of
11 the ... tribunal or ... of any circumstance referred to
12 in Article 14, paragraph 2 ..."
13 A. Yes.
14 Q. But NRD never made such a challenge at the time, and
15 it's now too late for it to do so?
16 A. To the best of my knowledge, they made an objection in
17 accordance with the required procedures.
18 Q. The only challenges made are those recorded in the
19 High Court and Supreme Court decisions?
20 A. Did you require an answer, please?
21 Q. I put to you that the challenges are those which were
22 recorded in the High Court and Supreme Court decisions
23 which we've looked at.
24 A. No, they -- the Claimant made the challenges also to the
25 arbitration before the arbitration took place.
[Page 76]
14:55 1 Q. Please could we have Mr Rwamasirabo's first witness
2 statement at paragraph 17. You say that:
3 "The law in Rwanda is such that the [RDB] determines
4 who is and who is not a shareholder of a company. The
5 Registrar's records on this matter are determinative of
6 shareholder ownership."
7 A. Yes.
8 Q. You cite no Rwandan law in support of this statement?
9 A. I cited them somewhere in my statement.
10 Q. In your first statement -- and we can look at
11 paragraph 17 without being zoomed in -- but you cite no
12 provisions there of Rwandan law?
13 A. I did not cite. But in my other on my other witness
14 statements, it is cited.
15 Q. There is nothing in the first statement; yes?
16 A. Yes, it is not there.
17 Q. If we could have a look at Mr Rwamasirabo's third
18 witness statement, please, at paragraphs 33 and 34,
19 please.
20 You cite here Article 22 of the Law Governing
21 Companies?
22 A. Yes.
23 Q. And at paragraph 34 you say that:
24 "... a certificate of incorporation from the RDB is
25 conclusive evidence that the requirements of the law
[Page 77]
14:57 1 have been complied with ..."
2 A. Yes.
3 Q. And:
4 "... a certificate of incorporation ... is
5 conclusive evidence of and determinative that ownership
6 of the company as set forth in the certificate has been
7 lawfully established."
8 A. Yes.
9 Q. You don't cite any other provisions of Rwandan law in
10 this statement in relation to this point?
11 A. No, I did not cite, because Article 22 -- Article 22 of
12 the Law Governing Companies gives -- mentions the
13 certificate of incorporation as a conclusive evidence,
14 which is evidence that the applicant company has met --
15 has satisfied the requirements of the law, okay? So
16 when you are issued this title, it is a right that is
17 inviolable, unless it has been issued contrary to the
18 requirements of the law.
19 So this article gives that weight that is equivalent
20 to the right to private property, property right,
21 basically. And that is why the legislator emphasised
22 that it is a conclusive evidence.
23 Q. Please may we have Mr Mugisha's second expert report,
24 paragraphs 47-48. Sorry, Mr Mugisha's second expert
25 report, please.
[Page 78]
15:00 1 Mr Mugisha responds here in relation to Article 22
2 and he explains that:
3 ""A certificate of incorporation is ... conclusive
4 evidence that all the requirements of [the company] law
5 in respect of incorporation have been complied
6 with ...'"
7 Yes?
8 A. Yes. I disagree with his statement.
9 Q. ""... and that the company has been duly incorporated
10 under [the companies] law on the date of incorporation
11 stated in the certificate.'"
12 A. Yes.
13 Q. You accept those statements are an accurate explanation
14 of Article 22?
15 A. No. As explained by Mugisha, I think I've made -- I've
16 explained to you that Article 22 of the Company Law --
17 I think you see the article there -- clearly states, in
18 plain language, that as long as the application -- and
19 the Office of the Registrar General, empowered by the
20 law, examines the documents submitted. And once they
21 have met the requirements of the law, complied with the
22 requirements, then the certificate of incorporation is
23 issued. And once it's issued, it becomes a conclusive
24 evidence.
25 Q. If we could have a look at paragraph 49. Mr Mugisha
[Page 79]
15:01 1 says:
2 "... a certificate of incorporation is conclusive
3 only as to the fact of incorporation and the date of
4 incorporation."
5 A. Yes.
6 Q. And that's right, isn't it, on the plain words of
7 Article 22?
8 A. No, it is not. I disagree with Mugisha's statement.
9 Q. If we could have a look at paragraph 50. Mr Mugisha
10 says, in the first sentence:
11 "Nowhere in the Companies Law is it provided that
12 any records held by the Registrar are conclusive
13 evidence as to ownership of the company ..."
14 And you have not identified any such provisions,
15 have you?
16 A. That is very wrong. That is very wrong. And he,
17 Mugisha, misinterprets Article 22 of the Company Law.
18 And I think it's very clear that the Company Law says
19 that the recourse that Mugisha is talking here is the
20 paper -- the documents that are required during
21 application.
22 So you have a series of documents that are required
23 by the Registrar General, and once you submit these
24 documents -- which Richard calls "records" once they
25 have met the requirements of the law, then you are
[Page 80]
15:03 1 issued a certificate of incorporation, which is
2 equivalent to a property right to a company or the
3 individual.
4 And they here -- I think Mugisha disregarded the
5 spirit of the law, the intention of the legislator here.
6 And there is a reason why the legislator says this
7 should be a conclusive evidence: because it's a right to
8 a property, and that right to property is such
9 certificate of incorporation that gives you a right to
10 the shares that you hold. And that's why the law
11 says -- concludes as saying in Article 22 it is
12 determinative of ownership in the company.
13 Q. Mr Rwamasirabo, we don't accept that account, but
14 I propose to move on. I'd like to ask you about what
15 you say about the handover of the mining concessions.
16 If we could have Mr Rwamasirabo's second witness
17 statement, paragraph 5, please. Paragraphs 5-10,
18 please.
19 In paragraphs 5-10 you set out what you say
20 an informal handover process involves under Rwandan law?
21 A. Yes, I mentioned the regulations and standard practice.
22 Q. You refer to Articles 26 and 27 of the 2014 law and
23 Article 6 of the 2015 Law on Investment Protection?
24 A. Yes.
25 Q. Operator, if we could get up CL-002, the 2014 law.
[Page 81]
15:06 1 CL-002, please, Articles 26 and 27. Page 41, I think.
2 Sorry, I think that's the index.
3 Article 26 requires concession holders on
4 cancellation of licences to provide:
5 "... a full register of assets which the licence
6 holder intends to remove or leave in the mineral ...
7 area ..."
8 A. Yes.
9 Q. It also requires the concession holder to notify the
10 minister of any potentially hazardous substances or
11 excavations?
12 A. Yes.
13 Q. Article 27, please. Article 27 requires the concession
14 holder to:
15 "... deliver to the minister all records which the
16 holder is obliged under [the] law to maintain ..."
17 A. Yes.
18 Q. Articles 26 and 27 don't impose any obligations on the
19 state?
20 A. Correct.
21 Q. Please could we have CL-045, [internal] page 13,
22 Article 6.
23 This provision protects private property rights
24 under Rwandan law and prohibits expropriation of
25 an investor's property?
[Page 82]
15:08 1 A. Yes.
2 Q. It does not contain any provisions relating to the
3 handover of a mining concession?
4 A. No. But this was made with regard to protection of the
5 investor's assets.
6 Q. If we could have Mr Rwamasirabo's second witness
7 statement back, please. Paragraphs 5-10 again, please.
8 The provisions of Rwandan law which you cite there
9 don't support the propositions which you make in
10 relation to a formal handover process, do they?
11 A. Again, as a standard practice, a formal handover had to
12 take place. And this had to be again facilitated by the
13 ministry because, from the facts provided to me by the
14 Claimant and which I saw, they had no access to the
15 offices and some of their files had been confiscated.
16 So from the facts and from the information provided by
17 the Claimant, there's no way that a handover could have
18 taken place.
19 Q. Mr Rwamasirabo, you've cited no provisions of Rwandan
20 law which support the propositions you make here, and
21 that's because the handover process which you set out in
22 your second witness statement doesn't exist under
23 Rwandan law?
24 A. But there is -- it doesn't exist, but there's standard
25 practice. And it's quite normal (sic) that such a big
[Page 83]
15:10 1 company in the large-scale mining, been operating mining
2 for four years, that you will just cancel a mining
3 licence without a proper handover. This is a standard
4 practice, as my experience in any mining -- in the
5 mining sector and where I've worked before. Such
6 handover process was a standard practice.
7 MR MCCARTHY: Thank you, Mr Rwamasirabo. I have no further
8 questions.
9 (3.11 pm)
10 Re-direct examination by MR COWLEY
11 Q. May I ask that RM-007 be brought up. Is that the
12 Company Law? Can I ask you to turn to that.
13 A. Yes.
14 Q. Can I ask you to turn to page 66, and it goes on to
15 page 67. So if you leave it -- Article 22 continues
16 from page 66 to page 67.
17 Mr Rwamasirabo, you've mentioned Article 22. Please
18 explain what impact or effect this article has on the
19 testimony of Mr Mugisha that was read to you and put to
20 you by Attorney McCarthy, as you understand it.
21 A. My understanding of Article 22 is that, first, the power
22 to issue the certificate of incorporation is vested in
23 the Office of the Registrar General, and the law,
24 including other requirements as set by the Office of the
25 Registrar General, highlights their requirements to be
[Page 84]
15:13 1 fulfilled by all applicants.
2 Now, the Office of the Registrar General examines
3 the documents. And once these documents have satisfied
4 the following, which are mentioned in the -- in
5 Article -- in paragraph 2 and points 1, 2 and 3, once
6 the application for registration that is complied with
7 the law, then the Registrar General does the following,
8 which are mentioned in paragraph 2: to register the
9 application; register the matters relating to the
10 company in the register of companies and business; and
11 issue a certificate of incorporation.
12 Within these three, already even the owners, the
13 shareholders, have been determined, on the basis of the
14 information. So the office examines, including the
15 minutes appointing the directors, including the minutes
16 determining the share capital, including the minutes
17 appointing who is the chairman as well. And once they
18 have satisfied their legal requirement, a certificate of
19 incorporation is then issued.
20 And here we have to look at the intention of the
21 legislator, what was the spirit of the law. And here
22 the legislator wanted to make this like any other right
23 to property, your right to the shares you hold in that
24 company. And the reason why the legislator made it
25 clear to say it is conclusive evidence that this
[Page 85]
15:14 1 application has complied with the law, and this Mugisha
2 disregarded it and he has misinterpreted Article 22.
3 And being conclusive evidence, it's also
4 determinative of the ownership, because that ownership
5 is included in the certificate of incorporation.
6 Q. If I could ask that document C-144 now be brought up.
7 Have you seen this document before, Mr Rwamasirabo?
8 A. Yes, I saw.
9 Q. What do you understand this document to be?
10 A. This is an objection to the appointment of the
11 arbitrator Mrs Nelly Umugwaneza. And the letter was
12 requesting an investigation into the allegations made by
13 the Claimant, which were the conflict of interest of the
14 arbitrator in the case.
15 MR COWLEY: No further questions.
16 THE PRESIDENT: Thank you very much. You're free to go now.
17 (The witness withdrew)
18 (3.16 pm)
19 Questions from THE TRIBUNAL
20 MS DOHMANN: Yes, Mr Rwamasirabo, I have a question, which
21 is this. I'm looking at your first witness statement
22 and your second witness statement, and in both cases
23 I see --
24 MR WATKINS: Pardon me. The witness bumped off; I'm trying
25 to get him back on real quick. I apologise. I just
[Page 86]
15:17 1 wanted to let you know he is coming back in right now.
2 MS DOHMANN: Okay.
3 MR WATKINS: We're attempting to log in. The internet
4 connection is very unstable there. (Pause)
5 Mr President, we may need to reach out and get in
6 contact. Our system is offline.
7 THE PRESIDENT: Okay, look, it's not of ... we don't need to
8 bring him back. Yes. Ms Dohmann can ask Mr Cowley to
9 help with this.
10 MS DOHMANN: Mr Cowley, I was going to ask the witness the
11 question, of course, but I'm sure you can help us as
12 well.
13 I'm looking at the first and the second witness
14 statements of Mr Rwamasirabo, and I note that the
15 signature page is entirely different from the rest of
16 the document. Each of the reports had sufficient space
17 on the last page to have the signature and its date
18 appear there, and the last sentence. But in fact it's
19 a signature page separately appended to the preceding
20 statement in a different font. And I therefore ask
21 whether the statement was in fact prepared for this
22 witness by counsel to the Claimants.
23 MR COWLEY: First, as to the appearance of it being in
24 a different font, I think it's in a different size.
25 I think that's as a result of the page that was sent
[Page 87]
15:19 1 back with the signature being a PDF, or perhaps
2 a picture that was static, so when we printed it out, it
3 fills up much less than a full page itself. So it's
4 printed on a page. As opposed to a different font. It
5 prints in the right font, but the document itself is
6 smaller than this page. That's just for the appearance
7 of it.
8 As I understand, the -- I'm looking at the first
9 one, I don't have the second one open, and I'll take
10 a look if there's a difference. But what I understand
11 was: in going back and forth with drafts, a final draft
12 based on revisions by Mr Rwamasirabo, who provided the
13 testimony that we looked at, we made comments on, we
14 asked him to send it back, we separated the last page,
15 just in case he could just send that one page back, as
16 opposed to the whole thing, once he confirmed that the
17 document that we were holding in our hands included
18 every comment he made, anything he added or wanted
19 changed.
20 We drafted it for printing here in that sense, but
21 this was what he told us. We did not purport to add on
22 our own any substantive statement in here, if that's the
23 basis of the question. We were typing up here what he
24 told us in communications.
25 MS DOHMANN: So when we read the sentence that, "I have
[Page 88]
15:21 1 prepared this witness statement with the assistance of
2 counsel for the Claimants", is that to tell us that it
3 was simply production assistance?
4 MR COWLEY: Yes. We talked to him, we gave him -- before
5 this was finalised, we gave him anything he asked for.
6 But there was some basic information, especially with
7 the second, we had to ask him -- because he would have
8 no other access to it -- the expert testimony of
9 Mr Mugisha. So we had to reach out to him and tell him
10 what we wanted him to look at, ask him questions about
11 what he could say, would say, and that's the assistance
12 he's talking about.
13 I cannot recall if he had a specific request for
14 a document in the file that he didn't have from
15 Mr Marshall, from his time he met with Mr Marshall,
16 spoke with Mr Marshall, had his own file on this matter,
17 before we ever talked to him about the first witness
18 statement. I do not have a specific memory as to
19 whether he asked us for something more from our case for
20 the first statement. For the second, we had to give him
21 almost everything that he was commenting on because he
22 would have no other access to that.
23 MS DOHMANN: Thank you, Mr Cowley.
24 THE PRESIDENT: Yes. Shall we proceed, please, with the
25 final witness?
[Page 89]
15:22 1 MR HILL: Yes, we now have Mr Mugisha.
2 MR WATKINS: Okay, we are bringing the witness in. (Pause)
3 (3.24 pm)
4 MR RICHARD MUGISHA (called)
5 THE PRESIDENT: Could you please look at the screen that's
6 in front of you.
7 MR MUGISHA: Yes.
8 THE PRESIDENT: You see an expert declaration there?
9 MR MUGISHA: Yes, I do.
10 THE PRESIDENT: If you are happy with it, would you please
11 read it out.
12 MR MUGISHA: I solemnly declare upon my honour and
13 conscience that my statement will be in accordance with
14 my sincere belief.
15 THE PRESIDENT: Thank you.
16 MR HILL: Mr Mugisha, I understand you're going to give
17 a presentation to the Tribunal in a moment. Is that
18 right?
19 MR MUGISHA: Yes, it is.
20 MR HILL: Good. So I will let you give your presentation,
21 and then after that Mr Cowley, who represents the
22 Claimants, will ask you some questions.
23 MR MUGISHA: Okay, thank you.
24 (3.25 pm)
25 Presentation by MR MUGISHA
[Page 90]
15:25 1 MR MUGISHA: Can I go to the next slide (2), please.
2 I am a Rwandan lawyer with experience spanning over
3 20 years, having studied as a government official in
4 1995. I've been admitted to the Bar in 2001, and
5 setting up Trust Law Chambers, the law firm where
6 I'm a partner, in 2004.
7 I have been involved in a number of matters since
8 becoming a private legal practitioner, including
9 representing high-profile investors in the country,
10 including in the mining sector. I've also been
11 privileged to have chaired the Business Law Reform
12 Commission between the years 2005 and 2007.
13 Next slide (3), please.
14 This is going to be an overview of the key aspects
15 of my expert report, and I'll begin with my
16 interpretation of the contract for the acquisition of
17 mining concession and mining licence.
18 I've reviewed the contract (C-017), and it imposes
19 obligations on NRD in Article 2 as: (1) the making of
20 geographical demarcations of perimeters; (2) providing
21 an action plan, an environmental action plan and
22 an investment plan; (3) to proceed immediately to
23 industrial exploitation; (4) provide progress reports on
24 research after two years; and finally (5) to provide
25 progress reports on reserves and feasibility after
[Page 91]
15:27 1 four years.
2 In the same contract under Article 4, there is
3 a provision for the evaluation of the feasibility study
4 on the basis of which, if evaluated positively, would
5 trigger the granting of a long-term concession. The
6 granting of the concession is dependent on the
7 performance of the obligations stipulated in Article 2,
8 and therefore as suspensive conditions in accordance
9 with Articles 77 and 78 of the Contract Law applicable
10 in Rwanda.
11 I have noted the assertion that in order for these
12 conditions to be deemed suspensive, there had to be the
13 language "suspensive condition" stipulated in the
14 agreements. I disagree on the basis that the language
15 is plain, clear and straightforward that these were
16 suspensive conditions.
17 Next slide (4), please. (Pause)
18 I understand that the NRD feasibility study was
19 found unsatisfactory, and therefore there couldn't have
20 been an obligation to grant a long-term concession.
21 I have also noted that there has been an assertion
22 that each time the licences were extended, that made
23 an automatic renewal of the contract which provided the
24 framework for the licences. This is inaccurate because
25 the mining rights are derived from the licences, and the
[Page 92]
15:29 1 contract is independent of the licence; it simply
2 provides a framework on the basis of which licences
3 would be issued.
4 There's also been an assertion that the failure to
5 advise NRD of the criteria for the assessment of the
6 feasibility study makes it a failure on the
7 administrative discretion of the minister. I disagree,
8 because the contract does not have any criteria for the
9 assessment of the feasibility study, which therefore
10 means that the feasibility study was within the absolute
11 discretion of the minister.
12 I have also noted that there was an assertion that
13 the failure to provide reasons why the feasibility study
14 was not deemed satisfactory does invalidate the
15 decision. Again, I do not agree with this assertion
16 because there is no legal basis for it.
17 Through my review of the documents, I noted that
18 there was a concern about the failure to adhere to
19 Rwanda's due process. Now, just to make it clear here,
20 and as is the case with most civil law jurisdictions,
21 there is no such thing as a law on due process. What
22 does happen is that sector-specific legislations will
23 provide for a framework under which any administrative
24 actions are taken. Where sector-specific legislation
25 doesn't provide for that, there is a procedure in the
[Page 93]
15:31 1 Code of Civil, Commercial, Administrative and Labour Law
2 under which dissatisfied members of the public can seek
3 recourse from the court of law.
4 So again, just to emphasise, there's no such thing
5 as a code on due process.
6 Next slide (5).
7 I will now turn on the framework for mining in the
8 country as it applies to the matter before the Tribunal.
9 There has been an assertion that the NRD concessions
10 were grandfathered by Article 52 of the 2014 law, which
11 provided that all concessions granted under the 2008
12 legislation would be grandfathered.
13 My opinion is that this cannot apply to the NRD
14 licences, which were granted in 2007 pursuant to the
15 1971 legislation. In addition, they did not provide for
16 an automatic right of renewal or extension.
17 I have noted that there were a number of extensions
18 granted to NRD up to October 2012. My opinion is that
19 the extensions, authorisations, were not a contractual
20 obligation but only a courtesy extended to allow for
21 better preparation for negotiations of the new licences.
22 Again, such a practice is not entirely unusual, and it's
23 done as a good faith gesture to facilitate applicants
24 who would require that kind of time.
25 These were indeed, as I said, courtesy gestures
[Page 94]
15:33 1 which could be revoked at any time if the government
2 deemed it appropriate.
3 There has also been an assertion that the
4 requirement for NRD to re-apply for licences was
5 a breach of the law. I disagree, because there's no
6 contractual basis for making such an assertion. In
7 fact, re-application was rather a requirement of the
8 law.
9 Next slide (6).
10 With respect to the legal effects of the arbitral
11 award and the court decisions thereof, I looked at the
12 award as well as the court decisions, and I noted that
13 Mr Benzinge challenged -- brought an arbitral claim
14 which challenged: the transfer of shares to NRD and
15 HC Starck; the appointment of Mr Marshall as managing
16 director; the appointment of Mr Marshall and
17 Ms Mruskovicova to the board of NRD.
18 The arbitrator found these three decisions unlawful
19 and rendered them void ab initio.
20 Next slide (7). (Pause)
21 NRD challenged the award in the High Court and
22 sought its annulment, alleging that the procedure in the
23 articles of NRD was not followed and NRD was not
24 notified of the arbitration proceedings. The High Court
25 found that the arbitration proceedings had followed all
[Page 95]
15:36 1 the requirements of the law and upheld the award.
2 NRD appealed to the Supreme Court on the same
3 grounds, and the Supreme Court upheld the High Court
4 decision and confirmed the arbitral award.
5 It is important here to note that the courts in
6 Rwanda have taken a very strict approach when it comes
7 to arbitration proceedings, and taken the view that the
8 involvement of the court would only be to the extent of
9 supporting the implementation of the arbitration
10 agreement. So there is a very narrow window for
11 challenging arbitration decisions, and it is provided in
12 Article 47 of the Law on Arbitration and Conciliation of
13 2008. It doesn't therefore surprise me that these
14 decisions took the approach they did.
15 Having said that, in accordance with the
16 Constitution of the Republic of Rwanda in Article 151,
17 which provides that court rulings are binding on all
18 parties concerned, be they public authorities or
19 individuals, and they cannot be challenged except
20 through procedures determined by law, it follows that
21 the shares in NRD reverted to both Ben Benzinge and the
22 Zarnacks.
23 Next and final slide (8), I guess.
24 Here I note that there's been an assertion that
25 there is a handover process provided for by the law
[Page 96]
15:38 1 which was not followed when the licences were -- when
2 the handover of the concessions should have been done.
3 Here I have to say that I'm not aware of any
4 legislation, regulation or guidance setting out formal
5 handover processes, and throughout my time as
6 a practitioner, I've never had to attend to any of
7 these.
8 What I do know is that the law does impose
9 obligations on existing concession holders, and mainly
10 this is to do with making good the concession areas, so
11 that whatever environmental damage could have been
12 occasioned on the locations can be made good. There are
13 no corresponding obligations on the state that I know of
14 in any legislation.
15 Thank you very much for your attention.
16 THE PRESIDENT: I think it would be a good idea if we take
17 the half-hour break now.
18 Could I just say this to counsel. The role of
19 an expert evidence on foreign law is to inform the
20 Tribunal of the law; it's not to inform the Tribunal of
21 the answer applying the law. Almost inevitably, it's
22 very, very difficult for expert witnesses to distinguish
23 between the two. But when cross-examining, Mr Cowley,
24 bear in mind that the decision of the effect of Rwandan
25 law is for us. The question of what Rwandan law is
[Page 97]
15:40 1 is one of expert evidence that we have to resolve on the
2 evidence.
3 Do you follow the distinction?
4 MR COWLEY: I will do my best to take that to heart.
5 THE PRESIDENT: It is hard. It is hard.
6 MR COWLEY: I do not have the expectation or the intention
7 of asking the ultimate question that you are being posed
8 with and challenging Mr Mugisha with it. That's not my
9 intent. I have some specific questions about his
10 reports. And I will do my best during the break to make
11 sure I'm complying with your expectations.
12 THE PRESIDENT: Very well. We will adjourn for half
13 an hour.
14 (3.41 pm)
15 (Adjourned until 4.10 pm)
16 (4.23 pm)
17 THE PRESIDENT: Mr Cowley, you have the witness.
18 MR COWLEY: Thank you, your Honour.
19 Cross-examination by MR COWLEY
20 Q. Mr Mugisha, good afternoon. It may be evening your
21 time.
22 A. Good morning.
23 Q. Can I ask that the second expert report of Mr Mugisha be
24 brought up, and we'll focus on paragraph 17.
25 Is this the May 27th 2020 report? Yes, it is.
[Page 98]
16:24 1 Thank you.
2 Mr Mugisha, paragraph 17 talks about what is -- and
3 I'll ask if it can be brought up and put side by side --
4 in the contract that's C-017 as a document number,
5 Article 4; correct? And we'll bring it up to show you.
6 Your paragraph 17 is talking in part about your
7 opinion regarding that article; correct?
8 A. It's talking in general terms about how decisions of
9 government are taken.
10 Q. Because your expert report goes on to apply the law as
11 you've described it to Article 4; correct?
12 A. Can you say that again?
13 Q. Your report goes on to apply what you're describing as
14 Rwandan law in paragraph 17 to Article 4; correct?
15 A. That's correct.
16 Q. You'll agree there's no other provision in the contract
17 that we need to look at that you believe constitutes
18 an agreement in the contract as to how a positive
19 evaluation of a submitted feasibility study is to be
20 interpreted; correct?
21 A. There's none that I've seen.
22 Q. Now if I could ask that two documents be brought up:
23 R-111 and C-032. For R-111, if I could ask you to
24 highlight the second paragraph, please. And for C-032,
25 the first paragraph, third sentence.
[Page 99]
16:26 1 I'm going to tell you that these both were
2 attributed by Dr Mike Biryabarema -- and I'm sure
3 I mispronounce that; I apologise to him in his
4 absence -- but who we've been referring to as "Dr Mike"
5 testified that both of these documents were his, he
6 authored.
7 If I could ask that now the Contract Law,
8 Article 67 -- the Contract Law document is RM-001. Can
9 Article 67 be brought up, please. It's on page 45.
10 Mr Mugisha, I'll go back through it slower if
11 necessary, because you can only put up so much at one
12 time, and I don't want to make this an exercise in
13 short-term memory.
14 But if the Tribunal were to find that Dr Mike is one
15 of or the representative of the Respondent responsible
16 for interpreting Article 4 of the contract when making
17 the assessment that's referred to there, and if the
18 Tribunal were to find that the plaintiffs agree with
19 Dr Mike's interpretation of that provision, you'll agree
20 that Article 67's first paragraph then applies; correct?
21 A. Yes.
22 Q. And even if those two preliminary findings are not made
23 by the Tribunal, will you agree, sir, that Article 67 --
24 if we can scroll up. Article 66, I'm sorry. I didn't
25 mean to repeat 67 -- Article 66 of the Contract Law
[Page 100]
16:29 1 applies in any event to any interpretation of a clause
2 or provision in a contract; correct?
3 A. Well, Article 66 is very clear, in the sense that it
4 refers to the intent of the contract at the time of its
5 signature.
6 Q. I'm just ... I'll ask the question again. I'm not sure
7 if you're done answering it; I don't mean to speak over
8 you if you are still trying to answer.
9 But if you've completed your answer, my question
10 again is: regardless of whether or not the Tribunal
11 makes the factual determinations that I premised my last
12 question on regarding Article 67, if they do not make
13 those determinations, Article 66 does apply to any
14 interpretation of the contract that the Tribunal is to
15 make concerning Article 4 of the contract; correct?
16 A. Can you say that again?
17 Q. If Article 67 is determined by the Tribunal not to
18 control, then Article 66 of the Contract Law does apply
19 to whatever interpretation the Tribunal makes of
20 Article 4 of the parties' contract; correct?
21 A. I still don't understand your question. Can you go over
22 that again?
23 Q. Yes. In the event the Tribunal does not determine facts
24 such that Article 67 is determinative we talked about
25 Article 67: my premise for this question is just if the
[Page 101]
16:31 1 Tribunal determines that doesn't apply -- then
2 Article [66] does apply to whatever interpretation the
3 Tribunal is to give to the contract's Article 4;
4 correct?
5 A. Read together with Article 2.
6 Q. And Article 69 of the Contract Law; correct?
7 A. Mm-hm.
8 Q. That's on page 47, if it can be brought up. I see that
9 it wasn't brought up; I think that's what I was being
10 asked to look at. So in RM-001, page 47. (Pause)
11 Are you done reading, sir?
12 A. Yes.
13 Q. So in the event that the Tribunal does not determine
14 that Article 67 of the Contract Law is determinative,
15 then in addition to Article 2, Article 66, also
16 Article 69 of the Contract Law applies to any
17 interpretation that should be made of the parties'
18 contract at Article 4; correct?
19 A. That's correct. Only that where the clauses are
20 explicit, then that is what takes precedence.
21 Q. If I could ask that the first report be brought up, and
22 if we could go to -- I believe it's the last substantive
23 paragraph. Yes, page 15, paragraph 58. And if we could
24 put that testimony to the left, raise it up again, so he
25 can read his own language again. (Pause)
[Page 102]
16:35 1 If we could leave that paragraph 58 highlighted up
2 and also go back to paragraph 18 in the same report and
3 highlight that paragraph, and show them together.
4 (Pause)
5 The principle you identify in paragraph 58 that the
6 public mines revert to the Government of Rwanda when the
7 licence expires, is it your opinion that that principle
8 applies during the gaps between the written extensions
9 of the licence agreement, of NRD's licence agreement,
10 that expired at the beginning of 2011?
11 A. Can you say that again?
12 Q. Yes. You see in paragraph 18 of your witness statement
13 you talk about short-term licences?
14 A. Yes.
15 Q. And the other principles that you were talking about,
16 you say what effect you believe those short-term
17 licences have -- which is none on your prior
18 principles. But I want to focus you on the dates that
19 the extensions cover.
20 Referencing those gaps that show in the written
21 extensions, is it your opinion that you're giving to the
22 Tribunal that the principle announced in [paragraph] 58
23 about the reversion to the Government of Rwanda, does
24 that apply to the gap period in between the first and
25 second extensions?
[Page 103]
16:38 1 Α. Obviously, as long as there is no express extension, the
2 principle applies.
3 Q. So your opinion to the Tribunal is: the principle in
4 paragraph 58 applied when the first written extension
5 expired without another written extension being
6 provided?
7 A. That's correct.
8 Q. Then you note in paragraph 18 that a second extension
9 was provided in writing, with a gap period not covered.
10 But what is your opinion that you're expressing to
11 the Tribunal about the principle in paragraph 58? Does
12 it now no longer apply?
13 A. I don't understand where you're getting with this. I've
14 said that a duration of the extension is what it is, and
15 the principle does apply.
16 Q. So six months after August 2nd 2011, the mining
17 concessions reverted to Rwanda as government property;
18 that principle in paragraph 58 you're saying applies at
19 that date, correct?
20 A. Yes.
21 Q. So what principle do you identify in your report permits
22 Rwanda to grant the second extension after the mining
23 concessions had reverted to it? Is there anything in
24 your report that identifies the authority of the
25 government to grant a licence to only one party for
[Page 104]
16:40 1 a mining concession, without making it publicly
2 available for competitive bid?
3 A. Of course. That's the discretion of government.
4 Q. So it's your testimony that under Rwandan law, the
5 Government of Rwanda has discretion to license or
6 otherwise transfer government property to one party,
7 without making it publicly available for competitive
8 bid?
9 A. There are two ways in which this can happen. One would
10 be by way of a competitive bid; the other is where
11 unsolicited proposals are presented to government. In
12 either --
13 Q. Well --
14 A. the government does take a decision.
15 Q. You are aware that there are public tender principles
16 under Rwandan law limiting the government and its
17 agencies' ability to transfer government property;
18 correct?
19 A. I'm not aware of those laws.
20 Q. So is it your testimony that no such law applies to the
21 Government of Rwanda in this case? They're not required
22 to put out any public tender for the transfer of mining
23 licences, or mining concessions? That's your testimony?
24 A. That's correct.
25 Q. Forgetting the gap period now in between the three
[Page 105]
16:42 1 written extensions that you reference in paragraph 18,
2 it's your testimony to the Tribunal that the principle
3 identified in paragraph 58 applied again at the end of
4 the one-month extension of a licence to NRD that began
5 on September 13th 2012?
6 A. That's correct.
7 Q. Is it your testimony to the Tribunal that that same
8 principle equally applies to all other applicants for
9 concessions who had requests for licences -- or
10 long-term licences, I should say to concessions still
11 being discussed when a last written extension of their
12 original licence expired?
13 A. Well, I'm not aware of such cases, so ...
14 Q. I could ask a simpler question, and I should have.
15 The principle you just identified as applying as of
16 October 13th 2012 to the NRD licences equally applies to
17 all other long-term concession applicants; correct?
18 A. That's right.
19 Q. If there are any.
20 A. Yes.
21 Q. If I could ask now that these documents now be closed
22 and I could ask that the arbitration award, R-013, be
23 brought up.
24 You gave testimony in your witness statement about
25 the Ben Benzinge dispute with NRD; correct?
[Page 106]
16:44 1 A. That's right.
2 Q. Including testimony about the effect of the arbitration
3 award between Ben Benzinge and NRD; correct?
4 A. Yes, that's right.
5 Q. If I could ask that page 4 be brought up.
6 THE PRESIDENT: What number is the award?
7 MR COWLEY: R-013, Mr President.
8 THE PRESIDENT: Thank you.
9 MR COWLEY: Now, in your testimony you talk about the
10 reversion. Based on the arbitrator's award, you say
11 there's a principle of reversion that applies, and then
12 you give your conclusion as to what the effect of such
13 principle is on the various shareholder actions that
14 were subject to the award.
15 I'd like to draw your attention to the first
16 paragraph, where it says in the -- I believe it should
17 be the second sentence. It's after the word "entitled".
18 I don't see a period there, but I believe that's the
19 first sentence, and then the "Full registration" starts
20 the second sentence, at least as best I can tell. Could
21 you highlight the whole sentence.
22 You see in the arbitration award the arbitrator set
23 out [that] what she found in the RDB's corporate files
24 as submitted to her included a "Full registration
25 Information for Domestic Company" document issued by
[Page 107]
16:46 1 that institution, the RDB:
2 "... states that the last amendment was made on
3 02 August 2012 and it shows that Mr ... Marshal was the
4 company representative ..."
5 A. Yes, I read it.
6 Q. "... whereas Mr ... BENZINGE was the Managing Director."
7 Do you see that?
8 A. Mm-hm.
9 Q. Is that a "yes"?
10 A. Yes.
11 Q. And you talk about this principle of reversion and you
12 refer to that sentence; do you see that? Do you agree
13 with that? Excuse me.
14 A. I don't refer to that sentence; I refer to the entire
15 award.
16 Q. Right. But you refer to the reference to Mr Benzinge as
17 managing director when you refer to the principle of
18 reversion; is that correct?
19 A. It talked about the shareholders, the shares reverting;
20 not who is the official.
21 Q. I didn't catch the last word. Not who is what?
22 A. I talked about the reversion of shares, going back to
23 Mr Benzinge and the Zarnacks.
24 Q. May I ask that the first report be brought up and
25 paragraph 46 highlighted.
[Page 108]
16:48 1 In this paragraph you talk about the application of
2 the reversion principle as a result of the arbitration
3 decision; correct?
4 A. That's right.
5 Q. Okay. And my previous request was in terms of bringing
6 up the arbitration award itself, but we can put it side
7 by side, R-013, and page 4, the first paragraph.
8 Based on your explanation of the reversion principle
9 that you say applies to the arbitrator's decision
10 nullifying certain actions, it applies equally to the
11 record in the RDB in both the first and second
12 sentences, so both the reference to the record including
13 Mr Benzinge as managing director and Mr Marshall as
14 representative, and the prior sentence talking about, on
15 August 6th 2012, the action of suspending Mr Benzinge as
16 managing director. The reversion principle you
17 announced applies to both documents in the RDB's files;
18 correct?
19 A. I am just reading the conclusions of the award and just
20 inferring what they are about. I have not gone into the
21 analysis of the award, as you would like me to.
22 Q. I'm not asking you to do an analysis. I'm asking you to
23 explain the reversion principle. You refer to certain
24 prior findings in the or prior statements about the
25 parties' positions.
[Page 109]
16:50 1 A. I'm only saying that following the award, the effect was
2 thus. That's it.
3 Q. And the reason for the opinion you give about the
4 effects -- I'm simply asking you to clarify -- that same
5 reasoning applies to the other documents in the RDB's
6 files regarding the parties' status. Not just one, but
7 the full file as to the parties' respective status get
8 the benefit of this reversion principle; correct?
9 A. Look, I've told you what the conclusions of the award
10 are and the effect they have.
11 Q. Do you agree with me, sir, that the reversion principle
12 that you rely on applies to both of the documents that
13 are referenced in the first paragraph on page 4 of the
14 arbitration award?
15 A. It should.
16 Q. The same law applies, right?
17 A. Yes.
18 Q. If I could ask now that C-005 be brought up. As well,
19 side by side, if I could ask that the Company Law be
20 brought up, and focus on Article 22: RM-007.
21 Thank you for highlighting Article 22. On the left,
22 the document I brought up, can we show Mr Mugisha what
23 the document consists of, so he knows what I'm referring
24 to.
25 Mr Mugisha, please take your time, look at the
[Page 110]
16:53 1 document, and then you say when you're ready for it to
2 be scrolled, when you know what you've looked at.
3 A. Yes, you can scroll down. (Pause) So what's your
4 question?
5 Q. If you could go back up. I believe it's the second
6 page. I don't have the document in hand, so I'm relying
7 on what is a small screen for me. But if that has the
8 date on it, the date of the document -- yes, it does.
9 I want to make sure you're aware of the date that this
10 document that was transmitted by the cover letter, but
11 the date of the actual document that's being referred to
12 do you see is July 3rd 2014?
13 A. Yes.
14 Q. Article 22 of the Company Law applies to the RDB's "Full
15 Registration Information for Domestic Company" report
16 when it was issued in July 2014; correct?
17 A. Article 22 talks about the information in the register
18 on the dates of incorporation. What I see that took
19 place on 3rd July 2014 is an amendment to the
20 information in the records of the registry.
21 Q. Article 22 of the Company Law applies to the RDB's
22 action that's titled "Full Registration Information for
23 Domestic Company", "Company name: NATURAL RESOURCES
24 DEVELOPMENT RWANDA LTD", on July 3rd 2014; correct?
25 A. That is not the date of incorporation; that is the date
[Page 111]
16:56 1 of the last amendment. Can you look at it?
2 Q. Is it your testimony that Article 22 does not apply to
3 the document issued by the RDB on July 3rd 2014?
4 A. July -- 3rd July 2014 is an amendment, just like at the
5 date of 2006 the information could have been different.
6 Because clearly this is an amendment.
7 Article 22 is about the information provided at the
8 time of incorporation, because it's actually an article
9 about incorporation of a company: when does a company
10 come to life?
11 Q. So I'm trying to focus the question on whether it's your
12 testimony to the Tribunal that in determining the import
13 of document C-005 -- that's on the left of the screen --
14 they are to look to Article 22 of the Company Law or
15 not.
16 A. Article 22 of the Company Law talks about information
17 that is provided at the time of incorporation and the
18 information that is necessary to complete the
19 requirements of the law for purposes of incorporation.
20 Now, the document on the left-hand side of the
21 screen is information that provides records as and when
22 there are amendments. It could be because of
23 shareholders, it could be directors, it could be share
24 capital; it could be any other record that is different
25 from the information provided to the date of
[Page 112]
16:58 1 incorporation.
2 THE PRESIDENT: Is that a way of saying: no, Article 22 does
3 not apply to this document?
4 A. Yes, it does not.
5 THE PRESIDENT: That's what I thought. Well, that was the
6 question you were asked.
7 Perhaps it would be a good idea, Mr Cowley, to look
8 at Article 25 and ask the same question.
9 MR COWLEY: Yes, I'm trying to look at that, sir. Just
10 a second. (Pause)
11 Mr Mugisha, is it your testimony to the Tribunal
12 that Article 25 of the Company Law applies to the RDB's
13 "Full Registration Information for Domestic Company" NRD
14 issued on July 3rd 2014?
15 A. Yes.
16 Q. I didn't hear what you said. "Yes" is what you said, or
17 did you say something else?
18 A. Yes. Yes.
19 THE PRESIDENT: Is that right? That's dealing with
20 amendment to the company's name. I think the point
21 you're making is we are dealing with an amendment to the
22 registry, not with the original certification.
23 Article 25 deals with an amendment to the name. Is
24 there any article that deals with an amendment to the
25 representation of the company?
[Page 113]
17:00 1 A. There's no article that deals with the amendment of the
2 information at the date of incorporation. But there are
3 articles -- off the top of my head, I can think of
4 Article 212, which obliges the registrar to amend the
5 registry on the basis of information provided from time
6 to time.
7 MR COWLEY: I did not catch that number; please say it
8 again.
9 A. I think it's 212.
10 Q. I've been told that that's on page 265, if the
11 controller can bring that up, please.
12 Is that the provision you were referring to,
13 Mr Mugisha?
14 A. No. I said it was off the head, so ... But it's around
15 the power of the registrar to update the registry.
16 Q. For corporations that are registered in Rwanda, to what
17 entity or agency are they required to provide
18 information about the change in shareholders or
19 directors or managing director appointment?
20 A. It is the Office of the Registrar General.
21 Q. In your testimony, is there any question that Rwandan
22 law requires corporations registered in Rwanda to make
23 those reports to the Registrar General?
24 A. There is -- yes, there is an obligation to file those
25 returns.
[Page 114]
17:03 1 Q. And that obligation applies only to the Registrar
2 General and to no one else; correct?
3 A. That's correct.
4 Q. If I could ask that document C-186 be brought up.
5 Mr Mugisha, C-186 is a May 22nd 2008 letter from one
6 of your colleagues at your firm -- Mr Apollo, I believe,
7 under the stamp -- and it's discussing a transaction
8 relating to the Zarnacks' percentage interest in
9 NRD Holding GmbH; do you see that?
10 A. Yes, that's right.
11 Q. And that entity, NRD Holding GmbH, you understood was
12 the holding company that owned NRD Rwanda Limited;
13 correct?
14 A. Yes. It's clear on the face of this.
15 Q. And your firm represented the Zarnacks, the majority
16 shareholders in NRD Rwanda Limited, in connection with
17 the transaction that's discussed here; correct?
18 A. That's correct.
19 Q. The other shareholder, the minority shareholder in
20 NRD Rwanda Limited was Ben Benzinge at the time;
21 correct?
22 A. That's correct.
23 Q. If that could be left up on the left, but if I could ask
24 for the Respondent's witness statement of Jean Bosco
25 Nsengiyuma -- I mispronounced it every time I talked to
[Page 115]
17:05 1 him, and I apologise in his absence for mispronouncing
2 it again -- and bring it to paragraph 20. (Pause)
3 If I could ask you to highlight the second-to-last
4 sentence, "I sent the demand letter to Mr Benzinge", and
5 highlight the whole sentence.
6 Do you agree with Bailiff Bosco's statement of
7 Rwandan law in paragraph 20 of his witness statement
8 that shareholders in NRD are liable for its debts?
9 A. I do not.
10 Q. It's your testimony to the Tribunal that Bailiff Bosco
11 misstated the applicable Rwandan law to the principle of
12 whether or not shareholders of the company are liable
13 for its debts? (Pause)
14 THE PRESIDENT: Our recollection is that Mr Bosco, if we may
15 call him that, stated firmly that shareholders were not
16 liable for the debt of the company.
17 MR COWLEY: It's Claimants' position -- and I don't contest
18 the Tribunal's recollection of one of Mr Bosco's
19 statements on the subject -- it's Claimants' position
20 that in a different part of his testimony he confirmed
21 this representation in his witness statement as to
22 a different action, as to why he served a certain letter
23 on Mr Benzinge, and the testimony that you're
24 recollecting related to whether or not he agreed that
25 a car he was seizing was Mr Marshall's personal car or
[Page 116]
17:07 1 not.
2 So I would suggest that our recollection -- and
3 I can't quote the transcript. I would just suggest the
4 reason I'm asking this is because I thought there was
5 a basis from his live testimony that he confirmed this
6 principle once.
7 MR HILL: I don't recall that there's any basis for it. And
8 my recollection is exactly the same as the Tribunal's:
9 he was very clear in his testimony that shareholders are
10 not liable for the debts of the company.
11 MS DOHMANN: It was very clear, definitely.
12 THE PRESIDENT: I have a recollection, I think, that accords
13 with Mr Cowley that earlier, before he made that very
14 clear statement, he had suggested that a shareholder
15 might be liable for a company's debt. But certainly
16 I took him as making a quite clear correction to that
17 statement.
18 Anyway, if they're conflicting statements that he's
19 made, they're conflicting statements.
20 MR COWLEY: Yes. And I think the purpose of bringing it up
21 to show it to him has already been served. I asked the
22 question as to what his testimony was, and he's given
23 it. So I wasn't going to press the issue further with
24 the statement.
25 MS DOHMANN: Mr Cowley, since we are on a particular
[Page 117]
17:09 1 document right now, it may save time if I can ask
2 a question of Mr Mugisha.
3 Mr Mugisha, looking at the document of 22nd May 2008
4 (C-186), it talks about the transfer of the shares "upon
5 payment of the ... price". What is the effect of
6 non-payment of the price in relation to the transfer, if
7 any? Is the transfer valid anyway and there's a debt,
8 or is there no valid transfer? Can you help us on that?
9 A. It would depend on the underlying agreements for the
10 transaction.
11 MS DOHMANN: Thank you. (Pause)
12 MR COWLEY: If I could ask that the first report be brought
13 up, and highlight paragraph 47, please.
14 Mr Mugisha, you give testimony here about the
15 consequence of both the arbitration award as upheld by
16 the Supreme Court, and you state the circumstances were
17 that "the Zarnacks no longer wish to exercise authority
18 over the company".
19 To what do you cite for the principle that's been
20 established as to the Zarnacks' position with regard to
21 whatever interest they may wish to assert in NRD in
22 light of the arbitration award?
23 A. Let me give some context to this statement, and the
24 context is this.
25 Following the judgment, the arbitration award and
[Page 118]
17:11 1 its confirmation by the Supreme Court, everybody was
2 entitled to deal with either the Zarnacks or Mr Benzinge
3 on matters related to NRD. And in the event that the
4 Zarnacks were not able to do so, there should have been
5 no vacuum as long as Mr Benzinge was available.
6 And the reason I say this is that under Rwandan law,
7 especially the Constitution of the Republic of Rwanda,
8 Article 151, every individual or public authority is
9 obliged to respect court decisions, and only challenge
10 them through procedures determined by the law.
11 Now, with such a decision having come from the
12 Supreme Court, it is obvious that no vacuum was expected
13 to be at the company. So this is the context to this
14 statement.
15 Q. I'm sorry, the last part I missed. What was the context
16 of the statement, that last part? You said it was
17 obvious that nobody what?
18 A. That in the absence of the Zarnacks, Mr Benzinge could
19 act on behalf of the company, and everyone else was
20 entitled to treat him as acting for the company.
21 Q. Well -- thank you. Are you done?
22 A. Yes, I am.
23 Q. Okay. I appreciate your explanation, but I'm still
24 troubled by trying to understand.
25 Why is it that you're making a representation in
[Page 119]
17:14 1 paragraph 47 that "the Zarnacks no longer wish to
2 exercise authority over the company"? What was your
3 source of information, what was the source of your
4 testimony as to the Zarnacks' stated desire or lack of
5 desire on that topic?
6 A. Look, I -- as I said, when I was requested to provide
7 an expert report, I was provided with documentation. So
8 obviously I know the facts of the case, and that is what
9 was at the back of my mind when I made that statement.
10 Q. It's now closed, but we looked at a letter in which you
11 were representing the Zarnacks --
12 THE PRESIDENT: If you're going away from this, I'm very
13 anxious not to spend a very long time chasing red
14 herrings.
15 You have qualified your statement in paragraph 47 by
16 the words:
17 "... in circumstances where the Zarnacks no longer
18 wish to exercise authority ... and the dispute is
19 between Mr Marshall and Mr Benzinge ..."
20 If one struck out all of that, would your statement
21 be accurate?
22 A. Sorry, sir, can you repeat the sentence?
23 THE PRESIDENT: If you put a line through paragraph 47 --
24 A. Yes.
25 THE PRESIDENT: -- beginning at the last word of the first
[Page 120]
17:15 1 line and ending before "it is Mr Benzinge", so the
2 statement read, "As a consequence of the Arbitration
3 award as upheld by the Supreme Court, it is Mr Benzinge
4 who would have authority to act on behalf of the
5 Company", would that be accurate?
6 A. Yes.
7 THE PRESIDENT: It would?
8 A. Yes.
9 THE PRESIDENT: That is in conflict with the document
10 produced by the registry on 3rd July 2014 that we have
11 just looked at: C-005.
12 A. Yes. And like I explained, pursuant to Article 151 of
13 the Constitution of the Republic of Rwanda, it would --
14 the registrar would be -- would have no choice but to
15 update the registry accordingly.
16 THE PRESIDENT: So does it look as though something must
17 have happened between the time of that award and
18 3rd July 2014 that resulted in the registrar making the
19 record that he did?
20 A. I'm not privy to what certainly did happen. All I'm
21 saying is that if the award had been presented, the
22 registrar was entitled to record the contents of the
23 award, i.e. to say that the status quo before the
24 transfer of shares was done should be -- should revert.
25 THE PRESIDENT: Yes.
[Page 121]
17:17 1 A. I don't see --
2 MR COWLEY: It may help with this questioning if we bring up
3 the Supreme Court's decision so the date of that can be
4 looked at compared to the registrar's action, so there's
5 no confusion as to which came first and which came
6 second.
7 THE PRESIDENT: What is the date of the Supreme Court
8 decision?
9 MR COWLEY: It is May 2nd 2014, and the document number is
10 R-015-ENG. It should be up at the top, in the bold
11 section at the very top caption. There you go.
12 THE PRESIDENT: Mr Hill, this arbitration has proceeded on
13 the basis, as I understand it, that the particulars in
14 that amended registration of 3rd July 2014 were correct,
15 i.e. that Mr Marshall has authority to act for the
16 company.
17 MR HILL: Well, in this arbitration Mr Marshall is acting on
18 behalf of the Claimants. NRD isn't a party.
19 THE PRESIDENT: Yes.
20 MR HILL: So in terms of representing NRD in the
21 arbitration, NRD doesn't have a role in the arbitration.
22 THE PRESIDENT: No, that's true. But if Mr Marshall has
23 authority to act for the company, it can only be through
24 Spalena.
25 MR HILL: Yes. But as I say, it doesn't arise, because in
[Page 122]
17:19 1 the arbitration NRD is not a party.
2 MS DOHMANN: Mr Hill, we follow that --
3 MR HILL: I'm sorry --
4 MS DOHMANN: -- the company into which the investment was
5 made is not a party under the BIT and in this
6 arbitration. We follow that very well.
7 But what is the position with Spalena, you see?
8 Because they were meant to be the people who acquired
9 the shares. And it's very confusing. At the moment it
10 doesn't seem to us to have been resolved with clarity as
11 to who exactly is the shareholder as a result of this
12 arbitration award, who are the shareholders, and where
13 is Spalena in all of this.
14 MR HILL: Yes. Well, as you've heard from Mr Mugisha's
15 evidence, his view -- and it's at 45 as well as 47 of
16 his [expert report] -- is that the effect of the award
17 is that the transfers of shareholdings are nullified,
18 the result being that there's a reversion to the
19 original shareholders, who are the Zarnacks and
20 Benzinge.
21 That's why he says: in circumstances where the
22 Zarnacks are not on the scene, Benzinge can have
23 authority. But obviously if the Zarnacks were on the
24 scene, the shareholdings would have reverted to them and
25 they could take actions as shareholders. So that's his
[Page 123]
17:21 1 view.
2 THE PRESIDENT: Can I raise the difficulty I have with all
3 of this.
4 The arbitration was based upon, as I understand it,
5 an arbitration agreement between the original
6 shareholders who formed the company, and as it seems to
7 me, it's an arbitration agreement which would apply in
8 relation to a dispute between shareholders. The
9 arbitration purports to have been between the company on
10 the one side and Mr Benzinge on the other.
11 I have great difficulty in seeing: (a) how the
12 arbitration agreement could result in such
13 an arbitration, as opposed to an inter-shareholder
14 arbitration; and (b) I have difficulty seeing how the
15 result of the arbitration could operate in rem so as to
16 divorce Spalena from its shareholding.
17 Those are the difficulties I have.
18 MR HILL: Yes. I wonder whether, rather than trying to
19 tackle all of those on the hoof, I could digest those,
20 and it may be points that we can pick up in closing.
21 I understand the difficulties.
22 THE PRESIDENT: Yes.
23 MR HILL: I'm not sure how much those difficulties are
24 central to any issues that you're actually deciding, and
25 that's perhaps something that I'd like to consider and
[Page 124]
17:22 1 address.
2 Because our standing point is that this is not --
3 this hasn't been put forward at the centre of our
4 standing point, and where it does arise is in relation
5 to the reasonableness of the actions in particular of
6 Mr Imena, who considered he was caught between two
7 people with different assertions. And unless it's being
8 said that it should have somehow been obvious to
9 Mr Imena that he could in some way disregard the
10 Supreme Court award, I'm not sure the point matters that
11 much to anything the Tribunal is actually deciding.
12 THE PRESIDENT: I think that's right. But --
13 MR COWLEY: That's precisely our point as of July 4th 2014.
14 That's why we've raised that. It couldn't be in doubt
15 as of the day that that registrar's statement was --
16 MR HILL: No, I certainly don't accept that. I certainly
17 don't accept that anything couldn't be in doubt.
18 There is plainly, as Mr Mugisha explains, a natural
19 consequence of the award and the Supreme Court judgment
20 on it, that to the reader, at any rate, has that
21 consequence, and such that Mr Imena, for example, would
22 have been acting entirely reasonably in taking the
23 position that he did.
24 MR COWLEY: If I was permitted to finish my sentence, what
25 I was trying to say was: it certainly couldn't be in
[Page 125]
17:23 1 doubt what instruction Mr Imena was required to follow
2 as of July 4th 2014.
3 MR HILL: Well, we don't accept that either.
4 MR COWLEY: (Inaudible) as it may be to him, the registrar
5 has spoken. No action was pending as of July 4th 2014
6 to challenge it; none is pending now that we've been
7 informed of.
8 But the point was: as of a certain date our point
9 has been: as of a certain date, he was required to
10 follow the law and let the registrar who has spoken
11 speak and have effect, and --
12 MR HILL: We don't accept that for a moment, because we
13 don't accept the conclusiveness that Mr Cowley asserts
14 of the registrar. Anything in the register could be
15 open to challenge, and Mr Benzinge was armed with the
16 material prima facie to challenge it.
17 MR COWLEY: I was speaking to our position, because that's
18 what you asked, in rhetorical form albeit, but it wasn't
19 a joke and it shouldn't have been rhetorical. That was
20 our very position. The reason I spoke about it is
21 because that's how you phrased it --
22 THE PRESIDENT: Can we come back to the fundamental point
23 which is worrying me, and that is that when this
24 arbitration began on Day 1, I understood it to be common
25 ground that Spalena was the ultimate holding company of
[Page 126]
17:25 1 NRD, and that's the basis upon which we've been
2 proceeding. And if that's not correct, there's a very
3 short answer to Spalena's claim.
4 MR COWLEY: It's the basis [on which] we've been proceeding
5 as well. We thought it was an agreed fact before the
6 hearings started.
7 THE PRESIDENT: I currently would be inclined to proceed on
8 the basis that it's very hard to understand precisely
9 the nature and effect of this arbitration award, but
10 that we would proceed on the common ground that by
11 3rd July 2014 the position was as stated by the
12 registrar and, as we understand it, has remained the
13 position on the registry ever since. That's my current
14 approach.
15 MR HILL: Can we consider that?
16 THE PRESIDENT: Yes.
17 MR HILL: While we do, even were we to accept that as
18 a working way forward, I would just want to stress that
19 we certainly wouldn't be accepting that it follows from
20 that that it would have been obvious, say, to Mr Imena
21 that Mr Benzinge was wrong to be brandishing a Supreme
22 Court award at him and Mr Imena was in some way required
23 to ignore Mr Benzinge. So it's a slightly different
24 nuance. But I want to be clear that any acceptance of
25 us of that as a way forward doesn't carry with it the
[Page 127]
17:26 1 acceptance of Mr Cowley's proposition.
2 THE PRESIDENT: So far as I'm concerned, that strikes me as
3 perfectly fair.
4 MS DOHMANN: So far as I'm concerned, Mr Imena can have
5 acted in good faith, there being conflicting positions
6 taken, and he then proceeded in a careful manner.
7 That's one way of seeing it.
8 MR COWLEY: Rather than argue it now, please just note our
9 position is we have more to point to in Mr Imena's
10 testimony, both in his witness statements and live at
11 the hearings, that supports our position that he knew
12 exactly what he was supposed to do and he actually said
13 he was doing it; meanwhile, we say the record was
14 contrary.
15 But we'll pick up this point, both of us, in the
16 closing. At the risk of belabouring a point that you
17 think is over, I actually had a different purpose in
18 trying to address a couple of questions to Mr Mugisha on
19 this topic, so for clarity's sake and to avoid
20 frustrating everybody that you think I'm perpetuating
21 an issue that we've now talked through.
22 To be clear, the Claimants remained very concerned
23 that Mr Mugisha, as far as the record has shown so far,
24 his firm and Mr Mugisha's personal representation are in
25 conflict, because the only -- certainly the last known
[Page 128]
17:28 1 representative of the Zarnacks in Rwanda who could
2 inform them, give them notice, talk to them about what
3 interest they may have in reasserting control over NRD
4 and doing another transaction like clarifying the
5 shareholders' shareholdings or not -- but the advice
6 from a lawyer, that lawyer would be Mr Mugisha or his
7 firm.
8 And at the same time, the Respondent has an interest
9 in continuing to breathe life into Mr Benzinge's -- how
10 shall I call it? -- efforts to confuse the situation
11 thoroughly. Because the Respondent believes they
12 benefit from lingering confusion about his status and
13 the status of the shareholding, which relies very much
14 in part on Mr Mugisha's testimony about how the
15 arbitration award and the decision upholding it must be
16 interpreted under Rwandan law.
17 We see a very clear at least potential conflict
18 between two clients on the same transactions. And
19 that's what we raised in advance of the arbitration; we
20 were told to pick it up at cross-examination for
21 purposes of going to the credibility or weight to be
22 assigned to any opinion.
23 And I asked the question, but we never quite got to
24 an answer, who Mr Mugisha purports to rely on to speak
25 for the Zarnacks when representing to you [that] they
[Page 129]
17:29 1 have no interest in taking control of the company again.
2 Because it seems to be quite possible he's taking the
3 position for one client that supports a different one,
4 without ever providing notice to the first.
5 THE PRESIDENT: Yes, I follow the point you are making
6 Mr Cowley. And if you want to ask about the apparent
7 qualification in paragraph 47, you are free to do so.
8 MR COWLEY: Thank you.
9 If you could bring back up the first report of
10 Mr Mugisha at paragraph 47.
11 I apologise in advance for the awkwardness of
12 phrasing of this, because it's going to come out with
13 an awkward negative. But, Mr Mugisha, who do you
14 purport to rely upon in informing the Tribunal of the
15 Zarnacks' lack of wish to exercise authority over the
16 company?
17 A. Mr Cowley, I've already answered your question to say
18 I am privy to the purpose of this case on the basis of
19 information provided to me in the documents, and that
20 is -- on the basis of which I made this statement.
21 Q. Please provide the name of the person upon whom you're
22 relying in making that statement.
23 A. I have told you: I am relying on documents that I was
24 made privy to when I took on the assignment to provide
25 this Tribunal with an expert report.
[Page 130]
17:31 1 Q. Please identify the documents.
2 A. It's the Memorial, it's the Counter-Memorial, it's
3 basically these judgments. That is what I relied on.
4 Q. I asked a poor question. I cut it short; I shouldn't
5 have.
6 Please identify the document or documents that you
7 point to and rely upon for the information about the
8 Zarnacks' lack of a wish to any longer exercise
9 authority over the company. What do you point to as the
10 source of that statement?
11 A. Look, I've provided you with the context, and that's it.
12 I mean, I don't have any other answer for you.
13 MR COWLEY: In light of this effort to try to get a direct
14 response, and based on the clear concern that a lawyer
15 with presumably a lingering obligation to either
16 a current client, or at least a former client for whom
17 he had responsibility or his firm had responsibility in
18 a transaction, knowing about material change by
19 an action of the Supreme Court affecting that very
20 transaction, knowing that he holds the information and
21 perhaps his client does not know about it, I am very
22 concerned about not being able to confirm, given the
23 answers that we're permitted to hear, that the client
24 who he's telling the Tribunal has no interest in
25 something, which may be very material to the opinion
[Page 131]
17:33 1 that could be ever be given by any lawyer as to
2 Mr Benzinge's role, regardless of how the confusion
3 comes out. Who is protecting that client?
4 THE PRESIDENT: Mr Cowley, this witness has said quite
5 unequivocally that his understanding that "the Zarnacks
6 no longer wish to exercise authority over the company"
7 is derived from all the documents that are in front of
8 us.
9 Speaking for myself, it seems to me nothing could be
10 clearer from the documents than that the Zarnacks were
11 not interested in the company, because the documents
12 state that -- and this has never been challenged -- they
13 sold their interest in the company years and years ago.
14 And if they had got on to this witness and said,
15 "Well, we would like to get the company back", or if
16 they'd got on to this witness and said, "We just heard
17 that it's suggested we could get the company back, but
18 we don't want it", then this witness would have told us
19 that that was the basis of his statement. He hasn't
20 said so; he said that it was based on the documents.
21 MR COWLEY: But that's the problem, Mr President. I'm sorry
22 I'm not being clear.
23 But all of what you just said, I understand if
24 someone can confirm that the Zarnacks were informed,
25 told about the ruling and advised as to the related
[Page 132]
17:35 1 transactions, not just the ones discussed by the
2 arbitrator but the related transactions that may be
3 impacted if that ruling is not dealt with. That may
4 cause liability to Mr Benzinge. Because there's aspects
5 in the transaction -- and we raised it in our motion --
6 as to the change in shareholding positions, which
7 definitely would have some effect as to the share of the
8 money that resulted from the transaction.
9 So if Mr Benzinge has benefited by the Zarnacks not
10 being informed, not taking action to address it, not
11 taking action to revive the effectiveness of the prior
12 transaction, because of the silence of the lawyer who
13 has an obligation to tell them, and that lawyer is now
14 representing a party that benefits, along with
15 Mr Benzinge, from them not knowing and not taking
16 an action, that's the concern.
17 MS DOHMANN: Mr Cowley, hold on.
18 You have had this expert statement for over
19 two years. If you had the concerns you've just
20 expressed, you could have written and said, "Have you
21 informed the Zarnacks about their not having
22 an interest?", and so forth. You are effectively making
23 accusations of professional misconduct right now,
24 dealing with a conflict of interest with another former
25 client that Mr Mugisha had. And it is not before us,
[Page 133]
17:37 1 this kind of point. It is a point that needed to be
2 resolved, if it arises really, differently and
3 elsewhere.
4 I speak for myself, of course. But I do not see how
5 we can deal here within the question of an alleged
6 non-disclosure in relation to which there is zero
7 evidence and it's not a problem for us.
8 Our position is that we have an expert in front of
9 us who ought to speak, and does speak, about what
10 Rwandan law provides in relation to contracts and mining
11 concessions and so forth. That is what we are looking
12 at. And we are also looking at the arbitration award.
13 We are not looking at Mr Mugisha's former clients and
14 whether he has fulfilled his obligations towards them.
15 And I reiterate: I speak for myself.
16 MR COWLEY: And I will not belabour the point. I appreciate
17 what you said. I just want to remind the Tribunal: we
18 did raise it in writing in a motion. We felt it
19 completely inappropriate to then take direct action with
20 Mr Mugisha, or otherwise take direct action to affect
21 the record, having raised it, and the instruction we
22 received as a result of our motion was to raise it in
23 cross-examination.
24 So while I appreciate your position, I just would
25 like to remind you as to the reason why we thought we
[Page 134]
17:38 1 were following the instruction as exactly what you
2 wanted us to do and how you wanted us to pursue it.
3 I wouldn't have done it --
4 MS DOHMANN: The objection you raised before was
5 an objection of lack of independence on the basis that,
6 allegedly, Mr Mugisha had acted for NRD. And he made it
7 very plain in evidence presented to this Tribunal that
8 he had acted not for NRD but for the Zarnacks. That was
9 the point then raised. What was not then raised is what
10 you have produced this afternoon by way of allegation of
11 non-disclosure to a former client.
12 MR COWLEY: I have nothing further to say. I'm not trying
13 to antagonise the Tribunal. I thought we had raised it
14 appropriately.
15 And our point is not to accuse him of having done
16 something wrong. I simply try to raise the point that
17 he can't serve in a position where he has two
18 potentially competing obligations. He simply can't do
19 it. I'm not suggesting he did something wrong. I'm
20 suggesting he should not sit in a position where it's
21 even possible. Even if he does everything right, he
22 shouldn't be opining on the effect of the Benzinge
23 arbitration award at all.
24 That was our point; nothing more. I've made it, and
[Page 3]
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complicated 1:22 50:19 complied 23:4 25:6 62:3 74:7 77:1 78:5 78:21 84:6 85:1 complying 97:11 composition 71:20 concentrate 73:13 concentration 14:22 concept 22:21 57:8 59:8 concern 92:18 130:14 132:16 concerned 71:4 95:18 127:2,4,22 130:22 137:14 concerning 100:15 concerns 132:19 concession 6:2 13:4 14:10,11,12 17:22 19:23,24 20:1 21:13 27:12 28:7 29:5 51:8 63:24 81:3,9 81:13 82:3 90:17 91:5,6,20 96:9,10 104:1 105:17 concessions 4:19,22 5:3,6,11 9:4,5,7,14 10:4 12:6 14:2,3 16:9,10 17:8,10 18:7,14,16 19:23 20:2 21:3 22:22 26:5 29:22 30:11 32:6,7,9 37:17 40:2 40:6,10,19 42:9 44:13 46:25 48:22 52:24 53:18 55:12 57:14 63:25,25,25 80:15 93:9,11 96:2 103:17,23 104:23 105:9,10 133:11 Conciliation 95:12 conclude 27:11 29:3 32:21 concluded 28:18 140:6 concludes 28:9 80:11 concluding 28:20 conclusion 27:5 58:7 106:12 conclusions 51:23 57:4,16,20 108:19 109:9 conclusive 76:25 77:5 77:13,22 78:3,23 79:2,12 80:7 84:25 85:3 conclusiveness 125:13 condition 43:21 44:3 44:16 45:1,3,12,16 45:20 46:1,4,9,16 46:19,23 47:1 91:13 conditional 42:2 conditions 45:18 91:8 91:12,16 conduct 11:13 52:23 53:2,6,14,21 |
conducted 35:3 conducting 12:5,9 confer 138:24 conference 1:5 confidence 25:15 confident 22:12 confidential 25:3 confirm 7:22 130:22 131:24 138:21 confirmation 118:1 confirmed 87:16 95:4 115:20 116:5 139:19,20 confiscated 82:15 conflict 72:20 85:13 120:9 127:25 128:17 132:24 conflicting 116:18,19 127:5 confuse 128:10 confusing 122:9 confusion 121:5 128:12 131:2 connected 34:17 35:17 63:7 connection 86:4 114:16 connectivity 35:20 conscience 2:16 37:7 89:13 consensus 4:14 10:11 consent 25:4 consequence 71:16 117:15 120:2 124:19,21 consider 41:15 45:11 50:2 54:8 64:2 123:25 126:15 considered 17:4 48:2 50:10 64:10 124:6 consistent 7:20 30:13 consists 109:23 constitutes 98:17 constitution 75:10 95:16 118:7 120:13 consultant 61:3 Consulting 2:22,22 contact 86:6 contain 82:2 contained 69:25 70:4 contentious 1:6 contents 120:22 contest 47:8 115:17 contested 20:16 context 5:12 6:20,21 8:24 12:14 117:23 117:24 118:13,15 130:11 continue 11:8 13:21 15:18 16:7 27:2 53:25 54:1,2 70:10 continued 17:9 51:7 52:12,12 continues 83:15 continuing 128:9 contract 37:15,16 38:3 39:4,6,8,11,13 39:22 40:5,8,16,18 41:1,5,7,9,24 42:8 43:25 44:20,25 45:3 45:8,17,21 46:1,10 46:20 48:3,10,14,23 49:23 50:19 51:16 51:18,24 52:3,7,9 52:11,11,13,21 59:20 65:14,19 90:16,18 91:2,9,23 92:1,8 98:4,16,18 99:7,8,16,25 100:2 100:4,14,15,18,20 101:6,14,16,18 135:10,19 contracts 43:15,19 45:17 64:3 133:10 contractual 40:10,14 40:20,22,23 49:7 51:1 65:24 93:19 94:6 contract's 101:3 contrary 77:17 127:14 contrast 6:24 control 100:18 128:3 129:1 controller 113:11 convenient 54:13 conversations 64:21 65:1 copied 29:18 copy 24:4 corner 68:8 corporate 63:19 106:23 corporations 113:16 113:22 correct 2:7,23 3:12,24 4:9 5:7 6:2,6,19 7:13,25 8:12,13 9:4 9:5,15,16,18,19 10:5 11:14 12:12 13:6,15 14:7 20:3,4 21:4 22:6,7,9 23:5 23:12 24:3,10,11,21 26:9,19 28:4 29:1 29:23 30:12 31:1,10 31:11,12,16,24 33:14,15 49:17 56:1 81:20 98:5,7,11,14 98:15,20 99:20 100:2,15,20 101:4,6 101:18,19 103:7,19 104:18,24 105:6,17 105:25 106:3 107:18 108:3,18 109:8 110:16,24 114:2,3,13,17,18,21 114:22 121:14 126:2 136:8 139:8 correction 116:16 corrections 138:25 139:14 correspondences 13:16 corresponding 96:13 cost 139:17 |
counsel 35:22 42:19 42:23 86:22 88:2 96:18 137:25 count 19:12 counter 62:19 Counter-Memorial 130:2 country 7:2,6,20 8:8 24:16 90:9 93:8 couple 1:15 10:8 127:18 course 28:16 41:2 60:24 64:23,23 86:11 104:3 133:4 court 44:5 45:7,10 61:6 71:24 72:9 73:14,14 74:2,11 75:19,19,22,22 93:3 94:11,12,21,24 95:2 95:3,3,8,17 117:16 118:1,9,12 120:3 121:7 124:10,19 126:22 130:19 136:22,23,25 137:1 137:10 courtesy 26:18 93:20 93:25 courts 61:2 95:5 Court's 121:3 cover 102:19 110:10 covered 52:24 103:9 Cowley 2:3 3:3,6,10 1:14,20,21 2:24 3:4 3:6 10:7 14:18 34:7 34:15 35:7 67:3,5,8 67:13,18,19 83:10 85:15 86:8,10,23 88:4,23 89:21 96:23 97:4,6,17,18,19 106:7,9 112:7,9 113:7 115:17 116:13,20,25 117:12 121:2,9 124:13,24 125:4,13 125:17 126:4 127:8 129:6,8,17 130:13 131:4,21 132:17 133:16 134:12 135:4 138:3,17,18 139:2,10 140:4 Cowley's 127:1 create 46:25 credibility 128:21 criteria 92:5,8 cross-examination 3:3 3:5,10 3:4 37:11 97:19 128:20 133:23 135:3 cross-examining 96:23 current 7:10 22:5 61:24 126:13 130:16 currently 126:7 curriculum 60:6 cursor 74:20 cut 130:4 CV 60:9,20 63:4,18 cynical 25:16 C-005 109:18 111:13 120:11 C-015 3:7 C-017 37:15 44:8 90:18 98:4 135:11 C-018 70:6 C-032 98:23,24 C-038 29:8 C-062 47:23 49:12,14 C-132 32:13 C-144 85:6 C-186 114:4,5 117:4 Ddaily 14:2 138:21 DALEY 2:12 damage 96:11 Daniel 2:7 42:20 54:7 66:12,18 67:12,17 DANIELLE 2:8 data 21:1,11,12,14,20 21:24 22:1,19 23:1 23:1,3,6,9,23,25 24:7,9,14,17,23 25:3 date 29:14 33:11 68:6 78:10 79:3 86:17 103:19 110:8,8,9,11 110:25,25 111:5,25 113:2 121:3,7 125:8 125:9 139:18,19 dated 33:20 47:24 dates 102:18 110:18 139:19 DAVID 2:22 day 12:8 14:4 18:6 67:1,3 124:15 125:24 days 26:15,18 28:25 30:8,9 59:16,17 75:9 138:16 day/month/year 33:23 deal 1:5 118:2 133:5 dealing 37:1 112:19 112:21 132:24 deals 112:23,24 113:1 dealt 132:3 debt 115:16 116:15 117:7 debts 115:8,13 116:10 decades 10:8 December 33:25 decide 27:1 decided 36:11 deciding 123:24 124:11 136:18 decision 4:18 71:16,19 71:24,25 72:5 74:2 92:15 95:4 96:24 104:14 108:3,9 118:11 121:3,8 128:15 134:25 136:23,25 137:1 decisions 75:19,22 94:11,12,18 95:11 |
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 4]
| 95:14 98:8 118:9 declaration 2:11 34:25 36:8,12,15,19 36:24 37:3 60:7 61:21 62:1,6,10,17 89:8 declare 2:15 37:6 89:12 declared 71:12,15 decree 68:2 deem 41:18 deemed 47:9,17 51:18 91:12 92:14 94:2 defines 43:21 definitely 116:11 132:7 deliver 81:15 delivered 14:16 15:12 demand 6:15 115:4 demarcations 90:20 denied 59:21,21 department 2:15,16 23:16,17 24:6 30:17 31:7 departments 23:19 depend 117:9 dependent 91:6 depending 22:10 deposits 4:21 derived 91:25 131:7 describe 19:15,16 26:18 described 6:16 10:2 12:9 13:2 26:7 27:22 30:25 31:7 98:11 describing 26:11,22 30:13 98:13 description 8:23 27:15 30:4,15 designed 36:8,24 desire 119:4,5 despite 7:12 16:14 details 22:20 determinations 100:11,13 determinative 76:5 77:5 80:12 85:4 100:24 101:14 determine 4:21 100:23 101:13 determined 84:13 95:20 100:17 118:10 determines 76:3 101:1 determining 84:16 111:12 develop 4:23 5:23 development 5:24 29:19 110:24 dialogue 28:23 30:7 difference 25:12 87:10 different 21:2,4 24:6 41:8 58:2 86:15,20 86:24,24 87:4 111:5 111:24 115:20,22 124:7 126:23 |
127:17 129:3 differently 12:15 16:4 133:2 difficult 96:22 difficulties 123:17,21 123:23 difficulty 123:2,11,14 digest 123:19 Diploma 60:21 direct 3:2 2:20 10:13 64:6 130:13 133:19 133:20 director 33:3 94:16 107:6,17 108:13,16 113:19 directors 71:10 84:15 111:23 113:19 disagree 51:23 72:16 78:8 79:8 91:14 92:7 94:5 disclose 74:16 disclosed 67:21 discretion 92:7,11 104:3,5 135:14 discuss 67:6 discussed 1:16 4:13 5:1 105:11 114:17 132:1 discussing 32:20 114:7 discussion 3:15 3:23 4:7 dismissed 71:10 dispute 2:13,14 71:2,4 105:25 119:18 123:8 137:21 disputes 1:2 2:12 136:13 disqualification 75:6 disregard 124:9 disregarded 80:4 85:2 dissatisfaction 48:13 dissatisfied 93:2 distance 13:3 distinction 97:3 distinguish 96:22 divest 137:7 divorce 123:16 document 3:7 4:13,15 4:17 20:6,11,18 21:1,9 29:14,24 32:13,14,16,20,23 33:6,12,18,20 34:1 43:13 50:20 56:1 70:8,14 85:6,7,9 86:16 87:5,17 88:14 98:4 99:8 106:25 109:22,23 110:1,6,8 110:10,11 111:3,13 111:20 112:3 114:4 117:1,3 120:9 121:9 130:6 documentation 4:11 119:7 documents 33:22 55:11 56:11 64:9,18 65:6,23 66:6,9 72:16,18 73:4,21 78:20 79:20,22,24 84:3,3 92:17 98:22 99:5 105:21 108:17 109:5,12 129:19,23 130:1,6 131:7,10,11 131:20 Dohmann 1:12 85:20 86:2,8,10 87:25 88:23 116:11,25 117:11 122:2,4 127:4 132:17 134:4 139:4 doing 10:1 11:9,19 14:1 16:16 127:13 128:4 Domestic 106:25 110:15,23 112:13 dominated 7:24 done 5:4 8:5 35:9 46:13 59:22 61:18 93:23 96:2 100:7 101:11 118:21 120:24 134:3,15 DONNA 2:16 doubt 124:14,17 125:1 down 3:15,16 26:10 27:17 32:17 38:5 46:14 52:19 69:6,6 110:3 Dr 20:17 21:1 99:2,4 99:14,19 draft 4:6 87:11 drafted 87:20 drafts 87:11 draw 7:21 11:2 25:24 106:15 138:19 Drawing 3:19 dry 15:1 Duane 2:3,3 due 27:4 43:25 44:21 50:3,11 54:8,22 55:2,7,10,16,20 56:5,8,22,25 57:8,8 58:1,9,12,16,24 59:3,6,7,11,14 92:19,21 93:5 DUFFIELD 2:8 duly 78:9 DUNCAN 2:7 duplicate 24:3 duration 103:14 during 15:3 58:25 65:17 79:20 97:10 102:8 DUSHIMIMANA 2:9 Eeach 14:4 21:21 24:1 25:14 52:1,21 86:16 91:22 earlier 116:13 earn 12:11 easier 3:18 East 63:20 64:1 easy 25:11 eaten 17:14 |
economic 14:23 16:23 ecosystem 9:22 effect 13:16 46:15 65:14 83:18 96:24 102:16 106:2,12 109:1,10 117:5 122:16 125:11 126:9 132:7 134:22 138:20 effectively 132:22 effectiveness 132:11 effects 94:10 109:4 effort 130:13 efforts 128:10 either 10:3 13:4 44:3 57:3,17 70:21 104:12 118:2 125:3 130:15 137:25 ELIZA 2:18 elsewhere 133:3 email 138:22 emphasise 93:4 emphasised 77:21 employed 16:21 employees 11:17 28:13 employment 18:13,17 60:10 63:4,5,14 empowered 78:19 end 26:24 27:6,9,12 29:4,25 42:10 105:3 139:12,13 ending 120:1 endpoint 28:23 ends 26:15 27:7 English 41:7 70:9 enlarged 25:21 enter[ing 4:20 entire 107:14 135:14 entirely 86:15 93:22 124:22 entitled 39:7,12 40:1,6 40:15 106:17 118:2 118:20 120:22 entity 113:17 114:11 137:21 environment 9:23 10:14 11:24 environmental 38:9 90:21 96:11 environments 11:23 equally 33:16,25 105:8,16 108:10 equivalent 77:19 80:2 errors 139:6 especially 48:5 51:15 64:3 88:6 118:7 essence 26:12 established 21:20 77:7 117:20 Europe 33:20 evaluated 46:24 91:4 evaluation 41:12 42:2 44:10,15 45:5 46:22 91:3 98:19 135:13 even 4:15 8:3,5 9:19 9:24 15:24 21:8 22:19 28:22 32:10 45:10 48:15 51:6 53:24 84:12 99:22 126:17 134:21,21 137:6 139:7 evening 97:20 140:2 event 28:8 43:24 44:3 44:11,19 45:4,6 100:1,23 101:13 118:3 events 27:15 28:20 ever 17:7 32:4 88:17 126:13 129:4 131:1 every 12:8 18:6 25:5 87:18 114:25 118:8 137:2,4 everybody 118:1 127:20 everyone 118:19 everything 11:1 18:3 88:21 134:21 139:9 evidence 34:14 35:1 36:10 42:25 48:12 61:18 63:5,16 65:24 66:3,17,20 73:21 76:25 77:5,13,14,22 78:4,24 79:13 80:7 84:25 85:3 96:19 97:1,2 122:15 133:7 134:7 Evode 13:14,24 15:14 29:10 evolution 5:7 evolved 23:16,20 exactly 66:12 116:8 122:11 127:12 134:1 examination 3:2,6 2:20 35:2 83:10 examines 78:20 84:2 84:14 examining 51:15 example 9:6 30:23 59:15 124:21 examples 48:12 65:8 excavations 81:11 except 9:19 95:19 exclusive 12:20 exclusively 9:9 12:24 Excuse 38:19 107:13 executed 48:3 executory 45:12 exercise 5:21,22 28:21 99:12 117:17 119:2 119:18 129:15 130:8 131:6 exercised 50:3 exhibit 3:14 37:15 43:12,14 47:23 49:1 49:12,14,19 50:17 60:4 61:24 71:23 exhibits 1:16,19 exist 24:24 33:13 74:24 82:22,24 existence 33:14 existing 5:12 7:6 96:9 exit 26:23 |
expect 23:6 28:23 expectation 22:25 34:17 97:6 expectations 97:11 expected 29:4 30:7 48:23 49:9 118:12 experience 14:25 42:15 83:4 90:2 expert 56:1 62:19,24 63:1,6,16 69:23 77:23,24 88:8 89:8 90:15 96:19,22 97:1 97:23 98:10 119:7 122:16 129:25 132:18 133:8 expertise 64:2 expiration 68:25 expired 53:9,21,25 102:10 103:5 105:12 expires 102:7 138:15 138:16 explain 11:4 17:13 19:14 21:17 57:7 83:18 108:23 137:19 explained 20:17 26:25 27:9 57:7,7 58:5,9 59:7 67:20 78:15,16 120:12 explaining 6:21 7:1 10:24 36:23 explains 56:3 78:2 124:18 explanation 10:23 25:18 33:16 78:13 108:8 118:23 explicit 58:11 101:20 explicitly 45:16 46:1 52:2 exploitation 38:12 39:18 68:24 90:23 exploration 5:22 export 25:9,15 express 103:1 expressed 65:3,7 132:20 expressing 103:10 expressly 45:20 46:7,9 48:2 expropriation 81:24 extend 51:9 extended 51:24 52:1,2 52:7,21 69:15 91:22 93:20 extending 52:12 extension 52:22 53:17 53:19 69:17 70:1,4 70:16 93:16 103:1,4 103:5,8,14,22 105:4 105:11 extensions 51:7 52:6 93:17,19 102:8,19 102:21,25 105:1 extent 95:8 extinguished 46:25 extinguishes 46:19 |
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 5]
| extract 11:21 extracting 12:1 Fface 114:14 facie 125:16 facilitate 93:23 facilitated 82:12 fact 3:21 9:3 14:25 18:4 19:14 24:3,13 24:22 27:15 33:16 33:18 34:25 36:9,24 72:10 79:3 86:18,21 94:7 126:5 facts 64:6,11,17,18 65:4,5 82:13,16 100:23 119:8 factual 41:3 66:2,17 66:20 100:11 fail 49:11 failed 48:20 72:9 74:15 fails 47:8 136:15 failure 54:25 55:5 56:4 92:4,6,13,18 fair 127:3 faith 93:23 127:5 familiar 3:10 10:7 13:13 20:6,18 21:8 21:9,13,16 22:1,21 29:17 33:22 families 14:6 17:12 family 12:12 far 9:20,24 12:18,22 13:12 69:23 127:2,4 127:23,23 farms 15:6 feasibility 38:16 41:10 41:13,16,19 42:3 44:10,15 45:4,5 46:23 48:7 90:25 91:3,18 92:6,9,10 92:13 98:19 135:13 February 61:11,15 feedback 38:20 feel 28:17 fell 48:23 49:8 felt 9:25 133:18 FERGUSON 2:23 few 21:2 fewer 8:3,5 field 15:18 fields 15:4,7,9 figures 19:19 21:5 22:17 file 88:14,16 109:7 113:24 files 82:15 106:23 108:17 109:6 fills 87:3 final 26:15 48:6 87:11 88:25 95:23 finalised 88:5 finally 90:24 find 1:18 18:7,15 25:5 45:18 99:14,18 137:10 |
findings 72:24 99:22 108:24 fine 139:13 finish 44:23 124:24 firm 61:5 90:5 114:6 114:15 127:24 128:7 130:17 firmly 115:15 first 3:9 6:10 8:15,25 23:10 30:14,16 31:6 32:4 39:2,14 41:9 47:2,5 49:2,21 54:9 54:24 55:22 56:1,15 61:10,14 65:12 68:22 76:1,10,15 79:10 83:21 85:21 86:13,23 87:8 88:17 88:20 98:25 99:20 101:21 102:24 103:4 106:15,19 107:24 108:7,11 109:13 117:12 119:25 121:5 129:4 129:9 136:13 firsthand 64:13,16 five 19:23 48:22 63:21 65:24 flexible 6:14 flow 139:17 focus 8:22 11:8 12:4 23:10 33:6 41:6 43:17 45:24 46:6 97:24 102:18 109:20 111:11 focusing 7:9 11:10 16:9 19:9 21:10 22:18 69:7 follow 97:3 122:2,6 125:1,10 129:5 135:17 followed 23:18 43:9 73:24 94:23,25 96:1 following 13:8,23 23:9 55:6 71:1 84:4,7 109:1 117:25 134:1 follows 40:4 95:20 126:19 font 86:20,24 87:4,5 foot 53:3,6,7 force 68:6,25 foreign 30:19 31:8,13 96:19 forestry 9:23 23:19 Forgetting 104:25 form 21:2 61:18 66:3 125:18 136:5 formal 3:24 4:8 12:16 26:6,11 27:20 28:3 28:5,8,20 29:1 82:10,11 96:4 formally 27:24 formed 123:6 former 26:14 130:16 132:24 133:13 134:11 formerly 14:8 forth 77:6 87:11 132:22 133:11 forward 42:25 124:3 126:18,25 found 17:11 25:8 71:8 73:14,14 91:19 94:18,25 106:23 four 59:1 83:2 91:1 fourth 52:20 four-year 42:10 framework 91:24 92:2 92:23 93:7 FRANCIS 3:1 2:3 free 26:16,19 30:10 34:10 85:16 129:7 138:5 French 41:7 French-English 2:18 2:18,19 Friday 138:16 from 3:7,14 3:16 5:24 9:20 11:18 12:18,19 12:21,22 13:3,10,12 13:14,25 14:20,21 15:16 17:10 21:12 22:2,14,23 23:8,25 24:9 25:13 26:23 27:23 29:9 30:11 31:15,22 33:22 42:18,22 44:21,25 47:24 49:5 50:21 52:11 62:7,10,19 63:8 64:8 72:16,17 73:21 76:24 82:13 82:16,16 83:16 85:19 86:15 88:14 88:15,19 91:25 93:3 111:25 113:5 114:5 116:5 118:11 119:12 122:14 123:16 126:19 128:6,12 131:7,10 132:8,15 135:9,17 138:2 139:12,13,18 front 1:24 2:10 34:21 89:6 131:7 133:8 fronts 1:12 frustrating 127:20 FTI 2:22,22 34:17,20 fulfil 40:23 42:4 fulfilled 65:24 84:1 133:14 full 48:19 66:9 81:5 87:3 106:19,24 109:7 110:14,22 112:13 fully 14:11 17:20 48:3 49:24,24 fundamental 125:22 furnished 73:4 further 1:23 30:7,11 32:17 34:7 83:7 85:15 116:23 134:12 135:1,4,23 137:25 138:3 Ggainful 18:12 |
gap 102:24 103:9 104:25 gaps 102:8,20 Gas 23:21 Gatare 3:1 1:5,25 2:3 2:4,5,7,12,21 3:2,5 3:18 6:8 8:16 25:23 33:5 34:9,11 gave 30:18 33:7 62:25 88:4,5 105:24 gazette 4:16 68:7,8 general 15:14 33:3 78:19 79:23 83:23 83:25 84:2,7 98:8 113:20,23 114:2 136:14,15 geographical 90:20 Geology 23:17 Georgina 1:24 gesture 93:23 gestures 93:25 getting 38:19 54:12 103:13 GIBSON 2:14 Giciye 70:7 give 3:8,25 20:7 27:10 28:1 30:15 32:11 34:14,24 74:24 88:20 89:16,20 101:3 106:12 109:3 117:14,23 128:2 137:16 given 4:22 6:21 13:9 13:20 17:9 19:25 38:13 43:3 58:16 116:22 130:22 131:1 gives 25:15 26:14,17 28:10 77:12,19 80:9 giving 26:3,8 27:24 66:21 102:21 global 7:3,7 10:7 GmbH 114:9,11 go 3:13,16 6:8 8:16 14:4,12,17,21 16:7 17:3 18:5 20:24 24:16,17 25:4 26:19 27:10 32:16 34:10 34:19 43:16 46:14 47:2 48:25 52:19 60:9,20 61:24 62:2 67:2,25 68:17 69:6 69:6 72:2,8 74:1,4 85:16 90:1 99:10 100:21 101:22 102:2 110:5 121:11 137:13 138:5 goal 6:12 goes 4:20 7:19 17:24 83:14 98:10,13 going 2:25 12:8 13:1 14:6,12 15:11,12 17:15 19:13 20:22 20:24 25:24 26:2 35:3,8 54:21 60:1,2 86:10 87:11 89:16 90:14 99:1 107:22 116:23 119:12 128:21 129:12 gone 70:12 108:20 good 1:4 2:4,5,5 3:5,6 29:12 36:5,6 37:12 37:13 89:20 93:23 96:10,12,16 97:20 97:22 112:7 127:5 138:23 140:2 Governing 43:15,18 76:20 77:12 government 1:18 2:9 5:12,13,16 9:8 10:17 13:25 14:15 15:15,23 17:7 18:1 18:9,11,15,20 21:15 21:25 24:4,13 25:8 26:5,14,16 27:14,24 27:25 28:24,25 29:6 31:14 41:15,18 42:1 44:11 48:16 52:12 90:3 94:1 98:9 102:6,23 103:17,25 104:3,5,6,11,14,16 104:17,21 government's 4:18 46:24 government-owned 5:10 gradual 6:1 Graduate 60:21 grandfathered 93:10 93:12 grant 40:1,6,9 52:23 53:13 91:20 103:22 103:25 granted 53:1,5,16,19 68:11,14,23 69:1,3 69:14,16,18,22,25 70:3,7 93:11,14,18 granting 91:5,6 grateful 139:9 great 123:11 greatly 67:19 Green 3:10,21 4:5,5 GROSH 2:11 ground 13:8 18:5 33:5 72:3 125:25 126:10 grounds 33:1,7,10 72:5 74:10 95:3 group 1:15 2:4 30:17 31:19 guarantee 40:8,18,21 guaranteed 42:9 guess 95:23 guidance 96:4 HHage 2:7,7,8,8 half 35:12 97:12 half-hour 96:17 hand 10:5 11:12 12:9 25:9,10 29:22 110:6 handover 28:6 33:4 80:15,20 82:3,10,11 82:17,21 83:3,6 95:25 96:2,5 |
hands 9:8 29:6 87:17 happen 18:18 92:22 104:9 120:20 happened 16:6 120:17 137:12 happening 29:1 happens 26:8 happy 2:13 25:5 36:12 36:13 37:3,4 89:10 hard 97:5,5 126:8 harms 11:24 HARRISON 2:3 having 23:2 50:2,2 62:17 64:10 66:4 73:5 90:3 95:15 118:11 132:21 133:21 134:15 hazardous 81:10 HC 71:13 94:15 head 63:18 113:3,14 hear 34:15 35:25 37:19,21,23,24 63:11 112:16 130:23 heard 58:17 122:14 131:16 hearing 1:8 72:6 140:6 hearings 126:6 127:11 heart 97:4 heavy 58:25 held 23:1 79:12 Hello 2:5 37:22 help 20:13 86:9,11 117:8 121:2 135:7 136:18 helpful 50:14 139:4 helps 69:7 her 72:13 73:1,16 74:16,25 106:24 herrings 119:14 hide 24:25 High 71:24 73:14,14 75:19,22 94:21,24 95:3 highlight 3:17 20:9,23 30:1 98:24 102:3 106:21 115:3,5 117:13 highlighted 19:3,7 102:1 107:25 highlighting 109:21 highlights 83:25 high-profile 90:9 Hill 2:6 3:2 1:6 2:20 2:24 34:8 35:2 89:1 89:16,20 116:7 121:12,17,20,25 122:2,3,14 123:18 123:23 124:16 125:3,12 126:15,17 135:4 138:2,11,14 139:1,13,22 140:3 him 34:22,23,24 64:24 64:25 65:1 67:5 85:25 86:8 87:14 88:4,4,5,7,9,9,10,10 |
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 6]
| 88:17,20 99:3 115:1 115:15 116:16,21 118:20 125:4 126:22 134:15 historically 6:14 hold 55:1 66:22 80:10 84:23 132:17 holder 26:24 27:1,23 28:1 53:24 69:18 81:6,9,14,16 holders 81:3 96:9 holding 71:13 87:17 114:9,11,12 125:25 holds 24:6 130:20 homes 11:19 HON 1:11 honour 2:15 37:6 89:12 97:18 hoof 123:19 hour 35:12,12 97:13 hours 1:8,9 house 10:5 11:12 housekeeping 1:4,15 138:8 IIBA 62:4 ICSID 2:23,24 idea 96:16 112:7 ideas 15:19 identifiable 21:23 identified 22:4 79:14 105:3,15 identifies 103:24 identify 102:5 103:21 130:1,6 ignore 126:23 ignored 48:12 illegal 14:13 15:20 16:15,18 17:3,5 56:11 71:13 Imena 29:10,21 30:6 55:9 124:6,9,21 125:1 126:20,22 127:4 Imena's 54:25 127:9 immediate 6:19 immediately 17:5 38:12 39:17 90:22 impact 9:25 10:13 83:18 impacted 132:3 impartiality 74:25 implementation 95:9 implemented 4:8 5:11 implication 71:22 implicitly 52:2,2,7,13 52:21 54:1 import 25:10 111:12 important 18:15 95:5 139:8 impose 81:18 96:8 imposes 90:18 imposing 59:10 impression 32:20 inaccurate 33:13 91:24 |
inaction 50:2 inappropriate 133:19 Inaudible 125:4 inclined 126:7 include 27:8 included 5:13 62:6 72:24 85:5 87:17 106:24 including 10:19 31:11 59:15 83:24 84:14 84:15,16 90:8,10 106:2 108:12 income 16:23 18:13 incorporated 78:9 137:20 incorporation 76:24 77:4,13 78:3,5,10 78:22 79:2,3,4 80:1 80:9 83:22 84:11,19 85:5 110:18,25 111:8,9,17,19 112:1 113:2 incorrect 4:10 16:17 24:22 26:20 increases 6:22 15:1 indeed 7:14 29:2,4 32:24 93:25 138:21 independence 62:7,10 73:20 74:25 134:5 independent 63:1 92:1 independently 52:23 index 81:2 individual 25:2 58:15 80:3 118:8 137:2,4 individuals 10:2 13:10 15:9,19 17:19 95:19 industrial 4:23 5:23 5:24 6:25 7:15 8:3,5 38:12 39:18 90:23 industrialisation 5:5 6:3,13,18 industrialise 7:13 industries 17:15 30:20 31:1,8 industry 6:11 7:3,11 7:23 31:11 42:7,13 42:14,17,21 43:2,4 43:9 63:6,17 inevitably 96:21 inferring 108:20 inform 96:19,20 128:2 informal 80:20 information 23:2 27:16 64:8,11 82:16 84:14 88:6 106:25 110:15,17,20,22 111:5,7,16,18,21,25 112:13 113:2,5,18 119:3 129:19 130:7 130:20 informed 125:7 131:24 132:10,21 informing 129:14 infringed 58:18 inhabited 9:10 initial 8:14 136:5 initiate 55:5 56:4 initio 94:19 instances 9:13 10:4 27:23 instead 33:17,21,24 50:13,15 74:8 institution 24:8,9 107:1 institutions 23:7 28:14 instructed 1:18 63:1 instruction 125:1 133:21 134:1 instructions 42:18,22 intends 81:6 intent 97:9 100:4 intention 80:5 84:20 97:6 interest 30:18 31:1 85:13 114:8 117:21 128:3,8 129:1 130:24 131:13 132:22,24 interested 131:11 interests 72:20 intern 2:24 internal 81:21 international 1:2 2:11 2:12,13 5:2 internet 35:19 86:3 interpretation 90:16 99:19 100:1,14,19 101:2,17 136:20,21 interpreted 98:20 128:16 interpreter 2:18,18,19 2:19,20 INTERPRETERS 2:17 interpreting 99:16 interrupt 64:24 inter-shareholder 123:13 invalidate 92:14 invest 5:3 30:22 31:20 invested 8:4 15:10 investigation 85:12 investment 1:2 2:12 2:13,14 30:19,25 32:3 38:9 58:25 80:23 90:22 122:4 investors 31:8,13,15 31:16,19,22 32:2 90:9 investor's 81:25 82:5 inviolable 77:17 invitation 55:6 invite 1:25 36:11 37:2 involved 32:10 90:7 137:12 involvement 95:8 involves 80:20 involving 136:13 issue 7:17 62:23 83:22 84:11 116:23 127:21 issued 13:25 17:20 32:8 77:16,17 78:23 78:23 80:1 84:19 |
92:3 106:25 110:16 111:3 112:14 issues 62:21 123:24 134:25 issuing 13:14 iTSCi 19:10 21:18,25 22:6,11,14 23:14,25 24:3,7 IV 25:20 IZABELA 2:24 i.e 120:23 121:15 JJ 1:11 JAMES 2:22 January 22:13 33:11 33:13,24 49:4 Jean 2:19 114:24 job 16:20,22 jobs 18:17 JOHN 2:12 join 1:25 joke 125:19 Joseph 2:7,7,8,8 JR 1:11 judgment 72:3,23,23 73:7 117:25 124:19 judgments 73:19 130:3 July 110:12,16,19,24 111:3,4,4 112:14 120:10,18 121:14 124:13 125:2,5 126:11 June 1:7 1:1 Jurisdiction 1:8 jurisdictions 92:20 just 1:17 3:19 4:4 6:16 11:1,8,10 13:1,2 15:11,23 16:6,15 17:11 18:3,6 19:9 20:5,20 22:3 24:17 24:25 29:20 30:4 35:7 38:5,22 39:22 44:23 45:24 46:6 57:15,21 61:24 62:2 69:6,6,7 70:8,9 73:8 83:2 85:25 87:6,15 87:15 92:19 93:4 96:18 100:6,25 105:15 108:19,19 109:6 111:4 112:9 116:3 120:11 126:18 127:8 131:16,23 132:1,19 133:17,24 135:6,23 139:4,20 140:1 Justice 2:15,16 justifiable 74:24 KKABIBI 2:9 Kamanzi 47:25 49:5 Kaplan 1:22 1:17 34:16,19 35:17,22 36:2 138:19,21,24 139:3,17 keep 16:16 50:15 keeping 50:1 keeps 24:3 kept 21:24 key 90:14 KG 1:11 kind 11:20 28:5 93:24 133:1 Kinyarwandan-Eng... 2:19,20 knew 15:10 16:14,15 127:11 know 8:19 18:22 20:10 22:20 23:24 24:12 25:21,25 28:7 34:2 50:4 54:2 58:17 86:1 96:8,13 110:2 119:8 130:21 137:12,25 139:3 knowing 15:15 130:18 130:20 132:15 knowledge 42:7,16 43:1,3,8 64:6,9,13 64:16,20 72:17 75:16 known 127:25 knows 109:23 Llabelled 45:20 46:1,7 46:9 labour 12:17,19 14:21 14:25 93:1 lack 58:23 119:4 129:15 130:8 134:5 laid 15:16 land 9:5,13 14:24 15:17 16:25 23:19 language 20:24 22:4 27:16 44:21,25 78:18 91:13,14 101:25 large 4:19,22 9:4 largely 6:11 7:12 larger 5:11 8:6 large-scale 6:25 7:15 7:18 8:2,9 9:7 83:1 last 7:21 8:12 10:8 27:18 29:20 30:1 31:18 32:13 86:17 86:18 87:14 100:11 101:22 105:11 107:2,21 111:1 118:15,16 119:25 127:25 lasted 13:17 late 75:15 lately 136:3 later 33:24 41:4 43:11 138:25 139:19 lawful 16:11,12 18:19 lawfully 77:7 laws 59:8,14 104:19 lawyer 33:19 62:20,21 90:2 128:6,6 130:14 131:1 132:12,13 lead 23:20 24:8 |
leads 16:18 least 14:1 19:15 20:14 22:21 23:9 106:20 128:17 130:16 leave 15:11 28:2,24 81:6 83:15 102:1 139:25 leaving 27:25 led 4:19 10:20 left 53:25 101:24 109:21 111:13 114:23,23 139:22 left-hand 111:20 legal 57:8,10,11,12 58:13 59:7 60:22 62:7,11,21 71:17 84:18 90:8 92:16 94:10 legality 71:5 LegalWise 60:18 legislation 92:24 93:12,15 96:4,14 legislations 7:17 92:22 legislator 77:21 80:5,6 84:21,22,24 less 26:18 32:3 87:3 let 8:18 12:14 17:13 19:3 23:10 59:13 67:5,8 86:1 89:20 117:23 125:10 letter 29:9,17,21 30:1 47:24 48:2,11,16,17 49:4 50:21 85:11 110:10 114:5 115:4 115:22 119:10 letters 58:4 letting 54:2 let's 1:25 liability 132:4 liable 115:8,12,16 116:10,15 licence 10:9,17 26:24 26:25,25 27:2,10,23 27:25 28:1,2 52:10 52:11,13 53:14,16 53:17,24 59:20 68:14,23 69:14,16 69:18,19 70:7 81:5 83:3 90:17 92:1 102:7,9,9 103:25 105:4,12 licences 12:7 13:6 19:22 32:8 51:9 52:6 53:1,5,13,20 64:3 68:11 69:3,5 69:11,21,25 70:3 81:4 91:22,24,25 92:2 93:14,21 94:4 96:1 102:13,17 104:23 105:9,10,16 license 104:5 licensed 12:14,15 14:9 14:11 17:20 licensee 26:14,14 28:24 licensees 21:13 22:21 licenses 42:9 52:1,22 |
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 7]
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87:13 94:11 110:2 119:10 120:11 121:4 136:2 looking 20:11 25:25 30:21 51:3 85:21 86:13 87:8 117:3 133:11,12,13 loop 1:17 loose 26:15 LORD 1:11 lost 16:8,10,20 18:17 18:18 28:1 lot 24:19 31:1 38:19 LOUTFI 2:23 low 15:2 LTD 110:24 LUCY 2:8 lying 33:17 Mmade 2:21 13:2 15:8 19:11 24:12 37:16 48:18 51:11 53:25 54:4 57:25 58:2,25 59:17,18 61:10,14 61:21,21 62:1 66:5 71:1 75:9,14,16,18 75:24 78:15 82:4 84:24 85:12 87:13 87:18 91:22 96:12 99:22 101:17 107:2 116:13,19 119:9 122:5 129:20,24 134:6,24 mainly 96:9 maintain 81:16 majority 114:15 make 1:17 3:19 18:12 20:10,20 25:25 32:3 37:3 41:23 43:6 47:21 54:11 55:14 55:19 56:21 82:9,20 84:22 92:19 97:10 99:12 100:12,15 110:9 113:22 138:15 makes 9:5,13 92:6 100:11,19 making 3:18 34:1 49:7 50:3 62:6,9 90:19 94:6 96:10 99:16 104:1,7 112:21 116:16 118:25 120:18 129:5,22 132:22 managing 60:17 94:15 107:6,17 108:13,16 113:19 manner 127:6 manufacturing 5:13 many 8:2 10:18 12:21 32:6,8,8 45:17 59:8 market 4:20 6:15 7:4 7:8 17:17,24 Marshal 107:3 Marshall 2:4 30:23 32:22 33:12,17,19 64:22,24 71:4,9,21 88:15,15,16 94:15 94:16 108:13 119:19 121:15,17 121:22 Marshall's 32:23 115:25 mastered 1:23 material 125:16 130:18,25 matter 1:1 15:23 16:15 27:20 76:5 88:16 93:8 136:15 136:19,21,22,24 matters 3:15 36:10 84:9 90:7 118:3 124:10 may 10:7 12:19 18:4 19:1 28:15 29:9,15 35:20,22 44:3 62:1 69:18 74:20,23 77:23 83:11 86:5 97:20,25 107:24 114:5 115:14 117:1 117:3,21 121:2,9 123:20 125:4 128:3 130:25 132:2,3 135:22 Maybe 16:4 20:13 MCCARTHY 2:7 3:5 35:3 37:11,19,23,24 38:2,19,22 39:1 54:12,15,19,20 63:10 67:8,24 83:7 83:20 McGowan 1:24 mean 5:9 10:15 12:2 19:17,21 24:24,24 28:5 66:12 99:25 100:7 130:12 meanings 41:8 means 4:6 6:13 16:21 16:22 28:22 92:10 meant 40:12,12 122:8 mechanism 137:22 medium-scale 7:18 meet 28:12 50:23 55:15 meeting 136:14,15 member 42:12,14,17 42:21 members 4:7 35:22 93:2 memorandum 136:1,9 Memorial 130:2 memory 13:18 20:14 88:18 99:13 mention 33:10 48:20 49:11 mentioned 45:2,17 74:15 80:21 83:17 84:4,8 mentioning 6:23 mentions 77:12 Merits 1:8 met 27:3 66:8 77:14 78:21 79:25 88:15 |
metals 63:22 method 12:2 methods 11:16 12:1 12:17,24 MICHAEL 2:15 MICHELLE 2:7 Middle 63:20 64:1 might 21:8 27:23 31:23 54:13 116:15 138:15 Mike 20:17 21:1 99:2 99:4,14 Mike's 99:19 mind 25:16 58:25 96:24 119:9 mine 10:21 12:18,20 12:25 14:12 16:1,8 16:21,22 17:9 18:6 19:19,19 20:2 21:22 22:4,4 24:2,20 25:13,14 53:17 mined 19:13,24,25 20:2 21:3 mineral 4:18,21 5:21 13:15 19:24 22:16 68:23 69:14,16 81:6 minerals 6:15 11:13 11:21 12:1,11 13:15 13:21 14:5,12,16 15:25 16:1,8,12 17:11,14,17,20,23 18:6,19 19:12,25 20:2 21:3,21 23:18 miners 9:4,13 10:1 11:5,9,12 12:4,21 13:1,2,4,11 14:1,17 15:8 16:1,7 17:8 18:5,19,21 mines 12:16 13:11 14:21 15:6 21:14 22:23 102:6 mine-by-mine 24:10 24:15,23 MINIJUST 2:9 minimum 58:16,24 MINIRENA 22:24 23:3 minister 13:14,24 29:10,21 30:6 47:25 49:5 50:21 54:25 55:9 81:10,15 92:7 92:11 135:14,19 ministry 3:24 4:7 30:10 50:6 58:2,3 82:13 minority 114:19 minute 63:9 minutes 54:14 84:15 84:15,16 misconduct 132:23 misinterpreted 85:2 misinterprets 79:17 mispronounce 99:3 mispronounced 114:25 mispronouncing 115:1 missed 118:15 misstated 115:11 mix 13:10 Mm-hm 56:17 68:21 70:15,17 101:7 107:8 moment 3:20 8:22 35:5 36:21 54:13 63:4 69:8 89:17 122:9 125:12 money 12:11 17:12 32:4 132:8 month 22:11 months 33:24 61:12 61:16 103:16 month/day/year 33:21 more 19:12 21:10 24:19 26:18 31:23 48:5 50:9 59:23 88:19 127:9 134:24 moreover 25:1,12 morning 1:4 2:4,5 97:22 Morris 2:3,3 most 92:20 motion 132:5 133:18 133:22 move 41:5 60:2 80:14 Mozambique 63:20 Mruskovicova 71:5,8 71:21 94:17 much 1:13 8:6 19:24 28:23 32:3 34:9 85:16 87:3 96:15 99:11 123:23 124:11 128:13 138:4 140:3 MUGENZI 2:19 Mugisha 3:8,9 56:3,7 56:10 57:16 78:1,15 78:25 79:9,17,19 80:4 83:19 85:1 88:9 89:1,4,7,9,12 89:16,19,23,25 90:1 97:8,20,23 98:2 99:10 109:22,25 112:11 113:13 114:5 117:2,3,14 124:18 127:18,23 128:6,24 129:10,13 132:25 133:20 134:6 135:12 138:6 Mugisha's 51:23 52:8 55:22 56:1,15 57:5 57:20 58:7 69:23 77:23,24 79:8 122:14 127:24 128:14 133:13 MUKARUTABANA 2:20 multinational 60:13 must 10:16 16:22 43:24 44:20 46:7 75:9 120:16 128:15 139:1 mute 63:10 myself 131:9 133:4,15 |
Nname 20:15 110:23 112:20,23 129:21 NARCISSE 2:9 narrow 95:10 natural 23:11,13,19 50:6 58:3 110:23 124:18 nature 8:1 126:9 near 12:25 13:11 necessarily 57:9,9 58:10,10 59:9 necessary 1:7,9 99:11 111:18 necessity 25:8 need 18:22 57:10 58:10,11 86:5,7 98:17 needed 12:10 16:1 28:18 133:1 NEEDLE 2:8 negative 129:13 negotiate 48:21 55:6 negotiating 63:24 negotiation 64:3 negotiations 55:1,6 56:5 93:21 neither 24:24 45:9 Nelly 85:11 network 21:20 never 4:8,15 25:1,8 33:3 62:23 75:14 96:6 128:23 131:12 new 54:13 93:21 next 9:18 13:5 17:2 39:16 90:1,13 91:17 93:6 94:9,20 95:23 139:11 NICOLE 2:13 nimble 7:5 Nkurunziza 32:25 33:2 nobody 118:17 none 69:25 70:3 98:21 102:17 125:6 Nonetheless 4:12 non-disclosure 133:6 134:11 non-occurrence 46:15 46:18 non-payment 117:6 noon 1:3 normal 50:12,12 64:25 82:25 normally 36:8 note 86:14 95:5,24 103:8 127:8 noted 91:11,21 92:12 92:17 93:17 94:12 nothing 1:6 2:17 30:11 37:8 45:19 46:8,11 59:2,5,22 73:7 76:15 131:9 134:12,24 notice 28:1 30:6,9 73:10 128:2 129:4 noticed 33:17 139:8 |
Anne-Marie Stallard
for Trevor McGowan
As amended
by the Parties
[Page 8]
| notification 26:13 27:8,21,22 28:10,19 29:1,5 137:11 |
105:16 off 15:16 35:21 85:24 113:3,14 office 2:11,12,13,14 78:19 83:23,24 84:2 84:14 113:20 offices 21:25,25 82:15 official 4:16 15:15 27:10 34:2 90:3 107:20 officials 58:2 offline 86:6 often 10:8 11:22 14:22 okay 2:1 4:4 13:1,13 20:20 23:22 32:18 36:22,25 38:2 45:9 51:14 62:14,15 69:9 69:9 70:25 72:12 77:15 86:2,7 89:2 89:23 108:5 118:23 OLIVIER 3:4 36:4 once 16:8 39:6,11 42:8 78:20,23 79:23,24 84:3,5,17 87:16 116:6 136:24 137:20 one 1:14 3:11 5:10 6:18 14:10 20:8 23:18 24:16,16,20 25:9,21 30:14 32:13 32:17 33:2,5,7,10 36:21 39:6,11 42:4 47:8 48:18 49:25 63:21 72:19 74:7 87:9,9,15 97:1 99:11,14 103:25 104:6,9 109:6 114:2 114:5 115:18 119:20 123:10 127:7 129:3,3 135:6 137:16 138:11 ones 8:9 132:1 one-month 105:4 only 7:16 10:17 11:6 12:13 17:14,20 25:16 33:5 48:21 53:1,2,5,13 66:11 74:7,23 75:18 79:3 93:20 95:8 99:11 101:19 103:25 109:1 114:1 118:9 121:23 127:25 137:9 139:6 open 3:9 87:9 125:15 operate 10:9,18 12:16 14:10 21:19 123:15 operated 12:6 13:6 15:10 23:15 operating 14:9 17:22 18:14 19:22 22:12 27:2 54:1 83:1 operation 9:20 17:21 operations 9:11 10:13 28:11 52:24 53:2,6 53:14,18,22 54:3 operative 70:10 operator 10:16 18:20 |
37:15 39:3 41:6,21 42:6 43:16 44:7,9 46:14 47:23 48:25 50:13,17,20 54:9,23 55:22 57:21 60:4,9 61:25 65:10 67:1,24 68:16 70:6 71:23 75:4 80:25 operators 7:2,15,15 7:18,19 8:2,2,3,5,8 8:9 10:11,21 opine 67:22 opining 134:22 opinion 65:7 93:13,18 98:7 102:7,21 103:3 103:10 109:3 128:22 130:25 136:24 opinions 65:4 opportunities 15:17 opportunity 3:8 13:20 28:11 56:14 opposed 33:8 34:5 87:4,16 123:13 opposing 72:13 73:1 73:16 order 4:22 44:4 45:7 45:10 91:11 138:19 orders 138:12 ordinary 34:24 orient 20:5 original 8:16 42:10 105:12 112:22 122:19 123:5 other 5:14 14:23 17:11 19:16,25 20:2 20:8 23:5,18 25:10 25:14 27:21 28:3,14 28:18 29:1 31:16 39:18 40:22 42:15 45:17 47:8 48:12 62:21 76:13,13 77:9 83:24 84:22 88:8,22 98:16 102:15 104:10 105:8,17 109:5 111:24 114:19 123:10 130:12 139:16 others 9:17,23 31:22 32:2 otherwise 104:6 133:20 ought 133:9 out 1:12,19 5:16 6:20 10:4 11:12 12:8 14:4 15:20 16:7 17:16 18:5 19:13 25:5 28:19 38:3,23 46:15 53:18 60:10 67:16 75:5 80:19 82:21 86:5 87:2 88:9 89:11 96:4 104:22 106:23 119:20 129:12 131:3 outnumber 8:9 outside 60:13 |
| notified 72:5,10 94:24 | ||
| notify 27:24 81:9 | ||
| notwithstanding 34:25 |
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| Nowhere 79:11 | ||
| NRD's 17:8 19:21 41:23 47:13,17 48:9 48:13 49:22 50:11 50:25 51:4,17 52:13 55:1,10 56:22 57:13 65:17,18 69:4 71:24 74:2 102:9 |
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| Nsengiyuma 114:25 | ||
| nuance 126:24 | ||
| null 71:13 | ||
| nullified 122:17 | ||
| nullifying 108:10 | ||
| number 4:19 8:7 30:20 31:8 32:11,11 33:1 90:7 93:17 98:4 106:6 113:7 121:9 |
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| numbers 19:11 21:10 25:15,16 |
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| O | ||
| object 47:13 48:9 49:22 51:4,12,14 |
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| objected 48:17 50:10 72:19 |
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| objecting 73:10,22,25 | ||
| objection 75:16 85:10 134:4,5 |
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| obligated 39:17 | ||
| obligation 22:22 46:19 46:24 91:20 93:20 113:24 114:1 130:15 132:13 |
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| obligations 23:4 28:12 28:20 29:3 38:4 39:21,25 40:4,14,22 40:23,25 41:24 42:1 42:4 44:12 50:23 51:1 59:11 65:25 81:18 90:19 91:7 96:9,13 133:14 134:18 |
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| obliged 81:16 118:9 | ||
| obliges 113:4 | ||
| OBSERVERS 2:10 | ||
| obtain 5:23 10:11,16 12:10 13:21 14:5,6 16:8 |
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| obtained 42:8 | ||
| obtaining 30:19 | ||
| obvious 118:12,17 124:8 126:20 |
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| obviously 25:5 103:1 119:8 122:23 |
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| occasioned 96:12 | ||
| occupy 26:17,19 28:25 30:10 |
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| occur 43:24 44:11,20 | ||
| October 61:8 93:18 | ||
| outstanding 28:12 29:3 over 6:2,18,23 10:8 21:4 29:22 30:20 31:16 90:2 100:7,21 117:18 119:2 127:17 128:3 129:15 130:9 131:6 132:18 overnight 6:3 overview 90:14 owed 39:7,12 own 9:15 23:3 24:20 40:10 66:3 87:22 88:16 101:25 owned 114:12 owners 84:12 ownership 76:6 77:5 79:13 80:12 85:4,4 137:8 |
partly 49:25 partner 60:17 90:6 party 2:10 39:6,7,7,11 39:12,12 40:22 47:8 103:25 104:6 121:18 122:1,5 132:14 137:6 party's 47:9 past 70:12 Pause 4:2 8:20 19:5 32:15 34:13 35:15 38:23 43:12 44:9 50:16 63:6 86:4 89:2 91:17 94:20 101:10,25 102:4 110:3 112:10 115:2 115:13 117:11 pay 18:21 31:23,23 35:8 paying 35:10 payment 117:5 PC 1:11 PDF 3:13 43:16 55:24 68:1 87:1 peace 1:11 pending 125:5,6 people 9:18 11:15,18 11:25 12:3,8,14 13:3,3 14:4,15 15:15,16 16:16,18 16:20,24 18:8,11 28:7 30:21,22 122:8 124:7 percentage 114:8 perfectly 127:3 perform 39:18,25 40:4 40:25 44:12 performance 40:11,20 43:25 44:20 47:9,10 47:13,17 48:9,13,17 48:22 49:8,23 50:11 51:1,5,17 91:7 performed 40:13,21 40:24 performing 51:10 performs 39:6,11 perhaps 15:13 20:13 87:1 112:7 123:25 130:21 perimeters 90:20 period 6:19,23 13:13 13:24 16:9 19:25 20:1 22:8 26:25 27:11 28:17 29:5 30:9,20 32:7 53:9 60:15 68:25 102:24 103:9 104:25 106:18 permit 4:23 5:23 68:23 permits 103:21 permitted 124:24 130:23 perpetuating 127:20 person 34:5 58:15 129:21 personal 115:25 |
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| P | ||
| Pact 13:14 page 3:9,13 20:22,23 25:20,22 30:2 43:16 55:23 60:5,9,20 61:24 62:2 63:18 67:2 68:1,18 74:19 81:1,21 83:14,15,16 83:16 86:15,17,19 86:25 87:3,4,6,14 87:15 99:9 101:8,10 101:23 106:5 108:7 109:13 110:6 113:10 pages 70:11 panel 1:18 paper 3:10,21 4:5,6 79:20 paragraphs 3:16 19:16 25:24 26:2,7 54:10,11,24 55:18 55:23 56:21 57:4,17 57:23 76:18 77:24 80:17,19 82:7 paralegal 2:23 pardon 42:20 61:13 85:24 part 6:12 9:4 19:15 31:18 60:7 67:10,11 98:6 115:20 118:15 118:16 128:14 participate 67:15 participating 5:20 particular 19:24 46:6 116:25 124:5 particularly 9:7 10:15 63:23 particulars 121:13 parties 44:4 45:7,9,13 45:22 46:4,12 62:7 62:10 75:2 95:18 100:20 101:17 108:25 109:6,7 136:17,19 137:11 137:14 138:24 139:5,23,24 |
127:24 Petroleum 23:21 PHILLIPS 1:11 phrased 125:21 phrasing 129:12 pick 16:5 123:20 127:15 128:20 picture 87:2 place 5:25 8:24 9:1 16:2 18:2 22:6 31:15 32:4 68:13 73:11 75:25 82:12 82:18 110:19 placed 32:1 plain 44:21,25 78:18 79:6 91:15 134:7 plainly 124:18 plaintiffs 99:18 plan 38:8,9,9 90:21,21 90:22 planning 39:19 plausible 33:16,25 players 4:19 please 2:14 4:1 8:20 29:11,14 30:1 31:18 32:16,17 34:19 35:15 36:7,14 37:5 39:2,9 42:6 43:14 44:9 46:14 47:3,6 47:23 49:2,13 50:14 50:16,18 51:21,21 52:19 53:4,7 54:23 55:23 56:2,21 57:20 57:22 59:4 60:4,5,9 60:20 61:25 63:13 64:14 65:10,16,21 66:18 67:2,9,24 68:16 70:8,9,10 72:2,8 74:1,4,18,19 74:21 75:4,20 76:1 76:18,19 77:23,25 80:17,18 81:1,13,21 82:7,7 83:17 88:24 89:5,10 90:1,13 91:17 98:24 99:9 109:25 113:7,11 117:13 127:8 129:21 130:1,6 135:2,10,25 pm 2:2,19 3:3 36:3 37:10 54:16,18 83:9 85:18 89:3,24 97:14 97:15,16 135:8 140:5 point 13:21 16:11 24:12 25:14 30:14 42:18,22 54:4 77:10 112:20 124:2,4,10 124:13 125:8,8,22 127:9,15,16 129:5 130:7,9 133:1,1,16 134:9,15,16,24 points 3:16 11:7 84:5 123:20 policy 3:22,22,24 4:6 4:8,11,13,17 5:1,10 5:12,15,19 6:17 7:6 |
[Page 9]
| 7:13,16,20 poor 31:4 130:4 port 63:25 portion 15:8 22:8 24:20 posed 97:7 position 43:6 115:17 115:19 117:20 122:7 124:23 125:17,20 126:11 126:13 127:9,11 129:3 133:8,24 134:17,20 139:1 positions 108:25 127:5 132:6 positive 41:12 42:2 44:10,15 45:5 46:22 98:18 135:13 positively 46:24 91:4 possess 75:1 possession 26:17 possible 44:8 129:2 134:21 137:18 post-hearing 138:9 139:18 potential 4:21 128:17 potentially 81:10 134:18 power 83:21 113:15 practical 7:7 27:20 practice 12:13 43:4 47:8 50:12 60:22 80:21 82:11,25 83:4 83:6 93:22 practices 6:25,25 11:20 practise 60:25 61:2 practitioner 90:8 96:6 precedence 101:20 preceding 86:19 precisely 124:13 126:8 predecessor 32:25 preferable 139:12 preliminary 99:22 premise 100:25 premised 100:11 preparation 66:10,16 66:19,23 67:4,14,15 93:21 prepared 48:21 61:22 86:21 88:1 preparing 61:18 66:14 66:15 69:22 prescribed 50:6 51:14 presence 7:1 27:12 present 8:11 presentation 3:9 48:6 89:17,20,25 presented 104:11 120:21 134:7 136:22 press 116:23 presumably 130:15 prevent 13:24 previous 62:2 108:5 previously 9:8 price 117:5,6 |
prima 125:16 primarily 5:4,25 principle 57:9 59:7 102:5,7,22 103:2,3 103:11,15,18,21 105:2,8,15 106:11 106:13 107:11,17 108:2,8,16,23 109:8 109:11 115:11 116:6 117:19 principles 102:15,18 104:15 printed 87:2,4 printing 87:20 prints 87:5 prior 4:5 21:16 22:1 48:15 53:9 60:12 69:14,16 102:17 108:14,24,24 132:11 private 5:16,20 9:14 77:20 81:23 90:8 privatisation 5:5,21 6:1 privatise 5:10,12,15 privatised 9:9 32:6,9 privatize 4:18 privileged 90:11 privy 120:20 129:18 129:24 137:10 problem 35:16 37:25 131:21 133:7 problems 1:23 procedural 3:15 138:12 procedure 28:4 74:6 75:5 92:25 94:22 procedures 27:21 28:5 28:6 57:11 58:13 72:13,25 73:6,12,15 73:24 75:17 95:20 118:10 proceed 35:11 38:12 88:24 90:22 126:7 126:10 proceeded 121:12 127:6 proceeding 126:2,4 proceedings 61:15 63:2 66:11 94:24,25 95:7 137:13 process 6:1 26:4,6,12 26:20,23,23,23 27:4 50:3 54:8,22 55:2,7 55:10,16,20 56:5,8 56:22 57:1,8,8 58:1 58:9,12,16,24 59:3 59:6,7,11,14 65:17 80:20 82:10,21 83:6 92:19,21 93:5 95:25 processes 96:5 produced 1:23 21:21 24:19 120:10 134:10 producing 23:25 production 6:22 8:5 19:11,19 21:14 22:4 |
22:17,23 24:1,23 25:12 88:3 productive 5:16 professional 132:23 professionalisation 6:12 profitable 137:24 progress 5:3 6:17 90:23,25 progressed 24:5 prohibition 31:15,17 prohibits 81:24 proper 83:3 properly 28:12 43:6 property 58:14,17 77:20,20 80:2,8,8 81:23,25 84:23 103:17 104:6,17 proposal 1:11 proposals 104:11 propose 80:14 proposed 3:22 48:20 proposition 127:1 propositions 47:21 55:19 82:9,20 protecting 131:3 protection 38:9 80:23 82:4 protects 81:23 protocol 28:6 provide 18:17 38:8,16 62:9,13,13 81:4 90:23,24 92:13,23 92:25 93:15 113:17 119:6 129:21,24 provided 21:12 22:19 23:6,10,23 50:4 64:8,18,20 66:7 67:20 68:2,5,22 69:17 72:14,18 73:1 73:16 79:11 82:13 82:16 87:12 91:23 93:11 95:11,25 103:6,9 111:7,17,25 113:5 119:7 129:19 130:11 provides 69:13 74:22 75:8 92:2 95:17 111:21 133:10 providing 90:20 129:4 provision 52:5,16 54:5 81:23 91:3 98:16 99:19 100:2 113:12 provisions 47:20 55:18 56:24 60:1 68:19 70:10 76:12 77:9 79:14 82:2,8 82:19 public 93:2 95:18 102:6 104:15,22 118:8 137:2,4 publication 24:23 68:7 publicly 24:17 104:1,7 publish 25:2 published 4:15 68:9 punished 14:13 |
| purely 66:15 purport 87:21 129:14 purports 123:9 128:24 purpose 11:6 116:20 127:17 129:18 purposes 111:19 128:21 pursuant 46:18 93:14 120:12 pursue 134:2 137:24 put 12:15 31:21 32:4 42:25 57:19 63:11 63:13 75:21 83:19 98:3 99:11 101:24 104:22 108:6 119:23 124:3 putting 58:6 70:13 72:22 136:6 proceed 39:17 |
railway 63:25 rainy 15:3 raise 101:24 123:2 133:18,22 134:16 raised 1:14 62:20 124:14 128:19 132:5 133:21 134:4 134:9,9,13 raising 139:20 rate 124:20 rather 7:6 12:1,3 35:4 45:12 94:7 123:18 127:8 RDB 24:9 30:17 76:3 76:24 107:1 108:11 111:3 RDB's 106:23 108:17 109:5 110:14,21 112:12 re 3:15 reach 86:5 88:9 read 2:14 3:18,25 4:3 4:3 8:18,21 13:9 19:3,6 25:23 29:20 29:24 30:4 56:6,9 56:13 67:5 70:2 83:19 87:25 89:11 101:5,25 107:5 120:2 reader 124:20 reading 101:11 108:19 ready 19:5 34:14 110:1 real 85:25 realise 6:22 realities 7:7 really 26:13 133:2 136:23 reason 62:15 80:6 84:24 109:3 116:4 118:6 125:20 133:25 reasonable 22:25 23:6 32:5 reasonableness 124:5 reasonably 124:22 reasoning 109:5 reasons 59:19,20 74:25 92:13 137:10 reasserting 128:3 recall 13:17,20 26:3,8 29:18 31:6 32:10,19 32:23 88:13 116:7 receive 28:7 40:9,19 received 23:7 33:3 60:21 62:18 133:22 receives 24:4.5 recognise 20:11 recognised 5:2 7:16 12:13 recognition 6:17 7:10 recollecting 115:24 recollection 13:18,22 32:15 115:14,18 116:2,8,12 record 48:13 60:10 63:5,14 108:11,12 |
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| Q | ||
| QC 1:12 2:6 qualification 129:7 qualifications 75:1 qualified 119:15 qualify 53:7 60:25 quarry 68:23 69:14,16 question 1:14 4:5 8:19 10:25 11:2 14:18 16:3 18:10,24 19:5 20:19,25 22:18 25:16 31:3,4 33:7 34:5 44:23 45:24 50:25 52:15 53:4,8 54:7 57:15 59:4 63:11 64:15 66:18 70:3 73:3 85:20 86:11 87:23 96:25 97:7 100:6,9,12,21 100:25 105:14 110:4 111:11 112:6 112:8 113:21 116:22 117:2 128:23 129:17 130:4 133:5 135:12 questioned 33:1 questioning 11:7 35:8 121:2 questions 3:7,11,12,13 3:14 3:1 15:13 17:25 18:2 20:8 26:2 34:7 37:14 54:21 64:25 83:8 85:15,19 88:10 89:22 97:9 127:18 135:1,5,6,9 138:1,3 quick 6:22 85:25 quickly 7:4 18:15,18 18:20 quite 16:4 32:11 82:25 116:16 128:23 129:2 131:4 quo 120:23 quote 116:3 |
111:24 120:19,22 127:13,23 133:21 139:9 recorded 75:18,22 records 72:3 74:5 76:5 79:12.24 81:15 110:20 111:21 recourse 79:19 93:3 red 119:13 reduces 15:3 refer 11:19 12:23 13:1 22:6 80:22 107:12 107:14,14,16,17 108:23 reference 6:16 7:5 8:23 10:15 33:21 41:23 49:14,19 105:1 107:16 108:12 referenced 3:11 4:4 33:11 109:13 referencing 11:6 102:20 referred 10:8 75:11 99:17 110:11 136:16 referring 8:7 10:6,10 10:22 11:3,10,14 21:8 39:21 99:4 109:23 113:12 refers 3:21 8:25 100:4 reflect 22:16 reflected 57:11 58:12 58:13 59:14 Reform 90:11 refresh 32:14 refusal 55:15 regard 45:10 51:15 82:4 117:20 139:6 regarding 59:3 98:7 100:12 109:6 138:25 regardless 11:17 26:24 40:10,19 100:10 131:2 regards 48:5 register 81:5 84:8,9,10 110:17 125:14 registered 113:16,22 registrar 78:19 79:12 79:23 83:23,25 84:2 84:7 113:4,15,20,23 114:1 120:14,18,22 125:4,10,14 126:12 registrar's 76:5 121:4 124:15 registration 84:6 106:19,24 110:15 110:22 112:13 121:14 registry 110:20 112:22 113:5,15 120:10,15 126:13 regular 22:23 regulation 96:4 regulations 27:4 80:21 regulator 51:9 53:23 |
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| race 31:4 |
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| regulatory 60:12 63:19,23 reiterate 133:15 rejected 59:25 74:10 relate 29:13 related 115:24 118:3 131:25 132:2 relates 35:1 36:10 69:10 relating 82:2 84:9 114:8 relation 55:20 66:11 77:10 78:1 82:10 117:6 123:8 124:4 133:6,10 138:1 relationship 11:4 27:13 28:9,15 33:4 74:16 relevant 56:11 68:13 relied 64:18 130:3 relies 128:13 rely 109:12 128:24 129:14 130:7 relying 110:6 129:22 129:23 rem 123:15 remain 68:25 remained 53:2,6,20 65:14,19 126:12 127:22 remains 6:11 7:11 140:1 remember 31:2 remind 133:17.25 remove 81:6 rendered 94:19 renewal 69:17 70:1,4 70:16 91:23 93:16 renewed 69:15 repeal 68:2 repeat 16:3 31:17 36:11,14 37:5 39:9 49:13 53:4 57:15 59:4,13 64:14,14 66:18 99:25 119:22 reply 50:7 report 22:22 23:4 24:14 41:16 48:6 50:22 55:22 56:1,15 57:5 62:19 77:23,25 90:15 97:23,25 98:10,13 101:21 102:2 103:21,24 107:24 110:15 117:12 119:7 122:16 129:9,25 reported 19:19 21:13 21:16 22:20 24:7,17 reporting 23:15 reports 13:9 38:16 86:16 90:23,25 97:10 113:23 represent 61:6 representation 112:25 115:21 118:25 127:24 representative 2:15 |
99:15 107:4 108:14 128:1 represented 114:15 representing 90:9 119:11 121:20 128:25 132:14 represents 2:24 89:21 Republic 95:16 118:7 120:13 request 28:17 88:13 108:5 requested 29:2 55:10 62:12 119:6 requesting 50:22 56:10 85:12 requests 105:9 require 25:2,3 45:25 75:20 93:24 required 27:21 38:8 38:11,15 41:9,12,15 44:12 56:11 73:24 75:17 79:20,22 104:21 113:17 125:1,9 126:22 requirement 5:19 10:10 17:18 25:1 46:6,22 58:13 84:18 94:4,7 requirements 25:6 57:11,12 66:8 76:25 77:15,18 78:4,21,22 79:25 83:24,25 95:1 111:19 requires 28:10 45:19 46:3,8,12 81:3,9,13 113:22 research 39:18 90:24 reserves 38:16 90:25 resolution 137:21 resolve 97:1 136:15 resolved 122:10 133:2 resources 23:11,13,20 50:7 58:3 110:23 respect 5:18 12:23 44:12 59:11 69:4 70:7 73:19,19 74:2 78:5 94:10 118:9 134:25 respective 109:7 respond 7:7 56:14 62:22 responded 54:7 62:20 Respondent 1:19 2:5 35:4 99:15 128:8,11 Respondent's 114:24 responding 7:3 62:19 69:23 responds 78:1 response 50:9 58:19 58:21 59:18 130:14 responsibility 15:22 130:17,17 responsible 99:15 rest 11:7 67:6 86:15 restrictions 31:21,25 32:1 result 47:17 86:25 |
108:2 122:11,18 123:12,15 133:22 resulted 120:18 132:8 return 25:19 26:5 returns 113:25 reversion 102:23 106:10,11 107:11 107:18,22 108:2,8 108:16,23 109:8,11 122:18 revert 102:6 120:24 reverted 71:17,20 95:21 103:17,23 122:24 reverting 107:19 review 65:17,23 69:21 92:17 reviewed 64:9 65:6 72:17 73:5,5,9,21 73:21 90:18 revisions 87:12 revive 132:11 revoked 94:1 re-application 65:18 94:7 re-apply 94:4 Re-direct 3:6 83:10 re-examination 34:8 135:5 rhetorical 125:18,19 Richard 2:6 3:8 62:19 69:23 79:24 89:4 RIEPA 30:16 32:22 33:3,13 right 1:13,19,25 9:17 13:5 15:12 16:16 18:1,21 20:14,20 28:16 32:4 34:4 38:1 40:15 43:13 47:4 48:19 52:23 53:1,1,5,5,13,14,17 53:21 57:13 58:17 58:17,18 67:13 69:17,25 70:4,16 73:18 77:16,20,20 79:6 80:2,7,8,9 84:22,23 86:1 87:5 89:18 93:16 105:18 106:1,4 107:16 108:4 109:16 112:19 114:10 117:1 124:12 132:23 134:21 135:15,16,20 140:1 rights 10:21 12:16 16:8 28:2 55:2,10 56:22 57:1 81:23 91:25 right-hand 49:4 68:8 rise 74:24 137:16 risk 127:16 RM-001 43:12,14 99:8 101:10 RM-002 74:18 RM-007 83:11 109:20 RNRA 23:10,11,15,16 23:24,24 |
| ROBERT 2:19 RODERICK 2:4 role 61:7 66:11,13,15 96:18 121:21 131:2 roll 61:11,16 room 34:16,23 38:20 ROSE-MARIE 2:20 ROSSI 2:18 RT 1:11 rudimentary 11:22 ruled 72:9 rules 1:1 26:12 62:4 ruling 71:22 131:25 132:3 rulings 95:17 136:24 Rwamasirabo 3:4 34:14 36:4,5,6,13 36:16,18,20,22,25 37:4,6,12,19,22 38:3 40:17 41:3 44:19 45:13,24 52:15 54:8,21 57:15 58:6,22 63:10 70:13 70:23 72:22 73:13 80:13 82:19 83:7,17 85:7,20 86:14 87:12 Rwamasirabo's 39:1 41:22 47:2,5 49:2 51:20 54:9,23 65:10 76:1,17 80:16 82:6 Rwanda 1:18 2:9,9 9:1,24 10:19 17:7 17:18 18:11 19:13 19:13 21:19 23:11 23:21 24:13 29:19 30:19 31:9,14,20 33:20 37:16 43:10 47:13 48:2,9,20 49:22 50:25 51:4,12 52:1 56:4,8,22 57:6 58:8 60:13,18 61:1 61:7,16 62:15 64:4 65:13,18 66:22 76:3 91:10 95:6,16 102:6 102:23 103:17,22 104:5,21 110:24 113:16,22 114:12 114:16,20 118:7 120:13 128:1 Rwandan 6:11 7:11 33:22 43:4,18 47:7 47:20 52:5,16 54:5 55:2,5,16,19 56:12 56:24 59:6,10 71:24 72:14 76:8,12 77:9 80:20 81:24 82:8,19 82:23 90:2 96:24,25 98:14 104:4,16 113:21 115:7,11 118:6 128:16 133:10 136:18 Rwanda's 7:23 48:13 49:7 92:19 R-009 135:25 R-013 105:22 106:7 108:7 R-014 71:23 |
R-015 74:1 R-015-ENG 121:10 R-018 49:1,19 50:13 50:16 R-106 50:14,15,18,20 R-111 98:23,23 R-118 20:5 R-243 60:4 |
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| S | ||
| sake 127:19 same 14:4,5 16:11 20:1 27:15 44:7 49:1 91:2 95:2 102:2 105:7 109:4 109:16 112:8 116:8 128:8,18 SARAH 2:18 satisfactory 41:19 92:14 satisfied 77:15 84:3,18 135:19 save 35:21 117:1 saw 29:20 66:7 73:5,9 82:14 85:8 saying 4:12 7:19 16:23 17:24 27:19 80:11 103:18 109:1 112:2 120:21 says 21:6,11 23:9,23 30:8 45:19 56:7,10 67:18 72:23 73:7 79:1,10,18 80:6,11 106:16 122:21 scale 4:22 8:6 scanning 29:25 scene 122:22,24 scope 67:11,16 screen 2:10 4:1 35:18 36:7,17 37:20 57:19 63:9 89:5 110:7 111:13,21 scroll 38:5,6 70:8 99:24 110:3 scrolled 110:2 season 15:2,3 seasonal 15:1 second 30:2 49:8 56:15 57:3,17,24 69:13 70:20 74:19 75:8 77:23,24 80:16 82:6,22 85:22 86:13 87:9 88:7,20 97:23 98:24 102:25 103:8 103:22 106:17,20 108:11 110:5 112:10 121:6 seconds 38:22 second-to-last 115:3 Secretary 1:22 section 20:9 25:20 27:19 121:11 sector 4:14 5:14,18 10:9 15:1 42:15,16 43:10 50:12 64:10 83:5 90:10 sectors 5:16 31:21 |
sector-specific 92:22 92:24 see 2:10,12 3:8 4:24 4:25 21:5,7 29:11 29:16,18,24 30:3 32:17 34:22 36:19 36:20 37:20 39:23 45:8 48:15,16 50:24 51:2 59:8 68:8 70:11 78:17 85:23 89:8 101:8 102:12 106:18,22 107:7,12 110:12,18 114:9 121:1 122:7 128:17 133:4 136:4,6 seeing 32:23 35:17 67:23 123:11,14 127:7 seek 93:2 seem 1:22 122:10 seems 30:13 36:9 123:6 129:2 131:9 138:17 seen 13:10,16 29:10 66:4 85:7 98:21 seizing 115:25 sell 12:11 14:16 15:25 16:1,12 17:11 18:7 32:2 selling 13:15,21 17:16 31:15,22 send 87:14,15 sending 30:6 sense 9:20 15:23 16:15 16:18 17:2 52:10 87:20 100:3 sensible 10:16 138:15 138:17 sent 58:4 86:25 115:4 sentence 7:21 8:25 19:2,7,9 39:14,16 65:12 79:10 86:18 87:25 98:25 106:17 106:19,20,21 107:12,14 108:14 115:4,5 119:22 124:24 sentences 108:12 separate 9:17 separated 87:14 separately 86:19 September 33:14 105:5 sequentially 6:4 series 3:15 79:22 serve 134:17 served 115:22 116:21 set 23:3 60:10 61:5 77:6 80:19 82:21 83:24 106:22 sets 38:3 46:15 75:5 setting 90:5 96:4 settled 9:11,20 Settlement 1:2 seven 75:9 several 8:6 51:7,10 57:25 |
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| share 84:16 111:23 132:7 shared 22:2 shareholder 71:1 76:4 76:6 106:13 114:19 114:19 116:14 122:11 137:17 shareholders 71:17 84:13 107:19 111:23 113:18 114:16 115:8,12,15 116:9 122:12,19,25 123:6,8 128:5 136:5 137:6,23 shareholding 123:16 128:13 132:6 shareholdings 122:17 122:24 128:5 shares 31:16,22 32:2 71:6,13 80:10 84:23 94:14 95:21 107:19 107:22 117:4 120:24 122:9 sharpest 20:14 short 6:23 49:8 54:17 126:3 130:4 short-term 99:13 102:13,16 show 98:5 102:3,20 109:22 116:21 shown 127:23 shows 33:12 35:17 63:5,16 107:3 sic 82:25 side 39:3,3 49:4 98:3,3 108:6,7 109:19,19 111:20 123:10 sight 29:11 sign 62:18 signature 86:15,17,19 87:1 100:5 signed 8:12 32:22,24 33:18 62:17 silence 49:25 50:1 132:12 similar 69:19 simple 11:22 simpler 105:14 simply 66:13 88:3 92:1 109:4 134:16 134:18 136:19 simultaneously 21:24 since 21:19,23 23:20 40:23 90:7 116:25 126:13 139:20 sincere 89:14 sir 2:12 4:10 5:8 6:20 8:1,18 9:6 11:15 12:13 13:18 15:13 16:3,17 17:13 18:11 18:22 19:3 20:6,18 23:13 24:22 26:1,21 32:14 46:11 99:23 101:11 109:11 112:9 119:22 135:20 sit 134:20 |
site 21:22 sites 38:13 sitting 34:21 situation 62:14 128:10 six 103:16 138:12,13 138:14,16 size 86:24 138:9 skills 43:8 slide 39:23 90:1,13 91:17 93:6 94:9,20 95:23 slightly 41:8 126:23 slips 139:7 slower 99:10 small 110:7 smaller 87:6 small-scale 6:24 7:2 7:14,19 8:1,6,8 social 10:9,11 society 10:10 sold 131:13 solemnly 2:15 37:6 89:12 solicitation 30:24,25 some 2:25 7:13 9:10 9:13,14 10:4 13:2,3 13:11,12,16 17:11 21:1,11 27:23 28:12 30:18 34:25 35:16 36:10 37:1,14 54:21 65:8 82:15 88:6 89:22 97:9 117:23 124:9 126:22 132:7 135:7 somebody's 58:14 somehow 124:8 someone 8:20 35:9 65:2 131:24 something 19:21 88:19 112:17 120:16 123:25 130:25 134:16,19 sometimes 12:17,18 somewhere 76:9 sorry 8:15 22:11 31:3 36:1,16,22 37:19,24 37:25 38:22,23 43:13 44:23 47:5 50:14,17,19,20 55:25 58:22 62:2 64:16 70:3,11 77:24 81:2 99:24 118:15 119:22 122:3 131:21 137:3 sort 38:23 sought 65:2 72:4 94:22 source 21:7 119:3,3 130:10 sourced 21:12 sources 21:10 space 7:17 86:16 Spalena 1:16 121:24 122:7,13 123:16 125:25 Spalena's 126:3 spanning 90:2 |
speak 2:16 37:7 65:1 100:7 125:11 128:24 133:4,9,9,15 speaker 38:21 speaking 125:17 131:9 specialising 63:22,22 specific 9:24 20:8 30:24 58:11 88:13 88:18 97:9 specifically 21:6 30:22 specify 34:16 SPECIOZA 2:9 spend 119:13 spirit 80:5 84:21 spoke 88:16 125:20 spoken 125:5,10 STAFF 2:21 stakeholders 4:13 Stallard 1:23 stamp 114:7 stand 73:9 standard 80:21 82:11 82:24 83:3,6 standing 124:2,4 Starck 71:13 94:15 start 6:1 27:19 35:7 37:14 72:25 started 5:5 21:19 22:12,13,14,18 23:8 30:16 60:17 72:13 126:6 starts 27:7 106:19 start[ed 73:15 state 60:21 81:19 96:13 117:16 131:12 stated 29:21 78:11 115:15 119:4 126:11 statements 2:21 3:11 13:9 56:16 57:4,18 57:24,25 58:1,4 59:2,6 61:19,22 62:9,25 66:5,10,14 69:22 76:14 78:13 86:14 108:24 115:19 116:18,19 127:10 states 2:11,12,13,14 2:15,16 48:2 78:17 107:2 static 87:2 statistics 25:10,11 status 109:6,7 120:23 128:12,13 stay 15:12 staying 53:7 stemmed 52:11 step 4:4 6:18 STEVEN 2:3 still 7:11,23 14:4 35:19 43:13 52:14 63:7,8 100:8,21 105:10 118:23 stipulated 91:7,13 Stone 2:6,6 stop 15:22 17:6 53:24 |
| stopped 15:11 straightforward 91:15 stream 18:8 stress 126:18 strict 95:6 strikes 127:2 struck 119:20 studied 90:3 studies 48:7 study 38:17 41:10,13 41:19 42:3 44:10,15 45:5,5 46:23 91:3 91:18 92:6,9,10,13 98:19 135:13 subject 69:18 106:14 115:19 submission 56:10 submissions 139:17 submit 41:10 55:11 79:23 submitted 41:13,16,18 60:6 66:6,8 78:20 98:19 106:24 subsequently 56:14 61:21 substances 81:10 substantial 6:14 substantive 87:22 101:22 succeeded 33:2 successful 31:14 sufficient 5:21 64:8,11 64:11 86:16 suggest 18:3 19:12 34:24 51:17 116:2,3 139:10 suggested 116:14 131:17 138:14 suggesting 134:19,20 suggests 49:22 51:4 summarised 21:1 Summer 1:2 supplemental 6:7,9 19:1 25:19 27:17 32:19 suppliers 28:14 support 2:21 42:25 47:21 52:6,16 54:5 55:11,19 56:25 76:8 82:9,20 supporting 95:9 supports 127:11 129:3 supposed 18:4 127:12 Supreme 74:2,11 75:19,22 95:2,3 117:16 118:1,12 120:3 121:3,7 124:10,19 126:21 130:19 sure 1:17 3:20 18:12 18:25 20:10,21 25:25 31:3,17 34:4 38:5,10,14,18 41:11 41:14,17,20,25 42:11 54:15 60:19 74:3 86:11 97:11 |
99:2 100:6 110:9 123:23 124:10 139:23,24 surprise 95:13 suspending 108:15 suspensive 43:21 44:3 44:16 45:1,2,12,16 45:18,19,25 46:3,9 46:16,19,23 47:1 91:8,12,13,16 system 15:25 16:13 18:4 19:10,14,17 21:18 22:5,11,14,15 23:15,25 24:1,7,9 25:13 33:23 34:22 38:20 86:6 |
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| tackle 123:19 tag 15:25 16:12 21:22 tagged 17:18 21:22 tagging 18:4 19:10 23:15 24:1 tags 13:15,21,25 14:16 15:11 16:11 17:9,10 17:19,19,23,23 18:7 18:19 take 1:5 18:16 26:15 26:17 32:14 38:22 54:1 58:14 74:13 82:12 87:9 96:16 97:4 104:14 109:25 122:25 133:19,20 136:23 taken 17:10 42:18,22 58:18 82:18 92:24 95:6,7 98:9 127:6 137:12 takes 9:1 101:20 taking 4:4 5:25 8:24 16:2 18:2 22:6 124:22 129:1,2 132:10,11,15 talk 102:13 106:9 107:11 108:1 128:2 talked 88:4,17 100:24 107:19,22 114:25 127:21 talking 8:10 9:3 19:10 22:5 79:19 88:12 98:6,8 102:15 108:14 talks 4:17 98:2 110:17 111:16 117:4 tell 14:20 15:14 19:4 88:2,9 99:1 106:20 132:13 telling 130:24 tend 7:4 8:2,3 11:21 tender 104:15,22 tends 15:1 term 4:5 8:22 32:7 42:10 terms 15:14 45:13 47:14 50:3 73:24 98:8 108:5 121:20 terrain 9:24 |
test 24:16,18 testified 99:5 testimony 26:3,8 28:22 30:18 33:9 66:4 67:7 83:19 87:13 88:8 101:24 104:4,20,23 105:2,7 105:24 106:2,9 111:2,12 112:11 113:21 115:10,20 115:23 116:5,9,22 117:14 119:4 127:10 128:14 text 3:25 thank 1:13,20,21 2:18 3:2 7:9 10:23 12:4 23:14 25:18 29:16 34:7,9,11,11 35:6 37:9 38:7,25 43:15 44:9 47:6 50:19 54:20 55:25 70:9 83:7 85:16 88:23 89:15,23 96:15 97:18 98:1 106:8 109:21 117:11 118:21 129:8 135:21 138:4,6 140:1,3,4 their 4:22 8:1 10:5,5 11:12,18 12:12 14:2 14:6,24 15:4,6,7,10 15:17,18,25 16:20 16:23,25 17:11,12 17:22 18:14,17 21:14 22:22,23 25:4 25:6 27:11 28:11,13 28:14 31:16 32:2 40:13,22 54:3 62:7 62:11 66:3 82:15 83:25 84:18 105:11 131:13 132:21 137:7 themselves 9:4 11:9 thereof 94:11 they'd 53:9,21 131:16 thing 16:17 17:2 87:16 92:21 93:4 things 5:9 11:20 think 1:11,23 2:8 14:15 19:15 32:21 33:12 38:2 40:17 47:4 50:17 51:8,8 53:23 54:12 56:2 57:25 58:5 59:13,17 63:10 67:19 68:18 78:15,17 79:18 80:4 81:1,2 86:24,25 96:16 101:9 112:20 113:3,9 116:12,20 124:12 127:17,20 135:4 137:9,24 thinking 32:18 third 2:10 19:2,7 51:20 56:15,20 57:3 57:17,24 65:11 74:13 76:17 98:25 THORNTON 2:13 |
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| thoroughly 128:11 though 4:15 8:3 15:24 22:19 65:13 120:16 thought 37:2 62:21 112:5 116:4 126:5 133:25 134:13 three 3:16 61:19,22 70:11 74:8 84:12 94:18 104:25 139:10,11,15 140:1 three-quarters 35:11 through 29:24,25 59:8 70:8 92:17 95:20 99:10 118:10 119:23 121:23 127:21 139:5 throughout 30:19 96:5 time 1:2 3:23 4:9 5:1 6:18,19,23 7:10,12 8:11,16 13:24 15:10 19:25 20:1 21:19,24 22:1,8 29:3 30:20 31:16 35:7,9 44:7 48:19 49:2 50:4,4,6 50:11,12 51:14 52:1 66:9 75:14 88:15 91:22 93:24 94:1 96:5 97:21 99:12 100:4 109:25 111:8 111:17 113:5,6 114:20,25 117:1 119:13 120:17 128:8 times 1:2,15 12:22 51:10 timing 1:7 8:10 138:10 138:11 tired 20:15 title 20:12 77:16 titled 110:22 today 22:5 23:21 24:5 24:6 together 28:7 64:23 101:5 102:3 139:21 told 16:6 59:24,24 87:21,24 109:9 113:10 128:20 129:23 131:18,25 tolerated 15:21 TOMSON 2:6 tongue 139:7 tools 10:5 11:12,20,22 top 3:15 63:21 68:7 113:3 121:10,11 topic 54:13 119:5 127:19 total 24:20 50:1 touch 30:14 tourism 5:14 towards 133:14 traceability 21:18 traces 25:13 track 19:23 tracked 19:14 Trade 2:14 transaction 114:7,17 |
117:10 128:4 130:18,20 132:5,8 132:12 transactions 128:18 132:1,2 transcribing 139:6 transcript 1:23 1:2 67:1 116:3 138:25 139:14 transcripts 139:6 transfer 71:6,12 94:14 104:6,17,22 117:4,6 117:7,8 120:24 transfers 122:17 transitional 68:19 transmitted 110:10 treat 118:20 trend 10:7 Trevor 1:24 tribunal 1:22 2:23 3:7 3:11,12,13,14 1:14 34:6 35:22 36:9 66:2 75:11 85:19 89:17 93:8 96:20,20 99:14,18,23 100:10 100:14,17,19,23 101:1,3,13 102:22 103:3,11 105:2,7 111:12 112:11 115:10 124:11 129:14,25 130:24 133:17 134:7,13,25 135:9 139:5 Tribunal's 115:18 116:8 trigger 91:5 troubled 118:24 true 13:5 39:15,20,24 40:3,7 56:23 74:17 121:22 TRUMAN 1:11 Trust 90:5 truth 2:16,16,17 37:7 37:7,8 try 130:13 134:16 trying 31:4 32:17 73:13 85:24 100:8 111:11 112:9 118:24 123:18 124:25 127:18 134:12 turn 20:22 35:20 83:12,14 93:7 136:12 two 2:21 5:9 22:9 23:23 25:24 45:7 48:21 49:25 50:1,1 58:20 59:23 90:24 96:23 98:22 99:22 104:9 124:6 128:18 132:19 134:17 135:6 138:16 type 14:4 69:19 types 14:5 21:2 typing 87:23 |
ultimate 97:7 125:25 Umugwaneza 85:11 under 1:1 3:22 4:7 12:6 13:6 16:12 18:6 19:22 20:24 22:6 23:15 28:2 39:8,13,21,25 40:5 40:8,14,18,25 41:8 41:9,16,24 42:1 44:15,16 46:20 47:13 48:9,22 49:23 51:17 55:2,5,12,16 56:12 68:19,23 69:3 69:11 72:14 78:10 80:20 81:16,24 82:22 91:2 92:23 93:2,11 104:4,16 114:7 118:6 122:5 128:16 underlying 117:9 understand 4:12 5:8,8 5:18 16:3 17:5 31:3 53:8 83:20 85:9 87:8,10 89:16 91:18 100:21 103:13 118:24 121:13 123:4,21 126:8,12 131:23 137:15 understanding 34:15 34:19 83:21 131:5 understood 13:25 15:24 16:2 26:11 30:10 31:17 32:1 114:11 125:24 undertake 5:21 unequivocal 51:11 unequivocally 131:5 unfair 67:19 unilaterally 59:24 unique 21:22 United 2:11,12,13,14 2:15,16 unlawful 71:9 94:18 unless 77:17 124:7 unofficial 27:7 unproductive 11:23 unqualified 51:11 unsafe 11:22 unsatisfactory 91:19 unsolicited 104:11 unstable 86:4 until 14:11 68:25 97:15 unusual 15:5 93:22 update 113:15 120:15 upheld 95:1,3 117:15 120:3 upholding 128:15 upwards 25:13 use 1:7 4:10 11:20,21 11:25 12:16,17,19 13:15 14:16 32:7 used 11:1,16 12:1 17:14 23:16 27:16 29:12 user-friendly 1:15 using 11:21 12:24 |
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| v 1:17 vacuum 118:5,12 Vale 63:20,21 valid 52:9,14 53:15,20 65:19 117:7,8 135:18 vanished 63:8 various 4:13 13:10 31:21 54:11 59:14 65:3 106:13 Vaughn 1:24 verifiable 25:17 version 3:22 versions 1:19 41:7,9 41:12 very 1:13 7:4 11:22,22 11:23 14:3 18:2 21:20 25:11 29:13 34:9 35:20,20 58:11 64:25 79:16,16,18 85:16 86:4 95:6,10 96:15,22,22 97:12 100:3 116:9,11,13 119:12,13 121:11 122:6,9 125:20 126:2,8 127:22 128:13.17 130:19 130:21,25 134:7 137:18 138:4,4 139:14 140:3 vested 83:22 via 1:5 video 1:5 35:17 view 1:15 2:4 21:9 66:3 95:7 122:15 123:1 violated 55:9 56:22 violation 55:1,7,16 56:5,25 violations 55:20 visible 38:6 vis-à-vis 66:22 vitae 60:6 vocational 60:24 void 71:14 94:19 volume 21:21,23 voluntarily 27:1 |
15:25 33:20 64:9 | |
| W | ||
| wait 2:24 59:23 waited 58:20 waiting 30:8,9 34:23 walk 10:4 11:12 want 1:17 20:10,19 21:7 25:25 31:23 43:12 50:20 60:25 74:14 99:12 102:18 110:9 126:18,24 129:6 131:18 133:17 wanted 8:23 20:20 25:4 31:13 33:6 84:22 86:1 87:18 88:10 134:2,2 |
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| Y | ||
| year 4:23 8:12 21:18 22:11 23:8 48:18,18 50:9 59:23 years 7:13 21:4,11 22:9 23:23,24 38:17 49:25 50:1,1 58:20 59:1,23 83:2 90:3 90:12,24 91:1 131:13,13 132:19 |
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| Zarnacks 71:18 95:22 107:23 114:8,15 117:17,20 118:2,4 118:18 119:1,4,11 119:17 122:19,22 122:23 128:1,25 129:15 130:8 131:5 131:10,24 132:9,21 134:8 136:7 zero 133:6 zoom 1:5 8:20 29:11 zoomed 76:11 |
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| 0 | ||
| 02 107:3 | ||
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| 1 60:20 69:7,10 70:2 70:11 84:5 90:19 125:24 1st 33:25 1.07 36:3 1.09 37:10 1.40 54:16 10 55:4 65:16 72:2 11 55:9 112 3:11 117 3:12 118 68:1 119 3:13 68:5 12 54:10,11,24 55:14 55:18 12th 33:11,24 12.00 1:3 12.02 2:2 12.03 2:19 3:3 13 65:21 81:21 13th 105:5,16 135 3:14 138 3:15 14 55:23 74:4,5 75:12 14.2 74:19,22 15 75:4 101:23 151 95:16 118:8 120:12 17 72:8 76:2,11 97:24 98:2,6,14 18 19:2 61:12,16 102:2 102:12 103:8 105:1 18th 62:1 19th 29:9,15 1971 68:3,14 69:3 93:15 1976 68:2 1995 90:4 |
4 2:6,6 38:17 41:5,24 42:1 44:8,16 45:14 47:14 50:22 90:23 91:2,17 98:5,11,14 99:16 100:15,20 101:3,18 106:5 108:7 109:13 4th 124:13 125:2,5 4.10 97:15 4.23 97:16 41 81:1 45 99:9 122:15 46 107:25 47 95:12 101:8,10 117:13 119:1,15,23 122:15 129:7,10 47-48 77:24 49 78:25 |
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| 5 | ||
| 5 39:2,5 41:21,23 67:1 67:3 80:17 90:24 93:6 5-10 80:17,19 82:7 5.2 62:4 5.40 135:8 5.50 140:5 50 43:16 79:9 52 68:17,18 70:2,20 93:10 53 55:23 57:4,17,19,21 54 1:8 55:23 56:3 56 56:7 57:5,17,21 58 101:23 102:1,5,22 103:4,11,18 105:3 |
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| 2 | ||
| 2 3:1,2 1:8 38:3,6 39:22 40:1,5,14 45:4 46:11 48:5 60:9 62:3 63:18 69:6 75:12 84:5,5,8 90:1,19,20 91:7 101:5,15 2nd 47:24 103:16 121:9 |
3 3 3:3 1:9 20:22 41:5 44:8 61:24 84:5 90:13,22 3rd 110:12,19,24 111:3,4 112:14 |
6 6 1:9 42:5 51:21 52:16 80:23 81:22 94:9 136:6 6th 68:9 108:15 60 30:8 59:16,17 66 83:14,16 99:24,25 100:3,13,18 101:2 101:15 67 83:15,16 99:8,9,23 99:25 100:12,17,24 |
| 100:25 101:14 67's 99:20 69 101:6,16 |
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| 7 25:20 47:3,20 48:25 49:1,11,15,21 51:3 51:12 52:19 60:5 94:20 75 68:1 77 43:17,18 44:17 45:3 45:19,25 46:8,11 91:9 78 46:14,18 91:9 |
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| 8 3:13 95:23 83 3:6 85 3:7 89 3:8 |
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| 9 54:10,11,24,25 55:18 65:11,12 90 3:9 26:15,18 28:25 30:9 97 3:10 |