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IN THE MATTER OF AN ARBITRATION UNDER THE RULES OF ARBITRATION OF THE INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES ICSID CASE No. ARB/14/22 BETWEEN: (1) BSG RESOURCES LIMITED (2) BSG RESOURCES (GUINEA) LIMITED (3) BSG RESOURCES (GUINEA) SÀRL - v - THE REPUBLIC OF GUINEA CLAIMANTS' REPLY Karel Daele James Libson Mishcon de Reya LLP Africa House 70 Kingsway WC2B 6AH London Tel: +44 (0) 203 321 7060 Fax: +44 (0) 203 761 1856 Counsel for the Claimants 1 INDEX I INTRODUCTION 1.1 Preliminaries 1.2 Corruption is the central issue II THE FACTS 2.1 The acquisition by BSGR of its mining rights in Simandou Blocks 1 and 2 2.1.1 The unlawful award of Rio Tinto's mining rights in Simandou Blocks 1 to 4 between 1997 and 2006 2.1.2 The withdrawal in 2008 of Rio Tinto's mining rights in Simandou Blocks 1 to 4 was lawful 2.1.3 The subsequent award of the mining rights in Simandou Blocks 1 and 2 to BSGR was lawful 2.1.4 Rio Tinto's repossession of its mining rights in Simandou Blocks 3 and 4 was unlawful 2.2 The conclusion of the Base Convention 2.2.1 Exploration permits in Simandou North and Simandou South and the Memorandum of Understanding 2.2.2 Examination by and negotiation with Technical Base Convention Committee 2.2.3 Examination by and negotiation with the Council of Ministers 2.3 The acquisition of the Mining Concession 2.4 The measures implemented by Guinea against BSGR were politically motivated 2.4.1. Mr Sammy Mebiame 2.4.2 The US Criminal Complaint against Mr Mebiame 2.4.3 Mr Mebiame pleading guilty to corruption of Guinean officials including President Condé 2.4.4 The Settlement with Och-Ziff 2.4.5 The relevance of the Mebiame documents a. Mr Mebiame’s role as a fixer for Och-Ziff’s fund b. Negotiations with President Alpha Condé c. Mr Mebiame given exclusivity over mining opportunities in Guinea d. Mr Mebiame helped set up the Guinea state mining company in which Mr Hennig and his group would be granted a stake e. Mr Mebiame and Mr Hennig involved in re-writing the Mining Code f. Mr Mebiame and Mr Hennig drafted letters, to be signed by Guinean minister, notifying existing permit holders of issues with their mining licences g. Substantial sums paid by Mr Mebiame to gain access to Guinea mining rights h. July / August 2010 – Mr Mebiame’s frank explanations to Och-Ziff i. February 2011 – Mr Hennig sought Och-Ziff’s assistance to get money to President Condé j. The Palladino loan – provision of USD 25 million to Guinea in March and April 2011 k. August 2011 – team sent by Mr Mebiame and Mr Hennig to ensure Condé kept up his side of the deal 2 l. Mr Mebiame’s contemporaneous admission of corruption 2.4.6 Unlawful corruption investigation into BSGR employees 2.4.7 Conclusion 2.5 The measures implemented by Guinea against BSGR were supported and or partly funded by George Soros and his Foundations 2.6 The measures implemented by Guinea against BSGR were improperly encouraged and supported by BSGR's competitors and ex business partners 2.6.1 Rio Tinto 2.6.2 Vale 2.6.3 Sitarail 2.6.4 Conclusion III LEGAL FRAMEWORK OF CORRUPTION 3.1 Applicable law 3.2 Corruption under Guinean criminal law 3.3 Corruption under Guinean civil and or administrative law 3.4 Proof of corruption 3.4.1 Burden of proof 3.4.2 Standard of Proof a. Standard of Proof in International Arbitral practice b Standard of proof under English Law 3.4.3 Causal link 3.5 Abuse of power IV THE MINING RIGHTS WERE NOT OBTAINED BY CORRUPTION 4.1 BSGR did not obtain the mining rights through corruption 4.2 Blocks 1 and 2 were not obtained by corruption 4.2.1 The documentary evidence shows no hint of corruption 4.2.2 Guinea’s witness evidence is sorely lacking 4.3 The Base Convention was not obtained by corruption 4.3.1 No corruption in the review of BSGR's Feasibility Study 4.3.2 BSGR did not bribe the Inter-Ministerial Committee 4.3.3 BSGR did not bribe Mr Thiam a. Mr Thiam’s motivation b. Mr Thiam’s renewal of the exploration permits for Simandou North and Simandou South was proper c. Mr Thiam acted properly in upholding BSGR’s rights to Blocks 1 and 2 d. Mr Thiam’s involvement in joint venture negotiations was in the interests of Guinea e. BSGR did not reward Thiam f. Recent corruption allegations against Mr Thiam unrelated to BSGR 4.4 The Mining Concession was not obtained by corruption 4.4 BSGR did not procure its mining rights through corruption V EVIDENTIARY ISSUES 3 5.1 Mamadie Touré 5.1.1 Guinea cannot rely on Mamadie Touré's statement 5.1.2 Mamadie Touré is not a reliable source 5.1.3 No witness corroboration of Mamadie Touré's allegations 5.2 Negative inferences 5.2.1 Negative inferences that must be drawn from Guinea's failure to produce documents 5.2.2 The adverse inferences that must be drawn VI JURISDICTION 6.1 Jurisdiction to determine claims made by BSGR Guinea 6.2 Jurisdiction to determine claims under the 1995 Mining Code 6.3 Jurisdiction to determine claims over Blocks 1 and 2 6.4 Jurisdiction to determine BSGR Limited claims based on the Mining Code 5.5 Jurisdiction to determine BOT claims VI COUNTERCLAIMS ................................................................................................ 147 6.1 BSGR is not the cause of Guinea's failure to develop its own natural resources 6.2 Guinea has to pay for the costs of investigating its own allegations 6.3 BSGR is not responsible for Guinea's tarnished image 6.4 Guinea has not provided a legal or evidentiary basis for any of its counterclaims ANNEX 1: BSGR WAS NOT INVOLVED IN A CORRUPT SCHEME IN GUINEA ANNEX 2: PRESENTATION SIMANDOU CONSPIRACY 4 ANNEX 1 I BSGR DID NOT BRIBE MAMADIE TOURÉ 1.1 BSGR did not enter into any contracts with Mamadie Touré 1.1.1 The 2007 and 2008 contracts are forged 1.1.2 Cilins’ conviction does not implicate BSGR 1.1.3 Pentler’s contracts with Mamadie Touré/Matinda in 2006 were not made on behalf of BSGR 1.1.4 Pentler did not enter the August 2010 contracts with Mamadie Touré on BSGR’s behalf 1.2 BSGR did not ask Mamadie Touré to exert influence on her husband 1.2.1 Mamadie Touré did not have influence over President Conté 1.2.2 Mamadie Touré had no involvement in the award of exploration permits over Simandou North and Simandou South 1.2.3 Mamadie Touré had no involvement in the award of exploration permits over Blocks 1 and 2 1.2.4 Mamadie Touré had no involvement in the award of exploration permits for bauxite and uranium 1.3 BSGR did not distribute payments or gifts to Mamadie Touré 1.3.1 BSGR did not give Mamadie Touré two Land Cruisers 1.3.2 BSGR did not pay Mamadie Touré $250,000 in May 2006 1.3.3 BSGR did not give Mamadie Touré cash payments 1.3.4 BSGR did not use Ghassan Boutros to make payments to Mamadie Touré 1.3.5 Pentler’s payments to Mamadie Touré in July-August 2010 were not made on behalf of BSGR 1.3.6 Pentler’s payments to Olympia in March-April 2011 were not made on behalf of BSGR 1.3.7 Olympia’s disbursement of $936,451.02 to Mamadie Touré in May 2012 was not made on behalf of BSGR and was not related to Mamadie Touré’s attestation II BSGR DID NOT BRIBE PRESIDENT CONTÉ III BSGR DID NOT BRIBE I.S. TOURÉ 3.1 BSGR’s relationship with I.S. Touré 3.2 BSGR’s payments to I.S. Touré were legitimate IV BSGR DID NOT BRIBE IBRAHIMA KASSORY FOFANA V THERE IS NO INDIRECT EVIDENCE OF CORRUPTION 5.1 Context of endemic corruption 5.2 BSGR’s use of ‘consultants’ 5.2.1 Pentler and its principals 5.2.2 Bah and Daou 5.2.3 Boutros 5 5.3 BSGR has not attempted to conceal its activities 5.4 Project Hills 5.4.1 Project Hills was an expedited deal 5.4.2 The role of Skadden 5.4.3 BSGR was co-operative and open in its provision of documents 5.5 BSGR has not attempted to destroy evidence 5.6 The existence of unresolved criminal proceedings is not evidence of BSGR’s guilt 6 I INTRODUCTION 1.1 Preliminaries 1. This Reply is served on behalf of: (i) BSG Resources Limited (“BSGR”); (ii) BSG Resources (Guinea) Limited (“BSGR Guernsey”); and (iii) BSGR Resources (Guinea) Sàrl (“BSGR Guinea”), together, the “Claimants”. 2. This Reply sets out Claimants' responses to Guinea's Counter Memorial dated 17 June 2016 ("Contre-Memoire de la Republique de Guinee" or "CMRG"). 3. Attached to this document are: (i) The following witness statements: Second Witness Statements of Benjamin Steinmetz (CWS-8); First Witness Statement of Sandra Merloni-Horemans (CWS-9); Second Witness Statement of Asher Avidan (CWS-10); Second Witness Statement Joseph Tchelet (CWS-11); Second Witness Statement of Marc Struik (CWS-12); Second Witness Statement of Dag Cramer (CWS-13); First Witness Statement of Cesare Morelli (CWS-14); First Witness Statement of Yuval Sasson (CWS-16). (ii) Exhibits C-0161 to C-0348; and (iii) Legal authorities CL-0031 to CL-0059.
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