Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

Redacted Version for Publication in Accordance with Applicable Transparency Rules International Centre for Settlement of Investment Disputes

AWARD

Professor Gabrielle Kaufmann-Kohler, President of the Tribunal
Professor Albert Jan van den Berg, Arbitrator
Professor Pierre Mayer, Arbitrator

TABLE OF CONTENTS

INTRODUCTION
The Parties
1. The Claimants
2. The Respondent
The Tribunal

PROCEDURAL HISTORY
A. Initial phase
B. Consolidation
C. Start of pre-hearing phase
D. Application for disqualification of the Tribunal
E. Continuation of pre-hearing phase
F. Hearing on jurisdiction and liability
G. Designation of Tribunal-appointed forensic experts
H. Document inspection and Experts' Report
I. Authenticity hearing
J. Post-hearing phase

THE MAIN FACTS
A. The political background in Guinea between 2006 and 2014
B. The corporate structure and key players of the BSG companies
C. The Claimants' mining activities in Guinea
D. The Zogota project
E. The Simandou project
F. The joint venture with Vale and the LCIA arbitration
G. The 2011 Mining Code and the mining permit review procedure
H. The revocation of the disputed mining rights

REQUESTS FOR RELIEF

A. The Claimants' requests for relief

B. The Respondent's requests for relief, including counterclaims

OVERVIEW OF THE PARTIES' POSITIONS

A. Summary of the Claimants' position

B. Summary of the Respondent's position

ANALYSIS

A. Preliminary Matters
1. Applicable Procedural Law
2. Law Governing Jurisdiction
3. Law Governing the Merits
4. Relevance of Previous Decisions
5. Scope of this Award

B. Jurisdiction
1. The Parties' positions
Respondent's position
Claimants' position
2. Analysis
Legal framework
Jurisdictional objections under the Mining Code
Objection ratione voluntatis
Jurisdictional objections under the BOT Act
Objection ratione voluntatis
Objections ratione materiae and personae
Jurisdictional objections under the Base Convention
Objection ratione materiae
Objection ratione personae
Conclusion on jurisdiction

C. Claims
1. Parties' positions on the claims
Claimants' position
The Respondent unlawfully revoked the disputed mining rights
The Respondent's measures and conduct breach the Claimants' rights
Respondent's position
The revocation of the mining rights does not constitute an expropriation
The Claimants were not the subject of discriminatory measures
The other allegations are unfounded
2. Parties' positions on the corruption defense
Respondent's position
The Claimants obtained access to the highest levels of the State through President Conté's fourth wife
The Claimants set up a shell company to conceal their conduct
The Claimants obtained their mining rights through bribery and influence peddling
The Claimants bought the silence of Ms. Touré and sought to destroy evidence
Claimants' position
The disputed mining rights were obtained lawfully
The Respondent's allegations of corruption are unfounded
3. Legal framework applicable to corruption
Applicable law under Article 42 of the ICSID Convention
Guinean law on corruption
International law on corruption
Burden and standard of proof
4. Merits of the Respondent's allegations of corruption
Introductory remarks
Authenticity of Disputed Documents
Introductory considerations
The Claimants' request to disqualify the Experts and exclude the Final Report
Parties' positions
Claimants' position
Respondent's position
Analysis
Identification of the Disputed Documents
Expert Terms of Reference and Document Inspection
The Final Report
Assessment of the Disputed Documents
General observations
Exhibit R-24
Description of document
Experts' findings
Comments of the Party-appointed experts
Parties' positions
Discussion
Exhibit R-25
(i) Description of document
(ii) Experts' findings
(iii) The comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-26
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-27
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-28
(i) Description of the document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-29
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-30
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exhibit R-31
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exh. R-32
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exh. R-269
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Exh. R-346
(i) Description of document
(ii) Experts' findings
(iii) Comments of the Party-appointed experts
(iv) Parties' positions
(v) Discussion
Concluding comments on document authenticity
Corruption allegations
Introductory comments
The status and role of Ms. Touré
The role of Pentler
The Zogota mining permits and the Base Convention
Payments and gifts effected by intermediaries for BSGR to buy
influence
Qualifications of intermediaries used by BSGR
Services
Due diligence
Witness tampering and destruction of evidence
Influence of Ms. and Mr. Touré and acts of bribery
Conclusion
Blocks 1 & 2
(a) Payments and other gifts
(b) Qualifications
(c) Services of payment recipients
(d) Due diligence
(e) Witness tampering and destruction of evidence
(f) Influence of Ms. and Mr. Touré
(g) Conclusion

D. Counterclaims
1. Parties' positions
2. Discussion
Jurisdiction
Receivership of BSGR
Admissibility of the counterclaims

E. Costs
1. Parties' positions
2. Discussion

TRANSPARENCY

OPERATIVE PART

INTRODUCTION

1. The present dispute arises under Ordinance No. 001/PRG/87 of 3 January 1987, amended by Act L/95/029/CTRN of 30 June 1995 constituting the Investment Code of the Republic of Guinea (the "Investment Code"),1 Act L/95/036/CTRN of 30 June 1995 constituting the Mining Code of the Republic of Guinea (the "Mining Code")2 and Law L/97/012/AN of 1 June 1998 Authorizing the Financing, Construction, Operation, Maintenance and Transfer of Development Infrastructures by the Private Sector of the Republic of Guinea (the "BOT Act"),3 as well as under the Basic Agreement between the Republic of Guinea and BSG Resources for the Exploitation of the Zogota/N'Zerekore Iron Ore Deposits of 16 December 2009 (the "Base Convention"),4 in connection with an investment made by BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) Sàrl in the iron ore mining industry on the territory of the Republic of Guinea.

1. The Claimants

2. The Claimants in this arbitration are BSG Resources Limited ("BSGR"; "BSGR (in Administration)" by court order of the Royal Court of Guernsey dated 6 March 2018), BSG Resources (Guinea) Limited ("BSGR Guernsey") and BSG Resources (Guinea) Sàrl ("BSGR Guinea") (the "Claimants").

3. BSGR (in Administration) is a company existing under the laws of the Bailiwick of Guernsey, United Kingdom, with registration number 46565, that was incorporated in 2003 as a limited company in Jersey5 and migrated in March 2007 to Guernsey.6 Its principal office is in West Wing, Frances House, Sir William Place, St Peter Port, Guernsey.

4. BSGR Guernsey is a company registered under the laws of the bailiwick of Guernsey, United Kingdom, with registration number 50001 and its registered office in Guernsey, West Wing Frances House, Sir William Place, St Peter Port, Guernsey GY1 1GX

5. BSGR Guinea is a company incorporated in accordance with the laws of the Republic of Guinea on 24 November 2006 under number RCCM/GC-KAL/013.755A/2006.8 Its registered office is located at Immeuble Bleu, 5ème étage Résidence 2000, Moussoudougou-C/Matam, Conakry, Republic of Guinea, PO Box 6389.

6. The Claimants are represented in this arbitration by Carl Bowles and Mark Firmin of ALVAREZ & MARSAL EUROPE LLP, the joint administrators of BSGR in Administration.

2. The Respondent

7. The Respondent is the Republic of Guinea ("Guinea" or the "Respondent").

8. The Respondent is represented in this arbitration by Michael Ostrove, Theobald Naud and Clémentine Emery of DLA PIPER FRANCE LLP, Scott Horton of DLA PIPER UK LLP, and Pascal Agboyibor of ASAFO & CO.

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TRANSPARENCY

1129. In conformity with the Parties' consent to the publication of the award (paragraph 24.1 of PO1), the transparency regime set out in PO2, and to paragraph 12(iii)(1) of PO2, the award shall be made available to the public. The Parties may therefore notify the Tribunal within 21 days from the issuance of the award whether they seek protection for confidential or protected information pursuant to paragraph 15 of PO2 and section C(c) of PO4. The other Party may then reply within two weeks and the Tribunal will rule thereafter.

1130. Accordingly, the Tribunal will remain in office until it has resolved any transparency objections that either Party may raise.

1131. Finally, the video recordings of the hearings and all documents referred to in Section 12(iii) of PO2 will, upon completion of the case, continue to be made available to the public on the ICSID website in conformity with paragraph 17(vi) of PO2.

OPERATIVE PART

1132. For the reasons set forth above, the Tribunal renders the following decision:

(1) The Tribunal has jurisdiction over the claims asserted under the Guinean Investment Code;

(2) The Tribunal has jurisdiction over the claims asserted by BSGR Guinea and BSGR Guernsey under the Base Convention;

(3) The Tribunal lacks jurisdiction over the claims asserted by BSGR under the Base Convention;

(4) The Tribunal lacks jurisdiction over the claims asserted under the Guinean Mining Code and the BOT Act;

(5) The claims are inadmissible;

(6) The Tribunal has jurisdiction over the counterclaims asserted by the Respondent;

(7) The counterclaims are inadmissible;

(8) The Claimants shall bear 80% of the ICSID costs (fees and expenses of the Arbitral Tribunal and the Tribunal-appointed Experts as well as ICSID's administrative fees and direct expenses) and thus pay to the Respondent USD 301,807;

(9) The Claimants shall bear 80% of the costs incurred by the Respondent in connection with these proceedings and thus pay to the Respondent USD 5,345,621;

(10) All other claims and requests are dismissed.

(11) Within 21 days from the filing of the Award, each Party may notify the Tribunal whether it seeks protection for confidential or protected information pursuant to paragraph 15 of PO2, after which the other Party may reply within 14 days. The Tribunal will remain in office until it has resolved the transparency objections, if any.

[signed]

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Footnotes omitted