Zeph Investments Pte Ltd: Notice of Intention to commence arbitration under the Singapore-Australia Free Trade Agreement (entered into force on 28 July 2003 with subsequent amendments entering into force on 24 February 2006, 13 February 2007, 11 October 2007, 2 September 2011, 1 December 2017, and 8 December 2020) ("SAFTA").
2. Notice of Intention
2.1 Zeph hereby gives notice of its intention to commence an arbitration against the Commonwealth of Australia ("the Commonwealth") under Article 24 of Chapter 8 of SAFTA. This notice satisfies the requirements of Article 24.2 of Chapter 8 of SAFTA.
2.2 Zeph proposes to commence an arbitration under Article 24 of SAFTA seeking compensation for each of its claims under SAFTA. Zeph reserves its right in full to add to (or otherwise amend) its case as set out in this Notice once the Arbitration has commenced, in its Statement of Claim and submissions to be served in due course.
3. Zeph has satisfied the preconditions for arbitration
3.1 Zeph owns and controls certain Australian companies, including Mineralogy Pty Ltd ("Mineralogy") and Waratah Coal Pty Ltd ("Waratah Coal"). Zeph owns 100% of the shares in Mineralogy. Through a 100% owned subsidiary, Mineralogy owns 100% of the shares in Waratah Coal. Waratah Coal is the proponent of a coal mining project in the Galilee Basin ("China First Project" or the "Project"). Accordingly, Zeph's investment in the shares and rights is a "covered investment" (within the meaning of SAFTA Chapter 8). The enterprises undertaken by Mineralogy and Waratah Coal (including Zeph's Assets) are "covered investments" (within the meaning of SAFTA Chapter 8) of Zeph.
3.2 Zeph's investments in Mineralogy and Waratah Coal are investments in the "territory"
of Australia. Both companies are domiciled in Australia. Each is incorporated in Queensland and has its principal place of business at Level 17, 240 Queen Street, Brisbane. The Project and Project Assets (defined in paragraph 18.9) which is the subject of this dispute are located within Australia.
3.3 Therefore, Zeph satisfies the jurisdictional requirements of the SAFTA. Zeph is an Investor with a Covered Investment under the SAFTA.
3.4 Article 23 of Chapter 8 of SAFTA relevantly provides that "In the event of an investment dispute, the claimant and the respondent should initially seek to resolve the dispute through consultation and negotiation". Article 23.2 requires the claimant to "deliver to the respondent a written request for consultations setting out a brief description of facts regarding the measure or measures at issue." Article 24.1 provides that if "an investment dispute has not been resolved within six months of the receipt by the respondent of a written request for consultations", then the disputing investor may submit a claim to arbitration, after having provided 90 days' notice of its intention to do so.
3.5 Zeph delivered to the Commonwealth a request for consultations on 5 December 2022.
The dispute has not been resolved, and the Commonwealth has purported to deny Zeph the benefits of Chapter 8 of SAFTA. Accordingly, unless the dispute is resolved in the meantime, Zeph will have satisfied the preconditions to arbitration set out in Articles 23 and 24 of Chapter 8 of SAFTA when 90 days have expired following the date of this notice and Zeph intends thereafter to submit the dispute to arbitration.
3.6 Zeph does not accept that the Commonwealth has properly or effectively denied Zeph the benefits of Chapter 8 of the SAFTA. One of the grounds upon which the Commonwealth has purported to deny Zeph the benefits of the SAFTA is an assertion that Zeph "has no substantial business activities in the territory of Singapore". That assertion is demonstrably false, and Zeph has demonstrated to the Commonwealth that it is false. Zeph further reserves its right to add to or amend its position in light of any future application or submissions served by the Commonwealth.