I am also not so sure that Donwys is wrong about the MOC. The MOC clearly states that we accept that another branch of the VZ govt may interfere with the project through legislation and /or administrative decision. Ortega's decision was an administrative decision based on environmental concerns and the MOC appears to explicitely allow for this and absolve the other party of responsibility.
You left out an important consideration arising from abrogation. I'm going to interpret the term in my own words to mean the loss of a pre-existing right due to changes in governmental policy. In this case the rights would be two-fold: property rights and rights to profit from the property rights. Moreover, CVG is the Venezuelan government in law, as it is a civil institution administered entirely under enacting legislation that created a non-arms-length agency of the government itself.
In abrogation situations, the onus is on the abrogator (Venezuela) to show that the change in rights serves a larger purpose. As you've indicated, the environmental concerns in the Imitaca could serve as a validation of the abrogation. However, any reasonable person would see that the Imitaca is under increasing environmental threats because Crystallex is not operating. The ore processing planned for the mine actually restores the environment, as it removes mercury along with the gold. Artisanal mining is increasing, and is not controlled by the government, even though it could do so.
All court cases seek to examine the specific circumstances of a case in light of more generalized principles. When I look at the specifics of this case, I see no supporting circumstantial evidence to corroborate the Venezuelan government's decision to not issue a permit. The onus is on the government to demonstrate that the decision to not issue the permit is more than an arbitrary act. The evidence shows otherwise, IMHO.
To dot all the "i"s and cross all the "t"s, Crystallex may press their case in the Venezuelan courts, but they are not required to do so if their case is otherwise solid. They would not be required (in so many words) to proceed with vexatious legal actions in order to exhaust all Venezuelan avenues of appeals to higher authority, if the very premise upon which Venezuela acted is unsupported by the available evidence.
The pragmatic choices for Venezuela are limited to two options: settle with Crystallex via negotiation, or settle via international arbitration. I do not see that they have more than a theoretical third legal option, to block the mine development and operation by abrogation.
Lar
