"In abrogation situations, the onus is on the abrogator"
Sorry about that.....
If the government takes away a previously existing legal right, it has the duty to prove that the loss of that right is counteracted by a larger benefit due to the change. So, in this case, the benefit to the environment would have to outweigh the loss to Crystallex from being unable to exploit the resource. It could even be argued that the loss of potential jobs for those peasant miners could also be an adverse consequence of the government changing the rules after they signed the contract. Circumstantial evidence like that could help make the case that the decision to not issue the permit was unreasonable. There is no real environmental benefit from denying the permit. No social benefit from denying the permit. No financial benefit from denying the permit. And so on. The arbitrators would look at all the circumstances. If Venezuela advances the environmental protection argument, I think a few actual photos would tell the tale, compared to Crystallex' detailed commitment to restore the site.
I'm probably going into speculative territory with the actual arguments that might be raised, but Venezuela would have to prove that permit denial served a larger good, or they lose the argument by default. Kind of like guilty until proven innocent. But that's what you get if you try to change the rules after the game begins.
Lar
