the argument made in the exchange, although not needed, is not nonsense as you state. The fact is, is that the CVG can not have it both ways. They can not illegally terminate the contract and then say kry has to follow the contract as you state.
Whether the contract has been illegally terminated or not will be determined by the ICSID or any other tribunal that examines the issue. Obviously the CVG believe (or pretend) that they were within their rights to terminate it, and that will be the line they will argue. Almost all contracts have a clause in them that specifies the jurisdiction that is to be used for settlement of disputes in regard to ANY clause in the contract and by signing the contract both parties agree to that jurisdiction.
However as you correctly point out, the rules under the Canadian / Venezuelan treaty do allow the dispute to be taken to the ICSID when a government or government controlled body acts in such a manner that the complaining party has been denied the rights they should have been granted under the contract/concession/agreement and local courts do not, or cannot rectify the injustice. The rights granted and obligations are specificly laid out in the contract with the CVG and as far as I am aware that is the only document that contains those rights and obligations in respect to mining LC.
So regardless of anything else, it is that contract and the clauses in it that determine the basis of the claim. There is no separate agreement with the government other than the contract with the CVG that I am aware of, so it is the critical document.
The clause that specifies the jurisdiction will almost certainly be brought up by the Ven lawers in any ICSID hearing. That is routine! Be prepared for it! They always challenge the Jurisdiction in every case even when no similar clause exists. It's just an additional hurdle that KRY lawyers will have to overcome. There are many good arguments they can use that could convince the arbitrators that the case should be heard internationally and not by a local Venezuelan court as that clause indicates.
I do not have an "agenda". I am merely trying to give my opinion and experience so that clearly erroneous information that cloud the issues may be exposed and discussed. I may be proven to be wrong and I am not a lawyer (not that they are right much of the time either) and I welcome any discussion, disagreement or presentation of opposing points of view.
As a professional with direct experience in arbitration, no_bear may have a better insight into the issues. I recall he offered to post his considered opinion on the arbitration process once he recovered from a sore throat he suffered a couple of weeks ago. I hope he is recovering and we will be able to read his explanation of the process and issues in the near future.
