Pacific Wildcat Resources Corp (PWCRF)

[Mr. Bill]

So in reviewing the document I get these impressions/thoughts. These are just my opinion about what I believe the document is saying...

Here is my best guess at some of the critical sections and what I think they are trying to say...

* Mrima Hill had been classified as a forest/nature reserve national monument: special protected status of Mrima Hill as a forest reserve, nature reserve and national monument. No licensing authority under any law in force in Kenya shall issue a licence for any project for which an environmental impact assessment is required under the Act unless the applicant produces to the licensing authority a licence of environmental impact assessment issued by the Authority [NEMA] under these Regulations.4 (emphasis added)
* Kenya claimed the company had never satisfied necessary requirements to be granted the mining license: The Claimants challenged the “revocation” before the Kenyan High Court, which, on 20 March 2015, ruled that SML 351 was void ab initio on the basis, inter alia, that the mining of
Mrima Hill was by statute prohibited, and that in any event the Claimants had not satisfied the prerequisites to comply with Kenyan law.7 The Tribunal recognizes that resource allocation was to a significant extent intertwined with politics in Kenya in 2013, but nevertheless the regulatory system, including statutory conditions precedent to the issuance of the mining licence, required compliance
* Since the company did not comply with Kenyan mining laws on the books at the time of the 2013 mining license issuance (just before other expired) no valid new mining license existed and hence they lack jurisdiction as there was nothing that was legal that existed for the ISCID to rule on The Claimants’ own evidence establishes that SML 351 was procured by their successful political lobbying of officials of the outgoing Kibaki Government. In the Tribunal’s
view, the freshly elected Government was not bound either under domestic law or international
law by a “purported” mining licence issued under political direction in disregard of the explicit requirements of the Kenya Mining Act and other relevant Kenyan legislation.8 The Tribunal is not
bound by the decision of the Kenyan courts but has reached the independent conclusion that SML
351 was void. It was a scrap of paper issued by an irresponsible bureaucrat contrary to specific
legislative requirements. In the circumstances, the Claimants have failed to establish the existence of an investment that qualified for treaty protection. Accordingly, ICSID and the Tribunal lack jurisdiction and the claim is dismissed.

In the alternative, if SML 351 could be said to have been issued at all, it was voidable if not void. On that basis, accepting that the onus would then shift to the Respondent to establish
illegality, the Tribunal finds that the Government has established that SML 351 was issued
contrary to the laws of Kenya and international law and does not qualify as an investment protected by the Treaty or the ICSID Convention.