Australian gold mining company takes legal action against Thailand

[tomacht8]

This is certainly being watched by the big global companys and conglomerates. Long-term legal certainty is already a primary factor in future location decisions. 

Big-caliber investors will look very closely what happend here and how this play out.

[Srikcir]

11 hours ago, the guest said:

I think Australia has a better chance of finding a Kangaroo in Thailand, than winning a case against the Government.

Kingsgate is not required to win in a case against the Thai government, ie., in court. It is only required to convince the arbitrator tribunal as specified in the trade agreement. See my post #50 for details.

 

The advantage of a free trade agreement is that respective governments (the trade agreement signatories) are not pitted against each other's judicial systems when there is an unresolved dispute. Thus, it becomes irrelevant on how corrupt a signatory's judicial system may be and one of the reasons that free trade agreements attract foreign investment - especially in a developing country like Thailand.

[LomSak27]

22 hours ago, FritsSikkink said:

What about the pollution and the health of the people in the neighborhood?

Your claiming that the Goverment shut it down to protect the Thai people?!

 

I would assume that they are in the process of kicking the Australian Company out so they can move in with there own company now that they know how to work the mine.

 

KIngsgate knows this and is using this route to publicize what is going on for other foreign companies who want to invest in Thailand. This what the real risks  are when you do business, invest in Thailand. So it goes.

[GOLDBUGGY]

11 hours ago, Srikcir said:

No the Plaintiff cannot back out.

If the two sides cannot reach voluntary reconciliation (which they haven't), arbitration is the only recourse according to the Australian-Thailand Free Trade Agreement. Thailand can of course refuse to participate in arbitration but the Arbitrators (likely 2 for and 1 against) will find 100% for Kingsgate. That cannot be appealed or litigated, ie., in a Thai court.

That's because litigation in court is not an option. Recourse is specified in the trade agreement: voluntary reconciliation and arbitration. Any attempt by Thailand to sue Kingsgate in court will have no legal standing.

I did not suggest that Thailand was going to Sue anyone here. All that I am suggesting is that Kingsgate just told us they plan to take this to Arbitration. So it is in the infancy stage. They haven't even filed any documents yet, so how can you say they can't back out. That they can't make a deal with Thailand before Arbitration?

 

What we are actually looking at here is that one party says the other party has broken there Contract. So Contract Law comes into force. Before any Arbitration can take place the first thing that needs to be determined is in fact a Contract was broken. If so they move on to the next level.

 

When a Professional Player takes his Contract to Arbitration, he usually does this against the Team Owners, over Compensation (Salary). He may have been offered a New Contract but feels he deserves more than that. But when taking this to Arbitration he and the Team Owners are also agreeing on any decision the Arbitration Board comes up with. Either the New Contract was fare, or he deserves more money.

 

My point is that in order for him to take this to Arbitration he has to be in a position to do so legally. He can't be under Contract and must be a Free Agent, or at least on his last year in this Contract. So this is why I said that to go through Arbitration they first have to determine if they are in a position to do so. 

 

Taking this to Arbitration is not automatic, like you imply, nor is it free. Just like not every Free Agent Professional Player goes to Arbitration either. Even if they don't like there New Contract. That is all the point I tried to make. As far as I can see Kingsgate has not won any compensation yet, and it is unknown at this stage if they will. That will take years and a lot of money to find this out.

[Srikcir]

1 minute ago, GOLDBUGGY said:

So Contract Law comes into force.

Wrong.

Unless there is international contract law allowed by the trade agreement, ie., under the World Trade Organization.

One last time - the laws of a nation as a signatory do not apply to the subject trade agreement except for example with regard to the operating license in the subject case. Any alleged contract violation in the Australia-Thailand Free Trade Agreement that cannot be reconciled between Kingsgate and Thailand (which it has not) can only be addressed according to the remedies specified in the ATFTA. Australia and Thailand contract laws are irrelevant except to an extent provided under the ATFTA.

Please read the AFTA cited in my post #50.

[Srikcir]

19 minutes ago, GOLDBUGGY said:

That they can't make a deal with Thailand before Arbitration?

Read the ATFTA please.

In the case of disagreement, ATFTA provides for a Reconciliation process prior to the Arbitration process. The Reconciliation process took place and no resolution resulted. What remains is arbitration.

At this point it is certainly an option for both parties to go into arbitration with an agreement. But the 3-person arbitration tribunal will make the final decision that will be binding on both parties.

[Media1]

6 hours ago, wakeupplease said:

Well done Kingsgate now push it all the way as this was an attempt to take a business that the locals simply did not have the know how to do away from a Farang company and give it to a Thai company (in waiting) after they stole your know how. Just goes to show you cannot trust the top yellows or J boys and should never contemplate putting a business here unless you are Japanese who they still fear as the west seems to keep letting them get away with rip offs where the Japanese do not.

I laugh when the so called PM goes live promoting invest in Thailand. He really is a funny coup leader. He actually believe's his honest.

[FritsSikkink]

16 hours ago, Just Weird said:

There wasn't any proof of any pollution or damage to local's health.

According to the doctors of those people there was

[kaorop]

Lucky we have Srikcir to give some context to this mess..that without would have rendered this thread into 'a lets all laugh at/blame the oz company' 

[GOLDBUGGY]

11 minutes ago, LomSak27 said:

Your claiming that the Goverment shut it down to protect the Thai people?!

 

I would assume that they are in the process of kicking the Australian Company out so they can move in with there own company now that they know how to work the mine.

 

KIngsgate knows this and is using this route to publicize what is going on for other foreign companies who want to invest in Thailand. This what the real risks  are when you do business, invest in Thailand. So it goes.

Yes, and if I recall correctly, this all got started by people in the neighborhood protesting and claiming excess pollution and health problems. The Thai Government decided to investigate this further, which I think any responsible government should do.

 

When they discovered that some of these claims appeared to be true, with complaints of Arsenic and Manganese contamination in nearby villages they suspended Kingsgate License and closed the Gold Mine down in January to undertake more studies.

 

It was discovered later that many people living near the Chatree Gold Mine had been exposed to a lot of arsenic and manganese for a long period of time. The Health Minister confirmed that these health issues are real. But they could not prove or pinpoint if it came from the mine as no studies were done on these people before the mine opened.

 

In August, after this study was completed, the government decided to remove this suspension and gave the mine back to Kingsway. But Kingsway argued lost revenue and a re-start up cost of $50 Million, and 5 months to do that in. That is $50 Million? They also claim they will also need to replace new equipment, which heaven knows why after only 8 months.

 

The Thai Government refuse to help with the Start-up cost and purchase of there new equipment, but agreed to provide meaningful benefits in consideration of this shut down. Kingsgate refused and now seeks additional compensation.  Nobody is running this Mine right now or ever have since it's shut down in January. It is considered to be the first and only big foreign investor to be impacted this way.

 

I get the feeling that everyone here thinks it is an automatic slam dunk, if Kingsway takes this to Arbitration. I am not so sure. People's concerns and health issue need to be addressed when dealing with Mining. I believe the Thai Government acted responsibly. Maybe shooting first then asking questions later is not the right approach. But had this happened in Australia, or Canada, or the USA, it would have been handled in the same fashion. Maybe providing compensation later? Maybe not?     

[GOLDBUGGY]

1 hour ago, Srikcir said:

Wrong.

Unless there is international contract law allowed by the trade agreement, ie., under the World Trade Organization.

One last time - the laws of a nation as a signatory do not apply to the subject trade agreement except for example with regard to the operating license in the subject case. Any alleged contract violation in the Australia-Thailand Free Trade Agreement that cannot be reconciled between Kingsgate and Thailand (which it has not) can only be addressed according to the remedies specified in the ATFTA. Australia and Thailand contract laws are irrelevant except to an extent provided under the ATFTA.

Please read the AFTA cited in my post #50.

One last time I know that Thailand can't resolves this in there own Courts in Thailand, and I never once even suggested they would even try to. It is you who keeps suggesting this.

 

Yes, I did read your post on #50. On page 47 it says that if a dispute in question cannot be resolved then by choice of the Investor he can take this to Arbitration.

 

Whow! I read 47 pages to come to this which all of us knew here already. Since I already said the Arbitration is a World Court, and not a Toothless Tiger, then obviously the court wouldn't be held in Thailand. It is a third party court. I thik we all knew that to.   

 

Contrary to your belief, any Agreement in writing is a Contract! Oral to if it can be proven. Whether it is a Trade Agreement, Marriage Agreement, or a Mortgage Agreement, they are all Contracts! Fluff it up with this word or that word, but they are still all Contracts.

 

The Contract that Kingsgate has with Thailand is the one in question. If Kingsgate does not follow the environmental issue in there Contract or the Environmental Permit, of course they can be shut down. Free Trade Agreement or not. You seem to fail to see this or understand this.

 

Going to Arbitration by Kingsgate against Thailand is just another form of saying Kingsgate trying to sue Thailand in a World Court. You don't seem to get that either. Yes, Free-Trade does have a means to settle disputes, but the Contract signed between Kingsgate and Thailand is also a binding Contract recognized in World Courts.

 

Everyone seems sure Kingsgate will win. I am not so sure. All I know is that a good Poker Player never shows his hand until all the betting is done.  

[GOLDBUGGY]

7 hours ago, tomacht8 said:

This is certainly being watched by the big global companys and conglomerates. Long-term legal certainty is already a primary factor in future location decisions. 

Big-caliber investors will look very closely what happend here and how this play out.

No Big Caliber Investor would invest in a One Trick Pony Act like Kingsgate, where for Kingsgate that Pony ran away. They have no Gold Producing Mines now and why this stock dropped to a fraction of the price from where it was in 2011.

 

What you have now are mostly small time gamblers hoping to make a quick profit on this stock. If Kingsgate decides to re-open this mine, and raises the money to do so, it might be a good investment. If you wait for Arbitration then you are trying to catch a falling knife.

[Cadbury]

1 hour ago, FritsSikkink said:

According to the doctors of those people there was

You mean the doctors employed by the greedy opportunistic lawyers acting on behalf of those people who couldn't get a job at the mine but wanted to be paid anyway.

We have been through this before and you are beginning to sound like a broken record. There was no pollution. That was confirmed by the government minister concerned. There was no proven health risks caused by the mine and that's why the litigants got a big fat nothing.

[GOLDBUGGY]

2 hours ago, Srikcir said:

Wrong.

Unless there is international contract law allowed by the trade agreement, ie., under the World Trade Organization.

One last time - the laws of a nation as a signatory do not apply to the subject trade agreement except for example with regard to the operating license in the subject case. Any alleged contract violation in the Australia-Thailand Free Trade Agreement that cannot be reconciled between Kingsgate and Thailand (which it has not) can only be addressed according to the remedies specified in the ATFTA. Australia and Thailand contract laws are irrelevant except to an extent provided under the ATFTA.

Please read the AFTA cited in my post #50.

 

6.  Any arbitral tribunal established under this Article shall, in the event of a dispute related to an alleged breach of an obligation of this Chapter, reach its decision on the basis of the provisions of the present Agreement, as well as applicable rules of international and domestic law.

[Aussieroaming]

18 hours ago, bazza73 said:

Whether cyanide pollutes or not depends on how it is treated after use.

Waste treatment to oxidize cyanide is either by alkaline chlorination, or a combination of UV light and hydrogen peroxide.

Because these treatments cost money in terms of capital and operating expenses, some of the cheapass miners simply dilute the waste with water, aiming at a final concentration that won't ruffle the feathers of the local environmental authorities. That doesn't happen only in developing countries - North Ltd tried it on with a prospective gold mine at Lake Cowal in Australia some years ago. From memory, they were aiming to discharge 50 mg/L of cyanide into a wildlife habitat.

The gold industry hasn't covered itself in environmental glory over the years. There are streams in the gold province of Victoria which are still grossly polluted with mercury a century later, from when mercury was used instead of cyanide to extract gold.

I suspect in the Thai situation, some money has changed hands and the current brouhaha is because it didn't go to the right person.

I would assess the probability of Kingsgate being successful in its claim as approaching zero.

Kingsgate are a Cyanide Code Signatory and to become a signatory you have to have demostrated through practice that your operation controls all stages of cyanide handling, use and disposal and that the waste disposal cyanide concentration is always below the permitted international threshhold. Having participated in getting a gold processing facility accepted as a cyanide code signatory I understand without a shadow of a doubt that Kingsgate wouldn't have been discharging any cyanide related waste or wastewater. The auditing is all carried out by a third party and is extremely comprehensive. If I had any concerns in regards to the emissions from a mine like Chatree it would more likely be environmental disturbance or dust related pollution. Cyanide is used to leach the ore and is then subsequently destroyed prior to discharging into the tailings empoundment and Kingsgate wouldnt have passed their audits if they couldn't conclusively prove that their Cyanide Destruction Treatment Process was producing waste water within tolerance. For those interested in understanding the rigors imposed on responsible mining companies the following link assists http://www.cyanidecode.org/about-cyanide-code/faq

 

For those who prefer to scaremonger about cyanide then please at least take the time to understand the effort it takes for responsible miners to obtain and achieve this level of compliance. 

 

Based on my experience in Asia it usually small illegal miners working outside the lease boundary's that are the real problem, as they pollute the water ways with cyanide and mercury and are completelly uncontrolled.

 

[Cadbury]

44 minutes ago, GOLDBUGGY said:

"If Kingsgate does not follow the environmental issue in there Contract or the Environmental Permit, of course they can be shut down".

"You seem to fail to see this or understand this."

If anyone is failing to understand something it is you. There is no environment issue. That has already been proven and acknowledged by the government minister responsible. Kingsgate is not stupid enough to pursue the matter if they were guilty of Thai mining environmental laws.

The issue is that the mine was shut down arbitrarily by Prayut using his Article 44. End of story.

It came as no surprise when it was later suggested that there were a few "connections" in the know who were lined up hoping to acquire a very productive gold and silver mine on the cheap.

[Just Weird]

2 hours ago, FritsSikkink said:

According to the doctors of those people there was

And those claims were dismissed as being false.

[GOLDBUGGY]

17 minutes ago, Cadbury said:

If anyone is failing to understand something it is you. There is no environment issue. That has already been proven and acknowledged by the government minister responsible. Kingsgate is not stupid enough to pursue the matter if they were guilty of Thai mining environmental laws.

The issue is that the mine was shut down arbitrarily by Prayut using his Article 44. End of story.

It came as no surprise when it was later suggested that there were a few "connections" in the know who were lined up hoping to acquire a very productive gold and silver mine on the cheap.

This mine was suspended and never taken away. The government could not prove conclusively that Kingsgate had environmental issue. But that doesn't prove anything. They did give this mine back to Kingsgate in August, so this talk of "connections in the know lined up to take a productive mine" is also all wrong.

 

Thailand has not benefitted from suspending this mine. They lost a lot of money on Royalties, not to mention putting 1,000 Tax Paying Thai Workers out of good paying jobs. Many of these workers also came from local villages, so finding new employment for them will not be easy.

 

Several workers and including several people living in the villages around this Mine have high levels of arsenic and manganese poisoning in there systems, over long periods of time, which can't be explained as natural.They were never tested before this mine was open so they can not prove this came from the mine.

 

But how much more proof does one need to suspend a suspicious Gold Mine and try to find the probable cause? Or to put this another way, how many people have to die first of Arsenic Poisoning before the government steps in and does anything to prevent this?

 

You know! If I was going to try and screw somebody I may do it if I can see a financial gain for me. But I would never do this knowing it will turn into a financial loss for me, and like with Thailand suspending the licenses of this mine until more investigation has been completed. 

 

I don't know if Kingsgate is the cause of this or not. But just remember what Mark Twain said about Gold Mines. He said a Gold Mine is just a big hill with a liar standing at the top. Take that as you wish.    

[GOLDBUGGY]

18 minutes ago, Just Weird said:

And those claims were dismissed as being false.

Those claims have never been dismissed. Even the Minister of Health said they were real. They just can't prove where these high levels of Arsenic and Manganese in the nearby villages and workers came from. Nothing fake about it.

[FritsSikkink]

30 minutes ago, Just Weird said:

And those claims were dismissed as being false.

By who?

[FritsSikkink]

1 hour ago, Cadbury said:

You mean the doctors employed by the greedy opportunistic lawyers acting on behalf of those people who couldn't get a job at the mine but wanted to be paid anyway.

We have been through this before and you are beginning to sound like a broken record. There was no pollution. That was confirmed by the government minister concerned. There was no proven health risks caused by the mine and that's why the litigants got a big fat nothing.

You know not much about Thailand. If you don't have money you don't get a lawyer. If you have money, you won't work in a gold mine.

[Just Weird]

12 minutes ago, GOLDBUGGY said:

Those claims have never been dismissed. Even the Minister of Health said they were real. They just can't prove where these high levels of Arsenic and Manganese in the nearby villages and workers came from. Nothing fake about it.

The claims about the company being responsible, or there being any health risks caused by the company, were dismissed.

[Cadbury]

Your bit about local workers losing their jobs was sad but it was not the Thai government that shut down the mine based on any contravention of laws (or suspected contravention). The government itself does not have the use or control of Article 44. That is exclusively the pet play thing of the Prime Minister.

So it was Prayut that shut the mine down; all by himself. He caused them the loss of their jobs. Not the government or Kingsgate.

And the litigants who were lined up behind the greedy parasitic lawyers acting for them in trying to claim millions of baht for alleged heath issues got nothing. What does that tell you?

 

[GOLDBUGGY]

3 minutes ago, Just Weird said:

The claims about the company being responsible, or there being any health risks caused by the company, were dismissed.

Dismissed by who? Would it be Kingsgate?

[Just Weird]

8 minutes ago, FritsSikkink said:

By who?

The Industry Ministry and the Public Health Ministry both investigated and cleared the company.

[Just Weird]

2 minutes ago, GOLDBUGGY said:

Dismissed by who? Would it be Kingsgate?

No, it wouldn't.  The Industry Ministry and the Public Health Ministry both investigated and cleared the company.

[Cadbury]

Both Kitchensink and Goldfinger are starting to sound like cracked records. They know the facts but just refuse to accept them because they don't fit their personal points of view. Now they are really scraping the bottom of the barrel to try to save their arguments.

No hope I am afraid. Kingsgate's got PM Prayut and the Thai government by the short and curlies.

Edited November 4, 2017 by Cadbury

[GOLDBUGGY]

5 minutes ago, Cadbury said:

Your bit about local workers losing their jobs was sad but it was not the Thai government that shut down the mine based on any contravention of laws (or suspected contravention). The government itself does not have the use or control of Article 44. That is exclusively the pet play thing of the Prime Minister.

So it was Prayut that shut the mine down; all by himself. He caused them the loss of their jobs. Not the government or Kingsgate.

And the litigants who were lined up behind the greedy parasitic lawyers acting for them in trying to claim millions of baht for alleged heath issues got nothing. What does that tell you?

 

In my country, and in the UK, the Prime Minister is the head of our Governments. They are in charge of the Minister who take care of the day to day issues in running the country. But to say that the Prime Minister does not form any part of the government is simply crazy.

 

Nobody took anything away from Kingsgate. They were waiting to renew there permit last summer, when this new permit was suspended. They were given permission to run this mine until the end of that year and upon further investigations. They have been running it for 15 years already.

 

If it is true in what you say, that people were lined up with lawyers to sue for millions, then all I have to say is I never heard this before. But even if there was a ounce of truth and proof to this, then I can only say 2 things. To settle these cases so fast in within 8 months is unheard of anywhere. These type of case drag on for many years. So I doubt any took place yet.

 

The next thing I have to say is that if this Gold Mine proved to cause these health issues with the surrounding people, who now have to live with health problems the rest of there lives, or even a shortened life, then they should be allowed to sue and to sue big. What if that was you and your family who is suffering because of that? Are you just going to sit on your hands and do nothing, like you expect them to?

[Cadbury]

8 minutes ago, GOLDBUGGY said:

In my country, and in the UK, the Prime Minister is the head of our Governments

I couldn't be bothered reading much after that comment. What on earth has the UK and the UK Prime Minister got to do with Thailand.

With Thailand government anything goes whenever the time is most opportunistic; most people know that.

 

8 minutes ago, GOLDBUGGY said:

Nobody took anything away from Kingsgate

That is arrant nonsense. PM Prayut shut it down using Article 44. How many times do you have to be told. I give up!

 

Edited November 4, 2017 by Cadbury

[Dodgydownunder]

Having read through the posts it seems that the junta government have gotten themselves into a very tight spot and they can't rely upon their rotten to the core justice system to let them wriggle out of it.

 

Sit back and enjoy the entertainment, folks, as Prayut tries to squirm his way out of this in the coming months and years. No doubt, the Australian company will be blamed for this in the Thai media.