Haruna:
I know you are tenacious and there is something to be said for such a spirit.
However, your Fairfax case is not analogous to the Gambia Government - Carnegie dispute. In the Fairfax case a third party was not seeking to intervene in a contractual dispute. The community was directly injured by the tortious activities of the multinational corporation, and therefore had standing in availing itself of a legal remedy before the competent tribunals in Virginia. On the facts, there were aggravating circumstances, and courts do not look kindly on such conduct especially where there is an imbalance between parties, and huge resources are expended to frustrate a remedy. In the US, such conduct generally attracts potentially paralysing punitive damages.
Clearly, the Fairfax matter is distinguishable from Gambia Government - Carnegie. In the latter case, a third party intervention as you envisaged comes up against obstacles that are not capable of legal negotiation. To accept your premise would have direct implications for the sovereign authority of the Government. I am not sure any court of law would travel that route with you.
I am unsure about the full contours of the Commonwealth Development Corporation's involvement, but it is partly to underwrite the integrity of the contractual process in the sense that the raw exercise of power routinely trumps legality in the Gambia. As that culture is a matter of common knowledge, the Gambia as a jurisdiction is contractually denied any role in dispute resolution. To state it uncharitably, Carnegie was fully aware that it was plunging into a lawless pool. Nevertheless, pertinent segments of the international system will ensure that a valid arbitration award against either party is fully complied with.
Do apprise me of exactly how you propose we crash into this private party guarded by the legal equivalent of oversize bouncers.
LJDarbo
Haruna Darbo <[log in to unmask]> wrote:
Citizen Lamin, honourable,
I appreciate your wise counsel as am sure our fellow citizens here
appreciate. I will reach you privately to share some ideas. I acknowledge the
contractual nature of the relationship between Carnegie Minerals and Yahya Jammeh and
the utter failures of the two parties to be guided by circumspect to avert
the "misunderstanding" that threatens to engulf an innocent citizenry. It is
in effect the competency of the two parties to enter into such contract that
was highly offensive.
I agree with your learned counsel that were we to accept the validity of the
contract, we will then be condemned to hopeless spectators. I urge you to
take a second look at the principle I share - that is that the contract itself
is not issue and therefore null and void as to the citizens of Gambia. I
encourage you to consider other venue for original citizen suit than a division
of the High court in London should that venue and officers prove unwilling or
inappropriate audience. I am convinced that due to the delinquent nature of
the two parties in Carnegie Minerals and Yahya, we must view this matter
extra-ordinary. I am informed that the arrangement between the two parties was
facilitated by the commonwealth development corporation and obviate the High
Court in London as venue.
As regards amicable resolution of matters such as this, I wish to share a
story with you.
Some years ago, I had the opportunity to share ideas with a multinational
corporation who was delinquent in leaking carcinogens into an aquifer body,
carcinogens which ended up in the water wells of a certain community in Fairfax
Virginia. The corporation already had world class PR firms and Counsel. I
volunteered to visit the site and speak with the residents and discouraged them
to rely on the litiguous prowess of counsel. Upon travelling to Virginia, I
came to realise that the community was livid because the corporation had
hidden monitoring well sample test results from them for a long time hoping that
their (corporation's) remediation and cordoning efforts would prevent
leacheate from reaching private wells. When I returned, I advised that in view of
such delinquency, the corporation should publish admission of error and omission
and that they should begin to purchase affected homes at fair market value
in addition to issuing compensation for inconveniences. I also advised that
they should proactively share results of all their monitoring wells with all
the communities in which they have underground storage tanks and above ground
tanks to include publicising remediation efforts. Needless to say, I was not
very popular with corporation brass and I was regarded with utter disdain and
regret for seeking my advise. They recoiled to assume an adversarial posture.
The acrimony festered, distrust prevailed. A court later found the
corporation liable and culpable to the tune of 5 times the amount it would have costed
were they to have taken a more benign and proactive posture and admitted
error.
AND, they are still paying for a more comprehensive remediation ordered by
the court.
What I wish to share Lamin is that spectacular negligence and delinquency
calls for extra-ordinary measures. I will continue this conversation privately
with you and hopefully to speak with you over the phone. Carnegie Minerals and
Yahya's delinquencies must not render us victims or helpless spectators. I
am terribly disappointed at Carnegie. I am not disappointed at Yahya because I
was not surprised at his belligerence. The record is available for all and
sundry who are trained on sobriety and circumspect.
Thank you again Lamin and I look forward eagerly to speaking with you.
Haruna.
In a message dated 2/27/2008 5:48:12 P.M. Mountain Standard Time,
[log in to unmask] writes:
I meant to say "Cooperation in the manner ,,,
LJDarbo
Lamin Darbo wrote:
Haruna:
Notwithstanding that the Gambia Government's potential liability is in the
millions of pounds, the dispute with Carnegie is a simple contractual matter.
The parties apparently settled on binding arbitration, thereby excluding any
possibility of litigation in the appropriate High Court division in London.
Even in the event of litigation, third party intervention is unlikely to
attract judicial blessing in so far as this particular dispute involves no
important principles of general public concern, effectively excluding permission
for an amicus brief.
I appreciate your concern and public spiritedness, but in a contractual
dispute between two competent parties, you and I are condemned to watch the
contest from the sidelines. Cooperation in the matter you envisaged is unlikely
from either party, albeit for different reasons.
In light of its apparent conduct in effectively terminating the contract
without invoking the agreed dispute settlement mechanism of arbitration, the
prospect of success appears dim for the Gambia Government.
LJDarbo
Haruna Darbo wrote:
Hello Simon,
I am in receipt of your response which I attach for my fellow citizens.
I wish to thank you for acknowledging us and we understand your position and
predisposition. We regret that both Yahya & CO. and Carnegie are averse to
recognising the citizens of Gambia as unique party to your current
dispute/misunderstanding, ample evidence to the contrary notwithstanding.
I am also aware of efforts by both Carnegie Minerals and Yahya & Co.
attempting to coerce proprietors and editors of Gambia online newspapers to
do their
bidding. I discourage my fellow citizen proprietors of Gambia online news
services from yielding to such coercive advances. This is a landmark case
which
has sobering precedence. We must not sell our souls for material
considerations from unscrupulous entities.
by copy of this note, I encourage Mr. Ousman Sillah, Mr. Lamin Darboe, Mr.
Bakary Conteh, Mr. Chongan, Mr. Sanusi Owens, Mr. Halifa Sallah, Mr.
Ousainou
Darboe, Ms. Mariam Denton, to consider engaging other appropriate fellow
citizens, proficient in law and jurisprudence, and form themselves into a
Citizen
Legal Defense team with a view to protecting the interest of the citizens of
Gambia. I will volunteer, along with desiring citizens and online Gambia
newspaper editors, to form ourselves into the Public Relations arm of such
an
entity.
Lamin, please inform me if you are amenable to leading such an adhoc team of
distinguished legal advocates. I will begin raising funds for such an
endeavour. I encourage my fellow citizens in public fora to speak their
minds and
show support for forming for our defense.
Sincerely,
Haruna Darbo
[log in to unmask]
In a message dated 2/27/2008 4:21:31 A.M. Mountain Standard Time,
[log in to unmask] writes:
Hi Haruna
I do hope you are well, my name is Simon Elliott and I am an MD at the PR
company FD. One of my clients is Carnegie Minerals plc.
Thank you for your note of 22 February. Having taken legal counsel
regarding the referred to mining license, we have been advised that it would
be
inappropriate to send you a copy while the legal case against the company
and our
colleague is ongoing. We will however review this once the case has
concluded.
Meanwhile thank you for your support,
Simon
Simon Elliott
Managing Director
(http://www.fd-llm.com/)
Holborn Gate, 26 Southampton Buildings
London, WC2A 1PB
T +44 (0)20 7269 9318
F +44(0)207 269 9367
M +44 (0)7711 387 084
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