Here you go, kiddies. Court's determinations are in italics. They weren't considering 8 and 9 at this stage.
The parties formulated a list of 9 issues for Tranche 1 as follows:
The Claim
Funding
(1) Whether, in the period between November 2011 and 2 March 2012, BR was under any express and/or implied obligation to provide funding to KSC, and if so, what was the scope of such obligation.
(a) Issue 1: BR was not obliged to provide funding. Clause 4 of the Funding MOU did not override cll 7.1 and 8 and of the JV Deed.
(2) Whether in or around November 2011, BR was obliged to consent to KSC obtaining a further advance from SCB of US$3.033 million for the purpose of repayment to BCBCS and/or to reimburse BCBCS for BR’s 49% portion of the original repayment of about US3.033 million to SCB.
(b) Issue 2: BR was not obliged to consent to KSC obtaining a further advance of US$3.033m from SCB to repay BCBCS’ temporary loan to KSC on 4 November 2011.
(3) Whether, in or around the period between 20 December 2011 and 20 February 2012, BR was under an obligation to:
(a) Reimburse BCBCS for 49% of KSC’s costs in terminating the employment of KSC’s expatriate personnel;
(b) Contribute 49% of expenses incurred in respect of the care and maintenance of KSC (including outstanding KSC insurance premium);
(c) Reimburse BCBCS for 49% of the fees charged by KSC’s external auditor for performing the annual audit of KSC; and/or
(d) Contribute 49% of the amounts owing to all external creditors of KSC (which expenses have therefore not been paid).
(c) Issue 3: BR was not obliged to provide funding. There was no clear undertaking by BCBCS at the time to provide funding until commercial production.
Coal Supply and Illegality
(4) Whether BR was under an obligation to supply and/or assist in procuring coal to be supplied to KSC on the basis set out in the JV Deed, PLFA and/or the 5 April 2011 Side Letter, in around the period between early November 2011 to 2 March 2012.
(d) Issue 4: We decline to answer this question at this stage of the proceedings as insufficient facts have been adduced to enable us to do so.
(5) Whether, in around the period between early November 2011 to 2 March 2012, the supply of coal under the 5 April 2011 Side Letter and the Coal Supply Agreements was and/or would have been illegal and/or entered into for an illegal purpose under Indonesian law by virtue of Regulation No. 17 of 2010 on Procedures to Determine the Benchmark Price for the Sale of Minerals and Coal.
(e) Issue 5: The April 2011 Side Letter and the 2010 CSAs are not tainted with illegality and are not void for uncertainty.
The Counterclaim
Claim of failure to exercise skill and care
(6) Whether it was an implied term of the JV Deed that in providing technical assistance to KSC in the development of the Patented Briquetting Process, BCBCS was under a contractual duty to use the reasonable skill and care to be expected of a competent designer, builder and operator of coal preparation and briquetting plants.
(f) Issue 6: BCBCS was not under an implied contractual duty to use the reasonable skill and care to be expected of a competent designer, builder and operator of coal preparation and briquetting plants in providing technical assistance to KSC.
Claim of Production of 1 MTPA of Upgraded Coal Briquettes within a reasonable time
(7) If in the period between November 2011 and 2 March 2012, BR was under any obligation to provide funding to KSC, then whether it was an implied term of the JV Deed and/or Funding MOU that BCBCS was under a contractual obligation to procure that KSC produce 1 MTPA of Upgraded Coal Briquettes within a reasonable period of time.
(g) Issue 7: This issue does not arise as there was no obligation on BR to fund the joint venture between November 2011 and March 2012. However for completeness, there was no implied term of the JV Deed and/or the Funding MOU that BCBCS was under a contractual obligation to procure that KSC produces 1 MTPA of upgraded coal briquettes within a reasonable period of time.
Claim against WEC for BCBCS’ breaches of the JV Deed and/or Funding MOU
(8) Whether WEC had an obligation under Clause 10 of the Funding MOU to guarantee BCBCS’ performance of its obligations under the JV Deed.
(9) Whether BCBCS entered into the Deed of Novation as WEC’s agent and by doing so, assumed the obligations under the JV Deed on behalf of WEC?
WEC Price at posting:
9.0¢ Sentiment: None Disclosure: Not Held
(20min delay)
