MIAMI -- Crystallex -- owed $1.4 billion for the expropriation of its Venezuela mining subsidiary -- has reached a billion dollar settlement with Venezuela.
Lawyers for Crystallex will ask an Ontario Superior Court to approve the settlement -- which is to be sealed at Venezuela and Crystallex's request -- this morning.
"Following months of start-stop negotiations with Venezuela, on November 15, 2017, Crystallex (through Venezuela Counsel) concluded the Settlement Agreement. The signed and stamped official version of the Settlement Agreement was received by Crystallex on November 20, 2017," reports Crystallex director Harry Near in the court filing.
"The quantum of recovery that Crystallex will achieve under the Settlement Agreement is extraordinary when compared to the amount of the Award, and I understand this may be the largest settlement that Venezuela has ever agreed to in relation to an arbitral award," says Near.
"That would put the award between the $1 billion Gold Reserve was able to obtain a settlement for and the $1.4 billion that Crystallex had been awarded," said Russ Dallen, an international lawyer and banker who follows Venezuela carefully and who uncovered the court filings for the Latin American Herald Tribune
(see below). The Settlement Agreement
According to the Court filings, Venezuela has agreed to pay Crystallex "a specified amount of the Award, plus interest."
The Settlement Amount is to be paid in a series of instalments, which include a series of up front instalments, recurring monthly instalments thereafter, and annual instalments until the Settlement Amount has been fully satisfied.
"On its face, the Settlement Agreement should provide value to the Company over time beyond the quantum of asserted creditor claims against the Company," says Near.
"The first instalment is payable on [date redacted], provided other conditions of the settlement have been satisfied;
upon payment of the first instalment, the Company will suspend all actions and proceedings it has commenced to enforce the Award and take no further steps to enforce the Award," the court filings say.
"Upon payment of the last instalment, the Crystallex will discontinue or terminate all actions and proceedings to enforce the Award."
"If Venezuela breaches any of its payment obligations under the Settlement Agreement, Crystallex will be entitled to re-commence all of its enforcement activities suspended by the settlement, as well as pursue and initiate new enforcement and collection efforts," says Near.
"As we have found out this week with Gold Reserve, the problem now becomes getting the money out of Venezuela," says Dallen. "Gold Reserve buried a bombshell on Wednesday night when it reported its third quarter financials -- Venezuela had been paying its $29.5 million dollar a month settlement payment into a Venezuela state-owned bank in Caracas since August and Gold Reserve had been unable to get that $88.5 million out of Venezuela." Gold Reserve says Venezuela Payments on $1 Billion Expropriation Stuck by Sanctions in Caracas
"One of the problems with the Settlement Agreement is that it contains strict confidentiality requirements, including restrictions on disclosure of the negotiations that led to the settlement as well as the terms of settlement," says Dallen. "So we don't know exactly what the terms are."
Crystallex "has been advised by Venezuela Counsel and I verily believe that these confidentiality provisions are extremely important to Venezuela because the country still has to deal with and address hundreds of billions of dollars in claims by other creditors," says Near in the court filings. "Given the importance of these confidentiality provisions to Venezuela in particular, the Company cannot make the Settlement Agreement publicly available. The Company will file a copy of the Settlement Agreement under seal and pursuant to an Order of the Court protecting its confidentiality. The Settlement Agreement has been disclosed to the Monitor and its counsel, counsel to the Company's noteholders and equity holders as well as certain other stakeholders, pursuant to the terms of their confidentiality agreements with the Company. The Company has also arranged for the Monitor to offer to provide certain key information concerning the settlement to the Company's stakeholders on a confidential basis through their counsel. The Company's objective is to ensure that its stakeholders can understand the key features of the Settlement Agreement but without breaching the important confidentiality requirements of the Settlement Agreement
imposed by Venezuela."Crystallex's Aggressive Legal Strategy
Crystallex -- controlled by a hedge fund with debtor-in-possession financing -- has been one of the most aggressive in pursuing litigation against Venezuela.
In August, for example, lawyers for Crystallex in an ongoing suit against Venezuela, PDVSA and Citgo filed a "Motion for An Order Authorizing the Issuance of a Writ of Attachment Fieri Facias
Pursuant to 28 USC 1610(C)", trying to seize PDV Holding, parent of Venezuela's Citgo unit in the USA. The Order is "against its shares, which are wholly owned by Petroleos de Venezuela, S.A. (PDVSA), alter ego of Defendant and Judgment Debtor Bolivarian Republic of Venezuela, and against any other assets or rights that PDVSA may have incident to its ownership of those shares...."
On June 9, after giving Venezuela time to appeal, pay the judgment or post a bond, the U.S. Federal District Court in Washington, D.C. that had upheld and registered the $1.4 billion arbitration award against Venezuela ruled that Crystallex could begin actions to enforce its judgment and seize assets of Venezuela.
Last week, on August 9, the U.S. Federal District Court in Washington, D.C. denied Venezuela's request for a stay of enforcement pending its appeal to the U.S. Court of Appeals.Fieri Facias
is Latin for "cause it to be done." A Fieri Facias
Writ of Attachment instructs a sheriff to seize and sell a defendant's property in order to satisfy a monetary judgment against the defendant. CRYSTALLEX $1.4 BILLION ARBITRATION AWARD UPHELD IN FEDERAL COURT
On March 25, 2017, the Federal Court in Washington, D.C. upheld and registered the $1.4 billion award against Venezuela.
"Because none of Venezuela’s arguments suffice to vacate or modify the award under the New York Convention, the Court grants Crystallex’s petition to confirm the award and denies Venezuela’s motion to vacate," concluded U.S. Federal District Court Judge Rudolph Contreras, dismissing Venezuela's objections.
Hughes Hubbard & Reed led the successful legal team on behalf of Crystallex for the registration and verification of the award. Foley Hoag led Venezuela's defense team. Crystallex has also had the award upheld and registered in Canada. DELAWARE FRAUDULENT TRANSFER SUIT
Crystallex was already suing Venezuela's PDVSA, PDV Holding and Citgo in U.S. Federal District Court in Delaware for the "fraudulent transfer" of billions of dollars of Citgo assets out of the U.S. Russia's state owned oil giant Rosneft has now also been named a defendant in that suit after an investigation by the Latin American Herald Tribune
uncovered that Venezuela had mortgaged 49.9% of Citgo to Rosneft in exchange for a $1.5 billion loan. That innovative lawsuit, led by Gibson, Dunn and Crutcher, is ongoing, and parts of it are already in the Federal Court of Appeals. The World Bank ICSID Judgment
In April of 2014, the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) had awarded the mining company Crystallex $1.202 Billion plus interest due to Venezuela’s unfair and inequitable treatment and unlawful expropriation of Crystallex’s investment in the Las Cristinas mining project in Venezuela.
Crystallex had filed its arbitration before ICSID on February 16, 2011, arguing that Venezuela had violated a Treaty between Canada and Venezuela for the "Promotion and Protection of Investments."
The ICSID Award upheld Crystallex’s claims that Venezuela breached Articles II(2) and VII(1) of the Treaty by failing to accord Crystallex’s investments in Venezuela fair and equitable treatment and by unlawfully expropriating those investments.
As a result of these breaches, ICSID ordered Venezuela to pay damages then amounting to $1.386 billion, based on a value for Crystallex’s investment in the Las Cristinas mine of US$1.202 billion on 13 April 2008 – the date when an environmental permit was denied by Venezuela – together with pre- and post-award interest from that date.
Among other things, the Tribunal criticized Venezuela’s Ministry of the Environment for its “arbitrary” and “non-transparent and inconsistent conduct” in connection with its denial of an environmental permit.
The Tribunal stated that it “cannot but conclude that the Permit denial letter and the Romero Report on which the first appears to be based are so fundamentally deficient that, to the eyes of a reasonable third person, they ‘surprise a sense of juridical propriety’….”
Venezuela, the Tribunal concluded, “frustrated Crystallex’s legitimate expectations …, engaged in arbitrary conduct in denying the Permit and rescinding the [Contract it had signed with Crystallex], and committed several acts lacking transparency and consistency.”
The Tribunal therefore found that Venezuela’s “overall conduct vis-à-vis Crystallex, thus violated the [Treaty]standard … and caused all of the investments made by Crystallex to become worthless.”
“On behalf of Crystallex’s board of directors, management, employees and all of its stakeholders, we are pleased that the Tribunal has recognized Venezuela’s unlawful expropriation of the Company’s investment in the Las Cristinas mining project," Crystallex CEO Robert Fung said at the time of the April 2016 judgment. "The company looks forward to collecting on the Award on behalf of all of its stakeholders. We thank our stakeholders for their deep understanding and support throughout this difficult and prolonged process, and our legal team, led by Freshfields’ partner Nigel Blackaby.”
At ICSID, Crystallex was represented by Freshfields Bruckhaus Deringer in Washington, D.C., Travieso Evans Arria Rengel & Paz and Wallis Guerrero in Caracas. Venezuela was represented by Foley Hoag.
Crystallex - Final Twenty Second Report of the Monitor (Redacted Version) - 23 Nov 2017 by Latin American Herald Tribune on Scribd
In Re Crystallex - Ontario SC - Sworn Affidavit of Harry Near - 21 Nov 2017 by Latin American Herald Tribune on Scribd
In Re Crystallex - Ontario SC - Settlement Approval Order (DRAFT) - 24 November 2017 by Latin American Herald Tribune on Scribd
Crystallex v Venezuela - USDC Del - Cry Motion for Attachment - 14 Aug 2017 by Latin American Herald Tribune on Scribd
Crystallex v Venezuela - USDC Del - Cry Proposed Attachment Order - 14 Aug 2017 by Latin American Herald Tribune on Scribd
Crystallex v Venezuela - USDC Del - Cry Myatt Declaration in Support of Attachment Motion - 14 Aug 2017 by Latin American Herald Tribune on Scribd
Crystallex v Venezuela - USDC DC - Opinion Registering $1.4 Million Judgment against Venezuela - 25 March 2... by Latin American Herald Tribune on Scribd
Crystallex v Venezuela - ICSID - Award for Crystallex ($1.4 billion) - 4 April 2016 by Latin American Herald Tribune on Scribd
Crystallex v PDVSA - USDC Del - Amended Originating Complaint Including Rosneft & GLAS - 4 Jan 2017 by Latin American Herald Tribune on Scribd