VANCOUVER, BRITISH COLUMBIA--(Marketwire - March 12, 2013) - Sattva Capital is pleased to announce a panel comprising three justices from the Supreme Court of Canada (SCC) has granted Sattva Capital leave to appeal with costs from the judgment of the BC Court of Appeal (BCCA).
In a ruling dated August 7, 2012, a panel of three judges overturned the award granted by the arbitrator, referring to the decision of another BCCA panel that had previously granted Creston Moly (a subsidiary of Mercator Minerals) leave to appeal the arbitrator's damage award. Subsequently, Sattva Capital sought leave to appeal this latest BCCA decision to the Supreme Court of Canada.
"Given the fact that the Supreme Court of Canada usually doesn't hear contractual disputes and is primarily concerned with cases of broad public policy and constitutional implications, we are highly encouraged by this turn of event," said Hai Van Le, Sattva Capital's Managing Director. "The SCC decision is a watershed moment, a turning point in our long-running quest to hold Creston accountable."
The SCC decision is also a milestone in the annals of arbitration. There are important legal principles of interest to the public for the Supreme Court of Canada to clarify. In particular, this case has laid plain several principles of public import:
- When, why and how should a court hearing an appeal of an arbitral award be bound by Court of Appeal determinations made at the leave stage? If an appeal court ruling on such a preliminary matter as leave is subsequently binding on all levels of the court system, it is difficult to fathom any party affected by the ruling continuing to seek justice. The direct effect could be to hobble judges from independently arriving at a decision based on principles and facts.
- Can a higher court disregard an arbitrator's findings of fact and substitute its own findings irreconcilable with those of the arbitrator? The attractiveness of arbitration as a legal means to settle commercial disputes is its speed, efficiency, cost savings and availability of arbitrators with the expertise in the area of dispute.*
The Supreme Court of Canada is expected to begin hearing oral arguments sometime in the fall of 2013. The final ruling can be expected in 2014.
Said Mr. Le: "It has taken us six years to get this far. What began as a breach of contract has now morphed into an issue encompassing a number of legal precedents with broad implications for those who pursue arbitration as a means to resolve disputes. In the end, we have absolute faith the rule of law will prevail."
CHRONOLOGY OF EVENTS:
Interested parties can access all legal judgements to date at www.sattvacapital.net/play-by-the-rules.htm. The arbitrator's award provides a detailed outline of the case. Supreme Court of BC's Justice Armstrong's 27-page decision provides rigorous analysis of all the pertinent issues.
January 12, 2007 - Sattva Capital and Creston Moly signed a finder's fee agreement concerning the availability of Mexico's biggest molybdenum deposit. Georgia's market value at the time was $6 million.
May 15, 2007 - Creston closed the acquisition of Mexico's biggest molybdenum deposit.
December 23, 2008 - Arbitrator Leon Getz awarded damages of $4.14 million against Creston for breach of contract.
August 7, 2009 - The Supreme Court of British Columbia denied Creston leave to appeal.
May 14, 2010 - A BCCA panel granted Creston leave to appeal the arbitrator's damage award.
May 6, 2011 - The Supreme Court of British Columbia dismissed Creston's appeal with costs. The verdict came a few weeks after Creston agreed to be bought by Mercator in a transaction valued at $195 million.
August 7, 2012 - Another BCCA panel ruled that it, like the Supreme Court of BC below, ought to be bound by determinations made earlier by their colleagues at the leave stage
March 7, 2013 - A panel of three Supreme Court of Canada justices granted Sattva Capital leave to appeal with costs the decision of the second BCCA panel.
* In Sattva Capital's case, Mr. Leon Getz, Q.C., the arbitrator, is an experienced securities lawyer with a long record of distinguished service. It was Creston Moly that selected Mr. Getz as arbitrator.
ABOUT SATTVA CAPITAL
Sattva Capital is a boutique investment bank specializing in cross-border M&A and corporate finance in the mining industry. We pride ourselves on the quality of our advice, ideas and a vast network of contacts around the world to bring clients a steady flow of deals. For more information, visit www.sattvacapital.net.