UPDATE ON SHAHUINDO LITIGATIONSULLIDEN EXPLORATION INC. - UPDATE ON SHAHUINDO LITIGATION
Sulliden Exploration Inc. is reviewing the long-standing litigation concerning the company's Shahuindo gold property in Cajamarca, Peru.
Following receipt of the decision of the arbitration tribunal in July, 2006, confirming Sulliden's full entitlement to the Shahuindo property, Sulliden had hoped that the Algamarcas (as defined below) would recognize the arbitration tribunal decision and withdraw their objection to the transfer agreement and to registration of the mining concessions in Sulliden's name.
Unfortunately, but hardly unexpectedly, the company's hope has not been realized. The other parties, Compania Minera Algamarca SA and Compania de Exploraciones Algamarca SA, have refused to recognize the arbitration decision and award and continue to try to ignore and frustrate the transfer agreement for the property. As before, the Algamarcas have initiated multiple legal claims and challenges in various courts, in different locations and often with different, conflicting jurisdictions, in their attempts to stop the execution of the arbitration award.
In response, Sulliden has initiated the necessary countermeasures, defences and appeals and has obtained from the 55th Civil Court in Lima an injunction in order to ensure that the arbitration award is recognized and enforced, that the transfer agreement is performed and that the ownership of the Shahuindo mining concessions is secured by Sulliden.
The following is a summary of the more significant events and developments.
Arbitration award
In July, 2006, as reported in Stockwatch July 24, 2006, the arbitration tribunal declared that:
Sulliden has fully met the terms and obligations of the transfer agreement dated Nov. 11, 2002, between Minera Sulliden Shahuindo SAC and the Algamarcas, including fulfillment of the payment of the full purchase price; and
the Algamarcas, and any third party that could have acquired any rights from the Algamarcas, must fulfill the obligations of the transfer agreement, including the execution of any act and any required public or private document.
Court injunction
In order to ensure that the arbitration award can be executed in July, 2006, as reported in Stockwatch Aug. 1, 2006, Sulliden obtained an injunction from the 55th Civil Court in Lima to order Compania Minera Algamarca SA and Compania Exploraciones Algamarca SA to comply with the decisions rendered by the arbitration tribunal.
In its injunction, the court:
orders Compania Minera Algamarcas SA and Compania Exploraciones Algamarcas SA, or any third party that could have acquired any rights from them, to restore to Sulliden the possession of the mining concessions, the superficial lands and any other goods corresponding to the Shahuindo property;
orders the Algamarcas, or any third party that could have acquired any rights from them, to abstain from carrying out any act that limits, impedes or hinders the right of Sulliden to exercise any mining activity in the Shahuindo property, acquired under the terms of the transfer agreement dated Nov. 11, 2002; and
orders the registration of the transfer agreement in the Trujillo mining registry and in the Cajamarca property registry of the 20 mining concessions and 19 superficial lands corresponding to the Shahuindo property detailed in the resolution.
This injunction in favour of Sulliden was registered in the regional registry at Trujillo against all 20 Shahuindo mining concessions on Sept. 5, 2006.
Registration of concessions
Following the arbitration award and granting of the award injunction, the registry tribunal of the National Superintendente of Public Registers (SUNARP) (the official Peruvian government state registry) issued its decision by Resolutions No. 038-2006-SUNARP/PT, April 6, 2006, No. 043-2006-SUNARPT/PT, April 20, 2006, No. 064-2006-SUNARPT/PT, June 2, 2006, in the appeal presented to the registry tribunal by Minera Sulliden Shahuindo SAC. The effect of the administrative order was to direct the regional registrar at Trujillo (where 20 of the Shahuindo mining concessions are registered) to register the transfer into Sulliden's name of the 20 mining concessions.
In pursuit of this administrative order issued by the registry tribunal the regional registrar in Trujillo registered Sulliden as the owner of the 20 concessions on Sept. 8, 2006, as reported in Stockwatch Sept. 13, 2006.
Actions by Algamarcas
In response to the issue in Sulliden's favour of the arbitration award, the award injunction and the SUNARP registry tribunal administrative order, the Algamarcas and their associate companies have taken a number of steps including:
filing a petition in the Commercial Chambers of the Superior Court in Lima seeking a declaration of nullity of the arbitration award. In this action, the Algamarcas argue that the arbitration tribunal did not have competence to hear the dispute and that the members of the arbitration panel were conflicted. The petition of Compania Minera Algamarca SA File No. 1757-2006 was issued on Oct. 25, 2006. The petition of Compania Exploraciones Algamarca SA, File No. 1753-2006 was issued on Nov. 6, 2006;
commencing various actions against the SUNARP registry tribunal (not Sulliden), seeking the declaration of nullity for the registration of the 20 concessions in Sulliden's name and obtaining an injunction/order from the Court of Cajamarca suspending the registration of certificates in favour of Sulliden. That temporary injunction order has been registered (filed) in the SUNARP and noted on the dockets relating to the 20 concessions (Sept. 18, 2006). The suspensions do not affect the owner's name and after registration of the injunctions the title remains in the name of Sulliden. Compania Minera Sulliden Shahuindo SAC had presented a petition to the court in order to be part of the process and to protect its rights against the court's decision;
causing Inversiones Mineras Sudamericanas SA, Sucursal Perz (Sudamericanas) (an associate company registered in Panama) to commence an action against the SUNARP registry tribunal (not Sulliden) and obtain an injunction order against the SUNARP tribunal in the District Court of Sanchez Carrion (a town in La Libertad). That temporary injunction order has been registered (filed) in the SUNARP and noted on the dockets relating to the 20 concessions (Sept. 8, 2006). The suspensions do not affect the owner's name and after registration of the injunctions the title remains in the name of Sulliden. Minera Sulliden had presented a petition to the court in order to be part of the process and to protect its rights against the court's decision;
causing Minera Pilacones SA (Pilacones) (an associate company) to commence an action against the SUNARP registry tribunal (not Sulliden) in the district of Trujillo. The Fourth Civil Judge of Trujillo by resolution dated Sept. 28, 2006, ordered the registry at Trujillo to restore Pilacones as the owner of eight mining concessions. The court order was registered by the SUNARP registry on Oct. 12, 2006, and by its terms affects title to the eight concessions in the name of Pilacones; and
causing Sudamericanas (an associate company) to commence an action against the Compania Minera Algamarca SA and Compania de Exploraciones Algamarca SA (not Sulliden) in the district of Cajamarca. The Third Civil Judge of Cajamarca by resolution dated Sept. 14, 2006, ordered the SUNARP registry to restore Sudamericanas as the owner of five mining concessions. That order was issued without notice to Sulliden and in breach of the award injunction. The court order was registered on Sept. 25, 2006. Registration of that order does not change the registered ownership and title to the five concessions remains in the name of Sulliden Shahuindo SA.
It would appear that the objective is to create some confusion in the titles of Minera Sulliden and to raise arguments of conflict of competence between the award injunction and those court orders. Algamarcas had earlier purported to illegally transfer ownership of some of the concessions, and the surface lands, to related companies, including Sudamericanas, Pilacones and Andean Mining Gold Inc. SA (Panamanian company).
In addition, the Algamarcas and their related companies have continued to press forward with other earlier and new actions including civil, criminal and constitutional claims in various courts seeking to have the transfer contract declared unenforceable and invalid and seeking to have the arbitration process (and the arbitration award) suspended.
The basis of these claims are substantially the same grounds that were argued before the arbitration tribunal, namely abuse of constitutional rights, lack of authority to sign the contract, contract signed by a different company, contract did not include surface land, lack of competence of the tribunal and conflicts of interest by the tribunal members. All of these arguments were previously considered in detail and rejected by the arbitration tribunal.
Reply of Sulliden
In reply to the recent actions taken by Algamarcas, Minera Sulliden has contested the various court actions, has filed appeals against the court orders and in turn has initiated its own action for breach of the award injunction.
Minera Sulliden has presented a petition to the Court in Cajamarca against the injunction granted to Algamarcas in order to become a party to the proceedings and to protect its rights against the court decision.
Minera Sulliden has presented a petition to the District Court of Sanchez Carrion against the injunction in favour of Sudamericanas in order to become a party to the proceedings and to protect its rights against the court decision.
Minera Sulliden has appealed the decision and order of the Fourth Civil Judge of Trujillo in favour of Pilacones to the Superior Court of Trujillo and has also filed a constitutional petition against the process in the Superior Court of Lima.
Minera Sulliden has also filed its replies to the nullity petition on Oct. 25 and Nov. 8, 2006, and expects that the petition will be heard by the Commercial Division, Superior Court of Lima early in 2007.
Minera Sulliden has presented a petition to the 55 Judge of Lima (injunction award), to restore and maintain all the 20 claims (in the registry of Trujillo) in Sulliden's name.
Comment
It is regrettable that Algamarcas has chosen not to recognize or obey the arbitration award. The various attacks, actions, and court orders were not unexpected and indeed are likely to continue and even escalate. Sulliden has taken, and will take, whatever legal action may be necessary or advised in order to ensure execution of the arbitration award, and in the meantime is pressing forward on all fronts.
Sulliden has appointed Javier Fernandez-Concha, one of Sulliden's lead lawyers in Peru, as full-time general manager for operations for Minera Sulliden Shahuindo SAC Peru to lead its efforts in Peru at this time, as reported in Stockwatch Oct. 12, 2006.
In summary:
the arbitration tribunal ruled in Minera Sulliden's favour. This is the only determination on the merits of the case as everything else is a procedural or jurisdictional argument;
the arbitration award is valid in Minera Sulliden's favour;
the 55th Court of Lima has issued an injunction in favour of Minera Sulliden to protect execution of the award;
the SUNARP registry tribunal has ordered the registration of all of 20 Shahuindo claims in Sulliden's name in Trujillo and this has been done as the last administrative and competence decision;
as of today 12 of the 20 claims are registered in the name of Minera Sulliden in the registry of Trujillo;
the other eight claims are registered in the name of Pilacones, by a judge's order, and not as a normal legal decision of the registry authority, in the registry of Trujillo. Minera Sulliden does not agree with the legal effect of the judge's order;
the remaining six claims are registered in Minera Sulliden's name in the national SUNARP registry in Lima;
Algamarcas has petitioned for a declaration of nullity against the arbitration award. Sulliden is defending the petition and is confident that it will be successful; and
Algamarcas has initiated various legal challenges against the decision of the SUNARP registry tribunal, and has obtained various temporary orders which have been registered on the concession files.
Every action/claim/order initiated by Algamarcas has not yet been finally heard by the courts and will be opposed/defended by Sulliden and any orders or injunctions registered on the concessions are temporary, and can be revoked.
Caution to shareholders/investors
The numerous legal actions, claims, procedures and orders in the Shahuindo litigation can be confusing. The legal and judicial system in Peru is complex, with overlapping and often conflicting court jurisdictions. The Peruvian legal, judicial and court system is significantly different than the Canadian legal system and even certain terminology does not necessarily have the same meaning or effect in Peru as it may have in Canada. Shareholders and investors are cautioned not to rely on comments in various Internet chat rooms. Sulliden's policy is not to reply or comment on postings in chat rooms.
Likewise, caution should be exercised in relying on information from various websites concerning the Shahuindo litigation including, in particular a press release issued by Minera Algamarcas dated Nov. 16, 2006. This press release is incomplete and misleading. It purports to state Algamarcas' interpretation, argument or position with regard to certain litigation matters as facts with which Sulliden does not agree. Compania Minera Algamarca SA is a private company, owned by another Peruvian private company Atimmsa, which in turn is owned by a private company registered in Panama. Algamarcas has no public shareholders. The purpose of Compania Minera Algamarca SA issuing this press release in Canada may be questioned.
Finally, it should be understood that while any material changes, information or events will be disclosed by Sulliden, Sulliden does not intend to comment or report every separate step, procedure or development in the multiple legal activities. Most of these procedures are on the public record in the courts of Peru.
In view of the arbitration award in its favour and its strong legal position, Sulliden remains confident that the outcome of all the legal actions will be favourable to Sulliden. However, Sulliden cannot predict with certainty the outcome of the various legal actions or the impact of these actions on Sulliden's rights and entitlements to the Shahuindo property.
We seek Safe Harbor.