Hmmm. Well you see there is the question of a "contract". I haven't specifically studied Danish financial law, but I did do some studies in Common Law contract (Australia UK USA). I also did some general studies in civil law and as mwny jurists have pointed out the essential principles of law are near identical under both stystems. Thus a decision under one system would, for the same facts, give a similar result. The "
reasonable man" test would also qseem to have a bearing on this matter.
1) Is an exploration licence "a contract"
My lecturer in law defined a contract as a "
freely negotiated bargain between equal parties". "
Parties" can be physical or moral entities. Both GML and the GoG are "
moral entities" at law. For there to be a contract there must be an offer, an acceptance and the transfer from one side to the other of a"
valuable consideration" (usually, but not necessarily, financial. In this case the GoG "
offered" an exploration licence by putting it out toi
tender, which GML "
accepted" and paid a "
valuable consideration" to the GoG for it in the form of licence fees.
It would seem therefore that a valid "contract" does indeed exist between the 2 parties, the GoG on the one hand and GGG on the other.
2) What were the conditions rights and obligations attaching to the exploration licence on both sides?
I don't know all the details, but it seems reasonable to suppose that having spent tens of millions of Kroner on progressing the project strictly as per the rules and regulation in force at the time, bar any breach of those rules and procedures on the part of GGG the company has the right to be awarded an exploration licences. That is what any "
reasonable man" would expect in such circumstances.
One party cannot decide to unilaterally change the agreed contractual rules without the concurrence of the other party, particularly once that other party has already incurred enormous costs based on those rules originally agreed (ie. the
"terms" of the "
contract"). The fact that the GoG is a regional (even if it was a national) government does not change its status at law as a "
moral entity" which freely entered into a contract with another "
moral entity" GGG. The law is the law in any country strictly observing "
the rule of law" --- such as Denmark. The law thus applies to governments just as much as it applies to any other legal entity. The fact that the composition of the "board of directors" of the GoG (if I may be allowed to use this term) has changed does not alter the status of a contract already entered into by the legal entity which (in this case) is the GoG one iota. Just as the shareholders of GGG and its board of directors may change, but the legal entity GGG remains the same and bound by the agreed terms.
3) What "behaviour" did the GoG engage in in relation to the contract and how would a "
reasonable man" interpret such behaviour under identical circumstances?
It sponsored a change in the Danish mining laws specifically to authorise the extraction of uranium as a by product in the extraction of other targetted minerals. How would a "
reasonable man" have interpreted that action? And the authrisation and vetting of an EIA including the secondary extraction of uranium? Did the "
other party" (GGG) incur additional expenses due to the "
behavior" of the GoG in relation to the contract?
OK. I've gone on enough ---- but you DO all get my drift I hope?
Well in pactice no tribunal would --- or could --- force the parties to a contract to work together. However, when one party (here the GoG) breaches the contracts terms and conditions without any breach of the agreement by the other party (ie.GGG), the first mentioned party will be held to be in breach of contract and damages will be awarded. Damages would normally be calculated as the total lost by the aggrieved party due to the breach of the aggreiving party. In certain cases "
punitive damages" would also be deemed appropriate.
Now which members of the present "board of directors" of the GoG mouthed off about introducing laws specifically and with the express intention of sinking the Kvanefjeld project without a trace? Deliberately setting uranium trace limits at a level so low many others in the field have commented specifically to scupper the Kvanefjeld project? Is this what a "reasonable man" would do in identical circumstances?
Punitive Damages?????
Hence, my friend(s), I suspect Ms.Naaja Nathanielsen's very guarded comments on the legal advice the GoG has recieved as per her 3-12-2021 press release. Also listen carefully to her words to the Arctic Council when pressed by the ex president of Iceland (you can finf it on You Tube). Yes indeed! I'll bet she wants to talk to GML firston the basis of the studied legal advice she has now recieved ------- dragging the GoG to court could cost Greenland very very dearly indeed. It could potentially even bankrupt an already shaky economy as well as beinf very very "messy" ----------- but no "
reasonable man" would ever want to tread that road ---- would they (unless forced to)?!?!
You know, "retrospective legislation" is generally considered invalid. Ms.Nathanielsen and her colleagues can (and doubtless will) apply the new rules to any new Exploration licences, but would probably be wise not to try to apply them existing ones; ones where all dues have been paid and all the requirements set out in the rules and procedures
at the time of signing have been met.
Just my five cents worth
(20min delay)