Alan: Baumeister & Brewer, Etc.,
Alan: Over the last couple of days, I've developed considerable additional respect for the regular contributors to this thread. It is a time-consuming avocation. I'm referring to those whose posts clearly show a sincere attempt to contribute to a meaningful discussion, not the inane 'We'll win!/You'll lose!' posts peppered with invective. (I suppose the latter may well be time-consuming for those whose mental capacity is probably challenged by the task of turning on the computer.)
I wasn't going to post until after tomorrow, since there seems to be some expectation of a ruling. But, even if a favourable ruling is announced tomorrow, I would be a very shallow person indeed to pretend that I never really had the concerns that I do, in fact, have. So, I've disengaged the 'auto-pilot'. That isn't a swipe at Frank, by the way. His position is well-established and, no matter what happens tomorrow, I don't foresee any change. I hope he enjoys the flight and the landing is smooth. On the other hand, I am under no illusion that my own loyalties aren't highly suspect to many. I've already seen rumblings suggesting that I'm engaged in a shake-out attempt. (If I had any reason to believe I had such power, I'd use it to spruce up the rest of my sorry looking portfolio--all of which is long.) If anyone has had panic attacks over the few concerns I've raised, they might be well-advised to reassess their risk tolerance level. I've found it rather curious that in the two major pull-backs that Crystallex has had in the past eight months it is often the most stridently vocal supporters who panic first. The subsequent hysteria, accusations of treachery, and so on, may have been interesting from the perspective of a disinterested observer of social dynamics, but it was a far from appealing insight into human nature. To draw on Nietzsche, anyone can have the strength of their convictions--it's another thing to have the strength to challenge those convictions.
In my first post here I raised some concerns and, at the same time, noted that they may well be without merit. Since then, I have noticed several posts on Stockhouse which take the position that this has all been seen before, asked and answered, and so on. There is some truth to this. Much of what I raised has been seen before and answers have been offered. There is, however, a significant different between an answer (as in 'response') and an answer which offers some evidence and a compelling argument. On this thread, some have suggested that I reconsider my concerns and look again at some specific documents. I have taken the time to do so and am still not convinced that Crystallex's position is 'bullet-proof'. I will try to expand on the reasons for my recalcitrance below.
I have again reviewed the Baumeister & Brewer legal opinion and Dr. Corredor's opinion, both of which were solicited following the second ruling. These legal opinions and my own first post are in substantial agreement with respect to the chain of reasoning through which the Court arrived at the first decision favouring Mael/Crystallex. There are, however, some significant differences.
I placed considerable emphasis on the fact that the ruling was made in the context of argumentation regarding a few very specific points of law. While this may be patently obvious in these two legal opinions, neither seems to attach much significance to it. My principal reason for doing so was to caution against reading the first three rulings in favour of Crystallex as an endorsement of Crystallex's position, tout court, so to speak. The legal opinions, on the other hand, seem to want to extend the scope of the first ruling somewhat. Using slightly different language, both advance the position that the first ruling had the effect of making the Lemon to Torres transfer valid. I disagree and remain concerned. (My printer isn't doing what it's supposed to, so I'm going from memory here--always a dangerous thing.)
My reasons for disagreeing are quite simple. It seems to me that the Court considers only those pieces of evidence and those arguments with which it is presented. We know only that the Court had before it a duly receipted notice from the Court of First Instance to MEM with respect to the Torres to Mael transfer; and the argument was presented that this fulfilled the intent of Article 15 of the Mining Law. The Court agreed and MEM's position collapsed from there. There is no indication, however, that the Court was presented with evidence or heard arguments concerning the transfer from Lemon to Torres. Unless someone can produce some documentation or offer some argument to the contrary, I think it is premature to claim that the first ruling acknowledged the legality of entire chain of transfer. My concern obviously springs, in part, from this disagreement. Beyond that, however, I am concerned by the very fact that both of these legal opinions took pains to advance this position regarding the Lemon/Torres transfer. Why, I ask, should two separate opinions raise the issue of the validity of this transfer? For want of a better explanation, I suggest that it was because there was some question surrounding this transaction.
[I will try to address the matter of the POA in a separate post. I noticed that someone has made reference to it here recently and has raised a specific claim that I had in mind but was too busy to look for.]
The Baumeister & Brewer opinion raises the issue of the dismissed waiver request by Mael's former attorney. When I read this some time ago, I was puzzled by the use of the word 'pretend', as in they 'pretended to waive the ruling'. I put it out of my mind at the time but I have recently seen someone suggest that this waiver request was a sham by Mael because they were disgusted with the legal system. I don't think so. I think the difficulty here may be one of translation. I think 'pretend' is used in the sense of a 'false claim' which can be further refined into 'a claim without merit'. In the context of what it had already ruled upon, this is precisely what the Court found. Perhaps Marcos could offer something here with respect to the possible Spanish root of the difficulty. (By the way Marcos, thank you for your contribution to the 'moot point' discussion and the links.) Whatever the case, I still have concerns about what motivated this request.
Dr. Corredor addresses what I believe may have been the basis for the waiver request, specifically, the 'agreement' between Mael and CVG. Dr. Corredor argues that this agreement is void. In his opinion, the agreement through which Mael waived certain rights was subject to further negotiations which never transpired. For my own part, I would like to see more details, including some account of the circumstances surrounding the failure to satisfy that conditional clause. I remain concerned.
Dr. Corredor's credentials are impressive and his arguments are well developed. At the very least, they show that this is a complex matter. It should be kept in mind, however, that legal arguments contain many conditional statements. If one of those conditional statements is found wanting, the entire argument may be in jeopardy. Moreover, legal opinions are exactly what they claim to be--opinions. They carry no weight in law, though the arguments they contain may be very weighty if advanced in a Court of Law. I think Dr. Corredor's opinion is very strong. However, it still isn't bullet-proof until tested.
I'll leave you with the following gruesome scenario. If someone planned and subsequently murdered and ate their children and, following the gathering of a preponderance of evidence showing exactly that, they were charged with this heinous crime, they could still obtain a legal opinion. That legal opinion might even mount a credible argument in their defence. And if that person had the financial wherewithal or was fortunate enough to draw the sympathy of a champion of horrid causes, he might well be able to secure such an opinion from an Ivy League law professor.
By the way, if an absolutely final decision putting an end to all this comes tomorrow or even a month from now, I'll be quite happy to return and admit that my concerns were not justified. I will stop short, however, of accepting that I shouldn't question received wisdom. Regards.
(P.S. It took so long to finish this that maybe I should check to see whether the ruling has been announced before I post it. Oh well...) |
