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Claimant

Claimant

INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES Washington, D.C. In accordance with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules Glamis Gold, Ltd. (Claimant) - AND - United States of America (Respondent) AWARD Before the Arbitral Tribunal constituted under Chapter 11 of the North American Free Trade Agreement, and comprised of: Michael K. Young Professor David D. Caron Kenneth D. Hubbard Secretary of the Tribunal Ms. Eloïse Obadia Legal Assistant to the Tribunal Ms. Leah D. Harhay Date of dispatch to the parties: June 8, 2009

  • Page 2 and 3: TABLE OF CONTENTS TABLE OF CONTENTS
  • Page 4 and 5: Contentions of the Parties ........
  • Page 6 and 7: IVCDM Imperial Valley College Deser
  • Page 8 and 9: I. INTRODUCTION AND SUMMARY 1. Glam
  • Page 10 and 11: Tribunal emphasizes that it in no w
  • Page 12 and 13: ● Fourth, a NAFTA tribunal need c
  • Page 14 and 15: NAFTA. 12. This arbitration is proc
  • Page 16 and 17: its adjustments are applied to Glam
  • Page 18 and 19: expectations. 24 The Tribunal empha
  • Page 20 and 21: y specific assurances. 35 The Tribu
  • Page 22 and 23: miles from the Picacho Mine. 45 2.
  • Page 24 and 25: alluvial plain to the south of the
  • Page 26 and 27: B. THE DOMESTIC REGULATORY LANDSCAP
  • Page 28 and 29: disposal, control, and reclamation
  • Page 30 and 31: the public lands within the [CDCA],
  • Page 32 and 33: governed by the Mining Law of 1872.
  • Page 34 and 35: lands by operations authorized by t
  • Page 36 and 37: laws.” 125 These laws include, bu
  • Page 38 and 39: (5) any “irreversible and irretri
  • Page 40 and 41: 2. CALIFORNIA MINING AND RELATED LA
  • Page 42 and 43: Reclamation is thus an important as
  • Page 44 and 45: entities, must determine the “Are
  • Page 46 and 47: severe and irreparable damage to, o
  • Page 48 and 49: approval of several exploration dri
  • Page 50 and 51: mitigation measures to avoid advers
  • Page 52 and 53:

    3. SUBMISSION AND REVIEW OF THE PLA

  • Page 54 and 55:

    identified, and possibly still undi

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    6. CULTURAL STUDIES FOLLOWING THE 1

  • Page 58 and 59:

    complex trail network known as Xam

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    107. As the heart of the Quechan’

  • Page 62 and 63:

    cultural education programs.” 306

  • Page 64 and 65:

    the First Amendment? What are our r

  • Page 66 and 67:

    under the No Project Option. 336 BL

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    forward and minimize the impacts on

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    issued its comments to the secretar

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    these resources. 382 If such a subs

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    1999, Claimant notified BLM that it

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    139. In addition, during the legal

  • Page 78 and 79:

    greater than the disturbance that w

  • Page 80 and 81:

    147. On October 31, 2000, the feder

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    of operations if the impairment of

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    project,” the ROD relied upon the

  • Page 86 and 87:

    valid existing rights. 477 He also

  • Page 88 and 89:

    pending, Claimant, on December 9, 2

  • Page 90 and 91:

    practices.” 500 In its initial fo

  • Page 92 and 93:

    Signature Message, Governor Davis e

  • Page 94 and 95:

    2. STATE MINING AND GEOLOGY BOARD R

  • Page 96 and 97:

    In order to protect the California

  • Page 98 and 99:

    mining property interests without p

  • Page 100 and 101:

    Assistant to the Tribunal, all comm

  • Page 102 and 103:

    However, the arbitral tribunal may

  • Page 104 and 105:

    particular objections regarding whi

  • Page 106 and 107:

    208. Based upon these interpretatio

  • Page 108 and 109:

    the identification of objections, a

  • Page 110 and 111:

    Tribunal defined the scope of the v

  • Page 112 and 113:

    Therefore, it is critical that, whe

  • Page 114 and 115:

    these documents. Using the statemen

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    emoved and produced. Should these e

  • Page 118 and 119:

    228. Included with the procedures o

  • Page 120 and 121:

    great need for the documents. Altho

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    30. … [T]he Tribunal recognizes t

  • Page 124 and 125:

    48. Without determining the precise

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    246. With respect to both challenge

  • Page 128 and 129:

    clarifications of pre-existing recl

  • Page 130 and 131:

    should draw the requested adverse i

  • Page 132 and 133:

    263. In informal discussions betwee

  • Page 134 and 135:

    arbitration proceeding,” set Sept

  • Page 136 and 137:

    281. In accordance with Procedural

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    knowledge or insight that is differ

  • Page 140 and 141:

    292. On July 27, 2007, Respondent r

  • Page 142 and 143:

    the Parties’ statements with resp

  • Page 144 and 145:

    strictly to the questions presented

  • Page 146 and 147:

    especially critical in the case of

  • Page 148 and 149:

    government). 637 Respondent asserts

  • Page 150 and 151:

    eport … any ‘firm expectation

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    quarantine it; Claimant points to t

  • Page 154 and 155:

    Glamis could qualify. Under Whitney

  • Page 156 and 157:

    Most importantly, of course, is tha

  • Page 158 and 159:

    Tribunal additionally notes that th

  • Page 160 and 161:

    Secretarial Record of Decision deny

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    354. The inclusion in Article 1110

  • Page 164 and 165:

    conclusion that the property has be

  • Page 166 and 167:

    Claimant itself has done. 717 The T

  • Page 168 and 169:

    significant economic impact. These

  • Page 170 and 171:

    $24.5 million for spreading and rec

  • Page 172 and 173:

    purposes. 736 Claimant contends tha

  • Page 174 and 175:

    downhill-loaded cycles to proceed s

  • Page 176 and 177:

    conglomerate,” 766 or “highly-i

  • Page 178 and 179:

    factor (assumed).” 783 Behre Dolb

  • Page 180 and 181:

    equires four years to be leached, r

  • Page 182 and 183:

    Reducing Behre Dolbear’s backfill

  • Page 184 and 185:

    Claimant to argue that California r

  • Page 186 and 187:

    different volumes at different stag

  • Page 188 and 189:

    improperly applied the same “loos

  • Page 190 and 191:

    part of the backfilling results in

  • Page 192 and 193:

    Parties’ estimated per ton cost f

  • Page 194 and 195:

    material) at the Imperial Project,

  • Page 196 and 197:

    the Tribunal continues its practice

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    These holdings, brought to the pres

  • Page 200 and 201:

    value of the backfilling costs of t

  • Page 202 and 203:

    valuing 250,000 ounces at $25.71 pe

  • Page 204 and 205:

    Navigant therefore performs a DCF a

  • Page 206 and 207:

    BLM concerns and prevent any unnece

  • Page 208 and 209:

    C. THE THIRD DISPUTED ELEMENT OF CL

  • Page 210 and 211:

    466. Finally, Claimant contests Res

  • Page 212 and 213:

    471. Second, with respect to the

  • Page 214 and 215:

    using the price of gold at that tim

  • Page 216 and 217:

    financial assurance costs would be

  • Page 218 and 219:

    this was the situation despite the

  • Page 220 and 221:

    and the regulations applicable to c

  • Page 222 and 223:

    testimony before the Tribunal in wh

  • Page 224 and 225:

    lands ...; [and] ‘(2) [t]he finan

  • Page 226 and 227:

    activities giving rise to Claimant

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    health and was seeking a smaller fi

  • Page 230 and 231:

    no statements from BLM officials as

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    free” rate of 2.033% and then add

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    tax cash flow, which is incorrect.

  • Page 236 and 237:

    These expenses must be paid first,

  • Page 238 and 239:

    Claimant’s investment. The Tribun

  • Page 240 and 241:

    arbitral decisions based on bilater

  • Page 242 and 243:

    548. Claimant argues instead that t

  • Page 244 and 245:

    treatment owed to foreign investors

  • Page 246 and 247:

    557. The additional danger of looki

  • Page 248 and 249:

    equitable treatment: (1) an obligat

  • Page 250 and 251:

    of treatment, … as opposed to the

  • Page 252 and 253:

    essential or dominant element of fa

  • Page 254 and 255:

    with respect to their investments.

  • Page 256 and 257:

    international law minimum standard

  • Page 258 and 259:

    award that addresses transparency w

  • Page 260 and 261:

    investment in conformity with the f

  • Page 262 and 263:

    “has a wide discretion with respe

  • Page 264 and 265:

    596. If there is an obligation for

  • Page 266 and 267:

    minimum standard of treatment has i

  • Page 268 and 269:

    conduct as the minimum standard of

  • Page 270 and 271:

    terms—had they been current at th

  • Page 272 and 273:

    legitimate expectations through est

  • Page 274 and 275:

    judicial propriety of the outcome

  • Page 276 and 277:

    espective offending characteristics

  • Page 278 and 279:

    cultural impacts, it was entitled t

  • Page 280 and 281:

    implemented, pursuant to the 1872 M

  • Page 282 and 283:

    international law, … it does info

  • Page 284 and 285:

    Project POO. 1328 Claimant asserts

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    esources and integrity with those o

  • Page 288 and 289:

    obligations. First, Respondent argu

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    standard, quoting the M-Opinion as

  • Page 292 and 293:

    international law minimum standard

  • Page 294 and 295:

    eview process when it had been in f

  • Page 296 and 297:

    and the “more intensive survey in

  • Page 298 and 299:

    ACHP staff member Alan Stanfill—w

  • Page 300 and 301:

    that the cultural resources in the

  • Page 302 and 303:

    metallic mines, and the failure of

  • Page 304 and 305:

    high [an] economic barrier as to en

  • Page 306 and 307:

    community about proposed changes in

  • Page 308 and 309:

    many factors, the BLM determined th

  • Page 310 and 311:

    ecall the board adopting any other

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    studies justifying the imposition o

  • Page 314 and 315:

    the Imperial Project. 1508 706. Cla

  • Page 316 and 317:

    711. Third, Claimant argues that Re

  • Page 318 and 319:

    its respective purposes, and each w

  • Page 320 and 321:

    open pit mining operations.” 1551

  • Page 322 and 323:

    known its view concerning proposed

  • Page 324 and 325:

    addition, as discussed above by Res

  • Page 326 and 327:

    tasked with seeing that all future

  • Page 328 and 329:

    effect of metallic mines; (2) there

  • Page 330 and 331:

    eclaimed.” 1628 “The reclamatio

  • Page 332 and 333:

    open pits are refilled rather than

  • Page 334 and 335:

    753. Third, Respondent asserts that

  • Page 336 and 337:

    instead adopts Claimant’s methodo

  • Page 338 and 339:

    763. First, the M-Opinion was not a

  • Page 340 and 341:

    failure of the solicitor to first p

  • Page 342 and 343:

    dispute. Nevertheless, the Tribunal

  • Page 344 and 345:

    Imperial Project was indeed cultura

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    Respondent has established a prima

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    class of projects or a general prob

  • Page 350 and 351:

    ii. The Assertion that the Process

  • Page 352 and 353:

    approximate the promises of tax reb

  • Page 354 and 355:

    presents three specific arguments:

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    existed of other potentially disrup

  • Page 358 and 359:

    Queen Soledad Mountain Project. 173

  • Page 360 and 361:

    827. The two sets of actions—the

  • Page 362:

    VIII. AWARD AND ORDER 834. For the

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