O’Neill Government decision to appoint interim Managing Director is of no effect

The chairman of PNG Sustainable Development Program Ltd, Sir Mekere Morauta, said the O’Neill Government’s decision to appoint Mr Paul Yangen as interim Managing Director of the company is of no effect.

“PNGSDP is a Singapore not-for-profit company, bound by its own constitutional documents, known as the Program Rules and Memorandum and Articles of Association,” he said.

“NEC’s actions are entirely inconsistent with the company’s constitutional documents and are unlawful.

“The same goes for the purported removal of the board and attempted appointment of a Transitional Management Team last month.

“All of these actions are of no legal effect whatsoever, and PNGSDP does not accept any of them.

“The chairman, the board and the CEO of PNGSDP will continue to manage the company in accordance with its constitutional documents.”

Mekere Morauta KCMG
Chairman

——————————————————————–

 

Singapore firm turns to High Court for protection against PNG govt

Source, Business Times, Date 31 Oct 2013
Author, Grace Leong

It seeks to nullify board sacking, safeguard US$1.4b

[SINGAPORE] A Singapore non-profit has invoked Singapore laws to nullify the purported sacking of its entire board including a prominent corporate figure by the government of Papua New Guinea and to prevent US$1.4 billion in assets from being “wrongfully appropriated” in a high-profile tussle over a controversial gold and copper mine in the country, according to court documents obtained by BT. Among those purportedly terminated from the board of PNG Sustainable Development Program Ltd (PNG SDP) is Lim How Teck, who has been a director since 2003.

A shipping veteran who retired as chief operating officer of Neptune Orient Lines (NOL) after 26 years there, Mr Lim sits on 14 other boards in Singapore. He is currently chairman of Certis Cisco, ARA-CWT Trust Management (Cache) and Temasek Holdings unit Heliconia Capital Management, as well as the Singapore-based director for major German heavy lift and projects cargo liner company Rickmers.

Typically, directors from Singapore-incorporated companies can only be removed under Singapore law in accordance with the provisions of the Companies Act and the Memorandum and Articles of Association. But in this case, the PNG government has apparently passed legislation, which it says gives it “all necessary powers” to restructure PNG SDP and its operations, and to expropriate its assets including a 63.4 per cent stake in the Ok Tedi mine, among other things.

Former PNG prime minister Mekere Morauta, who was removed from his position as chairman of PNG SDP last week, has criticised the legislation as “unlawful” and which “violated the rules of international law”.

“It is apparent that the government passed the legislation to purport to restructure PNG SDP,” court papers said, “despite the fact that the structure and governance of PNG SDP was carefully decided and agreed upon after lengthy negotiations between BHP Billiton (the mine’s former operator) and the state, and after extensive consultations with key stakeholders.”

The company was established when Australian mining company BHP Billiton, in a deal with the government in 2001, divested its majority share in the mine to PNG SDP following concerns about its long-term environmental impact, and in return was granted legal immunity.

It is responsible for ensuring that dividends from the Ok Tedi mine, which accounts for more than a quarter of the country’s total exports and nearly 10 per cent of its GDP, are used and managed transparently and accountably for the sustainable development of PNG’s western province region and in communities affected by the mine’s pollution.

In an effort to nullify the board changes and protect its assets, PNG SDP, represented by Senior Counsel Harpreet Singh Nehal of Cavenagh Law LLP, has sued the PNG government and three members of a transitional management team in the High Court this week.

According to court papers, PNG Prime Minister Peter O’Neill wrote to Mr Morauta last week to advise him of the termination, referring to a section in the Expropriation Act passed last month that he said gave the government powers to remove the directors.

But PNG SDP disagreed. According to court papers, it said that the parties expressly provided that the security deed over the dividends received from the Ok Tedi mine is governed by Singapore law.

The company is seeking declarations that the existing board has full authority to manage its business; that the PNG government may not restructure the company unless in accordance with the provisions of its Memorandum and Articles of Association. It is also seeking a declaration that its assets can only be applied to promote sustainable development within PNG and to advance the general welfare of its people.

PNG SDP is also seeking an order to stop the transitional management team from “taking any action or giving any instructions in relation to its property, rights and assets in Singapore or elsewhere”.

Represented by Nish Shetty of Clifford Chance, PNG SDP has also commenced arbitration proceedings through the International Centre for Settlement of Investment Disputes (ICSID) in Washington DC in what is believed to be the first multi-billion dollar claim by a Singapore company against a foreign government for recovery of the expropriated stake, or alternatively, for compensation to be paid. It is also seeking damages for violations of international law, the company said.

Mr Morauta said that the company, which has operated the mine since 2002, is entitled to an annual dividend, currently capped at US$350 million a year, on its shares in the mine. To date, the government has not paid, or proposed to pay, any compensation to PNG SDP for taking its property, he said.

gleong@sph.com

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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2 thoughts on “O’Neill Government decision to appoint interim Managing Director is of no effect

  1. Food for thought

    Since the dawn of times humankind has been familiar with evolution, the first being God created all things which I’m leaning towards for reasons I have and there is the big bang theory, then Darwin’s theory that life descended from something. Now we are in the period of a new kind of evolution that’s taking form and at a very fast pace leaving a trail of issues at its wake.

    For the first as we all have lived with and has supporting biblical text and then physical evidence to further gain hold of our thoughts or say faith. I have swayed my thought to use its awesome power because it has something that directs the natural course of balance in the universe and our surrounding and how we relate to one and other. Everything came about into existence or visible because it took form as if changing state from a gas to liquid or to solid. As it is written, I’m your God, the divine, unseen, everywhere, you only need to think of me as I’ am and bring me to form by putting words to what you think of me. And it is true the word was God and mankind had to derive language to bring God’s form into visibility. And the word became flesh and dwell amongst mankind, and ever since that time it as stayed with us and will always will. Because this is the natural course of balance that all things created on earth follows a cycle.

    The second as stated from an extract I took as reference;

    For centuries, humans have gazed at the stars and wondered how the universe developed into what it is today. It’s been the subject of religious, philosophical, and scientific discussion and debate. People who have tried to uncover the mysteries of the universe’s development include such famous scientists as Albert Einstein, Edwin Hubble and Stephen Hawking. One of the most famous and widely accepted models for the universe’s development is the big bang theory.
    Although the big bang theory is famous, it’s also widely misunderstood. A common misperception about the theory is that it describes the origin of the universe. That’s not quite right. The big bang is an attempt to explain how the universe developed from a very tiny, dense state into what it is today. It doesn’t attempt to explain what initiated the creation of the universe, or what came before the big bang or even what lies outside the universe.
    Another misconception is that the big bang was a kind of explosion. That’s not accurate either. The big bang describes the expansion of the universe. While some versions of the theory refer to an incredibly rapid expansion (possibly faster than the speed of light), it’s still not an explosion in the classic sense.
    Summing up the big bang theory is a challenge. It involves concepts that contradict the way we perceive the world. The earliest stages of the big bang focus on a moment in which all the separate forces of the universe were part of a unified force. The laws of science begin to break down the further back you look. Eventually, you can’t make any scientific theories about what is happening, because science itself doesn’t apply. It only brings into visibility what is invisible.

    And the third again an extract I took for reference, it states;

    Darwin’s Theory of Evolution is the widely held notion that all life is related and has descended from a common ancestor: the birds and the bananas, the fishes and the flowers — all related. Darwin’s general theory presumes the development of life from non-life and stresses a purely naturalistic (undirected) “descent with modification”. That is, complex creatures evolve from more simplistic ancestors naturally over time. In a nutshell, as random genetic mutations occur within an organism’s genetic code, the beneficial mutations are preserved because they aid survival — a process known as “natural selection.” These beneficial mutations are passed on to the next generation. Over time, beneficial mutations accumulate and the result is an entirely different organism (not just a variation of the original, but an entirely different creature).
    While Darwin’s Theory of Evolution is a relatively young archetype, the evolutionary worldview itself is as old as antiquity. Ancient Greek philosophers such as Anaximander postulated the development of life from non-life and the evolutionary descent of man from animal. Charles Darwin simply brought something new to the old philosophy — a plausible mechanism called “natural selection.”
    And this is what the world has evolved into, that only the fittest should thrive and created world system that encourages it. The world has forgetting that animals do this to survive not the intelligent human species. We the human species have the key to the natural balance on this planet and the universe.

    The next kind that I referred to at end of my first paragraph can be summed as all things connected to a system that I’d like to refer to as corporate evolution. Everything has come to evolve around it and life is dependent on it and gradually mankind will be trapped it or maybe. What chance does mankind have or choice there is for life. Well I can say we can choose between the two paths, either the corporate world ignore the natural course of balance or harness it for betterment of mankind. They can choose between prosperity for all rather than profit for a few.
    As a Papua New Guinean we are at a great point of time to decide, for the Government to choose and pave a part to prosperity for its 7 million plus citizens. To hold corporate entities and government itself accountable by making decisions that promotes prosperity for all and environment that follows suit. There are lot of lessons that can be learned from other countries and their mistakes. And biggest mistake with developed nations is they chose a part of profit for a few only to distance the gap between the have and the have not. And Papua New Guinea we are blessed because out culture speaks that, wanem hap man go, pik, dok tu bai go, meaning we leaving nothing behind. Everyone and everything deserve care and that we are the guardian of the word.

    Every educated Papua New Guinean and professionals should use their skills and knowledge to achieve the path to prosperity across the land. There is so much knowledge in the world that we can pick what is specific to our needs and transform that to our benefit.
    Bill Gates summed it up when he said, We Need Our Brightest People Working on Our Biggest Problems. Scientists aren’t the only ones who can help solve problems in the poor world. Savvy people in businesses, non-profits, and governments can find ways to deliver solutions at scale. Of course there has to be a financial incentive to draw people in. And that getting our brightest minds focused on our biggest problems will save lives and make the world a more equitable place.
    After all it is about purpose, and that is prosperity for all and balance in world and universe

  2. Peter ONeill’s dealing with PNGSDP’s non-profit Singapore based Trust’s Board of Trustees is an ill-advised ill-timed ill-fated move that may just back fire in his face.

    It is a pity Peter ONeill has dragged the rest of PNG and its Parliament into this ill-advised knee jerk quagmire of Dr Dan Weiss’s making.

    Peter ONeill has done some daring things in the last 24months that concern Singapore.

    Firstly he orchestrated the unconstitutional sacking of a lawfully elected and mandated Prime Minister in Somare who was convalescing in Singapore Hospital bed. It appears he has gotten away with this unlawful act by enacting so many laws as a cover-up.

    Now this act of sacking a Singapore based Board of Trustees of a fund.

    The fund was created with hot sticky fingered Politicians like ONeill in mind one day seeking to access it.

    ONeill is using his same old trick of legislation in PNG Parliament to seek control over a Singapore based entity.

    Well looks like Mr ONeill can trick everyone sometime, but not the Singapore legal regime. The Trust is a private trust under Singapore law.

    You can pass a law and sack a Prime Minister Mr ONeill, but to sack several Board members may be just the bone that may choke you.

    Please do not drag the rest of Papua New Guinea into this battle which is really about you settling old scores about Sir Mekere presiding over the NPF Inquiry into you and Mr Jimmy Maladina.

    The country needs a Prime Minister who will rise above small minded and vindictive games.

    Lift your game ONeill. We are watching.

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