The following post was originally from a facebook discussion, initiated by Mr. Clement Yow Mulalap on October 22, 2012, regarding the legal status of the current situation after Governor’s delivery, and ETG’s official recipience of the written notice concerning ETG’s investment. We re-post it from the facebook page, Yap’s Development. It is the fourth part of the discussion threads.
Just one question if I may Mr. Clement Yow Mulalap – would you say that legally this letter is a breach of contract with ETG and legally entitles ETG to ask the breaching contract partner for compensation in case of damage through breach?
Hi Dieter – I will let Mr. Mulalap answer in detail, but it appears to me in the agreement the government cannot be held liable for voiding this agreement. Those safeguards were wisely written into it as I read it.
Greetings, Mr. Kudler. Thank you for your question.
I believe I have addressed your question to a large extent in this thread. Please see my comment here:
Essentially, I state in that comment that various provisions of the signed Investment Agreement between ETG and the State of Yap give the State of Yap (as represented by Governor Anefal and the Anefal Administration) the legal authority to issue a “written notice” denying the development of ETG’s proposed Project in Yap, even after the signing of that Investment Agreement, as long as the denial is based on “legitimate and reasonable grounds”–grounds which I opine (in the aforementioned comment and in other comments in this thread) to be sufficiently available for purposes of the “written notice.” Because that authority is contained in the signed Investment Agreement, the utilization of that authority will not be legal grounds for breach of contract–the contract (i.e., the signed Agreement) allows that action, and so performing that action is not a contrary breach of the contract. If the contract has not been breached, then the party to the contract that performs the aforementioned action cannot be liable for damages arising from a breach of contract, since there has been no breach.
In my opinion, Governor Anefal’s October 1, 2012 letter to ETG (via Chairman Deng Hong) is sufficient to qualify as the sort of “written notice” that I refer to above, and therefore, that letter does not constitute a breach of contract that warrants the awarding of damages to ETG. Whether ETG actually feels the same is another matter entirely, which is why I have tried in this group (see: http://www.facebook.com/groups/404462399564440/permalink/506687616008584/) to get ETG to present an official and substantive public response to Governor Anefal’s letter.
I hope that that answers your question, Mr. Kudler. I welcome contrary opinions/statements if warranted. Thank you very much.