The following texts are re-posted from a facebook page, Yap’s Development, initiated by Mr. Clement Yow Mulalap on November 14, 2012, concerning Yap State Government’s options while waiting for ETG’s response to Governor Anefal’s letter (dated October 1, 2012). We re-post it from the original page for it helps a lot in clarifying the current situation and the options available to the Yap State Government.
There are a number of very illuminating—and very important—conversations going on in this group about Yap’s development prospects, and I thank all those who are participating constructively in those discussions. Lest we lose track of the proverbial elephant in the room, please let me summarize what I believe is the current situation regarding ETG’s proposed Project in Yap, as well as list some possible options to pursue from this point forward, at least from a legal standpoint.
It has been about a month and a half since Governor Anefal submitted his October 1, 2012 letter to ETG (via Chairman Deng Hong) calling for a dissolution of the signed Investment Agreement between ETG and the State of Yap (“and all documents preceding it”) and stating a variety of reasons that, in my opinion, constitute “legitimate and reasonable grounds” for the State of Yap to deny the development of ETG’s proposed Project in Yap. As far as I know—and please correct me if I am wrong about this, Mr. Gang Yang (or anyone else, for that matter)—ETG has not taken an official and public position on Governor Anefal’s letter, except to say that ETG has received the letter and is analyzing it. I continue to request ETG (via Mr. Gang Yang) to decide on its position and share the position with the Yapese public. The longer that ETG waits to do so, the greater the impression that ETG is not acting in “good faith” regarding its proposed Project in Yap, and the greater the disrespect that ETG shows to Governor Anefal, the Dalip pi Nguchol (whose prohibition edict is cited in Governor Anefal’s letter), and the people of Yap who have been waiting patiently for ETG’s response.
While we wait for that response, I think we need to consider what Yap’s options are. Please let me suggest a few:
1) Yap continues to wait for ETG’s response and allows ETG’s representatives to pursue ETG’s proposed Project in Yap (including conducting public outreach and attempting to secure land lease agreements with private Yapese landowners);
2) Yap—perhaps through a temporary suspension of ETG’s foreign investment permit (FIP) and business license (BL) by the Anefal Administration (specifically, by the newly-constituted Yap Foreign Investment Board, which has the authority to suspend FIPs and, by implication, BLs)—prevents ETG from continuing to pursue its proposed Project in Yap unless and until ETG formally and publicly announces its response to Governor Anefal’s October 1, 2012 letter;
3) Yap conducts a binding plebiscite in which the people of Yap vote on whether they wish for Yap to allow or reject ETG’s proposed Project (as currently envisioned in ETG’s various promotional brochures and Powerpoint presentations, which were recently endorsed by ETG as suitable indicators for ETG’s proposed Project in Yap, as I discuss here: http://on.fb.me/T2ie1H
4) Yap—specifically, the Anefal Administration, as signatory to the signed Agreement—formally and unilaterally dissolves the signed Agreement, citing, perhaps, the principle of “frustration of purpose” (as I discuss in this group here: http://on.fb.me/RB0nwz
) to break the “contract” with ETG without incurring damages for breach of contract; and
5) Yap—specifically, the Anefal Administration, as signatory to the signed Agreement—and ETG agree to dissolve the signed Agreement and return to the negotiating table to work out a new Agreement, one that significantly involves the participation and input of the Yapese public; one that is negotiated after (or at least during) extensive public discussions about Yap’s actual development potential, aspirations, and limitations; and one that provides greater protections and benefits for Yap and her people than the current signed Agreement does (at least in my opinion).
I am sure there are other options that can be pursued—including filing lawsuits against ETG and/or the State of Yap—but I will leave discussions of lawsuits to another time. I welcome input from members of the group, including from Mr. Gang Yang and his fellow ETG reps.
Kam’magar, ma siro.
Tim Rock The clock is ticking away…..
Martina Gisog I want to see action on #2, Yow how do we go about this?
Jesse Maluwetig I am being told that the speaker of the house is in Pohnape along with the other leaders to discuss the future course of Yap. Why do they have to go to FSM to obtain options/answers to be ready to respond to ETG when they finally decide to respond to the governor’s letter? And why do we need FSM response if the decisions that are going to be made should be made by the state government of Yap? Thank you.
Martina Gisog Interesting……, the speaker of the house (Isaac Figir), right?
Martina Gisog Jesse, talk to me.
Jesse Maluwetig That is correct, unless the information I got was wrong.
Jesse Maluwetig We need to receive the reply from ETG to the governors letter before we can offer a smaller project to ETG to think about?
Jesse Maluwetig But isn’t the speaker’s name is Henry Falan?
Jay Glee Henry Seems like ETG is “patiently” waiting out the state’s frustrations as well as the public’s while they figure out their next step in countering the stand off.In anyway,we should continue our efforts and discussions towards a more feasible and smaller project for their investment in Yap,one that would less impact our society in both culturally and ecologically.Thank you all
Martina Gisog When the Investment Agreement was signed, I didn’t see any comment from Isaac Figir, I heard him and Joe claimed to stay out/not get involved, so what is going on now?
Clement Yow Mulalap Siro. I have limited Internet access right now, so I cannot respond at length for a while. I just want to slightly revise the No. 2 option above. Although there is now a new Yap State law creating a Foreign Investment Board in Yap to essentially assume review and approval oversight duties for foreign investment projects and permits in Yap, the Board will not be able to affect projects and permits already in existence until a year elapses from the time that the law creating the Board went into effect. (At least, I believe it is a year. I will confirm soon. The law went into effect in the last month or so.) In the meantime, the authority to suspend an FIP remains with the Director of the Department of Resources and Development (or so I believe–I will confirm that soon, but I am sure that it is one person rather than a Board). My apologies again for not being able to comment at length. Siro.
I confirm my immediately preceding post. Under the newest amendment to the Yap State Foreign Investment Act, the Yap State Foreign Investment Board cannot take action to affect “foreign investment business entities in the State of Yap with valid foreign investment permits during a grace period of one year from the effective date” of the amendment. Now, the new amendment (contained in YSL Bill No. 8-56, D2) was passed by the Yap State Legislature on final reading on July 6, 2012. The newly-passed bill was vetoed by Governor Anefal on August 22, 2012. The Yap State Legislature overrode Governor Anefal’s veto sometime thereafter (I’m not sure when). In any case, there’s clearly been less than a year since the amendment went into effect, so the Foreign Investment Board cannot currently take actions affecting ETG’s FIP. That power remains with the Director of the Department of Resources and Development until the one-year “grace period” elapses.
In response to Martina‘s question, I’m sorry, but that option is quite complicated, and I need to review the current Yap State Foreign Investment Act and Foreign Investment Regulations a bit more before I can confidently respond. The Yap State Foreign Investment Act has been amended about a half-dozen times since the only version of the Act that I can find online (here:http://www.fsmlaw.org/yap/code/title22/T22_Ch03.htm), so I have been trying to piece together those amendments and create the most current version of the Act. Once I do so, I will be able to more confidently respond to your question. (I will also share the current Act with the group.) I do have an idea of how option 2 can work (which is why I included option 2 in the list), based on what I’ve researched so far, but I want to be a bit more confident before I do so. Sorry.