Image Source: Balochistan to seek review of ICSID decision in Reko Diq case – Pakistan – DAWN.COM
The Reko Diq case is the most recent and archetypal example of uncovering the truth behind dubious judgments taken at both national and international levels. This decision casts a serious doubt on not just Pakistan’s attempt to circumvent international rules, but also on the ICSID, which issued yet another puzzling decision based on mere hypotheses. Hence, the question of whether Pakistan should develop its own foreign investment policy, such as establishing a national arbitration mechanism, arises.
Reko Diq Case
To fully understand the complex situation surrounding the Reko Diq case, some context is needed. The starting point was in July of 1993, when the Balochistan government entered into an agreement with BHP Billiton, a mining company based in Australia, for the mining rights in the Reko Diq area.[1] The agreement in question was known as the ‘Chagai Hills Exploration Joint Venture Agreement’ (CHEJVA).[2] Later, in 2000 the original agreement, CHEJVA, was amended and ratified by the Balochistan government.[3] Consequently, all previous acts pursuant to the CHEJVA from 1993 onwards were validated and CHEJVA remained legally binding and in force.[4] The final actor, Tethyan Copper Company Pty Limited (‘TCC’), came to play in 2006. After entering into a novation agreement the Balochistan government – thereby essentially replacing BHP – TCC obtained mining rights to the Reko Diq area, pursuant to the 1993 and 2000 agreements.[5] Shortly after this, the validity and conditions under which the CHEJVA came into being were challenged before the Supreme Court of Pakistan. Moreover, the relationship between TCC and the Balochistan government reached a boiling point in 2011, when TCC was denied a mining lease for the Reko Diq project.[6]
The interplay between questionable validity of the 1993 CHEJVA, TCC being denied a mining lease, and the bilateral investment treaty between Australia and Pakistan on the promotion and protection of investments[7] constitutes the core of the Reko Diq case.
In 2006 a number of third parties questioned the validity and legality of CHEJVA, namely that it was in conflict with Pakistani legislation. The grounds taken up included the allegation that the agreement was not properly registered and that the Balochistan government illegally “relaxed” local legislative requirements for the purpose of enforcing the CHEJVA and the 2000 Addendum.[8] Initially dismissed by the High Court, the case was later appealed to the Supreme Court of Pakistan.[9] In 2012 the Supreme Court held that CHEJVA “have been executed contrary to the provisions of the Mineral Development Act, 1948, the Mining Concession Rules, 1970 framed thereunder, the Contract Act, 1872, the Transfer of Property Act, 1882, etc., and is even otherwise not valid, therefore, the same is declared to be illegal, void and non est.”[10] Consequently, all agreements stemming from the original 1993 CHEJVA were declared void (including the Addendum, the Option Agreement, and the Novation Agreement).[11] The reasoning behind this decision consisted of the fact that the national law of Pakistan was the governing law of CHEJVA, giving Pakistani courts the jurisdiction to adjudicate on the validity of the agreement itself.[12] This ruling also supported the decision of the Balochistan government to deny TCC a mining lease. However, what the Supreme Court failed to consider was that CHEJVA was not only a contractual issue of solely domestic standing, but one that also fell within the ambit of the Australia-Pakistan BIT. According to the BIT, the governing laws regarding investor-related disputes are those of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, not national laws of Pakistan.[13]
Seeing that their efforts before Pakistan’s domestic courts were futile, TCC filed ICSID arbitration proceedings against the Government of Pakistan.[14] The reasoning of the arbitration tribunal differed substantially from that of the Pakistan Supreme Court. Firstly, the tribunal rejected allegations regarding corruption behind CHEJVA and illegal relaxations in 1994, stating that there is not any “solid” or “persuasive” evidence to support these claims.[15] Finally, the tribunal concluded that by denying TCC a mining lease the Balochistan government breached the standard of fair and equitable treatment under Article 3(2) of the Treaty.[16]
Critical Appraisal of the ICSID Decision
The ruling of ICSID did appear, on the face of it, to be erroneous, unsubstantiated, and based on unreasonable hypotheses. Before dwelling into the ICSID ruling, however, it is worth highlighting that Pakistan was ordered to pay TCC $5.9 billion in damages that Pakistan for this project.[17] The penalty is noteworthy since the project was acquired for $170 million and got an investment of just $200 million, even though it had never even begun operations.[18] This amount is equal to nearly 2% of Pakistan’s current GDP and more than twice as much as Pakistan’s whole public health-care budget.[19]
Reverting to the proceedings at ICSID, the composition of the panel for the Reko Diq case, which ultimately determined the amount of the award, was questionable. In particular, the panel was constituted by three arbitrators who had no knowledge of, or regard for Pakistan’s legal system.[20] Additionally, the decision was based on TCC’s argument: that it had the right to receive from Pakistan the full present discounted value of all future profits from a non-existent project, calculated for 56 years of hypothetical operations using notoriously unreliable and fluctuating future gold and copper prices.[21]
Taking all of these considerations into account, ICSID made many assumptions, each of which was flawed at best. First, contrary to the positions of the provincial and federal governments, the tribunal arbitrarily concluded that TCC would have obtained an automatic renewal of the proposed 30-year mining concession.[22] Second, notwithstanding the lack of evidence, ICSID believed that TCC would have obtained a 15-year tax holiday.[23] Third, notwithstanding any such arrangement, they would have been paid less than the obligatory statutory royalty rates.[24] Finally, despite the project’s need for large volumes of water in a water-stressed area, environmental regulations would have been satisfied.[25]
One might wonder whether there are other avenues to contest such a decision. Unfortunately, the system of ICSID allows only for a revision (Article 51) or annulment of a delivered decision (Article 52).[26] In reality, this implies that after an ICSID judgment is issued, governments can only seek for a revision or annulment of the decision, not an appeal. An annulment merely evaluates the tribunals’ judgment based on a restricted set of procedural concerns, as opposed to an appeal, which considers whether the tribunals simply made the incorrect decision.[27] Consequently, having no other options to challenge such a decision ultimately means that countries like Pakistan are subject to extremely high penalties.
Post-ICSID Award Developments
The aftermath of the Reko Diq case left Pakistan in need of a swift remedy to the situation. Pursuant to the ICSID decision, TCC sought the enforcement of the monetary award by involving the High Court of Justice in the British Virgin Islands.[28] Pakistan International Airlines Investment Ltd (‘PIAIL’) is a Pakistani company incorporated in the British Virgin Islands, whose assets TCC tried to attach in order to enforce the $5.9 billion award.[29] However, Pakistan challenged the original ICSID decision and sought its annulment. On 17th September 2020 ICSID decided to conditionally stay the enforcement of the award. Pakistan was given 30 days[30] to “provide an unconditional and irrevocable bank guarantee or letter of credit for 25% of the Award, plus accrued interest as of the date of this Decision, from a reputable international bank based outside of Pakistan, pledged in favour of Claimant (‘TCC’) and to be released on the order of the Committee.”[31] Pakistan failed to do as instructed and missed the deadline. Following Pakistan’s decision to miss the deadline, the High Court of Justice in the British Virgin Islands approved the attachment of PIAIL’s assets, also taking into account Roosevelt Hotel in New York and Scribe Hotel in Paris (owned by PIAIL).[32] Additionally, in 2019, Pakistan filled a motion to the Washington DC’s District Court to suspend execution of the $5.9 billion judgement, arguing that Pakistan did not surrender its sovereign immunity under the Foreign Sovereign Immunities Act (‘FSIA’) since no legitimate arbitration agreement existed.[33] However, the court emphasised that it was not entitled to evaluate such an issue in relation to an ICSID judgement under the FSIA and the motion was dismissed.[34]
Finally, in March 2022, the Pakistani federal government and the Balochistan government managed to settle out of court with Barrick Gold. TCC is a joint venture company with 50% of the holding belonging to Barrick Gold of Canada and the other half to Antofagasta [s1] Minerals in Chile.[35] In accordance with the settlement agreement the development of the Reko Diq mine was renewed, with 50% of the shares awarded to Barrick Gold, while the remaining 50% is equally divided between the federal government and the provincial Balochistan government.[36] Ultimately, Antofagasta Minerals decided to leave the Reko Diq project. A deal was struck between Antofagasta Minerals, Barrick Gold and a network of Pakistani state-owned enterprises, resulting in the Balochistan government acquiring shares in TCC’s subsidiary worth $900 million (an amount greater than originally agreed upon).[37] The proceeds of the deal will be distributed to Antofagasta Minerals if they withdraw from the TCC’s holding structure.[38]
Alternatives to ICSID?
The role of judiciary in Pakistan has gained much attraction after it has passed several decisions on the matter of arbitration concerning the investor state dispute settlement. There are various judgements of the superior courts stating that the principles of international law cannot jump over the procedural laws of Pakistan. The Lahore High Court in a celebrated judgement titled T. Zubair Limited vs. Judge, Banking Court, Lahore[39] developed the principle of ‘forum non conveniens’[40] in Pakistan and stated therein that a court has discretionary power to decline jurisdiction to parties where another court or forum can better hear the case. Following this reasoning the courts have stayed multiple proceedings involving foreign jurisdictions on the grounds that some other forum was more convenient than where the proceedings had been initiated.[41] The Supreme Court of Pakistan, however, in Maulana Abdul Haque Baloch vs. Government of Balochistan (as discussed above)[42]refused to accept the convenient and better forum (ICSID) and ruled that the dispute was to be resolved through municipal laws. In terms of international law, the Supreme Court erred in creating a clear distinction between public and private international law and declared the CHEJVA void. Subsequently, Pakistan had to face hefty penalties from international arbitral tribunal.
Since 1987 eight complaints have, in what is an alarming and costly state of affairs, been filed against Pakistan before the ICSID.[43] The ICSID arbitral tribunals have passed many rulings redefining the BIT jurisprudence in terms of standard BIT provisions to avoid any dispute with foreign investors. Due to this, many states have changed their practice as to BITs. Countries like South Africa, Indonesia, and Venezuela with regards to promotion of foreign investment have phased out many Bilateral Investment Treaties.[44] Pakistan also needs to join the emerging trends of international BIT practices to avoid ICSID cases in future and may chalk out new guidelines regarding Foreign Direct Investment (FDI).
To prevent disputes arising in the first place, Pakistan can take guidance from the UN Conference on Trade and Development. The latter is instructive for developing economies looking to effectively prevent of investment disputes and recommends the following:
i. Promote accessibility and transparency in the formulation of investment policies and regulations and procedures relevant to investors.
ii. Enhance predictability and consistency in the application of investment policies.
iii. Improve the efficiency of investment administrative procedures.
iv. Build constructive stakeholder relationships in investment policy practice.
v. Designate a lead agency, focal point, or investment facilitator with a mandate.
vi. Establish monitoring and review mechanisms for investment facilitation.
vii. Enhance international cooperation on investment facilitation.
viii. Strengthen investment facilitation efforts in developing-country partners, through support and technical assistance.
ix. Enhance investment policy and proactive investment attraction in developing country partners, through capacity-building.
x. Complement investment facilitation by enhancing international cooperation.[45]
A careful appraisal of the above stated action guidelines can provide overhaul Pakistan’s domestic policy framework for the better. In pursuance of this, the Pakistan Board of Investment (POBI), as the primary institution responsible for attracting and creating awareness about foreign investments, should lead the initiative. For instance, ‘mitigation of foreign investment disputes’ is one of the most important areas which needs immediate attraction from the government of Pakistan and the same can be achieved through a new mediation or complaint cell at POBI or any domestic ‘investment promotion agency’ (IPA). This would help the investors to resolve their disputes or concerns without going into costly litigation or arbitration. The POBI is also a member of Word Association of Investment Promotion Agencies, therefore it should try to establish a mechanism of information gathering from global IPAs as such links would help Pakistan to develop, revise and amend its key investment facilitation policies.[46]
Furthermore, to avoid arbitration at ICSID, Pakistan needs to devise a strategy for alternatives to ICSID. In this regard the major backdrop is that Pakistan doesn’t have any domestic investment arbitration centre, let alone any government-backed centre dealing solely with foreign investment disputes. Hence, there is a dire need of public-private partnership to establish a national investment arbitration centre. In 2009, an Arbitration Bill was tabled in the National Assembly of Pakistan for implementation of UNCITRAL Model Law on International Commercial Arbitration for the formation of an investor friendly dispute resolution mechanism. The Bill proposed the establishment of a domestic Arbitration and Conciliation centre, but it never became reality.[47] If Pakistan is to get ahead of the matter, it must create a domestic institution which can reduce its dependency on foreign arbitral forums. Indeed, this is the most viable option for Pakistan regarding alternatives to ICSID.
More specifically, if Pakistan intends to change its policy towards ICSID then it has to change its BIT model; the alternative to ICSID will only be effective when a domestic dispute resolution mechanism will be negotiated and included in the existing or future BITs. The holistic revision of the BIT model will decide the course of future foreign investment in Pakistan. Consequently, it will make sure that the domestic public policy interests are secured.
[1] International Centre for the Settlement of Investment Disputes Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (2017) Case No. ARB/12/1, Decision on Jurisdiction and Liability, para 263.
[2] ibid para 32.
[3] ibid para 265.
[4] ibid para 271.
[5] Christopher Finnigan, ‘Long Read: The Reko Diq ‘Fiasco’ in Perspective: Pakistan’s Experience of International Investment Arbitration’ (LSE, 14 August 2019) <https://blogs.lse.ac.uk/southasia/2019/08/14/long-read-the-reko-diq-fiasco-in-perspective-pakistans-experience-of-international-investment-arbitration/> accessed 28 March 2022.
[6] ibid.
[7] Agreement between Australia and the Islamic Republic of Pakistan on the Promotion and Protection of Investments (1998).
[8] Sara E. Myirski, ‘Copper, Gold, Corruption, and No Arbitral Relief: A Recent Pakistan Supreme Court Calls Into Question the Doctrine of Separability’ (2014) 6 Y.B. Arb. & Mediation 305, 307.
[9] ibid.
[10] Maulana Abdul Haque Baloch vs. Government of Balochistan, Supreme Court (2013) PLD 2013 SC 641, para 12.
[11] Myirski (n 8) 309.
[12] Maulana Abdul Haque Baloch vs. Government of Balochistan (n 10), paras. 3 (Abdul Haq Baloch v. Government of Balochistan (PLD 2011 SC 835), paras. 13, 14), 5 (CHEJVA, article 15.4.4); Myirski (n 8) 309.
[13] Australia-Pakistan BIT (n 7), article 13.
[14] Nicholas Peacock, Mike McClure, ‘Pakistan Supreme Court declares a contract – and the arbitration clause within that contract – void on public policy grounds’ (Herbert Smith Freehills, 9 September 2013) <https://hsfnotes.com/publicinternationallaw/2013/09/09/pakistan-supreme-court-declares-a-contract-and-the-arbitration-clause-within-that-contract-void-on-public-policy-grounds/> accessed 28 March 2022.
[15] International Centre for the Settlement of Investment Disputes Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (2017) Case No. ARB/12/1, Decision on Respondent’s Application to Dismiss the Claims (with reasons), para 402.
[16] ibid para 138.
[17] International Centre for the Settlement of Investment Disputes Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (2019) Case No. ARB/12/1, Award, para 1858.
[18] Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (2017) (n 1) Decision on jurisdiction and liability, paras. 224, 1015.
[19] Barkat Ali and Hafiz Aziz-ur-Rehman, ‘Public Interest Litigation: Economic Implications (A Critical Appraisal of Reko DIQ Case)’ (2020) 1 RJSSER 63, 69.
[20] Jefrey Sachs, ‘How World Bank Arbitrators Mugged Pakistan’ (Project Syndicate, 26 November 2019) <https://www.project-syndicate.org/commentary/world-bank-corrupt-arbitration-ruling-against-pakistan-by-jeffrey-d-sachs-2019-11?barrier=accesspaylog> accessed 28 March 2022.
[21] ibid; ‘Alexandrov survives Pakistan’s challenge over “rare” damages model’ (GAR, 8 September 2017) <https://globalarbitrationreview.com/arbitrator-challenges/alexandrov-survives-pakistans-challenge-over-rare-damages-model> accessed 28 March 2022.
[22] Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (2019) (n 17) Award, paras 92, 113.
[23] ibid para 92.
[24] ibid.
[25] ibid para 118.
[26] International Centre for the Settlement of Investment Disputes Convention ICSID Convention 2003 (ICSID Convention) articles 51, 52.
[27] ‘Post-Award Remedies’ (ICSID) <https://icsid.worldbank.org/node/12236> accessed 23 March 2022.
[28] Nasir Iqbal, ‘Mining firm moves Virgin Islands court for enforcement of Reko Diq award against Pakistan’ (DAWN, 24 December 2020) <https://www.dawn.com/news/1597596/mining-firm-moves-virgin-islands-court-for-enforcement-of-reko-diq-award-against-pakistan> accessed 04 May 2022.
[29] ibid.
[30] International Centre for the Settlement of Investment Disputes Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID (2022) Case No. ARB/12/1, Decision on Stay of Enforcement of the Award, para 213(d).
[31] ibid para 213(b).
[32] Nasir Iqbal, ‘Virgin Islands court resumes hearing on Reko Diq award today’ (DAWN, 07 January 2021) <https://www.dawn.com/news/1600108/virgin-islands-court-resumes-hearing-on-reko-diq-award-today> accessed 04 May 2022; Mushtaq Ghumman, ‘Roosevelt Hotel attached by court in Reko-Diq case’ (Business Recorder, 05 April 2021) <https://www.brecorder.com/news/40080929/roosevelt-hotel-attached-by-court-in-reko-diq-case> accessed 04 May 2022.
[33] Hasnaat Malik, ‘US court denies relief to Pakistan in Reko Diq case’ (The Express Tribune, 17 March 2022) <https://tribune.com.pk/story/2348337/us-court-denies-relief-to-pakistan-in-reko-diq-case> accessed 4 May 2022.
[34] ibid.
[35] Tethyan Copper Company <https://www.tethyan.com/> accessed 04 May 2022.
[36] Hasnaat Maik, ‘Pakistan evades $11b Reko Diq penalty’ (The Express Tribune, 20 March 2022) <https://tribune.com.pk/story/2348850/pakistan-evades-11b-reko-diq-penalty> accessed 04 May 2022.
[37] Jon Menon, ‘Antofagasta agrees deal to exit Reko Diq project in Pakistan’ (Proactive, 21 March 2022) <https://www.proactiveinvestors.co.uk/companies/news/977293/antofagasta-agrees-deal-to-exit-reko-diq-project-in-pakistan-977293.html> accessed 19 June 2022; Dominic Ellis, ‘Antofagasta pulls out of Reko Diq project in Pakistan’ (Mining, 21 March 2022) <https://miningdigital.com/supply-chain-and-operations/antofagasta-pulls-out-of-reko-diq-project-in-pakistan> accessed 19 June 2022
[38] ibid.
[39] T. Zubair Limited vs. Judge, Banking Court, Lahore, 2000 CLC 1405 (Lahore).
[40] Black’s Law Dictionary with Pronunciations, 6th Edition (Centennial Edition 1891-1991)
[41] T. Zubair Limited vs. Judge, Banking Court (n 39)
[42] Maulana Abdul Haque Baloch vs. Government of Balochistan (n 10)
[43] Ali Nawaz and Hafiz Aziz ur Rehman, ‘Legal Framework of Foreign Investment in Pakistan: An Appraisal of Protectionist Approach’ (2020) 4 PSSR, 171.
[44] Nur Gemilang Mahardhika, ‘An Epilogue To Bilateral Investment Treaties Regime And The Fate Of Foreign Investments Protection In Indonesia’ (2022) Journal Hukum Ius Quia, Faculty of Law, Universitas Islam Indonesia, 93.
[45] UNCTAD, ‘Global action menu for investment facilitation*’ (UNCTAD, 1 December 2016) <https://unctad.org/system/files/official-document/tdb63crp2_en.pdf> accessed 28 March 2022.
[46] Ahmad Ghouri, ‘Pakistan’s Policy on ICSID arbitration’ (The Express Tribune, 14 October 2017) <https://tribune.com.pk/story/1530723/pakistans-policy-icsid-arbitration> accessed 28 March 2022.
[47] Shahid Jamil, ‘Pakistani Arbitration: Towards the Model Law’ (2009) 75(4) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, pp. 532-536.
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Authors
Kafeel Abbas, Research Assistant, RCIL & HR (kafeel.abbas999@gmail.com)
Firdes Shevket, Research Assistant, RCIL & HR (firdes.schwkt98@gmail.com)
Laura Tutek, Research Assistant, RCIL & HR (lauratutek@gmail.com)