ISLAMABAD: On repeated requests from China, Pakistan’s top judicial policymaking body has asked the country’s high courts and lower judiciary not to issue ex parte stay orders in respect of CPEC-related projects.
The National Judicial Policy Making Committee (NJPMC) headed by Chief Justice of Pakistan Justice Saqib Nisar and comprising the chief justices of four high courts and Federal Shariat Court has also asked the Planning Commission — the country’s focal organisation on the China-Pakistan Economic Corridor — to consult the Supreme Court if it requires any support in matters relating to the CPEC.
According to the official record seen by Dawn, the decisions were taken at a special meeting of the NJPMC in February. About a dozen federal secretaries or their senior representatives were specially invited to the meeting in view of the importance of increasing Chinese investments and financing in Pakistan.
China seeks special arrangements for expeditious resolution of disputes with its investors in Pakistan
Senior Supreme Court judge Justice Mushir Alam and retired Justice Shakirullah Jan and senior puisne judge of the Lahore High Court Justice Muhammad Yawar Ali also attended the meeting. Justice Yawar Ali subsequently became the chief justice of the Lahore High Court.
Informed sources said the Chinese side had been pressing hard at almost every forum for exemption from stay orders and suggesting special arrangements for expeditious resolution of disputes with Chinese investors, contractors and financiers.
CJP Nisar told the participants that they had been invited to share views with the stakeholders about disputes likely to arise out of CPEC projects and their resolution mechanism.
He said that during his visit to China in 2017, the president/chief justice of the Supreme People’s Court of China “showed his concern about dispute resolution mechanisms to deal with likely disputes arising out of CPEC projects and desired that some expeditious dispute resolution mechanism may be framed”.
The matter was taken up with Chief Justice Nisar by two Chinese ambassadors who “reiterated that for resolution of disputes that may arise between individuals and Chinese government a mechanism should be evolved” and reminded “the amicable settlement of CPEC-related disputes”.
Justice Mushir Alam was of the view that with the CPEC investment in Pakistan there was likelihood of civil and criminal disputes and emphasised the need for uniformity in laws, processes and mechanisms.
Justice Syed Mansoor Ali Shah, then LHC chief justice, stressed the need for setting up a forum like the IFC-Dubai which looked after foreign direct investment.
He suggested that designating special courts to hear CPEC-related disputes could also be considered.
Dr Muhammad Raheem Awan, Secretary of the Law and Justice Commission of Pakistan, told the meeting that 48 bilateral investment treaties (BITs) of the country were currently in place, including one with China since 1989. He said the treaty covered disputes and provided direct recourse to foreign investors to refer the dispute to an arbitration centre under the World Bank — International Centre for Settlement of Investment Disputes.
He suggested the establishment of a dispute resolution mechanism to facilitate Chinese investors and called for revisiting the BITs.
The planning and development secretary said the CPEC was basically a bilateral agreement between two friendly countries, evolving from a 2013 memorandum of understanding.
“The basic purpose of the agreement is to promote peace and stability in the region and beyond”, he said, explaining that the MoU contained a dispute resolution clause to the effect that disputes shall be decided through friendly consultation and “no worth mentioning dispute” had arisen so far.
The additional secretary of energy (power division) informed the meeting that the CPEC projects included a $2.1 billion high voltage direct circuit from Matiari to Lahore spreading over 878 kilometres and in respect of which stay orders had been passed and the issue required consideration.
The Board of Investment secretary said the BoI had cordial relations with the Chinese government and no disputes were foreseen.
The Federal Board of Revenue chairman told the meeting that Pakistan had suggested to the Chinese government to form a working group for discussing likely tax issues and in case any issue was identified legislation for the same might be considered.
He said the Supreme Court of Azad Jammu and Kashmir had issued certain orders which might affect the CPEC-related projects. He added that certain provincial CPEC-related sales tax matters required consideration.
The secretary of railways ministry informed the meeting that construction of a main railway line from Karachi to Peshawar was being considered, along with a dry port at Havelian, adding that issues relating to bill of quantity, cost, etc, had been resolved and the project would be launched soon.
The communications secretary said his ministry had so far not received a single complaint regarding the CPEC.
The law secretary said arbitration clauses were proposed in some CPEC-related agreements and MoUs which were not vetted by the law ministry.
Published in Dawn, May 7th, 2018