ISLAMABAD: In a major development, the Tethyan Copper Company (TCC) has approached the High Court of Justice in the British Virgin Islands (BVI) for enforcement of the July 12, 2019 $5.97 billion award against Pakistan by the International Centre for Settle­ment of Investment Disputes (ICSID) in the Reko Diq case.

The office of the Attorney General for Pakistan (AGP) says that the government is vigorously contesting these proceedings with all legal resources available to it and is also engaged to settle the matter amicably.

On Nov 20, the TCC had moved the BVI high court for enforcement of the award which includes attachment of the assets belonging to the Pakistan International Airlines Investment Ltd, a company incorporated in BVI.

In response on Dec 16, the BVI high court granted a stay order ex-parte without hearing Pakistan, but the government will context the case when it will be taken up again on Jan 7, 2021.

AGP office says govt is contesting the proceedings while it is also trying to settle the matter amicably

The information about the attachment proceedings and the order of BVI high court was communicated to Pakistan on Dec 23.

Without prejudice to such engagements, a statement issued by the office of the AGP says, Pakistan has reiterated that the government will vigorously pursue proceedings initiated by the TCC in any jurisdiction. The government reaffirms its commitment to protecting national assets. Pakistan is also in the process of engaging legal counsel to contest the attachment proceedings.

The ICSID tribunal had taken up the dispute between Pakistan and the TCC which had claimed $8.5 billion for rejection of its application by the mining authorities of Balochistan for the multimillion dollar mining lease in the province in 2011.

Earlier Pakistan had taken the plea before ICSID that the agreement /mining licence for Reko Diq was procured through corrupt means and, therefore, the claimant (TCC) could not ask for damages.

On Sept 18, the World Bank-funded tribunal stayed enforcement of the award against Pakistan but with the condition that it would furnish irrevocable bank guarantee for 25 per cent of the total amount of the award from a reputable international bank based outside Pakistan.

Later in November, Law360, a website that deals with the news and analysis on legal developments including litigation filings, case settlements etc, had reported that the copper mining joint venture had been given green light to try to collect 50pc of the massive award against Pakistan.

But Pakistan is also actively engaged in negotiations with the parties involved in the Reko Diq dispute as representatives of the country and the TCC had met in London in Oct 2019 where they had agreed to remain open for a negotiated out-of-court settlement of the dispute.

Earlier Pakistan had welcomed a statement issued by William Hayes, chairman of the TCC board of directors, in which he had expressed willingness to work towards a negotiated settlement.

Mr Hayes had stated that the company remained willing to discuss the potential for a negotiated settlement with Pakistan.

Then Pakistan had taken the stand that it had considered the July 12, 2019 press release issued by Antofogasta PLC, a Chilean mining company which is part of the joint venture, and the statement of Mr Hayes, in which he had expressed willingness to work towards a negotiated settlement.

“The government of Pakistan welcomes this approach to work towards a mutually beneficial solution that works for both sides,” then Pakistan had taken the stand, adding it was a responsible state and its government always took its international legal obligations seriously.

Pakistan had also stated that the mineral resources in Reko Diq were collective resource of the people of Balochistan and Pakistan and the country was keen to develop this resource to ensure that the development needs of some of the poorest people on the planet were addressed.

The TCC is a 50-50 joint venture of Barrick Gold Corporation of Australia and Antofagasta PLC of Chile whereas the Reko Diq area in Balochistan is famed for its mineral wealth, including gold and copper.

Published in Dawn, December 25th, 2020

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