Virgin Islands court resumes hearing on Reko Diq award today

Published January 7, 2021
The Reko Diq area in south west of Balochistan is famous for its mineral wealth, including gold and copper. — Courtesy Tethyan Copper Company Pakistan/File
The Reko Diq area in south west of Balochistan is famous for its mineral wealth, including gold and copper. — Courtesy Tethyan Copper Company Pakistan/File

ISLAMABAD: As the High Court of Justice in the British Virgin Islands (BVI) resumes on Thursday (today) hearing of a case relating to enforcement of a $5.97 billion award against Pakistan, Islamabad is hopeful that its legal team will ensure that no further adverse effect takes place against the country.

“The government of Pakistan has engaged a team of lawyers from the international firms and will definitely contest the case to ensure that no further adverse effect takes place against our institutions and its properties,” said a highly placed source privy to the development.

Tethyan Cooper Company (TCC) had on Nov 20, 2020 approached the High Court of Justice for enforcement of the $5.97bn award against Pakistan by the Interna­tional Centre for Settlement of Investment Disputes (ICSID) in Reko Diq litigation on July 12, 2019.

The BVI high court had through an ex parte order on Dec 16, 2020 attached the assets belonging to Pakistan International Airlines Investment Limited (PIAIL), including the company’s interests in two hotels namely Rossevelt Hotel in Manhatten, New York, and Scribe Hotel in Central Paris, and frozen 40 per cent interest of PIA in a third entity, Minhal Incorporated.

The source said that besides the government’s own legal team, Pakistani BVI companies had also appointed their team separately. They will appear before the BVI court and contest the case.

The office of attorney general for Pakistan (AGP) had earlier stated that the government would vigorously pursue the proceedings initiated by TCC in any jurisdiction and the government reaffirmed its commitment to protecting the national assets wherever they might be located.

Referring to the appointment of receiver by the BVI court, the source said Pakistan would definitely oppose this move. The BVI court had in its Dec 16 order appointed the receiver on an interim basis.

According to media reports, the receiver, Paul Pretlove of Kalo Advisors, is expected to ensure that the hotels are not sold below the market rate and secure the proceeds of any sale that takes place.

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

The ICSID tribunal had taken up the dispute between Pakistan and TCC which had claimed $8.5bn for rejecting the latter’s application by the mining authority of Balochistan for the multimillion dollar mining lease in the province in 2011.

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

In September 2020, the World Bank-funded tribunal stayed the enforcement of the award against Pakistan, but with certain conditions to furnish irrevocable bank guarantee for 25pc of the total award which the ICSID had awarded from a reputable international bank based outside Pakistan.

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

But Pakistan is also actively engaged in negotiations with the relevant parties involved in the Riko Dig litigation dispute and both parties — Pakistan and TCC — met in London in October 2019 where they had agreed to remain open for a negotiated out-of-court settlement of the dispute.

Earlier, Pakistan had welcomed a statement made by Mr William Hayes, chairman of the Board of Directors of TCC, in which he had expressed the willingness to work towards a negotiated settlement. William Hayes had stated that the company was willing to discuss the potential for a negotiated settlement with Pakistan and would continue to protect their commercial interests and legal rights until conclusion of this dispute.

TCC is a 50-50 joint venture of Barrick Gold Corporation of Australia and Antofagasta PLC of Chile. Reko Diq district of Baluchistan is famous for its mineral wealth, including gold and copper.

Published in Dawn, January 7th, 2021

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