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ISLAMABAD: The Additional Attorney General has informed the Supreme Court that Chaghi Hills Exploration Joint Venture Agreement (CHEJVA) was not scrutinised professionally and Balochistan government’s functionaries and foreign company’s credentials were not ascertained.

A five-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, and Justice Jamal Khan Mandokhel, on Tuesday, heard the presidential reference on the RekoDiq project.

Additional Attorney General Aamir Rehman stated that the Supreme Court’s judgment on Abdul Haq Baloch noted that Balochistan Development Authority (BDA) was not a government; therefore, was not authorised to enter into an agreement with BHP on behalf of the government. It also noted that there was a lack of due diligence in the signing of Joint Venture Agreement.

Rehman said the agreement was not scrutinised professionally and government functionaries and BHP credentials were not ascertained whether it can do the large-scale project or not? There was no competitive bidding and the advertisement. It was against public policy as it claimed Balochistan free-carried interest. The welfare of the people of Balochistan was not taken into account.

The chief justice said that the criteria laid down in the Supreme Court’s judgment on Abdul Haq Baloch are valid for the re-introduction of the agreement.

Rehman said after the ICSID award the government had constituted two committees – Steering and Apex – to look into the financial viability, legal option, and for the negotiation for the settlement of award. The Steering Committee was headed by the prime minister and its members included chief minister Balochistan, federal ministers of Finance, Planning, Law and Justice, Petroleum Division, and chief secretary Balochistan.

The Apex Committee comprises Federal Minister for Finance, Energy, Law and Justice, Attorney General, chief minister Balochistan, Director General Military Intelligence (MI). They were part of the negotiation team. They hired technical experts and approved the summary for the settlement of the dispute with Antofagasta, adding the federal and the Balochistan cabinet also approved the summary for payment of $900 million to Antofagasta.

The AAG informed ICSID award against Pakistan was a violation of the treaty, while the ICC award would be violation of contract. He said that in a meeting held on 15-06-2020 in the chair of chief minister Balochistan it was decided to set up Balochistan Mineral and Exploration Company (BMEC).

Rehman said that a Chinese company had approached the government, but it was not willing to discharge the award liability. The Antofagasta had proposed to settle the award on receiving $1.75 bn, while on the other hand, Barrick Gold said that they would like to come back if offered some fiscal benefit, i.e. tax holidays for 15 years.

He stated that in April 2021 both the governments of Pakistan and Balochistan decided to engage transaction and legal advisors for negotiating a deal with Barrick Gold. In May 2021, Evercore was engaged as a transaction expert, while Tories as legal advisor.

The chief justice questioned whether the revenue that will be received after refining the gold will be deposited in Pakistan? The AAG replied that the Balochistan Mineral Company will be in Pakistan, but its withholding will be outside.

Justice Bandial remarked; “We (the government) have the foreign investor in the power sector, but it kept the money in Pakistan,” adding they had a different setup.

The AAG said in any way 50 per cent share in profit will come in Pakistan. Justice Ijaz inquired whether there is any formula for profit determination. Whether there are any safeguards.

The case was adjourned until Wednesday (Nov 9).

Copyright Business Recorder, 2022

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