Reko Diq project: Supreme Court asks governments to file applications in world bodies

The Supreme Court on Tuesday directed Federal and Balochistan governments to file applications in international bodies for more time in arbitrator''s nomination in the Reko Diq matter and ask these bodies not to take any step till the final disposal of the case, which is under adjudication in the apex court of Pakistan.
A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry has been hearing identical petitions filed by former head (Amir) of Jamaat-e-Islami Balochistan chapter, Maulana Abdul Haq Baloch and others who have made the Government of Balochistan and others respondents. The petitioners urged the apex court to direct the respondents of Reko Diq case to withdraw from the international arbitration.
It is to be noted that Tethyan Copper Company Australia (TCCA) has moved an application in the ICC and ICSID against the federal and Balochistan governments for rejecting its application that it had filed to seek the award of a mining license of Reko Diq project.
During the hearing, Khalid Anwar, the counsel for Tethyan Copper Company Pakistan (Pvt) Limited (TCCP), informed the court that both TCCP and TCCA had approached the international arbitrator. Referring to Pak-Australia Bilateral Investment Treaty (BIT), he contended that there was an agreement between the two states to protect the interest of businessmen of both the states and if the apex court would pass any restraining order in the Reko Diq case, there would be a huge loss to Pakistan.
According to him, it would be better for the country to participate in the proceedings of international court of arbitration on the Reko Diq matter, otherwise the heavy fine could be imposed on Pakistan. He cited different cases in which the court had stopped the government to participate in the proceedings of international arbitrations, but later the country had to pay a heavy price due to the restraining orders of the courts.
Anwar opposed the grant of stay by the apex court over the matter and contended that whatever status both the companies - TCCP and TCCA - might enjoy, TCCA had not been represented by any one and any order passed by the court to this effect would likely to cause further legal complications - domestically and internationally.
He further said TCCP was a subsidiary of TCCA. To a court query, he said judiciary of Australia and Pakistan could not interfere in the international arbitration and if they sought do so, the international arbitration would disregard it. Ahmer Bilal Sufi, counsel for Balochistan government, contended that the parties should approach the ICC and ICSID themselves with an argument that the case was pending adjudication before the Supreme Court and the local courts were in a position to rule on any illegality or unlawful act in the agreement.
On the occasion, Sufi also referred to the 1958 New York Convention. According to which, before invoking any arbitration, the party should have first requested the Supreme Court for permission to take the matter to the international arbitration. He said the apex court was already seized with the matter and under the international law, only domestic court was well positioned to rule on the illegality and unlawful acts of any agreement.
Advocate General Balochistan, Amanullah Kanrani prayed to the court not to go into arbitration, arguing that it was a sensitive case involving billions of rupees. Raza Kazim, the counsel for one of the petitioners in the Reko Diq case, had filed an application before the Supreme Court, contending that the TCCA had committed a contempt of court by invoking international arbitration without intimating the Supreme Court, when the apex court was seized of the matter and the TCCA was the beneficiary of its interim order.
He had further urged the court to direct the parties to write to ICC not to take further steps in the international arbitration proceedings. After hearing the arguments, the court directed the federal and provincial governments to make a request to the ICC and ICSID not to take further steps in arbitration process about the case till the decision of the apex court. The court observed that it would dispose of the case as early as possible.
"We direct to the Government of Balochistan as well as Government of Pakistan to make a request to the International Chamber of Commerce (ICC) and the International Centre for Settlement of Investment Disputes (ICSID) Washington D.C. not to take further steps and extend the period for nomination of the Arbitrator, so that in the meantime this Court, which is already seized of the matter since the year 2007 and is hearing the petitions filed subsequently on the same subject under the Constitutional provisions, may dispose of the same finally," the Chief Justice said in the order. The bench adjourned hearing for two weeks.