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US court denies relief to Pakistan in Reko Diq case.

ghazi52

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..... Latest.

US court denies relief to Pakistan in Reko Diq case..​

District court tells Pakistan to comply with the $6bn award

Hasnaat Malik
March 17, 2022

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Washington DC’s District Court has dismissed Pakistan’s motions for stay enforcement of $6 billion award against the country in Reko Diq case by the International Centre for Settlement of Investment Disputes (ICSID) in July 2019.

The ICSID imposed a $6 billion fine on Pakistan on July 12, 2019 for revoking a contract for mining at Reko Diq in Balochistan. A British Virgin Islands (BVI) court also ruled on the matter, attaching Pakistan International Airlines’ (PIA) assets in New York and Central Paris to enforce the award.

Investment Arbitration Reporter (IA Reporter) has reported that Pakistan argued that it had not waived its sovereign immunity under the Foreign Sovereign Immunities Act
(FSIA) since no valid arbitration agreement existed.

The court, however, emphasised that it was not entitled to review such an arbitrability argument with respect to an ICSID award under the FSIA. It added that even if it were allowed to do so, it would owe deference to the arbitration tribunal’s decision on this issue.

The court next noted that the US statute implementing the ICSID Convention required courts to give awards “the same full faith and credit as if the award were a final judgment” of a state court.

While Pakistan contended that no such full faith and credit should be granted since the arbitration tribunal lacked jurisdiction ratione materiae, the court swiftly disposed of this argument, stressing that “longstanding precedent bars this attempt to recycle a losing jurisdictional argument”.

Consequently, Pakistan’s motion to dismiss was rejected.

IA Reporter further reported that the court closed its order by emphasising that the award was final and that in application of Articles 53(1) and 54(1) of the ICSID Convention, Pakistan was obliged to abide by and comply with the award, as well as to enforce the pecuniary obligations arising under the award.

The court next directed the parties to agree on a joint proposed final judgment consistent with its Memorandum Opinion, including the current amounts for pre- and post-award interest.
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Goenitz

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Perhaps legitimate decision but who can believe the US court cerdict. IDK why Afia is in prison but Trump pardoned war criminals. Then US senator, etc is giving money to crooks, then one can translate that the court was influenced to give such verdict. Then Pak is in FATF whereas others are not despite not lacking the criteria. Linya paid compensation but the US didn't for shooting Iranian plane.
 

ghazi52

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US court dismisses Pakistan’s motion to stay or dismiss enforcement of 6 billion USD award, following decision to lift stay by revision tribunal Published: Mar 11, 2022 | By: Lisa Bohmer The United States District Court for the District of Columbia has dismissed Pakistan’s motions to stay or dismiss enforcement of the high-stakes Tethyan Copper v. Pakistan ICSID award.

The March 10, 2022 Order [click to download] and accompanying Memorandum Opinion [click to download] thus pave the way for US enforcement of the 6 billion USD July 12, 2019 award, in which a tribunal of Klaus Sachs (chair), Leonard Hoffmann (respondent’s appointee) and Stanimir A. Alexandrov (claimant’s appointee) found that Pakistan had breached the Australia-Pakistan bilateral investment treaty by failing to grant a mining license to the claimant. While the tribunal also dismissed Pakistan’s corruption allegations,

Pakistan has since lodged criminal proceedings against several public officials who were involved in the underlying mining project, and sought to raise these corruption allegations anew in post-award proceedings. (Readers may recall that a UK court last year declined to hear these additional corruption allegations in the context of set-aside proceedings against the related Tethyan Copper v. Province of Balochistan ICC award.) Meanwhile, two parallel ICSID proceedings remain pending: Annulment proceedings before an ICSID ad hoc committee of Kim Joongi (chair), Bernardo Sepulveda Amor, and Carita Wallgren-Lindholm; and Revision proceedings before the original tribunal.

The US court, however, considers that the chances that these proceedings will result in a modification of the award are “low”. Before the US courts, Tethyan Copper is represented by Gibson, Dunn & Crutcher, while Pakistan relies on Mayer Brown.



ICSID annulment committee and revision tribunal lift stays – US court follows suit As we reported, the annulment committee initially granted a conditional stay of enforcement of the underlying award – but the stay was lifted in late 2020, after Pakistan had failed to meet the conditions set out in the stay decision.

In addition, a September 17, 2021 status report filed by Tethyan Copper in the US court proceedings reveals that, on September 7, 2021, the revision tribunal decided to terminate the stay of enforcement of the award that had automatically been granted when the revision proceedings were filed earlier that year.

The status report adds that the revision tribunal “noted that if the annulment proceedings end before the revision application is decided, the tribunal will consider a renewed request for a stay should Pakistan request a new stay at that time”.

According to ICSID’s website, the revision tribunal provided reasons for its stay decision on February 14, 2022. Both decisions remain unpublished.

The US court decided to follow the rulings of the ICSID bodies, staying the US enforcement proceedings after the ad hoc committee’s initial stay decision, as well as after the revision proceedings were filed (implying a provisional stay). Once both stay decisions were lifted, Pakistan filed another motion to stay.

The US court was unconvinced. 3/15/22, 11:52 PM 2/2 Since Pakistan was advancing essentially the same arguments in the ICSID annulment proceedings and before the US court, the latter acknowledged that “litigating the same issues in two forums often does not advance judicial economy”.

However, the court added that the briefing before it was already complete, and that “judicial economy also favors swift adjudication”. Notably, the court also emphasized that Pakistan itself predicted that the chance of success of its annulment application were “low” – estimated at less than 30%.

The court further noted that Pakistan had pointed “to no time when ICSID has granted a revision application”.

The balance of hardships also did not support Pakistan’s stay application. While Pakistan argued that the award’s enforcement would “essentially negate its 2019 $6 billion loan from the International Monetary Fund, derail its economic stability, diminish its ability to fight COVID-19, and force it to engage in costly enforcement litigation around the world”, the court considered that Pakistan could raise these arguments at the attachment and execution stages.

(Readers may remember that similar arguments had failed to sway the ad hoc committee.) To the contrary, the court emphasized that Tethyan Copper had been waiting for over a decade for compensation, meaning that a “stay only prolongs justice denied”.

In addition, the court emphasized that Pakistan had declined to comply with the conditions for stay imposed by the ad hoc committee, which had directed the state to provide a letter of credit for 25% of the award amount. Pakistan’s motion to stay was thus dismissed.

Court rejects motion to dismiss, emphasizing that Pakistan is bound to comply with the award The court similarly rejected Pakistan’s motion to dismiss the enforcement bid.

Pakistan argued that it had not waived its sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), since no valid arbitration agreement existed.

The court, however, emphasized that it was not entitled to review such an arbitrability argument with respect to an ICSID award under the FSIA – adding that, even if it were allowed to do so, it would owe deference to the arbitration tribunal’s decision on this issue. The court next noted that the US statute implementing the ICSID Convention required courts to give awards “the same full faith and credit as if the award were a final judgment” of a state court.

While Pakistan contended that no such full faith and credit should be granted since the arbitration tribunal lacked jurisdiction ratione materiae, the court swiftly disposed of this argument, stressing that “[l]ongstanding precedent bars this attempt to recycle a losing jurisdictional argument”.

Consequently, Pakistan’s motion to dismiss was rejected.

The court closed its order by emphasizing that the award was final and that in application of Articles 53(1) and 54(1) of the ICSID Convention, Pakistan was obliged to abide by and comply with the award, as well as to enforce the pecuniary obligations arising under the award.

The court next directed the parties to agree on a joint proposed final judgment consistent with its Memorandum Opinion, including the current amounts for pre- and post-award interest
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Thəorətic Muslim

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Perhaps legitimate decision but who can believe the US court cerdict.

The US Court system isn't like what you're used to in Pakistan where some Abdullah from Sialkot complains and the Chief Justice decides to take Sui Moto on it. Then some paid off Justice from the LHC says "F U Supreme Court imma do this."

There's a process that rises up the system from the lower courts to middle courts to more appeals to Supreme Court (Only to review if the case requires interpretation of the constitution).
 

CrazyZ

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Cant say I understand why a USA court is involved? Unless the USA annexed Pakistan.....it has no sovereign authority in this contract.
 

Big_bud

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If the court has no jurisdiction Pakistan can refuse to pay. And reject court's authority on the matter.
 

CrazyZ

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The court, however, emphasised that it was not entitled to review such an arbitrability argument with respect to an ICSID award under the FSIA. It added that even if it were allowed to do so, it would owe deference to the arbitration tribunal’s decision on this issue.
Title is misleading......The American court is saying it has no authority in the case. PIA should apply for NY covid rental relieve.....ICSID can't get the marshal to evict as long as the application is pending. :lol: At this point in time Reko Diq is worth far more then a run down hotel in NYC. Why was this hotel not sold off years ago anyways?
 
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CrazyZ

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Time to settle the case. Let ICSID have the Roosevelt hotel....Pakistan pays them nothing and everyone move on. Hotels in NYC are selling at huge losses right now. A major hotel in times square sold for a fraction of its price in 2006. PIA's Roosevelt Hotel is not worth more then $100 mill right now. Much less then 6 Bill or they 100's of billions Reko diq was worth years ago. With global cooper shortage Reko Diq could be worth 5 -10X more then the 100's billions it was valued at during the ICSID case.

 

SQ8

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Symbolic-ish but the court did make the right decision according to the evidence and law. Whether it is token or will be used by more malicious anti-Pakistan elements for later remains to be seen.
 

XDescendantX

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Pakistan should tell the Western countries to return the hundreds of billions of dollars crooks like Nawaz Sharif have stolen and hidden in Western banks. Until then Pakistan should just say, "Sorry but we're broke, want proof? Just look at all our stolen money sitting in your banks."
 

jupiter2007

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Sell off all the Pakistan owned properties and remove all the assets from American. Also, push to do all the international business transactions in Chinese currency instead of dollar.
 

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