The News International, Pakistan
Why is govt in a hurry to pay TCC for Reko Diq?
Lawyers, experts, CM confused; Khaqan Abbasi says summary going to PM
By Shaheen Sehbai & Ahmad Noorani
6 December 06 2014
DUBAI/ISLAMABAD: The Nawaz Sharif government is in an unnecessary haste to settle and pay millions, possibly billions, of dollars as compensation for the Reko Diq gold and copper mines to a discredited and ousted Canadian-Chilean mining consortium, a decision if made may resemble the infamous circular debt payment of Rs500 billion in the early days of the PML-N government.
Interestingly, mining and legal experts and the London and Pakistani lawyers of the Government of Pakistan as well as the Government of Balochistan do not agree.Chief Minister of Balochistan Dr Malik recently rejected the speculation that the provincial government had made any compromise on the Reko Diq copper-cum-gold project and said he would “soon disclose the facts about it.” He did not elaborate.
The News has talked to all the stakeholders in this matter, top British and Pakistani lawyers, including the firm of Mrs Cherie Tony Blair, ex-law minister Ahmer Bilal Soofi, known scientist Dr Samar Mubarakmand, Federal Minister Shahid Khaqan Abbasi, spokesman of the Finance Ministry, son of the former Chief Justice Arsalan Iftikhar, a Canadian mining expert and some interested investors of US and Canada, besides others who spoke off the record.
All gave different versions and different on-the-record responses.The bombshell was thrown by Federal Minister for Natural Resources Shahid Khaqan Abbasi who broke the news and said he was sending a summary to the prime minister seeking approval to immediately start negotiations with the Tethyan Copper Company (TCC) to settle “out of court” a claim which the TCC has launched in the International Court for Settlement of Disputes (ICSID).The Supreme Court of Pakistan, headed by ex-CJ Iftikhar Mohammad Chaudhry, after he took suo moto notice of stories published by The News, threw the TCC out of Pakistan.
Shahid Khaqan Abbasi told Ahmed Noorani in Islamabad: “I am sending a summary to the prime minister for seeking his approval to start negotiations with TCC. Talks with TCC will start after PM’s approval and all details will be discussed while both sides will be sitting on the table.”
Khaqan Abbasi rejected the thought that the move to start negotiations with the TCC showed that the government was in some indecent haste. “Rather it is an understanding of the ministry that sitting on the table can help us both. What will be our final deal with TCC or whether we will give some project of Reko Diq to TCC cannot be discussed at this stage,” commented the petroleum and natural resources minister.
Abbasi said it was not possible to go into the details before that but he said “it was always an option to sort out issues with TCC by sitting on the table as an award of arbitration can be harmful for both sides.”He said the Supreme Court had already declared the agreement with the TCC as null and void and this was the final legal position.
The issue at hand is that the International Court’s International Centre for Settlement of Investment Disputes (ICSID) has yet to decide whether it has the jurisdiction to intervene in such a matter and that the judgment will come after several months. The court will also decide whether Pakistan has any liability to pay.
Once these two decisions are taken, then the stage of determining the quantum of payment will arrive and that may take years. If any settlement on the table is needed, that would be at a later stage, otherwise the ICSID would fix the amount.
Rana Asad Amin, spokesman of the Ministry of Finance, told The News said that his ministry was only aware of the ICSID hearing on the TCC-Government of Balochistan dispute on Reko Diq and waiting for its decision which will be announced after four to five months.
“The Ministry of Finance is not aware if there are any talks for some deal of $5 billion for Reko Diq with TCC,” Rana said.How did the figure of $5 billion or over Rs500 billion come up? No one knows as the TCC has not officially made any mention of what amount they will claim from Pakistan in an out-of-court settlement. But figures have been thrown around unofficially and through the Western media.
For instance, the influential Wall Street Journal reported in May 2013 that a 2010 feasibility study put TCC’s share of the potential profits on Reko Diq’s 56-year mine life at $12 billion.When WSJ asked whether TCC would seek such monetary compensation, its CEO Tim Livesey said the company had hired an independent economic adviser to provide advice on how much compensation to seek and would only be in a position to disclose the figure in the second half of 2014.
So this figure has been thrown around unofficially with feelers that Pakistan may be forced to agree on a settlement close to $5 billion, experts in the field say.WSJ says the TCC has only invested $260 million in exploration but Tim Livesey says we will also claim the lost profits, which is a highly controversial claim.
Many experts say TCC may have spent some money “unofficially” on putting “wings on files” but the company cannot claim a compensation for these expenses.Dr Samar Mubarakmand, a known Pakistan scientist who was present in Paris in October when the international court heard the case, says TCC conducted feasibility study of only one deposit in Reko Diq and is now seeking compensation for 14 deposits.
Why Shahid Khaqan Abbasi and his government is so keen to begin talks now to pay the ousted mining company is even beyond understanding of the high level legal team that was hired by Pakistan and Balochistan to fight the case in the ICSID in Paris.
The legal firm of Cherie Blair working in close coordination with prominent lawyer Ahmer Bilal Soofi in Pakistan was asked a set of questions and they responded in writing as follows:“We write with reference to your email of 24th November 2014 in which you have raised certain queries to Omnia, below are the comments of the Legal team representing Government of Pakistan in ICSID.
“We make it plain at the outset that this response is not a comprehensive briefing on the arbitration proceedings commenced by Tethyan Copper Company Pty Limited (“TCC”). It is aimed at providing you with information, where appropriate, in response to your queries.
“We note that you are doing a news story about ‘TCC-Govt of Pak negotiations for out of court settlement on Reko Diq’. Please note that we are not in a position to comment on the existence of settlement negotiations between the Government of Pakistan and TCC.
“The present mandate of the legal team is to represent the Governments of Pakistan and Balochistan in the ICC and ICSID arbitration proceedings commenced by TCC in November of 2011.
“We will deal with each of your questions in turn.
Q: Is it your understanding that ICSID will issue a verdict after 4-5 months on all 3 issues before it at the same time, i.e.Jurisdiction, Liability and Quantum of Compensation.
A: The ICSID proceedings have been split into two phases. The current phase addresses only issues of jurisdiction and liability. The issue of quantum has been bifurcated and will be heard only if the Tribunal assumes both jurisdiction and finds Pakistan liable for violation of the Australia-Pakistan Bilateral Investment Treaty (“the BIT”).
The ICSID Tribunal held an oral hearing on the issues of jurisdiction and liability over a two-week period in October 2014 in Paris. The Tribunal has ordered the parties to file written post-hearing submissions by 15th January 2015. Given past experience, we anticipate that the Tribunal will issue a decision on jurisdiction and liability issues in at least about five to six months after the filing of the post-hearing submissions.
“If the ICSID Tribunal assumes jurisdiction and finds Pakistan liable, only then will the proceedings move to the determination of quantum. This will entail the parties filing written submissions on quantum issues and an oral hearing. We anticipate that such a phase could take at least a year to a year and half
“Q: Can Pakistan negotiate a settlement even before ICSID decides the jurisdiction issue? We think they should not but you may not comment on this if you want.
A: As counsel, it is our duty to advise our clients on all options, including that of settlement. We have advised our clients to explore the option of settlement on a without prejudice basis. This is of course without prejudice to our client’s position in the arbitration cases.
“Q: Do we have a strong case?
A: We cannot comment on the merits of our client’s case, but can confirm that this is an important case and both Governments have mounted a vigorous defence. We do note, however, that the Governments of Pakistan and Balochistan have defeated TCC’s requests for interim relief in both the ICSID and ICC cases. TCC had effectively sought an injunction to restrain Pakistan from exploiting the Reko Diq deposits either itself or through third parties for the duration of the arbitration proceedings. Both the ICSID and ICC Tribunals rejected that request, and there is therefore no impediment to or restriction on the Governments of Pakistan and Balochistan dealing with the deposits as they deem fit. For example, the Government can lease the Reko Diq deposits to other investors. Further, the Governments have also successfully forced TCC to narrow the scope of the relief it requested from the Tribunals. TCC’s claim is now restricted to claiming damages and costs. It has withdrawn its earlier request for specific performance, i.e. that it be granted a mining lease over the Reko Diq deposits.
“Q: Is there a Case History where ICSID has determined jurisdiction even though Supreme Court of Pak (or any country) has given a verdict against a petitioner.
A: We do not deem it appropriate to comment on this query given it would entail commenting on a point which is or may be in issue in the arbitration.
“Q: Can you refer us to 1 or 2 past cases where jurisdiction issue was decided by ICSID in similar circumstances?
A: We do not deem it appropriate to comment on this query given it would entail commenting on a point which is or may be in issue in the arbitrations.”