The Supreme Court directed the federal and Balochistan governments on Tuesday to request the International Chambers of Commerce (ICC) and the International Centre for Settlement of Investment Disputes (ICSID) to delay nomination of arbitrators over the Reko Diq mining lease dispute. Both the governments are required to request through letters the two international organisations to extend the nomination of arbitrators so that the Supreme Court, seized with the matter since 2007, could reach a final decision. The court will resume the hearing after two weeks.
A three-judge bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Khilji Arif Hussain and Justice Tariq Parvez had taken up a plea by Dr Abdul Haq Baloch, one of the petitioners in the main Reko Diq case, seeking initiation of criminal proceedings against the Balochistan government for violating the May 25, 2011, order of the apex court.
The petitioner had also sought a restraining order against the provincial government from appearing at the international arbitration forums.
The ICC in Paris (France) is seized with the dispute between the Tethyan Copper Company Pakistan (TCCP) and the Balochistan government over the latter’s rejection of mining lease to the former for exploration at Reko Diq.
The TCCP has also filed a request for arbitration at the ICSID in Washington D.C. (United States) against the federal government.
The TCCP is a Canadian and Chilean consortium of Barrick Gold and Antofagasta Minerals formed to explore gold and copper at Reko Diq, a small desert town in Chagai district of Balochistan that sits over what is known as Tethyan copper belt with the world’s fifth largest deposit of gold and copper.
On Tuesday, Advocate Ahmer Bilal Sofi, counsel for the Balochistan government, informed the court that the provincial government had received a letter from the ICC for immediate appointment of the arbitrator.
In fact it was he who suggested to the apex court to direct the parties to make a request to the ICC not to go for further proceedings till disposal of the case by the court in Pakistan.
Under the 1958 New York Convention, he explained, the parties before invoking the arbitration should have sought the apex court’s permission to refer the matter to the international arbitration tribunal.
Advocate Raza Kazim, representing the petitioner, objected to the simultaneous arbitration by Tethyan Copper Company Australia (TCCA) at the international forums and said he could establish that the TCCP was a subsidiary of TCCA.
But Advocate Khalid Anwar, counsel for the TCCP, said the TCCA was an independent corporate body having no concern with the instant proceedings.
But the advocate general of Balochistan disputed this claim and while referring to an April 3, 2002, agreement between the BHP Minerals International Exploration Inc and the TCCA said the TCCP and TCCA were actually component of one company and now the TCCA had approached the ICC and the ICSID for arbitration.
When the court asked Khalid Anwar whether the party could appear before the international judicial forum for arbitration when the case was pending with the apex court, he said that under the international laws, whenever an issue came up for arbitration at the ICC or the ICISD, the judicial forums in disputing states could not intervene in the matter.
