Maulana ABDUL HAQ BALOCH and others vs GOVERNMENT OF BALOCHISTAN
This matter came before the Supreme Court of Pakistan upon an application filed by the petitioner seeking contempt proceedings against the respondents and an interim direction to restrain them from taking further steps in international arbitration before the ICCA and ICSID, and to withdraw arbitration requests pending the Court's final decision on the legality and validity of joint venture agreements. The core legal question revolved around whether the respondents should be restrained from participating in international arbitration while constitutional petitions challenging the underlying agreements were pending before the Supreme Court. The Court held that the Government of Balochistan and the Government of Pakistan should request the ICC and ICSID to hold further steps and extend the period for nominating an arbitrator so that the pending constitutional petitions could be finally adjudicated. The key principle laid down is that pending final determination of the legality of foundational joint venture agreements by the apex court, relevant governmental authorities may be directed to seek a standstill and extension in international arbitral proceedings to prevent conflicting legal complications.
- Can the Supreme Court direct governments to request international arbitral bodies like the ICC and ICSID to suspend nomination of arbitrators pending resolution of related matters?
- Whether interim orders can be issued to restrain parties from proceeding with international arbitration while the legality of underlying joint venture agreements is sub judice?
- Balochistan Development Authority Act 1974
ORDER
' This matter was taken up on 2-2-2012, when an application was moved on behalf of petitioner by Mr. Raza Kazim, Senior Advocate Supreme Court, inter cilia, with the prayer to initiate proceedings of contempt of Court against the respondents for the reasons mentioned in the application and in the meantime direct them not to take further steps in arbitration and instead withdraw the request of arbitration at the ICCA and ICSID, till this Court decides the matter on the legalities and validity of the joint venture agreements.
2. Mr. Khalid Anwar, Senior Advocate .Supreme Court states that 'TCCA' is an independent body corporate, having no concern with instant proceedings.
3. Learned Advocate General Balochistan controvert this fact and made reference to alliance agreement between the BHP Minerals International Exploration Inc. And TCCA dated 3-4-2002, to substantiate that 'TCCP' and 'TCCA' are component of one company and that now 'TCCA' has approached ICC and ICSID for arbitration. To elaborate his submission, he has made reference to the following title of the agreement dated 3-4-2002:-- "BETWEEN: BHP MINERALS INTERNATIONAL EXPLORATION INC. a corporation of the State of Delaware, USA of Suite 500, 1360 Post Oak Blvd. Houston, Texas, USA AND TETHYAN COPPER COMPANY LIMITED ABN 24 093 519 692 of level 1, 1 Havelock Street, West Perth.
Western Australia."
4. It may be noted that subsequent thereto another innovation agreement dated 1-4-2006 was arrived at between Government of Balochistan, BHP Minerals International Exploration Inc. And Tethyan Copper Company Ltd., Australia. Title of the same is as under:-- "BETWEEN: THE GOVERNOR OF BALOCHISTAN, for and on behalf of the Province of Balochistan, in the Islamic Republic of Pakistan ("GOB") acting through its agent THE BALOCHISTAN DEVELOPMENT AUTHORITY, a statutory corporation created by and existing under the Balochistan Development Authority Act 1974 ("BDA")
AND BHP MINERALS INTERNATIONAL EXPLORATION INC. a corporation incorporaqted in Delaware of Suite 500, 1360 Post Oak Bhd. Houston, Texas, USA ("BHPB")
AND TETHYAN COPPER COMPANY LIMITED (ABN 24 093 519 692) a company incorporated in Australia of level 1, 1 Havelock Street, West Perth, Western Australia. ("TCC")"
5. Mr. Khalid Anwar, learned Senior Advocate Supreme Court, however, has opposed the grant of stay and contended that whatever status both the companies i,e, 'TCCP' or 'TCCA' may enjoy but 'TCCA' is not represented by any one of them and any order passed by this Court in this regard is likely to cause further legal complications domestically and internationally, as well.
6. We have heard both the sides and have considered the request so made by Messrs Raza Kazim, Senior Advocate Supreme Court, Ahmer Bilal Sufi, Advocate Supreme Court and Advocate-General Balochistan and have taken into consideration the fact that the overnment of Balochistan is being insisted for appointment o the Arbitrator; therefore, we direct to the Government o Balochistan as well as Government of Pakistan to make a request to the ICC and ICSID Washington D.C. Not to ke further steps and extend the period for nomination of e 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.
Adjourned to a date in office after two weeks.