This is how a consortium of multinational companies used a controversial arbitration system to put the squeeze on Pakistan
Last month, the International Centre for Settlement of Investment Disputes , a global quasi-court, slapped more than a $5 billion fine on Pakistan in an arbitration case involving a gold and copper mine.
Pakistan’s case has generated an unusual buzz among people who follow such legal issues as the award is sure to hurt a country reeling from an economic crisis — its currency has lost more than a third of its value, the stock market is one of the worst-performing in the world and GDP growth has tapered off. ICSID’s award is almost as much as the $6 billion bailout loan that Prime Minister Imran Khan’s government will receive from the IMF over the next three years.
For Islamabad, which is struggling to pay off its foreign debt, the mine at the centre of the dispute has become a mirage — Pakistan saw riches and a path to prosperity, but when it got closer, it disappeared and became a liability. Many are wondering how it all came to this. In 1993, Australian mining giant BHP began exploring gold and copper prospects in Balochistan, Pakistan’s insurgency-hit province that borders Iran and Afghanistan.
BHP drilled dozens of holes, dug out samples and concluded that the mine could produce substantial quantities of minerals at a profit. Former Balochistan Chief Minister Aslam Raisani insists Barrack and Antofagasta were not giving his province a fair deal in the Reko Diq mining project. The ICSID Convention was adopted on October 14 1966, to appease rich countries concerned with their investments in developing nations. Pakistan signed the convention two days later,But the convention didn’t guarantee that a country where an investment is being made will necessarily allow an ICSID tribunal to arbitrate in case of a dispute.
Experts say that’s primarily because creative lawyers saw a loophole in the BITs, which allowed companies to threaten and sue governments. More thanThe Reko Diq case in Pakistan has been decided under the BIT that the country signed with Australia in 1998. “Even government records admit that the Pakistani government did not fully appreciate the nature of the obligations they were undertaking,” says Poulsen of University College London.
In previous cases, the arbitrators have considered what an investor might have earned from a project over its life to decide the compensation.
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