Daily Times

Reko Diq, located in the Chagai district in Pakistan’s Balochistan province, is famous for its vast gold and copper reserves and allegedly the world’s fifth largest goldmine. On 29.07.1993 the Balochistan Development Authority (BDA) entered into the Chaghi Hills Exploration Joint Venture Agreement (CHEJVA) with a foreign investor having 75% shareholding and BDA having 25% shareholding plus 2% royalty. Subsequently, in the year 2006, the foreign investor was succeeded by Tethyan Copper Company Pty. Ltd., Australia (TCCA). TCCA in turn was acquired by Barrick Gold Corporation (Barrick) and Antofagasta in equal shares. Under CHEJVA Barrick and its partner had the exclusive right to prospect and explore for copper and gold in the Reko Diq area. Between 2006 and 2011, TCCA invested in mineral exploration and developed detailed plans for mining at Reko Diq.

However, on 15.11.2011, the licensing authority of the Government of Balochistan (GoB) declined the mining lease application submitted by the project company of TCCA. Shortly thereafter, on 28.11.2011 TCCA initiated arbitration proceedings under the Pak-Australia Bilateral Investment Treaty (BIT) against the Government of Pakistan (GoP), which claim was registered as an arbitration case with the International Centre for Settlement of Investment Disputes (ICSID). TCCA also commenced arbitration proceedings against GoB at the International Chamber of Commerce (ICC) for claims arising out of the CHEJVA. Meanwhile a Writ Petition filed by a Pakistani citizen challenging CHEJVA was dismissed by the High Court of Balochistan on 26.06.2007. Leave to appeal to the Supreme Court against the said judgment was clubbed with other Constitution Petitions. All the matters were disposed of by the Supreme Court vide short order dated 07.01.2013 setting aside the judgment of the High Court of Balochistan. The detailed reasons are reported as Maulana Abdul Haque Baloch Vs. Government of Balochistan (PLD 2013 SC 641). As a result, CHEJVA was declared void, inter alia, on the ground that it had been entered into without lawful authorization and was a non-transparent agreement that failed to comply with the regulatory provisions of law regarding mining operations in the Province.

The process for the reconstitution of the Reko Diq project has been undertaken transparently and with due diligence. The Agreements are being signed by authorities duly authorized and competent to do so under the law.

The ICSID arbitration continued in the meanwhile and on 10.11.2017 the ICSID Tribunal rendered its decision on jurisdiction and liability. On 12.07.2019 the ICSID Tribunal announced its final award with TCCA receiving approximately US$ 5.9 billion in damages, pre-award interest and costs incurred by it. Further litigation ensued as TCCA made efforts for enforcing the award in different jurisdictions. In the above background, the GoP and the GoB commenced talks with the TCCA. After lengthy negotiations spanning over three years between the representatives of the two Governments and the TCCA Board, a settlement was proposed. According to the settlement the financial liability of the GoP under the ICSID award was agreed to be settled under the terms and conditions incorporated in a set of agreements executed between the parties.

In the wake of the above background, the President of Pakistan opted to seek the opinion of the Apex Court on two pertinent issues i.e. (i) Whether the earlier judgment of the Apex Court reported as PLD 2013 SC 641 or the laws, public policy or Constitution of Pakistan prevent the GoB or GoP from entering into the Implementation Agreement and the Definitive Agreements or affect their validity; (b) If enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 be valid and constitutional?.

A Larger Bench of the Apex Court vide its short order dated 9th December 2022 has been pleased to declare the agreements entered into between the parties do not prima facie violate any of the findings recorded in Abdul Haque Baloch case. Unlike CHEJVA, the decision to enter into the Agreements is backed by law and has been taken on the basis of careful negotiations during which authorized representatives of GoP/GoB were duly assisted by independent international consultants.

The Larger Bench was also pleased to hold that (i) Article 144 of the Constitution allows Provincial Assemblies to empower Parliament to pass a law dealing with issues within the legislative competence of the Provinces. Similarly, Article 147 of the Constitution allows the Provinces to entrust, either conditionally or unconditionally, to the Federal Government or to its officers, functions in relation to any matter to which the executive authority of the Province extends. (ii) We have been provided the draft resolutions proposed to be passed by the Provincial Assemblies of Sindh and Balochistan to empower Parliament to enact the proposed FI Bill 2022. Provided that the draft resolutions are passed, Parliament will be competent to enact the FI Bill 2022, including the notified exemptions specified in the Bill and the protected benefits listed in the Third Schedule. (iii) The provisions of Section 3 of the FI Bill 2022 do not in our opinion fetter the sovereignty of Parliament. It appears that the FI Bill 2022 represents a version of the Protection of Economic Reforms Act, 1992. It allows the Federal Government to notify certain benefits which may not be withdrawn to the prejudice of an investor. We have also been informed and there is consensus of all the learned counsel in this matter that Parliament remains at liberty to repeal the entire FI Bill 2022, if it so desires, of course subject to the corresponding legal consequences that may arise from such repeal. The Foreign Investment Bill 2022 is not limited exclusively to the Reko Diq project.

In order to provide for promotion and protection of certain qualified foreign investments and for matters incidental thereto the Parliament legislated on the subject and has recently drafted the Foreign Investment (Promotion and Protection) Act, 2022. According to the Larger Bench’s short order dated 9th December 2022 the FI Bill/Act of 2022 is not limited exclusively to the Reko Diq project. Instead it provides a framework for grant of investment incentives which will, subject to the provisions of the Bill/Act, be available to all investments of US$ 500 million or more. The fact that the Reko Diq project is the first to be identified as a “Qualified Investment” under the FI Bill 2022 does not render the statute as “person-specific.” Furthermore, to the extent that legislative amendments in the Second Schedule to the FI Bill 2022 pertain specifically to the Reko Diq project, such statutory provisions and mechanisms are the norm in a number of other fiscal statutes, including, but not limited to the Income Tax Ordinance, 2001. Under the terms of the FI Bill 2022 such specific exemptions are required either to be legislatively promulgated or legislatively ratified.

We also note that the proposed FI Bill 2022 will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures. To sum up we are of the view that the parameters set out in Abdul Haque Baloch’s case ibid and the reasons for the same, have been duly addressed by the Federal and Provincial Governments.

The process for the reconstitution of the Reko Diq project has been undertaken transparently and with due diligence. The Agreements are being signed by authorities duly authorized and competent to do so under the law. To ensure transparency and fairness, expert advice on the financial, technical and legal issues involved has been sought from both local as well as independent international experts/consultants on the terms settled in the Agreements. The Agreements have been put in place after due deliberation and have not been found by us to be unconstitutional or illegal on the parameters and grounds spelt out in Abdul Haque Baloch’s case ibid. Likewise, the rationale, basis, legality and vires of the FI Bill 2022 as well as the amendments to its schedules and annexures and the amendments incorporated through SROs, provided the resolutions are passed by the Sindh and Balochistan Provincial Assemblies and the Bill is passed by the Parliament after following due process, shall be duly enacted as required under the Constitution. And such laws and regulatory measures do not in any manner violate the Constitution or the Law.

In the end I would take your leave by concluding my article by saying that the FI Act 2022 will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures!.

The writer is Advocate Supreme Court and tweets @pansota1.