The matter arose in this way:
(a) TCC obtained from the International Centre for Settlement of Investment Disputes (“ICSID”) an award (“the Award”) in its favour against the first respondent, Islamic Republic of Pakistan (“Pakistan”) in the sum of US$6 billion in Case No. ARB/12/1. We were informed in TCC’s written submissions and at the hearing that enforcement of the Award has been stayed provisionally under article 51 of the ICSID Convention as from 16th March 2021.
(b) TCC applied without notice to the BVI court to register and enforce the Award against Pakistan as well as for injunctive and other relief against the various other respondents. Additionally, TCC applied for charging orders over shares held directly or indirectly by the second respondent, Pakistan International Airways Corporation Ltd. (“PIAC”) in the third to fifth respondents (“the BVI Companies”).
(c) It is common ground that neither PIAC nor the BVI Companies are or were ever parties to the ICSID arbitral proceedings and are not parties to the Award. It is also not in dispute that PIAC is a listed public limited company operating the national airline of Pakistan.
(d) TCC’s primary case is that PIAC is to be treated as being assimilated into the State of Pakistan in the sense that there is unity of identity as respects Pakistan and PIAC thereby rendering PIAC liable for the debts of the State of Pakistan applying the principles, or what is now considered to be the test, as formulated by the Judicial Committee of the Privy Council in the decision in La Générale des Carrières et des Mines v F.G. Hemisphere Associates LLC1 ("Gécamines"). TCC relied on other bases but it is not necessary to refer to them for the purposes of these reasons on the application for interim relief.
(e) On 10th December 2020, the court below granted to TCC, among other relief, and of relevance to this application:
(i) an order registering the Award;
(ii) permission to enforce the Award in the BVI against Pakistan to the extent of over US$3 billion;2
(iii) a provision charging order, in aid of enforcement, over the shares of the BVI Companies held directly or indirectly by PIAC; and
(iv) injunctions including freezing orders against the BVI Companies.
(f) Eventually, the without notice applications in which the without notice orders were granted came on before the learned judge below (Wallbank J) on a full inter partes hearing between 27th to 29th April 2021.
(g) Pakistan sought the discharge of the ex parte orders asserting its state immunity from the jurisdiction of the BVI Court pursuant to the State Immunity Act 1978 of the United Kingdom as extended to the Territory of the Virgin Islands by UK Order in Council (“the SIA”).
(h) PIAC and the BVI Companies also sought the discharge of the ex parte orders on a number of other bases ranging from failure of full and frank disclosure to lack of cogent evidence showing a risk of dissipation, but it is not necessary to address these bases in these reasons given the narrow compass within which the application for interim relief was considered by this Court.
(i) On 25th May 2021, the learned judge delivered his judgment in which, among other things, he concluded that Pakistan enjoyed immunity from the jurisdiction of the BVI Court pursuant to the SIA. He set aside the registration of the Award and discharged all the without notice orders. He allowed a short stay of his judgment as requested by TCC to 4 p.m. on 4th June 2021 to allow TCC to make an application to the Court of Appeal.
The application was opposed by Pakistan, PIAC and the BVI Companies on various grounds. Suffice it to say that Pakistan which continues to assert and rely on its full immunity, by its counsel took the position, relying on three English authorities, that the court had no power to grant such interim relief, unless and until a final determination is made by the Court that Pakistan is excepted from immunity under the SIA, or put another way, unless and until the finding of state immunity has been set aside. This was on the basis that as matters stood at the hearing of the application before this Court on 4th June 2021, Pakistan was immune from the jurisdiction of the BVI courts and since the interim relief sought was parasitical on an assumption of jurisdiction over Pakistan by the BVI court, no power existed in the court to grant such interim relief until a final determination on an appeal that Pakistan is excepted from immunity under the SIA - in essence reversing the finding of state immunity as determined by the court below.
“In the absence of a timely Notice of Appeal filed subsequent to the Order granting leave to appeal there was no appeal pending before this Court when the Order staying the judicial review proceedings was made...Consequently, it would seem that this Court had no jurisdiction to make that order, which would be a nullity. I would set aside this order granting stay."
“...there is no doubt that there is an inherent jurisdiction to stay proceedings. But that does not in itself answer the question whether the inherent jurisdiction may be exercised to the extent that the CPR themselves contain provisions for applications for stays which are subject to procedural conditions and time-limits. The authorities strongly suggest that the inherent jurisdiction to stay proceedings is such a fundamental one that it will not normally be displaced by express powers to grant a stay. It was so held by the BVI Court of Appeal in Addari v Addari [Territory of the Virgin Islands High Court Civil Appeal No. 2 of 2005 (delivered 27th June 2005, unreported)], a decision on a leave application.”
“No cause or proceeding at any time pending in the High Court or in the Court of Appeal shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might formerly have been obtained whether unconditionally or on any terms or conditions, may be relied on by way of defence thereto:
(a) nothing in this Ordinance shall disable the High Court or the Court of Appeal, if it thinks fit so to do, from directing a stay of proceedings in any cause or matter pending before it; and
(b) any person, whether a party or not to any such cause or matter who would formerly have been entitled to apply to any court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, in contravention of which all or any part of the proceedings in the cause or matter have been taken, may apply to the High Court or to the Court of Appeal, as the case may be, by motion in a summary way, for a stay of proceedings in the cause or matter, either generally, or so far as may be necessary for the purposes of justice, and the court shall thereupon make such order as shall be just.” (Emphasis added)
“27. Subject to the provisions of this Ordinance, there shall be vested in the Court of Appeal —
(a) the jurisdiction and powers which at the prescribed date were vested in the former Court of Appeal;
(b) the jurisdiction and powers which at the prescribed date were vested in the British Caribbean Court of Appeal;
(c) such other jurisdiction and powers as may be conferred upon it by this Ordinance or any other law.”
“The jurisdiction of the Court Appeal so far as it concerns practice and procedure in relation to appeals from the High Court shall be exercised in accordance with the provisions of this Ordinance and rules of court and where no special provisions are contained in this Ordinance or rules of court such jurisdiction so far as concerns practice and procedure in relation to appeals from the High Court shall be exercised as nearly as may be in conformity with the law and practice for the time being in force in England- (a)... (b) in relation to civil matters in the Court of Appeal (Civil Division).”
“(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.”
Ltd. v Republic of X12 in which he stated:
“It is clear that when a State seeks to rely on the general immunity conferred by section 1 of the [SIA] the Court must finally decide at the outset whether or not such immunity exists. [...] Thus, when a State seeks to discharge a Mareva injunction on the grounds that it is immune from the jurisdiction of the Courts of the United Kingdom, the Court cannot allow the injunction to continue on the basis that the plaintiff has a good arguable case that immunity does not exist, for if in trust immunity does exist then the Court simply has no power to continue the injunction...
It follows from the foregoing that where such a challenge to the jurisdiction is made, the parties must be given an opportunity...to prepare themselves properly to fight to finality on the issue at the outset, rather than to deal with the matter on an interlocutory basis. This may mean (other things being equal) a delay between the granting of ex parte Mareva relief and such final determination by the Court; but to my mind this is inescapable, since it could hardly be suggested (and was not suggested) that the mere raising of the jurisdiction point by a State (or other entity) would oblige the Court without more to discharge any Mareva relief previously granted, before finally determining whether or not jurisdiction in fact existed. If the challenge to jurisdiction were upheld, then an interesting question would arise as to whether the ex parte order should be treated as a complete nullity, or as effective up to the date of such determination. That question does not fall to be decided at this state of those proceedings.” (Emphasis added)
“[t]he same principle also appears from the cases holding that where a defendant claims state immunity, the court has no jurisdiction to make a freezing order against it without first deciding the question of immunity. See A Co. Ltd. v Republic of X... ETC Euro Telecom International NV & Anor v Republic of Bolivia  EWHC 1689...”
(a) state immunity had already been decided at the inter partes hearing against TCC resulting in the freezing and other injunctions being discharged following the judge’s ruling on 25th May 2021. This was therefore not a case where the issue was simply being raised but one where it had been raised, ventilated and determined by the court below in keeping with the view expressed by Saville J, Teare J and more recently by Henshaw J. Queen’s Counsel argued that the finality as referenced in the English decisions above referred is in the first instance judgment delivered below on 25th May 2021 in which the court found that immunity applies to Pakistan. Accordingly, even if TCC, as it has suggested, has an arguable case on an appeal in respect of state immunity, that is not sufficient a basis on which this Court could assume jurisdiction and grant the interim relief sought; and
(b) TCC has been unable to refer the Court to single decision where interim relief has been granted in such circumstances.
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