Claimant further cites Micula18 (Exhibit CA-17), in which the tribunal observed that "[u]nder the ICSID Convention, a tribunal has the power to order pecuniary or non-pecuniary remedies, including restitution, i.e., re-establishing the situation which existed before a wrongful act was committed."19
• As stated in Dr. Mubarakmand’s Witness Statement, a meeting of the Board of Governors of the Reko Diq Copper/Gold Project, with the Chief Minister of Balochistan as Chairman and Dr. Mubarakmand as Co-Chairman, took place on 12 September 2012 and the Government of Balochistan "resolved to grant permission for the project to begin operations at area H-4" (Witness Statement of Dr. Samar Mubarakmand, para. 20);
• Respondent states in the Response that if the Tribunal were to grant provisional measures enjoining the Government from taking further steps to develop the Reko Diq Mining Area, "[t]he Government’s efforts to develop H4 would be brought to a standstill including the preparation for the excavation of the ore due to commence in 6 months and the construction of a smelter" (Response, para. 117);
• The work plan and timeline for the Balochistan Copper/Gold Project at deposit H4 attached as Annex 6 to Dr. Mubarakmand’s Witness Statement ("H4 Work Plan") show that there will be an initial mobilization at the site within three months, and by mid-December 2012, test drilling will begin and a temporary camping site will be established at Reko Diq (Annex 6 to Witness Statement of Dr. Samar Mubarakmand).
Respondent’s plans to develop H4 are addressed in further detail below.
• Press announcements of the Chief Minister of Balochistan that Balochistan is taking measures to run Reko Diq by itself (Exhibits CE-144 and CE-146);
• Publication by the Government of Balochistan of several notices seeking senior technical and administrative personnel and tenders seeking advanced office equipment for the "Reko Diq Copper Gold Project" it would develop (Exhibits CE-125, CE-127 and CE-133);
• Reports by news outlets that a technical team would soon begin work at the Reko Diq site and that Balochistan had allocated budgetary resources to develop the site (Exhibits CE-134 and CE-146 to CE-148);
• A news report that the Federal Government had granted "Export Processing Zone" status to Reko Diq, thereby conferring a favorable tax and duty regime upon Balochistan’s government-run Reko Diq Copper/Gold Project (Exhibit CE-142);
• Restrictions placed on Claimant’s expatriate staff by Balochistan and Respondent preventing the staff from accessing the Reko Diq site, which make it impossible for Claimant to supervise the temporary closure of the site and secure its equipment and assets there;
• Reports that employees of a competitor mining company, accompanied by Balochistan officials, accessed the Reko Diq site in early July 2012 and took samples from the deposits identified in Claimant’s studies (Exhibit CE-149)25
"[u]pon weighing the interests at stake, the Arbitral Tribunal must choose to protect the possibility of enforcing a hypothetical award favorable to Claimant, even at the cost of temporarily depriving Respondents’ (sic) of their contractual right to self-protection. Thus, given that Claimant has already commenced arbitration proceedings demanding performance of the Contract, Claimant has a right to request that Respondents refrain from performing any act that may lead to the early termination of the Contract."
a. refrain from, and take all steps necessary to ensure that Balochistan refrain from, taking further steps to develop the Reko Diq Mining Area, or any part thereof, by itself or with third parties;
b. refrain from, and take all steps necessary to ensure that Balochistan refrain from, selling, leasing, transferring, authorizing or otherwise disposing of the Reko Diq Mining Area, or its interest in the Joint Venture, or any part thereof to any third party;
c. refrain from, and take all steps necessary to ensure that Balochistan refrain from, breaching the confidentiality provisions of TCC’s Feasibility Study by sharing or disclosing any portion of its contents with any unauthorized persons or entities;
d. refrain from, and take all steps necessary to ensure that Balochistan refrain from, taking any steps that infringe TCC’s exclusive surface rights under the Surface Rights Lease;
e. issue, and take all steps necessary to ensure that Balochistan issue, any authorization required to allow TCC’s expatriate staff to work in Pakistan and to travel to and access the Reko Diq site, including work visas, security clearances and No-Objection Certificates; and
f. refrain from, and take all steps necessary to ensure that Balochistan refrain from, taking any steps that would unsettle the status quo, aggravate the dispute, or render ineffective any ultimate relief granted by the Tribunal.71
"Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party."
Thus, there is no question that the Tribunal has the authority to order provisional measures to preserve a party’s rights.
"At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures."
"1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. "
"(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. "
"1. In the event of a dispute between a Party and an investor of the other Party relating to an investment, the parties to the dispute shall initially seek to resolve the dispute by consultations and negotiations.
2. If the dispute in question cannot be resolved through consultations and negotiations, either party to the dispute may:
(a) in accordance with the law of the Party which admitted the investment, initiate proceedings before that Party's competent judicial or administrative bodies;
(b) if both Parties are at that time party to the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States ("the Convention"), refer the dispute to the International Centre for Settlement of Investment Disputes ("the Centre ") for conciliation or arbitration pursuant to Articles 28 or 36 of the Convention;
3. Where a dispute is referred to the Centre pursuant to paragraph 2(b) of this Article:
(a) where that action is taken by an investor of one Party, the other Party shall consent in writing to the submission of the dispute to the Centre within thirty days of receiving such a request from the investor;
1. Respondent shall immediately inform the Tribunal and Claimant of any change of its present intention (i) to implement the H4 Work Plan, (ii) not to expand its mining activities to H14 and/or H15 or to any other deposit within License EL-5 and (iii) not to give any rights in this regard to any third party.
2. Respondent shall further inform the Tribunal and Claimant, on a regular basis, about its specific plans and activities with respect to deposit H4.
3. The Tribunal remains seized of the matter and shall consider future applications by Claimant if the situation materially changes, in particular in case Respondent (i) materially deviates from the H4 Work Plan, (ii) expands its mining activities to deposits H14 and/or H15 or to any other deposit within License EL-5 or (iii) gives any rights in this regard to any third party.
4. Otherwise, the Request is dismissed.
5. The Tribunal will decide on the costs related to the Request at a later stage of the arbitral proceedings.
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