|Frequently Used Abbreviations and Acronyms|
|1970 BMC Rules||Balochistan Mineral Concession Rules, 1970, also known as 1970 BMCR|
|1995 NMP||National Mineral Policy, dated September 1995 [Pakistan]|
|2013 NMP||National Mineral Policy, dated February 2013 [Pakistan]|
|2002 BM Rules||Mineral Rules enacted by Balochistan in 2002 to implement the National Mineral Policy|
|2000 Addendum||The 2000 Addendum to the CHEJVA dated 4 March 2000|
|Application||Mining Lease Application submitted to the Licensing Authority by TCCP on 15 February 2011|
|Atacama||Atacama Copper Company Pty Limited|
|Australia-Pakistan Treaty||Agreement between Australia and the Islamic Republic of Pakistan on the Promotion and Protection of Investments, dated 7 February 1998|
|Balochistan||Province of Balochistan|
|Barrick||Barrick Gold Corporation|
|BDA||Balochistan Development Authority|
|BDA Act||Balochistan Development Authority Act, 1974|
|BHP||BHP Minerals International Exploration, Inc.|
|2002 BM Rules||Balochistan Mineral Rules, 2002|
|Boggs I||Witness Statement of Catherine ("Cassie") Boggs, dated 1 February 2013|
|Boggs II||Second Witness Statement of Catherine ("Cassie") Boggs, dated 21 April 2013|
|CDWP||Central Development Working Party, Planning Commission [Pakistan]|
|Centre||International Centre for Settlement of Investment Disputes|
|CHEJVA||Chagai Hills Exploration Joint Venture Agreement|
|CHEJVA Agreements||CHEJVA, the 2000 Addendum, and the 2006 Novation Agreement|
|Claimant's Rejoinder||Claimant's Rejoinder on Jurisdiction and Counterclaim dated 12 September 2014|
|Constitution||The Constitution of the Islamic Republic of Pakistan, as passed on 10 April 1973 and modified up to 28 February 2012|
|Counter-Memorial||Respondent's Objections, Counter-Memorial and Counter-Claim dated 30 September 2013|
|Counterproposal||Respondent's counterproposal to the Proposed Timetable for Document Production dated 8 November 2013|
|Deed of Waiver||Deed of Waiver and Consent, dated 23 June 2000, between the Governor of Balochistan on behalf of the GOB and the BDA|
|Disqualification Proposal||Proposal to disqualify arbitrator under Article 57 of the ICSID Convention|
|ECNEC||Executive Committee of the National Economic Council [Pakistan]|
|EPZ||Export Processing Zone|
|ESIA||Environmental and Social Impact Assessment|
|Expansion Study||Expansion Pre-Feasibility Study|
|Feasibility Study||Feasibility Study for Initial Mine Development submitted by TCC to Balochistan on 26 August 2010|
|FET||Fair and Equitable Treatment|
|First Session||First session pursuant to Rule 13(1) of the ICSID Arbitration Rules|
|GOB||The Government of Balochistan|
|GOP||The Government of Pakistan|
|GSP||Geological Survey of Pakistan|
|GTZ / GIZ||Deutsche Gesellschaft für Technische Zusammenarbeit (German Society for Technical Cooperation) Deutsche Gesellschaft für Internationale Zusammenarbeit (German Society for International Cooperation)|
|H14 / H15||Principal copper-gold orebodies at the Western Porphyries, Reko Diq|
|H4||Tanjeel copper orebody, Reko Diq|
|Harvard Articles||Harvard Draft Convention on State Responsibility, 1929|
|Hearing||Hearing on Jurisdiction, Liability and the CounterClaims held between 6 – 17 October 2014 in Paris, France|
|ICC Proceedings||The parallel ICC Case 18347/VRO/AGF between Claimant and the Province of Balochistan|
|ICC Rulings on Preliminary Issues||Rulings on Preliminary Issues issued by the ICC Tribunal on 21 October 2014|
|ICSID||International Centre for Settlement of Investment Disputes|
|ICSID Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings in effect from 10 April 2006|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States dated 18 March 1965|
|ICSID Institution Rules||ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings|
|ILC Articles||International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts|
|Joint Venture||Unincorporated contractual joint venture between the BDA [Balochistan] and TCCA, governed by the CHEJVA|
|Krcmarov||Witness Statement of Robert Krcmarov, dated 23 July 2012|
|Exploration License EL-5||Exploration License designated EL-5, issued 18 May 2002, with retroactive effect as of 21 February 2002, for a period of three years|
|Licensing Authority||Director General of the MMDD served as the Licensing Authority|
|Livesey IV||Fourth Witness Statement of Timothy Livesey, dated 1 February 2013|
|Livesey V||Fifth Witness Statement of Timothy Livesey, dated 23 April 2013|
|Luksic||Witness Statement of Jean-Paul Luksic, dated 23 April 2014|
|MCC||China Metallurgical Group Corporation|
|Memorial||Claimant's Memorial dated 1 February 2013|
|Mincor||Mincor Resources NL|
|Mineral Agreement||Agreement between mining venture and Federal and Provincial Governments, contemplated by 2002 BM Rules and 1995 NMP|
|Mining Area||Area at Reko Diq, measuring 99,473 square kilometers, over which TCCP sought mining lease pursuant to CHEJVA and 2002 BM Rules|
|MMDD||Mines & Mineral Development Department of the Licensing Authority [Balochistan] Director General served as the Licensing Authority Secretary decided administrative appeals on orders issued by the Licensing Authority|
|MPNR||Ministry of Petroleum and Natural Resource [Pakistan]|
|Mubarakmand I||Witness Statement of Dr. Samar Mubarakmand dated 21 September 2012|
|Mubarakmand II||Second Witness Statement of Dr. Samar Mubarakmand dated 29 September 2013|
|NAFTA||North American Free Trade Agreement entered into between Canada, Mexico and the United States, entered into force on 1 January 1994|
|Notice of Intent to Reject||Licensing Authority's notice of intent to reject the Application dated 21 September 2011|
|2006 Novation Agreement||Agreement pursuant to which Claimant became a party to the CHEJVA (replacing BHP) dated 1 April 2006|
|NPI||Net profit interest|
|P&DD||Planning & Development Department [Balochistan]|
|Pakistan||Islamic Republic of Pakistan|
|PC-1||Planning Commission Form PC-1 [Pakistan]|
|PDWP||Provincial Development Working Party [Balochistan]|
|PL-4||Prospecting License covering the Reko Diq area, issued 8 December 1996|
|PL-14||Prospecting License covering the Reko Diq area, issued 21 February 2000|
|Pre-Feasibility Study||Pre-Feasibility Study for Initial Mine Development|
|Project Agreement||Agreement to be conducted between the Joint Venture partners pursuant to CHEJVA Clause 1.7, also known as the Shareholder Agreement|
|Proposed Timetable for Document Production||Claimant's proposal for a revised timetable for the production of documents dated 30 October 2013|
|Provisional Measures Hearing||Hearing on the Provisional Measures Request held on 6 November 2012|
|Provisional Measures Rejoinder||Respondent's rejoinder to the Provisional Measures Reply|
|Provisional Measures Reply||Claimant's reply to the Provisional Measures Response|
|Provisional Measures Request||Claimant's request for Provisional Measures|
|Provisional Measures Response||Respondent's response to Claimant's Provisional Measures Request|
|1994 Relaxation||Order re: Relaxation of Balochistan Mining Concession Rules for the Implication of the BDA-BHPM Joint Venture Agreement, dated 20 January 1994|
|Reply||Claimant's Reply on Liability and Response on Jurisdiction and Counterclaims dated 23 April 2014|
|Request for Decision on Costs||Respondent's request for the Tribunal to order Claimant to pay Respondent's costs related to the interim relief / provisional measures applications dated 8 May 2012|
|Request for Document Production||Respondent's request for the Tribunal to direct Claimant and its parent companies to disclose certain internal information dated 8 May 2013|
|Request for Suspension||Respondent's request for suspension dated 21 October 2013|
|Request for Suspension and Trifurcation||Respondent's request for the Tribunal to order suspension of the proceedings on the merits and a hearing on Respondent's jurisdictional objections dated 8 May 2013|
|Respondent's Rejoinder||Respondent's Rejoinder and Reply on Jurisdiction, Admissibility and Counterclaim dated 25 August 2014|
|Response||TCC's response to the Notice of Intent to Reject from the Licensing Authority dated 29 October 2011|
|Revised Confidentiality Terms||The confidentiality terms agreed by the Parties and adopted by the Tribunal in PO-4 dated 27 February 2014|
|RfA||Claimant's Request for Arbitration dated 28 November 2011|
|RLA||Respondent's Legal Authority|
|Secretary||Secretary of the Tribunal|
|Secretary, MMDD.||Decided administrative appeals of decisions by the Licensing Authority|
|Secretary-General||Secretary-General of ICSID|
|Shareholder Agreement||See "Project Agreement"|
|Steering Committee||Steering Committee for the Development of Reko Diq Copper–Gold Project [Pakistan-Balochistan] established by the Pakistani Prime Minister on 3 September 2007|
|TCC||Claimant's reference to TCCA and TCCP collectively|
|TCCA||Tethyan Copper Company Pty Limited|
|TCCP||Tethyan Copper Company Pakistan (Private) Limited|
|Treaty||See "Australia-Pakistan Treaty"|
|Undertaking||Undertaking given by TCCA in April 2006 (in connection with the assignment of Exploration License EL-5 to TCCA) to abide by the 1995 NMP and the BM Rules|
|Vienna Convention||Vienna Convention on the Law of Treaties, adopted on 22 May 1969 and entered into force on 27 January 1980|
|Williams||Witness Statement of Cory Williams, dated 15 April 2014|
(i) Dr. Stanimir A. Alexandrov
(appointed by Claimant)
c/o Stanimir A. Alexandrov PLLC
1501 K Street, N.W., Suite C-072
Washington, D.C. 20005
(ii) Rt. Hon. Lord Leonard Hoffmann
(appointed by Respondent)
Brick Court Chambers
7-8 Essex Street
London WC2R 3LD
(iii) Professor Dr. Klaus Sachs
(appointed by the Parties)
CMS Hasche Sigle
Nymphenburger Strasse 12
"1. Each Party shall encourage and promote investments in its territory by investors of the other Party and shall, in accordance with its laws and investment policies applicable from time to time, admit investments.
2. Each Party shall ensure fair and equitable treatment in its own territory to Investments."
"Neither Party shall nationalise, expropriate or subject to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as ' expropriation ') the investments of investors of the other Party unless the following conditions are complied with: the expropriation is for a public purpose related to the internal needs of that Party and under due process of law;
the expropriation is non-discriminatory; and the expropriation is accompanied by the payment of prompt, adequate and effective compensation."
"(1) Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to arbitration in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings.
(3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register."
"(i) to confirm that, as ordered on 3 April 2013, Pakistan must submit its Counter-Memorial on Liability on 7 June 2013;
(ii) to fix a revised schedule for submissions with the dates proposed in TCCA's 20 May letter;
(iii) to reject Pakistan's request to vacate the current hearing dates;
(iv) in light of Pakistan's confirmation of its sole Rule 41 objection, to fix a schedule for parallel briefing on that sole objection, Pakistan's assertion that this Tribunal must accept the ruling of the Supreme Court of Pakistan on the validity of the CHEJVA and related agreements;
(v) in the alternative to (iv), if Pakistan advises that it did not intend to provide the confirmation TCCA sought in our 20 May letter, to order in accordance with (1) that Pakistan's Counter-Memorial include all objections that ' the dispute or any ancillary claim is not within the jurisdiction of the Centre or, for other reasons, is not within the competence of the Tribunal,' and that briefing on those objections and on liability proceed simultaneously."
(i) dismissed the Request for Suspension and Trifurcation and the Request for Document Production;
(ii) ordered the Parties to include their arguments in respect of the Tribunal's jurisdiction in their respective written submissions as provided in Section 14 of Procedural Order No. 1;
(iii) ordered Respondent to submit its Counter-Memorial on the Merits and its Memorial on Jurisdiction on 7 June 2013;
(iv) directed the Parties to liaise on a joint proposal for the procedural schedule leading to the Hearing on Jurisdiction and Liability by 14 June 2013, failing which agreement the Tribunal would fix the procedural schedule leading to the Hearing on Jurisdiction and Liability on the basis of the proposal(s) submitted to it; and
(v) informed the Parties that it would decide on the costs to the interim relief/provisional measures applications at a later stage of the arbitral proceedings. All other requests were dismissed.
(i) the production of documents pursuant to the attached Redfern Schedules of Claimant and Respondent;
(ii) the documents and confidentiality logs to be sent directly to counsel for the other Party and not communicated at this stage to the Tribunal;
(iii) each Party to provide an index of documents produced, with an indication of the requests to which they respond, stating whether such Party has produced all responsive documents within its possession, custody or control;
(iv) the documents produced not to be made part of the record of the proceedings unless and until either Party submits them as exhibits to its submissions; and
(v) the term "Affiliates" as used in Respondent's Redfern Schedule to be "limited to Claimant's direct and indirect parent companies, shareholders, officers, employees, agents, representatives, financial advisors and – where appropriate – legal advisers."
(vi) All other document production requests were dismissed.
(i) direct that the Hearing would take place at the World Bank facilities in Paris during the weeks of 6 and 13 October 2014, with the intervening weekend days of 11 and 12 October held in reserve;
(ii) extend the deadline for Claimant's Reply on Liability and Response on Jurisdiction to 21 March 2014;
(iii) extend the deadline for production of documents and privilege or confidentiality logs pursuant to Procedural Order No. 3 to 31 January 2014; and
(iv) direct that the deadline for production of documents where there were no objections remain 9 January 2014. In the alternative, Claimant requested the Tribunal, should it determine that additional days might be needed, to direct that the first week of the Hearing take place at the World Bank facilities in Paris between 16 and 20 June 2014, and that the remainder of the Hearing take place at the World Bank facilities in Paris during the weeks of 6 and 13 October 2014.
(i) the deadline for Claimant's Reply on Liability and Response on Jurisdiction is extended to 21 March 2014;
(ii) the deadline for production of documents and privilege or confidentiality logs is extended to 14 February 2014; and
(iii) the deadline for production of documents where there were no objections is extended to 14 February 2014.
(i) the Tribunal did not consider it to be established that the expert evidence which Respondent intended to introduce would respond to or rebut matters raised in Claimant's prior written submissions; and
(ii) under Rule 34(1) of the ICSID Arbitration Rules, the Tribunal had the implied power to reject any evidence submitted in violation of Paragraph 16.4 of Procedural Order No. 1.8
(i) the Hearing shall take place at the ICC Hearing Centre in Paris during the weeks of 6 and 13 October 2014 with the intervening weekend days of 11 and 12 October being held in reserve; and
(ii) the Parties should make the arrangements, including visa applications, necessary to enable all counsel, witnesses and experts to participate in the Hearing.
(i) the Tribunal accepted Respondent's proposal to produce Mr. Yaqoob Fateh Muhammad to give brief oral testimony at the Hearing to affirm his statement and answer questions posed by Respondent; it being understood that Claimant was free to cross-examine Mr. Yaqoob thereafter; and
(ii) the Tribunal accepted the 2013 NMP and the four legal authorities as new documents, it being understood that Claimant would not be permitted to use them in the cross-examination and that both Parties would be given an opportunity to comment on their relevance, if any, in the further proceedings, i.e., the oral closing arguments or the post-hearing briefs.9
"1. The Rulings on Preliminary Issues rendered by the ICC tribunal on 21 October 2014 and the relevance of this decision for this case, if any;
2. The admission requirement in Article 1(1)(a) of the Treaty and whether the admission of an investment may be retrospectively affected by an event such as the Supreme Court judgment of 7 January 2013, taking into account the particular language used in Article 1(1)(a) of the Treaty;
3. Claimant: Clarification of its relief sought, in particular regarding the alleged FET breaches, i.e., whether it claims that Respondent's "other measures against TCCA's investments" (Reply on Liability, para. 505 (b)) amount to independent breaches of the FET standard in Article 3(2) of the Treaty or whether it regards them as cumulatively amounting to an FET breach;
4. The 2007 EL-5 Quarterly Report appended to the second EL-5 renewal application (at appendix 4) and its relevance in the context of the second renewal of EL-5;
5. The new authorities and exhibits that were admitted into the record:
a. by means of the Tribunal's letter of 2 October 2014;
b. in the course of the Hearing on Jurisdiction and Liability; and
c. if and insofar as they will be admitted, the new authorities and/or exhibits proposed by Respondent in its letter of 17 October 2014; and
6. Any other issues on which the Parties wish to elaborate in relation to arguments that were raised by the other Party in its closing argument or by the Tribunal at some point during the Hearing."
In addition, the Tribunal requested the Parties to limit their Post-Hearing Briefs to a maximum of fifty pages and to inform the Tribunal of their agreement on the deadline for the submission of the Post-Hearing Briefs, providing that if the Parties were unable to reach agreement within ten days of the notification of the letter, the Tribunal would set an appropriate time limit.
(i) objected to Respondent's references to the legal authorities shown on Slide 94 of its closing presentation and requested the Tribunal to disregard these references;
(ii) stated that it had no objection to admission of Respondent's additional legal authorities, as long as Claimant was permitted to submit four additional authorities in support of its arguments made in response to those authorities as part of its Post-Hearing Brief;
(iii) stated that it had no objection to Respondent's proposed additional exhibits; and
(iv) in response to the Tribunal's inquiry in the course of the Hearing about the "2007 EL-5 Quarterly Report" cited in paragraph 3.23 of TCCP's Interim Response to the Notice of Intent to Reject (Exhibit CE-8), submitted three additional exhibits.
(i) The Parties' Post-Hearing Briefs shall be submitted simultaneously on 15 January 2015. There will not be a second submission of rebuttal Post-Hearing Briefs;
(ii) As suggested in its letter of 3 November 2014, Claimant shall clarify its position on its requested relief in writing, by 18 November 2014;
(iii) Slide 94 of Respondent's Closing Presentation is admitted into the record;
(iv) Respondent may submit the two additional legal authorities identified in its letter of 17 October 2014, and Claimant may submit the four additional legal authorities identified in its letter of 27 October 2014, both with their Post-Hearing Briefs; and
(v) The three additional exhibits proposed by Respondent in its letter of 17 October 2014 and the three additional exhibits proposed by Claimant in its letter of 27 October 2014 are admitted into the record.
"For purposes of the liability phase of the arbitration, TCCA seeks separate and independent declarations that:
(i) the denial of the Mining Lease Application breached Article 3(2);
(ii) the development and implementation of the plan to take over the Reko Diq project breached Article 3(2); and
(iii) in addition to each constituting independent violations, the foregoing breaches, together and along with other Government conduct with respect to TCCA's investment— including, to the extent necessary to prove a composite breach, the Governments' conduct in the Mineral Agreement negotiations and/or in the Pakistan Supreme Court proceedings—constitute an overall course of action that is a composite breach of Article 3(2).
(iv) TCCA does not seek a separate and independent declaration that Pakistan breached Article 3(2) through either the Governments' bad-faith conduct in the Mineral Agreement negotiations, or the conduct of the Governments and the Supreme Court in the domestic constitutional proceedings.
This statement of the relief requested is subject to two reservations.
First, while TCCA seeks separate and independent declarations only with respect to the breaches set forth in paragraphs (i), (ii), and (iii) above, the Tribunal may consider any of the evidence presented by the Parties and adduced in the hearing in determining whether the conduct in question violated Pakistan's obligation to accord fair and equitable treatment to TCCA's investment by way of the conduct set forth in those paragraphs.
Second, should the Tribunal reach causation and damages, TCCA reserves the right to present any arguments, and to seek any rulings, with respect to the conduct of the Governments in the Mineral Agreement negotiations or the conduct of the Governments and the Supreme Court in the domestic constitutional proceedings to the extent relevant to causation and damages."
" 1. Direct Pakistan to provide unequivocal assurances that the confidentiality of its communications, in the form of emails, phone calls, in-person conversations, or otherwise between and among TCC's personnel and its lawyers, both within and without Pakistan, has been strictly respected, and that those communications have not been and will not be monitored, recorded, interfered with, or otherwise compromised; and
2. If Pakistan continued to refuse such assurances, direct Pakistan to identify when, how, and which communications between and among TCC's personnel and its attorneys, both within and without Pakistan, have been monitored, recorded, intercepted, or otherwise compromised."
"1. Order Pakistan to refrain from monitoring, recording, interfering with, or otherwise compromising the confidentiality of any communications, in the form of emails, phone calls, in-person conversations, or otherwise, between and among TCC's personnel and its attorneys, both within and without Pakistan; and
2. Direct Pakistan to identify when, how, and which communications between and among TCC's personnel and its attorneys, both within and without Pakistan, have been monitored, recorded, intercepted, or otherwise compromised to date."
"I. Ensure that neither the NAB nor any other agency of the Federal or Provincial Governments monitor/intercept or record any privileged or potentially privileged communication (oral or written), between and among TCC's personnel, including in-house legal counsel, and its attorneys, both within and outside Pakistan; and
II. Identify whether and if so, when, how and which privileged or potentially privileged communications (oral or written) between and among TCC's personnel, including in-house legal counsel, and its attorneys, both within and outside Pakistan, have been monitored/intercepted or recorded by the NAB or any other agency of the Federal or Provincial Governments to date."
"The Tribunal would like to inform the Parties that it has almost concluded its deliberations on the case and that the draft of its Decision on Jurisdiction and Liability is in a very advanced stage. In light of the circumstances, the Tribunal will finalize, and provide the Parties with, a draft of the Decision that it would have rendered but for the issues raised in Respondent's Application. The Tribunal notes that, while this approach is not provided for by ICSID, it is common practice in the WTO and also provided for in Article 10.20(9) lit. a of the CAFTA. By analogy to the latter provision, the Parties may submit their comments on the draft Decision on Jurisdiction and Liability within 60 days of its transmission by the Tribunal. Any such comments will be duly considered by the Tribunal in its ultimate Decision on Jurisdiction and Liability."
"1. Inform TCCA and the Tribunal of the criteria it is using to determine whether communications to, from, and within TCC are privileged or potentially privileged;
2. Inform TCCA and the Tribunal who is responsible for applying such criteria; and
3. Identify the agencies to which it has 'made... enquiries' regarding potential monitoring, interception, or recording of TCC's communications, and the steps that it is taking to ensure that all organs of the Federal and Provincial Governments are complying with the terms of paragraph 25(I) of the Order."
"1. As the next procedural step, Claimant should submit a substantive response to Respondent's Application at the time agreed by the Parties, or fixed by the Tribunal as indicated below.
2. For clarification purposes, all witness statements, including the two witness statements from the witnesses Col. Sher Khan and Mr. Muhammad Farooq submitted with Respondent's letter of 5 October 2015, as well as all other evidence submitted by Respondent in relation to its Application are admitted into the record, de bene esse, i.e., provisionally and without prejudice to Claimant's right to apply to have it struck out.
3. The Tribunal notes Respondent's statement at para. 15 of its Reply that it 'has no present intention of submitting further witness evidence in respect of the corruption allegations.' In case Respondent wishes to submit any further witness statements and/or any additional documents into record, it may do so only upon request for, and grant of, leave from the Tribunal.
4. The Tribunal further notes Respondent's undertakings offered at para. 20 of its Reply and sees no need for additional orders relating to safe-conduct guarantees for the time being.
5. Claimant's request for disclosure of documents as set out in the Annex to its Opposition is denied for the time being. The Tribunal will decide on the Parties' requests for disclosure of documents in accordance with the time schedule to be agreed by the Parties or fixed by the Tribunal.
"THE GOVERNOR OF BALOCHISTAN through the BALOCHISTAN DEVELOPMENT AUTHORITY for and on behalf of THE PROVINCE OF BALOCHISTAN [by] Arbab M. Yousaf Chairman BDA."13
"1. M/S Tethyan Copper Company Limited (the assignee) shall pay rent and royalty etc at the rate prescribed in the Balochistan Mineral Rules, 2002 and as amended from time to time.
2. M/S Tethyan Copper Company Limited (the assignee) shall have to assume all the obligations and to pay all outstanding dues in respect of this Exploration License ever since its grant if they become due at the later stage.
3. M/S Tethyan Copper Company Limited (the assignee) shall furnish an undertaking that they will observe and abide by all the terms and conditions as contained in this office letter No.DG(MM)-EL(5)/5011-22, dated 18-05-2002 and will also abide by all other conditions of National Mineral Policy read with Balochistan Minerals Rules, 2002 as approved / amended from time to time.
4. M/S Tethyan Copper Company Limited (the assignee) shall submit an undertaking to this effect that they will furnish regularly quarterly progress report.
5. M/S Tethyan Copper Company Limited shall perform its obligation under the agreement signed between M/S BDA/ BHP Chagai Hills Joint Venture & Tethyan Copper Company Limited.
6. The Exploration License assigned to the M/S Tethyan Copper Company Limited shall be terminated if they violate any of the terms and conditions as laid down above and in Balochistan Minerals Rules, 2002."18
"[T]he Parties hereby establish a contractual joint venture the objects of which are to explore for Mineral deposits in the Exploration Area and to conduct Feasibility Studies so as to evaluate the economic viability of said Mineral deposits in the Exploration Area and all acts ancillary thereto which the Operating Committee shall resolve to be carried out."
"The Parties (if any) giving notice of intention to participate in development are hereinafter collectively referred to as 'Participating Party.'"45
"11.5.1 If any notice of intention to participate in Mine Development is given pursuant to sub-clause 11.3.2, within one hundred and twenty (120) days of the Election Date, the Participating Party shall notify the Non-participating Party, in writing, as to whether or not it intends to purchase the Percentage Interest of the Non-participating Party pertaining to the proposed Mining Area (hereinafter called the "Non-participating Party's Transfer Interest").
11.5.2 If the Participating Party notifies the Non-participating Party that it does not wish to purchase the Non-participating Party's Transfer Interest, the Non-participating Party shall be entitled, subject to the grant of the requisite consent of the Provincial Government, to sell and transfer the Non-participating Party's Transfer Interest to a third party, provided that such third party agrees to be bound by the provisions of the JVA with respect to such Mining Area. The Participating Party shall sign all documents, deeds, novations and consents necessary to give effect to such sale and transfer, and for such third party to become a party to the JVA with respect to such Mining Area.
11.5.3 If the Participating Party wishes to purchase the Non-participating Party's Transfer Interest, within 120 days of the Election Date, the Participating Party and the Non-participating Party shall, in good faith, negotiate in order to agree upon the fair value to be paid by the Participating Party to the Non-participating Party as consideration for transfer of the Non-participating Party's Transfer Interest."51
"Within one hundred and eighty (180) days of the Election Date or such other period as may be agreed between all Participating Parties ('the date of segregation' ), the Participating Parties shall segregate from the Exploration Area boundaries of the Mining Area established by the said Study and shall thereby establish a joint venture in respect of such area (the 'Mining Venture' )."54
"Unless otherwise unanimously agreed by all Parties, the boundaries of the Mining Venture shall not contain a greater land area than is necessary to encompass all ore resources which may be properly mined as a single mining enterprise together with any necessary plant or facilities for the milling and treatment of ore and other appropriate infrastructure and, thereafter, a new joint venture shall be deemed to exist between the Participating Parties in respect of that area (the 'Mining Area' )."
"[w]here the Joint Venture or, pursuant to sub-clause 11.3.2, a Participating Party elects to develop a mine then, subject only to compliance with routine Government requirements, it shall be entitled to convert the relevant [Exploration] Licence(s) held by it into Mining [Leases] so as to give secure title over the required Mining Area."55
"[i]n rendering their decision, the arbitrators shall consider the intention of the Parties at the time of entering into this Agreement insofar as it may be ascertained from the Agreement, Pakistani law, and as provided by Article 16, generally accepted standards and principles of international law applicable to the mining industry."60
"5. In consonance with the Government's clear policy of a 'roll-back' of the Public Sector, we would have ordinarily opposed a Joint Venture involving BDA/Government of Balochistan. We of course wish to encourage foreign investment, particularly in the Mining Sector, but ideally Foreign Investors should come in on their own without expecting any equity participation from Government of Balochistan.
6. In this particular case, however, BDA's negotiations with BHP have reached an advanced stage and BDA has already expended some money on technical advice etc. Withdrawal of BDA at this stage may convey the wrong signal to BHP.
7. We may, therefore, allow BDA to continue their negotiations with BHP for a joint venture, subject to the following:-
i) Agreement should be got vetted by the P&DD, Finance Department, Law Department and ofcourse [sic] the administrative department i.e. Industries Department.
ii) Agreement should provide for transfer of BDA share-holding to the domestic private sector/another department or agency of the Government of Balochistan. This is important as one day Government may decide to wind up BDA. (It also bears reiteration that dividends coming directly to the Government from this Joint Venture would help Provincial Revenue Generation; but if they go to BDA they will be used [replacement for the word "asked" which is struck out by hand] upto [sic, words "up" and "to" separated by slash inserted by hand] meet BDA's expenses."76
"THE BALOCHISTAN DEVELOPMENT AUTHORITY
By: /s/ ATA MOHAMMAD JAFAR
Balochistan Development Authority"85
"I, Justice (Retd) Amir ul Mulk Mengal, Governor Balochistan hereby authorize Chairman, Balochistan Development Authority to sign Addendum No. 1 to the Joint Venture Agreement dated July 29, 1993 between Government of Balochistan through Chairman, Balochistan Development Authority and BHP Minerals International Exploration Inc. for the Exploration of Copper, Gold and Associated Minerals in Chagai (Balochistan) on behalf of the Government of Balochistan."89
"2.1 This Agreement shall be conditional upon the Parties receiving from the Federal Government and/or the Provincial Government (as the case may be) within six (6) months of the date of this Agreement or such other period as the parties may agree:
1. all consents and approvals necessary under Pakistani law, and
2. all assurances as to fiscal parameters for investment in any future mining venture which either of the Parties may have need for....
2.3 If pursuant to Clause 2.1 any necessary or required Governmental consent, approval or assurance is not obtained within six (6) months of the date of this Agreement, unless otherwise agreed by the Parties, this Agreement shall absolutely cease and determine and neither Party shall have any rights or claims against the other as a result thereof."121
"In reviewing the Rules we have sought to identify the consents, approvals and assurances which we must seek from the Government to [illegible] the Joint Venture, as referred to in Article 2 of the Joint Venture Agreement (the "Agreement"). We understand that this. involves seeking Gazetted Notified Orders securing rights needed to implement the Agreement to the extent such rights are not available under or are inconsistent with the Rules.
Rule 98 allows the Government to relax the Rules on terms and conditions. Primary responsibility for considering cases involving relaxation of the Rules appears to lie with the Mines Committee (Rule 2(f)). Subject to any current delegation of the Mines Committee's powers, we would suggest application be made to the Committee for Notified Orders as described in the attachment to this letter....
We envisage that once Notified Orders relaxing the Rules have been made, these would be incorporated into a deed guaranteeing, inter alia, that the Notified Orders would not be revoked or overridden. The parties to the deed would be BHP Minerals, the Balochistan Development Authority, the Balochistan Government and the Central Government. The Central Government would have to be a party as, although the Rules are promulgated by the Balochistan Government, they are created pursuant to the Regulation of Mines Oilfields and Mineral Development (Federal Control) Act, 1948, under which the Central Government [illegible] overriding powers."122
(1) Grant of Exploration Area.
(2) Area Available for Prospecting Licenses
(3) Application for Prospecting Licenses
(4) Satisfaction of Conditions Attaching to Prospecting Licenses
(5) Exclusive Right
(6) Other Minerals
(7) Government's Rights: Pre-emption, Acquisition, Merger, and taking Control in National Emergency
(9) Application for Mining Leases
Here BHP stated:
"It is essential that the Joint Venture, or a sole ' Participating Party ' under Clause 11 [of the CHEJVA], is entitled to convert the relevant P[rospecting] L[icense] into a M[ining] L[ease] if it wishes to develop a mine. Currently, the right of a holder of a PL to receive a ML is described in Rule 23 as a ' preferential right ' only. The subjective discretion of the licensing authority [under the 1970 BMC Rules] must be waived in favour of an absolute right of the Joint Venture, or a sole ' Participating Party ', to a M[ining] L[ease], provided they comply with routine administrative requirements. Clause 11.8.2 of the Agreement anticipates this right of transition.
International mining companies will view this aspect of a country's mining regulations as one of the most important."124
(11) Penalties, Compensation and Cancellation
(12) Employment and Training
(13) Mining Lease.
Balochistan granted BHP the following relaxations (the " 1994 Relaxations"):
"In exercise of the powers confirmed by rule 98 of the Mining Concession Rules 1970, the Government of Balochistan is pleased to grant the following relaxation as a special case in favour of BHP Company enabling the company to carry out its exploration work with out [sic] any complications:
1. Grant of Exploration Area.
2. Area available for prospecting Licence.
3. Application for prospecting Licence.
4. Satisfaction of conditions attaching to prospecting Licences.
5. Exclusive right.
6. Other Minerals.
7. Government rights pre emption acquisition merger, and taking control in national emergency.
9. Application for Mining Lease.
10. Roility [sic].
11. Penlities [sic] compensation and cancellation.
14. Employment and training.
15. Mining Lease."127
"The existing regulatory regime is being revised and updated to change some features which have been considered unattractive to investors and to put in place a set of rules which are internationally competitive. The new rules would meet the concerns of the investors on such matters as transparency, criteria for dealing with applications and the grant of licenses and leases, expeditious decision making process, security of tenure, provision of adequate information on mineral titles, independent dispute resolution mechanism etc., and to equitably meet the objectives of the investors as well as aspirations of the Governments."136
"The Licensing Authority shall not unreasonably refuse an application for the grant of an M[ining] L[ease]. Where the Licensing Authority considers that the applicant has satisfied the specified criteria for assessment and grant of an ML, the ML will be granted."138
"The Provincial Government may enter into an agreement with an investor, within the framework of the law, to stabilize the terms or to predetermine procedures with respect to certain matters relating to the carrying out of operation under a license/lease, if the government is satisfied that substantial foreign investment in exploration and mining operations is likely to be made and it is desirable in the interest of the development of mineral resources to do so."139
"The Government may, at the request of a person proposing to carry on mineral operations, enter into an agreement with that person relating to a mineral title, not inconsistent with these Rules or any other law, if the Government is satisfied that substantial foreign investment is likely to be made in mineral operations and that the carrying on of the undertaking in question is desirable in the interest of the development of the mineral resources of Balochistan."150
"Any provision contained in a mineral agreement which is inconsistent with any provision of these rules or any other law shall, to the extent of the inconsistency, be of no force or effect."153
"(2) An application for a mining lease –
(a) shall contain the information referred to in Rule 18(1)(a);
(b) shall be accompanied by the description, maps and plan referred to in Rule 18(1)(d);
(c) shall be made in respect of an area of land not exceeding 250 square kilometres and identify the mineral or group of mineral in respect of which tile lease is sought;
(d) shall contain the particulars referred to in Rule 8(1)(f) (technical and financial resources);
(e) shall be accompanied by –
1. a technological report of mining and treatment possibilities and the intention of the applicant in relation thereto;
2. where the applicant is a person referred to in Rule 50(1) the statement of in Rule 33(1 (h) duly certified by a recognized firm of auditors or chartered accountants;
(f) shall be accompanied by the relevant feasibility studies, and shall include, for the approval of the licensing authority, detailed plans for development and operation of the mine and the programmed of proposed mining operations, including a forecast of –
1. the date by which the applicant intends to work;
2. the capacity and expected rate of production and scale of operations;
3. the anticipated overall recovery of ore and mineral products; and
4. the nature of the products;
(g) shall –
1. be accompanied by an environmental impact assessment in terms of the Environmental Protection Act:
2. identify the extent of any adverse effect which the plan for development and operation of the mine, and. the carrying out of the programme of proposed mining operations would be likely to have on the environment and on any monument or relic in the area over which the lease is required; and
3. contain proposals for eliminating or controlling that effect;
(h) shall contain proposals for the prevention of pollution, the treatment and disposal of wastes, the safeguarding, reclamation and rehabilitation of land disturbed by mining operations, the protection of rivers and other sources of water and for monitoring and managing any adverse effect of mining operations on the environment;
(i) shall identify any particular risks (whether to health or otherwise) involved in mining the mineral or group of minerals which it is proposed to mine, and proposals for their control or elimination;
(j) shall contain or be accompanied by –
1. a statement giving a detailed forecast of capital investment, operating costs and revenues and the anticipated type and source and extent of financing;
2. a statement giving particulars of expected infrastructure requirements; and
3. proposals in respect of the matters specified in Rule 13(1)(b), (c), (d), (e), (f), (g) and (h);
(k) shall state the period, not exceeding thirty years for which the lease is required;
(l) shall be accompanied by such other documents and information as the licensing authority may require in relation to the application; and
(m) may contain any other matter which in the opinion of the applicant is relevant to the application.
(3) An applicant for a mining lease shall comply with the requirements of sub-rules (1) and (7) of Rule 10."
"(n) a concrete proposal for value addition of the ore to be produced / exploited from the applicant's mining lease within the country is submitted, or if the facility is not available in the province, the Ore could be taken out of the province with the prior approval of the Provincial Government."
"48. Grant or refusal of mining lease. -(1) Subject to these Rules, where the holder of exploration licence or a mineral deposit retention licence, makes an application for a mining lease in respect of-
(a) an area of land in, or which constitutes, the exploration area or, as the case may be, the retention area; and
(b) any mineral or group of minerals included in exploration license or such mineral deposit retention licence, as the case may be, the licensing authority shall grant the mining lease.
(2) The licensing authority shall not grant a mining lease in relation to any area of land in respect of any mineral or group of minerals if, at the time of the application, any person other than the applicant holds-
(a) any exploration licence conferring an exclusive right to carry on exploration operations in that area of land in respect of that mineral or group of minerals;
(b) any mining concession in relation to that area of land in respect of that mineral or group of minerals; or
(c) any mineral deposit retention licence in relation to that area of laud and in respect of that mineral or group of minerals, unless –
1. that other person agrees to the grant of the mining lease; and
2. the licensing authority deems it desirable to grant the mining lease in the interest of the development of the mineral resources of Balochistan.
(3) Subject to sub rules- (4) and (5), a mining lease shall not be granted
(a) unless –
1. the feasibility studies show that the mine can be profitably developed and operated;
2. the proposed plans for development and operation of the mine and the programme of the mining operations of the applicant will ensure the efficient, beneficial and timely use of the mineral resources;
3. the applicant in question has or can obtain the technical and financial resources and experience to carry out mining operation effectively;
4. the applicant is a fit and proper person to hold the lease;
5. the proposals submitted with the application are satisfactory; and
6. it is in the interest of the development of the mineral resources of Balochistan to grant the lease;
(b) if at the time of the application the applicant in question is in default.
(c) in respect of an area of land exceeding 250 square kilometres unless the licensing authority is satisfied, on reasonable grounds that special circumstances exist which justify the grant of the lease in respect of a larger area for the efficient development of the mineral resources.
(4) The licensing authority shall not refuse to grant a mining lease to the holder of a mineral title referred to in sub-rule (l) –
(a) in accordance with sub-rule (3) (a), unless the licensing authority has –
1. by notice in writing, informed the applicant, of its intended refusal and the reasons therefore;
2. afforded the applicant an opportunity to make, within such reasonable period as may be specified in the notice, representations in relation to all matters relating to its intention and, if the applicant so desires, to make proposals in relation to any such matters; and
3. taken any such representations into consideration;
(b) in accordance with sub-rule (3) (b), unless the licensing authority has, by notice in writing, informed the applicant, of its intended refusal
1. setting out particulars of the alleged default; and
2. requiring the applicant to make representations to the licensing authority in relation to the alleged default or to remedy the default on or before a date specified in the notice, and the applicant has failed to remedy the default or make such representations as, in the opinion of the authority, would remove the ground for the intended refusal.
(5) The licensing authority shall not refuse to grant a mining lease on the ground that any proposals submitted with the application are inadequate or unsatisfactory unless the licensing authority has, by notice in writing, informed the applicant accordingly and afforded the applicant a reasonable opportunity to modify those proposals."
" [p]roviding for mineral titles to be granted or renewed for sufficient periods to allow for the full commercial exploration, development and exploitation of any mineral deposit by the mineral title holders;
Eliminating discretionary powers, provide time frames and ensuring simplicity of procedures and transparency of decisions; and
Updating the mining laws to deal with international mining practices in Pakistan such as open pit mining and working practices."163
"7.8.1 The Provincial Governments may enter into an agreement with an investor, within the framework of the law, to define the terms or to predetermine procedures with respect to certain matters relating to the carrying out of operations under license/lease, if government is satisfied that substantial foreign investment in exploration and mining operations is likely to be made and it is desirable in the interest of the development of mineral resources, to do so. The Federal Government may also become signatory to such an agreement, if so requested by a Provincial Government, after independently examining viability of the project and credit worthiness of the party. When the Federal Government is requested, the terms of such mineral agreement would be mutually agreed between the Federal Government, the respective Provincial Government and the mining company.
7.8.2 In order to facilitate negotiations, the Federal Government will develop a model mineral agreement designed to provide additional comfort to a mining company and its lenders. The model mineral agreement will contain terms, including without limitation, with respect to the application, grant, duration, renewal, assignment and termination of mineral titles and the rights and obligations of mineral title holders that will protect the economic feasibility of the project and stabilize the legal and fiscal regimes (taxes, fees and royalties) which the mining company will be subject to over the life of the project with necessary protection to the mining company in the event of changes thereto. This will allow the mining company and its lenders to make the necessary investment decisions. The model mineral agreement shall form the basis of negotiations with a mining company for a mineral agreement and may be varied for project specific reasons on a case to case basis to deal with project specific issues. The Federal Government will stand as guarantor of the Provincial Government's obligations, if so requested by the latter.
The existing Mineral Rules will be amended to remove any conflict/overlapping with or other effect on, and to give effect to, the rights and obligations of the mining company under the mineral agreement in line with best international practices and in the meantime, the respective Government shall pass an appropriate order through a notification under the applicable law exempting the class of minerals or the specific minerals covered by mineral agreements from the application of the relevant provisions of the Mineral Rules until the same are amended, such government will also give protection to the incentives and concessions given to mining companies under a mineral agreement through statutory amendments principally in line with those of the mineral sector.
The mineral agreement would have an overriding effect in case anything contained therein is inconsistent with any law or rules subsequently amended."164
"[t]he initial results of the definitive engineering study on the Tanjeel Project have identified significant capital cost increases. These suggest that the development path for the project, on which the Feasibility Study is based, may no longer be optimal.
TCC therefore decided to pause the definitive engineering study, while the essential parameters of the project to take account of the new cost structure were reviewed. This work should be completed by the end of January 2006, after which, and subject to its outcome, the engineering study would recommence. In the meantime, the other aspects of the Bankable Feasibility Study are continuing."180
"When these costs are considered in the context of the long term copper price forecast in the Marketing Study the project, in its current scope and form, is considered to be marginal. It is therefore appropriate to seek alternative solutions involving the identification of a project with more attractive economics."191
"Work on the engineering aspects of the Tanjeel Bankable Feasibility Study has been suspended, pending the completion of the drill out of the Western Porphyries and further deeper drilling to test the hypogene resource beneath the chalcocite blanket, which has yet to be delineated."195
CURRENT MINERAL RESOURCES AT REKO DIQ*
Indicated Mineral Resources (using a 0.3% copper or 0.3% copper-equivalent cut-off grade)
|Tanjeel Project||152 million tonnes @ 0.7% copper|
|Western Porphyries (H14/15)||943 million tonnes @ 0.54% copper and 0.28g/t gold|
|H8 Complex||177 million tonnes @ 0.4% copper and 0.2g/t gold|
|Total Indicated Mineral Resource||1.27 billion tonnes @ 0.54% copper and 0.24g/t gold|
Inferred Mineral Resources (using a 0.3% copper or 0.3% copper-equivalent cut-off)
|Tanjeel Project Tanjeel Hypogene Western Porphyries (H14/15) H13 Complex H8 Complex H35 Complex||15 million tonnes @ 0.5% copper (0.3% copper cut-off) 47 million tonnes @ 0.4% copper (0.3% copper cut-off) 666 million tonnes @ 0.54% copper and 0.31g/t gold 213 million tonnes @ 0.4% copper and 0.4g/t gold 159 million tonnes @ 0.4% copper and 0.2g/t gold 45 million tonnes @ 0.3% copper and 0.6g/t gold|
|Total Inferred Mineral Resource||1.14 billion tonnes @ 0.48% copper and 0.31g/t gold|
|Total Indicated and Inferred:||2.42 billion tonnes @ 0.51% copper and 0.27g/t gold|
CURRENT ORE RESERVES AT REKO DIQ*
The Ore Reserve for the Tanjeel Project is a sub-set of the Mineral Resource for the Project:
|Probable Ore Reserve (Tanjeel Project)||128.8 million tonnes @ 0.7% copper (0.26% cyanide soluble Conner cut-off)|
"the company wished to evaluate the potential of the Reko Diq caldera as a whole rather than focus on individual ore bodies. In this context, the Western Porphyries appeared likely to be the largest ore body but the other ore bodies also needed additional drilling to confirm resources including the Tanjeel ore body in which the supergene deposit had been extensively drilled but the underlying hypogene ore body still required further appraisal. He stated that the proposed 18 month program included 94,000 meters of additional drilling of which 70,000 would focus on the Western Porphyries."203
"TCC in its progress reports and presentations had been informing of preparing feasibility studies to launch H-4 (Tanjeel) project on completion of ore reserves estimates. TCC has also reported to have further proven the reserves at H-4 thus increasing the ore reserves estimates. Consequent upon proving the reserves, no further exploration at H-4 is warranted and the deposit is deemed to the ready for commercial exploitation.
In pursuance to the Balochistan Mining Concession Rules no Exploration Licence could be granted / renewed for more than 10 years. Whereas, at H-4 exploration is underway since 1993. You are, therefore, advised to apply for mining lease of H-4 deposits so that mining operation could be launched, as the GOB as well as Government of Pakistan is taking keen interest in this project."205
" [P]lease note that TCC-BDA had earlier this year decided to re-scope the feasibility study in order to include therein Western Porphyries and other parts of the Reko Diq area and are currently undertaking pre-feasibility work in respect of the Reko Diq area. As and when the Feasibility Study is completed we will attach it with our application for a mining lease for the area proposed to be mined.
Please note, however, that all preliminary engineering reports have been provided to the Government of Balochistan and reports comprising more than 3,000 pages were also delivered to BDA in early 2006. Please also note that in compliance with our obligations under the Balochistan Mineral Rules 2002, we have been regularly providing our quarterly reports, which contain full details of all work carried out."207
"Indicated and Inferred Mineral Resource (0.3% copper-equivalent cut-off grade):
1.61 billion tonnes © 0.54% copper and 0.30g/t gold
containing 8.69 million tonnes of copper (19 billion pounds) and 15.53 million ounces of gold."210
"a new scoping study of the global resource at Reko Diq was required which would consider the early 2006 global resource upgrade to 2.4 billion tonnes and review a suite of options for development of a large scale mine but would also include the concept of a smaller start up project."215
"the Work Program and Budget for 2007 as presented be approved, including the exploration and scoping study, details of which is still being finalized, subject to revision at the next Operating Committee Meeting when the scoping study and air strip costs have been refined."220