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Lawyers, other representatives, expert(s), tribunal’s secretary

Decision on Jurisdiction and Liability

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
Antofagasta Antofagasta plc
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.
BIT See "Treaty"
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
CA Claimant's Authority
CDWP Central Development Working Party, Planning Commission [Pakistan]
CE Claimant's Exhibit
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
NOC No-Objection Certificate
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
PO Procedural Order
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
RE Respondent's Exhibit
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
Secretariat ICSID Secretariat
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. THE PARTIES

A. Claimant

1.
Tethyan Copper Company Pty Limited, a company constituted and registered under the laws of Australia and owned (through Atacama Copper Pty Limited) in equal shares by Antofagasta plc, a company incorporated in the United Kingdom with its headquarters in Chile, and Barrick Gold Corporation, a company incorporated in Canada, hereinafter referred to as "Claimant" or "TCCA".

B. Respondent

2.
Islamic Republic of Pakistan, hereinafter referred to as "Respondent" or "Pakistan".
3.
Claimant and Respondent are hereinafter referred to individually as a "Party" and collectively as the "Parties".

II. THE ARBITRAL TRIBUNAL

4.
The Arbitral Tribunal has been constituted as follows:

(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
U.S.A.

(ii) Rt. Hon. Lord Leonard Hoffmann
(appointed by Respondent)
Brick Court Chambers
7-8 Essex Street
London WC2R 3LD
United Kingdom

(iii) Professor Dr. Klaus Sachs
(appointed by the Parties)
CMS Hasche Sigle
Nymphenburger Strasse 12
80335 München
Germany

III. SUMMARY OF THE PROCEDURAL HISTORY

A. The Institution of These ICSID Proceedings

5.
This arbitration concerns a legal dispute between TCCA and Pakistan arising out of TCCA's claimed investments in Pakistan. Claimant alleges that Pakistan violated the Agreement between Australia and the Islamic Republic of Pakistan on the Promotion and Protection of Investments, which was signed on 7 February 1998 and entered into force on 14 October 1998 (the " Australia-Pakistan Treaty ", the " Treaty " or the " BIT"),1 by its arbitrary and unlawful denial of a mining lease to Tethyan Copper Company Pakistan (Private) Limited ("TCCP"), TCCA's wholly-owned Pakistan subsidiary, and other actions attributable to Pakistan that, according to Claimant, deprived TCCA of the value of its investments. Such alleged actions include, in particular, developing and executing a scheme to take over TCCA's Reko Diq project, denying the Mining Lease Application in pursuit of that scheme and using TCCA's exploration and feasibility work product in its own project, which allegedly amounted to a breach of the fair and equal treatment obligation under Article 3(2), an expropriation of TCCA's investment without compensation in violation of Article 7(1) and an impairment of TCCA's investment in violation of Article 3(3) of the Treaty.
6.
Article 3 of the Australia-Pakistan Treaty provides, in relevant part:

"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."

7.
Article 7(1) of the Treaty provides:

"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."

8.
Article 3(3) of the Treaty provides:

"Each Party shall, subject to its laws, accord within its territory protection and security to investments and shall not impair the management, maintenance, use, enjoyment or disposal of investments."

9.
On 28 November 2011, Claimant filed its Request for Arbitration with the Secretary-General of the International Centre for Settlement of Investment Disputes ("ICSID") pursuant to Article 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention").2 Article 36 of the ICSID Convention provides:

"(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."

10.
In its Request for Arbitration, Claimant referred to Article 13(3)(a) of the Australia-Pakistan Treaty pursuant to which Pakistan agreed to "consent in writing to the submission of the dispute to the Centre within thirty days" of receiving the Request for Arbitration.3
11.
On 12 January 2012, the Secretary-General of ICSID ("Secretary-General") registered Claimant's Request for Arbitration.
12.
By letter dated 11 April 2012, Claimant elected the formula for the constitution of the Tribunal provided under Article 37(2)(b) of the ICSID Convention (i.e., that the Tribunal would consist of three arbitrators: one arbitrator to be appointed by each Party, and the third, who would be the President of the Tribunal, to be appointed by agreement of the Parties).
13.
By letter dated 18 May 2012, Claimant informed the Secretary-General that it appointed Mr. John Beechey, a British national, as an arbitrator pursuant to Article 37(2)(b) of the ICSID Convention. Mr. Beechey accepted his appointment on 1 June 2012.
14.
On 12 June 2012, Respondent appointed as arbitrator Rt. Hon. Lord Leonard Hoffmann, a British national, who accepted his appointment on the following day.
15.
In separate letters dated 9 July 2012, the Parties expressed their agreement to the appointment of Professor Dr. Klaus Sachs, a German national, as the President of the Tribunal. Prof. Sachs accepted his appointment as presiding arbitrator on 12 July 2012.
16.
On 12 July 2012, the Tribunal was constituted in accordance with Article 37(2)(b) of the ICSID Convention.4 Mrs. Mercedes Cordido-Freytes de Kurowski, ICSID Legal Counsel, was designated to serve as Secretary to the Tribunal.
17.
On 23 July 2012, Respondent filed a proposal for disqualification of Mr. Beechey as an arbitrator pursuant to Article 57 of the ICSID Convention (the "Disqualification Proposal"). On the same date, the ICSID Secretariat (the "Secretariat") informed the Parties that, pursuant to Rule 9(6) of the Rules of Procedure for Arbitration Proceedings ("ICSID Arbitration Rules"), the proceeding was suspended until a decision on the Disqualification Proposal had been taken.
18.
Also on 23 July 2012, Claimant filed a Request for Provisional Measures (the "Provisional Measures Request"). The Secretariat informed the Parties that, in light of the suspension of the proceedings, Claimant's submission would be sent to the Tribunal once the proceedings resumed.
19.
On 25 July 2012, Professor Dr. Klaus Sachs and Lord Hoffmann fixed a procedural schedule concerning the Disqualification Proposal.
20.
On 26 July 2012, Respondent supplemented its Disqualification Proposal.
21.
On 31 July 2012, Claimant submitted a reply to the Disqualification Proposal.
22.
On 3 August 2012, pursuant to Rule 9(3) of the ICSID Arbitration Rules, Mr. Beechey furnished explanations in response to the Disqualification Proposal.
23.
Following consultation with the Parties, by letter of 7 August 2012, the Secretary of the Tribunal on instructions of the President of the Tribunal, confirmed that a hearing on the Disqualification Proposal would be held at the International Dispute Resolution Centre (the "IDRC") in London, on 8 September 2012.
24.
On 31 August 2012, each Party filed observations to Mr. Beechey's explanations of 3 August 2012.
25.
By letter dated 6 September 2012, Claimant informed the unchallenged Members of the Tribunal that the Parties had jointly requested Mr. Beechey to resign from the Tribunal and that he had complied with this request. By letter of the same date, Respondent expressed its consent to Mr. Beechey's resignation from the Tribunal. Respondent stated that its consent was without prejudice to objections to the jurisdiction of the Tribunal, which it might raise at a later stage of the proceedings.
26.
By e-mail of the same date to the ICSID Secretariat copied to his co-arbitrators, Mr. Beechey confirmed his resignation from the Tribunal.
27.
By letter dated 7 September 2012, the unchallenged Members of the Tribunal informed the Secretary-General of their consent to Mr. Beechey's resignation. By letter of the same date, the Secretariat informed the Parties thereof and invited Claimant to appoint an arbitrator pursuant to Article 37(2)(b) of the ICSID Convention in order to fill the vacancy resulting from Mr. Beechey's resignation.
28.
By letter of 7 September 2012, Claimant informed the Secretary-General that it appointed Dr. Stanimir Alexandrov, a national of Bulgaria, as an arbitrator pursuant to Article 37(2)(b) of the ICSID Convention and Rule 11(1) of the ICSID Arbitration Rules. Attached to Claimant's letter was a letter from Respondent of 6 September 2012 providing its advance consent to Dr. Alexandrov's appointment, subject to Dr. Alexandrov's formal confirmation of the disclosure of his participation as counsel in two concluded cases.
29.
On 10 September 2012, Dr. Alexandrov accepted his appointment and confirmed the disclosure which he had previously made to Claimant.
30.
By letter of the same date, the Secretariat informed the Parties of Dr. Alexandrov's acceptance, and that the proceeding would resume pursuant to Rule 12 of the ICSID Arbitration Rules from the point it had reached at the time the vacancy on the Tribunal had occurred. The Secretariat provided the reconstituted Tribunal with Claimant's Provisional Measures Request dated 23 July 2012 ("Provisional Measures Request"), including supporting documents as well as the Witness Statements of Messrs. Timothy Livesey and Robert Krcmarov. In its Provisional Measures Request, Claimant requested that the status quo be preserved during the pendency of the arbitration. Specifically, it requested that Respondent and Balochistan refrain from (i) further developing; or (ii) disposing of, the Reko Diq Mining Area; (iii) breaching the confidentiality provisions of Claimant's Feasibility Study; and (iv) infringing Claimant's exclusive surface rights. In addition, Claimant requested that Respondent and Balochistan issue any authorization required to allow Claimant's expatriate staff to work in, and travel to Pakistan.
31.
Under cover of a letter dated 11 September 2012, Claimant submitted corrected versions of Exhibits CE-99 and CE-128.

B. The Initiation of the ICC Proceedings

32.
Prior to the initiation of these proceedings, Claimant filed a Request for Arbitration against the Province of Balochistan, Pakistan, with the International Chamber of Commerce, which was registered on 28 November 2011 and assigned the number ICC Case 18347/VRO/AGF ("ICC Proceedings"). Claimant's claims in the ICC Proceedings arise out of Claimant's alleged right to a mining lease under Article 11.8.2 of the Chagai Hills Exploration Joint Venture Agreement dated 29 July 1993 between the Balochistan Development Authority and BHP Minerals International Exploration Inc. ("CHEJVA") and Rule 48(1)(b) of the 2002 Balochistan Mining Rules. Claimant claims Respondent has breached the CHEJVA and the 2002 Balochistan Mining Rules by denying its application for a mining lease.
33.
Claimant submitted the dispute to arbitration pursuant to Clause 15.4 of the CHEJVA which provided that "any dispute" which the parties failed to resolve amicably or through voluntary expert conciliation "shall be submitted" to international arbitration before ICSID or, in the event that ICSID does "not accept jurisdiction" or "reject[s] the arbitration request," to arbitration under the ICC Rules.5
34.
On 23 July 2013, the ICC Tribunal, in response to TCCA's request dated 10 May 2013, issued its ruling on bifurcation, ruling that the Government's objections as to jurisdiction and admissibility be joined to the merits and that the validity and binding nature of the CHEJVA should be decided in advance of the main allegations regarding breach of the CHEJVA. The ICC Tribunal issued its Rulings on Preliminary Issues on 23 October 2014 ("ICC Rulings on Preliminary Issues").6 These rulings will be referred to later in this Award.
35.
Thus, Claimant is currently conducting parallel and independent arbitration proceedings, with the ICC Tribunal deciding Claimant's contractual claims under the CHEJVA and this ICSID Arbitral Tribunal deciding Claimant's treaty claims under the Australia-Pakistan Treaty.

C. The ICSID Arbitral Proceedings

1. The Pre-Hearing Phase

36.
By letter dated 14 September 2012, the Secretariat, on behalf of the Tribunal, confirmed that the First Session pursuant to Rule 13(1) of the ICSID Arbitration Rules ("First Session") and the hearing on the Provisional Measures Request (the "Provisional Measures Hearing") would be held at the IDRC in London on 6 November 2012.
37.
Under cover of a letter dated 1 October 2012, Respondent submitted, without prejudice to its jurisdictional objections, its Response to Claimant's Request for Provisional Measures ("Provisional Measures Response") with supporting documents as well as the Witness Statement of Dr. Samar Mubarakmand and its annexes. In its Provisional Measures Response, Respondent informed the Tribunal about its plans to develop the deposit H4 (the " H4 Work Plan") and noted that the GOB had no present intention to exploit the area beyond H4. It therefore requested that the Provisional Measures Request be dismissed with costs awarded in Respondent's favor.
38.
On 15 October 2012, Claimant submitted its Reply on Provisional Measures ("Provisional Measures Reply"), with supporting documents as well as the Second Witness Statement of Mr. Livesey. In the Reply, Claimant renewed its request that, given the imminent nature of the harm anticipated by Claimant, the Tribunal immediately grant the requested provisional measures as a temporary restraint pending disposition of the Provisional Measures Request.
39.
By letter dated 18 October 2012, the Secretariat informed the Parties of the Tribunal's decision that the Tribunal would not decide on the requested relief before having received Respondent's Provisional Measures Rejoinder and having heard both Parties' arguments at the oral hearing.
40.
Under cover of a letter dated 29 October 2012, Respondent submitted the Rejoinder (titled "Respondent's Answer to the Claimant's Reply") ("Provisional Measures Rejoinder"), together with supporting documents.
41.
By letter dated 31 October 2012, the Secretariat, on behalf of the Tribunal, requested that Respondent inform the Tribunal and Counsel for Claimant whether Respondent intended to cross-examine Messrs. Livesey and Krcmarov during the Provisional Measures Hearing. By letter of the same date, Respondent confirmed that it did not intend to do so.
42.
The Tribunal held the First Session with the Parties on 6 November 2012. The Parties confirmed that the Members of the Tribunal had been validly appointed. It was agreed, inter alia, that the applicable ICSID Arbitration Rules would be those in effect from 10 April 2006, and that the procedural language would be English. The Parties were unable to reach an agreement on the place of the proceedings. Having heard the Parties on this matter, the Tribunal decided that Washington, D.C. would be the place of the proceeding and that, unless otherwise agreed, the hearings would be held at the World Bank Conference Centre in Paris. During the First Session, the Parties and the Tribunal also discussed the other items on the Draft Agenda and Procedural Order previously circulated by the Secretary of the Tribunal, the Parties' agreements and their respective positions regarding the items on which they did not agree and agreed on a procedural timetable. At the proposal of the Tribunal, the Parties agreed to the appointment of Dr. Tilman Niedermaier as Assistant to the Tribunal.
43.
The Provisional Measures Hearing was held at the IDRC on 6 November 2012, following the First Session. In addition to the Members of the Tribunal, the Assistant and the Secretary of the Tribunal, present at the hearing were (i) For Claimant: Mr. Donald Francis Donovan, Dr. Dietmar W. Prager, Ms. Natalie L. Reid, Mr. Matthew H. Getz, Ms. Natalie J. Lockwood, and Ms. Noelle Duarte Grohmann of the law firm of Debevoise & Plimpton LLP, New York; Mr. Timothy Livesey, Mr. William Hayes and Mr. Jack McMahon of Tethyan Copper Company Pty Limited; Mr. Francisco Charlin and Mr. Ramón Jara of Antofagasta plc; and Ms. Sybil Veenman and Mr. Jonathan Drimmer of Barrick Gold Corporation; and (ii) For Respondent: Mr. Ahmer Bilal Soofi, Mr. Kayzad Kaikobad and Mr. Bakhtawar Bilal Soofi of the law firm of ABS & Co, Islamabad; Ms. Cherie Booth QC of Matrix Chambers; Mr. Arthur Marriott QC, Ms. Mahnaz Malik, Mr. John Kingston, Mr. Max Holzbaur, and Ms. Pallavi Sengupta of 12 Gray's Inn, London; Mr. Irshad Ali Khokhar, Director General of the Ministry of Mines & Natural Resources of the Government of Pakistan; Mr. Mushtaq Ahmed Raisani, Secretary of Mines & Mineral of the Government of Balochistan; Mr. Aman Ullah Kanrani, Advocate General of the Government of Balochistan; and Dr. Samar Mubarakmand, Fact Witness of the Respondent. During this Hearing, the Tribunal heard oral arguments from each of the Parties on this matter and Respondent's witness Dr. Mubarakmand was cross-examined.
44.
Under cover of a letter dated 13 November 2012, Claimant submitted the Third Witness Statement of Mr. Livesey.
45.
On 19 November 2012, Respondent submitted its comments on the Third Witness Statement of Mr. Livesey.
46.
By email of 27 November 2012, Respondent proposed to amend the procedural time table discussed during the First Session in view of an expected judgment of the Pakistani Supreme Court on the validity of the Chagai Hills Exploration Joint Venture Agreement dated 29 July 1993 between the Balochistan Development Authority and BHP Minerals International Exploration Inc. ("CHEJVA ", as further described at paragraphs 228 to 250 below) and provide for a separate hearing on jurisdiction.
47.
By letter dated 28 November 2012, Claimant, upon direction by the Tribunal, stated its position on a cross-undertaking and security in the event that the Tribunal was inclined to grant Claimant's Provisional Measure Request.
48.
By letter dated 30 November 2012, Respondent replied to Claimant's letter dated 28 November 2012.
49.
By letter of the same date, Claimant responded to Respondent's email of 27 November 2012 and requested that the Tribunal should "decide in a first phase of the arbitral proceedings on (i) any jurisdictional objections raised by Respondent, (ii) the claim that Respondent breached the Australia-Pakistan Treaty; and (iii) Claimant's request for specific performance as a remedy to the breach of the Australia-Pakistan Treaty, if any."
50.
By letter dated 1 December 2012, Respondent commented on Claimant's letter dated 30 November 2012.
51.
By letter dated 3 December 2012, the Secretariat informed the Parties that the Tribunal had noted the Parties' respective positions in respect of the timetable and, for the time being, did not consider a decision to be required.
52.
On 13 December 2012, the Tribunal issued its Decision on the Provisional Measures Request. In its Decision, the Tribunal ordered Respondent to "immediately inform the Tribunal and Claimant of any change of its 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." The Tribunal further ordered Respondent to "inform the Tribunal and Claimant, on a regular basis, about its specific plans and activities with respect to deposit H4." Finally, the Tribunal stated that it remained seized of the matter and would consider further applications by Claimant if the situation materially changed.
53.
Under cover of a letter dated 18 December 2012, the Secretariat provided the Parties with a letter of Co-Arbitrator Dr. Alexandrov of the same date, in which Dr. Alexandrov informed the Parties that the international arbitration practice of his firm Sidley Austin LLP had been asked to serve as counsel in an arbitration in which Mr. David A.R. Williams also served as counsel and that he was part of the counsel team. In a letter dated 20 April 2012, Respondent had raised concerns regarding the proposed nomination of Mr. Williams as an arbitrator in the instant case due to his role in said arbitration.
54.
Under cover of a letter dated 21 December 2012, the Secretariat provided the Parties with Procedural Order No. 1 issued by the Tribunal on 3 December 2012. Procedural Order No. 1 had been prepared on the basis of the Parties' respective comments, reflects the Parties' agreements and the Tribunal's decision during the First Session and, inter alia, sets out the procedural timetable.
55.
By letter of the same date, Claimant applied for an extension of time for the submission of its Memorial on the Merits from 25 January to 1 February 2013.
56.
Upon invitation by the Tribunal to comment on Claimant's application, Respondent informed the Tribunal by letter dated 27 December 2012 that the Pakistani Supreme Court had yet not rendered its decision on the validity of the CHEJVA and that Respondent therefore was not in a position to comment on Claimant's application. The Tribunal extended the time limit for comments on Claimant's application until 14 January 2013.
57.
By letter dated 6 January 2013, Claimant renewed its application for a one-week extension of the time limit for the submission of its Memorial on the Merits.
58.
On 7 January 2013, the Tribunal granted an extension of the time limit for the filing of Claimant's Memorial on the Merits from 25 January to 1 February 2013, noting that Respondent's right to submit a request for amendment of the procedural timetable, following the Pakistani Supreme Court's order/judgment, remained unaffected.
59.
Under cover of a letter of the same date, Respondent filed a short order of the Pakistani Supreme Court, by which the Court had held the CHEJVA to be void, illegal and non est. In its letter, Respondent announced that it would submit a brief in respect of the Tribunal's jurisdiction within two weeks after the release of the detailed judgment of the Pakistani Supreme Court and made a proposal for a schedule for a one-day hearing on jurisdiction.
60.
By letter dated 14 January 2013, Claimant commented on Respondent's letter dated 7 January 2013, objected to Respondent's proposal to hold a one-day hearing on jurisdiction and requested that the procedural calendar in place be confirmed.
61.
By letter of 16 January 2013, the Tribunal noted that the procedural timetable in place did not provide for a separate hearing on jurisdiction. It indicated that, before Respondent filed any submissions on jurisdiction, which were not provided for in the procedural timetable, Respondent would be required to file a reasoned application for its amendment, Claimant would be afforded the opportunity to comment, and the Tribunal would then decide whether it would amend the procedural schedule. Until then, the agreed procedural schedule set out in Procedural Order No. 1 would remain the same.
62.
On 1 February 2013, Claimant filed its Memorial on the Merits (the " Memorial"), together with supporting documents as well as the Witness Statement of Ms. Catherine Boggs and the Fourth Witness Statement of Mr. Livesey.
63.
By letter dated 5 March 2013, Respondent informed the Tribunal that its lead counsel, Mr. Arthur Mariott QC, had fallen severely ill and therefore requested an extension of six weeks for submitting its Memorial on Defence and Counterclaim.
64.
Upon invitation by the Tribunal, Claimant commented by letter dated 11 March 2013 on Respondent's request for an extension of time. Claimant refused to agree to an extension of six weeks and instead invited Respondent to agree on a timetable which would allow the procedural timetable to be upheld.
65.
By letter of 12 March 2013, enclosing a letter from the arbitral tribunal in the parallel ICC Proceedings, Respondent reiterated its request for a six-week extension.
66.
Upon invitation by the Tribunal to comment on Respondent's letter dated 12 March 2013, Claimant, by letter dated 18 March 2013, informed the Tribunal that it would agree to move the Hearing on Jurisdiction and Liability to the period between 20 January and 21 February 2014 and that, if the Hearing could not then be held, it would maintain its original position.
67.
By letter of the same date, Claimant informed the Tribunal that it had appointed Mr. Mansoor H. Khan of Khan & Associates as co-counsel.
68.
By letters of 28 March 2013 respectively, the Parties confirmed that they would be available for a hearing from 3 to 8 February 2014.
69.
On 3 April 2013, the Tribunal decided that (i) the time limit for the submission of the Counter-Memorial was extended until 7 June 2013; (ii) the Hearing on Jurisdiction and Liability would be held from 3 to 8 February 2014 at the World Bank's Conference Center in Paris and (iii) the Parties were to liaise with each other and submit a joint proposal for the procedural schedule leading to the Hearing on Jurisdiction and Liability by 3 May 2013, failing which agreement the Tribunal would itself fix the procedural schedule leading to the Hearing on Jurisdiction and Liability on the basis of the proposal(s) submitted to it.
70.
By letter dated 4 April 2013, Respondent informed the Tribunal that, due to his appointment as Federal Minister, its counsel Mr. Ahmer Soofi had ceased to represent Respondent in this case and that Mr. Kayzad Kaikobad of ABS & Co. would replace him.
71.
By letter dated 3 May 2013, Claimant withdrew its request for specific performance and reserved its right to seek damages.
72.
On 8 May 2013, Respondent filed preliminary objections to jurisdiction pursuant to Rule 41(1) of the ICSID Arbitration Rules and requested that the Tribunal suspend the proceedings on the merits and address the preliminary objections to jurisdiction as a preliminary question ("Request for Suspension and Trifurcation"). Enclosed with the letter was a judgment of the Supreme Court of Pakistan of 7 January 2013, by which the Court had held the CHEJVA to be illegal and void ab initio.
73.
By letter of the same date, Respondent requested that the Tribunal order Claimant to pay Respondent's costs related to the interim relief/provisional measures applications ("Request for Decision on Costs") and that it direct Claimant and its parent companies to disclose internal information that relates to the withdrawal or write down of its interest in the Reko Diq project ("Request for Document Production").
74.
By letter dated 10 May 2013, Respondent submitted the full judgment of the Supreme Court of Pakistan.7
75.
By letter dated 20 May 2013, Claimant responded to the Request for Suspension and Trifurcation.
76.
By letter dated 22 May 2013, Respondent responded to Claimant's letter dated 20 May 2013.
77.
By letter dated 22 May 2013, Claimant responded to the Request for Decision on Costs and the Request for Document Production.
78.
By letter dated 27 May 2013, Respondent commented on Claimant's letter dated 22 May 2013.
79.
By letter of the same date, Claimant requested the Tribunal

"(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 Rule 41(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."

80.
By letter dated 28 May 2013, Respondent commented on Claimant's letter dated 27 May 2013.
81.
By letter of the same date, Claimant responded to Respondent's letter dated 28 May 2013.
82.
By letter dated 29 May 2013, Respondent submitted further comments.
83.
On 29 May 2013, the Tribunal issued Procedural Order No. 2 and

(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.

84.
By letter of 30 May 2013, Respondent requested an extension of the time limit for the filing of its Counter-Memorial.
85.
On 31 May 2013, the Tribunal granted an extension of the time limit for the filing of Respondent's Counter-Memorial until 28 June 2013.
86.
By letter dated 14 June 2013, Claimant submitted a proposal for a timetable leading to the Hearing on Jurisdiction and Liability.
87.
By letter of the same date, Respondent requested a further extension of the time limit for the filing of its Counter-Memorial until 4 October 2013.
88.
By letter dated 16 June 2013, Respondent informed the Tribunal about the difficult security situation in the Province of Balochistan.
89.
By letter dated 19 June 2013, Claimant commented on Respondent's request for an extension of the time limit and requested the Tribunal to dismiss Respondent's application.
90.
By letter of 20 June 2013, Respondent commented on Claimant's letter dated 19 June 2013.
91.
By letter dated 24 June 2013, Claimant replied to Respondent's letter dated 20 June 2013.
92.
On 26 June 2013, the Tribunal decided to grant Respondent an extension until 30 September 2013 on the express terms that this was a final extension and that if no Counter-Memorial was filed by then, the arbitration would proceed without one. The Parties were invited to consult with the Tribunal as to new dates for the Hearing on Jurisdiction and Liability and a new timetable for the intervening stages. The Tribunal indicated that it would be available for the Hearing in the weeks of 16 and 23 June 2014.
93.
By letter dated 1 July 2013, Respondent raised the possibility of coordinated hearings in the present arbitration and the ICC Proceedings if the arbitral tribunal in the ICC Proceedings would not bifurcate the proceedings.
94.
By letter dated 23 July 2013, Claimant informed the Tribunal that the arbitral tribunal in the ICC Proceedings had bifurcated the proceedings and that the Parties were trying to agree on a timetable leading to the Hearing on Jurisdiction and Liability (the " Hearing"). Claimant further requested that the Tribunal keep the weeks of 16 and 23 June 2013 reserved for the Hearing.
95.
By letter dated 24 July 2013, Respondent commented on Claimant's letter dated 23 July 2013.
96.
Under cover of a letter dated 25 September 2013, Claimant submitted a proposal for a procedural timetable.
97.
On 30 September 2013, Respondent filed its Memorial on Jurisdiction and Admissibility, Counter-Memorial on the Merits and Counter-Claim (the " Counter-Memorial"), together with supporting documents as well as the Witness Statements of Messrs. Irshad Ali Khokhar, Amanullah Kanrani and Barbar Yaqoob Fateh Muhammad as well as a Second Witness Statement of Dr. Mubarakmand.
98.
Under cover of a letter dated 8 October 2013, Respondent submitted corrected versions of the Counter-Memorial and the witness statements it had submitted on 30 September 2013.
99.
By letter dated 10 October 2013, Claimant informed the Tribunal about the developments in the ICC Proceedings and requested that the Tribunal issue a procedural order adopting the proposed timetable, so that the Parties might proceed to document disclosure and the additional written submissions on jurisdiction and liability required under Procedural Order No. 1 and subsequent directions from the Tribunal.
100.
By letter dated 11 October 2013, Respondent commented on Claimant's letter dated 10 October 2013 and requested that the Tribunal, before issuing any directions in this matter, wait for an application by Respondent to the arbitral tribunal in the parallel ICC Proceedings restraining Claimant from pursuing the present proceedings and an application by Respondent to the Tribunal to suspend the present proceedings pending the decision of the arbitral tribunal in the ICC Proceedings.
101.
On 11 October 2013, the Tribunal adopted the procedural timetable as proposed by Claimant in its letter dated 25 September 2013.
102.
By letter dated 14 October 2013, Respondent requested a revision of the Tribunal's above decision.
103.
Upon invitation by the Tribunal, Claimant commented on Respondent's request to revisit its decision by letter dated 16 October 2013.
104.
By email of 17 October 2013, Respondent submitted further comments.
105.
On 21 October 2013, Respondent filed a Request for the Suspension of the Proceedings ("Request for Suspension"), together with supporting documents.
106.
Under cover of a letter dated 23 October 2013, Respondent provided the Tribunal with its Memorial in the ICC Proceedings and enclosures.
107.
On 30 October 2013, Claimant opposed the Request for Suspension and submitted a proposal for consolidation of the ICC and the ICSID proceedings as well as a Proposed Revised Timetable for the Production of Documents ("Proposed Timetable for Document Production")
108.
By letter dated 8 November 2013, Respondent commented on Claimant's letter dated 3 November 2013 and submitted a counterproposal for "sequencing the hearing of both cases so that the ICC Tribunal decides all matters relating to the CHEJVA Agreements and for the ICSID Tribunal to take account of these findings when deciding the issues of jurisdiction, admissibility and liability" in case the Request for Suspension is rejected ("Counterproposal").
109.
On 11 November 2013, the Tribunal rejected the Request for Suspension and provided the Parties with further directions for their negotiations on a procedural timetable.
110.
By email of 14 November 2013, Respondent informed the Tribunal of the Parties' agreement to extend the deadlines for the document disclosure phase, and stated that it would not be possible to hear the jurisdiction, admissibility and liability issues in a two-week period in June 2014 or to hold a combined hearing for the two cases.
111.
By email of 15 November 2013, Claimant confirmed its agreement with the extension of the time limits of the document disclosure phase.
112.
By letter dated 15 November 2013, Claimant submitted a proposal for a joint hearing during the weeks of 16 and 23 June 2014 to the arbitral tribunal in the ICC Proceedings and the Tribunal.
113.
By letter of 20 November 2013, Respondent rejected Claimant's proposal for a joint hearing and requested the Tribunal to provide its availabilities for a four-week Hearing and to order the Parties to agree on a timetable for further written submissions.
114.
On 21 November 2013, the Tribunal decided that, pending Claimant's comments, the procedural timetable leading to the two-week Hearing in the weeks of 16 and 23 June 2014, as ordered on 11 October 2013, remained in place.
115.
By letter dated 24 November 2013, Respondent stated that the Parties had not agreed to a Hearing during the weeks of 16 and 23 June 2014 and requested the Tribunal to suspend the timetable.
116.
By letter of the same date, Claimant commented on Respondent's letter dated 24 November 2013.
117.
By letter to the Tribunal and to the arbitral tribunal in the ICC Proceedings dated 27 November 2013, Claimant replied to Respondent's letters dated 20 and 24 November 2013 as well as to communication submitted in the ICC Proceedings. In this letter, Claimant submitted its alternative proposals for a timetable in the parallel proceedings.
118.
By letter dated 28 November 2013, Respondent commented on Claimant's letter dated 27 November 2013 and requested the Tribunal to provide its availabilities for a three-week Hearing.
119.
By letter dated 29 November 2013, the arbitral tribunal in the ICC Proceedings informed the Parties that it would hold the hearing on jurisdiction in the week of 23 June 2013.
120.
By letter dated 9 December 2013, Respondent reiterated its request that the Tribunal provide its availabilities for a three-week Hearing.
121.
Βy letter to the Tribunal and the arbitral tribunal in the ICC Proceedings of the same date, Claimant suggested that the members of both arbitral tribunals hold a telephone conference in order to coordinate the parallel proceedings.
122.
By letter dated 10 December 2013, the Tribunal recalled that the Parties and the Tribunal had agreed on a two-week Hearing with two days in reserve, as set out in Section 17 of Procedural Order No. 1, and that, in the absence of any change in circumstances underlying the agreed two-week Hearing, the Tribunal did not consider it necessary to provide the Parties with its availabilities for a three-week Hearing, but aimed at holding a two-week Hearing at the earliest opportunity. The Tribunal further stated that, unless both weeks of 16 and 23 June 2014 became available for the Hearing, the Tribunal could offer to hold a one-week Hearing in June and an additional Hearing in the week of 6 or 13 October 2014 or, alternatively, a two-week Hearing in the weeks of 6 and 13 October 2014.
123.
By letter dated 11 December 2013, Claimant reiterated its suggestion that the members of the arbitral tribunals in the parallel proceedings hold a telephone conference with the purpose of coordinating the proceedings.
124.
On 12 December 2013, the Parties submitted their respective document disclosure requests in the form of Redfern schedules.
125.
By letter of the same date, Respondent commented on Claimant's letter dated 11 December 2013 and the Tribunal's letter dated 10 December 2013. Respondent opposed a telephone conference between the members of the arbitral tribunals in the parallel proceedings.
126.
On 19 December 2013, the Tribunal issued Procedural Order No. 3 concerning production of documents, and ordered:

(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.

127.
By letter dated the same date, Claimant confirmed its availability for a Hearing during the weeks of 6 and 13 October 2014 and requested that the Tribunal take the following actions:

(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.

128.
By email dated 23 December 2013, the Tribunal directed that the Hearing 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. In addition, the Tribunal invited Respondent to comment on Claimant's requests in its letter of 19 December 2013 and, further, invited the Parties to confer and agree on the rescheduling of the deadlines for the remaining written submissions.
129.
By letter dated 28 December 2013, Respondent responded to Claimant's requests by agreeing to extend the time limit for the filing of Claimant's Reply on Liability and Response on Jurisdiction to 21 March 2014, and the deadline for production of documents and privilege or confidentiality logs, and any additional documents, to 20 February 2014. Respondent reiterated its need for a hearing of an estimated three weeks.
130.
By letter dated 3 January 2014, Claimant responded to Respondent's letter of 28 December 2013 and requested that the Tribunal fix the deadline for additional production at 10 February 2014 and confirm that the deadline for submission of Claimant's Reply and Response is 21 March 2014.
131.
By email dated 4 January 2014, the Tribunal directed the Parties as follows:

(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.

132.
By letter dated 10 February 2014, Claimant requested the Tribunal to issue an order providing confidentiality protection for documents disclosed in this proceeding on the terms set forth in Attachment 1 to its letter.
133.
By letter dated 14 February 2014, Respondent requested the Tribunal adopt the confidentiality terms as amended by Respondent in an attachment to its letter.
134.
By letter dated 19 February 2014, Claimant stated that it had no objection to Respondent's revisions to the confidentiality terms and requested the Tribunal to enter an order adopting the confidentiality terms, as revised by Respondent.
135.
On 27 February 2014, the Tribunal issued Procedural Order No. 4 adopting the confidentiality terms agreed by the Parties (the " Revised Confidentiality Terms").
136.
By email dated 20 March 2014, the Tribunal confirmed the extension of the deadline for the filing of Claimant's Reply on Liability and Counter-Memorial on Jurisdiction and Counterclaims until 18 April 2013, and the adjustment of the remaining time limits as agreed by the Parties.
137.
Following Claimant's request for production of documents of 31 March 2014 and Respondent's observations of 7 April 2014, by letter dated 9 April 2014, the Tribunal ordered Respondent to produce certain documents, under the confidentiality protection of Procedural Order No. 4.
138.
By letter dated 15 April 2014, Respondent informed the Tribunal of certain changes in its counsel of record based in London, including the removal of Mr. Mariott.
139.
Following Claimant's request of 16 April 2014 for an extension of the time limit for the filing of its Reply on Liability and Counter-Memorial on Jurisdiction and Counterclaims and Respondent's observations of 17 April 2014, by letter dated 18 April 2014, the Tribunal granted the extension that had been requested, and amended the schedule for the subsequent submissions.
140.
On 23 April 2014, Claimant filed its Reply on Liability and Response on Jurisdiction and Counterclaims (the " Reply"), together with supporting documents as well as the Witness Statements of Mr. Jean-Paul Luksic and Mr. Cory Williams, the Second Witness Statement of Ms. Boggs and the Fifth Witness Statement of Mr. Livesey.
141.
On 7 May 2014, Respondent filed a request that the Tribunal decide on production of documents. This was followed by Claimant's observations of 10 May 2014 and Respondent's response and amended request of 11 May 2014. By letter dated 14 May 2014, the Tribunal decided on production of documents.
142.
By letter of 5 June 2014, Respondent informed the Tribunal and Claimant of its intention to submit expert evidence with its Rejoinder on Liability and Reply on Jurisdiction and Counter-Claims on 25 August 2014. By letter of 18 June 2014, Claimant filed observations and opposed Respondent's request. On 21 June 2014, the Tribunal decided on the admissibility of new evidence, and informed the Parties that:

(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

143.
By email dated 24 June 2014, Respondent reserved the right to reply to the Tribunal's communication of 21 June 2014 the following week. By letter of 3 July 2014, Respondent expressed its objections to the Tribunal's decision of 21 June 2014.
144.
By email dated 7 July 2014, the Tribunal informed the Parties that Respondent's position, as stated in its letter of 3 July 2014, was noted.
145.
By letter dated 16 July 2014, Respondent informed that Tribunal of certain changes in Respondent's counsel based in Islamabad and London.
146.
Following a request from Respondent of 1 July 2014 that the Tribunal revisit the issue of the location of the Hearing to be held from 6 to 17 October 2014, Claimant's observations of 8 July 2014 and Respondent's response of 14 July 2014, on 17 July 2014, the Tribunal dismissed Respondent's request and decided that:

(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.

147.
By letter dated 14 August 2014, the Tribunal provided directions to the Parties concerning the organization of the Hearing and a pre-hearing organizational meeting (the " Pre-Hearing Organizational Meeting").
148.
On 20 August 2014, Respondent updated its counsel of record, and on 25 August 2014, so did Claimant.
149.
On 25 August 2014, Respondent filed its Rejoinder and Reply on Jurisdiction, Admissibility and Counterclaim ("Respondent's Rejoinder"), together with supporting documents as well as the Second Witness Statement of Mr. Khokhar and the witness statement of Mr. Ahmed Baksh Lehri.
150.
On 12 September 2014, Claimant filed its Rejoinder on Jurisdiction and Counterclaims ("Claimant's Rejoinder"), together with supporting documents.
151.
By letter dated 27 September 2014, Claimant filed a request for the exclusion of evidence (certain documents cited or filed by Respondent in its Rejoinder).
152.
By letter dated 28 September 2014, Claimant sought Respondent's consent to Claimant's submission of a limited number of additional exhibits. In the event that Respondent declined consent, Claimant simultaneously requested that the Tribunal decide on the admissibility of such additional exhibits as new evidence.
153.
On 30 September 2014, the Pre-Hearing Organizational Meeting was held between the Parties and the Tribunal by conference call at 3:00 p.m. CET.
154.
Following Respondent's observations of 1 October 2014, by letter of 2 October 2014, the Tribunal decided on Claimant's requests of 27 and 28 September 2014 for the exclusion of evidence and admissibility of new evidence.

2. The Hearing on Jurisdiction and the Merits

155.
The Hearing was held between 6 October 2014 and 17 October 2014 at the Hearing Center of the International Court of Arbitration of the International Chamber of Commerce at 112 Avenue Kleber, in Paris. The Hearing was transcribed by a court reporter, Mr. David A. Kasdan of B&B Reporters.
156.
At the Hearing, Claimant was represented by Messrs. Adnan Afridi, William Hayes and Mr. Ramón Jara, Tethyan Copper Company Pty Limited; Mr. Julian Anderson, Antofagasta plc; Mr. Jonathan Drimmer, Barrick Gold Corporation; Ms. Sybil Veenman, Former Senior Vice President & General Counsel, Barrick Gold Corporation; and Mr. Charles Finsbury, RLM Finsbury Ltd. (TCA Consultant).
157.
At the Hearing, Respondent was represented by Dr. Abdul Malik Baloch, Chief Minister, Balochistan; Mr. Shahid Khaqan Abbasi, Federal Minister for Petroleum and Natural Resources, Pakistan; Mr. Sanaullah Khan Zehri, Senior Minister, Mines and Minerals, Balochistan; Mr. Salman Aslam Butt, Attorney General, Pakistan; Mr. Saifullah Chatta, Chief Secretary, Balochistan; Mr. Saeed Jamali, Secretary, Mines & Mineral Development Department, Balochistan; Mr. Abid Saeed, Secretary, Ministry of Petroleum & Natural Resources, Pakistan; Mr. Nazimmudin Baloch, Advocate General, Balochistan; Mr. Liaquat Kashani, Deputy Secretary, Mines & Mineral Development Department, Balochistan; Mr. Ghalib Iqbal, Ambassador of Pakistan to France; Mr. Janbaz Khan, Deputy Ambassador of Pakistan to France; Mr. Khawaja Ahmed Hosain, Deputy Attorney General (DAG) Pakistan; Mr. Naseem Lehri, Principal Secretary; and Mr. Umis Sarpara, Personal Staff Officer.
158.
The following appeared as legal counsel for Claimant at the Hearing: Messrs. Donald Francis Donovan, Mark W. Friedman and Dietmar W. Prager and Ms. Natalie L. Reid of Debevoise & Plimpton LLP; Mr. Makhdoom Ali Khan of Fazle Ghani Advocates; and Ms. Berglind Birkland, Ms. Terra Gearhart-Serna, Mr. Bernardo Becker Fontana, Ms. Alexa von Wobeser and Ms. Doreena Hunt of Debevoise & Plimpton LLP.
159.
The following appeared as legal counsel for Respondent at the Hearing: Mr. Ahmer Bilal Soofi, ASC, Mr. Majid Bashir ASC, Mr. Kayzad Kaikobad, Ms. Marium Khalid and Mr. Faizan Warraich of ABS & Co; Ms. Cherie Blair CBE, QC, Ms. Julia Yun Hulme, Mr. James Palmer, Mr. Tom Coats and Mr. Sajid Suleman of Omnia Strategy LLP; Mr. Graham Dunning QC of Essex Court Chambers; Ms. Mahnaz Malik and Mr. Zannis Mavrogordato of 20 Essex Street Chambers; Mr. Lucas Bastin of Quadrant Chambers; Mr. Sean Aughey of 11 KBW Chambers and Mr. Matthieu Gregoire of Henderson Chambers.
160.
Each of the Parties made an oral presentation at the opening of the Hearing and distributed copies of their opening presentations.
161.
During the Hearing, the following fact witnesses gave evidence for Claimant and were cross-examined by Respondent's counsel in accordance with the procedure agreed by the Parties in the Minutes of the First Session and the Pre-Hearing Organizational Meeting: Mr. Cory Williams, Former Manager of Exploration, BHP Minerals; Mr. Jean-Paul Luksic, Chairman, Antofagasta plc; Ms. Cassie Boggs, Vice President & General Counsel, Resource Capital Funds and former Chief Executive Officer, Tethyan Copper Company Pty Limited; and Mr. Timothy Livesey, former Chief Executive Officer, Tethyan Copper Company Pty Limited.
162.
During the Hearing, the following fact witnesses gave evidence for Respondent and were cross-examined by Claimant's counsel in accordance with the procedure agreed by the Parties in the Minutes of the First Session and the Pre-Hearing Organizational Meeting: Mr. Ahmed Baksh Lehri, Former Chief Secretary, Balochistan and Member, Federal Public Service Commission, Pakistan; Mr. Amanullah Kanrani, ASC, Former Advocate General, Balochistan; Mr. Irshad Khokhar, Former DG, Ministry of Petroleum & Natural Resources, Pakistan; Mr. Babar Yaqoob Fateh Muhammad, Former Chief Secretary, Balochistan, Secretary Communication, Pakistan; and Dr. Samar Mubarakmand (NI), (HI), (SI), Former Member Planning Commission, Pakistan.
163.
By letter dated 7 October 2014, Claimant reiterated its requests of 27 and 28 September 2014 insofar as they had been denied by the Tribunal on 2 October 2014.
164.
By letter dated 8 October 2014, Respondent opposed Claimant's requests of 7 October 2014 and requested that the Tribunal refuse Claimant's invitation to reverse in these respects its decision of 2 October 2014.
165.
On 10 October 2014, the Tribunal decided on Claimant's requests of 7 October 2014.
166.
During the course of the Hearing, by letter dated 12 October 2014, Claimant informed the Tribunal that it would not cross-examine Respondent's witness Mr. Yaqoob Fateh Muhammad and had so informed counsel for Respondent; requested leave to submit a new exhibit, Respondent's National Mineral Policy 2013 ("2013 NMP") as Exhibit CE-416; and also requested leave to submit four new legal authorities, two cases from the Pakistan Supreme Court and two decisions of other Pakistan courts, all of which had already been submitted as authorities in the ICC Arbitration, as Exhibits CA-172 through CA-175.
167.
By letter dated 12 October 2014, Respondent proposed to produce Mr. Yaqoob Fateh Muhammad, as he had already arrived in Paris before Claimant determined that it would not cross-examine him, to give a brief oral testimony regarding his statement and to answer any questions the Tribunal might have. In addition, Respondent opposed Claimant's request to submit proposed Exhibit CE-416 and proposed Exhibits CA-172 through CA-175 on the grounds that, contrary to agreed agenda paragraph 11.A of the Pre-Hearing Conference Call, Claimant did not approach Respondent to inquire whether it would agree to the submission of the proposed new exhibits and there were no exceptional circumstances that justified the admission of these new exhibits.
168.
On 13 October 2014, at the Hearing, the Tribunal responded to Claimant's application and Respondent's response as follows:

(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

169.
By letter dated 17 October 2014, Respondent requested the Tribunal's consent for it to refer to two cases shown on Slide 94 without having to submit those authorities in this arbitration and to submit two new legal authorities and three new exhibits for use in its closing submissions.
170.
At the Hearing, the Tribunal admitted the use of Slide 94 in Respondent's Closing Submission, reserving its right to reject these references after having considered the application; however, the Tribunal requested that Respondent not refer in its oral closing argument to the two new legal authorities mentioned on page two of its letter or the three new exhibits mentioned there, noting that the Tribunal would make a decision on whether to admit them into the record.10 Further, the Tribunal admitted Annex 4 to the record.

3. The Post-Hearing Phase

171.
By letter dated 23 October 2014, the Tribunal invited the Parties to comment on the results of the Hearing and, in particular, address the following issues/documents:

"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.

172.
By letter dated 27 October 2014, Claimant:

(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.

173.
After reviewing the Parties' further comments, set forth in Claimant's letter of 3 November 2014 and Respondent's letter of 7 November 2014, and their positions regarding the timing of their Post-Hearing Briefs, set forth in their respective letters dated 3 November 2014, the Tribunal directed the Parties by letter dated 10 November 2014 as follows:

(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.

174.
In response to a question from the Tribunal at the Hearing, by letter dated 18 November 2014, Claimant stated the relief it seeks for Respondent's breaches of the fair and equitable treatment obligation imposed by Article 3(2), as follows:

"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."

175.
On 15 January 2015, Claimant filed its Post-Hearing Brief, together with new Exhibits CE-417 to CE-419, new Legal Authorities CA-176 to CA-179 and updated indices of exhibits and authorities, and Respondent filed its Post-Hearing Brief.
176.
On 2 March 2015, in response to a request from the Tribunal, the Parties filed their respective Statements of Costs in connection with the proceedings as of such date.

4. Respondent's Request to Submit New Evidence and Application to Dismiss the Claims

177.
On 22 June 2015, the firm of Allen & Overy informed the Tribunal and ICSID that it had been appointed as counsel to act in the quantum phase of the proceedings and for all other matters going forwards and was in the process of finalizing the formal arrangements of its instruction by obtaining a power of attorney. It requested that the Tribunal and ICSID enter Allen & Overy LLP on the record as counsel for Pakistan in place of existing counsel.
178.
In addition, Allen & Overy informed the Tribunal that "cogent new evidence of corruption on the part of TCC" had very recently been brought to their attention by Pakistan and it would shortly write to the Tribunal with further details, together with a proposed timetable for addressing this evidence.
179.
Finally, Allen & Overy requested that the Tribunal "cease all efforts towards finalising the award."
180.
By letter dated 23 June 2015, Claimant objected to Pakistan's attempt to introduce new evidence and objected even more strongly to Pakistan's request that the Tribunal depart from its mandate and cease its efforts towards finalizing the award. Claimant requested the Tribunal to reject Pakistan's request.
181.
By e-mail of 26 June 2015, the Tribunal noted the Parties' positions and informed the Parties that "[f]o r the time being, the Tribunal sees no reason to discontinue its still ongoing deliberations on this case."
182.
By letter dated 21 July 2015, Allen & Overy submitted a power of attorney dated 6 July 2015 authorizing it to represent the Government of Pakistan and further submitted, on behalf of Respondent, five witness statements signed by Messrs. Shehbaz Mandokhail, Abdul Aziz, Muhammad Tahir and Masood Malik and Sheikh Asmatullah. Respondent requested the Tribunal to admit this new evidence into the record and to determine the effect of this evidence and any related further evidence in accordance with an enclosed procedural timetable.
183.
By letter dated 29 July 2015, Respondent submitted the Urdu translations of the five English language witness statements provided under cover of its 21 July 2015 letter.
184.
By letter dated 11 August 2015, at the Tribunal's invitation, Claimant objected to Respondent's request to admit new evidence as well as its request to initiate a new phase of the proceedings to determine the effect of this evidence, claiming that Respondent had not satisfied the requirements for the admission of late evidence, namely, that the proferred evidence was unavailable earlier and that it would have a decisive impact on the outcome of the case.
185.
By letter dated 17 August 2015, Respondent commented on Claimant's objections and claimed that it was entitled to adduce the new evidence because the proceedings were not closed pursuant to Rule 38 of the ICSID Arbitration Rules, and even if the Rule 38 standard applied, the evidence satisfied it because the evidence was new and it was relevant and material to the outcome of the case. Respondent requested the Tribunal to adopt the timetable proposed in its 21 July 2015 letter and to consider the new evidence presented in that letter.
186.
By e-mail of 19 August 2015, Claimant requested leave to respond to Respondent's letter of 17 August 2015.
187.
By email dated 20 August 2015, the Tribunal granted Respondent leave to file a full submission in relation to its request by 2 September 2015 and granted Claimant the opportunity to reply to Respondent's submission and Respondent's 17 August 2015 letter, both by 7 October 2015.
188.
By letter dated 25 August 2015, addressed to Respondent, with a copy to the Tribunal, Claimant requested that Respondent provide certain information as to the circumstances under which the witness statements that Respondent seeks to submit into evidence were obtained. In addition, in light of the on-going inquiry being conducted by the National Accountability Bureau (NAB) under the National Accountability Ordinance 1999 in Pakistan, Claimant requested "unequivocal assurance 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 interfered with, monitored, taped, or otherwise compromised."
189.
By letter dated 28 August 2015, addressed to the Claimant, with a copy to the Tribunal, Respondent stated that it would provide the relevant information together with its full submission on 2 September 2015. As to Claimant's second request, Respondent stated that in case Claimant should have an application to make in this regard, it should do so, absent such an application, its statement had no place in international arbitration proceedings.
190.
On 31 August 2015, Claimant filed a request that the Tribunal:

" 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."

191.
On 2 September 2015, Respondent filed an Application to Dismiss the Claims ("Respondent's Application"), together with supporting witness statements and expert opinions.
192.
By letter dated 8 September 2015, upon invitation of the Tribunal, Respondent requested the Tribunal to reject TCC's application, and concluded by stating that "the NAB has requested counsel for Pakistan to convey to the Tribunal and to TCC that it has not and will continue not to monitor/intercept any form of privileged communication (oral or written) between TCC personnel and their legal counsel." (emphasis in original)
193.
By e-mail of 10 September 2015, the Tribunal noted Respondent's statement quoted in the previous paragraph and invited Claimant to clarify whether it wished to maintain its request as set out in its letter of 31 August 2015.
194.
By letter dated 15 September 2015, Claimant responded that Respondent's statement "ha[d] no meaningful content" and requested that the Tribunal:

"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."

195.
By letter dated 18 September 2015, Respondent noted that Claimant, in its letter of 15 September 2015, had raised arguments in relation to Respondent's Application that should have been contained in its reply to this Application due on 7 October 2015. Therefore, Respondent sought guidance from the Tribunal as to the point in time at which it should address Claimant's arguments.
196.
By email of the same day, the Tribunal informed the Parties that it did not require any further submissions from the Parties on Claimant's request dated 31 August 2015, as amended on 15 September 2015. The Tribunal further stated that, in case it decided to grant the Parties a second round of submissions on Respondent's Application, Respondent could address any contention contained in Claimant's letter of 15 September 2015 that relate to said Application in its response submission to Claimant's reply due on 7 October 2015.
197.
On 24 September 2015, the Tribunal issued Procedural Order No. 5, ordering Respondent to:

"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."

198.
By letter dated 5 October 2015, Respondent submitted witness statements of Col. Sher Khan and Mr. Muhammad Farooq, together with an Urdu translation of Mr. Bari Dad's second witness statement.
199.
By e-mail dated 6 October 2015, Mr. Makhdoom Ali Khan gave notice to the Tribunal that he had withdrawn as TCCA's counsel in this case and that his withdrawal "was not prompted by any doubts about TCCA's integrity."
200.
On 16 October 2015, Claimant filed Claimant's Opposition to Respondent's Application to Dismiss Claims ("Claimant's Opposition"), together with updated indices of Claimant's Exhibits and Authorities and a courtesy copy of its simultaneous filing in the ICC arbitration.
201.
By e-mail of 20 October 2015, Respondent requested that it be granted an opportunity to respond to Claimant's Opposition, in particular in respect of the alternative argument.
202.
By letter dated 21 October 2015, Pakistan confirmed, after inquiry of potentially relevant agencies, that "it has not monitored, intercepted or recorded any of the type of communications referred to in paragraph 25 II of Procedural Order No. 5."11
203.
On 27 October 2015, the Tribunal (i) invited Respondent to comment on Claimant's alternative argument as set out in Claimant's Opposition; (ii) requested the Parties to agree on a time schedule to address the new issues raised in Respondent's Application; and (iii) informed the Parties:

"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."

204.
By letter of 6 November 2015 to Respondent and copied to the Tribunal, Claimant referred to Respondent's declaration of 21 October 2015 and requested that Respondent:

"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."

205.
On 10 November 2015, Respondent submitted its Reply to Claimant's Opposition to Dismiss Claims ("Respondent's Reply"). On 11 November 2015, Respondent submitted a slightly revised version of its Reply that substituted the previous one due to an omitted sentence.
206.
On 12 November 2015, the Tribunal issued the following directions to the Parties:

"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.

207.
By letter of 13 November 2015, Respondent replied to Claimant's letter of 6 November 2015 and argued that it "complied with Procedural Order No. 5 in full, providing the confirmation requested with regard to monitoring intercepting or recording any of the types of communications referred to in paragraph 25(II) of Procedural Order No. 5."
208.
On 24 November 2015, the Parties submitted their respective proposals for the procedural timetable to address the new issues raised in Respondent's Application, together with comments.
209.
On 25 November 2015, the Parties submitted their respective alternative proposals for the procedural timetable, together with comments.
210.
On 27 November 2015, the Tribunal provided the Parties with possible dates for an oral hearing in late 2016 and invited the Parties to agree on a procedural timetable leading up to either of those hearing dates.
211.
On 3 December 2015, Respondent informed the Tribunal that the Parties had been unable to reach agreement on the procedural timetable and submitted its revised proposal, together with comments. On 7 December 2015, Claimant submitted its revised proposal for the procedural timetable, together with comments.
212.
On 11 December 2015, the Tribunal issued the procedural timetable to address the new issues raised in Respondent's Application.
213.
On 3 February 2016 and having given advance notice to the Parties of its intention to do so on 27 October 2015, the Tribunal provided the Parties with its Draft Decision on Jurisdiction and Liability and invited them to provide comments on errors of fact, misprints, etc. within 60 days of the decision's transmission to the Parties.
214.
On 4 April 2016, the Parties submitted their respective comments on the Tribunal's Draft Decision on Jurisdiction and Liability.
215.
On 20 March 2017, the Tribunal issued its Decision on Respondent's Application to Dismiss the Claims (with reasons to follow). For a summary of the procedural history leading up to the Tribunal's Decision on Respondent's Application to Dismiss the Claims, which is issued with reasons together with this Decision on Jurisdiction and Liability, see paragraphs 8 to 182 of the Tribunal's Decision on Respondent's Application to Dismiss the Claims (with reasons).

IV. FACTUAL BACKGROUND

216.
This section sets out a summary of the facts that are not disputed between the Parties or are otherwise established by the evidence submitted in these proceedings to the satisfaction of the Tribunal.

A. In April 2006, Claimant Became a Party to the Chagai Hills Exploration Joint Venture Agreement and the Assignee of Exploration License EL-5

217.
On 1 April 2006, Claimant became a party to the CHEJVA pursuant to a Novation Agreement with BHP Minerals International Exploration Inc. ("BHP") and the "GOVERNOR OF BALOCHISTAN, for and on behalf of the province of Balochistan, in the Islamic Republic of Pakistan (' GOB ') acting through its agent THE BALOCHISTAN DEVELOPMENT AUTHORITY, a statutory corporation created by and existing under the Balochistan Development Authority Act 1974 (' BDA ')" (the "2006 Novation Agreement"),12 The 2006 Novation Agreement was signed by

"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

218.
Pursuant to the 2006 Novation Agreement, Claimant replaced BHP as a party to the CHEJVA with a 75% interest in the unincorporated contractual joint venture established under the CHEJVA (the " Joint Venture").14 Under the terms of the 2006 Novation Agreement, all references to BHP were to be read and construed as if they were references to TCCA.15
219.
The Province of Balochistan ("GOB"), "in its capacity as a party to the CHEJVA," covenanted with TCC "to observe the terms and conditions of the [CHE] JVA which are on its part required to be observed."16
220.
Clause 7(b) of the 2006 Novation Agreement provided that the Agreement would come into effect on 1 April 2006 "upon the grant of the approval by the Licensing Authority under Rule 64 of the Rules of the transfer by BHPB of its undivided 75% interest in EL-5 to TCC."
221.
The Joint Venture received the consent of the Licensing Authority to the assignment to TCCA of Exploration License EL-5 by letter dated 8 April 2006.17 Such consent was granted on the terms and conditions contained in the CHEJVA and also on the following terms and conditions set forth in the letter:

"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

222.
By letter dated 10 April 2006, Claimant furnished the undertaking requested in item 3 of this consent letter, accepted the terms and conditions of the Licensing Authority's letter and undertook to observe and abide by such terms and conditions as well as "all other applicable conditions of the National Mineral Policy read with the Balochistan Minerals Rules, 2002 as approved/amended from time to time."19

1. TCCA, the Company

223.
TCCA had been incorporated on 28 June 2000 by Mincor Resources NL, an Australian junior mining company, ("Mincor") as a registered company under the Corporations Law of Western Australia.20 It was listed on the Australian Stock Exchange in October 2003.21
224.
In May 2006, TCCA was acquired by Atacama Copper Pty Limited, a holding company in New South Wales, Australia ("Atacama"), which is owned by Antofagasta, a leading copper mining company incorporated in London with headquarters in Santiago de Chile ("Antofagasta").22 The purchase price was AU$ 220 million (then approximately US$ 170 million).23
225.
On 22 September 2006, 50% of Atacama's shares were sold by Antofagasta to Barrick Gold Corporation, the world's largest gold mining company, incorporated and headquartered in Ontario, Canada ("Barrick"). The purchase price was US$ 123 million.24

2. Reko Diq, in the Chagai District of the Province of Balochistan

226.
Reko Diq is a small town in the Chagai District of the Province of Balochistan, Pakistan, near the borders with Afghanistan and Iran.25 The Reko Diq area is part of the Tethyan Magmatic Arc, known for its copper-gold mining potential.26 In the late 1960s and early 1970s, the Geological Survey of Pakistan ("GSP") performed preliminary surveying of mineralization in the Chagai District and concluded that there was copper and gold mineralization in the Reko Diq area.27
227.
Reko Diq contains at least 13 principal mineralized deposits, the two largest of which are copper-gold deposits called the Western Porphyries, also known by the designations H14 and H15,28 a copper orebody called Tanjeel, also known by the designation H4,29 and other orebodies in the vicinity of the Western Porphyries and Tanjeel, known as H13 and H79, as well as H8 and H35, that show potential for development.30

3. The Chagai Hills Joint Venture Agreement

i. The Object of the Joint Venture

228.
The CHEJVA established the Joint Venture between BHP and the BDA "for the purpose of conducting exploration for and, if warranted, developing any Mineral deposits lying within the Exploration Area."31 The object of the Joint Venture was agreed in Clause 3.1, which provided that

"[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."

ii. The Parties' Obligations

229.
Pursuant to Clause 3 of the CHEJVA, the BDA held a 25% Percentage Interest in the Joint Venture, while BHP [TCCA]32 was entitled to earn a 75% Percentage Interest by conducting an agreed plan of exploration activities and related studies.33
230.
Pursuant to Clauses 3.2 and 7, BHP [TCCA] had to cover all costs of exploration activities. In addition, Clauses 10.2 and 10.3 provided that BHP [TCCA] would act as the Manager for the Joint Venture, with the "day-to-day responsibility for conduct of the Joint Venture Activities."34 Pursuant to Clause 10.4, the Manager had to "conduct all Joint Venture Activities in accordance with sound internationally accepted exploration and mining methods and practices."35
231.
The Manager's responsibilities were subject to "the direction, supervision and control of the Operating Committee," which was comprised of two representatives each from BHP [TCCA] and the BDA.36 Among other duties, the Operating Committee (the " OC") established the general policies of the Joint Venture, reviewed technical reports and approved work programs and budgets submitted by the Manager.37
232.
The OC also had the power to direct BHP [TCCA] as the Manager to prepare pre-feasibility and feasibility studies.38 Pursuant to Clause 7.3, "in the event that the Operating Committee decides to undertake a Feasibility Study, BHP [TCCA] shall fund such Study provided always that BDA shall continue to provide," among other things, the "appropriate administrative support."39
233.
The BDA agreed in Articles 5 and 7 to provide, among other services, "appropriate administrative support as required for the obtaining of all leases, licenses, claims, permits or other authorities of any kind whatsoever being necessary for the conduct of Joint Venture Activities."40
234.
Pursuant to sub-clause 24.6.1, the Parties covenanted "not to engage (whether alone or in association with others), during the currency of this Agreement, in any activity in the Exploration Area except as provided for and authorized by this Agreement or as expressly agreed by the Parties."41
235.
Under sub-clauses 24.6.2 and 24.6.3, BHP [TCCA] and the BDA agreed to "be just and faithful to one another," to "do all such acts as shall be reasonably required to give effect to the purposes of [the] Agreement," and not to "do or omit to be done anything whereby the interests of the Joint Venture contemplated herein are prejudiced."42
236.
Clause 10.3 specifically required both BHP [TCCA] and the BDA to "use all reasonable endeavors... to procure that [exploration licenses] are renewed or replaced by other titles or rights in substitution for them on their expiration."43

iii. The Mining Lease and the Mining Venture

237.
Sub-clause 11.3.1 of the CHEJVA provided that within 14 days of the completion of a Feasibility Study, the Manager "shall serve a copy of the Study on each Party" and within 90 days of receiving such copy, "each Party shall advise the Manager whether it intends to participate in development of said Mineral deposit as a Mining Area."44 A party giving notice of intention to participate in development was then referred to as a "Participating Party :"

"The Parties (if any) giving notice of intention to participate in development are hereinafter collectively referred to as 'Participating Party.'"45

238.
The CHEJVA also made clear that the BDA would not be required to participate in mine development.46 Sub-clause 11.3.3 provided that if a party gave notice that it did not wish to participate in development, or failed to provide notice of intention to proceed within such 90-day period, it would be deemed to be a Non-participating Party.47
239.
Sub-clause 11.4.1 of the CHEJVA provided that mining development would proceed either "if the Parties so decide[d] pursuant to sub-clause 8.2.10(d)" (i.e., a resolution is passed by the OC by unanimous votes of all Parties to "transfer the Joint Venture Activities to the Mining Venture")48 and/or if "pursuant to sub-clause 11.3.2 one or more Participating Parties give notice of an intention that development is to proceed."49
240.
Sub-clause 11.4.2 clarified that "[w]here the BDA is a Non-participating Party, then subject both to BHPM [TCCA] obtaining all routine Government approvals required and to compliance with Clause 11.6, BHPM [TCCA] shall be entitled to undertake sole risk investment... in a mining development within any of the relevant Prospecting Licenses."50
241.
Clause 11.5 provided:

"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

242.
The condition of compliance with Clause 11.6, referred to in sub-clause 11.4.2, related to the determination of the fair value to be paid for the Non-participating Party's Percentage Interest. Sub-clause 11.6.1 provided a simple formula for the parties' determination based on the amount of exploration expense, with interest, contributed to work programs and budgets (including those relating to the Feasibility Study) and a reasonable proportion of overhead pertaining to Joint Venture Activities during the period the proposed Mining Area was under investigation.52 Sub-clause 11.6.2 provided for referral of the question of fair value to an expert (bound by the parameters referred to in sub-clause 11.6.1) if the parties were unable to reach a mutually acceptable decision pursuant to Clause 11.5 within the 120-day period.53
243.
Clause 11.7 established the time frame for establishment of the Mining Venture:

"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

244.
Sub-clause 11.8.1 defined the term "Mining Area," as follows:

"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' )."

245.
Sub-clause 11.8.2 of the CHEJVA provided that:

"[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

iv. Changes in Legislation

246.
Clause 17(b) of the CHEJVA included a mechanism to regulate the impact of changes in legislation, which provided that, if any subsequent change of "laws, regulations, rules or policies" were to "materially and adversely affect[], directly or indirectly" the economic benefits accruing to either party or the Joint Venture under the CHEJVA, "then this Agreement shall continue to be implemented in accordance with its original terms."56 Conversely, in case of any "more favourable" change, "the Joint Venture and the Party concerned shall promptly apply to receive the benefits of such Change or New Provision."57

v. Dispute Settlement

247.
Clause 15.4 of the CHEJVA provided that "any dispute" which the parties failed to resolve amicably or through voluntary expert conciliation "shall be submitted" to international arbitration before ICSID or, in the event that ICSID does "not accept jurisdiction" or "reject[s] the arbitration request," to arbitration under the ICC Rules.58
248.
Sub-clause 15.4.7 stated that, "[f]or purposes of arbitration pursuant to the ICSID Convention, the Parties agree that the transactions to which this Agreement relates constitute an investment within the meaning of Article 25(1) of the ICSID Convention."59

vi. Governing Law

249.
Sub-clause 15.4.4 of the CHEJVA provided that:

"[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

250.
Clause 16 provided that "the Law applicable to this Agreement is the law of Pakistan which the Parties acknowledge and agree includes the principles of international law."61

4. The Background of the CHEJVA

a. The CHEJVA Was Originally Entered into by BHP and the BDA in July 1993

251.
After initial discussions with the BDA starting in May 1990, BHP submitted to the BDA a draft agreement for the proposed joint venture between BHP and the "Government of Baluchistan" on 8 May 1991.62 The BDA forwarded the draft to the Government of Balochistan, Secretary Industries, Commerce and Mineral Resources, for onward transmission to the Law Department for appraisement on 29 May 1991.63 On 1 June 1991, the Secretary consented, subject to concurrence by the Finance and Law Departments, that the BDA be authorized to discuss further details with the foreign sponsors.64
252.
The draft joint venture agreement was reviewed by the law firm of Chima & Ibrahim, in July 1991, and their comments were communicated to the Chief Secretary of Balochistan.65 The law firm noted that the draft stipulated that "in the event of any inconsistency between the Agreement and any laws of Baluchistan, the terms of the Agreement shall prevail."66 The law firm questioned whether the GOB, acting within the authority conferred on it by law, could enter into such an agreement.67 The firm further noted that "if GOB were to opt out, for any reason, during or after the exploration and feasibility stage, BHPM would still remain entitled to go through the various stages, including development, envisaged by the Agreement, and there would remain an implied undertaking on the part of GOB to render necessary approvals in this regard."68 The law firm commented: "Indeed it is only reasonable that this should be so."69
253.
It appears from the correspondence, dated 29 September 1991, from Chima & Ibrahim to the BDA that neither the Government of Balochistan nor the BDA wanted to participate in the joint venture proposed by BHP. The letter stated that the Government and the BDA "would be content to receiv [e] royalties for discovered minerals; thereby obviating the need for contribution of funds to the project."70 For this reason, the law firm enclosed a draft prospecting license but offered that if it was still desired that the GOB and/or BDA enter into a joint venture with BHP, they would provide a draft joint venture agreement as well or amend the draft provided by BHP.71
254.
In response to the BDA's comments of 16 October 1991 on the draft joint venture agreement, BHP explained that "[i]t was our original intention that the Agreement be entered into with the Government of Baluchistan. The purpose of such an arrangement was to ensure that the effect of those provisions of the Mining Concession Rules which cause BHP difficulty could be overridden. When we meet, perhaps we can discuss means by which those concerns which we have in relation to certain aspects of the Mining Concession Rules might be addressed."72 BHP's concerns were discussed in meetings with the BDA, and on 4 December 1991, BHP's attorney communicated with Chima and Ibrahim regarding the open issues and stated that it would re-draft the agreement once BDA's position on these issues had been confirmed. The main outstanding issues were the mining concession rules, taxation, area of interest, exploration programme, operating committee, royalty and arbitration. With respect to the mining concession rules, BHP commented that it "would expect that the Agreement will specifically address those rules which are problematic and be the subject of a Notified Order so as to overcome the Rules."73
255.
On 28 April 1992, the National Centre for Technology Transfer, Ministry of Science & Technology advised the Chairman of the BDA that approval of the Federal Government was not necessary and "it is the Government of Baluchistan and BDA to make decision at their own accord as far as [the joint venture agreement] is concerned."74
256.
The second draft was circulated on 3 August 1992.75 This draft had been amended to provide that the parties would be BHP Minerals Asia Pacific Limited and the Baluchistan Development Authority.
257.
In the Summary for the Chief Minister, dated 11 November 1992, regarding the proposed joint venture agreement, the Additional Chief Secretary noted that:

"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

258.
The next draft was circulated on 22 March 1993, but neither Party has produced a copy of this draft.77
259.
In the continuing negotiations, BHP noted in its cover letter dated 2 April 1993 to the Chairman of the BDA, enclosing draft no. 4, that BHP "holds to the view that for this project a Joint Venture Agreement (in conjunction with requisite Notified Orders and written assurances/rules from Government) will suffice."78 BHP noted in the enclosed comments to those contained in correspondence from Chima & Ibrahim that the agreement was between the BDA and BHP only, and that the Government of Balochistan was not a party to the Agreement.79
260.
On 13 July 1993, the final draft was submitted by Mr. Ata Mohammad Jafar, Chairman of the BDA, to the Chief Minister of Balochistan for his approval for signing.80 Mr. Jafar summarized briefly the background of the joint venture and the negotiation of the agreement, noting that the agreement was proposed to be signed by the parties on 29 July 1993. He explained that since the agreement was only conditional, the BDA would have six months' time, after signing, for obtaining consents and approvals from the Federal and Provincial Governments in respect with legal and fiscal parameters; if the conditions would not be acceptable within six months, the agreement would cease. Mr. Jafar also noted that this draft had been approved by the BDA Board of Directors in its meeting of 3 July 1993.81
261.
The CHEJVA had been vetted by the Law Department of Balochistan on 24 July 1993.82
262.
On 27 July 1993, the Chief Secretary of Balochistan added his comment to the final draft, namely that the BDA should have moved the P&D and Finance Department in time to vet the agreement; this was not done. He noted that "P&D says it requires time to vet the same. However, as the agreement is to be signed on the 29th, it has been proposed to term it ' provisional ' so that amendments / modification, if any, could be made at a later stage. CM may like to approve."83
263.
The CHEJVA was signed on 29 July 1993.84 It is made between the "Governor of Balochistan, through the Chairman, Balochistan Development Authority a statutory corporation of Balochistan Province (hereinafter called the 'BDA' )" and BHP. The Agreement is signed by:

"THE BALOCHISTAN DEVELOPMENT AUTHORITY
By: /s/ ATA MOHAMMAD JAFAR
Title: CHAIRMAN,
Balochistan Development Authority"85

264.
As discussed at paragraph 291 below, the CHEJVA was made "conditional" upon the Parties' receiving from the Federal and/or Provincial Governments within six months all consents and approvals necessary under Pakistani law and all assurances as to fiscal parameters for investment in any future mining venture which either of the parties might need.86

b. In March 2000, the CHEJVA Was Amended by BHP and the BDA

265.
On 4 March 2000, BHP and the BDA entered into Addendum No. 1 to Chagai Hills Exploration Joint Venture Agreement (the "2000 Addendum") with "the GOVERNOR OF BALOCHISTAN, for and on behalf of the Province of Balochistan" (the " GOB"). The Chairman of the BDA [signature illegible] signed the 2000 Addendum on behalf of the "Governor of Balochistan" and on behalf of the BDA.87
266.
According to Claimant, on 24 December 1999, based on a recommendation from the Chief [Minister] that the proposal set forth in the summary "may kindly be approved," the Governor of Balochistan expressly authorized the Chairman of the BDA to sign the 2000 Addendum "on behalf of the Government of Balochistan."88 The Governor's authorization letter read as follows:

"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

267.
The Principal Secretary of the Governor's Secretariat had forwarded the authorization letter to the BDA on 24 December 1999 through letter No. SO-59B-4-12/99/4725, noting that "the Governor of Balochistan has been pleased to approve and sign the authorization letter allowing the Chairman... to sign the subject addendum on behalf of the Government of Balochistan."90
268.
On 28 December 1999, the Chairman of the BDA referred the draft Addendum to the Law Department, GOB, for vetting.91 On 31 December 1999, the Section Officer (Legislation) in the Law Department returned the Addendum "duly vetted."92
269.
Pursuant to Clause 2.2 of the 2000 Addendum, the GOB appointed the BDA "to act as its agent in connection with the [CHE] JVA and with full power and authority to bind the GOB in all respects and with regard to all matters pertaining to or arising out of the JVA."93
270.
In the 2000 Addendum, BHP and the BDA confirmed their intention that "the GOB is the party to the CHEJVA" and [a]ll references to the BDA's role and authority as agent for the GOB, shall be deemed to mean the GOB."94
271.
The GOB ratified all previous acts, matters and things done or performed by the BDA in connection with the CHEJVA prior to the execution of the 2000 Addendum95 and confirmed that all other provisions of the CHEJVA remained in full force and effect, subject to the amendments set out in the 2000 Addendum.96

c. In April 2000, BHP Decided to Exit the Joint Venture and Granted Mincor an Option to Enter into an Alliance for Exploration in Reko Diq

272.
By letter dated 10 April 2000, BHP advised the Governor of Balochistan ("c/- Balochistan Development Authority") that it wished to enter an Alliance Agreement with Mincor.97 Enclosing a copy of the Option Agreement, BHP further advised that Mincor "intends to create a special company (to be known as the Tethyan Copper Company or TCC) to finance and operate the Alliance Agreement and conduct exploration."98 Receipt of the letter was acknowledged on 12 April 2000 by the Balochistan Development Authority by its Chairman Mr. Ameer Ali Burq.
273.
On 28 April 2000, BHP and Mincor signed the Option Agreement (the "2000 Option Agreement"), which granted Mincor an exclusive 180-day option to enter into the Alliance Agreement with BHP regarding the exploration of Reko Diq.99 In Clause 3, the Option Agreement further set out the terms of the Alliance Agreement.
274.
On 23 June 2000, BHP and "the GOVERNOR OF BALOCHISTAN, for and on behalf of the Province of Balochistan (hereinafter referred to as ' GOB ') acting through its agent, THE BALOCHISTAN DEVELOPMENT AUTHORITY, statutory corporation created by and existing under the Balochistan Development Authority Act 1974 (hereinafter referred to as ' BDA ')" entered into a Deed of Waiver and Consent ("Deed of Waiver") for BHP's transaction with Mincor. The Deed of Waiver was signed by the Chairman of the BDA on behalf of "THE GOVERNOR OF BALOCHISTAN through its agent, THE BALOCHISTAN DEVELOPMENT AUTHORITY" and BHP100
275.
Pursuant to the Deed of Waiver, the GOB waived any and all pre-emptive rights it had under Clause 14.3 of the CHEJVA with respect to the transfers between BHP and Mincor contemplated under the Option Agreement.101
276.
The GOB further undertook to ensure that BHP would be able to transfer its interest in any licenses effectively to Mincor.102 BHP, in turn, agreed that it would remain liable in case Mincor's actions or omissions caused BHP to breach any of its obligations under the CHEJVA.103
277.
The GOB and BHP further confirmed the validity of the CHEJVA by agreeing that "all the provisions of the [CHEJVA] remain in full force and effect," and that the Deed of Waiver was a "supplement to the [CHE] JVA."104

d. In October 2000, Claimant Exercised Mincor's Option and Entered into the Alliance with BHP

278.
On 24 October 2000, TCCA, as nominee of Mincor, exercised Mincor's option to enter into the Alliance Agreement with BHP.105
279.
On 11 November 2000, the Government of Balochistan Industries Department confirmed that BHP was "entitled to transfer its interest in their joint venture with Government of Balochistan/B.D.A. including the interest in licenses to MINCOR Resources NL or its nominee, under rules 12, 14 and 15."106
280.
On 30 November 2000, TCCA established Tethyan Copper Company Pakistan ("TCCP") as its wholly-owned subsidiary in Pakistan.107
281.
On 15 October 2002, Claimant entered into the Alliance Agreement (the " 2002 Alliance Agreement") with BHP, which would allow Claimant to earn a share of BHP's 75% interest in the Chagai Hills joint venture by exploring and developing the Chagai Hills mining area held by the joint venture.108
282.
The purpose of the 2002 Alliance Agreement, according to Clause 2.1, was to "develop[] the mineral potential of the [Chagai Hill Region of Pakistan] [and] enabl [e] BHP's obligations under the CH[E]JV[A] to be fulfilled," while at the same time "allowing TCC to become a party" to the CHEJVA.109
283.
The 2002 Alliance Agreement set forth in detail the expenditure and work requirements through which TCCA would acquire BHP's interest in the Joint Venture.110 Pursuant to Clause 12, BHP retained a "Claw back Right" by which it could partially re-acquire its interests at Reko Diq in the event of a major mineral discovery.111

e. Exploration License EL-5

284.
Exploration License EL-5 ("Exploration License EL-5") had been granted by the Balochistan Licensing Authority to the Joint Venture, "M/S. BDA/BHP Chagai Hills Joint Venture", on 18 May 2002 for a period of three years (21 February 2002 to 20 February 2005). It originally covered 973.75 square kilometers (240620.20 acres) in the Reko Diq area.112
285.
On 9 April 2005, Exploration License EL-5 was renewed for the reduced area of 482.72 square kilometers (119304.95) acres for a further period of three years (21 February 2005 to 20 February 2008). On 1 December 2007, it was renewed a second time for the reduced area of 435.02 square kilometers (107516.65 acres) for the period 20 February 2008 to 19 February 2011.113

f. By July 2005, Claimant Had Earned the Right, pursuant to the 2002 Alliance Agreement, to BHP's Interest in Exploration License EL-5

286.
On 12 July 2005, BHP confirmed TCC's notification of 11 July 2005 that TCC had completed all of its obligations under the 2002 Alliance Agreement with regard to the Tanjeel project – including the expenditure of US$ 3 million in accordance with Section 7.2 thereof – and had consequently earned all of BHP's right, title and interest in the Licenses as provided in the 2002 Alliance Agreement.114
287.
On 23 November 2006, TCCA paid US$ 60 million to BHP to terminate BHP's clawback right under Clause 12 of the 2002 Alliance Agreement.115

B. Pakistan's Federal and Provincial Regulatory System

288.
Under the Pakistan Constitution, minerals are a provincial subject, except mineral oil, natural gas and nuclear minerals and those occurring in certain special areas,116 and the Provincial Governments are responsible for development and exploitation of minerals which fall in their domain.117

1. The Balochistan Mining Concession Rules, 1970

289.
At the time the CHEJVA was signed on 29 July 1993, the Mining Concession Rules, 1970 were in force in the Province of Balochistan (the " 1970 BMC Rules")118
290.
At the time of signature, BHP had identified certain consents, approvals and assurances under the 1970 BMC Rules, which BHP, in its view, needed to seek from the Government of Balochistan in order to secure rights necessary to implement the CHEJVA.119 Rule 98 of the 1970 BMC Rules authorized the Government "to relax any or all of the provisions of these Rules in cases of individual hardship and under special circumstances to be recorded in writing and on terms and conditions to be fixed by it."120
291.
The Parties agreed, in Clause 2.1, that the entry into force of the CHEJVA was conditional upon their receiving from the Federal and/or Provincial Government all consents and approvals necessary under Pakistani law within six months after signing:

"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

292.
Three months after the date of signing, on 16 September 1993, Mr. Martin Harris, Senior Lawyer for BHP wrote to Mr. Ata Mohammad Jafar, the Chairman of the BDA, as follows:

"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

293.
Attachment "A" to the letter identified 13 provisions of the 1970 BMC Rules that required relaxation to enable the Joint Venture to conduct its exploration activities.123 BHP listed the consents, approvals and assurances and described the "Application for Mining Leases" in relevant part, as follows:

(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

(8) Assignment

(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

(10) Royalty

(11) Penalties, Compensation and Cancellation

(12) Employment and Training

(13) Mining Lease.

294.
In response, on 23 October 1993, Mr. Jafar, as Chairman of the BDA, requested from the Secretary, Government of Balochistan, Industries, Commerce and Mineral Resources Department, pursuant to rule 98 of the 1970 BMC Rules, the relaxation of the 13 provisions of the 1970 BMC Rules identified by BHP.125
295.
The request was discussed on 30 October 1993 at a meeting under the Chairmanship of Additional Chief Secretary (Dev.) Mr. Ata Muhammad Jafar attended by representatives of the Planning & Development Department, the Chief Minister's Inspection Team, the Finance Department, the Industries Department, the BDA and BHP.126
296.
On 20 January 1994, by Order of the Governor of Balochistan, the Government of

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.

8. Assignment.

9. Application for Mining Lease.

10. Roility [sic].

11. Penlities [sic] compensation and cancellation.

14. Employment and training.

15. Mining Lease."127

297.
When the CHEJVA was submitted to the Chief Minister of Balochistan for his approval for the Chairman of the BDA to sign it, the Chief Secretary commented on 23 July 1993 that "as the date for signing the agreement has already been fixed (29 th July), we may authorize the Chairman B.D.A. to go ahead subject to the inclusion of a specific clause that this agreement would be of a provisional nature and any reasonable additions / alternations proposed by P & DD / F.D., in a period of one month from the signing of the agreement, shall be incorporated in the agreement."128 The Chief Minister agreed with the views of the Chief Secretary.129
298.
At a meeting of representatives of BHP and the BDA on 29 July 1993, this proviso was discussed and the parties agreed that, first, this provision was already incorporated in the agreement in Article 24.1 (amendment of the Agreement); second, since all proposed amendments were subject to approval by the Provincial Government and related departments, if there were any suggestions from the Planning and Development and Finance Department, these would be automatically subject to further discussion and would be incorporated in due course; and, third, the Agreement was in any case provisional according to Clause 2.1. Both parties signed the minutes of this meeting.130
299.
On 11 November 2000, after TCCA, as nominee of Mincor, exercised Mincor's option to enter into the Alliance Agreement with BHP on 24 October 2000, the Government of Balochistan, Industries Department, confirmed that the 1994 Relaxations of the 1970 BMC Rules it had granted to BHP "still h [e] ld good."131

2. The Pakistan National Mineral Policy, 1995

300.
In 1995, two years after the CHEJVA was signed, Pakistan enacted the National Mineral Policy, 1995 (the " 1995 NMP") to guide the formulation of new provincial mineral rules and regulations. In its Objectives, the 1995 NMP stated that "[t]he Government of Pakistan is... launching a major policy initiative in order to expand mineral sector activity mainly through private investment."132 The Objectives reiterated that minerals are a provincial subject under the Constitution, except oil, gas and nuclear minerals and those occurring in certain special areas, and that "the Provincial Government[s] are responsible for development and exploitation of minerals which fall in their domain."133
301.
Article 5.2 of the 1995 NMP provided that existing government corporations could "retain a majority share in joint venture mineral projects to be managed by the private sector: local or foreign."134 Article 11 stated that there would be no mandatory State participation; however, the Governments would encourage joint ventures between foreign and local private investors, and such joint ventures could be entered into with agencies of the Federal and Provincial Governments.135
302.
Article 8.1 of the 1995 NMP provided that the existing provincial mining statutes would be replaced by new mining regimes, which would reflect modern international standards:

"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

303.
Article 8.6.1 of the 1995 NMP provided that the holder of an Exploration License could apply for a mining lease over an area subject to a maximum of 250 square kilometers within its Exploration License in respect of the minerals discovered.137 In addition, Article 8.6.2 of the 1995 NMP provided:

"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

304.
Article 8.12.1 of the 1995 NMP confirmed the right of the Provincial Government to enter into an agreement with a mining investor to provide the investor with additional legal security. Article 8.12.1 provided:

"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

305.
Article 8.12.2 clarified that such an "agreement may cover, for example, the right of the licensee to obtain a mining lease" and "the settlement of disputes through... international arbitration."140
306.
Article 8.13 of the 1995 NMP provided that any dispute between "a foreign investor and the government arising out of or in connection with the terms of an agreement or of a granted mineral title... shall be submitted to the International Centre for Settlement of Investment Disputes (ICSID) for arbitration."141
307.
The 1995 NMP stipulated that the rate of corporate income tax would be 35% for private or non-resident companies, and for mining companies.142 In addition, the simplified and uniform royalty rate in all of the provinces would be 3% for precious metals and 2% for base metals (which included copper).143

3. The Balochistan Mineral Rules, 2002

a. Enactment of the Mineral Rules, 2002

308.
On 8 March 2002, Balochistan implemented the 1995 NMP by enacting the Balochistan Mineral Rules, 2002 (the " 2002 BM Rules").144 In the Foreword, the Director General of Mines and Minerals stated that the rules, "being considered unattractive to investors," had been revised and updated "to put in place a set of rules internationally competitive" and the 2002 BM Rules "attract the attention 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 resolution mechanism, etc., and to equitably meet the objectives of the investors as well as aspirations of the Government."145 The Province had enlisted the technical assistance of the Government of Australia in the drafting of the rules.146
309.
Rule 7 of the 2002 BM Rules provided:

"No person shall conduct exploration / prospecting operations, mining operations or reconnaissance operations except under a mineral title or mineral concession granted by the licensing authority pursuant to these Rules."147

310.
The mineral titles that could be issued, subject to the Rules, included exploration licenses and mining leases.148
311.
Rule 9(1) of the 2002 BM Rules followed Article 8.12 of the 1995 NMP149 and confirmed the right of the Provincial Government to enter into an agreement with a mining investor. Rule 9(1) provided as follows:

"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

312.
Rule 9(2) provided that the Federal Government could, at the request of the Government, be a party to, and to the negotiation of, a mineral agreement.151
313.
Rule 9(3) provided, in pertinent part, that a mineral agreement "may, in particular, make provision with respect to... the grant... of a mineral title."152
314.
Rules 9(5) and 9(6) provided for priority of the Rules over the provisions of a mineral agreement. Rule 9(5) stated as follows:

"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

315.
Rule 9(6) provided:

"Nothing contained in a mineral agreement shall be construed as absolving any party thereto from complying with any requirement laid down by law or from applying for, and obtaining, any licence, approval, permission or other document required by law."154

316.
Rule 29 of the 2002 BM Rules set forth the requirements for an application for a renewal of an exploration license. In case of a second renewal, Rule 29(2)(c)(iii) provided that an application shall not be made "unless the applicant can satisfy the authority that such a renewal is necessary for the completion of a full feasibility study of the discovered deposits and the proposed activities could not have been reasonably completed during the period of the first renewal."155
317.
Pursuant to rule 33(3) of the 2002 BM Rules, an exploration license holder must submit quarterly reports to the Licensing Authority summarizing "the location and results of all photogeological studies, imaging, geological mapping, geochemical sampling, geophysical surveying, drilling, pitting and trenching, sampling and bulk sampling and other activities undertaken by the licensee in the course of the exploration operations in, or in connection with, the exploration area covered by the exploration license."156
318.
Rule 47(1) of the 2002 BM Rules specified that an application for the grant of a mining could only be made by a corporation formed under Pakistan law.157
319.
Rules 47(2) set forth the requirements for an application for a mining lease. It provided as follows:158

"(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."

320.
As of 1 October 2010, Rule 47(2) was amended as to include a new sub-clause (n):159

"(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."

321.
Rule 48 set forth the conditions upon which a mining lease should be granted, or refused. Section 48 provided as follows:160

"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."

322.
The 2002 BM Rules confirmed that the 1970 BMC Rules "are hereby" repealed and provided that any license or lease granted or renewed before the 2002 BM Rules entered into force "shall be deemed to be granted, renewed or saved for the subsisting period in accordance with the provisions of these Rules as if these Rules were in force at the time such license or lease was granted, renewed or saved."161

b. Amendment of the 2002 BM Rules

323.
On 1 October 2010, Balochistan amended the 2002 BM Rules to add a new sub-clause (vii) to rule 48, sub-rule 3, clause (a), after sub-clause (vi), which required that a mining lease application include "a concrete proposal for value addition of the ore to be produced / exploited from the applicant's mining lease within the country."162

4. The New Pakistan National Mineral Policy, 2013

324.
In February 2013, the Federal Government enacted the new National Mineral Policy (the " 2013 NMP"). Its objective was to extend the drive to ensure the modernization of the mining sector regulatory instruments. This was to be done, inter alia, by:

" [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

325.
Article 7.8 of the 2013 NMP expanded on Article 8.12.1 of the 1995 NMP and provided for the mineral agreement to have priority over any inconsistent law or rules subsequently amended:

"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

C. Exploration Work at Reko Diq

1. BHP's Reconnaissance and Prospecting Work at Chagai

326.
After the CHEJVA had entered into force, BHP undertook reconnaissance and exploration activities in the Chagai district in the context of the Joint Venture.
327.
From 1993 to 1995, based on satellite imaging and geochemical analysis, BHP identified 10 areas for further exploration, one of which included Reko Diq.165
328.
On 22 July 1996, the Joint Venture applied for 10 Prospecting Licenses, covering a total of 1,000 square kilometers, for these 10 areas.166 On 8 December 1996, the Licensing Authority granted the requested Prospecting Licenses, including PL-4 covering the Reko Diq, entitling the Joint Venture to conduct drilling and analysis work within the license areas.167
329.
In 1997, BHP completed its first-phase drilling at Reko Diq and at five other prospecting areas. Several early drill holes at Reko Diq indicated the presence of minerals.168
330.
On 19 November 1998, the Joint Venture sought the renewal of two Prospecting Licenses for the Reko Diq area (PL-4) and the Koh-i-Sultan area and abolished the remaining eight Prospecting Licenses.169 On 5 July 1999, the Joint Venture surrendered the Koh-i-Sultan Prospecting License.170
331.
On 28 July 1999, the Joint Venture applied for a new, larger Prospecting License for Reko Diq covering an area of 973.75 square kilometers.171 On 21 February 2000, the Licensing Authority granted the new Prospecting License over the area requested and designated it "PL-14." The Licensing Authority further approved the merger of the original Reko Diq Prospecting License PL-4 with the new Reko Diq Prospecting License PL-14.172

2. TCC's Initial Exploration Work (2002-2005)

332.
After entering into the 2002 Alliance Agreement with BHP, TCC focused its exploration work in the context of the Joint Venture primarily on the copper deposit called Tanjeel, also known as H4, located approximately four kilometers east of the Western Porphyries.173 According to an Information Memorandum published by TCC in July 2005 (the " Information Memorandum"), TCC's objective was to become a major regional supplier of copper to the Asian market. Its strategy was first to develop the Tanjeel project, which contained copper, and later to develop the large Western Porphyries, which contained copper and gold.174
333.
In July 2001, TCC completed a scoping study on the Tanjeel project.175
334.
On 18 March 2002, the Government of Pakistan declared the H4 copper project an Export Processing Zone ("EPZ"), which allowed TCC to enjoy favorable tax treatment, relaxed import regulations and other benefits.176
335.
In June 2003, the scoping study was updated on the basis of additional data obtained as a result of TCC's exploration work, and a valuation study in relation to the Reko Diq project was completed.177
336.
In the Information Memorandum, TCC reported that a bankable feasibility study was being prepared for the Tanjeel project, with a targeted completion date of December 2005.178
337.
In the Quarterly Report for the period ended 31 December 2005,179 TCCA reported that it continued the exploration of EL-5, including ground magnetic surveys and drilling, and progress of the Bankable Feasibility Study on Tanjeel (formerly known as H4), in particular,

"[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

338.
TCCA also reported that the sample preparation and laboratory analysis of the Western Porphyries drilling program (H14 and H15) continued during the Quarter, and that a total of seven drill holes (comprising 2,016 meters RC181 and 2,174 meters diamond core) were sampled.182
339.
Finally, TCCA reported its total expenditures (operating expenditures plus capital expenditures) incurred up to 31 December 2005 since the grant of the Exploration License EL-5, on 18 May 2002, as US$ 12,772 million, of which US$ 2,803 million had been expended during the last quarter.183
340.
Shortly before the 2006 Novation Agreement was signed on 1 April 2006, a meeting of the OC was held on 11 February 2006. It was attended by Mr. Arbab Muhummad Yousaf, Chairman, BDA; Mr. Muhammad Farooq, Director, BDA; Mr. Tim Hargreaves, CEO, TCCP; Mr. Chris Arndt, Operations Manager, TCCA; and Mr. Zafar Iqbal, Finance Manager TCCP.184
341.
At this meeting, Mr. Hargreaves reported that, although the last meeting had been held more than a year ago, on 16 December 2004, there had been frequent contacts and dialogue within the joint venture, including key meetings on, inter alia, the proposed legal structure and project agreements for the H4 (now Tanjeel) project; the development concept, including necessary extension of the drilling program in light of recent expansion of the resource estimate; the draft Shareholders Agreement and principles of the 2006 Novation Agreement; and alternative commercial structures of the CHEJVA, such as a net profit interest for the BDA instead of direct equity.185
342.
Mr. Arndt then reported on the joint venture activities of 2005, a copy of which was appended to the minutes of the meeting.186 In response to the request from the Chairman of BDA that for future meetings the reports be circulated in advance, Mr. Arndt agreed and added that "the information contained was a summary of that contained in the quarterly reports which had already been submitted."187
343.
Mr. Arndt pointed out that 2005 had been the most active year of TCC's operations and had included an unprecedented exploration drilling program of over 23,000 meters and very extensive feasibility studies, demonstrating the potential of Reko Diq caldera with a global resource of over 2 billion tons.188
344.
Mr. Iqbal also pointed out that over 50% of the total investment during the past five years had been made during the year, reflected in the total expenditure for the year 2005 of US$ 8.04 million.189
345.
At the same meeting, TCCA reported on the status of the feasibility study on the Tanjeel project. In response to a question from the Chairman of the BDA, Mr. Hargreaves noted that at the previous OC meeting, it had been estimated that the feasibility study would be completed by July 2005. However, as discussed at the 25 July 2005 meeting, by mid-2005, it became clear that that schedule would not be met. He explained that the delay was due to a number of reasons, including growth of the overall resource, requiring additional drilling time; shortages of specialist engineering resources to complete the engineering study; global increases in the costs of materials, equipment, labor and specialist services, meaning that the overall project costs increased by more than 50% from pre-feasibility estimates and required re-working of parts of the study; and recognition of the need to broaden the original scope of the feasibility study to that of a bankable feasibility study which required commencement and advancement of negotiations with lenders for project financing, finalizing the structure for the mining venture (being an incorporated joint venture) and negotiation of agreements, including a Mineral Agreement, with the GOB and the Government of Pakistan (the " GOP") to provide fiscal stability satisfactory to lenders.190
346.
Further, Mr. Hargreaves noted that the cost estimates derived in the Engineering Design and Cost Study were significantly higher than those anticipated in the earlier scoping studies. He concluded:

"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

347.
Mr. Hargreaves outlined potential alternative solutions, one of which was "consideration of undertaking the development of the Reko Diq project as a whole, following further exploration activity on Western Porphyries and completion of an appropriate bankable feasibility study."192 These options were to be considered after completion of the Antofagasta transaction.193
348.
At this meeting, it was resolved that "the term for completion of the feasibility study be extended at least until the next Operating Committee to allow for a joint review of the results and costs to date" and that "the scope of the feasibility study includes finance and legal structures, including completion of the Shareholders Agreement and Mineral Agreement and that these aspects of the study are delayed pending the outcome of the Antofagasta transaction."194
349.
As noted at paragraph 217 above, shortly before it was acquired by Atacama, TCCA entered into the 2006 Novation Agreement with the Governor of Balochistan and BHP on 1 April 2006.

3. TCC's Expanded Exploration Work (2006-2009)

a. The Scoping Work and Study

350.
In May 2006, TCCA expanded the scope of its exploration program from Tanjeel to other ore deposits within Reko Diq, in particular the H13, H14 and H15 orebodies at the Western Porphyries. TCC also performed additional drilling at Tanjeel to explore the hypogene copper orebody below the supergene copper body on which TCC's exploration work had focused so far.
351.
In the Quarterly Report for the period ended 30 June 2006, TCCA reported:

"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

352.
TCCA listed the major milestones required to complete the Bankable Feasibility Study as including a Shareholders Agreement with the BDA, a Mineral Agreement with the GOB and GOP, obtaining required permits from the GOB and financing.
353.
As for drilling, TCCA reported that the major drill out of the Western Porphyries (H-15) was in progress. During the second quarter 2006, a total of 5,075.8 meters drilled in 15 drill holes (comprising 1,419 meters of RC and 3,656.8 meters of diamond core drilling) was completed.196
354.
Total expenditures (operating expenditures and capital expenditures) by TCCA since the grant of the Exploration License EL-5 amounted to US$ 16.76 million, of which US$ 1,663 million had been expended during the quarter.197
355.
An OC meeting was held on 15 July 2006. It was attended by Mr. Muhammad Farooq, Chairman, BDA; Mr. Azim Nousherwani, General Manager Planning, BDA; Mr. Eduardo Flores, CEO, TCCA; Mr. Tim Hargreaves, CEO, TCCP; Mr. Chris Arndt, Operations Manager, TCCA; and Mr. Zafar Iqbal, Finance Manager, TCCP.198
356.
Mr. Arndt presented a summary of joint venture activities during the first half of 2006, a copy of which was appended to the minutes of the meeting.199 He reported that a major drilling program had commenced during the past six months and that it was planned to drill approximately 70,000 meters in the Western Porphyries on H-13, H-14 and H-15 and, in addition, to drill approximately 20,000 meters for H-4, H-35, H-36, H-8, Bukit Bashir and possibly H-79. He reported, further, that in addition to the drillout of H-13, H-14 and H-15, other work on the pre-feasibility study on the Western Porphyries had commenced, or would commence shortly, including geotechnical studies, metallurgical studs, hydrological studies and infrastructures studies.200 Finally, Mr. Arndt reported on the status of the Bankable Feasibility Study on the Tanjeel orebody and stated that work had been suspended, pending the completion of the drill out of the Western Porphyries.201
357.
Mr. Arndt reported that as a result of the drilling carried out at Reko Diq over the past year, the global resource for Reko Diq had been calculated as follows:202

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)

358.
At this meeting, Mr. Flores also gave a review of the pre-feasibility study. He stated that:

"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

359.
At this OC meeting, the Joint Venture partners resolved that "the pre-feasibility studies as outlined in the work program should commence immediately and that this program should include both the drill out of the Western Porphyries as well as drilling to upgrade the resources of the other significant ore bodies including the hypogene copper ore body below the Tanjeel supergene deposit."204
360.
On 18 July 2006, the Licensing Authority advised TCCA to apply for a mining lease of H-4 (Tanjeel), stating:

"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

361.
On 12 September 2006, the Licensing Authority sent a reminder letter to TCCA, stating that "[a]fter lapse of 5-years, we believe TCC must have finalized the feasibility study on H4 prospect, incurring reported expenditure of US$ over 10 million" and requesting TCC to provide a copy of the feasibility study of the H-4 project, in accordance with the Balochistan Mineral Concession Rules, "on priority."206
362.
On 28 September 2006, TCCA responded to the Licensing Authority's request as follows:

" [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

363.
In the Quarterly Report for the period ended 31 December 2006, TCCA reported that work on the Tanjeel Bankable Feasibility Study had been suspended pending the completion of the drill-out of the Western Porphyries and the completion of a Pre-Feasibility Study on the broader Reko Diq resource. It listed the major milestones to complete the Bankable Feasibility Study as follows: Shareholders Agreement with the BDA; Mineral Agreement with GOB and GOP; reaching agreement with the GOB and the GOP on the implementation of modalities for critical infrastructure (e.g., power, roads and training institutions); obtaining necessary permits and approvals from the GOP and the GOP to implement the project; and completion of financing.208
364.
TCCA reported that drilling continued on the Western Porphyries complex (H-13, H-14 and H-15) and recommenced on the Tanjeel deposit during the quarter; a total of 12,146.9 meters drilled in 32 drill-holes (comprising 5,069.5 meters of RC and 7,077.4 meters of diamond core drilling) was completed.209
365.
According to the latest information, the current resource at the Western Porphyries (H-14 and H-15 only) stood at:

"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

366.
TCCA reported its total expenditures (operating expenditures plus capital expenditures) as follows: US$ 23,493 million since grant of license, and US$ 4,153 million during the fourth quarter 2006.211
367.
An OC meeting was held on 24 February 2007. It was attended by Mr. Muhammad Farooq, Chairman, BDA; Mr. Tim Hargreaves, Board Advisor, TCCA; Mr. Tim Livesey, Project Director, TCCA; Mr. Chris Arndt, Operations Manager, TCCA; Mr. Zafar Iqbal, Commercial Manager, TCCA; and three observers, Mr. Gerhard Von Borries, Project VP, Antofagasta; Mr. Phil Wilson, Project Engineer, Barrick Gold; and Mr. Maqbool Ahmad, Acting Secretary Mines, Balochistan.212
368.
At this meeting, Mr. Livesey gave a summary of joint venture activities during 2006, a copy of which was appended to the minutes of the meeting.213 He then presented an outline of the 2007 work program, a copy of which was also attached to the minutes. Mr. Livesey stated that "since the Tanjeel Feasibility Study was commenced in 2005 and its suspension in early 2006, there had been major changes to the project including the resource upgrade of the Western Porphyries as well as the increase in worldwide mining costs which had increased the Tanjeel project costs and made the economics less attractive. It was necessary to study a range of development options in light of the new information."214 He explained that:

"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

369.
Mr. Livesey stated that the object was to complete the study before the end of 2007.216
370.
Mr. Livesey commented on what he called the "GOB's [expression of] concern at the lack of submission of reports for the previous Tanjeel Feasibility Study."217 He stated that the engineering reports, all of which were in draft form at the point of suspension, had been delivered to the BDA in early 2006. He added that it could be misleading to submit these draft reports to the GOB since they would effectively become public documents containing outdated information, particularly on costs, and, given that they contained over 3,000 pages of information, there was a risk of extracts of information causing further confusion. He stated that "this created a difficult situation for GOB, particularly in light of the Constitutional Petition in which it was alleged that very little work had actually been undertaken."218 It was resolved that the draft reports would remain in the custody of the BDA and not be formally released but that the GOB specialists would be welcome to review the reports in the GOB's office if required to verify the extent of work that had been done.219
371.
The OC resolved that:

"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

372.
During the next three quarters, TCCA reported that drilling continued on the Western Porphyries complex (H-14 and H-15). In the first quarter, TCCA reported that the aim of its ground magnetic survey was to complete all of EL-5 on at least 100 meter spaced lines to identify any areas worthy of prospecting outside the Reko Diq caldera and also to gain an accurate visual appreciation for the structure of the Reko Diq caldera and to understand the spatial distribution of the porphyry systems that were located within.221 In addition, in the second quarter, two concurrent geological mapping programs had identified two new prospects, Siapat and Nawar, located approximately four kilometers from the Bukit Pasir complex, and re-mapped the H-13 complex area for drilling in the coming quarter.222 In the third quarter, drilling was also conducted in the H-13 complex, and new prospects were identified north of Koh-i-Dalil, near the Humai village and in the Sam Koh area (southeast of Koh-i-Dalil). Samples were collected from these areas for pathfinder assay.223
373.
TCCA reported on its drilling program as follows:

Quarter ended Total Meters Drill-holes Reverse Circulation (RC) (meters) Diamond Core (meters)
31 March 2007224 19,735.8 36 10,549.1 9,186.7
30 June 2007225 11,994.3 7,873.5 4,120.8
30 September 2007226 16,259.79 3,766.5 12,493.29

374.
TCCA also reported total expenditures (operating expenditure plus capital expenditure) for the three quarters as follows:
Quarter ended Total expenditures since grant of Exploration License EL-5 Total expenditures during quarter
31 March 2007227 US$ 29,012 million US$ 5,519 million
30 June 2007228 US$ 36,585 million US$ 7,573 million
30 September 2007229 US$ 48,039 million US$ 11,454 million
375.
TCC prepared the Scoping Study jointly with Hatch Ltd., a leading engineering consultancy. It aimed to build and evaluate a matrix of different project configurations based on, inter alia, various locations, mine sizes, processing technologies, power generation methods and transportation routes, and then to identify the most promising options for the development of the Reko Diq project.230
376.
Specifically, the Scoping Study examined thirteen final project development options, each with estimated cost and revenue projections. The Final Scoping Study Report, dated 12 October 2007, recommended that four of the options examined be promoted for further consideration: Three configurations at the Western Porphyries based on different processing capacities, and one configuration at Tanjeel.231

b. The 26 October 2007 OC Meeting

377.
The next OC meeting was held on 26 October 2007. It was attended by Mr. Mohammed Farooq, Chairman, BDA; Mr. Barry Flew, CFO, TCCA; and Mr. Eduardo Flores, CEO, TCCA. In addition, certain persons attended by invitation: Mr. Maqbool Ahmed, Secretary, Mines & Minerals, GOB; Col. Sher Khan, Corporate Security and External Affairs Manager, TCC; Mr. Qasi Shujatt, HR Manager, TCC; Mr. Asad-Ur-Rehman, Senior Project Geologist, TCC; and Mr. Francisco Charlin, Corporate Counsel, Antofagasta.232
378.
At the meeting, TCCA, as Manager, represented by Mr. Flew and by Mr. Flores (for the relevant period), presented a summary of activity carried out and expenditure incurred up to September 2007. They highlighted that work had been continued to determine the extent of reserves with the Western Porphyries as the "main prize" and, possibly, to develop other ore bodies on a smaller scale as a starter project. Following detailed mapping, the focus of the geological team had shifted primarily to the drill out of the resource at the Western Porphyries. In addition, the scoping study for the pre-feasibility and feasibility study had been carried out.233
379.
According to the minutes of the meeting, the parties agreed that there was significant evidence that ore discovered in EL-5 could lead to a larger mining project than the one that was originally envisaged; however, the joint venture faced a number of technical and other challenges which would affect its ability to complete a full feasibility study during the first renewal period. These challenges included, inter alia :

"- After new work and additional analysis the Tanjeel project found not to be economic on its own.

- Only additional work outside the Tanjeel area by the JV developed a play for a larger scale project based on the newly discovered WP deposits, which discoveries also transformed the Tanjeel ore deposits to a potential economic and value adding activity.

- Progress on some pre-feasibility work was made during the first renewal period but scoping study level analysis on WP could only be completed in the Q3 of 2007 thus positioning the JV to immediately proceed to the next step – commencement and completion of a full feasibility study.

- Insufficient time available during the first renewal period for completion of elements of a feasibility study of this type – such as environmental impact assessments, sustainability of water resources, availability of power, transport and logistics.

- Challenge to the JV's right to EL-5 which was subject to proceedings in the Balochistan High Court and which is now pending appeal in the Supreme Court.

- Inability to make progress on the Mineral Agreement over the past four months.

- Delay in obtaining Government approvals for TCC to open its branch office in Pakistan."234

380.
According to the minutes of the meeting, "[i]n view of the potential for developing the project, TCC and BDA agreed that the JV through TCC as Manager should move immediately to commence and complete feasibility study. In this connection TCC presented a work plan and preliminary budget for full feasibility study on option 72 ktpd and parallel pre-feasibility study on expansion options. The parties agreed the conceptual preliminary budget of US$ 106.5 million TCC was authorized to make carry out the feasibility."235
381.
At the meeting, TCC pointed out that Exploration License EL-5 was to expire in February 2008 and that an application for renewal of the license had to be filed with the Government of Balochistan by 22 November 2007. TCC stated, inter alia, that "given the wide area over which discoveries had been made and the time that would be needed to carry out the feasibility study to tie all the deposits together, the ongoing challenges to EL 5 in the Courts of Pakistan and the expected additional delays in finalization of the Mineral Agreement," it recommended that the request for renewal be over 90% of the existing EL-5 area and that the term of renewal be three years. According to the minutes, BDA endorsed the recommendation and TCC was given "full authority" to apply for such renewal. In addition, "BDA committed its full support to the JV's case before the Government of Balochistan."236
382.
On 2 November 2007, TCCA, on behalf of the joint venture, applied to the Director General, Mines & Minerals, GOB for a renewal of Exploration License EL-5 for revised/ reduced plans of 435.02 square kilometers (107516.65 acres) for a further period of three years (20 February 2008 to 19 February 2011).237
383.
Rule 29(2)(c)(iii) of the 2002 BM Rules required that an application for the renewal of a license shall not be made:

"in the case of a second renewal, unless the applicant can satisfy the authority that such a renewal is necessary for the completion of a full feasibility study of the discovered deposits and that the proposed activities could not have been reasonably completed during the period of the first renewal."238

384.
In its application of 2 November 2007, TCCA enclosed a justification for its application, summarizing its activities carried out during the first renewal period and explaining a number of technical and other challenges which affected its ability to complete a full feasibility study during the first renewal period. TCCA explained its request for the extension as follows:

"The Applicant at a Joint Operating Committee meeting held on October 26, 2007 approved the immediate commencement of the Feasibility Study and continued field work in the area and proposed a budget of over US$ 100 million in this regard.
With EL-5 to expire in February, 2008 the Applicant will be able to commence activities for drawing up the Feasibility Study in the first renewal period but will not be able to complete the same given the time that will be needed to carry out the Feasibility Study to tie the development of all the deposits, which are spread over a large area of EL-5 (some of which are still being reviewed through further drilling work) together into one mining project. Additional work is also need[ed] to better understand the deep structure as possible interconnection of deposits significantly increases the resource size. This taken together with the ongoing challenges to EL 5 in the courts of Pakistan and the expected additional delays in the finalization of the Mineral Agreement, the Applicant considers that it requires a renewal for the full three year period over 90% of the existing EL-5 area to be in a position to fully develop the discoveries.

The Balochistan Development Authority is fully aware of the grounds and reasons on which the renewal is being sought and fully endorses the request."239

385.
TCCA also attached as Annexure C "Work Programme and Budget for Second Renewal Period" outlining its proposal for the Feasibility Study and describing its Projected Exploration Program for 2008 to 2011, which focused on the Reko Diq Complex, the Kohi Dalil Complex, the infrastructure areas and the EL-5 Region. The proposed budget for the second renewal period totaled US$ 106,500,500.240
386.
On 1 December 2007, the Licensing Authority granted the joint venture's application for the second renewal of Exploration License EL-5.241

c. Continuing Exploration and Engineering Work in Support of the Pre-Feasibility and Feasibility Studies

387.
After the 26 October 2007 OC meeting, TCCA started work on a Pre-Feasibility Study for Initial Mine Development for a base case project at the Western Porphyries and an Expansion Pre-Feasibility Study for expansion of the project to include Tanjeel and other deposits within Reko Diq.242
388.
Thereafter, until completion of the Pre-Feasibility Study for Initial Mine Development in July 2009,243 TCCA continued its drilling program and reported on a quarterly basis on its progress, as follows:

Quarter ended Total Meters Reverse Circulation (RC) (meters) Diamond Core (meters)
31 December 2007244 Work carried out included drilling (H-13, H-14 and H-15), mapping of porphyries (H-8, H-14 east and H-15 west), drawing cross sections and continuation of ground magnetic survey.
29,752.5 10,223.35 19,529.15
31 March 2008245 Work carried out included drilling (H-14 and H-15), mapping of porphyries, drawing cross sections and continuation of the pre-feasibility, feasibility study and hydro investigation programme.
31,491.67 7,393.1 24,098.57
30 June 2008246 Work carried out included resource drilling (H-14 and H-15), geotechnical drilling, engineering drilling, condemnation drilling, mapping of porphyries, drawing cross sections, continuation of the pre-feasibility, feasibility study, hydro investigation programme, ESIA and environmental baseline studies.
37,101.07 4,872 32,229.07
30 September 2008247 Work carried out included resource drilling (H-14 and H-15), geotechnical drilling, engineering drilling, condemnation drilling, mapping of porphyries, drawing cross sections, continuation of the pre-feasibility, feasibility study, hydro investigation programme, ESIA, HIA (health impact assessment) and environmental baseline studies.
37,689.13 9,483 28,206.13

31 December 2008248 Work carried out included resource drilling, geotechnical drilling, engineering drilling, condemnation drilling, mapping of porphyries, drawing cross sections, continuation of the pre-feasibility, feasibility study, hydro investigation programme, ESIA, HIA (health impact assessment) and environmental baseline studies. Drilling in WP, Tanjeel, H-13, H-14, H-8, H-35.
38,048.09 17,367.8 20,680.29
31 March 2009249 Work carried out included infill resource drilling, geotechnical drilling, engineering drilling, condemnation drilling ongoing, metallurgical drilling ongoing (H-13, H-4 Tanjeel, WP), environmental drilling, geological mapping, drawing cross sections, continuation of the pre-feasibility, feasibility study, hydro investigation programme, ESIA, HIA (health impact assessment) and environmental baseline studies.
26,687.62 10,572.65 16,114.97
30 June 2009250 Work carried out included infill resource drilling, geotechnical drilling, engineering drilling, condemnation drilling (H-8 west), metallurgical drilling ongoing (H-13, H-14 and H-15 and Tangeel), environmental drilling, geological mapping, drawing cross sections, continuation of the pre-feasibility, feasibility study, hydro investigation programme, ESIA, HIA (health impact assessment) and environmental baseline studies.
Drilling in H-13, H-14 and H-15, H-8 west, H-35 complex and condemnation areas.
11,857

389.
TCCA also reported its total expenditures (operating expenditure plus capital expenditure) for the last quarter of 2007, the four quarters of 2008 and the first two quarters of 2009, as follows:

Quarter ended Total expenditures since grant of Exploration License EL-5 Total expenditures during quarter
31 December 2007251 US$ 61,108 million US$ 13,069 million
31 March 2008252 US$ 73,338 million US$ 12,230 million
30 June 2008253 US$ 108,969 million US$ 36,631 million
30 September 2008254 US$ 131,054 million US$ 22,085 million
31 December 2008255 US$ 146,837 million US$ 15,783 million
31 March 2009256 US$ 177,234 million US$ 30,397 million
30 June 2009257 US$ 195,464 million US$ 18.23 million