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Tethyan Copper v. Pakistan

Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1
Nature of the proceedings:
International
Type of case:
Investor-State
Economic sector:
Mining and quarrying
Mining of metal ores
Date of introduction:
12 Jan 2012
Status of the case:
Decided in favor of investor
Claimant’s country of origin:
Australia
Respondent:
Pakistan
Institution:
ICSID (International Centre for Settlement of Investment Disputes)
Rules of arbitration:
Seat of arbitration:
Washington D.C.
Applicable treaties:
Australia - Pakistan BIT...

Documents of the case

profile picture Stanimir A. Alexandrov Appointed by the investor
profile picture Klaus M. Sachs President
profile picture Leonard Hoffmann Appointed by the State

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

Decision on the Respondent’s Application to Dismiss the Claims (with reasons)

I. INTRODUCTION AND PARTIES

1.
This Decision addresses an Application to Dismiss the Claims submitted by Respondent on 2 September 2015, after the Hearing on Jurisdiction and the Merits had been held in October 2014 and the Parties had filed their Post-Hearing Briefs on 15 January 2015. On 20 March 2017, the Tribunal issued its Decision on Respondent's Application to Dismiss the Claims (with reasons to follow), dismissing Respondent's Application in its entirety. The Tribunal now provides the reasoning for its Decision on Respondent's Application to Dismiss the Claims of 20 March 2017.

A. Claimant

2.
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

3.
Islamic Republic of Pakistan, hereinafter referred to as "Respondent" or "Pakistan".
4.
Claimant and Respondent are hereinafter referred to individually as a "Party" and collectively as the "Parties".

II. THE ARBITRAL TRIBUNAL

5.
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

6.
By letter of 22 June 2015, Allen & Overy LLP (Allen & Overy) informed the Tribunal that Pakistan had appointed Allen & Overy as counsel to act in the quantum phase of these proceedings and for all other matters going forwards. In its letter Allen & Overy further noted that cogent new evidence of corruption on the part of TCC had very recently been brought to their attention by Pakistan, requesting the Tribunal to cease in the meantime all efforts towards finalizing its award.
7.
By letter of 23 June 2015, Claimant objected to Pakistan's attempt to introduce new evidence, particularly of alleged "corruption" "nearly four and a half years after submission of the Mining Lease Application, more than three and a half years after the commencement of this arbitration, and more than eight months after the liability hearing (which, [they] note, was followed by the submission of post-hearing briefs)." Claimant further requested the Tribunal to reject Pakistan's improper request to halt its work on the decision.
8.
On 25 June 2017, the Tribunal acknowledged receipt of Allen & Overy's communication of 22 June 2015, and of Claimant's letter of 23 June 2015, noting that the Tribunal saw no reason to discontinue its still ongoing deliberations on this case.
9.
On 21 July 2015, Respondent filed a request for the Tribunal to decide on the admissibility of five witness statements signed by Mr Shehbaz Mandokhail, Sheikh Asmatullah, Mr. Abdul Aziz, Mr. Muhammad Tahir, and Mr. Masood Malik, that it submitted together with its request, and to adopt a new timetable for addressing the new evidence. A copy of Power of Attorney authorizing Allen & Overy to represent the Government of Pakistan in this matter was also attached.
10.
On 11 August 2015, Claimant filed observations on Respondent's request of 21 July 2015, requesting the Tribunal to rule that the additional evidence should not be admitted.
11.
On 17 August 2015, Respondent filed a response to Claimant's observations of 11 August 2015.
12.
On 20 August 2015, the Tribunal fixed a procedural schedule for the Parties' subsequent submissions on Respondent's request for admissibility of new evidence of 21 July 2015, as follows:

"Upon careful review of Respondent's letter dated 21 July 2015, Claimant's letter dated 11 August 2015 and Respondent's letter dated 17 August 2015, the Tribunal has decided to grant Respondent leave to file a full submission by 2 September 2015. Claimant will then have the opportunity to reply to Respondent's submission by 7 October 2015; therefore, the Tribunal asks Claimant to reserve its reply to Respondent's letter dated 17 August 2015, as requested by e-mail dated 19 August 2015, for the time being and include any comments that it wishes to make in its reply. The Tribunal reserves all further decisions on the admissibility of the new evidence as well as on any adjustment of the further proceedings until it has received the Parties' submissions."

13.
By letter of 25 August 2015, addressed to Respondent and copying in the members of the Tribunal, Claimant requested that Respondent provide certain information as to the circumstances under which any of the witness statements that Respondent sought to submit to the Tribunal were obtained. In addition, Claimant requested an "unequivocal assurance that the confidentiality of communications, in the form of e-mails, phone calls, in-person conversations, or otherwise, between and among its personnel and 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."
14.
By letter of 28 August, 2015, addressed to Claimant and copying in the members of 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 r egard, it should do so; absent such an application, its statement had no place in international arbitration proceedings.
15.
On 31 August 2015, Claimant filed a request for the Tribunal to decide on confidentiality of communications. In its letter, Claimant requested the Tribunal to direct Pakistan "to provide unequivocal assurances that the confidentiality of communications, in the form of e-mails, phone calls, in person conversations, or otherwise, between and among TCC's personnel and its attorneys, 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 in the event that Pakistan continued to refuse to provide such assurances, Claimant further requested that the Tribunal direct Pakistan "to identify when, how, and which communications between and among TCC's personnel and its attorneys, both within and without Pakistan, had been monitored, recorded, intercepted, or otherwise compromised."
16.
On 2 September 2015, Respondent filed an Application to Dismiss the Claims ("Respondent's Application"), together with the following accompanying documentation: (i) Judge Schwebel's Expert Opinion ("Schwebel Opinion") with Exhibits SS-01 to SS-23, (ii) Exhibits RE-170 to RE-204, and (iii) eight Witness Statements (from seven witnesses) of Abdul Aziz, Masood Malik, Shehbaz Khan Mandokhail, Muhammad Tahir, Sheikh Asmatullah, Abid Mustikhan, Bari Dad (first and second).
17.
Upon invitation of the Tribunal, on 8 September 2015, Respondent filed observations on Claimant's request of 31 August 2015, and concluded by stating that "the NAB has requested that counsel for Pakistan 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).
18.
On 10 September 2015, the Tribunal acknowledged receipt of Respondent's letter of 8 September 2015, noting Respondent's statement quoted in the previous paragraph, and invited Claimant to clarify by 15 September 2015, whether it wished to maintain its request as set out in its letter of 31 August 2015.
19.
On 15 September 2015, Claimant filed a response to the Respondent's further observations of 8 September 2015.
20.
On 18 September 2015, Respondent noted that Claimant, in its letter of 15 September 2015, had raised arguments in relation to Respondent's Application to Dismiss the Claims 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.
21.
On 21 September 2015, the Tribunal acknowledged receipt of the Parties' respective communications of 15 September 2015 and 18 September 2015, and informed the Parties that the Tribunal would shortly issue a Procedural Order on Claimant's request, and that in the meantime it did not require further submissions from the Parties on that matter.
22.
On 24 September 2015, the Tribunal issued Procedural Order No. 5 concerning confidentiality of communications. The Tribunal ordered 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."

23.
On 5 October 2015, Respondent supplemented its Application to Dismiss the Claims of 2 September 2015, with two Witness Statements signed by Col. Sher Khan and Mr Muhammad Farooq and certain accompanying documents referred to in those statements.
24.
On 6 October 2015, Claimant requested that the Tribunal grant an extension of the deadline to file its response until 16 October 2015, to permit Claimant to consider the two new Witness Statements filed by Respondent on 5 October 2015. By e-mail of the same date, the Tribunal granted Claimant's extension request.
25.
By letter of 6 October 2015, Mr. Makhdoom Ali Khan informed the Tribunal that he had withdrawn as TCCA's counsel in this case, noting that his withdrawal was not prompted by any doubts about TCCA's integrity.
26.
On 16 October 2015, Claimant filed its (first) Opposition to Respondent's Application for Dismiss Claims, together with updated indices of Claimant's Exhibits and Authorities, and a courtesy copy of Claimant's simultaneous filing in the ICC arbitration. Claimant primarily requested that Respondent's Application be rejected in its entirety. In the alternative, it requested that the Tribunal: (i) bar Respondent from raising any additional allegations; (ii) proceed to issue its Decision on Jurisdiction and Liability on the basis of the extensive evidence and arguments already presented by the Parties through and including the Post-Hearing Briefs filed in January 2015; (iii) defer further proceedings and a decision on Respondent's Application pending issuance of its Decision and the conclusion of Claimant's investigation into Respondent's allegations; and (iv) issue the orders sought be Claimant to protect the integrity of the arbitration and reduce the manifest unfairness Respondent's conduct has caused.
27.
By letter of 27 October 2015, the Tribunal conveyed the following directions to the Parties:

"The Tribunal has duly considered Respondent's Application to Dismiss the Claims dated 2 September 2015 ('Respondent's Application') and Claimant's Opposition to Respondent's Application to Dismiss Claims dated 16 October 2015 ('Claimant's Opposition') and has come to the following decision for the time being:

1. Respondent is invited to comment on Claimant's alternative claims, as set out under Sections III.B.2 through III.B.4. (paras. 130-151) of its Opposition, by Tuesday, 10 November 2015.

2. The Parties are requested to agree on a time schedule in order to address the new issues raised in Respondent's Application, and to submit and agreed proposal by Tuesday, 17 November 2015.

3. 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."

28.
On 10 November 2015, Respondent filed its first Reply to Claimant's Opposition to Respondent's Application to Dismiss Claims. Together with its submission Respondent provided a copy of Respondent's simultaneous filing in the ICC proceedings, for the Tribunal's information.
29.
By letter of 12 November 2015, the Tribunal conveyed the following directions to the Parties:

"Upon review of Respondent's Reply to Claimant's Opposition to Respondent's Application to Dismiss Claims ('Respondent's Reply'), the Tribunal gives the following directions:

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.

On this basis, the Tribunal asks the Parties to try reaching an agreement on the further time schedule to address the new issues addressed in Respondent's Application. The time limit for reaching such agreement is extended until Tuesday, 24 November 2015.

In case the Parties are unable to agree on a time schedule, the Tribunal would be available for a procedural hearing to be held by telephone conference, unless both Parties prefer to have a hearing in person, and then fix the time schedule thereafter."

30.
By e-mail of 24 November 2015, Respondent informed the Tribunal that the Parties had agreed on all but two issues concerning the time schedule and submitted the Parties' respective proposals. By e-mail of the same day, Claimant commented on Respondent's e-mail and submitted an alternative proposal regarding the time schedule. By e-mail of 25 November 2015, Respondent commented on Claimant's alternative proposal and submitted an alternative counter-proposal. Claimant responded on the same day, noting that any schedule depended on the Tribunal's actual availability, and requested that the Tribunal advise the Parties on its availabilities for a one-week/two-week hearing during the fall of 2016.
31.
By e-mail of 27 November 2015, the Tribunal informed the Parties that it had no availability for a one‐week hearing in November or December 2016. The Tribunal proposed to hold the hearing either from 10 to 14 October 2016 (with 15 October held in reserve) or from 24 to 28 October 2016 (with 29 October held in reserve). The Parties were invited the Parties to agree on a mutually acceptable timetable leading up to either of those hearing dates and to inform the Tribunal about their agreement or to present their proposals to the Tribunal by Friday, 4 December 2015.
32.
By e-mail of 3 December 2015, Respondent informed the Tribunal that the Parties had conferred but had been unable to reach agreement, and submitted the Parties' respective positions regarding the procedural calendar for the remaining proceeding, including a hearing on the new evidence.
33.
On 7 December 2015, Claimant replied to Respondent's e-mail of 3 December 2015, concerning the procedural calendar.
34.
By e-mail of 11 December 2015, the Tribunal informed the Parties that it had decided on the procedural timetable as set out in the table included in its e-mail.
35.
On 12 January 2016, Respondent filed, for the Tribunal's information, a copy of its submission before the ICC Tribunal of January 11, 2016 (Respondent's Supplementary Counter-Memorial), together with accompanying documents.
36.
On 15 January 2016, the Tribunal informed the Parties: (i) that 14-18 November 2016 was to be held in reserve "in case it turns out that one week will not be sufficient for the Hearing on the new evidence," and (ii) that the Tribunal was in the process of finalizing the draft Decision on Jurisdiction and Liability and would transmit it to the Parties, as announced, shortly.
37.
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 (the "Draft Decision") and invited them to provide comments on errors of fact, misprints, etc. within 60 days of the decision's transmission to the Parties. For the full procedural history of ICSID Case No. ARB/12/1 from Claimant's filing of the Request for Arbitration on 28 November 2011 to the Tribunal's issuing a procedural timetable to address the new issues in Respondent's Application on 11 December 2015, see paragraphs 5 to 212 of the Draft Decision.
38.
On 11 March 2016, Claimant filed its second Opposition to Respondent's Application to Dismiss the Claims ("Claimant's Opposition"), together with: (i) Exhibits CE-428 to CE-491; (ii) Legal Authorities CA 201 to CA 260; (iii) updated indices reflecting the additional exhibits and authorities submitted since Claimant's Opposition of October 16, 2015; and (iv) Witness Statements of Timothy Hargreaves, Eduardo Flores, Hugh R. James, and Peter Jezek; the Third Witness Statement of Catherine "Cassie" Boggs; and the Sixth Witness Statement of Timothy Livesey.
39.
Also on 11 March 2016, Claimant filed a request for the Tribunal to decide on confidentiality of evidence ("Claimant's Application for a Protective Order"), and a request for the Tribunal to decide on the admissibility of new evidence ("Claimant's Application for a Ruling in Limine"), both dated 11 March 2016 .
40.
On 12 March 2016, the Tribunal acknowledged receipt of (i) Claimant's Application for a Protective Order, including its request for an interim order pending the Tribunal's final resolution of Claimant's Application; and (ii) Claimant's Application for a Ruling in Limine, both dated 11 March 2016.

The Tribunal further noted that Claimant had asked the ICSID Secretariat not to transmit Claimant's Response to Respondent's Application to Dismiss the Claims to Respondent, pending the earlier of (i) the Tribunal's ruling on Claimant's request for an interim order; or (ii) confirmation from Respondent that it will comply with the terms of the requested Protective Order on an interim basis pending the Tribunal's decision on Claimant's Application for a Protective Order. The Tribunal invited Respondent to comment on Claimant's request for an interim order or a confirmation from Respondent with the above-mentioned content, by 16 March 2016.

41.
On 16 March 2016, Respondent filed observations on Claimant's Application for a Ruling in Limine, including a request to extend the time limit for exchanging the Parties' disclosure requests.
42.
On 17 March 2016, the Tribunal granted the extension request; requested Claimant "to confirm that it no longer requests an interim order on its Application for a Protective Order because the Parties have agreed that, pending the Tribunal's decision on Claimant's Application for a Protective Order, Respondent will circulate Claimant's Response only to the Permitted Recipients as identified in Claimant's request for relief lit. a (ii), plus identified individuals/entities within the Government of Balochistan"; and invited the Parties to reach an agreement on the procedural timetable for the submissions on Claimant's Application for a Protective Order and its Application for a Ruling in Limine.
43.
On 4 April 2016, the Tribunal issued its Procedural Order No. 6 with an Interim Order pending its final decision on Claimant's Application for a Protective Order.
44.
On 4 April 2016, the Parties submitted their respective comments on the Tribunal's Draft Decision on Jurisdiction and Liability. Such comments, pursuant to the Tribunal's direction by letter of 3 February 2016, were to be limited to "errors of fact, misprints, etc."
45.
On 6 April 2016, Respondent filed a response to Claimant's Application for a Protective Order and Claimant's Application for a Ruling in Limine.
46.
On 12 April 2016, Claimant filed a Reply on Claimant's Application for a Protective Order, and a Reply on Claimant's Application for a Ruling in Limine.
47.
On 14 April 2016, the Parties submitted a revised proposed schedule for disclosure/production of documents, which was approved on the same date by the Tribunal, as agreed by the Parties.
48.
On 18 April 2016, Respondent filed a Rejoinder on the Application for a Protective Order and a Rejoinder on the Application for a Ruling in Limine, together with a consolidated index of authorities filed by Respondent in the arbitration.
49.
On 21 April 2016, the Tribunal issued its Procedural Order No. 7 on Claimant's Applications for a Protective Order and a Ruling in Limine.
50.
On 26 April 2016, following exchanges between the Parties, each Party filed a request for the Tribunal to decide on production of documents. Claimant additionally requested the Tribunal to amend the Protective Order in the Tribunal's Procedural Order No. 7 to also include: "the documents disclosed by Claimant in response to Respondent's requests for production of documents."
51.
By e-mail of 29 April 2016, at the Tribunal's invitation, Respondent noted not having objections to Claimant's request of 26 April 2016 to amend the Protective Order in Procedural Order No. 7. As a result, on 2 May 2016, the Tribunal issued Procedural Order No. 8 concerning confidentiality of evidence, amending paragraph 1 of the Tribunal's Procedural Order No. 7.
52.
On 12 May 2016, the Tribunal issued its Procedural Order No. 9 concerning production of documents.
53.
On 16 May 2016, Respondent requested the Tribunal to revise its Procedural Order No. 9, so as to reflect that Respondent was agreeable to any documents produced during this phase of document disclosure being used in the relevant ICC proceedings.
54.
On the same date, the Tribunal invited Claimant to confirm its agreement with the requested revision of Procedural Order No. 9.
55.
On 17 May 2016, Claimant confirmed its agreement to Respondent's requested revision of Procedural Order No. 9, and requested a four-day extension of the deadline for completion of voluntary disclosure of documents set in Procedural Order No. 9. On the same date, Respondent confirmed its agreement to the requested extension, which was granted by the Tribunal on 18 May 2016.
56.
On 19 May 2016, Respondent requested clarifications of certain points on Respondent's completed Redfern Schedule of Procedural Order No. 9.
57.
On 20 May 2016, the Tribunal issued Procedural Order No. 10 confirming the requested revision of Procedural Order No. 9, with regard to the use of documents in the ICC proceedings, and an amended Respondent's Redfern Schedule containing the requested clarifications of the Tribunal's decision on document production.
58.
On 1 June 2016, Claimant requested the modification of the Tribunal's order regarding Request 12(b)(i) of Respondent's document requests, which the Tribunal "granted as requested" in Annex 1 to its Procedural Order No. 9, but which Claimant believed was unduly burdensome to the extent that it involved review of Claimant's petty cash records in order to identify documents relating to expenses that were reimbursed to Col. Khan. By letter of 6 June 2016, Respondent responded to Claimant's letter of 1 June 2016.
59.
On 8 June 2016, Claimant filed a Request for Modification of Tribunal's in Limine Order (Tribunal's Procedural Order No. 7 of 21 April 2016).
60.
On 10 June 2016, (i) the Tribunal issued Procedural Order No. 11 concerning production of documents; (ii) Respondent was invited to comment on Claimant's Request for Modification of Tribunal's in Limine Order dated 8 June 2016; and (iii) Respondent filed a request regarding one aspect of Claimant's production of documents, which according to Respondent was a breach of the Tribunal's decision regarding Request No. 15 of Respondent's Completed Redfern Schedule. Respondent requested the Tribunal to order Claimant to produce non-privileged documents and to explain the extent of the body of privileged documents relevant to its recent internal investigation.
61.
On 13 June 2016, Respondent filed a request for the Tribunal to decide on admissibility of new evidence, i.e., a witness statement from Mr. Zafar Iqbal in support of its Reply submission.
62.
On 14 June 2016, Respondent submitted its comments on Claimant's Request for Modification of Tribunal's in Limine Order.
63.
On June 15, 2016, the Tribunal decided on the Request for Modification of Tribunal's in Limine Order. The Tribunal maintained its original decision.
64.
Also on 15 June 2016, the Tribunal gave certain directions to the Parties regarding the procedural calendar leading up to the Hearing.
65.
On 16 June 2016, at the Tribunal's invitation, Claimant filed its comments on Respondent's request of June 10, 2016 regarding production of documents.
66.
On 20 June 2016, Claimant filed observations on Respondent's request of 13 June 2016 on the admissibility of new evidence.
67.
On 21 June 2016, the Tribunal proposed a modified procedural schedule.
68.
On 23 June 2016, Respondent filed a reply to Claimant's letter of 20 June 2016 on the admissibility of new evidence.
69.
On 24 June 2016, each Party confirmed its availability on the dates in the Tribunal's proposed modified procedural calendar.
70.
On 25 June 2016, the Tribunal confirmed that the Pre‐Hearing Organizational Meeting would be held with the President of the Tribunal on 26 September 2016, as agreed by the Parties.
71.
On 28 June 2016, Claimant filed a letter by which it maintained its objection and its request that the Tribunal deny Respondent's application for the admissibility of new evidence.
72.
On 1 July 2016, Claimant filed a renewed request for the Tribunal to decide on production of documents, including a request for production of original documents for inspection by the forensic examiner retained by Claimant.
73.
Also on 1 July 2016, the Tribunal decided on Respondent's request for admissibility of new evidence, granting leave to Respondent to file a witness statement from Mr. Zafar Iqbal together with its Reply due on 15 July 2016.
74.
On 4 July 2016, the Tribunal decided on production of documents and on Claimant's request for production or original documents (including Mr. Aziz's diaries) for inspection by the forensic examiner retained by Claimant.
75.
On 6 July 2016, Respondent filed a letter in response to Claimant's request of 1 July 2016 and the Tribunal's decision of 4 July 2016. In its letter, Respondent requested that the Tribunal refrained from making any further orders regarding the documents to be produced for inspection until Respondent had had an opportunity to report back the following week on the outcome of meetings with the National Accountability Bureau (the NAB), in whose custody Mr. Aziz's diaries resided in connection with an on-going criminal inquiry.
76.
On 6 July 2016, the Tribunal acknowledged receipt of Respondent's letter of 6 July 2016, and informed the Parties that for the time being, the Tribunal maintained its decision of 4 July 2016. The Tribunal further noted the difficulties on the part of Respondent to meet the deadline of 11 July 2016, taking into account the Eid holiday which was being celebrated in Pakistan at the moment. The Tribunal therefore confirmed that it would not take a decision on whether to exclude any evidence already on the record related to the documents to be produced for inspection until Respondent had reverted to the Tribunal, at the latest by 15 July 2016.
77.
On 15 July 2016, Respondent filed its second Reply to Claimant's Opposition to Respondent's Application to Dismiss the Claims ("Respondent's Reply"), dated 15 July 2016, including: (i) Second Witness Statement of Muhammad Farooq; (ii) Second Witness Statement of Col. Sher Khan; (iii) Second Witness Statement of Muhammad Tahir; (iv) Witness Statement of Zafar Iqbal; and (v) Exhibits R-58(VI)(an) to R-502.
78.
Also on 15 July 2016, Respondent informed the Tribunal that Mr. Aziz's diaries could not leave Pakistan, but would be available in Pakistan for forensic examination. In such circumstances, Respondent requested the Tribunal to reconsider its decision of July 4, 2016, concerning the request for production of original documents for inspection, and instead direct the NAB to make the original documents responsive to Requests 20 and 21 available immediately for inspection in Islamabad. On 19 July 2016, Claimant filed observations in such regard.
79.
On 20 July 2016, the Tribunal directed Respondent to provide to Claimant and the Tribunal, by 27 July 2016, a list of possible locations/institutions within Pakistan where a forensic examination of Mr. Aziz's diaries could be carried out under laboratory conditions. As directed, Respondent provided such information to Claimant and to Respondent by letter of 27 July 2016. Attached to Respondent's letter were the curricula vitae of three possible forensic experts.
80.
On 28 July 2016, the Tribunal acknowledged receipt of Respondent's letter of 27 July 2016, and invited Claimant to comment thereon by 2 August 2016, in particular to state whether the method of examination proposed by Respondent; and/or the appointment of any of the experts identified by Respondent would be agreeable to Claimant. Claimant was further invited to comment on Respondent's preference for one expert to be appointed by the Tribunal instead of two Party-appointed experts.
81.
On 2 August 2016, Claimant submitted a letter in response to Respondent's letter of 27 July 2016, concerning the request for production of original documents for inspection. In its letter, Claimant requested the Tribunal to reiterate its order of 4 July 2016 that Pakistan "immediately produce" Mr. Aziz's diaries to Claimant's forensic expert, Mr. Robert Radley. Claimant expressed its willingness to work with Pakistan to ensure that the documents are transported in a manner that did not compromise the chain of custody.
82.
By e-mail of 4 August 2016, the President of the Tribunal requested Respondent to answer in particular the following questions, without prejudice to the Tribunal's decision:

"1) Would Respondent/the NAB be willing to accept that the diaries are transported to Mr. Radley's laboratory under the custody safeguards and the conditions for inspecting Mr. Radley's laboratory, including the restrictions regarding the presence of a NAB official during his examination, as described by Claimant in its letter of 2 August 2016 at pages ‐ 2 3?

2). Please provide the fullest information available about the three laboratories within Pakistan that Respondent proposed in its letter of 27 July 2016, as regards their equipment, their technical capacity and specifications, their national or international certifications, and their compliance with international standards. In particular, please specify whether any of the laboratories contains an ESDA machine as described in Claimant's letter of 2 August 2016 at page 3. Provided that this is the case, the Tribunal notes that the diary submitted as Exhibit A ‐ A 1 is in fact a note pad. The Tribunal understands from Claimant's submission on pages ‐ 3 4 that ESDA machines are typically suitable only for the examination of single sheets of paper, which would require physical disassembly of the note pad. Would Respondent/the NAB allow that such disassembly take place in the course of an ESDA examination if this were technically necessary? Regarding the diary submitted as Exhibit A ‐ A 2, it appears to the Tribunal that this consists of loose sheets paper so that no physical disassembly would be required. It appears to the Tribunal that no other diaries or documents responsive to Claimant's Requests 20 and 21 have been submitted so far."

The Tribunal further noted that provided that the Tribunal considered the conditions for examination of the diaries in one of the laboratories identified by Respondent suitable for the present purposes and provided that there existed an ESDA machine in one of the laboratories in Pakistan, Claimant was requested to state whether Mr. Radley would be willing to travel to Pakistan within the next weeks and conduct an ESDA examination with the equipment available within the respective laboratory.

83.
On 12 August 2016, each Party filed answers to the questions posed by the Tribunal on 4 August 2016. Attached to Claimant's letter was a letter from Robert Radley to Donald Francis Donovan dated 12 August 2016.
84.
On 23 August 2016, the Tribunal informed the Parties that it was trying to identify a suitable expert to analyze the documents in question in Pakistan at the lab that had an ESDA equipment.
85.
On 31 August 2016, Claimant filed a request for (i) a ruling on the sequence of witness testimony and opening statements in the then upcoming evidentiary hearing, and (ii) an extension of the deadline for the filing of Claimant's Rejoinder.
86.
On 1 September 2016, Claimant filed a letter regarding the expert examination of Mr. Aziz's diaries. It its letter, Claimant referred to its explanations of 12 August 2016, and in particular to those provided by its expert Robert Radley that he would not travel to Pakistan, because his ability to opine on the authenticity of the documents would be compromised if he could not examine them in his own laboratory. Claimant further ratified its request that the Tribunal reinstate its directions of 4 July 2016 that Pakistan deliver Mr. Aziz's diaries to Mr. Radley or be subject to an order that they be struck from the record; requested that certain requirements suggested by Mr. Radley be included in any terms of reference governing the expert's appointment, in the event that the Tribunal decided to appoint its own expert. Claimant also requested the Tribunal's advice on the expectations of a timetable regarding the eventual appointment process for a Tribunal-appointed expert.
87.
On 2 September 2016, Respondent referred to Claimant's letter of 31 August 2016; (i) confirmed that it had agreed to its witnesses being examined during the October 2016 hearing in Paris, with Claimant's witnesses being examined during the December 2016 hearing in Hong Kong; (ii) expressed its disagreement over the timing of Claimant's opening statement; and (iii) objected to Claimant's requested extension of the deadline for the filing of its Rejoinder.
88.
By letter of 2 September 2016, the Tribunal referred to two matters: (A) the examination of Mr. Aziz's diaries, including the appointment of an Independent Expert, and (B) Claimant's requests by letter of 31 August 2016. Regarding the examination of Mr. Aziz's diaries, the Tribunal informed the Parties that it had decided to appoint an independent forensic document/ink expert to analyze Mr. Aziz's diaries in one of the laboratories in Pakistan identified by Respondent. The Tribunal proposed the names, of three experts as suitable candidates to the Parties, who would be able to travel to Pakistan, and provided their curricula vitae and additional information. The Tribunal explained the appointment method for the selection of the Independent Expert; provided the Parties with a ballot for them to rank the candidates on the list in order of preference; invited the Parties to liaise and submit an agreed proposal for the terms of reference, and provided the Tribunal's expectation of a timetable. As to Claimant's requests of 31 August 2016, the Tribunal decided that following the standard practice, the opening statements would be heard at the beginning of the first week. The Tribunal also granted an extension until 15 September 2016 of the deadline for Claimant to file its Rejoinder.
89.
On 5 September 2016, Respondent filed a renewed request for production of documents, including a request for production of unredacted version of documents.
90.
On 13 September 2016, Claimant provided comments on the list of experts proposed by the Tribunal in its letter of 2 September 2016. Claimant requested that the Tribunal order Pakistan to make the originals of Mr. Aziz's diaries available in the Punjab Forensic Science Laboratory for the inspection by Mr. Radley during the week of 10 October 2016; on the Parties' consent, to appoint Dr. Agisnsky to conduct and ink-dating examination of Mr. Aziz's diaries, and to provide the Parties with an extension of the deadline to submit an agreed proposal of the Terms of Reference for the ink-dating expert.
91.
Also on 14 September 2016, Claimant requested a one-day extension of the deadline for the filing of its Rejoinder. Respondent objected to Claimant's extension request. On the same date, the Tribunal granted the further extension of the deadline to file Claimant's Rejoinder until 1 p.m. of 16 September 2016 (N.Y. time).
92.
On 15 September 2016, Respondent filed a request for admissibility of new evidence, disclosed by Claimant on 12 September 2016, i.e., 45 additional documents relating to (a) expenditure on the Chile trip and (b) the remuneration of Colonel Sher Khan, which the Tribunal had ordered Claimant to produce by 15 June 2016 pursuant to Procedural Order No. 9 (as amended by Procedural Order No.10). Respondent requested leave to file a supplemental submission addressing the new evidence in relation to the Chile trip by 30 September 2016.
93.
On 15 September 2016, Claimant gave its consent to Respondent's requests of 15 September 2016, reserving the right to seek leave to file a short rejoinder if necessary.
94.
On 16 September 2016, the Tribunal noting that Claimant had given its consent, granted Respondent's request to introduce the 45 documents as exhibits and to file a short supplemental submission limited to addressing the new evidence by 30 September 2016.
95.
On September 16, 2016, Claimant filed its Rejoinder to Respondent's Application to Dismiss the Claims ("Claimant's Rejoinder"), enclosing: (i) Claimant's new exhibits: CE-492 to CE-740; (ii) Claimant's new legal authorities: CA 261 to CA 351; (iii) updated indices; (iv) Witness Statements of Gibson Pierce, Robert Skrzeczynski, David Moore, Barry Flew, and Mark Wall; the Second Witness Statements of Cory Williams, Timothy Hargreaves, Eduardo Flores, Hugh R. James, and Peter Jezek; the Fourth Witness Statement of Catherine "Cassie" Boggs; and the Seventh Witness Statement of Timothy Livesey; and (v) Expert Report of Ambassador Husain Haqqani.
96.
On 19 September 2016, in response to Claimant's letter of 13 September 2016 and the Tribunal's communication of 14 September 2016 regarding the forensic examination of Mr. Aziz's diaries, Respondent requested the Tribunal to (i) reject Claimant's request for Pakistan to facilitate an examination of Mr. Aziz's diaries by Mr. Radley; (ii) appoint the expert it considers most appropriate; and (iii) provide a short background briefing (along with the relevant documents) sufficient to enable the expert to propose an appropriate methodology to resolve the matter.
97.
On 20 September 2016, Claimant filed observations of Respondent's renewed request of 5 September 2016 for the Tribunal to decide on production of documents.
98.
On 21 September 2016, Claimant filed further observations on Respondent's response of 19 September 2016.
99.
Under cover of a letter of 21 September 2016, Claimant provided the Tribunal with a Corrected Rejoinder, seeking leave to file it in place of that filed on 16 September 2016.
100.
On 23 September 2016, Respondent filed a request for the exclusion of evidence, i.e., the Haqqani Report together with accompanying exhibits CE-741 to CE-812, arguing that it was not responsive to the Reply, and that Mr. Haqqani was not an independent expert.
101.
On 25 September 2016, Respondent filed observations on Claimant's request of 21 September 2016 for leave to file a Corrected Rejoinder. In its letter, Respondent requested the Tribunal to seek certain clarifications from Claimant. On the same date, the Tribunal invited Claimant to clarify its position in light of Respondent's observations, by 26 September 2016.
102.
On 26 September 2016, the President of the Tribunal held a Pre-Hearing Organizational Meeting with the Parties by telephone conference.
103.
Also on 26 September 2016, the Tribunal issued Procedural Order No. 12 concerning production of documents.
104.
On 27 September 2016, at the invitation of the Tribunal, Respondent responded to Claimant's letter of 21 September 2016, regarding the forensic examination of Mr. Aziz's diaries.
105.
On 28 September 2016, Respondent filed observations on Claimant's request in its Rejoinder dated 16 September 2016 to strike from the record certain paragraphs of the witness statements of Bari Dad and Col. Sher Khan describing allegedly privileged conversations.
106.
Also on 28 September 2016, Claimant filed a further request for the confidentiality of evidence, i.e., requesting the Tribunal to amend the Protective Order set forth in Procedural Order No. 7, as amended by Procedural Order No. 8, and further requesting Respondent to provide certain information and documents regarding the individual to whom it had disclosed Protected Information.
107.
By letter of 29 September 2016, the Parties were informed of the Tribunal's directions regarding certain pending matters, which had been jointly decided by the Tribunal following the Pre-Hearing Organizational Meeting held by the President of the Tribunal with the Parties on September 26, 2016, which addressed: (i) Issues on the Draft Agenda; (ii) the Expert Testimony of Former Ambassador Hussain Haqqani; (iii) Claimant's Corrected Rejoinder; (iv) Appointment of Forensic Expert(s); (v) Claimant's Requests Regarding Testimony of Respondent's Witnesses on Privileged Conversations; and (vi) Claimant's Request for an Amendment of the Protective Order.
108.
Also on 29 September 2016, Claimant informed the Tribunal that Mr. Radley had advised that, while he was at that time unable to travel to Pakistan the week of 20 October 2016 due to prior casework obligations, he was attempting to rearrange his other work commitments to permit travel to Pakistan a reasonable time before the hearing. Claimant requested the opportunity to respond to Respondent's letter of 27 September 2016 by 4 October 2016, to permit Mr. Radley to complete those discussions. This request was granted by the Tribunal on 30 September 2016.
109.
On 30 September 2016, Respondent filed its Supplemental Reply on its Application to Dismiss Claims ("Respondent's Supplemental Reply").
110.
On 3 October 2016, Respondent filed observations on Claimant's further request for the confidentiality of evidence of 28 September 2016.
111.
Also on 3 October 2016, Claimant filed a response to Respondent's observations of 28 September 2016 on Claimant's request to strike from the record certain testimony of two of Respondent's witnesses on privileged conversations.
112.
By letter of 4 October 2016, Claimant commented on the Tribunal's proposal in its directions of 29 September 2016, that the expert report of former Ambassador Haqqani be exempted from the Protective Order and that Pakistan be permitted to "share and discuss the report with the NAB" so that it can "adequately address the statements made in Ambassador Haqqani's report."
113.
On October 5, 2016, Claimant filed its Supplemental Rejoinder on Respondent's Application to Dismiss Claims ("Claimant's Supplemental Rejoinder").
114.
By letter of 5 October 2016, the Tribunal decided: (i) to deny Claimant's requests for exclusion of certain witness testimony of Mr. Bari Dad on his conversation with Claimant's former counsel Mr. Makhdoom Ali Khan on 28 July 2015. Claimant's alternative requests indicated therein were also denied; (ii) to deny Claimant's request for excluding paragraphs 58-59 of Col. Khan's second witness statement; (iii) to admit Claimant's alternative request that it be permitted to submit a witness statement from another of the counsel who participated in the calls with Col. Khan held on 27 August 2015 through 3 September 2015; and produce any other contemporaneous notes recounting those calls.
115.
On the same date, Respondent filed a request for the Tribunal to decide on production of documents, i.e., the disclosure of certain e-mails to determine the role and involvement of Chris Arndt in the Reko Diq project during the period of August 1999-June 2000.
116.
On 5 October 2016, Claimant filed a renewed request for the Tribunal to decide on production of Mr. Aziz's diaries for inspection.
117.
On 6 October 2016, Claimant filed observations on the Respondent's request of 5 October 2016, for the Tribunal to decide on the disclosure of certain e-mails.
118.
On 7 October 2016, Respondent filed observations on Claimant's renewed request of 5 October 2016 for the Tribunal to decide on production of Mr. Aziz's diaries for inspection.
119.
By letter of 7 October 2016, the Tribunal, for the reasons indicated therein, denied Respondent's request for disclosure of certain e-mails as stated in its letter of 5 October 2016.
120.
Also on 7 October 2016, pursuant to the Tribunal's decisions on 5 October 2016, Claimant submitted (i) a witness statement of Rushmi Bhaskaran, one of Claimant's counsel who participated in the calls with Col. Sher Kahn; (ii) the new exhibits cited in that witness statement; and (iii) an updated index of Claimant's Exhibits.
121.
A first week hearing on Respondent's Application to Dismiss the Claims was held at the ICC, Paris from 10 October 2016 to 15 October 2016. The following persons were present at the first week hearing:
TRIBUNAL
Dr. Klaus M. Sachs President
Dr. Stanimir A. Alexandrov Co-Arbitrator
Lord Hoffmann Co-Arbitrator
ICSID SECRETARIAT
Ms. Mercedes Cordido-F. de Kurowski Secretary of the Tribunal
ASSISTANT TO TRIBUNAL
Ms. Susanne Schwalb Assistant to the Tribunal
CLAIMANT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Donald Francis Donovan Debevoise & Plimpton LLP
Mark W. Friedman Debevoise & Plimpton LLP
Natalie L. Reid Debevoise & Plimpton LLP
Rushmi Bhaskaran Debevoise & Plimpton LLP
Berglind Haldorsdottir Birkland Debevoise & Plimpton LLP
Feisal Naqvi HaidermotaBNR & Co.
Carl Riehl Debevoise & Plimpton LLP
Elizabeth Nielsen Debevoise & Plimpton LLP
Fiona Poon Debevoise & Plimpton LLP
Jennifer Wagner Debevoise & Plimpton LLP
CLAIMANT
Mr./Ms. First Name/ Last NameAffiliation
Othman El Malih
Parties
William Hayes Tethyan Copper Company Pty Ltd
Ramon Jara Tethyan Copper Company Pty Ltd
Rich Haddock Barrick Gold Corporation
Julian Anderson Antofagasta Plc
Jonathan Drimmer Barrick Gold Corporation
RESPONDENT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Ms. Judith Gill QC Allen & Overy LLP
Mr. Mark Levy Allen & Overy LLP
Mr. Matthew Hodgson Allen & Overy LLP
Mr. Rick Gal Allen & Overy LLP
Mr. Matthew Hudson Allen & Overy LLP
Mr. Otakar Hajek Allen & Overy LLP
Ms. Katrina Limond Allen & Overy LLP
Mr. Jacky Fung Allen & Overy LLP
Mr. Ali Zahid Rahim Axis Law Chambers
Mr. Hassan Ali Axis Law Chambers
Mr. Usman Raza Jamil Advocate High Court, Counsel to Government of Balochistan
Parties
Mr. Ashtar Ausaf Ali Attorney General for Pakistan
Mr. Sardar Sanaullah Zehri Chief Minister, Government of Balochistan
Mr. Shahid Khaqan Abbassi Minister, Petroleum and Natural Resources, Government of Pakistan
Mr. Arshad Mirza Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan
Mr Saif Ullah Chattha Chief Secretary Balochistan
Mr. Amanullah Karnani Advocate-General, Government of Balochistan
Mr. Ahmed Sharif Chaudhry Deputy Secretary, Law and Parliamentary Affairs Department, Government Balochistan
Mr. Muhammad Khan Advisor to Chief Minister, Mines and Mineral Development Department, Government of Balochistan
Mr. Saleh Muhammad Secretary, Mines and Mineral Development Department, Government of Balochistan
Mr. Muhammad Nadeem Butt Additional Secretary, Mines and Mineral Development Department, Government of Balochistan
Mr. Mukhtar Additional Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan
Mr. Ahmad Irfan Aslam Office of the Attorney-General for Pakistan
Mr. Zeeshaan Zafar Hashmi Office of the Attorney-General for Pakistan
Witness(es)
Mr. Malik Masood Ahmed Witness
Mr. Bari Dad Witness
Mr. Sheikh Asmatullah Witness
Mr. Muhammad Farooq Witness
Mr. Zafar Iqbal Witness
Mr. Muhammad Sher Khan Witness
Mr. Shahbaz Khan Mandokhail Witness
Mr. Abid S Mustikhan Witness
Mr. Muhammad Tahir Witness
COURT REPORTER
Mr./Ms. First Name/ Last NameAffiliation
Ms. Dawn K. Larson English-Language Court Reporter
INTERPRETERS
Mr./Ms. First Name/ Last NameAffiliation
Mr. John Hanson Urdu-English Interpreter
Ms. Shahida Sharif Urdu-English Interpreter
Mr. Shoukat Mohammed Urdu-English Interpreter
122.
On 10 October 2016, Respondent filed its demonstrative RD-1.
123.
On 13 October 2016, Respondent filed a letter regarding the discussions between the Parties and the Tribunal that week relating to the forensic examination of Mr. Aziz's diaries; informed the Tribunal of the issuance of Mr. Radley's Pakistan visa by the Pakistan High Commission in London on 13 October 2016; and requested that Claimant be given until 18 October 2016, to either persuade Mr. Radley to travel to Pakistan or appoint and alternative expert. In the event that Claimant failed to do so, Respondent suggested that the Tribunal should appoint an expert, in which case Respondent proposed the appointment of Dr. Aginsky or one of the experts previously suggested by the Tribunal.
124.
By letter of 19 October 2016, Claimant responded to Respondent's letter of 13 October 2016. Attached to Claimant's letter was a letter of Mr. Radley of the same date, explaining the reasons why he had concluded that he would not examine the documents in Pakistan. In its letter, Claimant requested that the Tribunal: (i) reinstate its order of 4 and 6 July 2016 and require Pakistan to immediately produce Mr. Aziz's diaries to Mr. Radley's laboratory for inspection and allow the presence of an NAB official during the examination subject to that official undertaking that he or she (a) would not interfere with Mr. Radley's examination in any way, (b) would present the diaries when requested, and (c) agreed not divulge any information learned by virtue of being present in the laboratory while other confidential work is being conducted; (ii) required Pakistan to make Mr. Aziz's diaries available for the Tribunal's inspection at the hearing in Hong Kong; and (iii) appointed Dr. Aginsky to conduct an ink dating examination, provided that any such examination was conducted only after Mr. Radley had completed his ESDA sequencing examination. In the alternative, should Pakistan refuse to deliver Mr. Aziz's diaries to Mr. Radley, Claimant requested the Tribunal to exclude all evidence related to these documents.
125.
By letter of 20 October 2016, the Tribunal conveyed a message to the Parties on the matter of conducting a forensic examination of the so-called Aziz diaries, including a recommendation that Respondent produce Mr. Aziz's diaries to Mr. Radley's laboratory by 1 November 2016. Respondent was invited to respond by 26 October 2016.
126.
On 26 October 2016, Respondent submitted a letter regarding the examination of Mr. Aziz's diaries. In its letter, Respondent informed the Tribunal that the NAB had reiterated its unwillingness for Mr. Aziz's diaries to be sent abroad under any circumstances, enclosing a letter sent by the NAB to the Attorney-General's Office in such regard. Respondent requested the Tribunal to withdraw its directions of 20 October 2016 and appoint a single Tribunal-appointed expert to assist the Tribunal to determine the authenticity of what Respondent's considered an important evidence. On 26 October 2016, Respondent submitted a further letter, this one requesting the Tribunal to revisit its order of 7 October 2016 regarding the disclosure of e-mails.
127.
Also on 26 October 2016, Claimant requested that the Tribunal issue an order in relation to Respondent's alleged breaches of the Tribunal's Protective Order.
128.
On 31 October 2016, Respondent submitted its comments in response to Claimant's letter of 26 October 2016 concerning Respondent's alleged breach of the Protective Order.
129.
On 2 November 2016, Claimant submitted observations on Respondent's request of 26 October 2016 regarding the disclosure of e-mails, noting that Respondent's disclosure requests were untimely, improper and should in principle be rejected. However, in the event that the Tribunal was minded to afford Respondent any relief, then Claimant consented to disclose the requested e-mails, provided that Respondent gave its consent (or the Tribunal ordered) that either party might admit any of those documents into evidence on or before 18 November 2016.
130.
On 2 November 2016, Claimant filed a response to Respondent's letter of 26 October 2016 regarding the forensic examination of Mr. Aziz's diaries.
131.
By letter of 4 November 2016, the Tribunal conveyed a message to the Parties with reference to Claimant's letter of 2 November 2016, Respondent's letter of 26 October 2016 and the Tribunal's directions of 20 October 2016, all concerning the forensic examination of Mr. Aziz's diaries.
132.
On 7 November 2016, Respondent submitted a brief reply to Claimant's letter of 2 November 2016 regarding the disclosure of e-mails. Claimant submitted its rejoinder on this matter on 9 November 2016.
133.
On 9 November 2016, the Tribunal invited Respondent to confirm by 14 November 2016, whether it had appointed Dr. Aginsky (or any other person) as its own Party-appointed expert, and if so, whether Respondent intended to produce him as an expert witness during the Hong Kong hearing.
134.
On 10 November 2016, the Tribunal decided on Claimant's request of 26 October 2016 regarding the alleged violation of the Protective Order. For the reasons set out therein, Claimant's request was dismissed.
135.
On 11 November 2016, the Tribunal decided on Respondent's request of 7 October 2016 to revisit its order of the same date concerning the disclosure of certain e-mails.
136.
On 14 November 2016, Respondent informed the Tribunal that it would probably contract Mr. Gerald LaPorte as Respondent's forensic expert because Dr. Aginsky was not available. Respondent would confirm this the following week.
137.
On 15 November 2016, Respondent informed the Tribunal that it had not received the 276 e-mails relating to Chris Arndt that Claimant had agreed to produce, requesting the Tribunal to order that Claimant produce them, and that Respondent be given five days from the date of production to review and submit any new exhibits. On the same date, Claimant informed the Tribunal that Respondent would receive the above-referenced e-mails later that day. By letter of 16 November 2016, the Tribunal took note of the Parties' communications of 15 November 2016 on the matter and gave the five days that had been requested by Respondent to proceed as suggested upon its receipt of the e-mails.
138.
On 17 November 2016, Claimant requested that the Tribunal order Respondent to: (i) submit Mr. LaPorte's report no later than 26 November 2016; and (ii) direct Mr. LaPorte to take an additional set of ink-dating samples that replicate as closely as possible the samples Mr. LaPorte analyzes, and upon his return from Pakistan, promptly deliver the additional samples by overnight mail to a representative of Claimant's choosing. In addition, Claimant requested that the Tribunal amend the hearing schedule so that Mr. LaPorte would testify on 10 December 2016.
139.
On 18 November 2016, the Tribunal requested Respondent to: (i) confirm by 21 November 2016 whether Mr. LaPorte had indeed travelled to Pakistan for a forensic examination of Mr. Aziz's diaries and was in the process of preparing an expert report on this matter for Respondent; and (ii) comment by the same date on the requests raised in Claimant's letter of 17 November 2016. The Tribunal noted that, under the circumstances, it was inclined to grant Claimant's requests (to the extent an order from the Tribunal would be required), but would nevertheless like to hear Respondent first.
140.
On 21 November 2016, Respondent submitted a letter in response to Claimant's letter of 17 November 2016 and the Tribunal's letter of 18 November 2016, regarding the forensic examination of Mr. Aziz's diaries.
141.
On 22 November 2016, Respondent filed a letter in response to the Tribunal's correspondence of November 11, 2016, and submitted ten documents from the 276 e-mails that had been disclosed by Claimant on 15 November 2016, as new exhibits RE-515 to RE-524. In addition, Respondent noted that Claimant's supplemental document production raised two questions which should be addressed by Claimant.
142.
By letter of 22 November 2016, Respondent informed the Tribunal that Mr. LaPorte could not get the visa to Pakistan and would not be able to travel. On the same date, Claimant sent a brief response.
143.
Also on 22 November 2016, Claimant filed a letter regarding the disclosure of e-mails, together with new exhibits numbered CE-840 to CE-867, and an updated index reflecting the additional exhibits.
144.
On 25 November 2016, Respondent requested leave to submit nine documents as new exhibits.
145.
On 28 November 2016, Claimant commented on Respondent's requests in connection with the disclosure of certain e-mails relating to Chris Arndt that were raised in Respondent's letter of 22 November 2016.
146.
On 29 November 2016, the Tribunal referred to Claimant's letter on 29 November 2016, noting that "TCCA has no Arndt e-mails from the period August to December 1999, and it does not have more complete copies of the e-mail chains included in the production" as well as the explanation provided by Claimant in this regard. Consequently, the Tribunal considered that no further order was required on Respondent's requests of 22 November 2016.
147.
On 30 November 2016, Claimant commented on Respondent's request for leave to submit nine documents as new exhibits.
148.
On 1 December 2016, the Tribunal granted Respondent's request to submit proposed exhibits RE-528 to RE-531, which it deemed responsive to Former Ambassador Haqqani's expert report, into the record. In accordance with Section 15.9 of Procedural Order No. 1, Claimant was granted leave to submit evidence in rebuttal to these four exhibits until 4 December 2016. Respondent's request to submit the remaining proposed exhibits was denied as belated.
149.
A second week hearing on Respondent's Application to Dismiss the Claims was held at the Hong Kong International Arbitration Centre (HKIAC), Hong Kong from 3 December 2016 to 10 December 2016. The following persons were present at the second week hearing:

TRIBUNAL
Dr. Klaus M. Sachs President
Dr. Stanimir A. Alexandrov Co-Arbitrator
Lord Hoffmann Co-Arbitrator

ICSID SECRETARIAT
Ms. Mercedes Cordido-F. de Kurowski Secretary of the Tribunal

ASSISTANT TO TRIBUNAL
Ms. Susanne Schwalb Assistant to the Tribunal

CLAIMANT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Mr. Donald Francis Donovan Debevoise & Plimpton LLP
Mr. Mark W. Friedman Debevoise & Plimpton LLP
Ms. Natalie L. Reid Debevoise & Plimpton LLP
Mr. Carl Riehl Debevoise & Plimpton LLP
Mr. Feisal Naqvi HaidermotaBNR & Co.
Ms. Rushmi Bhaskaran Debevoise & Plimpton LLP
Ms. Berglind Haldorsdottir Birkland Debevoise & Plimpton LLP
Ms. Elizabeth Nielsen Debevoise & Plimpton LLP
Ms. Fiona Poon Debevoise & Plimpton LLP
Mr. James Parkinson BuckleySandler LLP (individual counsel to witnesses)
Parties
Mr. William Hayes Tethyan Copper Company Pty Ltd
Mr. Ramon Jara Tethyan Copper Company Pty Ltd
Mr. Julian Anderson Antofagasta Plc

Mr. Jonathan Drimmer Barrick Gold Corporation
Expert
Ambassador Husain Haqqani Witness
Witnesses
Mr. Gibson Pierce Witness
Mr. Robert Skrzeczynski Witness
Mr. Cory Williams Witness
Mr. David Moore Witness
Mr. Tim Hargreaves Witness
Mr. Eduardo Flores Witness
Mr. Mark Wall Witness
Mr. Hugh James Witness
Ms. Catherine Boggs Witness
Mr. Barry Flew Witness
Mr. Peter Jezek Witness
Mr. Timothy Livesey Witness

RESPONDENT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Ms. Judith Gill QC Allen & Overy LLP
Mr. Mark Levy Allen & Overy LLP
Mr. Matthew Hodgson Allen & Overy LLP
Mr. Matthew Hudson Allen & Overy LLP
Mr. Otakar Hajek Allen & Overy LLP
Ms. Katrina Limond Allen & Overy LLP
Mr. Jacky Fung Allen & Overy LLP
Mr. Ali Zahid Rahim Axis Law Chambers
Mr. Hassan Ali Axis Law Chambers
Mr. Usman Raza Jamil Advocate High Court, Counsel to Government of Balochistan
Parties
Mr. Sardar Sanaullah Zehri Chief Minister, Government of Balochistan
Mr. Shahid Khaqan Abassi Minister, Petroleum and Natural Resources, Government of Pakistan
Mr. Saleh Muhammad Secretary, Mines and Mineral Development Department, Government of Balochistan
Mr. Mukhtiar Additional Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan
Mr. Ahmad Irfan Aslam Office of the Attorney-General for Pakistan

Mr Khawaja Humayun Nizami Vice Chairman, Balochistan Board of Investment
Witness(es)
Mr Abdul Aziz Witness

COURT REPORTERS
Mr./Ms. First Name/ Last NameAffiliation
Ms. Dawn K. Larson English-Language Court Reporter
Ms. Victoria Lynne English-Language Court Reporter

INTERPRETERS
Mr./Ms. First Name/ Last NameAffiliation
Ms. Shahida Sharif Urdu-English Interpreter
Mr. Gul Ifat Urdu-English Interpreter

150.
On 4 December 2016, pursuant to the Tribunal's decision of 1 December 2016, permitting Claimant to submit evidence in rebuttal to Respondent's newly-admitted exhibits, Claimant submitted seven new exhibits, marked as Exhibits CE-868 through CE-874, together with an updated index of Claimant's Exhibits.
151.
On 7 December 2016, Respondent filed its demonstratives RD-2 through RD-7 and Respondent's slides from day 7 of the Hearing (5 December 2016 in Hong Kong).
152.
On 7 December 2016, Claimant filed Mr. Gibson Pierce's corrected witness statement, along with a redline showing the corrections.
153.
On 8 December 2016, Respondent filed its demonstratives RD-8 and RD-9.
154.
On 9 December 2016, pursuant to the Tribunal's invitation, Claimant submitted Exhibit CE-875 into the record.
155.
On 9 January 2017, Claimant filed a letter requesting the exclusion of the expert report of Mr. LaPorte and the cancelation of all further submissions and proceedings related to the forensic examination of Mr. Aziz's diaries.
156.
On 10 January 2017, Respondent filed a letter attaching (i) Mr. LaPorte's Expert Report ("LaPorte Report"), and (ii) Respondent's Submission Accompanying Mr. LaPorte's Expert Report ("Respondent's LaPorte Submission"). In its letter Respondent expressed its intention to file a separate response to Claimant's letter as soon as possible, and by no later than 12 January 2017. Separately, Respondent filed Appendices 1 to 11 to the LaPorte Report (Exhibits RE-534 to RE-544) and legal authorities RLA-330 to RLA-334 as well as updated indices of Respondent's exhibits and legal authorities.
157.
On 11 January 2017, the Tribunal acknowledged receipt of Claimant's request of 9 January 2017, noting that it would decide upon receipt of Respondent's observations. Respondent's filed its observations on 12 January 2017.
158.
On 15 January 2017, the Tribunal decided not to exclude Mr. LaPorte's Expert Report but invited Claimant to raise any questions it might have regarding the specific source material mentioned in its letter of 9 January 2017 that it would have requested in advance of Mr. LaPorte's examination if it had known about the techniques that Mr. LaPorte would apply and to put such questions directly to Mr. LaPorte, and fixed a procedural calendar for the Parties' subsequent submissions on the examination of Mr. Aziz's diaries.
159.
On 18 January 2017, Claimant posed questions to Respondent's Expert Mr. LaPorte pursuant to the invitation of the Tribunal of 15 January 2017.
160.
On 20 January 2017, Respondent filed a request for the Tribunal to re-issue its decision dated 15 January 2017 to refuse Claimant's request to exclude Mr. LaPorte's Expert Report and Respondent's Accompanying Submission without any further qualification.
161.
On 23 January 2017, Respondent requested that the Tribunal confirm that Claimant's questions of 18 January 2017 should be narrowed down in the manner suggested by Respondent in its letter to Claimant of 20 January 2017, which had been provided to the Tribunal.
162.
On 23 January 2017, Respondent filed a letter objecting to the procedural schedule for the eventual quantum phase, that was fixed during the last day of the Hong Kong Hearing. On the same date, Claimant was invited to comment by 27 January 2017.
163.
On 24 January 2017, Claimant filed a letter in response to (i) Respondent's letter of 20 January 2017, requesting that the Tribunal withdraw certain portions of its 15 January 2017 decision, and (ii) Pakistan's letter of 23 January 2017, requesting that the Tribunal narrow the list of questions that Claimant posed to Mr. LaPorte on 18 January 2017.
164.
On 25 January 2017, the Tribunal decided on Respondent's requests of 20 January 2017 and of 23 January 2017.
165.
On 26 January 2017, Respondent filed a copy of its letter to Claimant with copy to the Tribunal concerning the forensic examination of Mr. Aziz's diaries, attaching Mr. LaPorte's answers to Claimant's questions with one attachment.
166.
On 27 January 2017, Claimant filed a letter commenting on Respondent's request of 23 January 2017.
167.
By letter of 31 January 2017, the Tribunal denied Respondent's request of 23 January 2017, noting that it expected the Parties to prepare their submissions on quantum, if any, in accordance with the schedule agreed on with the Parties on the last hearing day in Hong Kong.
168.
On 6 February 2017, Respondent filed a letter in response to the Tribunal's decision of 31 January 2017.
169.
On 8 February 2017, Respondent filed a copy of its letter to Claimant, regarding the issue of documents relating to Claimant's investigation into allegations that it had tried to bribe Chief Minister Raisani in 2009-2010. On the same date, Claimant submitted a copy of its response to Respondent.
170.
On 9 February 2017, Respondent filed a request for the Tribunal to amend the Protective Order.
171.
Also on 9 February 2017, Claimant filed a 10-page submission ("Claimant's LaPorte Response") together with Mr. Robert Radley's Expert Report ("Radley Report"), accompanied by Exhibits CE-876 to CE-882 and an updated index of its exhibits.
172.
On 13 February 2017, the Tribunal decided that the hearing on the forensic examination of Mr. Aziz's diaries tentatively scheduled for 21 February 2017, should take place with the President of the Tribunal at the ICC in Paris, with the co-arbitrators participating by video-link.
173.
On 14 February 2017, Claimant filed observations on Respondent's request of 9 February 2017 seeking an amendment of the Protective Order. On the same date, Respondent filed a response to Claimant's observations of 14 February 2017.
174.
On 15 February 2017, the Tribunal decided to grant Respondent's request for an amended order, subject, however to the addition that Claimant had subsidiarily requested, i.e., that the signed undertaking be provided to, and kept on file with, the ICSID Secretariat.
175.
On 21 February 2017, Claimant submitted Exhibits CE-883 to CE-888 into the record.
176.
On 21 February 2017, the Tribunal held a hearing on the forensic examination of Mr. Aziz's diaries, at the ICC in Paris, with the President of the Tribunal participating in person and the co-arbitrators by video-link. The following persons were present at this hearing:
TRIBUNAL
Dr. Klaus M. Sachs President
Dr. Stanimir A. Alexandrov Co-Arbitrator (by V.C. from Washington, D.C.)
Lord Hoffmann Co-Arbitrator (by V.C. from Cape Town)
ICSID SECRETARIAT
Ms. Mercedes Cordido-Freytes de Kurowski Secretary of the Tribunal
CLAIMANT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Mr. Donald Donovan Debevoise & Plimpton LLP
Ms. Rushmi Bhaskaran Debevoise & Plimpton LLP
Mr. Nawi Ukabiala Debevoise & Plimpton LLP
Parties
Mr. Jonathan Drimmer Barrick Gold Corp.
Mr. Julian Anderson Antofagasta PLC
Expert(s)
Mr. Robert Radley The Radley Forensic Document Laboratory
RESPONDENT
Mr./Ms. First Name/ Last NameAffiliation
Counsel
Mr. Mark Levy Allen & Overy LLP
Mr. Rick Gal Allen & Overy LLP
Ms. Sophie Davin Allen & Overy LLP
Mr. Usman Raza Jamil Advocate High Court, Counsel to Government of Balochistan
Parties
Mr. Ahmad Irfan Aslam Office of the Attorney-General for Pakistan
Expert(s)
Mr. Gerald M. LaPorte Riley Welch LaPorte & Associates
COURT REPORTER
Ms. Yvonne Vanvi English Court Reporter
177.
On 23 February 2017, pursuant to the Tribunal's invitation, Claimant submitted Exhibit CE-889 and an updated index of its exhibits.
178.
On 7 March 2017, each Party filed a Post-Hearing Brief on Respondent's Application to Dismiss the Claims ("Respondent's Post-Hearing Brief"; "Claimant's Post-Hearing Brief"). Attached to Respondent's Post-Hearing Brief were new legal authorities, i.e., RLA-335 to RLA-339, together with an updated consolidated index of authorities.
179.
By letter of 8 March 2017, the Tribunal acknowledged receipt of the Parties' Post-Hearing Briefs, and informed the Parties that the Tribunal would be rendering its Decision on Respondent's Application to Dismiss the Claims if not by 15 March 2017, at the latest on 20 March 2017.
180.
Upon receipt of the Parties' Post-Hearing Briefs and as announced in the Tribunal's letter of 8 March 2017, the Tribunal intensively deliberated on Respondent's Application and carefully considered each of the arguments put forward by the Parties, including the evidence adduced to support them.
181.
After thorough and open-minded deliberations, the Tribunal has unanimously reached the decision to reject Respondent's Application to Dismiss the Claims and, on 20 March 2017, communicated its Decision on Respondent's Application to Dismiss the Claims (with reasons to follow) to the Parties. For a summary of the procedural history leading up to the Tribunal's approach to first communicate its decision to the Parties and then provide the reasons for its decision in a second step, see paragraphs 8 to 16 of the Tribunal's Decision on Respondent's Application to Dismiss the Claims (with reasons to follow) dated 20 March 2017. As announced in the Tribunal's letter of 31 May 2017, the Tribunal further issues its Decision on Jurisdiction and Liability, as amended pursuant to the Parties' comments of 4 April 2016 (the "Decision on Jurisdiction and Liability"), together with this fully reasoned Decision on Respondent's Application to Dismiss the Claims.
182.
On 20 April 2017, the Parties filed their respective Statements of Costs for the present phase of the proceedings concerning Respondent's Application to Dismiss the Claims.

IV. FACTUAL BACKGROUND

183.
For a detailed summary of the factual background to the dispute between the Parties, the Tribunal makes reference to Section IV of its Decision on Jurisdiction and Liability.
184.
The Tribunal further notes that in the present phase of the proceeding, it has been presented with certain additional facts, supplementing the chronology of events as set out in the Decision on Jurisdiction and Liability, which are either undisputed between the Parties or are otherwise established by the evidence submitted in these proceedings to the satisfaction of the Tribunal. These will be addressed as part of the Tribunal's reasoning on Respondent's individual allegations.

V. POSITIONS OF THE PARTIES

A. Summary of Respondent's Contentions

1. Factual Allegations

185.
Respondent submits that it has presented compelling documentary and witness evidence of corruption by BHP and TCC in relation to the Reko Diq project. In particular, Respondent asserts that by paying numerous bribes as detailed in Respondent's submissions, Claimant achieved results regarding both the procurement of the foundational agreements (i.e., the Agreement for Chagai Hills Exploration Joint Venture (the "CHEJVA"),1 the Addendum No. 1 to Chagai Hills Exploration Joint Venture Agreement (the "Addendum"),2 the letter by which BHP's 75% in the Joint Venture was certified (the "Certification"),3 the Deed of Waiver and Consent (the "Deed"),4 and the Novation Agreement – Chagai Hills Exploration Joint Venture Agreement (the "Novation Agreement")5) and the expansion of its investment (relating to the grant of land lease rights to construct an airstrip (the "Airstrip Land Lease"),6 the second renewal of Exploration License EL-5,7 the grant of surface rights (the "Surface Rights Lease"),8 as well as the Mining Lease and Mineral Agreement which were never obtained).9
186.
Respondent perceives that Claimant's attack on the NAB and its investigative process and the resultant conspiracy theory that multiple Pakistani State branches worked together to procure false confessions has fallen flat for three main reasons.10
187.
Firstly, Respondent submits that there is no evidence that Pakistan's witnesses were coerced into making false confessions; cross-examination failed to garner support for this theory.11 Respondent maintains that the NAB inquiry was conducted in accordance with law and procedure and that attempts to disprove this are uncorroborated. In fact, Respondent takes the position that Claimant's evidence (particularly the Flew Transcript and the Debevoise Notes) serves to undermine this theory.12 Secondly, according to Respondent, the factual circumstances in which evidence was obtained, including the fact that investigations began in 2011 and that half of the witness statements were obtained before the NAB's involvement, demonstrate the implausibility of Claimant's theory.13 Lastly, Respondent argues that Mr. Haqqani's "independent expert report" is simply a "vitriolic attack on the country he abandoned amidst allegations of serious impropriety."14
188.
Moreover, Respondent contends that it is a falsity that Claimant maintained a robust compliance culture and that the corruption allegations therefore must be a conspiracy. In reality, Respondent submits that Claimant and its shareholders, Barrick Gold and Antofagasta, have committed serious and repeated violations of their own internal compliance policies, Pakistani law and the FCPA, particularly evidenced by the trips for Government delegations to Chile (December 2006) and Canada (March 2007), as will be addressed in more detail in Section VII.D.2.a below.15
189.
Respondent submits that Claimant knew of the national corruption risk and Mr. Farooq's reputation for corruption.16 Nonetheless, Respondent maintains that incoming CEOs were unprepared and Col. Khan lacked qualification to deliver anti-corruption training to employees (which in fact was not delivered).17 Moreover, Respondent alleges that 'red flags' of corruption were not dealt with (including Col. Khan's meteoric salary rise, the bribe offer to Chief Minister (CM) Raisani and the expatriate work visa bribes) even though the aforementioned knowledge of corrupt Government officials and the high risk nature of the jurisdiction necessitated a heightened degree of diligence.18 Respondent also highlights the failure of Dr. Jezek to act diligently in the employment of Mr. Mustikhan, who was employed in relation to the Umbrella Strategy, which Respondent describes as "aggressively targeting" key-decision makers and influencers and as involving substantial wrongdoing on the part of Claimant's consultants and employees, all in an attempt to secure the Mineral Agreement.19

2. Legal Consequences

190.
As for the legal consequences arising out of the acts of corruption it alleges, Respondent refers to the Expert Opinion of Judge Stephen Schwebel who concluded that faced with an investment tainted with such corruption, a tribunal may find that: (i) it lacks jurisdiction; (ii) the claim is inadmissible; or (iii) on the merits, the substantive protections contained within the investment treaty are not available.20
191.
Respondent advances two main arguments to support the proposition that the Tribunal lacks jurisdiction.21
192.
Firstly, Respondent argues that Claimant's alleged investment fails to meet the legality requirement in Article 1(1)(a) of the Treaty (requiring investments to be made within framework of Pakistani laws).22 Respondent maintains that: (i) the Addendum and related agreements are void due to corruption and thus do not constitute assets within the meaning of Article 1(1) of the Treaty; and (ii) valid and effective acceptance of Claimant's investment never existed due to breaches of fundamental Pakistani law principles.23 By reference to a number of investment treaty decisions, Judge Schwebel noted in his Opinion that jurisdictional arguments based on the illegality of an investment will have temporal limitations, namely that such arguments will only bar jurisdiction where the "establishment," rather than the "performance," of the investment is tainted by illegality.24
193.
Secondly, Respondent argues that even if the Tribunal finds that Claimant's corruption did not infect the inception of its investment but went to its operation and/or performance, the Tribunal nonetheless lacks jurisdiction to hear the claims.25 Respondent maintains that pursuant to a proper construction of Article 25(1) of the ICSID Convention and Article 13(3)(a) of the Treaty, Pakistan has not consented to arbitrate claims arising from investments tainted by fraud and corruption (a conclusion which does not depend on the construction of Article 1(1)(a)).26 Respondent again refers to Judge Schwebel's Opinion in which he states that in the case of corruption in the performance of the investment, the Tribunal must look beyond this legality requirement, considering the impact of public policy on the host State's consent to arbitrate and the investor's entitlement to rely on that consent.27 Respondent submits that given Claimant's corruption during the performance of the investment, Claimant should be estopped from relying on the host State's consent to arbitrate or should be found not to meet the implied conditions attaching to the host State's offer to arbitrate.28
194.
In the event that the Tribunal finds that it does have jurisdiction, Respondent maintains that the corruption in relation to the inception or performance of Claimant's investment nonetheless renders the claims inadmissible based on transnational public policy or the application of the "unclean hands" doctrine.29
195.
Finally, if the Tribunal were to find that it has jurisdiction and that Claimant's claims are admissible, Respondent's position is that: (i) its corruption and lack of diligence render the substantive protections in the Treaty unavailable to Claimant; and (ii) even if such protections are available, each of them is vitiated by Claimant's illegal conduct.30

B. Summary of Claimant's Contentions

196.
Throughout the proceedings, Claimant has maintained that the preliminary objections in Respondent's Application have been waived and are time-barred – this will be considered in Section VII.A below.31 Contrary to Respondent's assertion that any corruption, whether in relation to the foundational agreements or the collateral events is relevant, Claimant further asserts that allegations of corruption that do not concern the foundational rights do not fall properly within the remit of this investment treaty Tribunal.32

1. Factual Allegations

197.
In response to Respondent's factual allegations, Claimant submits that a voluminous documentary record and a dozen witnesses have refuted Respondent's claims and demonstrated the foundational agreements to be the product of a normal bureaucratic process.33 In contrast, the fact that none of the highest-ranking government officials implicated in Respondent's allegations have testified, allegedly speaks volumes as to the falsity of its claims.34
198.
Claimant submits that this evidence and the objective facts demonstrate that the real scandal here is not Claimant's alleged corruption, but Respondent's cynical abuse of the international community's commitment to eliminate corruption to escape liability for already determined Treaty breaches.35
199.
Claimant highlights that for years no-one was able to uncover the alleged widespread corruption, but suddenly, when Respondent needed to avoid its liability to Claimant, it convened a Local Expert Group, which "unearthed" in weeks evidence that had eluded the Governments for years and deputized the NAB, all to assist with this arbitration.36 The documentary record allegedly establishes that this investigation was not driven by a commitment to "intensify [Respondent's] investigation efforts," but solely to rescue the Governments' hopeless arbitration position.37
200.
Claimant contends that in pursuit of these aims, through intimidation, self-interest and confabulation, Respondent's witnesses were prompted by NAB interrogators to make false confessions.38 However, this allegedly became clear at the Hearing when, according to Claimant, testimonies crumbled and Respondent's (albeit unconvincing) documentary evidence of the bribery, i.e., Mr. Aziz's diaries, was undermined.
201.
Claimant contends that it has maintained a robust compliance culture, further corroborating the conclusion that Respondent's allegations are a conspiracy. Dismissing Respondent's allegations that TCC ignored 'red flags' based on documentary and witness evidence, Claimant maintains that: (i) Col. Khan's salary increases were due to legitimate business considerations and company-wide policies; and (ii) Claimant's self-reporting of deficiencies in the application procedure for expatriate work visas provides no basis on which to dismiss Claimant's Treaty claims, but instead confirms its commitment to ethical business practice.39 Moreover, Claimant submits that Respondent's claims of illegitimacy in relation to the Umbrella Strategy are contrary to the record and rely on a selective misinterpretation of the documents.40

2. Legal Consequences, If Any

202.
As for legal consequences flowing from proven allegations of corruption, if any, Claimant emphasizes that the Tribunal's Draft Decision concluded that the three jurisdictional requirements were met and that Claimant's claims were admissible; in Claimant's view, Respondent has offered no reason for which these issues merit re-litigation.41
203.
Claimant argues that the Tribunal has jurisdiction over its claims for four reasons. Firstly, Claimant emphasizes that the admission requirement contained in Article 1(1)(a) of the Treaty is not a legality requirement and cannot now be retroactively revisited since compliance is measured at the time of the investment's admission, not at any time thereafter.42 Secondly, Claimant disputes the contention that a legality requirement can be read into the Treaty because it is implicit in international law.43 Thirdly, Claimant asserts that pre- or post-admission allegations (of corruption that allegedly occurred before or after the conclusion of the 2006 Novation Agreement) are irrelevant to the legality requirement and thus at the jurisdictional stage.44 Lastly, Claimant maintains that there is no implicit corruption-related condition on Pakistan's offer to arbitrate.45
204.
Claimant further submits that despite Respondent's attempts to rely on the World Duty Free and the Churchill Mining cases, there is no general principle of "unclean hands" in international law that would render Claimant's claims inadmissible and the Tribunal cannot decline to exercise its mandate on the ground of transnational public policy.46
205.
Finally, Claimant maintains that Respondent has not met the burden of proving its allegations and cannot save its Application by asking the Tribunal to connect the dots and infer the corruption which Respondent has failed to prove. In Claimant's view, there is no legal or factual basis for the relief that Respondent seeks; it thus asks the Tribunal to dismiss the Application in its entirety, grant a full remedy for the harm caused by Respondent's reliance on fraudulent evidence and move onto the next stage of proceedings.47

VI. THE PARTIES' REQUESTS FOR RELIEF

A. Respondent's Request for Relief

206.
In its Post-Hearing Brief dated 7 March 2017, Respondent seeks relief in the following terms:48

(i) A declaration that Respondent's witness statements and accompanying evidence are admitted to the record;

(ii) A declaration that, as a result of Respondent's evidence of fraud and corruption, the Tribunal lacks jurisdiction to determine all of TCC's claims or all of Claimant's claims are inadmissible and are dismissed, with prejudice, or all of Claimant's claims are unsuccessful on the merits and are dismissed, with prejudice;

(iii) An order that Claimant should pay all costs incurred in connection with these arbitration proceedings, including their own costs, the costs of the arbitrators and ICSID, as well as the legal and other expenses incurred by Respondent, including the fees of its legal counsel, experts and consultants, as well as the expenses of Respondent's own officials and employees on a full indemnity basis, plus interest thereon at a reasonable rate; and

(iv) Such further or other relief as the Tribunal, in its discretion, considers appropriate.

207.
Respondent further continues to reserve all of its rights in respect of the Draft Decision, which it submits must be substantially revised to take account of the Tribunal's findings on Respondent's Application to Dismiss and to reflect the relief sought above.49

B. Claimant's Request for Relief

208.
In its Post-Hearing Brief dated 7 March 2017, Claimant requests that the Tribunal:50

(i) Dismiss the Application in its entirety and with prejudice;

(ii) Order Respondent to pay, on a full indemnity basis and with interest, all legal and other costs incurred since the beginning of these proceedings through the end of this phase; and

(iii) Order such other and further relief as may be just and appropriate in the circumstances.

VII. THE TRIBUNAL'S REASONING

209.
At the outset of its reasoning, the Tribunal wishes to emphasize that it has carefully reviewed all of the arguments and evidence presented by the Parties in the course of the present phase of the proceedings concerning Respondent's allegations of corruption as well as, to the extent relevant in the present context, the arguments and evidence adduced in the previous phase on jurisdiction and liability. Although the Tribunal may not address all such arguments and evidence in full detail in its reasoning below, the Tribunal has nevertheless considered and taken them into account in arriving at its decision.
210.
The Tribunal's reasoning is structured as follows: As a first step, the Tribunal will assess Claimant's objections to the admissibility of Respondent's Application and of the new evidence that Respondent has submitted in support of its Application. In case the Tribunal reaches the conclusion that Respondent's Application and the new evidence is admissible, it will, as a second step, examine the standard and burden of proof applicable to Respondent's allegations of corruption. As a third step, the Tribunal will analyze each of Respondent's factual allegations and determine whether these have been established in accordance with the applicable standard and burden of proof. Finally, in case the Tribunal finds that one or more of Respondent's factual allegations have been established, it will assess the legal consequences, if any, flowing from any such proven allegations.

A. Claimant's Objections to the Admissibility of Respondent's Application and of the New Evidence Respondent Has Submitted in Support of Its Application

1. Summary of Claimant's Position

211.
Claimant contends that there was not a "long running investigation into corruption" prior to Respondent's decision to assert accusations here in a belated attempt to frustrate this arbitration.51 Claimant argues that Respondent's enduring inaction despite its "awareness of allegations of corruption" since the inception of the Reko Diq project renders the Application inadmissible in three respects.52
212.
Firstly, Claimant submits that Respondent has failed to raise the allegations of corruption, which it has now raised in its Application, as preliminary objections during the generous time set by the Tribunal and thus that Respondent has waived any objections to the Tribunal's jurisdiction over, or admissibility of, Claimant's claims.53 Secondly, Claimant argues that Respondent's failure to pursue these allegations in a timely fashion also bars the Application, as a procedural matter by the doctrine of laches, and thirdly, as a substantive matter by the doctrine of acquiescence; both requiring denial of Respondent's request to admit new evidence and thus dismissal of the Application.54

a. Respondent's Application is Time-Barred

213.
Claimant submits that ICSID Arbitration Rules 41 and 26 govern the Tribunal's determination of whether Respondent can assert preliminary objections at this stage of proceedings.55 Claimant rejects: (i) Respondent's "flawed proposition" that these rules do not apply to corruption; and (ii) the alleged impossibility of presenting this evidence earlier.56 To the contrary, Claimant maintains that Mr. Farooq's corrupt reputation, the fact that corruption was "common knowledge" and the fact that there were no barriers to Respondent questioning its officials, gave ample basis for inquiry.57
214.
Claimant argues that Respondent's suggestion that Rule 41(1)'s mandatory language (objections "shall" be submitted "no later than" the counter-memorial deadline) should be disregarded given: (i) the Tribunal's obligation to investigate corruption; and (ii) the language in Rule 41(2) permitting the Tribunal to consider jurisdiction at any stage, should be dismissed. Relying on commentators and various tribunals, Claimant submits that that key issue is the parties' equal right to due process which includes a respect for the Tribunal's time limits.58
215.
Respondent's further suggestion that corruption allegations constitute "special circumstances" under Rule 26(3) is also rejected by Claimant.59 Claimant criticizes Respondent's incorrect characterization of the World Duty Free and Metal-Tech decisions and instead cites Siag to support the fact that Respondent's failure to exercise diligence expected of a party with corruption concerns is sufficient to dismiss its challenges to jurisdiction and admissibility as time-barred.60

b. Laches Bars Respondent's Application

216.
Claimant submits that laches is based on notions of equity and fairness and constitutes "the exclusion of all pretensions to right" on the basis of "the length of time during which that right has been neglected."61 Claimant perceives that Respondent's assertion that this doctrine does not apply since this is a challenge to jurisdiction in an existing claim, not an overdue claim, misses the point by focusing on the label rather than the substance of submissions.62 Claimant maintains that these allegations have created a new phase in proceedings, comparible to a new case, not simply a procedural request for consolidation as in the Canfor & Tembec cases cited.63
217.
Moreover, referring to the Gentini and Cadiz cases, Claimant argues that the delay has had a significant effect on the nature and the quality of available evidence.64 Claimant alleges that its prejudice has been compounded by Respondent continuing to make new allegations (including the belated introduction of Mr. Iqbal's testimony) as evidenced by its ever-shifting testimony and the ease with which witnesses have been willing to deny such allegations.65

c. Acquiescence Bars Respondent's Application

218.
Claimant refers to a number of international tribunals holding that respondent states cannot ignore corruption and then try to use such alleged illegality as a shield against investment claims.66 Thus, by reason of its two-decade long failure to investigate and prosecute, Claimant perceives that Respondent should be deemed to have acquiesced to the lapse of the claim.67
219.
Claimant submits that Respondent's suggestion that any corruption, no matter how minor or how late the allegations are raised, should result in the Tribunal dismissing the investor's claims no matter their merit nor whether the state has attempted to punish its own official's conduct, would create perverse incentives in favour of corruption.68 Claimant explains that despite countless opportunities to investigate the alleged corruption, Respondent was miraculously able to unearth its allegations after only a few days of interviews; Claimant draws similarities to a recent decision in the Supreme Court of Pakistan to contend that NAB is abusing its powers for purposes extraneous to anti-corruption goals in order for Respondent to avoid liability in this international arbitration.69

2. Summary of Respondent's Position

220.
Respondent submits that it has not waived any of its objections and there are no procedural restrictions that bar its Application.
221.
Firstly, in accordance with ICSID Arbitration Rule 41(1), Respondent argues that it has raised objections "as early as possible."70 While Claimant's corrupt practices may have been suspected, Respondent emphasizes a distinction between rumors and tangible evidence which could be placed before a tribunal. Additionally, Respondent claims that Claimant's suggestion that Respondent waited for "two decades of deliquence" is unsubstantiated given the investigations which were indeed initiated.71 Respondent argues that it was unable to raise its objections earlier due to Claimant's failure to comply with disclosure obligations, concealing payments and witnesses.72
222.
Nonetheless, if the Tribunal determines that Respondent's new evidence was filed outside the time limits, Respondent argues that the Tribunal should make use of its power to examine its jurisdiction under ICSID Arbitration Rule 41(2) as well as its ex officio obligation to investigate and rule upon the existence and consequences of corruption.73
223.
Furthermore, Respondent contends that in accordance with ICSID Arbitration Rule 26(3), "special circumstances" exist that entitle the Tribunal to disregard any applicable time limits – there is allegedly no doubt that the new evidence is significant enough to warrant the exercise of the Tribunal's power given that it goes directly to the jurisdiction of the Tribunal and the admissibility of the claims.74 Respondent contends that the Siag case is not instructive given that it did not concern corruption allegations.75
224.
Respondent further contends that the doctrine of laches does not apply here since: (i) this is not an application concerning an overdue claim, but Respondent is challenging jurisdiction in an existing claim; and (ii) the application of this equitable principle is not supported by Arbitration Rules or ICSID case law.76 Respondent also considers that the doctrine of acquiescence does not apply since corruption has not been "ignored" as alleged by Claimant. In this regard, Respondent refers to prior investigations and its updates to the Tribunal on the NAB inquiry.77

3. Tribunal's Analysis

225.
The Tribunal notes that Claimant's first argument, i.e., that Respondent has waived any further preliminary objections under ICSID Arbitration Rule 41, relates exclusively to Respondent's claim that, based on the alleged acts of corruption, the Tribunal lacks jurisdiction to hear Claimant's claims and/or Claimant's claims are inadmissible. This first argument does not relate to Respondent's further claim that Claimant's claims should also fail on the merits or to the admission of the new evidence that Respondent has submitted in support of its Application. Therefore, the Tribunal will address the alleged waiver of preliminary objections first.
226.
In the context of its further arguments, Claimant takes the position that Respondent's Application as a whole is time-barred, based on the doctrine of laches or extinctive prescription and on the doctrine of acquiescence, and also opposes the admission of the new evidence. These arguments will be addressed second.

a. Allegation that Respondent Has Waived Any Further Objections to the Tribunal's Jurisdiction and Admissibility of Claimant's Claims

227.
Claimant firstly argues that, taking into account the advanced stage of the proceedings, Respondent has waived any further objections to the Tribunal's jurisdiction or the admissibility of Claimant's claims and makes reference to ICSID Arbitration Rules 41(1) and 26(3).78 ICSID Arbitration Rule 41, which deals with "Preliminary Objections," provides in relevant part:

"(1) Any objection 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 shall be made as early as possible. A party shall file the objection with the Secretary-General no later than the expiration of the time limit fixed for the filing of the counter-memorial, or, if the objection relates to an ancillary claim, for the filing of the rejoinder—unless the facts on which the objection is based are unknown to the party at that time.

(2) The Tribunal may on its own initiative consider, at any stage, of the proceeding, whether the dispute or any ancillary claim before it is within the jurisdiction of the Centre and within its own competence."

228.
ICSID Arbitration Rule 26, which is concerned with "Time Limits," provides in relevant part:

"(3) Any step taken after expiration of the applicable time limit shall be disregarded unless the Tribunal, in special circumstances and after giving the other party an opportunity of stating its views, decides otherwise."

229.
There is common ground between the Parties that Respondent raised the specific allegations of corruption that have been the subject of the present phase of the proceedings for the first time after the oral hearing on jurisdiction and liability and after the filing of the Parties' post-hearing briefs, at a time when the Tribunal was deliberating on its decision on jurisdiction and liability. It is therefore undisputed that Respondent did not raise its objections to jurisdiction and admissibility on the grounds of alleged corruption within the time limits set for its Counter-Memorial or its Rejoinder filed in the jurisdiction and liability phase of the proceedings.
230.
Respondent takes the position that it has raised its objections "as early as possible" given that the facts on which they are based were unknown to it and it did not have tangible evidence to support them, until it established the Group of Experts to re-examine the allegations of corruption relating to the Reko Diq project.79 Respondent thus invokes the exception provided in Rule 41(1): "… unless the facts on which the objection is based are unknown to the party at the time." In addition, Respondent notes that pursuant to Rule 41(2), the Tribunal may at any stage of the proceedings consider at its own initiative whether it has jurisdiction to hear the claims before it and claims that the Tribunal has an ex officio obligation "to investigate and rule upon the existence and consequences of corruption."80 Finally, Respondent invokes the existence of "special circumstances" within the meaning of Rule 26(3), arguing that it has presented the Tribunal with new evidence "in a timely manner and there can be no doubt that the new evidence is significant enough to warrant the exercise of the Tribunal's power."81
231.
As to Respondent's argument that the facts underlying its allegations of corruption were not known to it at the time it filed its written submissions on jurisdiction and liability, Claimant correctly points out that Respondent's own witnesses have testified that the alleged corruption was "widely known" and "common knowledge" within the BDA at the time the alleged acts of corruption took place.82 While Respondent acknowledges that "TCC's corrupt practices had long been suspected" but distinguishes between rumors and "tangible evidence that can be placed before a tribunal,"83 the Tribunal notes that Respondent did not provide an entirely satisfactory explanation as to why a Group of Experts was only established in 2015 and, most importantly, why the individuals that have now appeared as Respondent's witnesses had never been interviewed about the suspicions of corruption as part of the investigations that Respondent claims to have been ongoing since 2011.84 In fact, Respondent itself submits that the Group of Experts was established in the course of settlement negotiations between the Parties following the oral hearing on jurisdiction and liability, in order to "get to the bottom of the matter," i.e., of the purported irregularities identified by the investigation in 2011 and by the Supreme Court in 2014, and that it for the first time identified "specific instances of corrupt practices" in connection with the Reko Diq project.85
232.
While the Tribunal is therefore not entirely convinced by the justification provided by Respondent regarding the timing of its investigations into the suspicions of corruption, the Tribunal is willing to accept that if the alleged instances of corruption on which Respondent relies actually happened, Respondent may not have been aware of them. Consequently, the Tribunal considers that it would go too far to assume that Respondent has waived its right to raise objections to jurisdiction and admissibility on these grounds. Any possible delay in obtaining knowledge of the relevant facts can, and will, be taken into account in the Tribunal's evaluation of the evidence. In particular, any potential consequences that such delay may have had on Claimant's ability to adduce counter-evidence should not be held against it.
233.
In addition, the Tribunal considers that in view of the seriousness of at least some of the allegations raised by Respondent and the fact that Respondent has advanced ten witnesses that testify to having paid or accepted bribes in connection with the Reko Diq project, there are indeed "special circumstances" that justify to hear Respondent's objections to jurisdiction and admissibility despite the fact that they have been raised only at a very late stage of the proceedings. The Tribunal is aware of Claimant's objection to the qualification of Respondent's allegation as "special circumstances" and its argument that there is no need to consider these as objections to jurisdiction or admissibility given that the Tribunal "may appropriately consider the effect of the allegations as an affirmative defense on the merits to TCCA's claims."86 However, the Tribunal does not agree with this argument in its general form, taking into account the different legal issues to be addressed within an assessment of jurisdictional and admissibility objections on the one hand and the assessment of liability on the merits on the other, as demonstrated by the Legal Opinion of Judge Schwebel that Respondent submitted in this proceedings.87 Similarly, a finding that the Tribunal lacks jurisdiction to hear certain claims cannot be equated with a finding that such claims fail on the merits.
234.
Consequently, the Tribunal concludes that the allegations raised by Respondent in its Application give rise to "special circumstances" that justify hearing its objections to jurisdiction and admissibility at this stage of the proceedings.

b. Allegation that Respondent's Application and the New Evidence It has Submitted are Barred Based on the Doctrine of Laches and the Doctrine of Acquiescence

235.
As a separate argument, Claimant claims that Respondent's "long delay in submitting allegations and evidence of this kind" is sufficient to bar Respondent's Application, invoking the principle of laches or "extinctive prescription" and the doctrine of acquiescence. On that basis, Claimant also objects to the admission of the new evidence submitted by Respondent in support of its allegations of corruption.88
236.
Claimant claims that under the principle of laches, "a party's undue delay in asserting a claim is considered, and can justify denial of the claim" and argues that the rationale underlying this principle, which is based on "fundamental notions of equity and fairness," applies "with special force here." In Claimant's view, the admission of the new evidence would be unduly prejudicial to Claimant, arguing that such evidence is "fundamentally unreliable," disproven by the documentary record and, in some instances, concerns very distant events as a result of which evidence and witnesses may no longer be available to effectively mount a defense, and has been obtained by Respondent "by misusing its sovereign police power as a discovery tool."89
237.
In the Tribunal's view, none of the above-mentioned considerations justify barring Respondent's Application or denying Respondent's request to admit the new evidence into the record. As mentioned above, any prejudice caused to Claimant and its ability to adduce counter-evidence can, and will, be taken into account in the Tribunal's evaluation of the evidence. In particular, the Tribunal will ensure that the fact that, as noted by Claimant, relevant parties and possible witnesses such as Chris Arndt and the former Chief Minister Muhammad Yousaf have passed away in the meantime,90 will not go to Claimant's detriment. In addition, the Tribunal will take into account both Parties' submissions as to the circumstances in which the testimony of Respondent's witnesses was obtained and make its own assessment on Claimant's allegations in this regard, to the extent that it considers such allegations established on the facts of this case.
238.
Claimant further relies on the doctrine of acquiescence, arguing that "there is strong support among arbitration tribunals and commentators … for the rule that a respondent state should not be allowed to invoke corruption as a defense against investor claims if it has failed to genuinely investigate or prosecute the alleged corruption."91 According to Claimant, the right to assert a claim is lost through acquiescence when a State "fail[s] to assert a claim when a State would be expected to do so," in particular when the ignorance invoked by the State was caused by a negligent failure to investigate.92 In this regard, Claimant refers to "two decades of delinquence" in which no serious investigation was conducted given that Respondent "did not so much as interview a single witness on allegations of corruption or review any documents or government records save the Supreme Court record."93
239.
The Tribunal has already noted above that Respondent has not provided an entirely satisfactory explanation as to why it only established the Group of Experts in order to "get to the bottom of the matter" in 2015.94 In addition and while Respondent emphasizes that "[t]he public officials implicated in corruption in this case are subject to the NAB's on-going criminal inquiry – Pakistan is not letting them go free,"95 it has not denied Claimant's submission that the NAB inquiry that was commenced after the Group of Experts had been disbanded in June 2015, has not yet been converted into a formal investigation and that so far, no individual prosecution has been initiated against any of Respondent's witnesses – despite the fact that they provided sworn testimony to the NAB in which they confessed to having paid or accepted bribes.96
240.
Nevertheless, and taking into account that there has not been complete inaction of Respondent in respect of investigating the allegations of corruption, the Tribunal does not consider it justified to bar Respondent's Application from being heard or the new evidence from being admitted into the record. In the Tribunal's view, the current status of the NAB inquiry as well as the above noted considerations regarding the overall timing of the investigations, in particular the forming of the Group of Experts, should rather form part of the Tribunal's evaluation of the evidence and, specifically, the assessment of the credibility of the account that Respondent's witnesses have given on the alleged acts of corruption.

c. Conclusion on Claimant's Objections and the Admission of the New Evidence

241.
In conclusion, Claimant's objections to the admissibility of Respondent's Application are dismissed and the concerns raised by Claimant regarding the timing and further circumstances surrounding the investigations conducted by Respondent will be taken into account on the merits – as part of the Tribunal's evaluation of the evidence presented by both Parties.
242.
As to the new evidence submitted by Respondent, which has up to date been admitted only de bene esse, the Tribunal decides to admit such evidence, as well as the counter-evidence submitted by Claimant, into the record.

B. Approach to Respondent's Application

243.
At the outset of its assessment of the merits of Respondent's Application, the Tribunal takes note of the concern expressed by Respondent that the Tribunal may be inclined to attribute more credibility to Claimant's witnesses, whom Respondent describes as "articulate, polished English-speaking professionals," than to the witnesses presented by Respondent, to whom Respondent refers as "parochial government employees operating in a process-driven but ultimately corrupt environment."97
244.
At this point, the Tribunal wishes to emphasize that it is well aware of the unfamiliar situation in which witnesses testifying to a tribunal find themselves, which may have been particularly the case for Respondent's witnesses, as well as of the interpretation issues that arose during the oral testimony given by the witnesses who testified in Urdu. The Tribunal has taken Respondent's concern seriously and has taken particular care to make its assessment of the credibility of the witnesses' accounts independent of the cultural differences which Respondent has highlighted and independent of a particular witness's ability to articulate their account of the events in a well-formulated manner.
245.
As a second preliminary matter, Respondent has expressed the concern that the Tribunal may be vulnerable to a "confirmation bias" given that it has already provided the Parties with its Draft Decision on Jurisdiction and Liability, which contains findings that, but for the corruption allegations raised by Respondent in its Application, Claimant succeeds in its claims. Specifically, Respondent argues that the Tribunal may be inclined to "ignore inconvenient evidence which undermines the Draft Decision" and emphasizes the importance of "not glossing over factual allegations."98
246.
The Tribunal wishes to note that it has taken the allegations raised by Respondent in its Application very seriously, as demonstrated, inter alia, by the fact that it has heard the Parties in a separate phase of proceedings dealing exclusively with these allegations, which consisted of two rounds of written submissions, a total of 13 days of oral hearings in which all 24 fact and expert witnesses were heard, and written post-hearing submissions. The Tribunal further recalls that, while Claimant requested in its October 2015 Opposition, inter alia, that the Tribunal proceed to issue its Decision on Jurisdiction and Liability on the basis of the evidence in the record, the Tribunal informed the Parties on 27 October 2015 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."
247.
At that point and throughout this phase of the proceedings, the Tribunal has always been aware that Respondent's allegations, if and to extent they would be proven in the course of this separate phase, could warrant a substantial revision of the conclusions the Tribunal had reached in its deliberations on the basis of the evidence in the record by the time Respondent submitted its Application. The members of the Tribunal have therefore been careful to review and evaluate the new submissions and new evidence presented by the Parties with an open mind and with the constant aim of avoiding what Respondent has described as "confirmation bias."
248.
In this context, the Tribunal also takes note of the concerns expressed by Respondent in its letter of 30 June 2017 regarding the Tribunal's approach to issue a Decision on Respondent's Application to Dismiss the Claimants (with Reasons to Follow) and the fact that the Tribunal took more time than expected by Respondent to draft and finalize this fully reasoned Decision. For the reasons set out in its message of 4 July 2017, the Tribunal re-confirms that it has given itself sufficient time to fully and properly review the Parties' Post-Hearing Briefs and to deliberate on each of the allegations raised in Respondent's Application, with an open mind, before rendering its Decision with Reasons to Follow on 20 March 2017. In particular, the reasons for the Tribunal's conclusion on each individual allegation, which are now set out in the present Decision in detail, were fully discussed and agreed between the members of the Tribunal before that date.
249.
More specifically, the Tribunal has carefully considered and thoroughly discussed the written and oral testimony provided by all 24 witnesses in this phase of the proceedings as well as the documentary evidence, in particular, Mr. Aziz's diaries and the evidence produced in relation to their authenticity, as well as all other contemporaneous documents presented by the Parties. On that basis, the Tribunal has assessed each of Respondent's allegations by taking into account both the direct evidence and the surrounding circumstances invoked by Respondent and, in addition, it has evaluated the Parties' more general submissions, including on the timing and circumstances in which the evidence was produced, as noted above.
250.
In the following analysis, the Tribunal will first address the standard and burden of proof in respect of Respondent's allegations of corruption, including the question as to the requirements that would have to be proven. As a second step, the Tribunal will assess the factual circumstances, i.e., whether and to what extent Respondent's allegations of corruption have been proven on the facts of the case as established on the basis of the evidence in the record. Finally, if and to the extent such allegations have been proven, the Tribunal will assess the legal consequences arising from its findings on the facts.

C. Standard and Burden of Proof

1. Summary of Respondent's Position

a. Standard of Proof

251.
Respondent submits that the Tribunal has discretion as to the applicable standard of proof. According to Respondent, the Tribunal should apply the ordinary civil 'balance of probabilities' standard and reject Claimant's claims under the Treaty if it is more likely than not that Claimant engaged in corruption with the intention of obtaining, maintaining or expanding its investment.99 Respondent argues that Claimant attempts to impose a more onerous standard which goes beyond that required by international law.100
252.
Respondent submits that there is a lack of uniform approach to the standard in corruption cases. Various tribunals (Metal-Tech v. Uzbekistan, Desert Line v. Yemen and Rompetrol v. Romania) have confirmed that a flexibility to adopt the appropriate standard should be adopted by tribunals, evaluating the evidence before them.101 Respondent maintains that this approach was confirmed by Judge Higgins and codified by the ICSID Convention in Articles 43-45 and in ICSID Arbitration Rule 34.102
253.
Respondent therefore firstly rejects the necessity for "but-for" causation; while the causal link between the investment and corruption may be one of the factors that impacts the Tribunal's analysis, Respondent contends that any corruption made in connection with the investment is pertinent to the outcome.103 Respondent criticizes Claimant's reliance on cases which not only fail to support the application of such a strict requirement, but in a number of instances directly contradict it.104 In fact, Respondent refers to Sistem Muhendislik Insaat Sanayi ve Ticaret A.S. v. Kyrgyz Republic where the tribunal observed that "regular payments over a period of time effectively 'buy' the long-term goodwill of the recipient" and "make it difficult to establish a causal link between the bribe and the advantage that it procures."105 Respondent thus argues that in most cases its evidence does establish a link, but where this is not so, the Tribunal should "connect the dots," inferring a link between payments and Claimant's investment.106
254.
Respondent submits that Claimant's reliance on Niko is inapposite since Claimant fails to mention that the tribunal's purported dismissal of the corruption defence for lack of causation, was a mere jurisdictional decision.107 Respondent maintains that Tanesco was a commercial case dealing with contractual rights, not investment treaty rights, therefore the causal link required to be established in that case is not comparable to that which is required to exist here.108 In World Duty Free, Respondent submits that the type of causal link required to enable Kenya to lawfully avoid the contract was of secondary importance; the investor's claims were ultimately dismissed as corruption constituted a breach of transnational public policy.109
255.
Respondent refers to the late Professor Wälde in the Methanex v. United States case and the tribunal in Metal-Tech to support the argument that the Tribunal should "connect the dots" created by circumstantial evidence, notwithstanding the absence of any direct evidence of investor wrongdoing.110 Respondent maintains that Mr. Farooq's corrupt conduct, the widespread Pakistani corruption and the fact that "one in five cases of transnational bribery occur in the extractive sector" constitute relevant circumstantial evidence, making it unrealistic to assume corruption is unlikely in this context.111 Respondent also refers to the World Bank's Sanctions Board's discretion in determining the relevance and sufficiency of evidence, as well as inferring intent and knowledge in corruption cases and thus argues that an ICSID tribunal should not apply an inconsistent standard of proof.112
256.
Respondent secondly rejects Claimant's assertion that Pakistan must prove any wrongfully obtained rights to be "foundational to TCCA's investment."113 While Respondent acknowledges the distinction between illegality at the inception of the investment and illegality during its performance, it does not accept that the latter would be "outside of the Tribunal's mandate."114 Respondent dismisses Claimant's authorities provided in support of its argument and additionally highlights that none of these (bar Metal-Tech) actually involved corruption.115 Respondent argues that Yukos was based on domestic tax law and cannot be compared to the special status of corruption in an international context.116 Respondent maintains that, to the contrary, to its knowledge, no investment treaty tribunal has yet had to consider the legal effect of corruption during the performance of an investment.117 Respondent also deems Claimant's reliance on NIOC to be inapposite since it does not introduce a general principle that "nebulous concepts, like 'tainting', simply cannot be employed in order to trump the fundamental requirement of causation" as Claimant's counsel argued in its opening statement at the hearing.118
257.
Respondent maintains that there is a clear commentator, practitioner and tribunal consensus that the starting point for the standard of proof for corruption should be the ordinary civil standard – is it "more likely than not" that corruption has occurred?119 Pakistan asserts that Claimant's reliance on a handful of international arbitration cases, mainly commercial cases settled in accordance with domestic law, does not support the use of the heightened "clear and convincing evidence" standard.120
258.
Respondent refers to Contantine Partasides QC's remarks in relation to the EDF v. Romania award which Claimant cites in support of this heightened standard.121 Respondent maintains that it creates an impossible tension by recognizing that corruption is notoriously difficult to prove but nevertheless raising the evidential hurdle to make it harder to prove than other allegations. Respondent further maintains that the tribunal in Tokios Tokeles v. Ukraine, also rejected arguments for a heightened standard of proof and determined that the starting point should always be the 'balance of probabilities'.122

b. Burden of Proof

259.
While Respondent accepts that it bears the overall burden of proof, it argues that Claimant has failed to refute any of the international law authorities which support the concept that where it establishes prima facie proof, and Claimant possesses evidence to rebut it, the burden may shift.123 Respondent refers to Constantine Partasides' statement that "plausible evidence of corruption, offered by the party alleging illegality, should require an adequate evidentiary showing by the party denying the allegation" and maintains that this has been expressly acknowledged in Fraport II.124 Pakistan asserts that these observations also accord with the decisions of various other tribunals including but not limited to Rockwell v. Iran, AAPL v. Sri Lanka, Middle East Cement v. Egypt, Feldman v. Mexico, International Thunderbird Gaming v. Mexico, and Siag v. Egypt.125
260.
Referring to Professor Cremades' standpoint and the tribunal in ECE v. Czech Republic, Respondent further maintains that should the Tribunal have any doubts, it has the duty under international law independently to inquire into and fully investigate that corruption.126

c. The Legal Standards Relevant to Mr. Aziz's Diaries

261.
As will be discussed in Section D.2.e below in relation to the Surface Rights Lease, Respondent relies on Mr. Aziz's diaries, which form part of a broader series of diaries kept by Mr. Aziz as Personal Assistant to Mr. Farooq (BDA Chairman), to substantiate its claim that Claimant made improper surface rights payments and other bribes. It claims that the diaries are authentic documentary evidence, debunking TCC's "grand conspiracy" theory.127
262.
Respondent refers to Churchill Mining v Republic of Indonesia to advance the argument that it has the initial burden of establishing the prima facie authenticity of the diaries, while Claimant has the burden of establishing fabrication.128 Respondent maintains that the Parties agree on this, but do not agree on what Respondent must do to satisfy this hurdle and whether or not it has been met.129
263.
Respondent criticizes Claimant's suggestion that the burden is "not a simple burden" based on Golshani.130 Respondent maintains that Claimant's reliance on this award is misplaced; the nature of the tribunal's inquiry clearly distinguishes it from the present case. Nonetheless, Respondent highlights the guiding statement from that award and maintains that Mr. Aziz's diaries do "inspire a minimally sufficient degree of confidence" in their authenticity, if indeed not a greatly higher level of confidence and as such, Pakistan's burden has been met for the following reasons.131
264.
Firstly, Respondent maintains that its witness evidence is itself enough to satisfy this burden.132 Pakistan maintains that the questions posed to Mr. Aziz during cross-examination, in an attempt to disprove his testimony were adequately answered and Mr. Farooq and Mr. Dad further corroborated his account.133
265.
Secondly, Respondent submits that it has given Claimant every opportunity to inspect the diaries.134 Even if the Tribunal accepts Claimant's argument that they should have been made available at a particular location, Respondent maintains that due to ongoing criminal investigations, there are legitimate reasons for their only being available in Pakistan.135 Respondent thus maintains that to the extent Claimant takes the position that Mr. Aziz's diaries cannot be authenticated without having been produced in original form, such an argument must fail.136
266.
Thirdly, Respondent maintains that the case-law on which Claimant relies to suggest that the diaries should be excluded can be distinguished.137 Respondent argues that the claimant in EDF did not provide a similarly legitimate reason for the non-production of an audio recording and the claimant's own expert witness was unable to examine the original recording. Here, however, leading forensic examiner Mr. LaPorte has produced a report following forensic examination which concludes that there was "not a single feature in these questioned documents to suggest that they were fraudulently prepared" as alleged.138 Respondent thus contends that there is no basis for comparing Mr. Aziz's diaries with the unexamined and clearly altered audio recordings in EDF.139 Respondent further distinguishes Europe Cement on the factors the tribunal considered relevant to an assessment of (in)authenticity of documents. Respondent maintains that here there is corroborating witness evidence of authenticity which did not exist in Europe Cement. Respondent has produced originals for inspection and Mr. Aziz's diaries have withstood forensic scrutiny.140
267.
Respondent thus contends that having discharged its burden of prima facie proving the authenticity of the diaries, the burden of proving fabrication is upon Claimant. This will be considered in light of the forensic examination results and circumstances surrounding the relevant diary entries in Section D.2.e below.

2. Summary of Claimant's Position

a. Standard of Proof

268.
Claimant argues that it is insufficient for Respondent to establish that at some point during the project, Claimant ran afoul of the law. Arbitrators should not be surrogates for the host state's government, policing all investor misconduct without regard to the limited civil nature of the dispute before it.141
269.
Firstly, Claimant contends that, provided Respondent could prove that the alleged corruption actually occurred, it would then need to prove that such corruption caused Claimant to obtain a right or benefit to which it was otherwise not entitled (the 'but-for' element).142 Claimant argues that Respondent has not even so much as alleged such a causal link with respect to many of its allegations and although corruption is hard to prove, tribunals do not have a licence to engage in gap-filling.143 Claimant refers to the tribunal in Niko which maintained that when dealing with corruption allegations, a tribunal should "only decide on substantiated facts, and cannot base itself on inferences" drawn from circumstantial evidence.144
270.
Claimant submits that the authorities advanced as support for its connect-the-dots theory of causation do not allow Respondent to escape the 'but-for' obligation.145 Claimant criticizes Respondent's ignorance to the fact that in Sistem v Kyrgyz Republic, although acknowledging that a causal link might be "difficult to establish," the tribunal did not conclude that this difficulty meant that the requirement should be dispensed with.146 Claimant further argues that although the Methanex award did use the phrase "connecting the dots," it took pains to caution against misuse of that approach in precisely the way Respondent attempts to do here.147 Claimant further deems Respondent's reliance on the Metal-Tech award to be misplaced. Contrary to the impression Respondent seeks to give, Claimant maintains that the tribunal did not jump from fact to fact, speculatively filling in gaps, nor did it conduct an inquisition by suspicion but instead maintained a straightforward application of a tribunal's powers under the ICSID Rules and the IBA Rules.148
271.
Claimant maintains that World Duty Free supports the causation requirement since the decision exemplifies that a tribunal should not allow a respondent state to avoid a transaction and deny an investor relief, if the state cannot show that the investor's alleged wrongdoing in fact induced the official acts.149 Claimant further maintains that it is no surprise that when a state does not establish such causation, tribunals (such as those in Niko and Tanesco) have given no effect to the corruption allegations, even when the allegations are undisputed or proved to be true.150 Claimant submits that Respondent attempts to avoid this evident causation requirement only by misreading the Niko, Tanesco and World Duty Free decisions and mischaracterizing the arguments advanced by Claimant in its Opposition.151
272.
Secondly, Claimant argues that Respondent must prove that Claimant obtained foundational rights through the alleged corruption, while any allegations which do not concern these rights are collateral and not properly within the remit of the Tribunal.152 Claimant maintains that Respondent advances no authority demonstrating that any corruption relating to any aspect of the investment must be fatal to Claimant's claims (it thus sufficing that Claimant's rights were 'tainted' by the alleged corrupt acts).153 Claimant cites Yukos in support of its contention that Respondent disregards two well-established distinctions that tribunals have drawn in cases of corruption; between illegality at the inception of an investment, which could bar an investor's claims, and illegality during the performance of that investment, which does not.154
273.
Claimant refers to the rejection of a similar 'tainting' theory from an English case, NIOC.155 Claimant submits that this test would provide an exceedingly low hurdle meaning any act of bribery, whenever it occurred and no matter how peripheral, would be sufficient to bar a treaty claim. In fact, as the Fraport II tribunal explained, the illegality must get to the "essence of the investment."156 Claimant urges the Tribunal not to manufacture a rule "out of thin air" to allow Respondent to escape liability for its alleged violations of international law.157
274.
Thirdly, Claimant argues that Respondent has failed to address the authorities (including EDF, Fraport II and Siag) which support the need for clear and convincing evidence.158 In support of the 'balance of probabilities' standard, Pakistan relies on cases which actually acknowledge the weight of authority in favor of the higher standard.159 As conceded by Respondent, the Tribunal is indeed free to choose the most relevant standard based on the circumstances, which in cases of grave misconduct such as corruption, has been deemed the "clear and convincing" standard by several international tribunals.160 Moreover, the blind use of the English balance of probabilities standard would ignore the confirmation from the English courts that this embodies a "generous degree of flexibility in respect of the seriousness of the allegation," thus for more serious corruption allegations, the stronger the evidence needs to be.161 Finally, Claimant argues that Respondent misses the point arguing that it is "unrealistic to start from the premise that corruption is inherently unlikely" given Mr. Farooq's corrupt reputation and widespread Pakistani corruption, since what is being tested are specific allegations made against Claimant here, not simply general propositions.162

b. Burden of Proof