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International Centre for Settlement of Investment Disputes Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 1 of 37 International Centre for Settlement of Investment Disputes Case No. ARB/13/1 Karkey Karadeniz Elektrik Uretim A.S. Claimant v. Islamic Republic of Pakistan Respondent Request for Annulment of the Award dated August 22, 2017 in the case of Karkey Karadeniz Elektrik Uretim A.S. v. the Islamic Republic of Pakistan October 27, 2017 Mr. Ahmad I. Aslam Head International Disputes Unit Office of the Attorney General of Pakistan Islamabad - Pakistan Dr. Ignacio Torterola Dr. Diego Brian Gosis Mr. Quinn Smith GST LLP 1875 I Street N.W. 5th Floor Washington, D.C. 20006 Mr. Shahab Qutub Mr. Sameer Khosa Axis Law Chambers 5-S Gulberg II Lahore 54660 Pakistan Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 2 of 37 TABLE OF CONTENTS GLOSSARY OF ABBREVIATED TERMS AND ACRONYMS ............................................ 3 FORMAL REQUIREMENTS ............................................................................................. 7 IDENTIFICATION OF THE AWARD .......................................................................................... 7 DATE OF THE REQUEST FOR ANNULMENT ............................................................................ 7 GROUNDS FOR ANNULMENT ................................................................................................ 7 PAYMENT OF THE REGISTRATION FEE .................................................................................. 8 RELEVANT FACTS ............................................................................................................ 8 THE AWARD ..................................................................................................................... 15 GROUNDS FOR ANNULMENT UNDER THE ICSID CONVENTION ................ 16 MANIFEST EXCESS OF POWERS .......................................................................................... 17 SERIOUS DEPARTURE FROM A FUNDAMENTAL RULE OF PROCEDURE ................................ 17 FAILURE TO STATE REASONS ............................................................................................. 18 REASONS FOR ANNULMENT OF THE AWARD ...................................................... 18 IN RELATION TO THE ISSUES OF JURISDICTION ................................................................... 18 1. Manifest Excess of Power ............................................................................................. 19 2. Failure to State Reasons ............................................................................................... 21 IN RELATION TO THE ISSUES OF EXPROPRIATION ............................................................... 24 1. Failure to State Reasons ............................................................................................... 24 2. Serious Departure from a Fundamental Rule of Procedure ......................................... 25 3. Manifest Excess of Power ............................................................................................. 26 IN RELATION TO THE ISSUE OF FREE TRANSFER ................................................................. 27 1. Failure to State Reasons ............................................................................................... 27 2. Manifest Excess of Power ............................................................................................. 28 IN RELATION TO THE ISSUES OF CORRUPTION .................................................................... 29 1. The Tribunal Prevented Pakistan from Being Heard ................................................... 29 2. The Tribunal Did Not Provide Equal Treatment to the Parties .................................... 30 3. The Tribunal Departed from a Fundamental Rule of Procedure regarding Evidentiary Standards and Burden of Proof ............................................................................................ 31 IN RELATION TO THE ISSUES OF DAMAGES ........................................................................ 33 1. Serious Departure from a Fundamental Rule of Procedure ......................................... 33 2. Failure to State Reasons ............................................................................................... 33 3. Manifest Excess of Power ............................................................................................. 35 STAY OF ENFORCEMENT OF THE AWARD ........................................................ 36 REQUEST ....................................................................................................................... 36 2 Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 3 of 37 Glossary of Abbreviated Terms and Acronyms § Section(s) ¶ Paragraph(s) 2008 RSC Rental Services Contract between Karkey Karadeniz Elektrik Uretim A.S. and Lakhra Power Generation Company Ltd., dated December 5, 2008 Advance Payment Bank guarantee to be provided by Karkey as security for the Down Payment amounting to US $80 million Alican Bey Karadeniz Powership Alican Bey Amendment No. 1 Amendment No.1 to the 2009 RSC, dated December 8, 2009 Arbitration Rules Rules of Procedure for Arbitration Proceedings Award Award rendered on August 22, 2017 Backup Tapes Karkey’s electronic records for the period up to April 2010 BIT or Treaty or Pakistan-Turkey BIT Agreement Between the Islamic Republic of Pakistan and the Republic of Turkey Concerning the Reciprocal Promotion and Protection of Investments, which entered into force on September 3, 1997. Contract Act 1872 Pakistani Contract Act Contract or 2009 RSC Rental Services Contract between Karkey Karadeniz Elektrik Uretim A.S. and Lakhra Power Generation Company Ltd., dated April 23, 2009 Counter-Memorial Pakistan’s Counter-Memorial and Objections to Jurisdiction, dated January 23, 2015 3 Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 4 of 37 Decision on Provisional Measures Decision on Provisional Measures, dated October 16, 2013 Decision on the Request for Decision on the Respondent’s Request Bifurcation for Bifurcation, dated May 13, 2014 Draft RSC The draft contract appended to the Request for Proposal for Package B ECC Economic Coordination Committee of the Cabinet of Pakistan FBR Federal Bureau of Revenue FPLC Fuel Payment Letter of Credit Hearing hearing on Jurisdiction and Merits held in London from 29 February to 12 March 2016 Hearing on Provisional Measures Hearing on Provisional Measures held on October 8, 2013 Hr’g Tr. Hearing Transcripts ICSID International Centre for Settlement of Investment Dispute ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States, dated March 18, 1965 ILC International Law Commission Iraq and Enis Bey Two support vessels located in Pakistan Karkey Karkey Karadeniz Elektrik Uretim A.S. Karpak Karpak (Pvt.) Ltd. Kaya Bey Karadeniz Powership Kaya Bey Lakhra Lakhra Power Generation Company Ltd. 4 Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 5 of 37 LCIA London Court of International Arbitration LoA Letter of Award issued to Karkey on November 7, 2008 Memorial Karkey’s Updated Memorial on Jurisdiction and the Merits, dated October 10, 2014 MoWP Ministry of Power and Water of Pakistan NAB National Accountability Bureau Pakistan Islamic Republic of Pakistan PEPCO Pakistan Electric Power Company Limited PHB Post-Hearing Brief Powerships The Kaya Bey and The Alican Bey PPIB Private Power and Infrastructure Board of Pakistan Rejoinder Pakistan’s Rejoinder on Jurisdiction and the Merits, dated October 29, 2015 Reply Karkey’s Reply on Jurisdiction and the Merits, dated August 5, 2015 Request Request for Annulment RPP(s) Rental Power Project(s) Sovereign Guarantee Guarantee of the Islamic Republic of Pakistan, dated as of April 24, 2009 Supreme Court Supreme Court of Pakistan Supreme Court Judgment Judgment of the Supreme Court of Pakistan in the Rental Power Case, dated March 30, 2012 Sur-Rejoinder Karkey’s Sur-Rejoinder on Counterclaims, dated December 21, 2015 5 Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 6 of 37 Target COD Target Commercial Operations Date Vessels Karkey’s vessels in Pakistan, i.e., the Kaya Bey, the Alican Bey, the Iraq, and the Enis Bey 6 Case 1:18-cv-01461-RJL Document 11-8 Filed 09/28/18 Page 7 of 37 Request for Annulment made by the Islamic Republic of Pakistan 1. In accordance with Article 52 of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (“ICSID Convention”) and Arbitration Rule 50 of the Rules of Procedure for Arbitration Proceedings (“Arbitration Rules”), the Islamic Republic of Pakistan (“Pakistan”) respectfully presents this Request for Annulment (“Request”) of the Award issued in the case Karkey Karadeniz Elektrik Uretim A.S. v. the Islamic Republic of Pakistan (ICSID Case No. ARB/13/1) on August 22, 2017. Formal Requirements 2. Arbitration Rule 50(1) sets forth that an application for annulment of an award shall (a) identify the award to which it relates; (b) indicate the date of the application; (c) state the grounds on which it is based; and (d) be accompanied by the payment of a fee for lodging the application. The following sections shall deal with each of these requirements. Identification of the Award 3. Pakistan requests the annulment of the Award in the case Karkey Karadeniz Elektrik Uretim A.S. v. the Islamic Republic of Pakistan (ICSID Case No. ARB/13/1), rendered by Mr. Yves Derains, Sir David A.O. Edward, and Dr. Horacio A. Grigera
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