Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 635 of 1447 INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES WASHINGTON, D.C. In the arbitration proceeding between TETHYAN COPPER COMPANY PTY LIMITED Claimant and ISLAMIC REPUBLIC OF PAKISTAN Respondent ICSID Case No. ARB/12/1 DECISION ON JURISDICTION AND LIABILITY Members of the Tribunal Rt. Hon. Lord Leonard Hoffmann Dr. Stanimir A. Alexandrov Professor Dr. Klaus Sachs, President Secretary of the Tribunal Mrs. Mercedes Cordido-Freytes de Kurowski Date of dispatch to the Parties: 10 November 2017 Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 636 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 Representation of the Parties Claimant Respondent Mr. Donald Francis Donovan Mr. Ahmad Irfan Aslam Mr. Mark W. Friedman Mr. Mian Shaoor Ahmad Mr. Dietmar W. Prager Mr. Abdul Rafay Siddiqui Ms. Natalie L. Reid Office of the Attorney General for Mr. Carl Riehl Pakistan Ms. Rushmi Bhaskaran Supreme Court Building Ms. Berglind Halldorsdottir Birkland Constitution Ave. Debevoise & Plimpton LLP Islamabad 919 Third Avenue Pakistan New York, NY 10022 U.S.A. Mr. Ignacio L. Torterola GST LLP and 1875 I Street NW 5th floor 20006 - Washington D.C. Ms. Elizabeth Nielsen U.S.A. Debevoise & Plimpton LLP 801 Pennsylvania Avenue, N.W. and Washington, D.C. 20004 Mr. Quinn Smith and Mr. Diego B. Gosis GST LLP Lord Goldsmith QC 175 SW 7th Street #2110 Mr. Patrick Taylor Miami, FL33130 Debevoise & Plimpton LLP U.S.A. Tower 42 Old Broad Street and London EC2N 1HQ United Kingdom Mr. Ali Zahid Rahim Axis Law Chambers and 67-C-1, Gulberg III Lahore 54660 Mr. Feisal Hussain Naqvi Pakistan HaidermotaBNR 15 Zafar Ali Road and Gulberg V Lahore Mr. Usman Raza Jamil Pakistan URJ & Co #30, Saeed Anwar Block Gaddafi Stadium Lahore Pakistan i Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 637 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 Frequently Used Abbreviations and Acronyms 1970 BMC Rules Balochistan Mineral Concession Rules, 1970, also known as 1970 BMCR 1995 NMP National Mineral Policy, dated September 1995 [Pakistan] National Mineral Policy, dated February 2013 2013 NMP [Pakistan] 2002 BM Rules Mineral Rules enacted by Balochistan in 2002 to implement the National Mineral Policy 2000 Addendum The 2000 Addendum to the CHEJVA dated 4 March 2000 Antofagasta Antofagasta plc Application Mining Lease Application submitted to the Licensing Authority by TCCP on 15 February 2011 Atacama Atacama Copper Company Pty Limited Australia-Pakistan Treaty Agreement between Australia and the Islamic Republic of Pakistan on the Promotion and Protection of Investments, dated 7 February 1998 Balochistan Province of Balochistan Barrick Barrick Gold Corporation BDA Balochistan Development Authority BDA Act Balochistan Development Authority Act, 1974 BHP BHP Minerals International Exploration, Inc. BIT See "Treaty" 2002 BM Rules Balochistan Mineral Rules, 2002 Boggs I Witness Statement of Catherine (“Cassie”) Boggs, dated 1 February 2013 Boggs II Second Witness Statement of Catherine (“Cassie”) Boggs, dated 21 April 2013 CA Claimant's Authority CDWP Central Development Working Party, Planning Commission [Pakistan] CE Claimant's Exhibit Centre International Centre for Settlement of Investment Disputes CHEJVA Chagai Hills Exploration Joint Venture Agreement ii Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 638 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 CHEJVA Agreements CHEJVA, the 2000 Addendum, and the 2006 Novation Agreement Claimant's Rejoinder Claimant's Rejoinder on Jurisdiction and Counterclaim dated 12 September 2014 Constitution The Constitution of the Islamic Republic of Pakistan, as passed on 10 April 1973 and modified up to 28 February 2012 Counter-Memorial Respondent's Objections, Counter-Memorial and Counter-Claim dated 30 September 2013 Counterproposal Respondent's counterproposal to the Proposed Timetable for Document Production dated 8 November 2013 Deed of Waiver Deed of Waiver and Consent, dated 23 June 2000, between the Governor of Balochistan on behalf of the GOB and the BDA Disqualification Proposal Proposal to disqualify arbitrator under Article 57 of the ICSID Convention ECNEC Executive Committee of the National Economic Council [Pakistan] EPZ Export Processing Zone ESIA Environmental and Social Impact Assessment Expansion Study Expansion Pre-Feasibility Study Feasibility Study Feasibility Study for Initial Mine Development submitted by TCC to Balochistan on 26 August 2010 FET Fair and Equitable Treatment First Session First session pursuant to Rule 13(1) of the ICSID Arbitration Rules GOB The Government of Balochistan GOP The Government of Pakistan GSP Geological Survey of Pakistan GTZ / GIZ Deutsche Gesellschaft für Technische Zusammenarbeit (German Society for Technical Cooperation) Deutsche Gesellschaft für Internationale Zusammenarbeit (German Society for International Cooperation) H14 / H15 Principal copper-gold orebodies at the Western Porphyries, Reko Diq H4 Tanjeel copper orebody, Reko Diq iii Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 639 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 Harvard Articles Harvard Draft Convention on State Responsibility, 1929 Hearing Hearing on Jurisdiction, Liability and the Counter- Claims held between 6 – 17 October 2014 in Paris, France ICC Proceedings The parallel ICC Case 18347/VRO/AGF between Claimant and the Province of Balochistan ICC Rulings on Preliminary Issues Rulings on Preliminary Issues issued by the ICC Tribunal on 21 October 2014 ICSID International Centre for Settlement of Investment Disputes ICSID Arbitration Rules ICSID Rules of Procedure for Arbitration Proceedings in effect from 10 April 2006 ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States dated 18 March 1965 ICSID Institution Rules ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings ILC Articles International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts Joint Venture Unincorporated contractual joint venture between the BDA [Balochistan] and TCCA, governed by the CHEJVA Krcmarov Witness Statement of Robert Krcmarov, dated 23 July 2012 Exploration License EL-5 Exploration License designated EL-5, issued 18 May 2002, with retroactive effect as of 21 February 2002, for a period of three years Licensing Authority Director General of the MMDD served as the Licensing Authority Livesey IV Fourth Witness Statement of Timothy Livesey, dated 1 February 2013 Livesey V Fifth Witness Statement of Timothy Livesey, dated 23 April 2013 Luksic Witness Statement of Jean-Paul Luksic, dated 23 April 2014 MCC China Metallurgical Group Corporation Memorial Claimant's Memorial dated 1 February 2013 Mincor Mincor Resources NL iv Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 640 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 Mineral Agreement Agreement between mining venture and Federal and Provincial Governments, contemplated by 2002 BM Rules and 1995 NMP Mining Area Area at Reko Diq, measuring 99.473 square kilometers, over which TCCP sought mining lease pursuant to CHEJVA and 2002 BM Rules MMDD Mines & Mineral Development Department of the Licensing Authority [Balochistan] Director General served as the Licensing Authority Secretary decided administrative appeals on orders issued by the Licensing Authority MPNR Ministry of Petroleum and Natural Resource [Pakistan] Mubarakmand I Witness Statement of Dr. Samar Mubarakmand dated 21 September 2012 Mubarakmand II Second Witness Statement of Dr. Samar Mubarakmand dated 29 September 2013 NAFTA North American Free Trade Agreement entered into between Canada, Mexico and the United States, entered into force on 1 January 1994 NOC No-Objection Certificate Notice of Intent to Reject Licensing Authority's notice of intent to reject the Application dated 21 September 2011 2006 Novation Agreement Agreement pursuant to which Claimant became a party to the CHEJVA (replacing BHP) dated 1 April 2006 NPI Net profit interest P&DD Planning & Development Department [Balochistan] Pakistan Islamic Republic of Pakistan PC-1 Planning Commission Form PC-1 [Pakistan] PDWP Provincial Development Working Party [Balochistan] PL-4 Prospecting License covering the Reko Diq area, issued 8 December 1996 PL-14 Prospecting License covering the Reko Diq area, issued 21 February 2000 PO Procedural Order Pre-Feasibility Study Pre-Feasibility Study for Initial Mine Development v Case 1:19-cv-02424-TNM Document 1-1 Filed 08/09/19 Page 641 of 1447 Decision on Jurisdiction and Liability ICSID Case No. ARB/12/1 Project Agreement Agreement to be conducted between the Joint Venture partners pursuant to CHEJVA Clause 1.7, also known as the Shareholder Agreement Proposed Timetable for Document Production Claimant's proposal for a revised timetable for the production of documents dated 30 October 2013 Provisional Measures Hearing Hearing on the Provisional Measures Request held on 6 November 2012 Provisional Measures Rejoinder Respondent's rejoinder to the Provisional Measures Reply Provisional Measures Reply Claimant's reply to the Provisional Measures Response Provisional Measures Request Claimant's request for Provisional Measures Provisional Measures Response Respondent's response to Claimant's Provisional Measures Request RE Respondent's Exhibit 1994 Relaxation Order re: Relaxation