Express Tribune | 8 February 2019
Turkish RPP ship: Pakistan breathes $900mn sigh of relief
By Hasnaat Malik
ISLAMABAD: Pakistan’s negotiators breathed a sigh of relief after the International Centre for Settlement of Investment Disputes (ICSID) suspended an award worth over $860 million (Rs120 billion) in favour of Turkish power company Karkey Karadeniz Elektrik Uretim.
On August 22, 2017, ICSID made the award to Karkey after the company filed a case against the government of Pakistan for terminating its rental power project contract. The contract had been terminated on Supreme Court orders.
According to the initial ICSID award, Pakistan had to pay damages amounting to more than $800 million, along with $5.6 million (Rs590 million) per month as interest to Karkey. It is learnt that the total amount due is now approaching $900 million.
Sources revealed to The Express Tribune that the PTI-led government has initiated ‘revision proceedings’ in the ICSID to set aside the 2017 award in Karkey Karadeniz versus Pakistan, adding that Article 51 of the ICSID conviction allows parties to a dispute to bring to the tribunal any new facts that could decisively affect the award.
The sources claim that Pakistan has gathered fresh ‘evidence of corruption’ in the procurement of a rental power project (RPP) contract by the Turkish company.
“We are confident that by presenting this fresh evidence of corruption, Pakistan will establish that Karkey engaged in systematic corrupt practices to obtain a contract worth over $550 million for the supply of electricity. If this evidence is accepted, the whole award could be set aside by the tribunal”, said a senior government official.
It has also been learnt that due to the suspension of the award, enforcement proceedings against Pakistan have been halted. For much of last year, the company had approached different countries’ courts for the enforcement of the award.
Generally, revision proceedings can take a couple of years. Though the sources claim Pakistan has a very good case and has very solid and undeniable evidence, records show that around 600 parties have approached ICSID for the annulment of an award since 1960, and only 17 have been successful in getting revisions.
Now Pakistan has engaged new legal representation – GST LLP and Axis Law Chambers – to contest the revision proceedings before the ICSID.
In 2014, Pakistan hired Allen & Overy, a global law firm. Pakistan was obligated to pay £90,000 (Rs16.2 million) to Allen & Overy in addition to an hourly rate during hearings. Earlier, Pakistan had paid £200,000 (Rs36 million) to London-based firm BLP, but government officials including senior legal experts felt the firm was not properly contesting the case at the ICSID. Total fees agreed with the law firm were £1.4 million (Rs252.3) in addition to hourly fees.
Incidentally, former attorney general of Pakistan Makhdoom Ali Khan – who has represented eight countries before the ICSID – had offered his service for free, but the government of the day had decided to hire Allen and Overy.
A senior government official said that Pakistan has already expressed serious concerns over the award and that Pakistan’s previous legal team was not allowed to present key evidence regarding corruption on the part of the Turkish company.
Surprisingly, key witnesses such as Shahid Rafi, the water and power secretary at the time, were also not permitted to give statements before the arbitrators, he said.
In 2008, Karkey had obtained a contract from the government of Pakistan for the supply of electricity under the RPPs that had been instituted to meet the shortfall in electricity. Subsequently, the Supreme Court declared all RPPs contract void ab initio as there was a prima facie case that the contracts had been obtained by several private parties through corruption. The apex court had also instructed the National Accountability Bureau to investigate.
Aggrieved by the SC’s verdict, Karkey initiated proceedings in ICSID under Pakistan Turkey Bilateral Investment Treaty in January 2013. Karkey claimed that the SC decision had amounted to expropriation of its investment in Pakistan, which is violative of the provisions of the Pakistan-Turkey Bilateral Investment Treaty. On August 22, 2017, ICSID issued an award in favour of Karkey.
Earlier, the international arbitrators, while issuing the award, raised several questions over the Supreme Court’s judgment in the RPP case, adding that in their opinion, the fault lay in the SC decision to declare all RPP contracts void. They also said that the tribunal had also questioned why the top court did not examine each RPP contract individually before voiding all of them for corruption.
Likewise, the ICSID rejected Pakistan’s argument that the country was bound to comply with local legal judgments. The tribunal held that the actions of the local judiciary can be considered actions of that state.
One section of lawyers believes that Pakistan is facing international litigations in response to the controversial judgments given by the apex court during former chief justice Iftikhar Muhammad Chaudhry’s era March 2009 to December 2013. Even then-NAB prosecutor general KK Agha was able to settle the issue with Karkey in 2012-13, but the former CJP rejected his efforts and warned that strict action would be taken against the NAB officials in case of any settlement with the Turkish company. Later, the company was ready to resolve the matter during the tenure of ex-AGP Salman Aslam, but the water ministry had refused to accept an out-of-court settlement.
It is expected that Pakistan and Karkey may once again resume dialogue for a settlement, but at the same time, Pakistani authorities are confident that the award would be set aside after the presentation of fresh evidence of corruption.
ICSID is one of the five constituted organisations of the World Bank. It resolves disputes between investors from one country and the government of another country where investment has been made. ICSID draws its authority to settle disputes through the ICSID Convention, to which Pakistan is a party.