BVI Commercial Court sets aside ex parte orders obtained against Pakistan in US$6 billion ICSID claim

26/05/21

On Tuesday 25 May 2021 the BVI Commercial Court (Wallbank J) set aside ex parte orders obtained by Tethyan Copper Company against the Islamic Republic of Pakistan (“Pakistan”) and others. The ex parte orders were obtained in aid of the recognition and enforcement of a US$ 6 billion ICSID Award (Case No. ARB/12/1) against Pakistan (“the Award”). The ex parte orders included orders for service against Pakistan, permission to recognise and enforce the Award, a provisional charging order over the shares of certain BVI companies (“Charging Order”), and the appointment of a Receiver over the shares and assets of certain BVI companies (“Receivership Order”).

Following a substantive return date hearing on 26-29 April 2021, Wallbank J set aside all orders obtained by Tethyan. The Receivership Order has been discharged with immediate effect, and the other orders are scheduled to cease to have effect on 4 June 2021. The principal basis for the setting aside was the failure to make full and frank disclosure.

The case raised important issues in relation to the enforcement of ICSID awards against states including recognition and enforcement of ICSID Awards, the procedural requirements for service on a foreign State, and the circumstances in which State-owned corporations can be assimilated to the State in order to meet the State’s obligations under an arbitration award.