Tethyan Copper Company Pty Ltd v Islamic Republic of Pakistan

JurisdictionBritish Virgin Islands
CourtCourt of Appeal
JudgePereira CJ
Judgment Date04 June 2021
Neutral CitationVG 2021 CA 14
Docket NumberBVIHCMAP2021/0014

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Dexter Theodore Justice of Appeal [Ag.]

BVIHCMAP2021/0014

Between:
Tethyan Copper Company Pty Limited
Applicant
and
[1] Islamic Republic of Pakistan
[2] Pakistan International Airways Corporation Limited
[3] Pia Investments Limited
[4] Minhal Incorporated
[5] Pia Hotels Limited
[6] Virgin Islands Registrar of Companies
[7] Citco B.V.I. Limited
[8] Harneys Corporate Services Limited
Respondents
Appearances:

Lord Charles Falconer, QC with him, Mr. Piers Plumptre and Mr. Andrew Gilliland for the Applicant

Mr. Vernon Flynn, QC with him, Ms. Angeline Welsh, Mr. Lucas Bastin, Mr. Cameron Miles, Mr. Mubarak Waseem, Mr. Grant Carroll and Mr. Daniel Mitchell for the First Respondent

Mr. Andrew Willins for the Second Respondent

Mr. Stephen Moverley Smith, QC with him, Mr. Tim Wright and Mr. Paul Griffiths for the Third to Fifth Respondents

Application for stay pending determination of intended appeal — Decision of court below discharging injunctions against respondents — Inherent jurisdiction of Court of Appeal to grant stay where notice of appeal not yet filed — Finding by court below that Pakistan enjoyed immunity from jurisdiction of the BVI court under UK State Immunity Act 1987 — Whether Court of Appeal has jurisdiction to grant interim stay pending determination of intended appeal where finding of court below that Pakistan enjoyed state immunity has not been set aside

REASONS FOR DECISION
Pereira CJ
1

On 4 th June 2021 we heard an application by the applicant, Tethyan Copper Company Pty Limited (“TCC”), brought pursuant to rule 62.16 of the Civil Procedure Rules 2000 for orders staying the discharge of the injunctive relief granted on a without notice basis on 10 th December 2020 by the court below (“the without notice orders”) or, alternately, for the grant of injunction orders in similar terms as the without notice orders, pending the hearing and determination of an intended appeal against the judgment of the court below delivered on 25 th May, 2021. We dismissed the application and ordered TCC to pay the costs of the first to fifth respondents.

Background
2

The matter arose in this way:

  • (a) TCC obtained from the International Centre for Settlement of Investment Disputes (“ICSID”) an award (“the Award”) in its favour against the first respondent, Islamic Republic of Pakistan (“Pakistan”) in the sum of US$6 billion in Case No. ARB/12/1. We were informed in TCC's written submissions and at the hearing that enforcement of the Award has been stayed provisionally under article 51 of the ICSID Convention as from 16 th March 2021.

  • (b) TCC applied without notice to the BVI court to register and enforce the Award against Pakistan as well as for injunctive and other relief against the various other respondents. Additionally, TCC applied for charging orders over shares held directly or indirectly by the second respondent, Pakistan International Airways Corporation Ltd. (“PIAC”) in the third to fifth respondents (“the BVI Companies”).

  • (c) It is common ground that neither PIAC nor the BVI Companies are or were ever parties to the ICSID arbitral proceedings and are not parties to the Award. It is also not in dispute that PIAC is a listed public limited company operating the national airline of Pakistan.

  • (d) TCC's primary case is that PIAC is to be treated as being assimilated into the State of Pakistan in the sense that there is unity of identity as respects Pakistan and PIAC thereby rendering PIAC liable for the debts of the State of Pakistan applying the principles, or what is now considered to be the test, as formulated by the Judicial Committee of the Privy Council in the decision in La Générale des Carrières et des Mines v F.G. Hemisphere Associates LLC 1 (“ Gécamines”). TCC relied on other bases but it is not necessary to refer to them for the purposes of these reasons on the application for interim relief.

  • (e) On 10 th December 2020, the court below granted to TCC, among other relief, and of relevance to this application:

    • (i) an order registering the Award;

    • (ii) permission to enforce the Award in the BVI against Pakistan to the extent of over US$3 billion; 2

    • (iii) a provision charging order, in aid of enforcement, over the shares of the BVI Companies held directly or indirectly by PIAC; and

    • (iv) injunctions including freezing orders against the BVI Companies.

  • (f) Eventually, the without notice applications in which the without notice orders were granted came on before the learned judge below (Wallbank J) on a full inter partes hearing between 27 th to 29 th April 2021.

  • (g) Pakistan sought the discharge of the ex parte orders asserting its state immunity from the jurisdiction of the BVI Court pursuant to the State Immunity Act 1978 of the United Kingdom as extended to the Territory of the Virgin Islands by UK Order in Council (“the SIA”).

  • (h) PIAC and the BVI Companies also sought the discharge of the ex parte orders on a number of other bases ranging from failure of full and frank disclosure to lack of cogent evidence showing a risk of dissipation, but it is not necessary to address these bases in these reasons given the narrow compass within which the application for interim relief was considered by this Court.

  • (i) On 25 th May 2021, the learned judge delivered his judgment in which, among other things, he concluded that Pakistan enjoyed immunity from the jurisdiction of the BVI Court pursuant to the SIA. He set aside the registration of the Award and discharged all the without notice orders. He allowed a short stay of his judgment as requested by TCC to 4 p.m. on 4 th June 2021 to allow TCC to make an application to the Court of Appeal.

3

TCC applied to this Court on an urgent basis on 28 th May 2021 for a stay of the judge's order discharging the injunctions or alternately for the grant of injunctions pending the hearing of its appeal which has not yet been filed. 3

4

The application was opposed by Pakistan, PIAC and the BVI Companies on various grounds. Suffice it to say that Pakistan which continues to assert and rely on its full immunity, by its counsel took the position, relying on three English

authorities, that the court had no power to grant such interim relief, unless and until a final determination is made by the Court that Pakistan is excepted from immunity under the SIA, or put another way, unless and until the finding of state immunity has been set aside. This was on the basis that as matters stood at the hearing of the application before this Court on 4 th June 2021, Pakistan was immune from the jurisdiction of the BVI courts and since the interim relief sought was parasitical on an assumption of jurisdiction over Pakistan by the BVI court, no power existed in the court to grant such interim relief until a final determination on an appeal that Pakistan is excepted from immunity under the SIA – in essence reversing the finding of state immunity as determined by the court below
5

Before turning to the crux of the stay application, we dealt with another preliminary objection raised by Queen's Counsel for the third to fifth respondents, Mr. Stephen Moverley Smith, and adopted by learned counsel for the other respondents. Mr. Moverley Smith, in essence, asserted that under CPR 62.16 and rule 27(1) of the Court of Appeal Rules, the Court does not have jurisdiction to grant a stay of the orders of the court below discharging injunctive relief in circumstances where TCC has not yet filed a notice of appeal. In support of his submission, Mr. Moverley Smith referred to paragraph 42 of the judgment of Edwards JA in Cage St. Lucia Limited v Treasure Bay (St. Lucia) Limited et al, 4 which states:

“In the absence of a timely Notice of Appeal filed subsequent to the Order granting leave to appeal there was no appeal pending before this Court when the Order staying the judicial review proceedings was made…Consequently, it would seem that this Court had no jurisdiction to make that order, which would be a nullity. I would set aside this order granting stay.”

6

Lord Falconer, QC, in response, argued that the decision in Cage St. Lucia does not suggest that the Court does not have an ‘implied power’ to grant a stay under CPR 62.16 in urgent cases where the Court is satisfied on the material before it that an appeal would be pending. He also stated that paragraph 42 of Cage St. Lucia

specifically addresses circumstances where the time for filing a notice of appeal has elapsed, in which case an appeal could not be properly filed unless the Court extended time for so doing – circumstances which do not obtain in this case. On these bases, Lord Falconer urged the Court to dismiss the preliminary objection
7

Having considered the submissions made by learned Queen's Counsel, we were satisfied that the Court of Appeal has the inherent jurisdiction to hear and grant a stay pending an appeal against orders made in the court below in circumstances where the appeal had not yet been filed but the time for appealing had not yet expired. It is generally accepted that the Court's inherent jurisdiction is inoperable where there are statutory provisions or procedural rules which occupy the same territory. 5 However, the Court's inherent jurisdiction to grant a stay is distinct from the power to grant a stay under CPR 62.16 or rule 27(1) of the Court of Appeal Rules, since the rules and the Court's inherent jurisdiction exist individually and may be invoked cumulatively or alternatively. As the learned authors of Halsbury's Laws of England explain: “The court's power to [stay] may be exercised under particular statutory provisions, or under the Civil Procedure Rules or under the court's inherent jurisdiction, or under one or all of these powers, since they...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT