The BVI Commercial Court has set aside ex parte orders obtained by Tethyan Copper Company Pty Limited (“Tethyan”) recognising and partially enforcing a US$6bn ICSID Arbitration Award (Case No. ARB/12/1) against the Islamic Republic of Pakistan (“Award”). In December 2020, Tethyan obtained ex parte orders against the Islamic Republic of Pakistan and other respondents, including Pakistan International Airways Corporation (PIA) granting (inter alia) 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, the BVI Commercial Court has yesterday 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 case is understood to be the first in the BVI dealing with recognition and enforcement of ICSID Awards, the procedural requirements for service on a foreign State under the Eastern Caribbean CPR following the English Court of appeal decision in General Dynamics v Libya and the circumstances in which State-owned corporations can be assimilated to the State in order to meet its obligations under an arbitration award.
Lucas Bastin, Angeline Welsh and Mubarak Waseem, with Vernon Flynn QC from Brick Court Chambers and Cameron Miles from 3 Verulam Buildings acted for the First Respondent instructed by Grant Carroll, Daniel Mitchell (and formerly Sulman Ali Iqbal) from Ogier.
