Pakistan International Airlines Secures Discharge Of Receivers In $6bn Dispute
Published date | 01 June 2021 |
Subject Matter | Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Trials & Appeals & Compensation, Shareholders |
Law Firm | Appleby |
Author | Mr Andrew Willins |
On 25 May 2021 the Commercial Division of the Eastern Caribbean Supreme Court set aside ex-parte orders which had been obtained by Tethyan Copper Company (TCC) against the Islamic Republic of Pakistan (Pakistan), Pakistan International Airlines Corporation (PIA) and various of its subsidiaries. Those orders had been obtained in support of the enforcement of a US$6bn ICSID Award (the Award) which TCC had obtained against Pakistan.
In December 2020, TCC obtained an ex-parte order recognizing and enforcing that Award against Pakistan (the Registration Order). In addition, it obtained a Provisional Charging Order over the BVI assets of PIA, purportedly under the provisions of a statute, the Charging Orders Act 2020 (the 2020 Act), which had not been brought into force. Despite the fact that PIA did not have any liability to TCC, TCC contended that the effect of the 2020 Act was to enable the Court to ignore the separate corporate personality of PIA, and to render the assets of its subsidiaries (and in respect of one company, its sub-subsidiary) amenable to execution. In addition, TCC contended that PIA was so closely associated with Pakistan that its assets were amenable to execution pursuant to the jurisdiction recognized by the Judicial Committee of the Privy Council in La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC [2012] UKPC 27 (Gécamines).
The Court's judgment is notable for being the first reported consideration of questions of state immunity in the BVI, and in considering the extent of the Court's jurisdiction in Gécamines for the first time.
The Court held that a series of (serious) failures to properly address the Court on questions of State Immunity and in relation to the procedural privileges afforded to a State on questions of service, should lead to the Registration Order being set aside, and to the Court declaring that it consequently had no jurisdiction...
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