Pakistan appeals Broadsheet settlement in UK court

London Court of International Arbitration had awarded a $21m penalty to Islamabad


Hasnaat Mailk March 06, 2019
PHOTO: REUTERS

ISLAMABAD: Pakistan has challenged the London Court of International Arbitration (LCIA) decision to award a penalty of $21 million (Rs2.93 billion) to the country in the infamous Broadsheet LLC case.

Sources revealed to The Express Tribune that the National Accountability Bureau (NAB) has filed an appeal against LCIA in London High Court under section 68 of the UK Arbitration Act on the basis of two grounds.

Firstly, NAB contends that the tribunal failed to conduct the proceedings in accordance with the procedures agreed by the parties. Secondly, the LCIA did not comply with the requirements as to the form of the award.

The London High Court may take up to a year to decide the appeal. A senior NAB official revealed that a meeting of senior bureau officials was held a week ago, wherein it was resolved that the LCIA decision should be challenged before a higher forum.

Broadsheet LLC case: AGP recommends inquiry into scam

It was also resolved that Broadsheet's contract was "fraudulent", the source said. However, on the advice of the legal team, it was decided that the "fraudulent" aspect would not be raised in the appeal as this ground was not brought up in the initial litigation, said the NAB official.

Earlier, NAB had filed an application under section 57 of the UK Arbitration Act 1996 about the removal of clerical mistakes in the award. The arbitrator partially accepted the plea but refused to make all the changes proposed by NAB, leading the bureau to move its appeal.

Broadsheet LLC, based in the Isle of Man, was hired by the National Accountability Bureau during Musharraf’s regime to trace out the hidden assets of Pakistanis in foreign countries. NAB terminated its agreement with Broadsheet in 2003.

According to the Global Arbitration Review (GAR), the firm’s claim against Pakistan was worth at least $600 million. Former English Court of Appeal judge Sir Anthony Evans QC heard the case as sole arbitrator in a London-seated proceedings under the rules of the Chartered Institute of Arbitrators.

In July, the arbitration body heard for four days a claim by Broadsheet against Pakistan and its anti-corruption body – NAB - at the London office of Allen & Overy – the law firm representing NAB.

The bureau has again engaged the same legal firm to argue the appeal before London High Court.

Case history

Broadsheet’s dispute with NAB has a convoluted and colourful history. The company was established by Colorado businessman Jerry James and entered liquidation proceedings in the Isle of Man in 2005, before being dissolved and then revived.

Meanwhile, James established a Colorado company with the same name and negotiated an agreement with NAB in 2008 that purported to settle the dispute for $5 million, which NAB officials paid. He died in 2011, reportedly after jumping off the fifth-floor balcony of a Paris hotel.

A senior law ministry official believes there is a need to conduct a thorough inquiry in Pakistan to identify the officials who had engaged Broadsheet on unfair terms in 2002. Likewise, an inquiry should be conducted into the "fake deal", wherein $5 million of public money was apparently embezzled in 2008, the official added.

It also remains to be confirmed whether the payment was approved by the Pakistan Peoples Party or by the Musharraf regime. Another official claimed the payment of $5 million was given by the then-federal government and not by NAB. He also claimed that the names of a renowned Pakistani lawyer, as well as a retired SC judge, would also come up in the scam.

Legal experts believe that due to the alleged fake settlements, the LCIA awarded a penalty of $21 million to Pakistan on top of the millions of dollars the country had already spent on litigation.

In August 2016, the international tribunal judge Sir Anthony Evans upheld the Broadsheet’s arguments that the 2008 settlement was not binding on it, as James had no authority to act on the company’s behalf at the time.

The same international tribunal held that Pakistan is liable to pay damages as NAB wrongfully repudiated an asset recovery agreement with Broadsheet and committed a tort of civil conspiracy by entering into a sham settlement with a former Broadsheet executive.

The tribunal ruled that the Broadsheet was entitled to damages in an amount to be determined. Broadsheet was represented by Stuart Newberger of Crowell & Moring in Washington, DC.

Later, the quantum stage was started wherein Broadsheet relied on information gathered by a joint investigation team (JIT) established by the Supreme Court of Pakistan to examine evidence concerning the Sharif family’s holdings.

Broadsheet submitted a forensic report from the security firm Stroz Friedberg, analysing the parts of the JIT report that were public, while Pakistan had submitted a counter-report prepared by FTI Consulting. Former NAB chairman Lieutenant-General (retd) Amjad Hussain had also recorded his statement before the tribunal.

AGP, law minister urge probe

It has been learnt that both Attorney General for Pakistan (AGP) Anwar Mansoor Khan and Law Minister Dr Farogh Naseem have written to Prime Minister Imran Khan to ask for NAB to conduct an internal inquiry into the embezzlement of millions of dollars in the case

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