Allawi v The Islamic Republic of Pakistan

There are three applications listed before me as follows:

The basis of the extension application is Mr Allawi's contention that he had been categorically assured at a meeting at the Goring Hotel in London on

The arbitral tribunal ("the Tribunal") awarded costs against Mr Allawi in the sum of £2,741,679.03 and €285,241.38, approximately some £3 million sterling in total, together with compound interest with quarterly rests. Mr Allawi says that he simply cannot afford to pay this sum and would be forced into bankruptcy were he obliged to do so. He will suffer substantial and irremediable prejudice if he is not allowed to challenge the Allawi award. By contrast, Pakistan will not suffer any irremediable prejudice if the extension and set aside applications are granted and the section 68 challenge is allowed to proceed to a hearing on its merits. The only prejudice Pakistan will suffer is one of delay, but Pakistan can hardly be heard to complain about this given that it waited for seven months before applying to enforce the Allawi award. Any prejudice Pakistan might suffer were the extension

Pakistan resists the application. No assurances as alleged were given at the Goring Hotel meeting and in any event in the light of later exchanges in September 2016 and further communications involving Mr Allawi up to 20 December 2016, when a first extension of time to seek to challenge the Allawi award expired, any reliance on any assurances at the Goring Hotel meeting cannot be said to be reasonable. This is a second application for an extension by Mr Allawi. The delay in question is extensive. There would be prejudice to Pakistan. The merits of the section 68

I acceded to an application by Mr Allawi for cross-examination of the relevant witnesses to the meeting on 22 September 2016 and so heard evidence from Mr Allawi and Mr Abbasi, who were the only attendees at the Goring Hotel meeting, and also Ms Ummekulsum Imam, (“Ms Imam”), an intermediary and friend of both men who facilitated the meeting. Although much of the hearing day was occupied by their evidence, the factual dispute needs to be seen in its proper context. It is only a part, albeit an important part, in an evaluation of the merits of an extension application and in particular the reasonableness of the delay in

The parties devoted their attention essentially to the merits of the extension application. Mr Allawi accepts that without success on the extension application the Allawi award falls to be enforced against him, but he would nevertheless wish

Mr Allawi is a distinguished academic, a former Iraqi government minister and author, he is a UK/Iraqi dual national, primarily resident in Baghdad, his main business interests for the past 20 years have been his investment in Progas Pakistan

PPL constructed a large import terminal for LPG at Port Qasim, Karachi, Pakistan ("the terminal"). PPL became insolvent following regulatory changes in Pakistan capping LPG prices. The terminal was then acquired by Sui Southern Gas

On 4 April 2012 Mr Allawi brought the Allawi arbitration against Pakistan pursuant to the UK-Pakistan bilateral investment treaty ("the BIT"). At the time of the Allawi arbitration, Mr Allawi indirectly held 9.689 % of the shares in PPL. The arbitration was seated in London and conducted pursuant to the 2010 UNCITRAL

Progas Energy Limited, Progas Holdings Limited and Sheffield Engineering Company Limited (together "the Progas claimants") had already brought similar arbitral proceedings against Pakistan ("the Progas arbitration") on

On 30 August 2016 the tribunal published the Allawi award and the Progas award. In the Allawi award the tribunal found in favour of Mr Allawi on jurisdiction but dismissed his claim on the merits. The tribunal held that Mr Allawi had not established causation of legally relevant damage for the purposes of the BIT. The tribunal found it unnecessary to determine whether Pakistan had breached its obligations under article 2(2) of the BIT (“the Article 2(2) breach issue”). At

The tribunal ruled that Pakistan was entitled to all of its costs. There was an error in computation by the tribunal of that calculation, an error pursued by Pakistan resulting in a correction to the Allawi award on 7 November 2016 with Mr Allawi's

Mr Allawi seeks to bring a challenge under section 68 of the Act based on the tribunal's refusal to decide the Article 2(2) breach issue. The question is whether the tribunal's failure to deal with an issue put to it amounts to a serious irregularity within the meaning of section 68(2)(d) of the Act which has caused substantial

As indicated above, the tribunal found against Mr Allawi on the issue of causation and ordered costs against Mr Allawi on the basis that he had been "totally unsuccessful" in his claims on the merits. The tribunal stated that it "can see no reason why" Mr Allawi should not bear the costs of the arbitration. Mr Allawi's position is that if he had prevailed on the Article 2(2) breach issue then he would

This directly addresses the tribunal's reasoning in the Allawi award and makes it possible, submits Mr Allawi, that the tribunal would have reached a different decision on costs. Specifically the costs allocation could have been affected in two

First, the number of issues in which the parties were each successful would have been different. Secondly, given the nature of the Article 2(2) breach issue, Mr Allawi would have been in a much better position to receive a favourable allocation in respect of costs. Had Mr Allawi succeeded it would have meant he had a bona fide reason to have commenced arbitration and thus should not have been penalised for commencing unsuccessful proceedings by way of costs. An adverse costs order against a claimant would be inappropriate as it would not give effect to the object and purpose of BITs, namely to ensure that states which have voluntarily submitted their governmental actions to oversight in exchange for

Thus, submits Mr Allawi, there are two reasons, whether cumulatively or alternatively, that provide a sufficient basis for contending that the tribunal might well have looked past the starting position that costs follow the event under Article

It was common ground between the parties in their costs submissions that success is a relative concept. Reliance is placed by Mr Allawi, through Mr Ng QC on his behalf, on a trilogy of cases: Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, 24 July 2008, an arbitration commenced under the ICSID convention;

As indicated, the basis of Mr Allawi's application is that he had been categorically assured at a meeting at the Goring Hotel in London on 22 September 2016 by Mr Abbasi that the Allawi costs award would not be enforced against him. There is

On 30 August 2016, the awards in both the arbitrations were published. On 1 September 2016, Mr Abbasi gave a press release recording the dismissal of the case against Pakistan which was reported in the Express Tribune. The report stated that Progas had filed two claims against the government of Pakistan. Mr Abbasi was reported as saying that Mr Allawi had filed a damages claim of $70 million and other claims amounting to $503 million had been filed by Progas. Further, Mr Abbasi was said to have revealed that the court also ordered the petitioners to pay $11 million to Pakistan to cover the expenses it had incurred during the

On 11 September 2016 Mr Allawi met Ms Imam at a cafe in London. Between 20 and 22 September 2016, Ms Imam arranged a meeting between Mr Allawi and

Mr Allawi replied the same day thanking Ms Imam:

At around 2.00 pm on 22 September 2016, Ms Imam texted Mr Allawi saying that Mr Abbasi was available to meet at 8.00 pm that evening. Mr Allawi responded by

Thus it was that later that evening at around 8.00 pm for 55 minutes Mr Allawi and Mr Abbasi met at the Goring Hotel. The contents of that meeting are, as already

Later that evening at around 10.00 pm Mr Allawi sent a WhatsApp message to Ms Imam stating that he had had "an excellent meeting" with Mr Abbasi, continuing "inshallah, the issue will be put to rest". Ms Imam also stated that later that evening Mr Abbasi telephoned her from the airport. It was very unusual for him to call her by telephone. He stated that he just wanted to say that he had had

At around 9.30 am the next day, 23 September 2016, Mr Allawi typed up a note ("the Goring note"). It started with a section headed "Background" and moved on

At around 10.30 am that day, Mr Allawi also spoke to Ms Imam by telephone

On 27 September 2016, at around 8.15 am in the morning, Mr Allawi emailed

Ms Imam responded:

Mr Allawi responded shortly after 3.20 pm:

Ms Imam responded:

“Yes, his message says: Mr Allawi should not forego his legal right to appeal.”

Just after 4.00 pm Mr Allawi thanked Ms Imam for "this very timely report". It was timely because on that day, the last date before time would otherwise expire, the

In the event, Mr Allawi too joined that application and also the application for

Mr Smouha QC for Pakistan identifies that the procedural position is unsatisfactory. Concerns are raised over the completeness of the review exercise carried out by Mr Allawi's lawyers, waiver of privilege and the extent of redaction. Mr Allawi would have been cross-examined on the communications, albeit that

As indicated, Mr Allawi also joined the Progas claimants in applying to the tribunal for an additional award pursuant to UNCITRAL Rule 39, alleging that the tribunal

On 28 September 2016, Pakistan requested a correction of the Allawi award pursuant to article 38 of the UNCITRAL Rules, increasing the amount of costs to be ordered against Mr Allawi. The tribunal acceded to this request in a correction

On 15 November 2016 the tribunal dismissed the application by the Progas

Aweek later, on 23 November 2016, Allen & Overy LLP (“Allen & Overy”), acting for Pakistan, wrote to Quinn Emanuel LLP (“Quinn Emanuel”), Mr Allawi’s former lawyers, copied to other lawyers for Mr Allawi, requesting payment of the costs awarded to Pakistan forthwith and seeking the destruction or return of

Mr Allawi responded directly on 3 December 2016 acknowledging receipt of this

On 27 February 2017, Mr Allawi emailed Ms Imam:

On 27 July 2017, Pakistan applied for permission to enforce the Allawi award pursuant to section 66 of the Act. Males J (as he then was) granted that application

The enforcement order was served on Mr Allawi on 16 August 2017. On the same day, Mr Allawi wrote to Mr Abbasi, who by now had just been elected Prime

On 17 August 2017, Ms Imam texted Mr Allawi as follows:

Mr Allawi wrote to Mr Abbasi in similar vein on 20 and 25 August 2017, referring to Mr Abbasi's assurances and seeking an amicable and consensual resolution. He

On 25 August 2017, Mr Allawi's solicitors wrote formally to Allen & Overy referring to "a clear violation of the agreement" reached between Mr Allawi and Mr Abbasi. Allen & Overy responded on 5 September 2017 denying that any assurances had been given. On 6 September 2017, Mr Allawi issued the current

Mr Allawi seeks an extension of time pursuant to CPR rule 62.9 to the time fixed by section 70(3) of the Act to bring a section 68 challenge. The relevant principles on such an application were helpfully summarised by Popplewell J in Terna Bahrain Holding Company WLL v Bin Kamil Al Shamsi [2012] EWHC 3283

These principles were drawn from a series of authorities which included Nagusina Naviera v Allied Maritime Inc [2002] EWCA Civ 1147, [2003] 2 CLC 1 which (at [39]) appears to be the source of the further comment in Terna (at paragraph 27(iii)) that the first three factors identified above are the “primary factors”. In Naviera at [39] Mance LJ (as then was) had commented that Andrew Smith J had had well in mind in that case as “primary factors” the first three factors. For my part I do not read that judgment as authority for the proposition that the first three factors are necessarily of more significance than any others. What weight each factor is to be attributed will depend on the facts of each case. All factors are relevant for consideration.

I turn then to the first factor. On any view the delay is extremely lengthy. The normally permitted time for challenge is 28 days. Mr Allawi’s present application was made a year from expiry of the normal time limit and over eight months from the extension granted by Mr Justice Flaux. Section 1(a) of the Act provides that the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. As Popplewell J emphasised in Terna at [27(i)]:

“Section 70(3) of the Act requires challenges to an award under section 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act and which is enshrined in section 1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the Act, any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act.”

At [28] Popplewell J confirmed that the length of delay is to be judged against the yardstick of 28 days; thus a delay measured even in days is significant. A delay measured in many weeks or in months is substantial (see also Daewoo Shipbuilding & Marine Engineering Company Limited v Songa Offshore Equinox Limited and

Additional features here beyond the period in question include the ease with which

The fact that Pakistan did not take steps to enforce for seven months is nothing to the point. There is no fixed time period within which an award creditor must apply to enforce. For Mr Allawi it was suggested that the timing could be explained by a change of personnel within the Pakistani government at relevant ministerial level leading to a change of heart away from Mr Abbasi, who would have been aware of the assurances given to Mr Allawi in September. There is no evidential basis for this sort of inference. Pakistan pointed to the ongoing challenge by the Progas claimants during this period. The date of Pakistan's application to enforce, 27 July 2017, was the same date as that on which Pakistan issued its application for summary dismissal of the Progas claimants' challenge under section 68 of the Act on the basis that it stood no real prospect of success.

It is not appropriate to speculate on reasons for the timing of Pakistan's application to enforce against Mr Allawi. None of it affects in any way the onus on a party

I turn then to the second factor. On the facts, the question is the extent to which Mr Allawi acted reasonably in not joining the Progas claimants' section 68 challenge on 20 December 2016, being the last day prior to expiry of the applicable time limit. The test of reasonableness is an objective one to be applied to the facts

This brings into play the factual dispute between the parties and specifically the dispute as to what was said at the meeting in the Goring Hotel in the evening of 22 September 2016. There is little common ground between the parties on this

I make the following broad findings of fact sufficient for the purpose of this application. It is not necessary for me to resolve every disputed fact that has been

As is often the case, the truth lies somewhere between the parties' competing version of events. Although the witnesses' reliability has been called into question, no one has suggested that any of the witnesses have been deliberately untruthful in any way. There are simply genuine differences of recollection or interpretation.

As for the purpose of the meeting, certainly Mr Allawi's anxious purpose was to discuss the award with Mr Abbasi. Given the timing of the meeting so soon after the award and the fact that Mr Abbasi knew that Mr Allawi really wanted to see him during his short visit to England, I find it unlikely that Mr Abbasi thought that the meeting was just to discuss Mr Allawi's "writings and speeches in particular on Shia/Sunni and Pakistani/Iraq relations". Mr Abbasi knew about the Allawi award, albeit at a high level of generality only, as evidenced by the press release. He knew from Ms Imam that Mr Allawi really wanted to see him. (I should add that whilst Mr Allawi sought to portray Mr Abbasi as having an in depth knowledge of the arbitration proceedings, for example from his attendances at the arbitral proceedings, I do not accept that Mr Abbasi did have such knowledge. In fact Mr Abbasi had only attended once to support the former Prime Minister for

Thus I find that Mr Abbasi understood that the purpose of the meeting at least might be to touch on the Allawi award. He did not however have any cause to anticipate that he might be called upon to make any sort of firm assurance or guarantee to Mr Allawi in relation to the Allawi award at this meeting or to prepare for such an eventuality. He only had a few hours' notice of meeting. Ms Imam was quite clear that she did not go into any details, either with Mr Allawi or with Mr Abbasi, in advance of meeting. It was not her place. She did not think that she would have told Mr Abbasi, even in gist, that the meeting was to relate to

It is common ground that the Allawi award was discussed at the meeting. Mr Abbasi denies that the question of settlement was discussed. I find it, however, likely that Mr Allawi did raise the question of possible settlement, building on his idea of charitable contribution to the health sector. This was something that had been clearly on his mind, as evidenced by his discussion with Ms Imam on

However, on the critical question of fact, and despite the able submissions of Mr Ng to the contrary, I find it unlikely that Mr Abbasi expressly and unequivocally assured Mr Allawi at this meeting that the Allawi award would not be enforced by Pakistan against Mr Allawi. I find that he did not. Even if he knew

Equally and relatedly, it is most unlikely that Mr Abbasi told Mr Allawi at the meeting that he had already instructed his team not to pursue enforcement against Mr Allawi, given how recent the award was and the limitations of Mr Abbasi's knowledge. Again, I find that he did not and that no such instruction had been given, either then or before the press release of 1 September 2016. It is wholly inconsistent with what happened later that month and subsequently. In particular I have in mind Pakistan's letter of 28 September 2016 asking the tribunal to correct the costs award against Mr Allawi by increasing it. There is no suggestion that Mr Allawi was unaware of this step. Whilst Mr Allawi's evidence was that the advice given to him on 27 September 2016 not to forego his legal rights was just a "belt and braces approach" by Mr Abbasi/Pakistan, that can hardly be said of the step of aggression taken by Pakistan on the cost award the next day.

Mr Allawi's evidence and his note of the meeting states that Mr Abbasi went on to say that this was why the press release, of which Mr Allawi was no doubt aware at the time, had referred only to the costs award of $11 million which on the figures did not include the costs award against Mr Allawi. On this thesis, Pakistan would have had to decide within 24 hours or so of the publication of the award that it would unequivocally not enforce against Mr Allawi. Again this seems unlikely. Mr Abbasi would also have had to be aware of this line of reasoning by the time of meeting. I do not accept that Mr Abbasi was so intimately involved either in terms of the content of the press release, which he said was a statement of the type routinely handed out to the minister to be read in public and prepared by the permanent secretary to the government, or the Allawi award. Moreover, the press release itself does not reveal that the $11 million figure excludes the costs award against Mr Allawi. On the contrary, it states that that was the figure ordered against "the petitioners" all together. Mr Abbasi said that he did not see the full

I find it more likely that, as Mr Abbasi said, no promises were made but that he did say that he would see what if anything he could do for Mr Allawi but he could not make any promises. This finding is consistent with Mr Abbasi on a very general level being sympathetic to Mr Allawi. Moreover and importantly, Mr Allawi confirmed in his evidence that he would construe a statement to that effect as being consistent with the categoric assurance that he says he received. Thus he viewed Ms Imam's message to him on 27 September that Mr Abbasi "will try to ensure

Mr Allawi therefore appears to have interpreted Mr Abbasi's words incorrectly as

In reaching these conclusions I have of course considered carefully the Goring note on which Mr Ng for Mr Allawi places heavy reliance. He submits that it is the only virtually contemporaneous written record of the meeting. It is of course an important document (see for example Terry v Watchstone Limited [2018]

However, the Goring note is a self-serving and highly subjective document. It is certainly not an attendance note in traditional style. There are some odd inaccuracies, for example recording Mr Abbasi saying to Mr Allawi that Mr Abbasi had sought out a meeting with Mr Allawi after the Allawi award. It is littered with Mr Allawi's interpretations, for example as to what to make of Mr Abbasi's silence and body language, alongside statements of belief, for example that Mr Abbasi "strongly implied" that the award against Mr Allawi was unfair or incorrect. Mr Ng makes the fair point that where the note records the assurances said to have been made by Mr Abbasi however it does so as a matter of “hard” fact. But those “hard” statements reflect Mr Allawi's interpretation of what was said, an interpretation that

Moreover, the Goring note is not the only document. There are recorded communications around the meeting, both before and after, from which inferences may legitimately be drawn. Those communications do not undermine but rather

Mr Allawi informed Ms Imam almost immediately after the meeting that it had been an “excellent” meeting but it had been an excellent meeting for Mr Allawi who had

Mr Abbasi's call to Ms Imam on 22 September after the meeting is consistent with the concern on Mr Abbasi's part that Mr Allawi might be reading too much into Mr Abbasi's indication that he would see what he could do to help Mr Allawi. It is powerful evidence of Mr Abbasi's good faith and concern for Mr Allawi. It also demonstrates that Mr Abbasi knew on the critical day for present purposes that he could not guarantee any result for Mr Allawi. Absent bad faith, which is not alleged, this points strongly against the giving by Mr Abbasi of any absolute

I consider next the first email of 27 September 2016 from Mr Allawi. Mr Ng says this is effectively another contemporaneous note of the meeting. I disagree. It is a curious message - certainly it was not correct to the extent that it indicated that

I do not lay any significance on Mr Abbasi's failure to respond directly in terms to that message contradicting the allegations of assurances. First, the communications were being conducted through Ms Imam and so carry a layer of communicative complication in terms of transmission. These were also not formal communications between lawyers. Secondly, Mr Abbasi's response was effectively one of denial. The advice not to forego his legal rights demonstrated that Mr Allawi's position was not guaranteed. Moreover a correction was advanced:

Further uncertainty is revealed in Mr Allawi's position after 22 September and up to 27 September. He told his lawyers that he was "fully engaged in managing" the adverse costs award and that he would "take his chances". This is inconsistent with any agreement with Mr Abbasi that Pakistan would not enforce against him, of which Mr Allawi also does not appear to have informed his lawyers. It is consistent with Mr Abbasi informing Mr Allawi that he would see what he could

When Mr Allawi was told not to forego his legal rights, Mr Allawi did not respond with an exclamation of surprise or even outrage, indicating that such a step could hardly be necessary in the light of the agreement reached with Mr Abbasi at the

I have already referred to Pakistan's request to the tribunal of 28 September 2016.

The enforcement letter from Allen & Overy of 23 November 2016 is also consistent with my findings. Mr Allawi said that he saw this just as a paper exercise to close the file. That begs the question why he chose to reply at all as he did, taking care to identify his correct address for any further communications. He did not in the face of the clear threat of litigation refer to any binding commitment

The statement in Mr Allawi's email of 27 February 2017 to Ms Imam that Mr Abbasi had been faithful to his representations does not of course specify the representations in question. The lack of enforcement steps to date was consistent as well with Mr Abbasi having stated that he would simply try to see what he could do to help Mr Allawi. In any event, insofar as Mr Allawi's references were references to unequivocal assurances by Mr Abbasi, they rested on Mr Allawi's

I do not consider Mr Abbasi's response to Mr Allawi's letter of 16 August 2017 to be inconsistent with my findings either. Again, the response was conveyed through a text message from Ms Imam and was very brief. His response that he would look into the enforcement proceedings is wholly consistent with Mr Abbasi saying that he would see what he could do to help Mr Allawi. Mr Abbasi was newly elected,

For all these reasons I find that Mr Abbasi did not give any unequivocal assurance as alleged by Mr Allawi at the meeting on 22 September 2016. But even if he had been given such assurances, there are material developments thereafter and up to

In considering the reasonableness of Mr Allawi's failure to progress his challenge in time at the end of December 2016, I bear in mind the earlier context as set out above and assume for present purposes against my findings that Mr Abbasi had given oral assurances as alleged. I nevertheless would conclude that it was not reasonable for Mr Allawi to drop his challenge as he did. On any view, by the end of the year Mr Allawi knew that his position was at risk and he was not guaranteed anything. He had been told explicitly not to forego his legal rights. He then joined the Progas claimants in seeking an extension of time. There was Pakistan's request of 28 September, the tribunal's resulting correction and finally the

Mr Allawi states that he did not understand the advice not to forego his legal right to be contradicting the assurance he had been given at the Goring Hotel meeting. He said he understood it to be no more than a belt and braces approach of ensuring that he would not have to pay the $3 million in costs awarded against him. This is a little difficult to understand but even if true does not explain away Pakistan's request of 28 September or Allen & Overy's letter of 23 November. Mr Allawi's response to that letter is not consistent with a belief that it was just a formal letter containing no genuine expressions of intent and if he did genuinely hold the belief that there was no real threat of enforcement proceeding because of that letter, then that simply was not a reasonable position to take, even after making all due allowances for context. Having seen that it was necessary or at least desirable for him to seek the extension of time in September, there was no good reason for him then abandoning that protection in December. There is no reasonable basis for a change of position. The position is a fortiori even stronger if no assurances were

In summary, in my judgment Mr Allawi did not act reasonably in permitting the

In the light of these findings, turning to the third factor, it cannot be said that Pakistan through its relevant minister Mr Abbasi materially caused or contributed

As for the fourth factor, Mr Allawi submitted that the only prejudice that Pakistan would suffer would be one of delay, about which it could not sensibly complain in

Mr Ng suggested there was a real possibility of Mr Allawi ending up not only in an improved position on costs but in a position where there was no costs award against Mr Allawi at all by reference to the trilogy of cases cited on his section 68 challenge. It is not helpful to carry out a minute examination of the facts of each case, but even at first blush there are differences which could justify different costs results. For example in those cases multiple breaches were established and/or there was a failed counterclaim or the claimant, though unsuccessful, was found to have been justified in commencing the proceedings against culpable procedural conduct on the part of the respondent. The cases certainly do not establish some principle whereby whenever a breach of investment treaty is established but not causation

I consider the submission to be a farfetched proposition on the facts of this case, given the approach of this tribunal to the question of costs in circumstances where Mr Allawi's Article 2(2) claim was not the only allegation of breach but one of several and in circumstances where his monetary claims have failed on causation

The fifth factor has no bearing in this case, since the arbitration has not continued.

As for the sixth factor, I am not persuaded that the section 68 challenge itself is strong. Rather it is weak, a factor militating against the granting of the extension sought. I am quite prepared to accept for present purposes that the outcome on the issue of breach may have been relevant to the question of costs, see the approach in

What I find very difficult to accept is that the tribunal was accordingly obliged to reach a conclusion on the question of breach. As I put it during the course of the hearing, this would be to allow the tail to wag the dog. No court or tribunal is ever obliged to determine every issue raised or issues which it decides do not arise in the light of other findings: see HBC Hamburg Bulk Carriers GmhH & Co KG v Tangshan Haixing Shipping Company Limited [2006] EWHC 3250 at [10],

Mr Ng accepted that in simple cases, perhaps involving private law rights, it would be permissible for a tribunal to ignore certain issues, deciding only those necessary for it to reach an overall outcome. But he submits that the nature of a breach of a bilateral investment treaty obligation by a contracting state is "special" because it “underpins investment treaty arbitration". I could not identify any principled basis for a different approach requiring a tribunal to determine an issue for the purpose of costs arguments. No authority was cited in support and there certainly is no general

Additionally, as Mr Smouha submitted, this is not a situation where the tribunal wholly "failed to deal" with the issue of the alleged Article 2(2) breach; it expressly addressed it in paragraph 175 of the Allawi award. As Mr Justice Flaux, as he then was, put it in Primera Maritime (Hellas) Limited v Jiangsu Eastern Heavy Industry Company Limited [2014] 1 Lloyd's Reports 255 at [40], provided the tribunal has dealt with it, it does not matter whether it has done so “well, badly or indifferently”.

Mr Ng drew my attention to the separate pleaded claim for a declaration of breach recorded at paragraph 419 of the Allawi award and made reference to the order of

I have not been taken to anything to suggest that the pleaded claim for a declaration by Mr Allawi added anything in terms of substantive outcome on the overall merits. Mr Allawi’s claim for very substantial damages failed in any event. Nor have I been taken to any material which suggests that the claim for declaratory relief was an important self-standing element of the claim bringing with it particular or material consequences beyond costs such that the tribunal was obliged

In any event, the tribunal dealt with the claim for declaratory relief. As the tribunal commented when dismissing the UNCITRAL Rule 39 application, the tribunal in fact decided at paragraph 797(b) of the Allawi award that the claimant’s case failed

in its entirety. It went on to address all other claims at paragraph 797(g) as follows:

“All other claims and requests for relief by both parties are dismissed.”

The tribunal recorded that there were no claims left undecided by the Allawi award. It seems to me that Mr Allawi's complaint is in reality more naturally classed either as a complaint about the dismissal of the claim for declaratory relief, which has not been raised, or as a complaint about the costs order made in circumstances where there had been no determination on the issue of breach. That neutral outcome on

I should add for the sake of completeness that even if the proposed challenge could

Again, for the sake of completeness and in any event, given the delay in question, and the absence of good reason for it, I would ultimately have exercised my discretion in the same way whatever the merits of the underlying section 68

As for the final factor, I consider fairness in the broadest sense. Stepping back, it would not in the broadest sense be unfair to Mr Allawi were he to be denied the opportunity of bringing a section 68 challenge. I recognise that he believes that this would cause him prejudice, indeed what he describes as irremediable and substantial prejudice likely to lead to his bankruptcy. However, for the reasons set out above, there has been excessive delay without good reason. The substantive challenge is weak or at least cannot be said to be strong. There would be prejudice beyond delay to Pakistan were the extension to be granted. A consideration of all the relevant factors leads in my judgment to the clear conclusion that the extension application falls to be dismissed and I dismiss it accordingly.