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Barrick v. Papua New Guinea, Ruling of the Supreme Court of Papua New Guinea, September 25, 2020

25 Sep 2020

Barrick (PD) Australia Pty Limited v. Papua New Guinea, ICSID Case No. ARB/20/27

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Ruling of the Supreme Court of Papua New Guinea

Document Details:

LISTED PARTICIPANTS

Barrick v. Papua New Guinea

Ruling of the Supreme Court of Papua New Guinea

Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.

Claimant appointee

Respondent appointee

Tribunal/Panel chair

Arbitrator(s)

Sole Arbitrator

ICSID Annulment Committee president

ICSID Annulment Committee members

WTO Appellate Body members

WTO Appellate Body chair

Judges

Colin Makail

Claimant's counsel

M. Varitimos, David Wood, L. Evore

Claimant's law firm

Respondent's counsel

N. Saroa, T. Tanuvasa, L. Kandi, G. Geroro

Respondent's law firm

Other counsel

Claimant's expert

Claimant's expert firm

Respondent's expert

Respondent's expert firm

Claimant's witness

Respondent's witness

Other witnesses

Tribunal secretary

Tribunal assistant

Third-party funder

Entities

Barrick (Niugini) Limited, Ashurst, Geroro, Mineral Resources Authority, Mineral Resources Enga, Nelsons, Papua New Guinea, Wagambie

Country

Papua New Guinea

Print reporter

Document Summary

Barrick v. Papua New Guinea

Ruling of the Supreme Court of Papua New Guinea

This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document is a ruling by the Supreme Court of Justice of Papua New Guinea concerning an application by Barrick (Niugini) Limited (the "Appellant") to stay a decision of the National Court pending the determination of an appeal pursuant to Section 19 of the Supreme Court Act. The National Court had previously dismissed the Appellant's judicial review proceeding regarding the National Executive Council's (NEC) refusal to extend the Porgera Special Mining Lease 1(P) (SML).

Principal Legal Issues

The Supreme Court evaluated whether the Appellant had established an arguable case, and if so, whether the balance of convenience and the interests of justice warranted the imposition of an interim stay. The underlying substantive issues involved alleged multiplicity of proceedings—given parallel conciliation and arbitration proceedings before ICSID and an international arbitral tribunal—and whether the Appellant required the prior approval of its joint venture partner, Mineral Resources Enga Limited, to initiate the proceedings.

Court's Analysis and Findings

The Court (Makail J) determined that the Appellant had established an arguable case, noting that the procedural propriety of the National Court's summary dismissal warranted appellate scrutiny. However, the Court found that the balance of convenience did not favor a stay. The Court observed that the physical safety and maintenance of the mine were being adequately managed by both parties and state authorities, mitigating the Appellant's concerns regarding structural stability and illegal mining.

In assessing the interests of justice, the Court emphasized that the executive government had unequivocally decided to part ways with the Appellant, evidenced by the subsequent grant of an SML over the same land to Kumul Minerals Holdings Limited. The Court concluded that the commercial relationship between the parties had irreparably broken down, rendering it contrary to the interests of justice to compel the unwilling State to maintain the relationship via a stay order.