World Bank  finalises Court of Arbitration to resolve Kishenganga, Ratle disputes

The World Bank (WB), which brokered the 1960 Indus Waters Treaty, has almost finished the construction of the Court of Arbitration by adding two more technical and legal members, according to a senior official at the Ministry of Law and Justice.

Pakistan had long sought a Court of Arbitration to settle disputes over the designs of India’s 330 MW Kishenganga and 850 MW Ratle hydropower projects.

“Pakistan has also finalised its two forum arbitrators.” And if India does not give its two arbitrators, the CoA will be regard a complete forum with only five members,” a senior Pakistani official stated. The World Bank has previously selected Sean Murphy as Chairman of the Court of Arbitration (CoA) and Michel Lino as Neutral Expert, according to a statement made on October 17.

Member of Court of Arbitration

According to the treaty, the Neutral Expert Forum is composed of one man, and the Court of Arbitration is composed of seven members: one chairman, two arbitrators from each of the disputing parties (Pakistan and India), a technical member, and a legal member. According to the official, the legal member of the Court of Arbitration is appointed by the Chief Justice of the United States Supreme Court, and the technical member is appointed by the Rector of Imperial College London. The procedure is now complete.

Pakistan requested that the World Bank form the CoA to resolve a long-standing disagreement over the designs of India’s 330 MW Kishenganga Hydropower Project on a tributary of the River Jhelum  and Pakistan’s 850 MW Ratle Hydropower Project on the River Chenab. Following the signing of the Indus Waters Treaty in 1960, the rivers Indus, Jhelum, and Chenab  designated as Pakistan’s waterways. On the other hand, India desired that the World Bank serve as a one-man Neutral Expert forum.

Objections lodged by Pakistan

Pakistan has lodged three objections to the design of the Kishanganga project, claiming that the pondage is 7.5 million cubic metres, which is excessive and should be one million cubic metres. Pakistan also wants India to increase inflow by 1-4 metres and spillways by up to nine metres. Islamabad had four objections to the Ratle Hydropower Plant.

Pakistan wants India to preserve the freeboard at one metre, while India wants it to stay at two metres. Furthermore, India wants to preserve the pondage at 24 million cubic metres, whereas Pakistan wants it reduced to eight million cubic metres. Pakistan also intends to raise the project’s intake by 8.8 metres and its spillways by up to 20 metres.

Court of Arbitration

In 2016, Pakistan requested that the World Bank establish a Court of Arbitration to address design disputes in these projects. However, following India’s protest, the World Bank announced a pause in the formation of the Court of Arbitration (CoA) in December 2016. Instead, New Delhi desired that the matter be resolve by a neutral expert forum. After five years, the World Bank lifted the’stay’ and declared that it would restart the process of establishing the Court of Arbitration (CoA), as Pakistan had requested.

Pakistan made a significant contribution to the development. According to a senior official, on October 4, 2022, a high-powered delegation led by Pakistan’s federal minister for law and justice, the Attorney General, the head of international disputes at the AG office, the Indus Waters Commissioner, the Executive Director of Pakistan in the World Bank, and a representative of the Pakistan Embassy in the US will meet top notches of the World Bank’s legal department in Washington, DC.

Syed Mehr Ali Shah, Pakistan’s Indus Waters Commissioner, forcefully urged for the parallel formation of the Court of Arbitration and Neutral Expert during the meeting. Pakistan requested that the World Bank confirm the names of both panels. According to the World Bank, obtaining confirmation is not permit under the Indus Waters Treaty. In his answer, Syed Mehr Ali Shah contended that the World Bank announced and implemented “the pause” in the way of the CoA’s constitution in December 2016, which was also not part of the Indus Waters Treaty.

World Bank legal team

The WB legal team was rendered dumbfounded by this argument. Pakistan finalised the names of two arbitrators after the World Bank attempted to reaffirm the arbitrators from both countries. The Pakistan delegation also demanded that the World Bank complete the Neutral Expert and Court of Arbitration processes concurrently. They also requested assurances that the two forums would not make contradicting rulings.

Following the conference, the World Bank announced on October 17 the appointment of the chairman of the CoA and Neutral Expert. Pakistan, interestingly, dubbed the Neutral Expert.