September 22, 2020

Supreme Court declines to enforce arbitration award

0
0



Pin It

eamon_courtenay-300x169From Patrick Jones Belize

Thursday, February 5, 2015. AARON HUMES Reporting: The former administration of Prime Minister Said Musa should have gone to the House of Representatives for approval of a settlement agreement and loan note guaranteeing BZ$39 million in funds to the Belize Bank Limited on behalf of the Belize Healthcare Partners Trust, which bought out the assets owned by the Government of Universal Health Services (UHS) in 2007 and 2008.

That’s the ruling handed down this morning in the Supreme Court; but the saga continues as the Bank says it will now appeal the “finely balanced” judgment of Justice Shona Griffith.

A grant of $40 million, consisting of separate US$10 million grants from Venezuela and Taiwan, was diverted to the Bank to facilitate the purchase; however after a change of Government the new administration took back the Venezuelan grant, charging that the monies were to have been used for a different purpose.

The Bank enacted arbitration proceedings with the London Court of International Arbitration (LCIA), which the current administration did not take part in, which made a ruling in their favour in January of 2013.

Early in 2014 the Bank began trying to get the ruling enforced in Belize, which the Government resisted for several reasons, charging “double-dipping” by the Bank as the monies had been paid; bias on the part of the arbitration tribunal as one of its members was connected to previous matters involving Lord Ashcroft, and invoking public policy under Section 114(2) of the Constitution and Section 7 of the Finance and Audit Reform Act.

denys_barrow-300x169The court disagreed that there was double compensation in play or that the arbitration panel was improperly constituted, meaning the case turned on the issue of public policy.

While ruling that the Executive could enter the contract, the Court said that without approval of the legislature, which was not granted as the motion was withdrawn from the House of Representatives due to public upheaval at a meeting in May of 2007, it found difficulty seeing a way to enforce payment of the monies granted under the arbitral award from the Consolidated Revenue Fund or other monies controlled by the Government.

This is because the Finance and Audit Reform Act, brought into force in 2005, legislates that such approval is needed for any over BZ$10 million.

Speaking after the judgment, attorney for the government, Senior Counsel Denys Barrow was not prepared to say whether the actions of the Musa administration in 2007 were illegal.

He did say that the then-Government was not properly advised and moved without looking at the consequences.

Attorney representing the Belize Bank, Senior Counsel Eamon Courtenay, said this afternoon to reporters that with due respect to the judge and her careful and fine analysis, the award still exists and it needs to be paid.

That, he said, is what compels his clients to pursue appeal to the Court of Appeal and ultimately the Caribbean Court of Justice, in what the attorney admits has been a six-year “war” between Lord Michael Ashcroft’s various business interests and the current administration.

Courtenay also noted that also at stake is perception of investor confidence – that investors generally cannot trust an administration that goes back on its word, even if that administration is populated by different personnel from the original makers of the agreement.

The Caribbean Court of Justice decided a similar case in 2013 from BCB Holdings in favour of the Government on tax regimes which formed a major basis for this decision.

The Government has also planned to challenge the $41 million awarded to British Caribbean Bank for a loan to Belize Telemedia Limited in 2007 which was acquired by the Government in 2009.

Courtenay told us that there is enough merit in this case distinguishing it from the BCB Holdings case, which was extensively cited by both parties and Justice Griffith in today’s ruling, which will ultimately make the current matter successful in a higher forum.

The defendants were awarded half their costs to be assessed if not agreed.

Lord Ashcroft and other representatives of the Belize Bank were at court this morning for the judgment but conspicuously avoided the press by leaving through the back of the court.

Courtenay noted that he was also at the CCJ hearing in person and opined that perhaps he wanted to see for himself how the cases were being decided as they come to a close, but he added that he does not know that for sure and has not asked Ashcroft his purposes for being in Belize.
IMAGES:
Supreme Court declines to enforce arbitration award Denys Barrow
Supreme Court declines to enforce arbitration award Eamon Courtenay

For more on this story go to: http://www.patrickjonesbelize.com/2015/02/05/supreme-court-declines-enforce-arbitration-award/

Related stories:

Would Ashcroft Alliance Force A BTL Rate Rollback?

From 7Newsbelize.com

In our last segment, we told you how the former owners of BTL and BEL want the Caribbean Court of Justice to return the companies back to them if it rules that the Government should not have nationalized.

Well, while we were in our interview with Eamon Courtenay, who is one of the attorneys for the Ashcroft Alliance, he told us that even if the company is returned to them, that wouldn’t be enough. That’s because according to the Alliance, the new management, controlled by Government, has mismanaged the companies.

Now, since the Government take over of the telecommunications company in 2009, Digicell4G was launched. The company tried to make DSL internet more affordable by doubling the internet speeds 3 times for the same price, which means that it has reduced 3 times. Digicell 4G has been reduced, and GST was taken off the service. Text bundles have gone down, and International calls went down twice also.

With all those benefits to you, the customer, you might think that the management is doing well in trying to be more consumer friendly, which should lead to a growth in customer base. Well, the Alliance isn’t impressed, and they say that behind all those improvements, government interference has caused mismanagement in the background.

Today, Eamon Courtenay, told us that if the CCJ should give the company back to the former owners, the business mistakes would be corrected:

Eamon Courtenay, SC – attorney for Ashcroft Alliance
“The issue there is, first of all it was a private company, not government owned and controlled and as you are aware it operated in a regulated environment and therefore it sought to maximize profits, but subject to the public utilities commission. Now, you have an incestuous relationship in which the government controls the public utilities commission and yet it controls Belize Telemedia and so, there is, in truth and in fact no regulations and so what you have is gross mismanagement, seeking to achieve political objectives, rather than potential business objectives. What it means and the consequence for Belizeans is that if the court says that the taking was unconstitutional and it must revert to the shareholders – somebody and it can only mean the people of Belize, will be called upon to pay the cost for the loss that arises from the gross mismanagement by the current management of Telemedia. So, the point that was being made is that when the shares go back, if they go back to Telemedia, if they go back to Fortis, that the CCJ should order and assessment of the management, find out the mismanagement and calculate the loss that the shareholders have suffered and order the government to compensate them.”

Daniel Ortiz
“Sir, what would happen to those different policy decisions made at BTL where rate reductions took place. Is that an issue as part of the mismanagement you are referring to?”

Eamon Courtenay, SC – attorney for Ashcroft Alliance
“I would say first of all, each one of those decisions have to be looked at on a case by case basis. Yes, you cannot put the genie back in the bottle. Certain things have been decided and done – they can’t be undone. There are others that can be undone. There are decisions that have been taken that are continuing to negatively affect these companies and if the old shareholders go back in, they will stop it and the loss that has been incur will be calculated and the only person who will have to pay for that are the tax payers of Belize.”

And what about all of those rate reductions, would those be rolled back? Courtenay said that it may not be necessary, but each will have to be looked at on a case by case basis:

Eamon Courtenay, SC – attorney for Ashcroft Alliance
“First of all I dint hear people out in the streets saying, great we are having lower telephone rates, so I dispute that. In any event, if Telemedia is returned to its former owners, it would then come under the public utilities commission. The rates that it is entitle to charge are set, manage and control by the public utilities commission. So, to the extent that it goes back to the private owners, it will be up to the regulator to ensure that a fair price is charge, so that the investors can make a fair return and that the public doesn’t suffer unduly. So, going back to private ownership, does not necessarily mean that consumers will suffer because you have a regulatory environment. The problem you have today is the incestuous relationship between the PUC and Telemedia. You know, I know that every day internationally, because of innovations, because of new products, the cost of telecommunication is going down. You have to invest, but the cost of actual use is going down. Skype etc., cannot be rolled back – that will not be rolled back and the PUC is there to ensure that that will not be rolled back. So, a lot of the gains that the public say that they are enjoying, are not things that are going to be undone. What you will have undone are bloated contracts which we know exists in Telemedia. What we have is high salaries for certain executives in Telemedis, that are unqualified and are eating at the trough of Telemedia. What you will have is the many people who are being hired at these companies who are unqualified and just been given jobs to get on the payroll for political purposes – that is the type of inefficiency that the former owners will go in and say cut out this fat.”

Government took control of the company in 2009, and has been in control of the company for 5 years going on 6.

For more on this story go to: http://www.7newsbelize.com/sstory.php?nid=31530

It is high time for these court hearings to end

By Wellington C. Ramos From Caribbean Life

It seems as if Mr. Michael Ashcroft will not stop pursuing the people and Government of Belize for this 33.5 million dollars that he claims he is owed. I have heard our Prime Minister The Right Honorable Dean Barrow said over and over again that in his opinion, the then Prime Minister Said Musa and his Attorney General Francis Fonseca now the leader of the People’s United Party (PUP), acted illegally by approving the payment of the loan without the approval of the Belize’s National Assembly.

Now, it is clear that the Supreme Court Judge is in agreement with their line of argument. Knowing them, they will never be satisfied with this Judge’s ruling because they think that because they have money we in Belize must succumb to them. Our country cannot afford to pay this kind of money to anybody. Especially, when most of our people did not benefit from the use of Universal Health Services. Even up to today, the average Belizean citizen cannot afford the cost of the healthcare this institution provides. Also, within the PUP Cabinet at the time there were ministers of government who were opposed to the government paying this money but Said Musa and his Attorney General Francis Fonseca went ahead and paid it anyway.

Mr. Ashcroft is going to instruct his lawyers to appeal this case to the Belize Court of Appeals and then to the Caribbean Court of Justice (C.C.J.). However, what will happen if he ends up losing this case in both courts? In my opinion he could decide to just let it rest, take back the company and its assets or contemplate bringing legal action against Said Musa and Francis Fonseca his two friends for the decision they made. A business cannot just lose 33.5 million dollars like that without getting back its money. This is where this case is heading and it will cause problems between them and the PUP. According to most of the Belizean people I have spoken to here in the United States and in Belize, they are against any government of Belize paying 33.5 million dollars to Mr. Ashcroft and if they pay it, they will suffer in the next General Election to be held. This was one of the issue raised in the 2008 General Elections when the U.D.P. defeated the P.U.P. by a landslide 26 to 5 seats.

Prolonging this issue could also bring back some bad memories to Belizeans from 2008 and that could impact on the political careers of Said Musa in Fort George Division and Francis Fonseca in Freetown Division. I think that this issue should be a part of their re-election campaign because it has something to do with our nation’s wealth. We cannot afford to have our politicians making these major decisions on their own, without abiding by the constitution of our country. When a politician is elected, he or she must swear to an oath, that they will uphold and defend the constitution of our country. Any breach of such an oath, should be grounds for removal from office through a recall process. If this is not written in the laws of Belize, then what is the sense of having our elected representatives swearing to an oath. Again, I call on my fellow Belizeans to pay keen interest to this constitutional issue at hand. Our country is in deep trouble an it is our responsibility to save it.

For more on this story go to: http://www.caribbeanlifenews.com/stories/2015/2/2015-02-06-oped-belize-cl_2015_2.html

Print Friendly, PDF & Email
About ieyenews

Speak Your Mind

*