Belize Bank/CIHL and G.O.B. Back in Court
The first stage of an application by the Belize Bank Limited, supported by Caribbean Investment Holdings Limited, to discharge an injunction granted by Justice Michelle Arana restraining the company from enforcing a more than fifty-two million Belize dollars arbitral award and U.S. District Court judgment against the Government came up in the Supreme Court today. CIHL has also filed a constitutional claim in the Supreme Court challenging the constitutionality of the Central Bank (International Immunities) Act and the Crown Proceedings Act. The former purports to give additional protection to Belize’s reserves and the latter criminalizes any attempts to go after sovereign funds. We will tell you about those later on, but the matter of the Bank’s claim was set aside until the thirteenth of March. As Aaron Humes reports, it is a one-shot decision that will settle a battle. Whether either side wins the war remains to be seen.
Eamon Courtenay, Attorney for Belize Bank Limited
“Essentially, what we have is an application to strike out the claim and to lift the injunction. And I think the common ground is that if we did that on an interim basis, it would largely determine the claim itself; so instead of doing it in two stages, we decided to just agree that we would treat this matter now on the thirteenth as the trial of the claim; it either succeeds or it fails.”
Aaron Humes, Reporting
Success or failure for the Belize Bank Limited, which is seeking the collection of more than fifty-four million Belize dollars owed under arbitration, including interest, for its role in the Universal Health Services transaction, depends on how Chief Justice Kenneth Benjamin takes the view of the decision by fellow Supreme Court Justice Michelle Arana to grant the injunction on February third, where the Bank did not appear. As noted by attorney for the Government Denys Barrow, they were seeking a U.S. court injunction to stop proceedings and did not succeed. The Bank’s attorney, Eamon Courtenay, says they elected to concede this opening battle in the effort to win the war.
Denys Barrow, Attorney for Government of Belize
“They did not appear because unbeknownst to us, they were appearing at the same hour of the day in the United States, seeking to get the very same injunction granted by the U.S. against us, that we, in a matter of minutes, before, had gotten granted against them.”
“The situation then was, first of all, the short notice that was given. We didn’t make a formal complaint about that – we felt that Government wanted to proceed; Government felt it was urgent; it would be futile for us to have come to court and argued that it wasn’t urgent – Government put forward their reasons why they thought that was so. But we realized that once the injunction was granted, if the judge was persuaded to grant it, that you could apply to have it discharged. So rather than rush in there and have a fight about it when you are not fully prepared, our clients accepted: ‘listen, if they get their injunction, they get their injunction, and in due course one would apply to have it discharged, if there is a basis to do so,’ and that’s what we are doing now.”
It has been widely established that even if the injunction is lifted, the Bank and BCB Holdings, among others, are limited by the U.S. Foreign Sovereign Immunities Act from attaching any of Belize’s official reserves as opposed to the proceeds of commercial transaction. Courtenay made the point that any attempt on the latter must require a court appearance. But the Government, according to Barrow, takes a much narrower and more conservative view.
“The judge in D.C. who granted the order, what is called a sixteen-ten order, made the point that if one of these parties wanted to execute against any property of the Government, it’s not as if it could happen in the night, and you wake up tomorrow and something is frozen; you have to literally make a court application to each state and the defendant would be given an opportunity to defend and represent themselves. I think the operations of the Government of Belize are public; everybody knows the type of activities the Government is involved in. As far as I know there are no secret accounts and no secret activities anywhere – in fact, I’ll be more specific: my understanding is that in the U.S. proceedings, there was interrogatories and disclosures where the Government was specifically asked: where are your assets, where is all your money, et cetera, and the Government has disclosed that. So, it’s very clear to everybody what is available for execution and attachment, and the question of the Government’s reserves being at risk just doesn’t arise; it’s a red herring.”
“So you are not prepared to concede that according to the opposition they are not pursuing – cannot pursue – Belize’s foreign reserves, whether abroad or otherwise, under the Foreign Sovereign Immunities Act?”
“I don’t know about that position at all. They have gotten an order in the United States which allows them to pursue any assets which Belize has in the United States – they have gotten that order already. What we have succeeded in doing is to prevent them from taking it any step further; but they have an enforcement authorization granted by the U.S. courts already.”
The battle rages on. Will March thirteenth be the end, or another beginning? Aaron Humes reporting for News Five.
Submissions from the Bank are due by March third and replies from Government by March ninth.