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May 4, 2017

CIHL and Courtenay Coye Challenge New Government Legislation

In January, the Central Bank (International Immunities) Act and the Crown Proceedings (Amendment) Act were passed by Parliament.  The former is intended to protect Belize’s foreign reserves in the Bank from poaching by companies claiming arbitral awards, including Caribbean Investment Holdings Limited.  C.I.H.L. charges that the legislation’s effect is to clearly attempt to intimidate and restrain them from pursuing its rights in judicial proceedings, which it claims the Government has lost.  The latter is believed by at least one law firm – coincidentally the firm which is challenging it – to be targeting their efforts to assist their clients with proper legal advice.  The claims were consolidated and trial began on Wednesday before Chief Justice Kenneth Benjamin. News Five spoke to both sides after arguments concluded this afternoon and Aaron Humes has the following report.

 

Aaron Humes, Reporting

The Government of Belize contends that Caribbean Investment Holdings Limited has already lost its opportunity to enforce the judgment it got from the London Court of International Arbitration several years ago, and that it does not intend to go after anyone for enforcement and abetment to enforcement.

 

Nigel Hawke

Nigel Hawke, Solicitor General

“We had fruitful arguments; the matter is before the judge; because the matter is sub judice I don’t want to prejudice anything, so the most I will say [is] we advanced our arguments as to the constitutionality of the legislation. Some of the things they have argued in relation to ad hominem attack and for an importer purpose – we have basically submitted to the court that the final court has pronounced on those matters already. And the thrust of our submission is that they are seeking to enforce a judgment that our final court has pronounced is not enforceable because it is against our legal order of the Constitution of Belize. That is as much as I can say, because as you know, the matter is before the Honorable Chief Justice.”

 

C.I.H.L. and its attorney, Senior Counsel Eamon Courtenay, disagree.

 

Eamon Courtenay

Eamon Courtenay, Attorney for Caribbean Investment Holdings Limited

“Where you have a judgment or an arbitral award in your favour, the courts have said that that constitutes property; in other words, there is an order from a court that somebody is to pay you money; that is property in and of itself. And what we are saying is that if you pass a law that, when it is applied, renders that judgment that you have, nugatory – that it is of no effect, you can’t do anything with it – then that amounts to an arbitrary deprivation of your property; you might as well tear up the judgment, because you can’t enforce it. So we say there is a violation of the right to property by an arbitrary deprivation when the legislation is implemented.”

 

Courtenay and colleagues Iliana Swift and Angeline Welch further argued that C.I.H.L. were denied due process by the passage of the law and equal protection under the law by the imposition of stiffer criminal penalties for their attempts at enforcement, supported by what Courtenay describes as vague and imprecise language on what constitutes criminal offences under the new Act. Courtenay also points out that the Government’s options are limited because the London Court of International Arbitration did not hear from them as to why the award should not have been given.

 

Eamon Courtenay

“Where you agree to go to arbitration, there is something called the seat. The arbitration agreement says the arbitration is to be held at a particular place, that place is called the seat. And what arbitration law says is that once you have a seat chosen, it is the court of the seat that supervises the arbitration; and it is only that court, exclusively that court, that can say an arbitral award is illegal, is void, or is no longer valid. Now in the particular case that we are talking about, the seat of the arbitration was in London, and therefore the courts of England that can decide whether the arbitral award was illegal. That’s a different point from you taking an arbitral award which is issued in your favour and going to another country and saying, I want to ask this court to assist me to enforce it. The court can say I will not enforce the award; but that court does not have jurisdiction to retry the arbitration itself to determine whether or not the arbitration was valid; that is only for the court of the seat.”

 

The case for Courtenay Coye LLP itself, as argued by Senior Counsel Magali Marin-Young, is that the firm runs the risk of exposure to criminal penalties for its work, a charge that the Government denies, but which Courtenay himself stands firm on.

 

Eamon Courtenay

“The law specifically says that if you act as an adviser to the person who attempts to do the things defined in the legislation, you commit a criminal offense. The Government has, rather strangely, written a letter saying that they don’t interpret adviser to mean a law firm, or to be attorneys. Well, a lot of my work and the work of attorneys is in advising people, so that is a bizarre position to take for the Government, but that is their position. We have no confidence in that. Mr. Hawke, the Solicitor General, says that he is not aware of any attempt to go after any attorney. That might be the position today; it might not be the position tomorrow, and so we need the court’s determination of what the legislation says.”

 

The Chief Justice’s decision has been reserved. Aaron Humes reporting for News Five.

 

Chief Justice Benjamin asked for and got an undertaking that the Government would not attempt to change either law while he is preparing his decision. In related news, the Belize Bank Limited’s challenge to the Government is headed to judgment on May eleventh after being postponed from today due to the continuation of the trials.

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