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Jul 26, 2013

Split decision? CCJ says arbitration act legal, but BCB award illegal

Eamon Courtenay

The Caribbean Court of Justice via teleconference ruled this afternoon that a forty million dollar arbitration award won by B.C.B. Holdings in 2009 was not enforceable in Belize. Like most of the ongoing litigation between both parties it’s complicated, and this matter goes way back to a settlement deed which was signed in 2005 by the previous administration and B.C.B. Holdings over shares in Belize Telemedia Limited. The Barrow administration refused to honour the settlement deed on the grounds that the then Minister of Finance did not have the power to sign it. B.C.B. Holdings took the matter before an arbitration tribunal which ruled that the Minister of Finance did have the authority to sign. Government refused to honour the arbitration award and the matter ended up before the C.C.J.  The C.C.J. rejected the government submissions that the Arbitration Act was unconstitutional, but it upheld the argument that the award was illegal. News Five spoke to attorney for B.C.B. Holdings Eamon Courtenay who gave us the background of the case and its implication for pending litigation between his clients and G.O.B.

 

Eamon Courtenay, Attorney for B.C.B. Holdings

“This goes way back to the Prosser days where B.T.L. was under the Prosser and the BCB Group had an option to buy it back. Difference arose in that regard and an arbitration was on. That arbitration was stopped by entering into the settlement deed. Then the government didn’t implement the settlement deed and therefore BCB Holdings come up with this arbitration again. And it is that arbitration that led to the award and now the Caribbean Court of Justice is saying that the award cannot be enforced in Belize. I am sure that my clients are very disappointed with that part of the decision of the Caribbean Court of Justice. I think you heard the court indicate that as far as they are concerned, the act—part four of the act—must be restored and they restored that; which means that from here on, you can enforce international arbitration awards in Belize. In this particular case they did not force it because they found that the Minister of Finance at the time did not have the power to enter into that agreement. And what they found was what caused the effect of the agreement was to provide a particular tax treatment for BCB holdings and they felt that that could not have been done by a minister; it had to be done by parliament and therefore to enforce such an agreement, such an award to public would be contrary to public policy. A few weeks ago the CCJ gave a decision in which they allowed another arbitral award to move forward. And the decisions is very important because if my clients win that award, part four of the arbitration act has been restore and therefore they can come to Belize and enforce it if they get an award.”

 

Following the decision, the lawyers we consulted suggested that it now seems likely that G.O.B. will end up being sued for entering into a contract that is against public policy and thus causing loss to the bank and its holding company. The C.C.J. was presided over by the President, Sir Dennis Byron, along with Justices Saunders, Bernard, Wit and Anderson. Attorneys Edward Fitzgerald, Eamon Courtenay and Ashanti Arthurs-Martin appeared for B.C.B. Holdings. Attorneys Michael Young, Magalie Perdomo and Iliana Swift appeared for the Attorney General.

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