BELIZE CITY, Mon. Feb. 2, 2015–Belizean attorneys Eamon Courtenay, SC, Denys Barrow, SC, and his daughter Naima Barrow traveled to Trinidad recently for the conclusion of the hearing by the Caribbean Court of Justice (CCJ) into the nationalization of two utility companies – Belize Telemedia Limited (BTL) and Belize Electricity Limited (BEL) – in a landmark case for the region emanating from 6 consolidated claims filed by the Ashcroft Alliance, Fortis International and the Government of Belize.
Initial hearings were held last year, and the parties had to return in late January to make final submissions before the court.
The former owners of the utility companies contend that the nationalization of the companies was illegal and they have argued before the CCJ for the return of the shares, which had been compulsorily acquired by the Barrow administration through constitutional amendments.
Appearing for the Government of Belize, Senior Counsel Denys Barrow argued that the claim made by Dean Boyce, a former manager of BTL, that he, as claimant, is acting in the interest of BTL’s 500 to 600 workers is “simply a dressing that is being put before this court…”
Barrow said that “there is no notion that the 500 or 600 persons for whose benefit the shares were held have suffered or are likely to suffer from the compulsory acquisition.”
As for the claim by British Caribbean Bank (BCB) that the matter before the court is now res judicata (a matter that has been adjudicated by a competent court and may not be pursued further by the same parties) since the matter was settled in arbitration on December 19, 2014, Barrow disagreed.
After litigation under the UK-Belize Bilateral Investment Treaty, BCB was awarded US$48 million for a loan originally listed for US$22.5 million.
Barrow said that although he has not been apprised of the details of that decision, he would be prepared, for argument’s sake, to accept that the Government is bound by the arbitration award. However, he noted that there is a third party – BTL, and that company is entitled to continue seeking a declaration that the loan which it took from BCB is an illegal loan, allegedly for an illegal purpose.
He said that the matter (case 360 of 2011) has been stayed at the request of BCB, pending the outcome of the CCJ trial, and GOB had consented to having it stayed.
Barrow said that this is not a matter of pure technicality, but a matter of what was done with the money, and BTL contends that its then directors and BCB knew the loan was for an illegal purpose.
Peter Goldsmith, QC, PC, maintained to the CCJ that the claim brought by Boyce was brought ultimately for BTL’s employees who, he said, have waited five and a half years and have not received any benefits. He furthermore argued that the nationalized assets exist and should be returned to their original owners.
For BCB, Courtenay argued that the constitutional rights of his client had been breached, and Government had been refusing to pay compensation.
He also told the court that the question of the legality of those loan instruments had been settled by the international tribunal, in which the Government of Belize participated, and the Government had agreed to accept the determination as final. So, it is not open to the Government to come before the CCJ or to appear in court in Belize in claim #360 to say that the arbitral award is not binding on them, he stated.
Courtenay asked the court to be persuaded by the decision of the international arbitrators, and added that there should be a remedy for his client for the violation of its constitutional right.
Edward Fitzgerald, QC, reiterated to the CCJ his clients’ stance that the shares should be returned to them. Giving the extreme scenario of an earthquake, he argued that the only way the property ought not to be returned to his clients, is if the property has been destroyed.
However, the court pressed him on the court’s ability to exercise discretion to grant an award based on the loss of value to the former owners. Fitzgerald said that remedy would only be adequate if the property no longer exists, which is not the case. The court asserted that it has to determine what is appropriate in the particular circumstances.
Fitzgerald reiterated that the former shareholders all want their shares back, and even if there is a discretion that the court can exercise, there is only one way that it can be exercised appropriately in the circumstances of the case.
After a day of hearings, the CCJ reserved judgment in the matter.