BELIZE CITY, Fri. Jan. 13, 2017–Monday’s ruling by the United States Supreme Court to deny three petitions from the Government of Belize asking the US not to allow the enforcement of separate arbitral awards totaling in excess of BZ$100 million, has gripped the nation’s attention.
In a special sitting of the House of Representatives today, Prime Minister and Minister of Finance Dean Barrow, the ruling United Democratic Party’s member for Queen’s Square, made a statement highlighting concerns of the Caribbean Community (CARICOM) over the developments.
PM Barrow warns Lord Ashcroft against attempts
to go after Belize’s assets in the US
Barrow furthermore threatened that any attempt by the litigants, and particularly the Michael Ashcroft group, to seize any assets held by Belize overseas—although Barrow contends that there is nothing that can be attached by the litigants to satisfy the award—would be deemed to be an act of economic war and thereafter, all options will be on the table.
In chronicling the issuance of the arbitral awards, Barrow first pointed to an award by the London Court of International Arbitration (LCIA) to Belize Social Development Limited (BSDL), to which Belize Telemedia Limited (BTL) had shrewdly assigned the award while still under Ashcroft control and right before the Barrow administration nationalized the phone company.
Ironically, Ashcroft still has major interest in the telecommunications sector and Barrow revealed today that whereas the British billionaire previously held 55% of BTL’s rival company, SpeedNet, Ashcroft now holds 70-odd percent interest, after acquiring a portion of the shares held by Jaime and Renan Briceño, relatives of Opposition Leader Johnny Briceño.
The other two arbitral awards are in favor of BCB Holdings Limited, which Barrow described as an umbrella group of Ashcroft in Belize; and Newco, a company which had been set up by Lufthansa to manage Belize’s international airport.
The agreements with the Ashcroft group were executed under the People’s United Party (PUP) administration led by then Prime Minister Said Musa, but after the administration changed in 2008, the Barrow administration repudiated them. In the case of Newco, that company accused the Musa administration of a breach of contract, which it had instead given to PUP insiders.
“Their friend Ashcroft calls it the ‘pension plan for the boys’,” Barrow said.
Both the airport deal to the locals, as well as the agreements issued to the Ashcroft companies, spanned 30 years, Barrow observed.
The Government of Belize lost the arbitration proceedings, but Barrow said that his administration has resisted enforcement because in every case, “the litigation arose out of the perfidy of the then PUP administration government…”
In the case of Newco, Barrow said, they had a right to sue, although he did cite an issue over tax liability, which he said caused the Government to resist paying the award, amounting to about US$4.5 million.
Whereas Prime Minister Barrow insisted that he will not pay the arbitral awards to the Ashcroft companies, he said that there is the question of how the Government will handle the Newco award, which he said he wanted to leave aside for a minute.
Barrow underscored that the Caribbean Court of Justice (CCJ) had already pronounced on at least one of the awards—that of BCB Holdings (now Caribbean Investments Holdings Limited), turning down a request from the company to enforce the award in Belize—and “government has no intention of paying a penny…”
Belize’s case in the US was supported both by CARICOM and the state of Guyana. CARICOM Secretary General Irwin LaRocque had written the US Solicitor General on the repercussions for CARICOM, and Guyana had entered an amicus curiae, a brief to the court on Belize’s behalf, citing similar concerns.
The correspondence from CARICOM expressed “great concern” that the rejection by the US of the CCJ’s position undermines the importance of this seminal CCJ decision, which is designed to further the rule of law and the core democratic principle of separation of powers in the CARICOM region.
It went on to say that “the case presents a fork in the road,” and urged that deference should be accorded to the CCJ’s reasoned decision, given the critical importance of the court to CARICOM, so as not to risk impugning the decision of the CCJ.
“Prime Ministerial governance, a paucity of checks and balances to restrain an overweening Executive, these are malignant tumours that eat away at democracy. No court can afford to encourage the spread of such cancer…. If this Court [the CCJ] ordered the enforcement of this Award we would effectively be rewarding corporate citizens for participating in the violation of the fundamental law of Belize and punishing the State for refusing to acquiesce in the violation. No court can properly do this.”
— CCJ decision of 2013
The Guyana brief supporting Belize’s petition for writ of certiorari, to quash the decision of the lower courts, addressed the CCJ’s vital importance. It said that allowing the CCJ’s decision to be circumvented would have the deleterious effect of weakening the CCJ’s value as an institution; and rejecting the CCJ’s authority damages the CCJ’s reputation and undermines its present and future operations to the detriment of the entire Caribbean.
The Guyana brief pointed out that in the case of BCB Holdings, it had sought relief in the US only after losing in the courts of Belize; appealing in the CCJ and then losing in the CCJ as well. It said that “this sort of forum shopping should not be allowed to result in flatly inconsistent results, which is the present situation…,” and all the more so when the CCJ ruling rests upon foundational democratic principles aimed at combating government corruption.
“I ain’t going to pay…. how in the name of not just Belizean nationalism; how in the name of CARICOM solidarity can I ever agree to pay these things?” Barrow went on to say.
He remained adamant that the Ashcroft concerns have no recourse here in Belize, and added that as far as he is aware, there are no assets in the US for the Ashcroft companies to attach, although he said that they will certainly try.
“If they make ANY effort to go after [Belize’s assets] in the States… which we don’t have, but just the fact of any attempt …I will consider that an act of economic war and all options thereafter will be on the table,” Barrow said.