The Caribbean Court of Justice (CCJ), Belize’s final appellate court, has slated Tuesday, June 25, 2013, to deliver its decision in the civil appeal lodged by British Caribbean Bank Ltd. against The Attorney-General for the Government of Belize in civil appeal 1 of 2013.

Since the Barrow administration acquired Belize Telemedia Limited (BTL) more than three years ago, acquiring along with supermajority shares in BTL, a US$22.5 million mortgage that British Caribbean Bank held with the phone company, the two parties have been at loggerheads in local court proceedings as well as foreign arbitration proceedings.

In a hearing held in February, a panel of CCJ judges listened to arguments from the bank’s attorneys – Lord Peter Goldsmith, QC, and Ashanti Arthurs-Martin; and GOB attorneys – Denys Barrow, SC, and Magali Perdomo, Crown Counsel.

The CCJ’s decision is to be released via video conference at 11:00 a.m. at the Trinidad-based court. It will be transmitted via video conference at 9:00 a.m. Belize time.

Goldsmith, in arguing his case, had told the CCJ that the particular case has significance beyond the parties, as the case relates to the treatment of investment protection treaties, which number about 3,000 worldwide, and at least 11 Caribbean countries are parties to them. Those treaties, he said, create a stable international legal framework, which, among other things, guarantees substantive standards of treatment and methods for dispute resolution.

In a decision made last August, the Belize Court of Appeal ruled that the bank could “…continue or commence international arbitral proceedings in accordance with Article 8 of the UK-Belize Treaty of 1982, on condition that the Appellant foregoes its right to seek compensation pursuant to the second nationalization legislation of Belize.”

However, Barrow, attorney for the Government, told the CCJ that Belize could find itself in a precarious situation should a ruling be made in international arbitration proceedings requiring Belize to pay, say, $35 million to the bank, while a court ruling here could declare that the expropriation was not properly done and order that the assets be returned to their former owners.

Goldsmith told the court that it is not at all impermissible to bring these multiple proceedings. He said that they have tried to deal with the real concern in this case: “Is there a risk of double-dipping and can you protect against it?”

He said that the case before the CCJ has arisen in the context of resistance by the Government of Belize to fulfill both obligations to arbitrate and to enforce those arbitrations.

It’s been three and a half years since the original acquisition by the Government of Belize of certain assets; and nothing has been paid by way of compensation or to the shareholders, Goldsmith told the court. He also said that no offer at all has been made to British Caribbean Bank.

The London-based attorney also pointed to two arbitrations lodged by Dunkeld, an Ashcroft-affiliated entity, challenging the expropriation and seeking compensation from the Government of Belize, which, he said, arise out of the same appropriation of BTL.

However, Goldsmith said, these proceedings “have been brought to complete standstill by injunctions which have been granted.”

Denys Barrow, SC, pointed to a ruling made in 2009 by Supreme Court Justice Oswell Legall, in the case lodged by the Ashcroft group challenging the nationalization of BTL – proceedings in which the claimants also sought punitive damages.

Legall ruled that the nationalization was constitutional, and said “the Financial Secretary shall without delay, comply with the provisions of section 65(1) of the Acquisition Act for the payment to the claimants of reasonable compensation within a reasonable time…,” Barrow recalled before the CCJ

Barrow noted that the Legall decision has been set aside by the Court of Appeal and the matter is now pending resolution at the CCJ.

On the question of the US$22.5 million which the Government of Belize acquired from British Caribbean Bank, Barrow said that BTL had informed the Government that they had been advised that the mortgage debenture was unlawful, because it was obtained by the company to purchase its own shares – contrary to the provisions of the Companies Act.

Barrow told the CCJ that BTL has told the Government, “…we say the loan is unlawful on good grounds and we maintain that is the fact.” The executive chairman of BTL said so in a letter, he added.

“The money will not ultimately come out of the coffers of the people of Belize,” Barrow told the court.

On behalf of the bank, Goldsmith maintains they have the right to arbitrate. However, Barrow said that the Government of Belize is hesitant to concede to that for two reasons: the constitutionality of the acquisition and compensation for it need to be determined in local courts. He said that the lawfulness of expropriation of BTL is now solidly a matter for Belize jurisdiction.

A CCJ judge noted that Belize gave the option to the Ashcroft bank, when it entered into the UK Investment Treaty in 1982, to arbitrate overseas; and therefore, there is a risk of conflicting judgments. The Government of Belize, he said, took on that risk when it agreed to the Bilateral Investment Treaty (BIT) regime.

“Yes, but it did so in context of broader laws – include seeking an injunction to restrain vexatious and oppressive proceedings. If BCB did not bring constitutional law proceedings, they would be on a different footing,” said Barrow.

The parties are also in dispute over a $43 million arbitration award granted by the London Court of International Arbitration (LCIA), for which a ruling is also pending by the CCJ.

Other Belize cases before the CCJ are Raju Meenavali v Georgia Matute & Janae Matute, The Attorney General of Belize v Philip Zuniga & 6 others with BCB Holdings Ltd. & 10 others; Errol C. Pratt, doing business as Toucan Helicopter Company, Toucan Helicopter Ltd v Karl R. Reinz III, Continental Helicopter Inc, Wayne Macaulay, and Alantis Helicopter De Mexico S.A. DE C.V.; and BCB Holdings Ltd. & The Belize Bank Ltd. v The Attorney General of Belize.