The Caribbean Court of Justice (CCJ) asked the parties in the voluminous case of the acquisitions of Belize Telemedia Limited (BTL) and Belize Electricity Limited (BEL) to submit on January 23 their suggestions for how the court addresses the issue of awards in its forthcoming judgment in the case, which was heard last December at its seat in Trinidad and Tobago.
The stakes are high and on Thursday Senior Counsel Denys Barrow addressed the reason the court called this additional session in the case.
“What took place there was the Court wanted to have full submissions from all sides, all parties, as to what remedies they should give in the event they rule one way or the other.
So if Government wins, then there would be almost automatically the obligation to pay compensation. So if the Court rules that there was a valid and lawful compulsory acquisition, then the process is straightforward. You pay compensation for what you have acquired. It’s the same as in relation to land, etcetera, similarly in relation to shares or other properties.
If the acquisition was unlawful, than that raises some major questions and this, I think, is where the Court needed to have reviews of the parties, so that when they make their decision the Court is adverting to all the possibilities which are raised, adverting to all the ways in which they can make an award, and the different aspects of the award.”
There are several outcomes possible and many factors and routes to a monumental CCJ decision, as Denys Barrow explains.
“If there was an unlawful acquisition, what happened to the hundreds or thousands of contracts which were made, from 2009 to today, 2015, which were apparently valid and lawful, people dealing with the company thought they were valid and lawful, are those all wiped out, only some of them wiped out? Who will decide which is wiped out, etcetera? What happened to investments which BTL made?
One of the things, which the claimants have a problem with, is the provision of services, they say that are undervalued, to the Government and people of Belize. Should that be wiped out? Should that be negated? The investment in the National Bank, should that be negated? That sort of thing.
Should the Court, if it finds the acquisition was unlawful, decide that it was wrong, but we will not give back the shares to the former owners. Instead we will order that damages for the loss they sustained as a result of the taking of their shares will be paid, and then the question is what are all the factors that will go into the assessment of damages?
So it is really a complicated matter, and it was absolutely necessary for the court to hear all that all parties had to say. The government’s position of course is that the acquisition was lawful, and it was made lawful, or confirmed as being lawful, but the eighth amendment to the Constitution.
The government’s further position is that even if it is unlawful, the CCJ should order that the shares remain with the Government, and the Government pay damages for the acquisition of the shares.”
The Government, Denys Barrow reiterated, is prepared to pay damages if the court finds the acquisitions unlawful, but is unwilling to overturn the ownership of the companies.
However, opponents, Dean Boyce and the BTL Employees’ Trust and Fortis Energy International, insist on nothing less than the return of the shares and therefore ownership of the companies, while British Caribbean Bank is asking for the payment of the loan it granted BTL.
“I represented British Caribbean Bank. We were also there on behalf of Fortis and as you know Lord Goldsmith was there on behalf of the Dean Boyce and the employees trust. So, there were three appeals that were being heard at the same time.
In so far as the bank is concern, you will recall that in 2009, the Government acquired that was about 21 million dollars at the time. It is now over 50 million dollars because of the period of time that has passed. They acquired that from British Caribbean Bank.
The government has not compensated British Caribbean Bank. We have argued to the court that the taking was unconstitutional, it was null and void and what the court should order, because so much time has passed, it to order the government to pay British Caribbean Bank the 50 [plus] million dollars. I am sure its 50 [plus] million US dollars by now.
If the CCJ agrees with us and does not, then British Caribbean Bank would after being paid, if it is paid, assigned the rights that it has under the loan to the government and the government can go after Telemedia for that.
So, very simply, British Caribbean Bank said to the CCJ, if you find this to be unconstitutional, order the government to pay the total amount that is outstanding in the books of the bank – 50 million US dollars.
In so far as Fortis and the employees trust are concerned, the primary claim is for return of the shares. If you have an unconstitutional taking, what the cases say, is that is null and void and therefore the acquirer, in this case, the Government, never got title. The property actually stayed where it was and therefore those parties are asking the court to restore them to their shareholding, so that they would take over those companies, for which, as you are well aware, the Government has paid not a dime in compensation.”
In the case of Fortis Energy International, which Courtenay also represents, and BTL Employees’ Trust represented by Lord Peter Goldsmith QC, they wish the return of the shares in BTL and BEL respectively which they believe were unlawfully taken. And even then, the litigants will seek damages for losses incurred not only in the initial acquisitions, but for decisions taken since then that former owners claim have undervalued the company’s services. But what does that mean for the average consumer who may believe things are better with the current administration? Courtenay says things inside St. Thomas Street are not quite what they seem and the Government is at fault.
“First of all, I don’t hear people out in the streets celebrating, ‘We’re having lower telephone rates.’ That’s the first point. So I dispute that.
In any event, if Telemedia is returned to its former owners, it will then come under the Public Utilities Commission. The rates that it entitled to charge are set, managed, and controlled by the Public Utilities Commission.
So, to the extent that it goes back to the private owners, it would be up to the regulator to ensure that a fair price is charged, so that investors can make a fair return, and that the public doesn’t suffer unduly.
So, going back to private ownership does not necessarily mean that consumers will suffer, because you have a regulatory environment.
The problem you have today is the incestuous relationship between the PUC and Telemedia.”
Eamon Courtenay told us that in the case of the loan, which is subject to arbitration and for which an award has been granted, his clients have undertaken, should they be awarded damages in the CCJ, not to pursue the arbitration further, and if not, to go the other route as needed. The former owners are also vowing to go in and clear out what they believe to be corrupt practices, including poor hiring practices of unqualified individuals to feed at the trough for political gains and other services by both BTL and BEL.