|LIST OF DEFINED TERMS|
|2009 Act||Belize Telecommunications (Amendment) Act, 2009|
|2009 Amendment Order||Belize Telecommunications (Assumption of Control over Belize Telemedia Limited) (Amendment) Order, 2009|
|2009 Order||Belize Telecommunications (Assumption of Control over Belize Telemedia Limited) Order, 2009|
|2009 Orders||The 2009 Order and the 2009 Amendment Order|
|2011 Act||Belize Telecommunications (Amendment) Act, 2011|
|2011 Order||Belize Telecommunication (Assumption of Control over Belize Telemedia Limited) Order, 2011|
|Accommodation Agreement||An agreement between Telemedia and the Government dated 19 September 2005|
|Anti-Arbitration Injunction||The injunction issued by the Supreme Court of Belize on 7 December 2010|
|Anti-Suit Injunction||The injunction issued by the High Court of Justice of England and Wales on 4 May 2010|
|Appointing Authority||The Honourable Marc Lalonde, P.C., O.C., Q.C.|
|BCB||British Caribbean Bank Limited|
|British Caribbean Bank||British Caribbean Bank Limited|
|BTL||Belize Telecommunications Limited|
|CCJ Judgment||The Caribbean Court of Justice's Judgment of 25 June 2013|
|Claim 360||The Respondent and Telemedia's lawsuit against the Claimant, commenced on 3 June 2011|
|Claimant||British Caribbean Bank Limited|
|Dunkeld Proceedings||The arbitration proceedings in Dunkeld International Investment Limited (Turks & Caicos) v. The Government of Belize (PCA Case No. 2010-13)|
|Eighth Amendment||Belize Constitution (Eighth Amendment) Act, 2011|
|Employees Trust||Belize Telecommunications Ltd Employees Trust|
|First Constitutional Challenge||The Claimant's constitutional challenge to the 2009 Act and Order commenced on 21 October 2009|
|Government||the Government of Belize|
|GOB||the Government of Belize|
|Motion to Strike||The Respondent's application of 8 April 2014 to strike certain spreadsheets from the Claimant's Post-Hearing Memorial|
|PCA||Permanent Court of Arbitration|
|Preparatory Conference||The Preparatory Conference in this arbitration held in Washington, DC on 26 August 2010|
|Respondent||the Government of Belize|
|Respondent's Application for Further Submissions||The Respondent's application of 3 June 2014, seeking leave to introduce into the record the Court of Appeal's decision, to submit "supplemental briefing with respect to the effect of the Court of Appeal decision," and to introduce additional evidence identified in relation to the Dunkeld Proceedings|
|Respondent's Document Requests||The Respondent's Requests for Production of Documents dated 28 September 2013 and the Schedule of Definitions to GOB's Requests for Production of Documents|
|Second Constitutional Challenge||The Claimant's constitutional challenge to the 2011 Act and Order commenced on 24 September 2011|
|Second Motion to Strike||The Respondent's application of 23 April 2014 to strike the Claimant's claim for legal fees in respect of the Anti-Suit Injunction|
|Sunshine||Sunshine Holding Limited|
|TIL||Telemedia Investments Limited|
|Treaty||Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments of 30 April 1982|
|UNCITRAL Rules||Arbitration Rules of the United Nations Commission on International Trade Law, 1976|
Mr. Philip Osborne H.E. Ambassador Lois Young
Mr. Stewart Howard Mr. Joseph Waight
Mr. Jose Alpuche Ms. Magalie Perdomo
British Caribbean Bank Limited The Government of Belize
Ms. Judith Gill QC Mr. Juan Basombrio
Ms. Angeline Welsh Ms. Kate Santon
Allen & Overy LLP Dorsey & Whitney LLP
Mr. Eamon Courtenay, S.C. Mr. Denys Barrow, S.C.
Courtenay Coye LLP Barrow & Co., Attorneys at Law
Mr. Philip Osborne Mr. Joseph Waight Mr. Stewart Howard Mr. Andrew Ashcroft Mr. Dean Boyce Mr. Lyndon Guiseppi
Mr. Garth Schofield Ms. Hyun Jung Lee
Permanent Court of Arbitration
Ms. Diana Burden Ms. Laurie Hendrix
Mr. Carlos Oreamuno
(a) Mr. Philip Osborne is Company Secretary of British Caribbean Bank and its representative in these proceedings, as well as the Company Secretary and a Director of BCB Holdings Limited. Mr. Osborne also served as the corporate representative of several of the corporate directors of Telemedia between 8 June 2007 and 25 August 2009, during certain of the events in question in these proceedings.
(b) Mr. Joseph Waight is the Financial Secretary of the Government of Belize and its representative in these proceedings.
(c) Mr. Stewart Howard is and has been a Managing Director of British Caribbean Bank since 2012. Prior to this, he was a Senior Risk Manager at British Caribbean Bank and briefly a Senior Risk Manager at the Belize Bank in Belize.
(d) Mr. Andrew Ashcroft is a Managing Director of British Caribbean Bank and a director of Waterloo Investment Holdings. He was previously a director of Dunkeld International Investment Limited, and a director of BCB Holdings Limited.
(e) Mr. Dean Boyce was chairman of the Executive Committee of the Board of Directors of Telemedia until 25 August 2009. Mr. Boyce is presently a management consultant and accountant working for BCB Holdings Limited.
(f) Mr. Lyndon Guiseppi is the Chief Executive Officer and a director of BCB Holdings Limited, a position he has held since July 2008. He was previously a director of The Belize Bank Limited and a Managing Director of RBTT Merchant Bank Limited.
All amounts payable by the Borrower to the Lenders hereunder shall be secured by the grant by the Borrower to the Lenders (or to the Agent or other nominee acting on behalf of the Agent or the Lenders) of a fully perfected first priority legal charge and mortgage over the BTL Shares and together with and including any and all dividends or other distributions approved by the shareholders of BTL or paid or distributed by BTL after the date of this Agreement on these BTL Shares until such time as the Loan is repaid in full and all obligations owed by the Borrower under this Agreement and the Security Documents have been fully satisfied.4
the executed Security Documents and other Security Documents (including the share certificates for the BTL Shares) required by the Lenders and the Agent in order to secure or partially secure or promote the payment of the obligations and liabilities of the Borrower to the Lenders under this Agreement and the subsequent confirmation in a form acceptable to the Lenders and the Agent of the recording, registration, and completion of the Security Documents in accordance with their terms;5
All amounts payable by the Borrower [Sunshine] to the Bank hereunder shall be secured by a first priority legal mortgage to be granted in favour of the Bank by the holders of the two (2) issued ordinary shares which they own in the share capital of the Borrower.7
(i) The Term Loan Amount shall be used for a loan by the Borrower to its subsidiary Telemedia Investments Limited ("TIL") to enable TIL to purchase 9,219,181 shares in Belize Telemedia Limited (the "Shares"), from RBTT Merchant Bank Limited ("RBTT") as attorney in fact for Belize Telecom Limited by virtue of a stock power; (ii) the Term Loan Amount shall be used for the purchase and installation of equipment for the provision of telecommunications services in Belize and (iii) the Term Loan Amount shall be used for general working capital.10
(i) a first priority legal mortgage, in a form approved by the Bank, made by TIL [Telemedia Investments Limited] in favour of the Bank over all of the Shares;
(ii) a first priority legal debenture, in a form approved by the Bank, made by the Borrower [Telemedia] in favor of the Bank;11
a guarantee to be issued by each Security Company, in the Bank's required form, for the benefit of the Borrower and in favour of the Bank, covering all debts and liabilities owed by the Borrower to the Bank under or pursuant to this Agreement;12
Firstly- The fixed plant, machinery and equipment of the Mortgagor [Telemedia];
Secondly- The Mortgaged Properties referred to in the Schedule hereto and all and singular the premises comprised therein, and any proceeds of sale of the Mortgaged Properties, including fixed plant, machinery and fixtures (including trade fixtures) from time to time thereon and the benefit of any covenants for title given or entered into by any predecessor in title of the Mortgagor and any money paid or payable in respect of such covenants;
Thirdly- All other (if any) freehold and leasehold property and other security assets of the Mortgagor both present and future and any proceeds of sale of that freehold and leasehold property and security assets including all equipment Fixed plant, machinery and fixtures (including trade fixtures) from time to time thereon and the benefit of any covenants for title given or entered into by any predecessor in title of the Mortgagor and any money paid or payable in respect of such covenants;
Fourthly- (i) the present and future interests of the Mortgagor in all its stocks, shares, debentures, bonds or other securities and uncalled capital;
(ii) all book and other debts and other monies due, owing, payable or incurred to the Mortgagor and the benefit of all rights, securities and guarantee of any nature whatsoever now or at anytime enjoyed or held by the Mortgagor in relation thereto; and
(iii) all monies standing to the credit of the Mortgagor and held with the Mortgagee and the debt represented thereby;
Fifthly- The goodwill, undertakings and all other properties and assets of the Mortgagor whatsoever and wheresoever both present and future.13
Where the licence granted to a public utility provider is revoked by the Public Utilities Commission, or where a licensee ceases operations or loses control of operations, or where the Minister considers that control over telecommunications should be acquired for a public purpose, the Minister may, with the approval of the Minister of Finance, by Order published in the Gazette, acquire for and on behalf of the Government, all such property as he may, from time to time, consider necessary to take possession of and to assume control over telecommunications, and every such order shall be prima facie evidence that the property to which it relates is required for a public purpose.16
AND WHEREAS, after a careful consideration of all the facts and circumstances, I consider that control over telecommunications should be acquired for a public purpose, namely, the stabilisation and improvement of the telecommunications industry and the provision of reliable telecommunications services to the public at affordable prices in a harmonious and non-contentious environment;17
A - SHARES IN BELIZE TELEMEDIA LIMITED
The following shares in Belize Telemedia Limited ("Telemedia") held by the persons shown in the statutory return for 2008 filed by Telemedia in the Belize Companies and Corporate Affairs Registry on or about the 5 January 2009, or held by any transferees of the said shares in the event of any transfers taking place since the said date of filing:
|Name of Shareholder||Address||No. of Shares acquired|
|1. BB (or BCB) Holdings Limited||P. O. Box 1764, Belize City||1,234,859|
|2. BTL International Inc.||P.O. Box 71, Tortola, BVI||895,552|
|3. BTL Investments Limited||BTL, St. Thomas Street Belize City||750,000|
|4. ECOM Limited||P.O. Box 1764, 212 North Front St., Belize City||15,178,488|
|5. Mercury Communications Limited||P.O. Box 1764, 212 North Front St., Belize City||4,768,230|
|6. New Horizons Inc.||212 North Front St. Belize City||20,581|
|7. Sunshine Holding Limited||P.O. Box 1258 212 North Front St., Belize City||11,092,944|
|8. Thiermon Limited||212 North Front St., Belize City||12,886,959|
|Total number of Shares acquired||46,845,513|
|B - SHARES IN BTL DIGICELL LIMITED|
|Name of Shareholder||Address||No. of Shares acquired|
|Rocky Reef Ventures Limited||212 North Front St. Belize City||1|
|C - SHARES IN BUSINESS ENTERPRISE SYSTEMS LIMITED|
|Name of Shareholder||Address||No. of Shares acquired|
|Rocky Reef Ventures Limited||212 North Front St. Belize City||1|
|D SHARES IN TELEMEDIA (FREE ZONE) LIMITED|
|Name of Shareholder||Address||No. of Shares acquired|
|Rocky Reef Ventures Limited||212 North Front St. Belize City||1|
|E SHARES IN SUNSHINE HOLDINGS LIMITED|
|Name of Shareholder||Address||No. of Shares acquired|
|Dean Boyce||212 North Front St. Belize City||1|
|Trustees of the Belize Telecommunications Ltd Employees Trust||212 North Front St. Belize City||1|
|F SHARES IN TELEMEDIA INVESTMENTS LIMITED|
|Name of Shareholder||Address||No. of Shares acquired|
|Rocky Reef Ventures Limited||212 North Front St. Belize City||1|
OTHER PROPERTY ACQUIRED
All proprietary and other interest held by The Belize Bank (Turks and Caicos) Limited in Belize Telemedia Limited and its subsidiaries under a Mortgage Debenture dated the 31st December, 2007 (including any amendments thereto) executed between Belize Telemedia Limited as the Mortgagor and The Belize Bank (Turks and Caicos) Limited as the Mortgagee, and registered in the Companies and Corporate Affairs Registry, Belmopan, on or about the 8th February 2008.18
AND WHEREAS, I consider that for the avoidance of doubts it is necessary to clarify the scope of the property acquired under the said Order [the 2009 Order] and to acquire certain other related property to give Poll effect to the public purpose aforesaid:22
2. The Schedule to the principal Order is hereby amended in Part II thereof captioned "Other Property Acquired", by the addition of the following property in the said Part, which is hereby acquired for the public purpose aforesaid:
"All proprietary and other rights and interests whatsoever held by The Belize Bank (Turks and Caicos) Limited (renamed British Caribbean Bank Limited), under a Facility Agreement dated the 6th July 2007 executed between The Belize Bank (Turks and Caicos) Limited and Belize Telemedia Limited et al;
All proprietary and other rights and interests whatsoever held by The Belize Bank (Turks and Caicos) Limited (renamed British Caribbean Bank Limited), The Belize Bank Limited and CAEDMAN Limited under a Syndicated Loan Agreement dated September 19, 2005 executed between The Belize Bank (Turks and Caicos) Limited, The Belize Bank Limited, CAEDMAN Limited and Sunshine Holdings Limited;
All proprietary and other rights and interests whatsoever held by The Belize Bank (Turks and Caicos) Limited (renamed British Caribbean Bank Limited), under a Security Agreement dated September 19, 2005 executed between The Belize Bank (Turks and Caicos) Limited and Sunshine Holdings Limited;
All proprietary and other rights and interests whatsoever held by The Belize Bank (Turks and Caicos) Limited (renamed British Caribbean Bank Limited), under a Facility Agreement dated the 19th, May 2006 executed between The Belize Bank (Turks and Caicos) Limited, Sunshine Holdings Limited and the Trustees of the Belize Telecommunications Ltd Employees Trust."23
The questions will of course be asked: why this move, and why now? In answering these questions I need to rehearse for the house and the nation a fair amount of background. Mr. Speaker, Belize Telecommunications Limited was incorporated in 1987 during the first UDP [United Democratic Party] administration. At that time the purpose was to Belizeanize telecommunications, replacing the control of the foreign entity Cable and Wireless with a national company. It was always the UDP government's intention that the new BTL would be majority owned by the citizens of Belize, not by the government. That first privatization worked wonderfully well and has remained one of the proudest accomplishments of the 84 - 89 UDP administration. We made sure then to insert particular safeguards into the company's Articles of Association to protect the national interest in BTL. And history has recorded what a fabulous success story that whole enterprise was. In the years immediately after 1987 BTL returned record profits to the many Belizeans that invested in the company. A 20% return on investment was the order of the day, and there were years when BTL paid a dividend yield of as much as 30%.
All remained well until February 1992 when the predatory designs of one man were facilitated by the greed and hunger for cash of the then PUP [People's United Party] administration. At that time the PUP began to sell shares in BTL to Michael Ashcroft at a rate and in a manner that was counterintuitive and counter nationalistic. Under the UDP Articles of Association there was a 25% cap on the shares that could be sold to any one person or entity. This was so that no single individual could dominate the company and in order to make the ownership as widely Belizean as possible. In violation of this Article, the PUP presided over an ever increasing transfer of shares to Ashcroft. This process was interrupted by the 93-98 UDP return to power, but restarted as soon as the PUP became the government again. It culminated in March 2004 with the infamous sting operation perpetrated by then Prime Minister Said Musa, which leveraged almost 94% of BTL shares into the control of Lord Ashcroft. Since then the PUP double dealing in which they screwed Glenn Godfrey for Ashcroft, then Ashcroft for Prosser, then Prosser for Ashcroft again, has produced litigation after litigation. Between 2005 and 2006 alone, there were at least 6 BTL cases in Belize, England, the US and Canada. In the end Ashcroft prevailed and cemented his total control.
But, he was not satisfied. Between 1998 and 2005 BTL's profits were 20 cents for every dollar invested. Nevertheless, and perhaps as payback for the PUP support, however fleeting, of Jeffrey Prosser, Ashcroft wanted more. And he got it from the PUP in 2006 after he had regained supreme control of BTL. This came by way of the infamous secret Accommodation Agreement, in which the PUP government guaranteed the Ashcroft group a minimum rate of return of 15%. According to that Agreement and under that guarantee, Ashcroft could in any year declare that BTL had not made that 15%; declare how much the shortfall was; and simply not pay his taxes until the so-call shortfall had been recovered. This is exactly what happened in 2007, so that thereafter Ashcroft's Telemedia ended up paying no business tax, no customs duties, no interest of any kind. In addition, the Accommodation Agreement stipulated that the PUC could not regulate Telemedia's rates, leaving the consumers at their mercy. But it still did not stop there. All other existing Telecoms licenses (excepting Speednet's - about which more later) had to be revoked. Voice Over Internet Protocol, which we all know gives consumers the cheapest option, is outlawed. Telemedia is able to refuse interconnection to any and everyone, including internet service providers. And the PUC cannot, for any cause and no matter what the complaint, in any way touch or alter Telemedia's license. Finally, the Accommodation Agreement binds each government department, agency, or associated body, to use only Telemedia's services at onerous pre-arranged rates until 2015, and thereafter for successive 3 year renewal periods.
Now, Mr. Speaker, this is where the new government of the United Democratic Party came in. As soon as we discovered this Accommodation Agreement and the fact that it had been secretly signed and secretly implemented by the PUP, we came to the Belizean public and denounced it. Lord Michael Ashcroft is an extremely powerful man. His net worth may well be equal to Belize's entire GDP. He is nobody to cross and the new government could well have chosen the path of least resistance; to cower in the face of the certain wrath of this potentate; to continue in the PUP style with business as usual; to betray, in other words, all that we had campaigned for, all that we had promised, and all that is basic and decent and straight forward if there is to be any ounce of trust left in public office. But betrayal of the people is not in my nature, and not, I am surpassingly proud to say, in the nature of the United Democratic Party.
And so we took counsel among ourselves and to a man the UDP cabinet voted, in the name of the Belizean people, to resist this treasonous Accommodation Agreement at all costs. Belizean Law and Belizean dignity would be upheld; Belizean pride and Belizean patriotism and Belizean patrimony vindicated.
And, of course, resisted we have. Now no one can doubt the justice of our stand. But, as we always knew, it has been costly. Michael Ashcroft had Telemedia invoke arbitration in London to enforce the Accommodation Agreement. And he obtained a judgment of 38.5 million dollars and a court - mandated requirement that government now begin to honor the Accommodation agreement.
Well, I have said that as God is my witness I will never pay that award. But it doesn't stop there. In April of 2009 Telemedia informed the government of further claims they will make to the London Court of International Arbitration, and that the size of a new award "could pale the current award of 38 million into insignificance".
Mr. Speaker, Members, fellow Belizeans: this is intolerable. I, and the United Democratic Party Government, in the name of the people will put up with it no longer. That an agreement so patently illegal, so patently immoral, so patently anti-Belize, should continue to torture us, to bleed us, to subject us to this death by a thousand cuts, cannot for one second more be countenanced. This is our House, this is our country. Here we are masters, here we are sovereign. And with the full weight of that sovereignty we must now put an end to this disrespect, to this chance taking, to this new age slavery. There will thus be no more Telemedia awards against us; no more Telemedia court battles; no more debilitating waste of government's energies and resources; and there will be no more suffering of this one man's campaign to subjugate an entire nation to his will. After long and sufficient consideration, therefore, and in the exercise of that national power that is ours by Constitution and inalienable right, this government will now acquire Telemedia.
Think on it Mr. Speaker. Telecommunications uses the airwaves as its medium. But these airwaves constitute a God-given natural resource of Belize, just like our sun, our sea, our rivers, our forests. These things together help to make up the patrimony of the Belizean people, and the exploitation of that patrimony must always be consistent with the interests of Belizeans. When those that come to partner with us demonstrate beyond all doubt that they will upend equitability, upend reasonableness, that they will, infamy upon infamy, beat us about our heads with our own inheritance, the very blood coursing through our Belizean veins obliges us to act.
Just as fundamental, though perhaps a little more prosaic, telecommunications -information and communications technology - is a critical part of the development apparatus of any modern society. Indeed, as has been officially recognized by our regional integration movement CARICOM, it is an indispensable tool in that restructuring of developing countries' economies that, in the face of the global crisis, must begin to take place now. Accordingly, unregulated monopoly control and abuse of the sector cannot be permitted. Yet, that is precisely what the Accommodation Agreement mandates.
This is especially so in view of the fact that even the very limited mobile phone so-called competitor to Telemedia is owned by Telemedia. That is right and I have the documents to prove it. 77.38% of Speednet is owned by three companies - Callerbar Limited, Riddermark Ventures Limited, and Heaver Holdings Limited. These three companies are headquartered at the Belize City Cork Street premises of Michael Ashcroft, and controlled by two of the now notorious Trusts owned by Michael Ashcroft.
And so Mr. Speaker let no one be in any doubt as to why we are doing what we are doing today. Let no one confuse or misunderstand our purpose. This is not ideology, this is not triumphalism. This is a country in particular circumstances reaching the end of its patience and doing a singular, necessary, righteous thing to protect its national interest. It is not part of any pattern, part of no new philosophy. It is plain and simple a special measure for a special case. We make no apologies for it, but we also do not seek to elevate it. As must be clear from the developments in even the global bastions of super capitalism and private property, this is what countries do to protect themselves. It is an article of faith and a cardinal rule of statecraft that a nation will act in any way necessary to preserve its national interest. That national interest, in these circumstances, now absolutely demands our present course of action.
So there you have it, Mr. Speaker, the government's brief from the heart. In the days to come, the dissection and the deconstruction, both at home and abroad, will of course take place. But no matter which way you look at it, ours is a straightforward case and a compelling case. We will move ahead not unaware of the difficulties that will be thrown up, but with a confidence that is both supreme and serene because we know we are right.
Before I conclude, just let me spend a little time telling you what will happen as we proceed. First of all, you will see that the Bill makes every provision for fair and proper compensation to be paid to the owners of the shares we will acquire. This is not, I repeat, some cowboy action but something done in the full plenitude of, and compliance with, our Constitution. As well, we are only acquiring the 94% or so of Telemedia that is controlled by the Ashcroft interests. The shareholding owned by Belizeans will be left intact. The actual acquisition will be done by way of an order made by the Minister of Telecommunications, who will in that same order appoint a new Board of Directors. As soon as practicable after, an extraordinary general meeting will be held and new Articles of Association adopted. The new Articles will essentially be the Articles of the successful BTL that was launched in 1988. In other words, the safeguards to protect Belizean shareholders will be re-established, including protection of the special share and the limitation on the amount of single ownership. As well, and perhaps most importantly, the articles will guarantee that dividends will be paid to shareholders at the rate of 40% of the yearly profits.25
[...] what government has done is to step into the shoes of the creditor not of the debtor. The government has taken away from the creditor the creditor's rights to go against the debtor, which is Telemedia. And government had to do that because that loan, and the rights that it believes Bank Turks and Caicos had, meant that in fact the assets of Telemedia were caught by the mortgage debenture and if government had not done what it did, if it had fairly acquired Telemedia but leaving the assets exposed to our enemies it would have rendered the entire taking nugatory. So government went on to complete the circle and to say, insofar as there is this debt from Telemedia to Belize Bank Turks and Caicos, government is assuming the debt from the point of view of the creditor [...] There is nothing that the government has to hide here. I will not allow what I insist is a splendid act of nationalism, is an act of determined national resolve, is part of a continuing fight to ensure that Michael Ashcroft will never break the will of this government or of the people of Belize, I will not allow all that to be pissed away, if you will excuse my language, as a consequence of misunderstandings that can so very easily be cleared up, and I will never do anything to flout any of the laws of this country.
If they're saying they will never stop. Well I am saying, as I indicated to you earlier today, they are not going to break my will. They are not going to break the will of the Belizean people. And I think we operate now from a position of strength because I will tell you, I am prepared to say to them "oh you think you're clever, you're going to try to make a distinction between a mortgage debenture and original facility letter. Well I'm going to go and acquire the first facility letter as well. I don't think I need to because I think the acquisition that we did do clearly talks about the whole ball of wax, but since you think you're clever, fine". Look man, this is a government that in this regard, as you say subject always to keeping the people informed right along, this is a government that has the support of the people on this issue. This is the people of Belize against the Ashcroft interests and I will never relent in the same way as he is indicating he will never relent.26
(a) On 21 October 2009, the Claimant began a constitutional challenge to the 2009 Act and 2009 Orders (the "First Constitutional Challenge"). On 30 July 2010, the Supreme Court of Belize dismissed the claim and ordered the Financial Secretary "to comply with section 65(1) of the Belize Telecommunications Act as amended."27 The Claimant appealed this decision on 25 August 2010.
(b) On 20 November 2009, the Claimant commenced two lawsuits against Telemedia (Claim No. 942) and Sunshine (Claim No. 941) in the Supreme Court of Belize to recover the funds advanced under the Telemedia Facility and the Sunshine Overdraft Facility, respectively. In the course of this litigation, Telemedia and Sunshine argued that the 2009 Amendment Order deprived the Claimant of its interests under the loan agreements. In February 2010, the Claimant discontinued these claims.
(c) On 3 June 2011, the Respondent and Telemedia commenced a lawsuit ("Claim 360") against British Caribbean Bank in the Supreme Court of Belize, seeking as follows:
(i) A Declaration that the Loan Facility Agreement and Mortgage Debenture entered into between Belize Telemedia Limited and the Defendant on 6 July 2007 and 31 December 2007 respectively are ultra vires the Memorandum of Association of Belize Telemedia Limited and contrary to the provisions of the Companies Act, Chapter 250 of the Laws of Belize, R.E 2000;
(ii) A Declaration that the Loan Facility Agreement of 6 July 2007 together with the Mortgage Debenture of 31 December 2007 are void;
(iii) A Declaration that the Government of Belize is not liable to compensate the Defendant in respect of the said Loan Facility and the Mortgage Debenture acquired by the Government of Belize on 4 December 2009 and 25 August 2009, respectively; and
(iv) A Declaration that the Loan Facility Agreement of 6 July 2007 together with the Mortgage Debenture of 31 December 2007 are not valid and binding as against Belize Telemedia Limited.28
The Claimant sought to stay these proceedings "pending the determination of the Second Constitutional Challenge"29 on the following grounds:
[...] the issue as the validity of the Loan Facility Agreement and the Mortgage Debenture and whether the Government is required to compensate the Defendant for the acquisition of its property should only be determined once the validity of the 2011 Act, the 2011 Order and the Eighth Amendment have been finally determined by the CCJ in CV6 of 2011 or in Claim 597 and any appeal therefrom.30
On 23 October 2012, with the Respondent's agreement, the Supreme Court of Belize ordered as follows:
[...] the claimants and the defendant having agreed that the matter be stayed
BY CONSENT the court ORDERS that the claim in this matter and all applications in relation to the claim are stayed pending further order of the court with liberty to all parties to apply to remove the stay.31
Issue (i) - is the Acquisition Act in conformity with section 17(1) of the Constitution?
 I would therefore conclude on this issue, in agreement with the appellants, that the Acquisition Act is in contravention of section 17(1) of the Constitution, in that it:
(i) does not prescribe the principles on which reasonable compensation is to be paid within a reasonable time;
(ii) does not secure to a person claiming an interest or right over the acquired property a right of access to the courts for the purpose establishing his interest or right; and
(iii) does not secure to a person who has been awarded compensation a right of access to the courts for the purpose of enforcing his right to compensation.
Issue (ii) - were the compulsory acquisitions duly carried out in accordance with the stated public purpose?
 For all of these reasons, I do not think that, on the evidence, the compulsory acquisitions were duly carried out for the stated public purpose, either on the bases advanced by the Minister in his 25 August Order, or on any of the other bases identified by the judge in his judgment.
Issue (iii) - was the Minister's response to the problems of the telecommunications industry proportionate in the circumstances?
 [...] Applying this principle [of proportionality], therefore, I would conclude that in this case the Minister's response to the problems of the telecommunications industry were not proportionate in the circumstances.
Issue (iv) - were the actions of GOB/the Minister arbitrary and/or discriminatory in the circumstances?
 So the question which remains is whether the appellants' contention that the judge erred in his conclusion that the compulsory acquisitions in this case were not arbitrary and were carried out for a legitimate purpose. In the light of my conclusion that the evidence in this matter has failed to justify the compulsory acquisitions as having been necessary to promote or further the stated public purpose and that the compulsory acquisitions were not a proportionate response to the requirements of the stated public purpose, coupled with the clear evidence that the compulsory acquisition had, as an explicit, dominant objective, the bringing to an end of "this one man's campaign to subjugate an entire nation to his will" ("a special measure for a special case"), I cannot but conclude that, in carrying out the compulsory acquisitions, GOB acted for an illegitimate purpose, and thus breached the appellants' constitutional right to protection from arbitrary deprivation of their property.
Issue (v) - did the appellants or either of them have a right to be heard by the Minister before the Acquisition Orders were made?
 I have therefore come to the view that in the instant case, in which the Minister's decision to compulsorily acquire their property plainly and prejudicially affected their protected constitutional rights, the appellants were entitled to be heard by the Minister before the Acquisition Orders were issued.
 For all of the reasons stated in this judgment, at, I fear (and for which I apologise), far too great length, I would therefore grant the relief sought by the appellants by making the following orders:
(a) Civil Appeal No. 31 of 2010 is allowed.
(b) Paragraphs (1) and (3) of the Order of Legall J dated 24 August 2010 in Claim No. 1018 of 2009 is set aside.
(c) Civil Appeal No. 30 of 2010 is allowed.
(d) Paragraphs (1) and (3) of the Order of Legall J dated 18 August 2009 in Claim No. 874 of 2009 is set aside.
(e) It is hereby declared that the Acquisition Act and Orders are inconsistent with the Constitution and are unlawful, null and void.
(f) The respondents are to pay the appellants' costs in this court and in the court below, to be taxed if not sooner agreed.
while the Government initially allowed the directors of Telemedia appointed prior to nationalisation to re-enter the premises, it subsequently implemented a physical takeover of Telemedia's headquarters and property and prevented the former board from continuing in possession of those premises.33
The contemporaneous press release issued by the Government describes these events as follows:
As a consequence of that decision Mr Dean Boyce, one of the successful appellants, went to Telemedia's headquarters on St Thomas street in Belize City and purported to take back the company. Government then got immediate legal advice as to the full import and consequence of the Court of Appeal decision. On the basis of that advice Government concluded that it was not open, without more, to Mr Boyce to assume control of the company. The Court of Appeal judgment is declaratory in nature, and by itself does not deprive Government of its de facto possession of the company. For that to happen the appellant Boyce would have to go back to court for an enforcement order telling Government to give up possession. Government thus instructed its appointee, the Executive Chairman and the Telemedia Board, to continue in command of the company unless presented with a court order specifically placing the appellant Boyce in control.34
AND WHEREAS; after a careful consideration of all the facts and other circumstances, I consider that control over telecommunications should be acquired for the following public purposes, namely, (a) to restore the control of the telecommunications industry to Belizeans; (b) to provide greater opportunities for investment to socially-oriented local institutions and the Belizean society at large; and (c) to advance the process of economic independence of Belize with a view to bringing about social justice and equality for the benefit of all Belizeans;36
GOVERNMENT CONTROL OVER PUBLIC UTILITIES
143. For the purposes of this Part:-
"public utilities" means the provision of electricity services, telecommunication services and water services;
"public utility provider" means—
(a) Belize Electricity Limited, a company incorporated under the Companies Act, or its successors by whatever name called;
(b) Belize Telemedia Limited, a company incorporated under the Companies Act, or its successors by whatever name called; and
(c) Belize Water Services Limited, a company incorporated under the Companies Act, or its successors by whatever name called;
"Government" means the Government of Belize;
"Government shareholding" shall be deemed to include any shares held by the Social Security Board;
"majority ownership and contro l" means the holding of not less than fifty one per centum (51 %) of the issued share capital of a public utility provider together with a majority in the Board of Directors, and the absence of any veto power or other special rights given to a minority shareholder which would inhibit the Government from administering the affairs of the public utility provider freely and without restriction.
144. (1) From the commencement of the Belize Constitution (Eighth Amendment) Act, 2011, the Government shall have and maintain at all times majority ownership and control of a public utility provider; and any alienation of the Government shareholding or other rights, whether voluntary or involuntary, which may derogate from Government's majority ownership and control of a public utility provider shall be wholly void and of no effect notwithstanding anything contained in section 20 or any other provision of this Constitution or any other law or rule of practice:
Provided that in the event the Social Security Board ("the Board") intends to sell the whole or part of its shareholding which would result in the Government shareholding (as defined in section 143) falling below 51% of the issued stock capital of a public utility provider, the Board shall first offer for sale to the Government, and the Government shall purchase from the Board, so much of the shareholding as would be necessary to maintain the Government's majority ownership and control of a public utility provider; and every such sale to the Government shall be valid and effectual for all purposes.
(2) Any alienation or transfer of the Government shareholding contrary to subsection (1) above shall vest no rights in the transferee or any other person other than the return of the purchase price, if paid.
145. (1) For the removal of doubts, it is hereby declared that the acquisition of certain property by the Government under the terms of the—
(a) Electricity Act, as amended, and the Electricity (Assumption of Control Over Belize Electricity Limited) Order, 2011 (hereinafter referred to as "the Electricity Acquisition Order"); and
(b) Belize Telecommunications Act, as amended, and the Belize Telecommunications (Assumption of Control Over Belize Telemedia Limited) Order, 2011, (hereinafter referred to as "the Telemedia Acquisition Order"), was duly carried out for a public purpose in accordance with the laws authorising the acquisition of such property.
(2) The property acquired under the terms of the Electricity Acquisition Order and the Telemedia Acquisition Order referred to in subsection (1) above shall be deemed to vest absolutely and continuously in the Government free of all encumbrances with effect from the date of commencement specified in the said Orders.
(3) Nothing in the foregoing provisions of this section shall prejudice the right of any person claiming an interest in or right over the property acquired under the said Acquisition Orders to receive reasonable compensation within a reasonable time in accordance with the law authorising the acquisition of such property.37
As Honourable Members know, the Court of Appeal delivered its judgment in the Telemedia nationalization matter on Friday, June 24, 2011. To our chagrin, the Court declared unconstitutional the law we had passed on August 25, 2009 to assume control over telecommunications in the public interest. This was on the ground that it was inconsistent in certain respects with section 17 of the Constitution relating to protection of property. The Court also declared the Order made by the Minister of Public Utilities under the said Act to be unconstitutional for the same reasons.
Mr. Speaker, with due respect to the Court of Appeal we do not agree with its decision. We are therefore filing an appeal to the Caribbean Court of Justice.
Meantime, though, the former owners of Telemedia have gone on a campaign that has terrorized workers, upset the citizenry, and sought to cripple the operations of the company. This was on the basis that the judgment of the Court of Appeal entitled them to the immediate reassumption of control, notwithstanding clear legal authority to the contrary.
Government's position of resistance to this has now been vindicated by the legal system, even though it was vilified by the appellants and their fellow travelers.
But the confusion and chaos sowed in just a few days, made clear that Government could waste no time in settling this matter once and for all. This is not about personalities, it is about principles: principles of public welfare, principles of cultural advance, principles of national security; principles that make clear that in all the circumstances control of telecommunications, via the dominant provider, must be in the hands of Government. We have therefore come to the House today to fix the law, to clarify and expand certain provisions that the Court of Appeal said were inadequate.
I hasten to add, Mr. Speaker, that by proposing to amend the Act we passed in August of 2009 we are in no way giving up our right to challenge the findings of the Court of Appeal. We still believe that the Law was in substantial compliance with the Constitution, and will thus maintain our recourse to the CCJ.
As for the clauses of this new Bill, Mr. Speaker, the amendments we are making today are fully consonant with the requirements according to the Court of Appeal. Of particular note is the new section 71, which deals with the payment of compensation. The Bill both details the scheme for satisfying compensation awards, and reinforces the right to enforcement. Access to court for the purpose of establishing a claimant's interest in acquired property as well as his entitlement to compensation, have been amplified in the new section 63. Altogether, the amendments proposed appear to us to satisfy every concern expressed by the judgment.
Therefore, Mr. Speaker, as soon as the Bill is passed we intend to reacquire the same property that was taken in August 2009. This will reassure all Belize that the Government is in full control because we would have done everything legally necessary to retain ownership of Belize Telemedia Limited.
I want to point out here, Mr. Speaker, that the Court of Appeal completely accepted the position that the state has every right to acquire private property in the public interest, for a public purpose. There was never any issue joined over this, and how could there be? After all, such a proposition is self-evident. It is a right of democratic nation states that has been both recognized and practiced since antiquity. And it is enshrined in the Belize Constitution. For the Constitution doesn't protect against deprivation of private property. It protects against arbitrary deprivation of private property: deprivation that is not done properly for a public purpose; or that is done under a law or in a manner that fails to assure proper access to the courts or proper provisions for the payment of reasonable compensation within a reasonable time.
I lay stress on what I've already said should be self-evident, only because of the position taken by some private sector entities and especially the Belize Chamber of Commerce. They act as though Government's acquisitions are in and of themselves aberrant, that this is deviant behavior. Nothing could be farther from the truth; and that kind of declaration reveals the Chamber Executive to be wearing the worst sort of ideological blinders. The slightest degree of reflection, or the sketchiest amount of research, would have shown them that public acquisition of private property is today a commonplace tool of statecraft and government practice.
Of course, the pre-requisite is that this type of acquisition be carried out in strict compliance with the Constitutional markers. And that is where, according to the Court of Appeal, we went wrong. Our objective of nationalizing BTL in the public interest was fine. But the procedural steps by which we carried this out were flawed.
That distinction is critical for today's exercise. The decision to nationalize was both legitimate and imperative when we first took it. And nothing has changed in that regard. If anything, last week's threats to workers and the efforts to injure the economy and disrupt the provision of an essential service, show that the circumstances demanding nationalization have become even more exigent. So it is entirely right and proper that we correct the mis-steps and do over what the national interest required on August 25, 2009, and still requires now.
This Bill that I am introducing therefore fixes the defects in the original law and does so with retrospective effect. But there will then be the Order that the Minister will have to make under the law. The first time around, as the Court of Appeal acknowledged, there was nothing wrong with the public purposes that the Minister set out as the bases for his acquisition Order. But the Court was not satisfied that the evidence the Minister adduced as justification for triggering those public purposes, was sufficiently compelling. Even if the Court was right, there was always an overwhelming number of reasons in existence that could prove the public purposes. It was just that, according to the Judges, the Minister did not select the right ones. I am certain that, in making his new Order, the public purpose choices of the Minister now will be rooted in circumstances and references of a nature that will still the doubts of even the most censorious of courts.
So, Mr. Speaker, we have reloaded and are ready to go. And what we are doing is the essence of compliance with the rule of law. We don't agree with the Court of Appeal but we are bound by it. We therefore act now in accordance with those Court of Appeal dictates.
This is, of course, in the proper, irresistible tradition of our democracy. But there are those that say that this very fixing of matters in order to implement the Court of Appeal decision is a negation of the rule of law. What we are really to do, by their reasoning, is simply to give back BTL to the former majority owners and be done with it.
These are the same people that also charged us with violation of the rule of law when, after the position became clear as a bell, we refused - in the absence of the required enforcement court order - to allow Dean Boyce to last week take control of Telemedia. And these are the same people that have neglected now to apologize or even acknowledge they were wrong. This is so even though the Registrar of the Court of Appeal has confirmed in writing to Boyce's attorney that a consequential relief order subsequent to the decision of June 24, should, as we said all along, have been sought in new proceedings before the Supreme Court.
But these people are a combination of the misguided and the malicious. There is no hope for the very plentiful political opportunists among them. But I would urge the others, the ones that have merely been carried away by what they mistakenly believe to be correct neoliberal orthodoxy, to recant. I repeat that even the most cursory survey of global practice and law shows their position to be ill-informed. To hold on to it now is to run the risk of being accused of anti-nationalism, and no true blooded Belizean can want that. And so I make clear again that governments are expected to correct a state of affairs found to be wrong by a court decision. And the Belize Constitution allows laws to be passed with retroactive effect. This is therefore what we are doing today and it is meet and right so to do.
When this Bill is passed and the consequential acquisition Order made, neither the sky nor the investment climate will fall. But this Administration would have complied with the overarching requirement of its mandate: to protect and promote at all times and in all circumstances and no matter what the cost, the national interests of Belize. The national interests of Belize: words simple and straightforward, but importing the highest possible duty, the most solemn commitment, the most ineffable trust.38
(a) On 2 September 2011, the Respondent and Telemedia amended Claim 360 against the Claimant (see above at paragraph 97(c)) to refer to the 2011 Act and 2011 Order.
(b) On 24 September 2011, the Claimant began a challenge to the constitutionality of the 2011 Act and 2011 Order in the Supreme Court of Belize (the "Second Constitutional Challenge"). On 16 November 2011, after the passage of the Eighth Amendment, the Claimant amended this claim to include a challenge to the constitutionality of the Eighth Amendment. On 11 June 2012, the Supreme Court of Belize granted the following orders:
1. A declaration is granted that sections 2(a) and (b) of the Belize Telecommunications Amendment Act 2011, (the 2011 Act) are unlawful null and void.
2. A declaration is granted that sections 2 (c) (d) (e), 3, 4, 5, and 6 of the 2011 Act are valid.
3. A declaration is granted that the Belize Telecommunications (Assumption of Control Over Belize Telemedia Limited) Order 2011, No. 70 of 2011, (the 2011 Order) is unlawful, null and void.
4. A declaration is granted that sections 2 (2), 69(9), 145(1) and (2) of the Constitution as inserted by the Belize Constitution (Eighth Amendment) Act 2011 are contrary to the separation of powers and the basic structure doctrine of the Constitution and are unlawful, null and void. Section 145(3) is declared meaningless.
5. A declaration is granted that section 143 of the Constitution as inserted by the Eighth Amendment is valid.
6. A declaration is granted that the following portion of section 144(1) of the Constitution is valid, namely "From the commencement of the Belize Constitution (Eighth Amendment) Act 2011, the government shall have and maintain majority ownership and control of a public utility provider."
7. A declaration is granted that the remaining portions of section 144(1) of the Constitution, beginning from the words "and any alienation" to the words "rule of practice" (both inclusive) are null and void and severed from the subsection. Section 141 (2) is therefore declared useless or meaningless.
8. The claims by the claimants in both claims for declarations and orders to the effect that the government shall not have and maintain majority ownership and control of BTL and for consequential reliefs are dismissed.
9. The claims for damages and injunctions are dismissed.
10. A declaration is granted that from the commencement of the Belize Constitution (Eighth Amendment) Act 2011 the Government shall have and maintain majority ownership and control of Belize Telemedia Limited.
11. The claimants in both claims and the defendants in both claims, along with such other persons as the claimants and the defendants may think fit, shall meet and enter into discussions, commencing from 1st August, 2012, with respect to any matter relevant to the case, including the payment of reasonable compensation to the claimants within a reasonable time for the properties of the claimants in the ownership and control of the Government.
12. All parties to bear their own costs.40
Both the Claimant and the Respondent appealed to the Court of Appeal in relation to portions of the judgment of 11 June 2012.
For reasons which I shall hereinafter identify, I have arrived at the following determinations:
(i) in Civil Appeal No 18 of 2012, I would allow the appeals of the Attorney General and the Minister of Public Utilities (‘the Minister'), but only with the qualification that the compulsory acquisition is valid and took effect as from 4 July 2011, rather than as from 25 August 2009 (‘the qualification'), and I would reject the contentions of the British Caribbean Bank Limited (‘British Caribbean'), under its respondent's notice, for variation of the decision of the court below;
(ii) in Civil Appeal No 19 of 2012, I would allow the appeals of the Attorney General and the Minister, but only with the qualification, and I would reject the contentions of Dean Boyce (‘Mr Boyce') and the Trustees of the BTL Employees Trust (‘the Trustees'), under their respondents' notice, for variation of the decision of the court below;
In arriving at my determinations stated at (i) and (ii) above, I have concluded that, inter alia:
(i) both the Belize Telecommunications (Amendment) Act 2011, being Act No 8 of 2011 (‘Act No 8 of 2011'), and the Belize Telecommunications Act (Assumption of Control over Belize Telemedia Limited) Order 2011(‘the 2011 BTL acquisition Order'), being Statutory Instrument No 70 of 2011, are valid and constitutional and took effect as from 4 July 2011, rather than as from 25 August 2009;
(ii) in particular, section 2(a) and (b) of Act No 8 of 2011 was operative and effectual and, accordingly, prospectively amended the provisions of section 63(1) of the Belize Telecommunications Act, Chapter 229 of the Laws of Belize (‘the principal Act'), which provisions, together with the remainder of Part XII of the principal Act, it also re-enacted;
(iii) the so-called basic structure doctrine is not a part of the law of Belize and does not apply to the Belize Constitution (‘the Constitution');
(iv) the power of the National Assembly to alter the Constitution is limited only by the provisions of such constitution, which, as relevant, are contained in its section 69;
(v) The Belize Constitution (Eighth Amendment) Act 2011, being Act No 11 of 2011, (‘the Eighth Amendment') is valid and constitutional and, while commencing and taking effect as from 25 October 2011, it retrospectively confirmed the validity of Act No 8 of 2011 and the 2011 BTL acquisition Order as from 4 July 2011;
(vi) in particular, the Eighth Amendment effectually inserted into the Constitution its new sections 2(2), 69(9) and 145(1) and (2), which are, accordingly, all lawful and valid;
(vii) it was only up to 4 July 2011 that the relevant property of British Caribbean, Mr Boyce and the Trustees remained the subject of an unlawful, null and void compulsory acquisition purportedly effected under (a) the principal Act, as purportedly amended by the Telecommunications (Amendment) Act 2009, and (b) the two Belize Telecommunications (Assumption of Control over Belize Telemedia Limited) Orders 2009, being Statutory Instruments Nos 104 and 130 of 2009, which Act and Orders were all declared unlawful, null and void by this Court in Civil Appeals Nos 30 and 31 of 2010;
(viii) Mr Boyce and the Trustees are not entitled to the return of their former shares in Belize Telemedia Limited (‘Telemedia') and their relevant loan interests nor to the return of the business undertaking of Telemedia but are entitled to compensation for the compulsory acquisition effected by the 2011 BTL acquisition Order;
(ix) compensation for the lawful compulsory acquisition of the relevant respective properties of British Caribbean, Mr Boyce and the Trustees should, respectively, be in an amount equal to the value of the relevant property of British Caribbean on 4 July 2011, in an amount equal to the value of the relevant property of Mr Boyce on 4 July 2011 and in an amount equal to the value of the relevant property of the Trustees on 4 July 2011;
(x) the parts numbered 1, 3, 4 and 7 of the Order made by Legall J on 11 June 2012 and signed by the Deputy Registrar of the Court below on 22 June 2012 should be set aside.42
In the premises, I would have made the following declarations:
i) The compulsory acquisition of the property of the British Caribbean Bank Limited, Dean Boyce and the Trustees of the BTL Employees Trusts identified in the Belize Telecommunications (Assumption of Control Over Belize Telemedia Limited) Order 2011 is unconstitutional and void;
ii) The Belize Communications (Assumption of Control Over Belize Telemedia Limited) Order 2011 is unconstitutional, ultra vires and void;
iii) The compulsory acquisition of the property of Fortis Energy Investment (Belize) Inc. identified in the Electricity (Assumption of Control Over Belize Electricity Limited) Order 2011 is unconstitutional and void.
iv) The Electricity (Amendment) Act 2011 and the Electricity (Assumption of Control Over Belize Electricity Limited) Order 2011 are unconstitutional and void;
v) Section 145 of the Belize Constitution (Eight Amendment) Act 2011 is unconstitutional and void.
Even though I have held that section 145 has not had the effect of validating the unlawful acquisition of the complainant's properties, given my finding that it is in any event in violation of section 17(1) of the Constitution, I thought it appropriate to order accordingly.43
the Defendant acting by itself or by its officers, employees or agents or in any other way, is restrained from commencing, pursuing, progressing or taking any steps before the Courts of Belize or elsewhere to enjoin or restrain the Claimant and/or the Tribunal from commencing or taking any steps in an anticipated arbitration against the Defendant under the "Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments".44
(1) An injunction is granted to the claimant restraining the defendant, whether by itself or by its officers, servants, or agents, subsidiaries, assignees or other persons or bodies under its control, from taking any or any further steps in the continuation or prosecution of the arbitration proceedings, commenced by the defendant by notice of arbitration dated 5th May, 2010 under the Arbitration Rules of the United Nations Commission on International Trade law 1977 and pursuant to the treaty or agreement made on 30th April, 1982 between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize and extended to the Turks and Caicos Islands, until the hearing and determination of the local claims for compensation made on 15th October, 2009 by the defendant, and until any subsequent proceedings in the local courts in relation to the said local claims are heard and determined.
(2) After the completion of hearing and determination of the local claims, and any subsequent proceedings, mentioned at (1) above for compensation, the defendant may, if it thinks fit, continue or commence arbitration proceedings under the above mentioned treaty or agreement for such compensation or other remedies as it thinks fit.
(3) Each party to bear its own costs.45
23. The courts of Belize do have and retain the jurisdiction to restrain international or foreign arbitral proceedings which are oppressive, vexatious, inequitable, or would constitute an abuse of the legal process. [...] In this sense there is no unqualified or indefeasible right to arbitrate. Equally, however, there is no requirement to exhaust local remedies before exercising the right to arbitration. Under the doctrine of kompetenz-kompetenz, the arbitrators are competent to determine their jurisdiction although the effective exercise of that jurisdiction remains subject to the inherent competence of the court to decide, in relation to an injunction to restrain international arbitration, whether a particular dispute falls within the scope of the arbitration agreement. [...] An expropriation that is perfectly lawful under the national law could nonetheless trigger a successful investment claim under the investment treaty. Any condition to strive for an amicable settlement before initiation of arbitration cannot include an obligation to litigate the constitutionality of the expropriation. There is therefore no requirement that domestic remedies be exhausted before arbitration can be engaged. Whether the arbitrators choose to stay the arbitral proceedings properly brought before them whilst related domestic proceedings are in train is entirely a matter for them under the doctrine kompetenzkompetenz and the circumstance that arbitrators may do so cannot form an appropriate basis for the domestic court to restrain the arbitration.46
45. In the case before us there are many advantages to BCB to pursue the arbitral proceedings because the relief it seeks for breach of the BIT is qualitatively different from the relief it could obtain from the domestic courts. The fact that it may be inconvenient or expensive for GOB to litigate before the arbitral tribunal is not an issue that could justify a finding of vexation or oppression.47
(1) a declaration that the Government has violated Articles 2, 3 and 5 of the Treaty, as well as its obligations under general international law;
(2) an order that the Government make full reparation to BCB for the injury or loss to its investment arising out of the Government's violation of the Treaty, and applicable rules of international law, such full reparation being US$45,170,733.86 as at 12 July 2013, and include interest thereon from the date of the award;
(3) an order that the Government pay the costs of these arbitration proceedings including the costs of the Tribunal, as well as the legal and other expenses incurred by BCB including but not limited to the fees of their legal counsel as well as BCB's own employees on a full indemnity basis, plus interest thereon at a reasonable commercial rate to be determined by the Tribunal; and
(4) any alternative or other relief the Tribunal may deem appropriate in the circumstances.48
on the full and effective payment of the prescribed compensation, the Claimant shall take all necessary steps to assign its rights in the loans to the Government or its nominee.49
that BCB's Amended Statement of Claim be denied in its entirety and either (a) that these arbitration proceedings be severed and dismissed or stayed based on the aforementioned preliminary objections, or (b) that a final award be rendered against BCB and in favor of GOB on all claims herein, denying any relief whatsoever to BCB under the Amended Statement of Claim, and awarding to GOB its actual attorneys' fees and all costs incurred in the defense of these arbitration proceedings.50
Article 31. GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.
The very purpose of the arbitration contract created or generated by the arbitration clause in the investment treaty was to provide for the protection of the investments of foreign investors, among other things, by providing them with a right to pursue disputes about their investments through international and neutral arbitration as an alternative to submitting themselves to the national courts. The standards by which expropriations of investment are to be judged are the standards set out in the investment protection agreement and international law principles and not necessarily those set out in the domestic system of the host State. An expropriation that is perfectly lawful under the national law could nonetheless trigger a successful investment claim under the investment treaty.54
TIL did not borrow funds from Telemedia to purchase shares that it would keep. In fact, there was no real transaction in which TIL was involved.... The effect of this transaction is a net loss in the capital of Telemedia (the debt from the Telemedia Facility with none of the assets purchased with the debt) whereas the effect of the Durack transaction would likely be a net gain—assuming the company was charging the director interest on the loan it disbursed to the director. The present situation is precisely the situation that Trevor and the Companies Act, Section 48, are seeking to prevent.68
allowing BCB to bypass these legal requirements on the baseless ground that the transaction was conducted by Telemedia's wholly-owned subsidiary rather than Telemedia itself would defeat the purpose of these laws enacted with the goal of "preventing a company from dealing in its own shares and thereby artificially influencing the share price [and] also... preventing an unauthorized reduction of capital."71
the BCB group's breaches of fiduciary duty, conflicts of interest, and failure to heed contractual formalities resulted in an abuse and pillaging of Telemedia. BCB should not get the benefit of its scheme to abuse Telemedia's corporate form and deprive the company of its share capital to the injury of creditors.80
In order for an international tribunal to apply the principles of unjust enrichment, there must have been an enrichment of one party to the detriment of the other, and both must arise as a consequence of the same act or event. There must be no justification for the enrichment, and no contractual or other remedy available.84
it was "far from obvious to a lawyer", let alone a party in the position of the Claimant, that the proposed use of the loan would amount to a breach of the statutory provision in question. The Telemedia Facility was a loan that was funding a transaction that on its face was perfectly legitimate, was of a kind that the Government itself clearly countenanced and which was not expressly prevented by [the] Belize Companies Act.114
[t]he very fact that the Telemedia Facility itself shows that when the loan was entered into it was contemplated that the Claimant would be given security over the TIL shares, as well as security over other assets of Telemedia, evidences that it was not considered at the time that the shares would be distributed.116
If the Government genuinely believed that the Claimant's loans to Sunshine had no apparent purpose or were unlawful, it would have taken the same position in relation to the Government and SSB loans. However, not only did the Government not condemn these other loans, it formally acknowledged and relied on the validity of them to deny compensation to the BTL Employees Trust.150
Subject to the provisions of this Agreement, the Loan shall be repaid in full by 20 equal installments on each of the Repayment Dates occurring during the period commencing on the fifth anniversary of the date of the Advance and expiring on the Termination Date.151
The Chairman explained that the loan was for $10 Million over a 15 year period and carries an interest rate of 8.5% per annum. All interest would be capitalized up to July 2010. Interest payments would commence until October 2010. The principal would be repaid on July 31st 2020.152
i. Why was a 5 year moratorium in-built in the repayment schedule?
The Prime Minister responded by saying that the business model takes into account the worst case scenario which could take up to 5 years for dividends to be paid. If dividends were paid during the 5 year moratorium period, it would be in the best interest of the Employees to pay their loan earlier.153
it is clear that the CCJ decided that it is this Tribunal that should decide whether these arbitration proceedings should be stayed pending the final adjudication of the Belizean judicial proceedings. The CCJ did not hold that these proceedings should not be stayed. It simply held that that is a decision for this Tribunal and not for the Belizean court.156
a judicial finding that the expropriation will stand, now that it has been challenged judicially by BCB is a "factual prerequisite" to the adjudication by this Tribunal of BCB's claims. Without the determination of that fact that the expropriation stands - it is impossible for this Tribunal to adjudicate BCB's claims.162
should the Tribunal find for the Claimant, it may also wish to record the following order in its award: "on the full and effective payment of the prescribed compensation, the Claimant shall take all necessary steps to assign its rights in the loans to the Government or its nominee".
In this way, should the Claimant's rights be reinstated as a result of any on-going litigation in Belize, the Government would be entitled to seek recovery of the loans from Telemedia and Sunshine.186
"investment" means every kind of asset and in particular, though not exclusively, includes:
(i) movable and immovable property and any other property rights such as mortgages, liens or pledges;
(ii) shares, stock and debentures of companies or interests in the property of such companies;
(iii) claims to money or to any performance under contract having a financial value;
(iv) intellectual property rights and goodwill;
(v) business concessions conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources.
the ultimate beneficiaries of the Telemedia Facility were not the people of Belize or Belize's telecommunications services and infrastructure, but rather the shareholders of Belize Telemedia, the majority of which were members of the Ashcroft group and included BCB, who received the shares that Belize Telemedia purchased using the Telemedia Facility, in the form of a cash dividend in specie.207
there is no doubt that funds were made available for use by Telemedia in Belize for the purposes set out on the face of the Telemedia Facility, including for working capital. It is undisputed that Telemedia chose to use some of those funds to make a loan to its subsidiary TIL. The ultimate benefit of that investment was clearly in Belize because Telemedia had the benefit of those funds. Funds were deposited in Telemedia's current account before being transferred to RBTT. Furthermore, shares were acquired by TIL, a Belize-registered company.212
(1) Investments of nationals or companies of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for a public purpose related to the internal needs of that Party and against just and equitable compensation. Such compensation shall amount to the fair market value of the investment expropriated before the expropriation or impending expropriation became public knowledge, shall include interest at the rate prescribed by law until the date of payment, shall be made without undue delay, be effectively realisable and be freely transferable. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph.
(2) Where a Contracting Party expropriates the assets of a company which is incorporated or constituted under the law in force in any part of its own territory, and in which nationals or companies of the other Contracting Party own shares, it shall ensure that the provisions of paragraph (1) of this Article are applied to the extent necessary to guarantee the compensation provided for in that paragraph in respect of their investment to such nationals or companies of the other Contracting Party who are owners of those shares.
(1) the Government did not act "for a public purpose related to the internal needs" of the Government;
(2) the expropriation was not "against just and equitable compensation"; and
(3) BCB has been denied "prompt review by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph".221
In the Tribunal's opinion, a treaty requirement for "public interest" requires some genuine interest of the public. If mere reference to "public interest" can magically put such interest into existence and therefore satisfy this requirement, then this requirement would be rendered meaningless since the tribunal can imagine no situation where this requirement would not have been met.222
The 2009 Orders were not passed for the reasons stated on the face of the Orders, as concluded by the Court of Appeal. They were passed because the Government was determined not to honour the arbitral award obtained by Telemedia against it, and specifically the Claimant's property was taken because the Government did not want to make any payments to the Claimant whose ultimate majority owner... is Lord Ashcroft. As the Court of Appeal concluded, this is not a legitimate public purpose.226
The original illegitimate purpose continued to motivate the Government when it reacquired, with retrospective effect, Claimant's assets in 2011. The 2011 nationalisation was passed for the same reason. Nothing had changed since the 2009 nationalisation save for the Court of Appeal finding that the 2009 nationalisation was unlawful and the Government wanting to reverse the effect of that decision. Again that is not a valid public purpose. Further, as the Belize Supreme Court has found, the 2011 legislation which effected the 2011 nationalisation was defective rendering the expropriation unlawful.229
even if the nationalisation of Telemedia had been for a public purpose, it does not follow that the expropriation of the Claimant's rights was necessary in order to achieve this, or as the Government puts it "to give full effect" to the nationalisation. The Government could have simply paid the Telemedia Facility, or contested its validity in court proceedings. It does not follow that it was required to acquire the Telemedia Facility in order to avoid the Telemedia nationalisation being unravelled.231
GOB also has the right, and in fact the obligation, to seek a court adjudication of the legality of the Loan and Securities, before any payment is made to BCB, because there is a good faith basis to believe that the Loan and Securities violate Belizean law. Accordingly, GOB has done nothing to block "prompt review" of the compensation request. Rather, there has been no compensation decision because BCB is challenging the expropriation itself and GOB is acting in accordance with the trust deposited in it by the people of Belize.252
to protect the expropriation of Telemedia, it was necessary to expropriate the Telemedia and Sunshine loans and security agreements. Otherwise, BCB would have been able to declare a default and take financial control of all assets and some shares of Telemedia.254
All that the evidence on the winding-up point suggests to me is that the Bank, mindful of its own interests, as any commercial lender, particularly of a substantial sum, must surely be entitled to be, was taking all necessary steps to protect its position, within the context of the rights given to it by the security documentation entered into freely by both parties, and within the laws of the country. The Bank's chairman, Mr Johnson, made a similar point (in his third affidavit) when he observed (at para. 18) that the recovery of money lent was "a normal part of any bank's business activities", and further, (at para. 23) that a claimant "is entitled to seek recovery by all lawful means". Not only have I been unable to discern any sinister intent in the Bank's actions in this regard, but, even more pertinently, I am unable to see the basis of [the trial court's] conclusion (at para. 101) that "the possibility of the winding up of the company provides reason for the Acquisition Orders... [and the]... winding up possibility is directly connected to the Stated Public Purpose".255
There will thus be no more Telemedia awards against us; no more Telemedia court battles; no more debilitating waste of governments' energies and resources; and there will be no more suffering of this one man's campaign to subjugate an entire nation to his will.256
[...] if [the Government] had fairly acquired Telemedia but leaving the assets exposed to our enemies it would have rendered the entire taking nugatory.
This is the people of Belize against the Ashcroft interests and I will never relent in the same way as he is indicating he will never relent.257
namely, (a) to restore the control of the telecommunications industry to Belizeans; (b) to provide greater opportunities for investment to socially oriented local institutions and the Belizean society at large; and (c) to advance the process of economic independence of Belize with a view to bringing about social justice and equality for the benefit of all Belizeans;258
there is benefit or advantage to the public in the stated public purposes, namely, to restore the control of telecommunications industry to Belizeans, (nationalisation), providing investment opportunities to socially-oriented institutions and advancing economic independence of Belize. There is no private and personal advantage from the purposes. The purposes in S.I. 70 of 2011 are public purposes and are not vitiated by reason that the purposes may share the same aim as the 2009 public purposes.259
the loan interests had some controlling effect over the business of BTL, a provider of a public utility, the loan interests owned by BCB would be a derogation on the nationalisation to some extent if it was not also compulsorily acquired.260
Such compensation shall amount to the fair market value of the investment expropriated before the expropriation or impending expropriation became public knowledge, shall include interest at the rate prescribed by law until the date of payment, shall be made without undue delay, be effectively realisable and be freely transferable.
(a) Under the Sunshine Facility (including interest): US$3,454,748.59.
(b) Under the Sunshine Overdraft Facility (including interest): US$1,570,504.11.
(c) Under the Telemedia Facility (including interest): US$45,538,949.55.266
(a) First, the Claimant "improperly comingles the damages analysis under these distinct claims that are subject to different compensation jurisprudence, and BCB has totally failed to carry its burden of establishing what type of compensation is available for its different claims."273
(b) Second, the Respondent considers the Claimant's claims premature "because the issue whether the purported expropriation will stand has not been finally adjudicated in the Belizean court action."274 According to the Respondent, if the expropriation is not upheld by the courts of Belize, any claim for damages resulting from delayed payments would be against Telemedia and Sunshine—not against the Government.275
(c) Third, according to the Respondent, the Claimant "has not established, nor even claimed, that the Loan and Securities actually had a ‘fair market value' at the relevant time."276 Relying on Anchor Savings Bank, FSB v. United States277 and The Law Debenture Trust Corp, PLC v. Elektrim S.A.,278 the Respondent argues that expert evidence is required to establish fair market value.279 In particular, the Respondent notes, "[t]he ‘fair market value' of the Loans is not, as BCB claims, the face amount of the underlying notes plus interest, because those amounts do not account for the risks of default or non-payment."280 Indeed, in the Respondent's view, the Claimant has not even established that a market for the loans existed prior to the 2009 Act.281
(d) Fourth, in the Respondent's view, the fair market value of the Loan and Security Agreements was zero, insofar as they were "invalid and illegal under Belizean law."282
(e) Fifth, according to the Respondent, the Claimant is not entitled to interest. If the courts of Belize find the expropriation to have been void, the date from which interest would run will never have occurred.283 On the other hand, if the courts reject the Claimant's Second Constitutional Challenge, the delay in paying compensation will have been caused by the Claimant's decision to litigate.284
"even if the Tribunal were to reject the similar arguments that GOB has made as to jurisdiction or the merits - the Tribunal could nevertheless accept them as meritorious defences to compensation or damages."285
Such compensation shall amount to the fair market value of the investment expropriated before the expropriation or impending expropriation became public knowledge, shall include interest at the rate prescribed by law until the date of payment, shall be made without undue delay, be effectively realisable and be freely transferable.
The "fair market value" of the Loans is not, as BCB claims, the face amount of the underlying notes plus interest, because those amounts do not account for the risks of default or non-payment. BCB's possession of security interests cannot be assumed to nullify the risks of default or non-payment because the value of the security interests may not have been sufficient to cover the value of the underlying obligations.289
(a) "BCB would be consulted before the acquisition of its rights."303
(b) "Telemedia would be allowed to function as a private enterprise and not be brought under Government control."304
(c) "The Government will comply with the decisions of the Belizean courts and BCB will receive effective redress in domestic courts."305
(d) "BCB will be allowed to exercise its Treaty rights without any interference from or threats by the Government."306
The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.325
1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act by a State.
A State responsible for an internationally wrongful act is under an obligation to make full restitution, that is, to re-establish the situation that existed before the wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of proportion to the benefit deriving from restitution instead of compensation.
(a) Paragraph 9 of the Telemedia Facility provides that
All indebtedness and liability of the Borrower to the Bank shall become immediately due and payable, if any one or more of the following events of default occurs:
(f) any event constituting an event of default under any Security Document occurs.
Paragraph 9(9) of the Telemedia Mortgage, in turn, provides for an event of default "if the Mortgager changes its ownership structure or management without the consent of the Mortgagee."
(b) Clause 14 of Sunshine Facility provides:
14.1.2 the Borrower fails to observe or perform any of its other obligations under this Agreement (including any covenants or undertakings in clause 11) or the Security Documents or under any undertaking or arrangement entered into in connection herewith and, in the case of a failure capable of remedy, the same is not remedied within twenty-one days after the Borrower became aware of the failure, to the Agent's or the Majority Lenders' satisfaction;
then or at any time thereafter, the Agent may, and upon the request of the Majority Lenders shall, by notice to the Borrower, declare the Loan to be immediately due and payable whereupon it shall become so due and payable, together with accrued interest thereon and any other amounts then payable under this Agreement.
Clause 11 of the Sunshine Facility provides in turn:
11.1 From the date hereof and until all its liabilities and obligations under this Agreement and the Security Documents have been discharged the Borrower undertakes and covenants with the Lenders:
11.1.5 that it will not make any change nor procure any change to its corporate structure or ownership without the prior written approval of the Lenders;
(c) Clause 1 of the Sunshine Facility provides in part:
Notwithstanding the above Term, the Bank retains the absolute discretion at any and all times to demand the full repayment of the Overdraft Facility Amount, together with any interest accrued thereon.
Additionally, Clause 8 of the Overdraft Facility provides:
All indebtedness and liability of the Borrower to the Bank shall become immediately due and payable, if any one or more of the following events of default occurs:
(a) [...] (iii) the Borrower fails to comply with any provision of this Agreement, or of the Security Documents; or any other agreement to which the Borrower and the Bank are parties; or
Clause 7 provides in turn:
During the operation of this Agreement:
(e) the Borrower covenants that it will not make any change nor procure any change to its corporate structure or ownership, without the prior written approval of the Bank;
(a) In respect of the Telemedia Facility, as at 7 December 2009: US$22,896,420.78.
(b) In respect of the Sunshine Facility, as at 7 December 2009: US$1,327,831.39, representing the amount owing to British Caribbean Bank on that date.
The Tribunal notes that the Claimant has claimed the full amount outstanding under Sunshine Facility, which was provided by two different lenders, British Caribbean Bank and Caedman Limited. On the basis of the Claimant's own evidence, the Tribunal accepts that the amount of US$10,000,000 made available to Sunshine under the Facility was provided by the two lenders in equal shares of US$5,000,000.327 The Claimant's evidence also indicates that the amount outstanding on the loan was owed in equal shares to British Caribbean Bank and to Caedman Limited.328 The Claimant has never, however, established any entitlement to recover on behalf of Caedman Limited nor, upon the Tribunal's examination, does such a right appear on the face of the Sunshine Facility itself. Accordingly, the Tribunal will limit its Award to the portion of the Sunshine Facility owed to the Claimant.
The Tribunal further observes that the Claimant's evidence indicates that a repayment of US$262,080.19 was made on the Sunshine Facility in the period between 2 January and 31 March 2010, in other words, after the expropriation of the loan. This repayment has not been explained to the Tribunal, but the Tribunal understands that the Claimant has not claimed this amount and will adjust the amount of compensation accordingly in its calculation of interest.
(c) In respect of the Sunshine Overdraft Facility, as at 7 December 2009: US$936,933.76.
(a) In respect of the Telemedia Facility, the loan agreement provides in paragraph 1(d) that
Interest will be charged monthly in arrears on amounts outstanding on the Term Loan Amount at the rate of twelve per centum (12%) per annum or such other rate as may be notified to the Borrower by the Bank from time to time in writing commencing on the Draw Down Date.
The loan agreement further provides in paragraph 10 for default interest in the following terms:
(a) If the Borrower fails to pay any amount payable by it under this Agreement on the due date, then the period beginning on such due date and ending on the date upon which the obligations of the Borrower to pay such amount (the balance of which for the time being unpaid being referred to in this Paragraph 10 as the "Unpaid Sum") is discharged in full, shall be divided into successive periods, each of which (other than the first) shall start on the last day of the preceding such period and the duration of each of which shall be selected by the Bank.
(b) During each such period referred to in Paragraph 10(a), an Unpaid Sum shall, upon written notification to the Borrower from the Bank bear interest at the default rate of 4% above the interest rate provided for in paragraph 1(d) herein (as well as after and before judgment) ("Default Interest"). Such Default Interest shall be compounded at the end of each such period.
(c) Any Default Interest, which shall have accrued under Paragraph 10(b) in respect of an Unpaid Sum, shall be due and payable and shall be paid by the Borrower on the date on which the Unpaid Sum is actually paid.
The Claimant has sought the application of the higher penalty rate pursuant to the agreement. In the Tribunal's view, however, the approach it has taken in the application of the Chorzów Factory standard and the ILC Articles on State Responsibility to provide the Claimant with full reparation calls for the Tribunal to place the Claimant in the circumstances in which it would have found itself, but for the unlawful act. The Tribunal considers that this logic leads to the application of the regular rate of interest under the contract, rather than the penalty rate. Accordingly, the Tribunal calculates the interest due pursuant to the Telemedia Facility from 7 December 2009 through the date of this Award at 12 percent, compounded monthly, or US$18,876,675.26.
(b) In respect of the Sunshine Facility, the loan agreement defines the "interest rate" as "the rate of interest per annum determined by the Agent to be the aggregate of the Margin plus the U.S. Prime Rate applicable to the Loan." The Margin is defined as 4.75 percent and the U.S. Prime Rate is defined as:
the rate per annum determined by the Agent by reference to Bloomberg as the rate at which prime banks in the United States are offering deposits in U.S. Dollars in the period equal to the Interest Period at or about 11.00 a.m. on the first day of the period for which such rate is to be determined
Paragraph 5 of the loan agreement provides for the payment of interest as follows:
5.1 The period of the Loan's existence shall be divided into Interest Periods which, subject to the provisions contained in the definition thereof, shall each be for a period of three months.
5.2 The rate of interest payable on the Loan for each Interest Period shall be the Interest Rate.
5.3 Interest under this Agreement shall accrue from day to day, be calculated on the Lender Basis and paid by the Borrower to the Agent for the account of the Lenders in arrears on each Interest Payment Date.
5.40 The Agent shall certify to the Borrower and the Lenders each rate of interest as soon as it is determined under this Agreement and any such certificate of the Agent shall, in the absence of manifest error, be conclusive and binding upon the parties hereto.
5.5 All interest shall be payable in Dollars.
5.6 If the Borrower shall fail to pay any amount in accordance with this Agreement, the Borrower shall pay interest on that overdue amount from the date of default up to the date of actual payment (as well after as before judgment) at the rate per annum which is certified by the Agent to be 3 per cent above the Interest Rate.
The Tribunal notes that the U.S. Prime Rate during the applicable period was and remains 3.25 percent, yielding an interest rate of 8 percent, compounded quarterly. As with the Telemedia Facility, the Tribunal declines to apply the penalty rate of interest. Accordingly, the Tribunal calculates the interest due pursuant to the Sunshine Facility from 7 December 2009 through the date of this Award at 8 percent, compounded quarterly, or US$558,745.19.
The Tribunal recalls that an unexplained payment of US$262,080.19 was made on the Sunshine Facility after the date of the expropriation which the Tribunal now deducts from its calculation of interest. Following this payment, the remaining interest due on the Sunshine Facility is US$296,665.00.
(c) In respect of the Sunshine Overdraft Facility, the loan agreement provides in paragraph 1(d) that
Interest will be charged on the daily outstanding balance of the Overdraft Facility Amount at the US Prime Rate from time to time plus Four and Three Quarter percent, currently 12.5% per annum (the "Interest Rate"). Interest will be paid by the Borrower to the Bank and will be debited from the Borrower's current account with the Bank monthly in arrears, commencing from the date of the initial utilisation of the Overdraft Facility.
Paragraph 9 of the loan agreement provides for default interest which the Tribunal considers inapplicable for the reasons already stated.
Based on the U.S. Prime Rate of 3.25 percent, the above formula produces a regular interest rate of 8 percent, compounded monthly. Accordingly, the Tribunal calculates the interest due pursuant to the Sunshine Overdraft Facility from 7 December 2009 through the date of this Award at 8 percent, compounded monthly, or US$462,916.67.
BCB's discussion of the subject of compensation confuses the two different types of treaty claims that it seeks to invoke. In terms of its damages analysis, BCB fails to distinguish between its expropriation claim and the other claims based on various standards. BCB improperly comingles under these distinct claims that are subject to different compensation jurisprudence, and BCB has totally failed to carry its burden of establishing what type of compensation is available for its different claims of [e]xpropriation and alleged violation of the Fair and Equitable Treatment Standard, the Full Protection and Security Standard, and the Unreasonable and Discriminatory Measures Standard.330
The arbitral tribunal shall fix the costs of arbitration in its award. The term ‘costs' includes only:
(a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 39;
(b) The travel and other expenses incurred by the arbitrators;
(c) The costs of expert advice and of other assistance required by the arbitral tribunal;
(d) The travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) The costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings, and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable;
(f) Any fees and expenses of the appointing authority as well as the expenses of the Secretary-General of the Permanent Court of Arbitration at The Hague.
(1) Except as provided in paragraph 2, the costs of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.
(2) With respect to the costs of legal representation and assistance referred to in article 38, paragraph (e), the arbitral tribunal, taking into account the circumstances of the case, shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that apportionment is reasonable.
|Allen & Overy LLP Legal Fees:||£1,471,829.83|
|Courtenay Coye LLP Legal Fees:||£43,135.17|
|Witness Travel and Accommodation:||£18,950.14|
|Costs of the Anti-Suit Injunction:||£194,729.26|
(A) The Anti-Suit Injunction was obtained in support of this arbitration and therefore these costs qualify as "legal and other costs" incurred by the Claimant "in relation to the arbitration" (UNCITRAL Rules, Article 38(e)).
(B) As explained above at paragraph 13, the Claimant decided to obtain this relief from the English Courts, as opposed to the Tribunal, because at the time the application was made on 4 May 2010, the Tribunal had not been appointed.
(C) Whilst the Claimant has the liberty to apply to the English Courts for these costs, given that the Tribunal is considering the costs incurred in relation to the arbitration it would be more efficient and cost-effective to have the Claimant's costs of the Anti-Suit Injunction determined now.
(D) For the avoidance of doubt, the Claimant does not seek double recovery of its legal costs. If the Claimant is awarded the costs it is seeking by the Tribunal, and provided the Government complies with the award within a reasonable time period, the Claimant undertakes to not seek from the English Courts the costs of obtaining the Anti-Suit Injunction.335
neither Article 38 of the 1976 UNCITRAL Rules nor Article 40 of the 2010 and 2013 UNCITRAL Rules provide that a party may recover legal fees from an entirely different legal proceeding. Nor do any of the cases cited by BCB in its cost submission support recovering legal fees from an entirely different legal proceeding.340
(a) DISMISSES the Respondent's objection to the admissibility of the Claimant's claims based on the existence of legal actions pending before the courts of Belize;
(b) DISMISSES the Respondent's objections to the jurisdiction of the Tribunal based on the definition of investment or on the existence of an expropriation;
(c) HOLDS that the present dispute is admissible and within the Tribunal's jurisdiction;
(d) DECLARES that the Respondent has breached its obligations under Article 5 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments of 30 April 1982;
(e) DECLARES that the Claimant has not proven the compensation sought in respect to the breach of Article 5 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments of 30 April 1982;
(f) DECLARES that the Respondent has breached its obligations under Article 2 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments of 30 April 1982;
(g) DECLARES that the Claimant has proven the compensation sought in respect to the breach of Article 2 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of Investments of 30 April 1982;
(h) ORDERS the Respondent to pay to the Claimant, in respect of the Telemedia Facility, the amount of US$22,896,420.78, together with pre-Award interest in the amount of US$18,876,675.26 for a total payment of US$41,773,096.04.
(i) ORDERS the Respondent to pay to the Claimant, in respect of the Sunshine Facility, the amount of US$1,327,831.39, together with pre-Award interest in the amount of US$296,665.00 for a total payment of US$1,624,496.39.
(j) ORDERS the Respondent to pay to the Claimant, in respect of the Sunshine Overdraft Facility, the amount of US$936,933.76, together with pre-Award interest in the amount of US$462,916.67 for a total payment of US$1,399,850.43.
(k) ORDERS that, on the full and effective payment of the prescribed compensation set out in sub-paragraphs (h), (i), and (j), the Claimant shall take all necessary steps to assign its rights in the Telemedia Facility, Sunshine Facility, and Sunshine Overdraft Facility to the Government or its nominee.
(l) ORDERS the Respondent to pay to the Claimant the amount of €308,915.99 as reimbursement for the costs of the arbitration (other than legal representation and assistance);
(m) ORDERS the Respondent to pay to the Claimant the amount of £1,628,608.13 for the costs of its legal representation and assistance in the arbitration proceedings;
(n) ORDERS the Respondent to pay to the Claimant post-Award interest at the three month LIBOR rate, plus 2 percent, compounded annually on any outstanding amount starting from the date of this Award; and
(o) REJECTS all other claims.
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