(a) PT Ventures owns 25% of the issued share capital;
(b) Vidatel owns 25% of the issued share capital;
(c) Geni SARL ("Geni") owns 25% of the issued share capital; and
(d) Mercury Serviços De Telecomunicaçôes SARL ("Mercury") owns the remaining 25%.
(a) Article 7.1 [CGSB1/6] which provides each shareholder with pre-emptive rights with respect to any new issue of shares in Unitel;
(b) Article 8.1 which governs the passing of resolutions at General Meetings of the shareholders;
(c) Article 9.1 [CGSB1/7] which provides that the Board of Directors of Unitel shall consist of five directors, of whom PT Ventures is entitled to nominate three including (subject to an approval process) the managing director;
(d) Article 9.6 [CGSB1/8] which sets out a number of transactions which Unitel may only enter into with the approval of four out of five of the directors. These restricted transactions include:
(i) Expenditure and incurrence of debt or other liabilities in excess of the budget or strategic or business plan (Article 9.6.2);
(ii) The disposal of assets exceeding US$1 million (Article 9.6.4);
(iii) Contractual arrangements between Unitel and its shareholders and/or companies affiliated with the shareholders, or contracts which are not entered into in the ordinary course of business or in accordance with the budget or strategic or business plan (Article 9.6.5); and
(iv) The appointment of advisors to Unitel (Article 9.6.9).
(e) Article 9.8 [CGSB1/10] which obliges Unitel to keep books of account and to provide the shareholders with quarterly unaudited management accounts to prepare accounts in respect of each accounting reference period (defined as being a period of 12 calendar months) and to procure the auditing of those accounts as soon as practicable and in any event no later than 4 months after the end of the relevant accounting reference period; and
(f) Article 9.9 [CGSB1/11] in which the shareholders undertake to procure that Unitel keeps each of them fully informed as to all its financial and business affairs.
(a) blocking PT Ventures from appointing its nominees to the Board of Directors;
(b) withholding or diverting dividends from PT Ventures;
(c) unlawfully diverting Unitel funds at the expense of Unitel and/or PT Ventures;
(d) preventing Unitel from providing information to which PT Ventures is entitled as a shareholder; and
(e) threatening to dilute PT Ventures' shareholding and attempting to amend the Shareholders' Agreement to the detriment of PT Ventures.
(a) The dividend distribution declared in 2010 is part paid to PT Ventures, with a balance of US$93.9 million unpaid;
(b) The dividend distribution declared in 2012 remains unpaid, with an amount of US$190 million due to PT Ventures; and
(c) A similar sum remains outstanding in respect of the distribution declared in November 2013.
(a) A Loan totalling c.$264m made to a company known as Unitel International Holdings BV ("Unitel Holdings") in 2012 (the "2012 Loan") (paragraphs 33 to 46 of Mr Balmain's affidavit).
(b) Transactions entered into in 2013 including:
(i) further loans to Unitel Holdings totalling c.$200m in 2013 (the "2013 Loans");
(ii) the sale of part of Unitel's infrastructure to its wholly owned subsidiary at a distressed price, followed by a lease back of the same assets at full value;
(iii) the assignment, also at a distressed price, of the 2012 Loan and 2013 Loans (together, the "Unitel Holdings Loans") to a BVI company known as Tokeyna Management Limited ("Tokeyna");
(iv) the conclusion of a service agreement between Unitel and Tokeyna under which fees of US$155,652,356 were allegedly incurred by Tokeyna.
(These transactions are set out in detail at paragraphs 47 to 53 of Mr Balmain's affidavit); and
(v) The use of dividends due to Unitel as a result of a 49.9% stake in Banco Fomento de Angola ("Banco Fomento") to repay a debt owed by Unitel to Banco BPI, SA, ("Banco BPI") and the improper treatment of those dividends in the books and records of Unitel (paragraphs 30 to 32 of Mr Balmain's affidavit);
(a) Unitel Holdings is not (as its name might suggest) affiliated with Unitel, but is wholly owned by Mrs dos Santos;
(b) The Unitel Holdings Loans were not approved by PT Ventures and PT Ventures' enquiries about them have been ignored;
(c) When put on the spot, Mrs dos Santos (i) sought to explain the 2012 Loan by referring to a company known as Unitel Internacional BV, which is a wholly owned subsidiary of Unitel, but not the recipient of the the Unitel Holdings Loans; and (ii) alleged (wrongly) that a PT Ventures representative had approved the Unitel Holdings Loans at an unspecified meeting;
(d) As a matter of Angolan law, the Unitel Holdings Loans required the approval of both the Unitel Board (but with the abstention of Mrs dos Santos as an interested director) and the Audit Committee of Unitel. Neither body in fact authorised the Unitel Holdings Loans;
(e) The Unitel Holdings Loans have no discernible corporate purpose;
(f) PT Ventures has sought to obtain information about the sale and lease back of the towering infrastructure but has not been successful.
(g) The assignment of the Unitel Holdings Loans to Tokeyna is questionable: no board or shareholder authorisation was given and it is unclear why the price was so low;
(h) The service agreement is also questionable, given the level of fees incurred in such a short time soon after the incorporation of Tokeyna and the possibility that those fees were simply a way of siphoning the price paid by Tokeyna for the Unitel Holdings Loans, back out to Tokeyna;
(i) The treatment of the Banco Fomento dividends appears to benefit Mrs dos Santos, who is both the board chair of Banco Fomento and who has an indirect interest in Banco BPI; and
(j) The treatment of Banco Fomento dividends does not benefit Unitel;
43. (1) Article 17J of the UNCITRAL Model Law is substituted by this section.
(2) On the application of a party, the Court may, in relation to any arbitral proceedings which have been or are to be commenced in or outside the Virgin Islands, grant an interim measure.
(3) The powers conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 33 in relation to the same dispute.
(4) The Court may decline to grant an interim measure under subsection
(2) on the ground that
(a) the interim measure being sought is currently the subject of arbitral proceedings; and
(b) the Court considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal.
(5) In relation to arbitral proceedings which have been or are to be commenced outside the Virgin Islands, the Court may grant an interim measure under subsection (2) only if
(a) the arbitral proceedings are capable of giving rise to an arbitral award, whether interim or final, that may be enforced in the Virgin Island under this Act or any other enactment; and
(b) the interim measure sought belongs to a type or description of interim measure that may be granted in the Virgin Islands by the Court in relation to arbitral proceedings.
(6) Subsection (5) applies even if
(a) the subject matter of the arbitral proceedings would not, apart from that subsection, give rise to a cause of action over which the Court would have jurisdiction; or
(b) the order sought is not ancillary or incidental to any arbitral proceedings in the Virgin Islands.
(7) In exercising the power conferred under subsection (2) in relation to arbitral proceedings outside the Virgin Islands, the Court shall have regard to the fact that the power is
(a) ancillary to the arbitral proceedings outside the Virgin Islands; and
(b) for the purposes of facilitating the process of a court or arbitral tribunal outside the Virgin Islands and has primary jurisdiction over the arbitral proceedings.
(8) The Court has the same power to make any incidental order or direction for the purposes of ensuring the effectiveness of an interim measure granted in relation to arbitral proceedings outside the Virgin Islands as if the interim measure were granted in relation to arbitral proceedings in the Virgin Islands.
(9) An interim measure referred to in subsection (2) means an interim measure referred to in article 17 (2) of the UNCITRAL Model Law, as provided in section 33 (1), as if the reference
(a) to arbitral tribunal in that article were a reference to the Court, and
(b) to arbitral proceedings in that article were a reference to court proceedings,
and is to be construed as including an injunction but not including an order under section 58.
(10) A decision, order or direction made or issued by the Court under this section is not subject to appeal.
(1) A good arguable case;
(2) That there is a real risk that the Defendant may dissipate its assets (wherever located) before judgment can be enforced; and
(3) That the Respondent will be adequately protected by the Applicant's cross-undertaking in damages. (Stuart Alexander Lockhart v Caribbean Developments (Antigua) Limited & Ors ANUHCV 2011/0721 ).
(a) First, the Request for Arbitration raises very serious allegations of fraud, dishonesty and breach of contract against Vidatel and Mrs dos Santos. That alleged behaviour demonstrates, in and of itself, that they may well continue that conduct by taking steps to frustrate the enforcement of any award that PT Ventures is ultimately able to obtain.
(b) Mrs dos Santos has sought to pass off Unitel Holdings as a Unitel subsidiary, when it is wholly owned by her; through Vidatel, she has permitted unauthorised loans from Unitel to Unitel Holdings of some US$490 million, and the assignment of the United Holdings Loans to Tokeyna for only US$150 million. PT Ventures is therefore concerned that Mrs dos Santos holds her assets through an elaborate international network of companies and that she does so to keep her ownership opaque and to protect her assets against third parties.
(c) Vidatel is itself a shell company, with no known operations or employees, and which seems to be merely a conduit for dividends from Unitel.
(d) The recent conduct of the Angolan Shareholders as detailed in paragraphs 54 to 82 of Mr Balmain's affidavit paints an alarming and disturbing picture.
(a) PT Ventures has seen a very limited number of documents which could be portrayed as suggesting that one or more of the transactions were the subject of some shareholder/board discussion in meetings which may have taken place on 16 December 2013 and 31 January 2014. At this stage, PT Ventures can say no more about these documents and meetings (if they did, in fact, take place) than (i) minutes were never made available to it; and therefore (ii) any resolution made in either meeting would not have been valid.
(b) As noted above, the Angolan Shareholders have on certain occasions (but not others) asserted that the rights of PT Ventures as a shareholder of Unitel have been "suspended" and (although PT Ventures says that there is no legal basis for such an assertion, and that it is being made as a pretext for the unlawful actions of the Angolan Shareholders) that the events upon which the assertion has been contrived did, in fact, occur. Were PT Ventures’ rights validly suspended, then it is conceivable that PT Ventures would not have standing to bring damages claims of the nature sought in the Arbitration Proceedings.
(c) Vidatel may argue that PT Ventures has unduly delayed in bringing this application, having been deprived of its proper dividends since 2010, and having been aware since late last year of the service agreement between Unitel and Tokeyna and the assignment of loans by Unitel Holdings to Tokeyna. Indeed, it may be also be argued that PT Ventures has intended to bring these Arbitration Proceedings since January 2015 when it referred to the possibility of commencing an arbitration claim pursuant to the Shareholders' Agreement. However, throughout the period 2010 to now, PT Ventures has been seeking to re-establish its shareholder rights through dialogue with the Angolan Shareholders. For obvious reasons PT Ventures is in a difficult position. It is heavily invested in an Angolan company controlled by the Angolan Shareholders. It has, therefore, done everything possible to resolve matters by negotiation. Those efforts do not detract, however, from the conduct of Vidatel, and the other shareholders. That conduct has recently extended, to PT Ventures' concern and disappointment, in purporting to engage in settlement discussions, but refusing to progress matters. PT Ventures is, therefore, compelled to take action to defend its rights. Against this background, while not accepting that it has delayed in bringing this application, PT Ventures does not believe any delay to be unreasonable or fatal to the application.
(d) In respect of PT Ventures’ right to appoint three members of the Unitel Board, which would give PT Ventures a de facto right of veto over related party transactions (under Article 418 of the Angolan Companies Act), Vidatel may argue that PT Ventures has acquiesced under Angolan law to any breach under Article 9.1 of the Shareholders’ Agreement having taken no steps in respect of that breach since it objected to it in June 2006. As a result, Vidatel may allege that the 2012 Loan was validly approved by four out of five Unitel Board members (i.e. not including PT Ventures’ representative in 2012). Nevertheless, PT Ventures says that at no stage has it waived its right under the Shareholders’ Agreement, nor has it ever agreed to Article 9.1 being amended in any way. Further, no prior approval for the loans was ever sought at either the Board of General Meetings, which would have had to be the case if the transaction was to be approved by either body. Finally, at Unitel Board level, the interested director, Mrs dos Santos, would have had to abstain from any vote in favour of the transaction, meaning that it would not have been capable of being approved by the requisite number of directors without the affirmative vote of PT Ventures’ representative in any event.
(e) PT Ventures has taken steps in Angola to challenge the provisions adopted in the 2014 and 2015 General Meetings.
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