Gov’t and Ashcroft Continue Argument Over Jurisdiction and Foreign Assets
The case involving the Government of Belize by Belize Bank Limited and Caribbean Investment Holding Limited, formerly Belize Caribbean Holdings Limited, came to a conclusion today in the courtroom of Chief Justice Kenneth Benjamin. The trial is in relation to the arbitration award granted to BCB Holdings for 27.4 million US dollars and Belize Bank Ltd Award for 35.2 million US dollars against the Government of Belize in the US Supreme Court. The Government is fighting not to pay those awards and both companies sought an enforcement order in the US which was granted. Simultaneously, Government through Senior Counsel Denys Barrow, filed for an injunction halting all enforcement actions against BCB Holdings and Belize Bank Limited. The anti-enforcement order was granted by Justice Michelle Arana and during the hearing, BCB Holdings and Belize Bank chose not to send a representative, because they believe that the Supreme Court of Belize was not the proper forum for the matter. However, Senior Counsel Eamon Courtenay, on behalf of both companies is challenging the injunction and asking the Chief Justice to discontinue the injunction because the government has not presented any proof that his clients have sought any enforcement actions to collect monies from the Government of Belize. Senior Counsel Barrow asserted that the Caribbean Court of Justice has already ruled on the matter, and so, the CCJ judgment binds Belize Bank and BCB Holdings. The two day trial ended today and both parties feel confident about their submissions.
“I think it was a well-balanced presentation I think we both made very fully the points upon which we rely ,we had two different approaches to the case. We said that the decision that the Caribbean Court of Justice constitutes a bar to their having proceeded in the US and the Belize court should stop them from going any further in the US proceedings. They say that the decision at the Caribbean Court of Justice is limited to enforcement in Belize and should not bar them from doing anything in the states.”
“Now it was a quite revealing moment as the case went on that both sides, you are saying you have no assets and he is saying that he doesn’t want it.”
“I knowthat is the beauty of it he didn’t say that he didn’t want it. I think it was an almost cute stance but seriously taken that if government of Belize say they don’t have any assets then they don’t need an injunction; of course our response is immediately then if you accept what we are saying then why are you pursuing this enforcement order in the United States, drop it and we will drop this case.”
“The Prime Minister has said that there are no government assets that can be attached the question is that is true then why is he seeking an injunction I think it’s very difficult to understand as to whether there are assets that can be attached in the United States that is for the US attorneys to answer I am not qualified to practice in the US I am not qualified to speak on the implementation or the applicability of the Foreign Sovereign Immunities Act so I would prefer not to speak on that. I think there is a serious issue here to be tried my clients have the benefit of an arbitration award, they have the benefit of a judgment and the honorable thing to do is to pay these judgments and to pay the award and that is what they are seeking.”
“Now the other side is accusing you of trying to re-litigate a matter that has been -resolutely settled by the CCJ.”
“Right and you would have heard me this morning say that Mr.Barrow conceded yesterday that the CCJ judgment did not have an impact on the US judgment. Now I know that that is fairly complex law but the point of the matter is what was before the CCJ was whether or not the award should be enforced in Belize and the CCJ took a decision on the basis of the law in Belize. What was before the courts in the United States was not whether the Belize law says that public policy should allow enforcement or now what it was was whether the US law allows enforcement. The US court concluded all the way up to the Supreme Court that it did not violate the public policy of the United States. What is interesting and ironic is that the government is talking about re-litigation. My clients did not seek re-litigation it is the government who took the CCJ judgment to the United States and asked the United States court not to give enforcement based on the CCJ judgment and it is the US court who considered the government’s argument on that an determined whether or not it would be bound by it so it wasn’t we who went to try to undermine or enforce the CCJ judgment it was the government who took it they were the ones who sought to litigate the CCJ judgment in the United States and the US courts said which all arbitration courts say that if one jurisdiction says yes or no that is not binding on another and that was what we were arguing about for the last two days.”
When the matter was taken to the arbitration court in the US, the Government of Belize did not defend its position. Barrow explained the rationale behind that decision.
“The position of the Government at that stage was that it would not be taking part in the arbitration because we challenged the right that they exercise to arbitrate so it was that challenge but belatedly we made the challenge when they brought enforcement proceedings and we succeeded so we in the Belize Court were able to succeed in establishing that the underlying agreement was void and illegal.”
“The CCJ spoke on that, the CCJ judgment spoke on that and criticized the government severely by saying if you had gone to the arbitration and put these arguments it is possible that the arbitrators would have agreed we will never know because the government didn’t attend and so our clients put forward its arguments. I should remind you however that because the government was not present the arbitrators required our clients to put as much evidence as possible as to what the government would have argued had they come. There were proceedings on going at the same time in Belize and so what my clients did was to take the government’s pleadings and arguments from the Belize proceedings and give it to the arbitral tribunal so they had the benefit of very similar arguments as if the government was there. You aware that the English high court says that it can be enforced in England so it has been settled in England the government didn’t appeal that so that was a win for my clients. My clients lost in Belize, my clients won in the US so if you are keeping count that is two to one in favor of my clients. It’s a matter of going from jurisdiction to jurisdiction until you get paid and as we pointed out there are many other cases where people can’t get paid in one jurisdiction and you go to another jurisdiction if there are assets. The long and short of it as far as I am concerned is that this is a matter of respecting the rule of law, respecting a judgment of a court and respecting whether or not you can enforce in the United States where the United States court has said that you cant.”
“They are entirely free to go to another jurisdiction they are free to choose which jurisdiction they will go to but there is of course a catch to it, if you come to a court, if you are coming to the court on the basis that the court will finally and conclusively determine the question having come to this court to finally and conclusively determine the question you cannot be allowed if you don’t like the decision of this court to go to another court. The other court may entertain you and the New York convention allows you to go to the other court but the question is this what will the Belize Court do with you since you belong to Belize ? Are you allowed to say to the Belize court “well you have said what you want but we are not taking you on, we are instead going to another court who we expect will have a different decision from you and we will just ignore your decision and go with the decision of the foreign court.”
The Chief Justice has reserved his judgment until April 12. In the meantime, the injunction still stands.