At the Caribbean Court of Justice today, the Belize Bank Limited sought an order directing the Minister of Finance, in this case Prime Minister Dean Barrow, to pay the 2013 arbitral award of over 91 million Belize dollars. On the other hand, the Attorney General challenged the application while asking the CCJ to correct its judgment and seek an order to reduce the post-judgment interest. Senior Counsel Eamon Courtenay told the President and the Justices of the CCJ that the Belize Bank Limited has been having challenges in enforcing the court’s ruling.
Eamon Courtney, Attorney for Belize Bank: “But the duty rest on the government, on the Attorney General to come to this court we say in other courts, other cases, the trial courts and say ‘this is my financial position, I propose to pay in the following way’ and the court makes the decision having heard the party’s well okay over 1 year over 2 years.”
CCJ Judge: “That is the situation with any debtor because there are many debtors who say “I can’t pay” there is never a reason as far as I known to say okay then you don’t hav the obligation to pay.”
Eamon Courtney, Attorney for Belize Bank: “Your honor well that is what they are saying. Well to say that I am going to parliament, to say that I am going to give a free conscience vote, and to say by majority we are going to vote no and that it can run to the billions- parliament is sovereign and we will do what we wish, that’s where we are. Your honors can I underline to this court that my client wrote to the government and said “we are prepared to accept payment on terms, we are prepared to accept payment over time and at a different interest rate” inexplicably, unreasonably, irrationally it’s been rejected.”
CCJ Judge: “Mr.Courtney you are making some very harsh allegations are these admitted on the other side?”
I’m asking? Because you see that goes back to the original question we are discussing as to whether this is matter of court of original jurisdiction because it sounds to me from what you are saying that there are issues of fact which need to be ascertained because taken into account the discussion. If what you are saying is accurate then there elements of specific and perhaps personal unlawfulness which may be addressed by a trial court but certainly we are not the court to address that before it has gone through the due process.”
CCJ Judge: “The step that I haven’t seen crossed-you said you are having challenges enforcing it but if you haven’t made any effort to enforce it at the the court below how can you say you are experiencing challenges?”
Eamon Courtney, Attorney for Belize Bank: “Your honor you made a way of application for a mandamus?”
CCJ Judge: “By whatever, if you want to apply to trial court for mandamus fine no one is stopping you, if you want to apply to the trial court for payment on terms no one is stopping you, my point is it seems to me that you have come straight to the final Appellate Court for some enforcement process and I’m saying that is it enough to say to us that you anticipate that you might problems in enforcing it or attempting to enforce it at the trial level and therefore you need the final Appellate Court to intervene as distinct from doing you what any litigant who has a judgment does, they go to the trial court, they use whatever mechanisms are available for enforcement and then if your dissatisfied you take whatever recourse.”
Eamon Courtney, Attorney for Belize Bank: “Your honor we have done it.”
CCJ Judge: “You have gone to the trial court?”
Eamon Courtney, Attorney for Belize Bank: “The only method of enforcement available to us is the certificate under section 25, it specifically says so. When the government is concerned get your certificate and serve it and they shall pay.”
CCJ Judge: “Okay let me ask another way, what do you expect or what is it that you are asking the court to do?”
Eamon Courtney, Attorney for Belize Bank: “We are asking the court to declare that order has not been paid and to issue an order saying to Minister of Finance that you must pay.”
CCJ Judge: “Why can’t those request and claims be made at the trial court?”
Eamon Courtney, Attorney for Belize Bank: “Because your honor- well I won’t say that they can’t be made, they can be made at the trial court but what I am saying to the court is that in our respectful submission we are entitled, based on the authorities that we have, to come here in the limited circumstances of this case for that relief. If we go to the trial court it is clear as day that we will get the order of mandamus, we will serve it, and what ? The government will go to parliament and vote no.”
Appearing on behalf of the Government of Belize Limited was Dr. Ben Erachovich.
Dr. Ben Erachovich., Attorney for Belize:“That the crown proceeding act only applies where money is payable under a judgment of the court and if the bank is right in its submission on interest then a certificate under section 25 cannot issue because that section applies only if money is payable by order of the court and that is a different situation from what Belize Bank now says is the position under section 13 under the Belize arbitration act which is that the debt remain payable only under the award. Now the significance of this for interest is that if…”
CCJ Judge: “Why do you say that is what the position is?”
Dr. Ben Erachovich., Attorney for Belize: “Because it’s in there submission on interest, their response of submission on interest of the 28th February.”
CCJ Judge: What about Mr. Courtney’s attempt to adapt the comments made by Justice Haden bring with under the concept of measure. If that is correct what will be that position.
Dr. Ben Erachovich., Attorney for Belize:“My respectful submission Mr. president is Mr. Courtney submission on merger was not correct and that merger applies where the debt previously due under the award merges in the judgment and the debt then becomes due only under the judgment, that is merger and Belize Bank’s written submissions took the point that that did not happen under your order under section 13 of the Belize Arbitration Act and the consequence of that they said is that interest continues to run at the award rate because it is the award that is the source of the debt.”
CCJ Judge:“But then what is the effect of what we did ?”
Dr. Ben Erachovich., Attorney for Belize:“That brings us to section 25, but the effect of what you did is to make available all the machinery of the Belize Supreme Court to make available the procedures of the Supreme Court to the Arbitral Award as thought it was judgment but that does not make it a judgment and it does not make the debt due under the judgment. It remains the award and the debt due under it that would be enforceable using those procedures. Now this of course although raised in the context of interest has greater significance in particular to whether or not section 25 certificate should have issued and that takes us to section 25.”
CCJ Judge: “Res judicada already isn’t it that section 25 is available due to the last decision of this court.”
Dr. Ben Erachovich., Attorney for Belize: “With respect your her that point is not Res judicata, in your judgment Mr. Justice Anderson delivering the judgment of the court said that there was some force in the bank submissions that there was an enforcement procedure available that involve section 25 in addition to a supplementary appropriation bill but in my respectful submission the applicability of section 25 to an arbitral award to which leave to enforce has been granted is Res judicata.
Courtenay asked the CCJ to reserve its decision until after the budget debate.