Validity of Portico’s Definitive Agreement was Questioned in Legal Opinion
The Briceño administration has restated its position on the scandalous Definitive Agreement, following the leak of another confidential paper that was presented back in April. Legal advice on the validity of the Definitive Agreement was in fact sought by the Government of Belize and, despite the professional opinion of renowned advocate, Doctor Ben Juratowitch, the controversial agreement was still introduced to Cabinet a few weeks later. Doctor Juratowitch is a preeminent legal mind who represents Belize in the territorial dispute with Guatemala that is before the I.C.J. In a release issued today, government stated, “this decision was reached after an informed discussion in Cabinet and after receiving legal advice from multiple attorneys of international repute. At the same time, appreciating the credibility of the key strategic stakeholders, Royal Caribbean Group and Boskalis, Cabinet further determined that the government should proceed to meet with these parties with a view to negotiate or develop a new arrangement in an open and transparent manner that would serve the best interest of the people of Belize”. News Five’s Isani Cayetano has the following story.
Isani Cayetano, Reporting
The validity of the contract signed by the Government of Belize and Portico Enterprises Ltd., under the outgoing Barrow administration in October 2020, has been called to question. This is so because of the dubious circumstances under which the Definitive Agreement came into existence. We’ve established a brief timeline to look at how the controversial document saw the light of day, to inquire about its legality, and to bring into focus government’s role in the tangled mess that has been woven since we asked Prime Minister John Briceno about the agreement in early March.
Isani Cayetano
“I’d like to get your weigh-in on what seems to be a war of words between the two cruise port developers. There’s a back and forth between Portico and Stake Bank Enterprises over the so-called Definitive Agreement that has been given to Portico. Your government has not officially gone on record to comment on this matter.”
Prime Minister John Briceño
Prime Minister John Briceño (File: March 1st, 2023)
“And this is for a reason. They are two private entities throwing words at one another and that’s between them. We, as a government, we are here to be able to govern and to ensure that whatever investment or whatever approvals that were made by the Government of Belize can be carried out. If the Definitive Agreement, and I have not seen it, was signed by the minister responsible then obviously it is going to be binding because it is the Government of Belize that signed it. But I will not get into the back-and-forth between two entities, that’s amongst them.”
…but government did get involved. In fact, it is reported that PM Briceño was the one who initially took the paper to cabinet several weeks later, after apprising himself of the details. On the other hand, did he seek sound legal advice on the legitimacy of the agreement prior to introducing it to cabinet?
Dean Barrow
Dean Barrow, Former Prime Minister
“We also hear that Mr. Douglas Mendes who, by the way, was on the other side against me in the Recological matter, but who was a very good attorney, was also asked by the current administration to give an opinion saying that the agreement was binding and, again, the informal reports, the unofficial reports are that he, too, refused which would not surprise me in the least either because, again, he’s a tier one lawyer, are really top-drawer advocate and so, in the circumstances, because even a first-year law student looking at that agreement would have concluded that it was invalid. Of course, he and the attorney general, if they were asked to opine, I am positive would have come to the same position that no, it is not valid. So again, there are all these questions that I think the prime minister has to answer.”
As it turns out, the Government of Belize was properly advised by Ben Juratowitch, a widely recognized and outstanding advocate who serves as counsel before international courts and tribunals in disputes between states, disputes between foreign investors and states, as well as disputes between commercial parties. Juratowitch turned in this fifty-one page legal opinion to the Briceño administration on April 20th, 2023, several weeks before Portico’s Definitive Agreement was presented to Cabinet. In his personal view, based on the judicial outcomes of several matters, including the British Caribbean Bank and the Belize International Services Ltd., Juratowitch wrote, quote, once it has reached the conclusion that a minister has signed a contract that he had no authority to conclude, and the content of which is unlawful, it is incumbent on the government to take action to remedy the situation. This is both because the government should not tolerate a contract it knows to be unlawful and because, if it did, it may ultimately be held to have ratified the contract so far as any question of authority of the minister was concerned, end quote.
Elsewhere in the document, Juratowitch wrote, quote, if the government wishes to proceed with the project, the logical thing to do would be to inform Portico of the invalidity and unenforceability of the agreement and seek to agree with it a fresh contract that would be signed by a minister within the scope of that minister’s authority, in compliance with statutory requirements, including under the Finance and Audit (Reform) Act if the terms of any contract attracted its application; recognize that the existing agreement is invalid and unenforceable; establish new contractual terms of the project that are not contrary to the separation of powers as enshrined in the constitution, end quote.
The bold act of presenting the flawed Definitive Agreement to Cabinet flew in the face of sound advice by a venerable legal mind who is also on Belize’s international team of lawyers in the territorial dispute that is before the International Court of Justice. After a firestorm of protest, on June sixteenth, PM Briceño famously tore up the Definitive Agreement.
Dean Barrow
“We understand he’s saying okay because Cabinet did not approve the agreement in the form in which he took it, well they will seek to renegotiate now and take to the house something else that would see the agreement shorn of all these outrageous terms and conditions. That remains to be seen and I have my doubts as to whether the administration will succeed with that. There has been so much mud smeared all over this agreement and the circumstances surrounding it that I do not see how the government will succeed in persuading the Belizean people that even a scaled-down version of that agreement ought in fact now to be legislated.”
Isani Cayetano for News Five.
