British Caribbean Bank gets big CCJ judgment against G.O.B.

This morning, the Caribbean Court of Justice (CCJ) delivered a bombshell decision against the Government of Belize (G.O.B.). The CCJ discharged the injunction preventing the British Caribbean Bank from pursuing international arbitration against the G.O.B. under the UK-Belize Bilateral Investment Treaty. The Bank has been prevented from continuing its arbitration against G.O.B. since 2010. To prevent the Bank’s arbitration against G.O.B. for seizure of the bank’s assets, G.O.B. had maintained that the bilateral investment treaty was not binding on the government.  This had come as a shock to international investors, especially British investors, who all rely on similar binding treaties all over the world to protect their investments abroad. G.O.B. had maintained before the Supreme Court and the Court of Appeal that the treaty wasn’t binding. Then suddenly, in a surprising flip flop one month before this CCJ decision, Foreign Minister Elrington wrote to the British High Commissioner is Belize saying quote “Upon further review, the Government of Belize is pleased to confirm that it regards itself as being bound by the UK-Belize Investment Promotion and Protection Agreement”. News Five notes that Minister Elrington’s concession also came one month before the PM’s formal visit to the United Kingdom.   Investors see the decision not only as a huge win for the British Caribbean Bank but as a win for investors as well as the country of Belize which they say cannot significantly grow without foreign investment. Arbitrations are now finally free to proceed against the government which will have to pay substantial legal fees as the expensive price for its flip-flop over whether it considered itself bound by the treaty. The background of the case is that in February, a CCJ panel of judges presided over a case in which a mortgage of twenty-two point five million US dollars, acquired by G.O.B. during the appropriation of Belize Telemedia Limited in 2009, which was the focus of the lawsuit.  Lord Peter Goldsmith, who appeared on behalf of BCB, successfully argued that the matter extended beyond both parties involved in the litigation since it concerned the UK-Belize Bilateral Investment Treaty signed in 1982. The government’s attorney, Denys Barrow, received the decision during a teleconference from the CCJ’s seat in Port of Spain, Trinidad. Senior Counsel Denys Barrow conceded to News 5 that the BCB is allowed proceed with international arbitration. 

Denys Barrow, Attorney for Government of Belize

Denys Barrow

“They allowed the appeal by BCB, so BCB has won this appeal before the Caribbean Court of Justice.  The appeal was against the decision of the Court of Appeal upholding an injunction granted by the Supreme Court preventing BCB from proceeding abroad with international arbitration concerning the acquisition, the compulsory acquisition of a loan that had been made by BCB to B.T.L.  So where it is now is that there are proceedings in Belize, probably two or three proceedings in Belize relating to the question of the validity of that loan, the validity of the acquisition.  And, along with those proceedings in Belize there will also now be proceedings abroad in the form of international arbitration dealing with one aspect of that whole matter.”

Isani Cayetano

“Where does B.T.L. stand in all of this at the moment?”

Denys Barrow

“B.T.L. borrowed this twenty-two point five million I think it was, you’ll need to check the figure, and B.T.L. is now claiming that when that loan was taken out those who were in charge of B.T.L. at the time borrowed that money for an unlawful purpose.  The unlawful purpose they are saying was essentially to allow the company to reduce its share capital.  So, broadly speaking that is the unlawful purpose.  The companies act prohibits the doing of that and the argument of B.T.L., and they had brought a case against British Caribbean Bank in the Supreme Court of Belize, the argument of B.T.L. is that that loan is unlawful and should not be repaid by them B.T.L.”

In May, Minister of Foreign Affairs Wilfred Elrington, in a letter to the British High Commission, confirmed to the UK Government that upon further review Belize considers itself to be bound by the Bilateral Investment Treaty.