Chief Justice Kenneth Benjamin is deliberating on whether or not he should lift a temporary injunction against the Ashcroft Alliance, which the Barrow Government got from the Supreme Court earlier this year. They are trying to get enforcement of a 50 million US dollar judgment which the Caribbean Court of Justice has refused to allow in Belize, but which has been granted in the US District Court.
This dispute goes all the way back to Musa Government’s special tax arrangements that they gave to the Ashcroft Alliance in 2005, when they owned BTL. The Barrow Government, having learned of this illegal and secret Accommodation Agreement, refused to honour them, because they were abusive, and a burden to Belizeans. The Ashcroft Alliance went to the London Court of International Arbitration (LCIA) and got a 44 million US dollar award against Belize for Prime Minister Dean Barrow’s refusal to subject the country to the deal any longer. The Prime Minister has flatly refused to pay a cent of it.
The Alliance then came to Belize seeking enforcement of the award, and that was argued all the way to the CCJ which refused to allow enforcement because it was against public policy. That’s the same judgment which CCJ judges were critical of the then Prime Minister, Said Musa’s actions, when he and his government agreed to grant the tax arrangements for the accommodation agreement without approaching the parliament. The Ministers who signed onto this deal had no authority to do so until this was passed in the House of Representatives. That prior approval was never sought, and so the CCJ judges, said in their judgement, “Prime Ministerial governance, a paucity of checks and balances to restrain an overweening Executive, these are malignant tumours that eat away at democracy.”
Dissatisfied with the ruling of the CCJ, the Alliance went to the US District Court which granted enforcement of the judgment. To stop them from going any further in seeking to collect on this arbitral award, the Government of Belize sought an injunction against the Alliance, which was granted earlier this year by Justice Michelle Arana. Government attorney Denys Barrow and Ashcroft attorney Eamon Courtenay then went before the Chief Justice on Monday, March 13, 2017, and Tuesday, March 14, 2017 to make arguments as to why the injunction should or should not be lifted.
In that full trial, Barrow submitted on behalf of the Government that this injunction should remain permanent. The position of the Government is that the Alliance went to get a judgment from the US Court which has the effect of undermining the judgment of CCJ, Belize’s highest court. Barrow said that the Alliance should not be allowed to continue because this case has already been resolved by the CCJ, whose ruling bars them from seeking enforcement of this award against Belize in another country. He asked the Chief Justice to prevent them from attempting to do so in the future by making the interim injunction against them permanent.
Defending against the claim for a permanent injunction, Eamon Courtenay submitted to the court that the Government’s reasoning is flawed because it does not address the principles of arbitration, the New York Convention, and Belize’s arbitration law, which incorporates the New York Convention. He said that the two companies, Caribbean Holdings Limited and Belize Bank Limited are indeed the holders of a US Court judgment authorizing enforcement, which the Government must respect. He said that this arbitration award comes from the LCIA, and if the government wanted to set it aside, it needed to have gone to that court to do so. The government did not do that, and so the arbitral award is final and binding.
Courtenay also disputed the Government’s claim that the CCJ judgment binds his clients from seeking enforcement elsewhere. He told the court that under the New York Convention, if a court in a country refuses to enforce the award due to being contrary to public policy, the holders of the award, can go to another country that adopted the convention to get enforcement. He stressed that though Belize’s highest court has refused to enforce the judgment, a US District court has granted enforcement.
The Chief Justice has reserved judgment until April 12. Until he decides, the injunction against the Ashcroft Alliance remains in effect.