BCB Holdings Ltd. v. Gov't of Belize

• Decision Date: 06 February 2017
• Docket Number: Civil Action No. 14–1123 (CKK)
• Parties: BCB HOLDINGS LIMITED and The Belize Bank Limited, Petitioners/Plaintiffs v. The GOVERNMENT OF BELIZE, Respondent/Defendant.
• Court: U.S. District Court — District of Columbia

232 F.Supp.3d 28

BCB HOLDINGS LIMITED and The Belize Bank Limited, Petitioners/Plaintiffs

v.The GOVERNMENT OF BELIZE, Respondent/Defendant.

Civil Action No. 14–1123 (CKK)

United States District Court, District of Columbia.

Signed February 6, 2017

Dana C. MacGrath, Louis B. Kimmelman, Sidley Austin LLP, New York, NY, Kristin Graham Koehler, Sidley Austin, LLP, Washington, DC, for Petitioners/Plaintiffs.

Creighton R. Magid, Dorsey & Whitney LLP, Washington, DC, Juan C. Basombrio, Dorsey & Whitney LLP, Costa Mesa, CA, for Respondent/Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

This matter comes before the Court on Petitioners' [53] Motion for an Order Pursuant to 28 U.S.C. § 1610(c) Authorizing Enforcement of Judgment and [54] Motion for Anti–Suit Injunction and Temporary Restraining Order. Petitioners BCB Holdings Limited ("Holdings") and the Belize Bank Limited ("BBL") (collectively "Petitioners") initiated an arbitration against the Government of Belize ("GOB") on October 16, 2008, before the London Court of International Arbitration ("LCIA") in London, England. The LCIA issued an award in favor of Petitioners, and this Court subsequently confirmed that award and entered judgment in favor of Petitioners. The GOB apparently does not intend on paying the judgment entered by this Court.

Petitioners now request an order authorizing the enforcement of that judgment and also seek an anti-suit injunction enjoining the GOB from taking certain actions in Belize that would effectively prevent Petitioners from enforcing this Court's judgment. For the reasons set forth below, the Court GRANTS Petitioners' [53] Motion for an Order Authorizing Enforcement of Judgment, DENIES WITHOUT PREJUDICE Petitioners' [54] Motion for Anti–Suit Injunction on the present record, and DENIES Petitioners' [54] Motion for a Temporary Restraining Order on the grounds asserted in this case.

I. BACKGROUND

Aggrieved by the repudiation of a Settlement Deed entered into between the parties, Petitioners initiated an arbitration against the GOB on October 16, 2008, before the LCIA in London, England. Decl. of Jessica Wells, ECF No. 32–3, at ¶ 5(c). The GOB opted to abstain from the arbitration, and the proceedings were accordingly conducted ex parte. Id. On August 18, 2009, the arbitral tribunal issued an award in favor of Petitioners and concluded that the GOB owed Petitioners BZ $40,843,272.34 in damages plus interest and costs. Id. at ¶ 5(f).

On August 21, 2009, Petitioners sought to enforce their arbitral award in Belize. Decl. of Louis Kimmelman, ECF No. 1–2, at ¶ 16. The GOB opposed the enforcement of the award, arguing that it was contrary to the law and public policy of Belize. Id. The Supreme Court of Belize enforced the Award in late 2010, and the GOB appealed this decision in early 2011 to the Belize Court of Appeals. Id. at 17–18. The appellate court reversed the decision below and held that the Award would not be enforced. Id. at 19. On July 26, 2013, the Caribbean Court of Justice ("CCJ"), Belize's final court of appeal, affirmed on public policy grounds. Id. at 20.

On July 1, 2014, Holdings and BBL filed in this Court a Petition to Confirm Foreign Arbitration Award and to Enter Judgment or, Alternatively, Complaint to Recognize and Enforce Foreign Money Judgment. See Petition to Enforce, ECF No. 1. This Court confirmed Petitioners' arbitration award on June 24, 2015. See BCB Holdings Ltd. v. Gov't of Belize , 110 F.Supp.3d 233 (D.D.C. 2015), aff'd , 650 Fed.Appx. 17 (D.C. Cir. 2016), cert. denied , No. 16–136, –––U.S. ––––, 137 S.Ct. 619, ––– L.Ed.2d ––––, 2017 WL 69187 (U.S. Jan. 9, 2017). A copy of this opinion is attached hereto as Exhibit A. The Court then entered judgment confirming the Award and converting it into U.S. dollars, plus prejudgment interest, in the total amount of $27,429,996.56. ECF No. 47.

Respondents opposed the petition to confirm the award on numerous grounds, one of which is of particular note here. Respondents claimed that the final judgment rendered by the CCJ refusing to enforce the arbitration award prevented the Petitioners from enforcing the award in this jurisdiction. See BCB Holdings Ltd. , 110 F.Supp.3d at 245–46. Specifically, Respondents argued that the doctrines of res judicata, collateral estoppel, and international comity barred the petition to confirm because a competent court, the CCJ, had already issued a final judgment refusing to enforce the Award. Id. at 245. The Court rejected this argument. Id. The Court explained that only the country in which an award is made, referred to as the primary jurisdiction, may set aside an award. Id. at 246. All other member-countries to the New York Convention are designated as secondary jurisdictions. Although these secondary jurisdictions may refuse to enforce an award, their doing so does not preclude other jurisdictions from enforcing it. Id. In this case, England—which did recognize and confirm the award—was the primary jurisdiction, and accordingly the CCJ decision did not prevent this Court from enforcing Petitioners' award. Id.

Respondents appealed this decision to the Court of Appeals for the D.C. Circuit, which affirmed this Court's judgment in its entirety. See BCB Holdings Ltd. v. Gov't of Belize , 650 Fed.Appx. 17, 20 (D.C. Cir. 2016), cert. denied , No. 16–136, ––– U.S. ––––, 137 S.Ct. 619, ––– L.Ed.2d ––––, 2017 WL 69187 (U.S. Jan. 9, 2017). A copy of this opinion is attached hereto as Exhibit B. The United States Supreme Court then denied Respondent's petition for certiorari on January 9, 2017. See Gov't of Belize v. BCB Holdings Ltd., No. 16–136, ––– U.S. ––––, ––––, 137 S.Ct. 619, ––– L.Ed.2d ––––, 2017 WL 69187, at *1 (U.S. Jan. 9, 2017). On January 23, 2017, Petitioners filed a motion for an order pursuant to 28 U.S.C. § 1610(c) authorizing enforcement of the judgment, which is now pending before this Court.

Thereafter, Belize took a number of steps that were apparently aimed at preventing Petitioners from taking any further actions to enforce their judgment from this Court. On January 27, 2017, Belize introduced legislation in the Belizean Parliament entitled The Crown Proceedings (Amendment) Act 2017. This Act criminalizes efforts to enforce foreign judgments against Belize in any court outside Belize. The Act states: "Where it has been determined by a court in Belize, that a foreign judgment is unlawful, void or otherwise invalid, a person who, whether in or outside of Belize, and whether by the institution of proceedings or otherwise, enforces or attempts to enforce the foreign judgment commits an offence." Pets.' Ex. A, ECF No. 54–2 (Crown Proceedings (Amendment) Act 2017), § 3–29B(1). Violation of this Act results in criminal penalties for individuals consisting of fines not exceeding BZ $150,000, or terms of imprisonment not exceeding two years, or both. Id. , § 3–29B(2). The statute states that "[a]n application shall lie to the Supreme Court to issue an injunction against a person restraining the person from commencing, intervening in or continuing any proceedings for enforcement of a foreign judgment, whether in or outside of Belize, on the basis that a competent court in Belize has declared such foreign judgment unlawful, void or otherwise invalid." Id. , § 3–29B(3).

On the same day, Belize introduced legislation entitled The Central Bank of Belize (International Immunities) Act, 2017. This Act states that "[a] person commits an offence who, whether in Belize or outside of Belize, and whether in respect of a matter occurring before or after the coming into operation of this Act ... (a) has instituted, intervened in or sought the conduct of proceedings in any foreign State, being proceedings from which the Bank or the property of the Bank would, by virtue of section 3, be immune ...." Pets.' Ex. B, ECF No. 54–3 (Central Bank of Belize (International Immunities) Act, 2017), § 4–(1). Section 3 of the act purports to immunize the property of the Central Bank of Belize from proceedings for attachment, arrest or execution in any foreign court. Id. , § 3.

There is no dispute as to the purpose of these statutes. On January 27, 2017, the Prime Minister of Belize expressly stated in a speech to the Belize Parliament that the statutes are intended to interfere with Petitioners' efforts to enforce this Court's judgment against the GOB:

Well, not to put too fine a point on it, and in fact, to speak to circumstances that we're all already familiar with, we had thought it prudent to do this because of the fact that the Ashcroft Concerns, BSDL, BCB Holdings, Ltd., which I gather is now trading—has changed its name to Caribbean Investment Holdings, Ltd.—and The Belize Bank, Ltd. have obtained final judgment in the United States on arbitral awards given against the government of Belize and in favor of BSDL, Belize Bank, Ltd., and BCB Holdings, Ltd. Last Tuesday, those entities filed a motion in the District Court in Washington, D.C., filed an application to be allowed to enforce those judgments against the government of Belize. Notwithstanding that certainly in one case, as all Belize, and indeed now all the world knows, the final judgment flies completely in the face of the decision of our highest court, the CCJ, which decision says that that arbitral award is unenforceable, because it is repugnant to public policy, and it is void and illegal.

Decl. of Louis B. Kimmelman, ECF No. 54–1, ¶ 15. On January 31, 2017, the Belizean legislature enacted both statutes. Id. ¶ 16.

On February 1, 2017, the GOB sent the Registrar for the CCJ a letter stating that it "will tomorrow file with the [CCJ] an urgent inter party application for an Anti–Enforcement Injunction to restrain [Petitioners] from enforcing or causing to be enforced the very same LCIA Final Award for which this Honourable Court, in the matter at caption, has declined enforcement by its judgment dated July 26, 2013." Pets.' Ex. C, ECF No. 54–4 at 1. The GOB represented...