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$400 Million Judgment Debt Looms
 
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08-Apr-2014  
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Marietta Brew Appiah-Oppong
 
 
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Following the ruling of the Permanent Court of Arbitration (PCA) directing the government of Ghana to pay $12 million to Balkan Energy for work done on the Osagyefo Barge, the outcome of two legal battles being waged at the PCA and in the Supreme Court of Ghana could determine government’s liability in yet another multi-million dollar claim over wrongful abrogation of a contract.

In a case before the PCA in The Hague, Netherlands, which could be determined in a matter of days, a consortium of companies, led by Bankswitch Ghana, is seeking an amount of GH¢831 million plus interest over the termination of the Ghana Customs Secure Document Management System (GCSDMS) contract.

Deposit

Checks by the Center for Investigative Reporting Ghana have revealed that the Permanent Court of Arbitration has concluded its work and could make its decision in a matter of days, subject to both parties in the arbitration depositing €125,000 each into a bank account linked to the PCA.

As at Monday this week, only Bankswitch Ghana had complied with the court’s directive, further checks by CIRGHA have revealed.

Sources confirmed to CIRGHA that a notice to this effect had been circulated to both parties since February this year.

CIRGHA is an investigative NGO affiliated to the Global Investigative Reporters Network, based in the United States.

Until 2012, Bankswitch Ghana was the lead agency in the implementation of Ghana’s first fully integrated electronic platform employed in the processing of imports at the ports.

In the case before the PCA, Bankswitch Ghana claims its contract to manage the GCSDMS was wrongfully abrogated by the government of Ghana and as a result, it had not been able to recoup its investments.

Apaak Challenges Bankswitch Ghana’s Claims

However, Dr. Clement Apaak, who is adamant that Bankswitch is not entitled to any such claim, is praying the Supreme Court of Ghana to declare the purported contract null and void because it lacked Parliamentary approval pursuant to Article 181 (5) of the 1992 Constitution.

In a writ filed before the Supreme Court, the Presidential Staffer is also seeking an order requiring the 2nd and 3rd defendants to indemnify the Government of Ghana against any loss, claims, arbitral awards, costs and/or any other liability whatsoever that the Government may be exposed to by reason of any person, institution and/or body relying on or giving effect to the provision of the said illegal agreements.

“A declaration that the agreement dated the 12th day of December, 2007 and entered into between the Government of Ghana acting through the Ministry of Finance and Economic Planning and Revenue Agencies Governing Board on the one part, and the 2nd and 3rd Defendants on the other part, is an international business or economic transaction, and thus null and void for want of Parliamentary authorization pursuant to 181 (5) of the 1992 Constitution.”

Article 185 (5) of the 1992 Constitution states: “This article shall, with the necessary modifications by Parliament, apply to an international business or economic transactions to which the Government is a party as it applies to a loan.”

The companies in the Bankswitch Ghana consortium include Get Holdings, a company incorporated under the laws of Cyprus, Get Technologies, a company incorporated under the laws of Cyprus, Get Group, a free zones enterprise registered in Dubai, (UAE), Faberkner Corporation, a company established under the laws of Panama and Intertek International Limited, a company organized and existing in accordance with the laws of England and Wales.

In spite of the case ongoing at the Supreme Court, legal pundits share the view that per international law, if the Permanent Court of Arbitration decides to uphold the claims of the consortium of companies led by Bankswitch Ghana, Government would be obliged to pay.

Notice

Already, CIRGHA can confirm that a notice from the PCA had been circulated to the parties involved in the arbitration but would only be released subject to both parties – the government of Ghana and the Bankswitch Ghana-led consortium – depositing a sum of 250,000 euros into a specially designated bank account by 26March 2014.

€250,000 Deposit

A letter signed by Aloysius P. Llamzon and addressed to the parties namely, the Attorney-General and Minister of Justice, the Ministry of Finance and Economic Planning, the Executive Secretary, Revenue Agencies Governing Board and dated 24th February 2014 states: “The Tribunal has instructed me to convey that its deliberations and preparation of the award in this arbitration have been completed. Pursuant to Article 41 of the UNCITRAL Arbitration Rules 1976 and Paragraph 15 of Procedural Order No. 2 (Terms of Appointment), the Tribunal requests from the Parties a final deposit of 250,000 euros (or 125,000 euros from each party).”

This final deposit, which is expected to cover all the outstanding and future fees and expenses of these proceedings, was requested by no later than Wednesday, March 26th, 2014.

As detailed in Paragraph 16 of Procedural Order No. 2 (Terms of Appointment), the final deposit should be made to the following account:

Bank: ING Bank N.V. Schenkkade 65, 2519 AS The Hague, The Netherlands

Account Number: 68.55.45.369

IBAN: NL71 INGB 0685 545369

BIC: INGBNL2A

Name of Beneficiary: Permanent Court of Arbitration

Reference: BS-GH

The Tribunal has instructed PCA to circulate the award to the parties as soon as payment from both parties has been received.”

Another letter from the Permanent court of Arbitration addressed to all the parties states:

Receipt Of Letter

“On behalf of the Tribunal, I acknowledge receipt of your letter dated February 25, 2014. The Tribunal has instructed me to convey that pursuant to Article 41(1) of the UNCITRAL Arbitration Rules of 1976, its directive that each Party pays the requested final deposit in equal shares is maintained. Should any party elect to pay the full amount of the final deposit, however, the PCA would retain that amount for the duration of the 30-day period indicated by the Tribunal (i.e., until March 26, 2014).

Should the other party pay its share of the final deposit on or before March 26, 2014, the amount advanced would be returned by the PCA. If the other party does not pay its share, however, the Tribunal would then consider that the full required payment has been made pursuant to Article 41 (4) of the UNCITRAL Rules.”

Facilitating Release Of Ruling

Even though each party is expected to contribute half of the amount requested, Bankswitch Ghana had until early this week offered to pay the entire amount to facilitate the immediate release of the landmark ruling.

A letter sighted by the Center for Investigative Reporting Ghana sent to the PCA by Houthoff Buruma, the law firm representing the Bankswitch Ghana-led consortium reads:

“We are writing on behalf of Bankswitch Ghana Limited (the Claimant) in the above-referenced case.

We refer to your letter of February 24,2014 relaying the message that the award is completed and requesting a further deposit of the Parties of €250,000.

“In respect of the deposit can you please confirm that if Bankswitch pays the full amount of €250,000 the award will be released to the parties immediately upon receipt of that sum on the bank account mentioned in your letter?”
 
 
 
Source: Daily Guide
 
 

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