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Cases In Focus

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The First Gay Rights Challenge

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Supreme Court Lacked Jurisdiction Rhett Fuller vs USA Comissioner of Income Tax Ruled Unreasonable BTL is NOT Dominant

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Volume2

Constitutional Challenge to Contempt of Court Law

2011

Vidrine v Vidrine Update

The United States of America wants your money:

Mayan King To Caribbean Court

Legislation In Focus

The Far Reaching Implications of Evolving U.S. Tax Law

On March 18, 2010, the United States Congress enacted into law the Hiring Incentives to Restore Employment Act of 2010 (HIRE Act). This law was primarily introduced to stimulate growth and employment in the U.S. through major government expenditures in infrastructure and otherwise. As an offsetting provision to such expenditures, the law included an amendment to the U.S. income tax laws (Internal Revenue Code) referred to as the Foreign Account Tax Compliance Act (FATCA). The substantive underlying purposes of the FATCA provisions are to bring offshore capital back into the U.S. banks and to enhance tax revenue collection. FATCA lays down the gauntlet on foreign financial institutions by providing, inter alia, that, with effect from the 1st of January, 2013, unless foreign financial institutions (FFI) enter into a disclosure agreement with the U.S. Internal Revenue Service (IRS) and comply with extensive information reporting requirements on U.S. accounts with them, withholding agents including but not limited to all U.S. banks shall be required to deduct and withhold a withholding tax of thirty percent (30%) of each and every withholdable payment

Highlights of the Labour (Amendment) Act

from sources within the United States passing through them made to such foreign financial institution including but not limited to interest, dividends, rent, salaries, compensation, gains, profits, income and proceeds of sale of property of any type. Not surprisingly, the empirical expectation is that over 90% of FFI’s worldwide will enter into such disclosure agreement with the IRS. From a Belize perspective, an FFI is defined to include but is not limited to all Belizean domestic and international banks, credit unions, building societies, trust companies, broker dealers, mutual funds, and certain insurance companies that offer life insurance contracts with cash value or certain annuity contracts with an investment component. Subject to certain limited exceptions, a U.S. account is defined to mean any financial account that is held by one or more specified U.S. persons or U.S. owned foreign entities. These include deposit accounts, whether current, savings or CD’s, custodial accounts and any equity or debt interest in a financial institution including ordinary or preference shares and loan notes or bonds issued by the financial institution. A specified U.S. person includes a U.S. “Green Card” holder, a U.S. resident and a U.S. citizen, whether or not those persons hold residency or citizenship with another country or jurisdiction like Belize. A U.S. owned foreign entity is any foreign entity that has one or more specified U.S. persons that own directly, or indirectly, more than 10% of the stock in a

Belize Income and Business Tax (Amendment (No. 2) Act, 2010

General USA Wants Your Money Regulating Public Utilities in Belize New President of Court of Appeal New Justice of Appeal Departure of Justice John Muria

a Belizean citizen or resident who holds a “green card” or dual U.S. citizenship and maintains a Belize dollar checking, savings or CD account with a bank or credit union in Belize would be captured by the FATCA provisions. Cont’d. on page 2

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General/Cases Cases In Focus In Focus

non-compliance with the U.S. tax laws in the case of U.S. persons (including Belizeans with ‘green cards’ or U.S. citizenship) can result in not only civil and administrative penalties and fines but in criminal sanctions as well. corporation, the beneficial interest in a trust, the profits or capital interests in a partnership or is considered the owner of a trust or a portion thereof. In other words, save for certain limited exceptions, a Belizean citizen or resident who holds a “green card” or dual U.S. citizenship and maintains a Belize dollar checking, savings or CD account with a bank or credit union in Belize would be captured by the FATCA provisions. Banks and other FFI’s in Belize, whether domestic or international, if they sign a disclosure agreement with the

IRS, will be required to report to the IRS all those U.S. persons holding U.S. accounts whether or not they are also Belizean citizens or residents. If these Belizean FFI’s choose not to sign the disclosure agreement, then all withholdable payments from sources within the United States will be subject to the 30% withholding tax which in turn means that these Belizean FFI’s and their customers will invariably only get 70% of what was being sent to them. Banks and other Belizean FFI’s as well as Americans and other U.S. persons living or doing business with banks or other FFI’s in Belize should seriously consider what their options are at the earliest possibility. Assuming it takes effect, the FATCA provisions will have a significant impact on the Belizean FFI’s bottom line whether or not it chooses to enter into a disclosure agreement with the IRS. At the same time, non-compliance with the U.S. tax laws in the case of U.S. persons (including Belizeans with ‘green cards’ or U.S. citizenship) can result in not only civil and administrative penalties and fines but in criminal sanctions as well.

The First Gay (LGBT) Rights Challenge Caleb Orozco and United Belize Advocacy Movement (UNIBAM), have filed a constitutional case, against the Attorney General of Belize challenging section 53 of the Criminal Code of Belize. Orosco and UNIBAM are claiming that section 53 criminalizes consensual physical relationships between gays and lesbians. Section 53 of the Criminal Code: “Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years.” This section has been interpreted to include consensual sex between people of the same gender.

They contend that their right to recognition of human dignity, their right to personal privacy and that of their homes, as well as their right to the protection of the law without discrimination is being infringed.

The Claimants intend to rely on sections 3, 6 and 14 of the Constitution as a basis for their arguments. Eamon Courtenay SC and Chris Coye are among the attorneys who have been engaged by the Roman Catholic, Anglican and Methodist Churches and the Belize Association of Evangelical Churches to apply to the Supreme Court to intervene in the case to oppose the Claim by Orosco and UNIBAM. Already, three international NGOs have successfully been added to the Claim to support Orosco and UNIBAM. These NGOs are: The Commonwealth Lawyers Association and the Human Dignity Trust both of London and the International Commission of Jurists of Geneva Switzerland. According to the Claimants section 53 of the Criminal Code violates their constitutional rights. They contend that their right to recognition of human dignity, their right to personal privacy and that of their homes, as well as their right to the protection of the law without discrimination is being infringed. The case is expected to be highly charged and emotional. The Supreme Court will be called upon to consider whether section 53 is incompatible with those sections of the Constitution which provide for laws to be passed to protect public health, public order and public morality. All of the Commonwealth Caribbean jurisdictions Cont’d. on page 3

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enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest. Section 6(1):

continue to have laws on their books that make it an offence for there to be carnal intercourse against the order of nature between individuals. This is believed to be a test case for the Caribbean. The United States and many countries in Europe have de-criminalised sodomy. This case will consider whether Belizean society holds a similar position. Church leaders as well as other civic leaders have already begun to speak out against what they consider to be the importing of values from the US and Europe to Belize. We understand that the Government intends to strongly oppose the Claim brought by Orosco and UNIBAM.

Belize Constitution: Section 3: Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely(a) life, liberty, security of the person, and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; (c) protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity; and (d) protection from arbitrary deprivation of property, the provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. ... (7) Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time Section 14(1): A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The private and family life, the home and the personal correspondence of every person shall be respected. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision of the kind specified in subsection (2) of section 9 of this Constitution. Section 9(2): Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision- (a) that is required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources or the development or utilisation of any property for a purpose beneficial to the community; (b) that is required for the purpose of protecting the rights or freedoms of other persons; (c)

The United States and many countries in Europe have decriminalised sodomy. This case will consider whether Belizean society holds a similar position. Cont’d. on page 4

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Cases In Focus

that authorises an officer or agent of the Government, a local government authority or a body corporate established by law for public purposes to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and

that belongs to the Government or to that authority or body corporate, as the case may be; or (d) that authorises, for the purpose of enforcing the judgment or order of the court in any civil proceedings, the search of any person or property by order of a court or entry upon any premises by such order.

Supreme Court Lacked Juristdiction Says Court Of Appeal In a curious case, the Court of Appeal recently decided that the Supreme Court had no jurisdiction to entertain a case brought by Belize Electricity Limited against the Public Utilities Commission. In 2005 BEL was in need of additional generating capacity to meet new demand for electricity. In agreement with the PUC, a request for proposals protocol was developed by which qualified companies were invited to bid to supply electricity to BEL. During the process, BEL decided that two bidders did not meet the financial and technical requirements, and therefore they were not shortlisted. The PUC disagreed with this, and in discussions with BEL, insisted that the companies be allowed to continue in the process and therefore remain candidates for selection. BEL was equally insistent that they ought not to be a part of the process as they were unqualified. The PUC informed BEL that it had the power to order BEL to negotiate with any company, including the unqualified bidders, and that it could order BEL to enter into contracts with any person designated by the PUC. To break the impasse, BEL decided to have the Supreme Court decide the issues. BEL instituted a claim against the PUC asking the Supreme Court to answer: 1. Whether the PUC has the right, power or authority in law to order (whether or not it has so done) that BEL shall negotiate or enter into a contract with a particular potential supplier of electricity? 2. Whether in the exercise of its duties and statutory functions the PUC is in law entitled to give or withhold

approval of power purchase agreements (whether or not it has given or refused such approval) between a licensee and a supplier of electricity by which the cost of power to consumers of electricity may be affected? and Whether the PUC has the right, power or authority in law to dictate any particular term or condition of a contract between BEL and any particular potential supplier? BEL brought these questions before the Supreme Court by a ‘case stated’. This is a relatively unusual procedure by which a person or body having power to hold a hearing or make a decision may be empowered to state a case to the Court for its opinion, or some statutes provide a right of appeal from a tribunal to the Supreme Court by a case stated. In a considered opinion, Madam Justice Arana decided that the three questions were to be answered in the affirmative. According to her, although neither the PUC Act nor the Electricity Act expressly give the PUC powers to make such orders, the powers were necessary and so should be implied. The consequence of this decision was that the PUC would have tremendous powers over BEL and other companies in the electricity industry. BEL contended that in the regulated privatized electricity industry, the PUC had no such powers. The case presented a clash in the approaches to the regulatory regime that prevails in the electricity industry. BEL therefore appealed. Courtenay Coye LLP was retained by BEL to argue the case on appeal. The approach to the appeal was based on two fronts: i) the Supreme Court had no jurisdiction to entertain

This was a very unique approach to the appeal as it was BEL that had applied to the Supreme Court by case stated. Now, in the Court of Appeal it was conceding that it had adopted a wrong procedure. BEL nevertheless asked the Court to accept that the choice in wrong procedure meant that it should win the appeal. Cont’d. on page 5

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the cases stated; and ii) Madam Justice Arana was wrong in concluding that the PUC had such implied powers. This was a very unique approach to the appeal as it was BEL that had applied to the Supreme Court by case stated. Now, in the Court of Appeal it was conceding that it had adopted a wrong procedure. BEL nevertheless asked the Court to accept that the choice in wrong procedure meant that it should win the appeal. In the event, BEL successfully submitted that it had wrongly invoked the jurisdiction of the Supreme Court by way of case stated. It was submitted that the error in procedure led to a nullity as the case stated was not properly before the Judge. In its judgment the Court said that the “proceedings before Arana J began life in a somewhat curious manner” because it was BEL that had applied to the Court by way of ‘case stated’. The Court of Appeal held that the Supreme Court could only be approached by way of case stated pursuant to the procedure set out in section 36 of the PUC Act. That

procedure had not been complied with since the section only conferred power on the PUC to move the Court by case stated. BEL therefore had no standing to initiate the proceedings. At case management the parties sought to cure this difficulty by consenting to a case stated by the PUC being filed at that point. This was ineffective to confer jurisdiction. The Court of Appeal also confirmed that parties cannot confer jurisdiction on a court by consent, and that reliance could not be placed on the Supreme Court Civil Procedure Rules as the source of jurisdiction. As the Court upheld ground one, there was no need to go on to consider the merits of whether Justice Arana was right in answering the questions in the affirmative. Her orders were set aside and the PUC ordered to pay BEL’s costs on the appeal. An interesting aside is that by the time this appeal came to be argued, the two companies at the centre of this difference between the PUC and BEL had long disappeared from the scene.

Rhett Fuller v. The United States Of America Extradition Is Complicated In March 1990, it is alleged by the American Government that Rhett Fuller, along with two others, was involved in an incident in which a person was shot. More that eight years later, in October 1998, the Americans requested the extradition of Fuller to Florida to face trial for murder. Today in 2011, some twenty-one years after the incident, the US government is still pursuing his extradition. The delay in his case arises from two factors. Between 1990 and 1998, the Americans made no request for his extradition. During this time they were repeatedly in contact with him by phone and in meetings trying to entice him to return voluntarily to Florida. Eight years passed before they invoked the provisions of the Treaty between Belize and the US that enables either country to request the extradition of a person. After the request for his extradition, the case was heard promptly. But after the Chief Magistrate ordered Fuller’s extradition in 1999 he applied to the Supreme Court to review the decision of the Magistrate. This was delayed by the death of the Judge who heard the application, and so it had to be re-heard before then Chief Justice Conteh. In 2002 the Chief Justice dismissed Fuller’s application, and so Fuller appealed. From 2002 until 2008 the appeal lingered in the Court system. Even though the appeal had been filed the Court Registry did not prepare the record for the appeal to be

heard. In 2008, the record was prepared and in 2009, the Court of Appeal dismissed the appeal. Subsequently, Fuller was granted leave to appeal to the Privy Council in London. Curiously, no explanation has been forthcoming from the US authorities as to why they took so long to request extradition. Also, there has been no evidence from the Government explaining why the appeal was not progressed to a hearing for some six years. The extradition appeal raises important legal issues of general public importance. The first issue is whether a request for extradition can be made after such a long period of delay. Why was there this delay and what effect does it have on the extradition process and on the possibility for a fair trial in future? Interestingly, when the US requested the extradition in 1998 they did not inform the Government of Belize that they had been in contact with Fuller on many occasions during the intervening eight years. In the official request, the US Government said that it had just found out that he was in Belize. This was clearly not true. This raises the issue: was the extradition based on a bad faith request? If so, what effect does that have on the extradition proceedings? Extradition in Belize is based on a very old law from 1870. That law has been interpreted to mean that the issues of delay, abuse of process and bad faith as alleged by Fuller should not be raised in the Courts but should be decided Cont’d. on page 6

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by the Minister of Foreign Affairs. In light of the Belize Constitution, the question is whether this is still good law? Should the minister or the Supreme Court determine these issues when a person subject to a request for extradition assets that the proceedings are made in bad faith, or are delayed or are an abuse of the Court’s processes? These fundamental legal issues were argued in the two-day appeal and

In the official request the US Government said that they had just found out that he was in Belize. This was clearly not true.

a decision of the Judicial Committee is awaited. Fuller was represented in the Privy Council by British barristers Edward Fitzgerald QC and Ben Silverstone along with Eamon Courtenay SC of Courtenay Coye LLP. Angeline Welsh was his solicitor. This is the first and last extradition appeal from Belize to go to the Privy Council. Future appeals will go to the Caribbean Court of Justice.

Court Rules Actions of Commissioner of Income Tax Unreasonable

On 30 March, 2011, His Lordship Mr. Justice Legall granted Ecom Limited (Ecom) declarations that (1) the Commissioner of Income Tax acted unlawfully in applying to the Magistrates Court for judgment summonses pursuant to section 64 of the Income and Business Tax Act (the Act) in respect of income tax owed by Ecom for the period April, 2005 to August, 2006; and (2) the Magistrate erred in law and acted ultra vires the Act in making an order that Ecom should pay taxes in the amount of BZ$1,231,177.60 by 29th October, 2010 in default committal. The background to the claim shows that in 2005, Ecom entered into a Management Services Agreement with Belize Telemedia Limited whereby Ecom received a monthly payment for providing management services to Telemedia. Apart from the rights existing under the Management Agreement, Ecom’s only asset was its 30.63% shareholding in Telemedia. In August, 2009 Ecom lost both its rights under the Management Agreement and its 30.63% shareholding in Telemedia as a result of the nationalisation of Telemedia. The nationalisation of Telemedia also caused a termination of the Management Agreement. Ecom was

therefore deprived of its only source of income and was stripped of its only significant asset, namely the 30.63% shareholding which it held in Telemedia and which has an estimated value of more than US$100 million dollars. Less than a month after Telemedia was nationalised, the Commissioner wrote to Ecom requesting that Ecom settle an alleged outstanding business tax balance in the sum of BZ$1,170,567.68 inclusive of interest and penalties for the period April 2005 to August, 2009. Ecom acknowledged that it was prepared to accept liability for the revised tax liability which was in excess of one million dollars, but informed the Commissioner that the nationalisation of Telemedia effectively divested it of both its sole income stream as well as its sole asset and that it had a zero balance in its bank account having not received its expected dividend payment as a result of the nationalisation and having used its available funds to pay off its existing loans. The Commissioner therefore knew that Ecom was unable to pay the tax liability. Despite Ecom’s inability to pay the tax liability and its request that its tax liability be set off against the amounts owed to it by Government pursuant to the compensation claim which Ecom had against the Government in respect of the acquisition of its shareholding in Telemedia, the Commissioner caused Judgment Summonses to be issued against Ecom in respect of the tax assessments. At the Judgment Summons hearing before the Magistrate in the Belize City District Court, Ecom’s legal representative informed the Magistrate that the sums ought to be set off against the compensation owed to Ecom by the Government. Despite this, the Magistrate ordered payment of the entire sum and committal in default of payment even though there was no evidence before the Magistrate to show that Ecom was able to pay. Cont’d. on page 7

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It is in respect of these actions of the Commissioner relief. The Defendants also argued that since the appeal and the Magistrate that the Supreme Court granted the procedures were not followed, the claim was an abuse of declaratory orders. The Court particularly addressed the process of the Court as Ecom should have appealed the Ecom’s contention that the Commissioner acted magistrate’s decision rather than approach the Supreme unreasonably in failing to exercise her powers under the Court directly. His Lordship found in favour of Ecom by Act to seek set-off of the tax admittedly owing from stating that Ecom was not challenging the amount of tax, the compensation payable to Ecom by the Government. but rather was challenging the jurisdiction of the magistrate In this regard, the Judge found that while it is clear that and the Commissioner to act as they did in view of the the Commissioner has discretion to apply for judgment provisions of the Act. Where there is a challenge to summonses for the tax owed, the Commissioner also has jurisdiction, this is unusual and therefore exceptional and discretion to make a request for payment under section fit for judicial review hearing in the Supreme Court. 58 of the Act. The Court considered several factors in the On the injunction point, His Lordship stated that context of the powers conferred on the Commissioner injunctions could be granted against a Minister or under the Act to set-off including that: (1) Ecom admitted government official and that “an argument that injunctions the amount of tax owing; (2) the Commissioner knew of cannot or should not be issued, if accepted, could result in the admission; (3) the Commissioner knew that Ecom did officials or ministers not being bound to obey the law, and would not have the funds to pay the tax; (4) the Commissioner be contrary to the rule of law, which prescribes, in part, that knew that Ecom’s property had been compulsorily acquired government and governmental officials acting in their official and that Ecom was entitled to reasonable capacity, should conduct themselves within compensation within a reasonable time. In a framework of recognized rules and The principle view of these factors, the Court found that principles and they must be able to justify established is that the Commissioner could not be said to have their actions as authorized by law.” committal is to acted reasonably when she applied for the The Court did not grant the be used to assist summonses instead of opting to set-off and injunction which was also prayed for with collection that her decision ought to be set aside. by Ecom for the reason that “where a and not to punish The Court also dealt with Ecom’s declaration is granted against a public contention that the Magistrate’s order that official [as it was in this case] the need a taxpayer. the entire sum be paid, in default committal, to grant, in addition, an injunction, would was based on an error of law and therefore unlawful. seem to be reduced bearing in mind that the government can be The Court found that there was no evidence that it was expected to cooperate fully with the declaration.” proved to the satisfaction of the Magistrate, according to This case is important for a number of reasons the provisions of the Act, that Ecom had the means to pay including the fact that it shows that a power enjoyed by the sum ordered. Therefore the committal order made by the Commissioner to seek to recover taxes must be the Magistrate could not stand as the order was made in reasonably exercised. If the attempt to collect will not lead contravention of the Act which requires that the means of to the taxes being collected the taxpayer may be able to the person being committed be identified. resist the efforts of the Commissioner. Also, the power Preliminary points raised in the matter concerning, of the Magistrate to order committal to prison can only inter alia, jurisdiction of the Supreme Court to deal be exercised if it is proved that the taxpayer owes the with the matter as well as whether injunctions could be taxes and can pay but is wilfully refusing to pay the tax. granted against a minister or government official were The principle established is that committal is to be used to also dealt with. On the jurisdiction point, Counsel for assist with collection and not to punish a taxpayer. Ecom the Commissioner and the Magistrate argued that the was represented by Eamon H. Courtenay SC and Pricilla J. statutory appeal procedure under the Act should have Banner of Courtenay Coye LLP. been exhausted before approaching the Supreme Court for

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BTL is NOT Dominant Telecommunications Operator On the heels of the nationalization of Belize Telemedia Limited in August 2009, the Government owned Telemedia engaged in a course of conduct towards its competitor, Speednet Communications Limited (trading as Smart), which Speednet considered was intended to jeopardize its ability to provide mobile telecommunication service to the Belizean public. This course of conduct included: terminating the provision of unfiltered E1 service to Speednet on 19th November 2009 so that Speednet was unable to provide international service to its customers; interfering with Speednet’s equipment and jeopardizing its national service by cutting fibre links at Benny’s and Ladyville; unilaterally imposing a new revenue sharing agreement for incoming international calls to Speednet’s customers which increased Telemedia’s share of the revenue; unilaterally imposing a new site access policy that made it more difficult for Speednet to access its equipment located on Telemedia sites; threatening to terminate the Tower Lease Agreement which enabled Speednet’s equipment to be placed on Telemedia’s towers; and engaging in ‘Make the Switch’ Campaigns in November and December 2009 while it had impaired Speednet’s network. In an attempt to prevent Telemedia from causing further damage to its business, Speednet sued Telemedia in December 2009 seeking inter alia, a Declaration that by engaging in the aforementioned conduct Telemedia had abused its dominant position as a telecommunication operator. Speednet also applied for, and on 19th December 2009 the former Chief Justice Dr. Abdulai Conteh granted, an interim injunction restraining Telemedia from engaging in further conduct against Speednet and directing Telemedia to reconnect the unfiltered E1 service to Speednet so that contractual relations between the telecommunication companies reverted to what existed before the nationalization of Telemedia. The trial of Speednet’s claim was heard over the course of 11 days between September 2010 and February 2011. On 31st March 2011 Mr. Justice Legall delivered his decision in this hallmark case, being the first claim between the two telecommunication companies since the end of Telemedia’s monopoly in 2004. After hearing the testimony of experts who gave evidence on behalf of Telemedia and Speednet, Mr. Justice Legall determined that the relevant market in which Telemedia and Speednet compete is the mobile market. However, Mr. Justice Legall found that there was not sufficient evidence to

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establish that Telemedia is dominant in the mobile market and refused the declaration sought by Speednet. While he accepted evidence that Telemedia holds approximately 66% of the mobile market, Mr. Justice Legall opined that there was no evidence of (1) technology trends, (2) the degree of differentiation amongst services in the market or (3) the power of Telemedia to influence prices. Mr. Justice Legall further determined that even if he was wrong in concluding that Telemedia is not the dominant mobile operator, there was not sufficient evidence that Telemedia had abused its dominance. He considered the contracts which have governed relations between Telemedia and Speednet’s since 2004 to be null and void as not having been approved by the PUC, notwithstanding that the said contracts were submitted to the PUC for approval in 2005 and the PUC has actively participated in settling disputes between the parties pursuant to the contracts. He also concluded that the terms of the new site access policy were reasonable and that the unilateral change of the revenue sharing agreement did not amount to eliminating or substantially damaging Speednet or preventing it from engaging in competitive conduct. As such Justice Legall concluded that, even if Telmedia were the dominant operator, it had not abused its dominance. Although he refused the declarations sought by Speednet, Mr. Justice Legall appreciated that there was a dispute between the parties and directed Telemedia and Speednet to enter into negotiations for the making of new interconnection and infrastructure sharing agreements. In the event they are unable to agree, Mr. Justice Legall directed them to refer a dispute to the PUC and the PUC is then charged with the responsibility of establishing the terms and conditions for interconnection and infrastructure sharing agreements between Telemedia and Speednet. Speednet’s is considering whether it will appeal the decision of Mr. Justice Legall. Speednet was represented by Eamon Courtenay S.C. and Ashanti Arthurs Martin of Courtenay Coye LLP, together with Andrew Marshalleck S.C. and Naima Barrow of Barrow & Co. Mr. Justice Legall found that there was not sufficient evidence to establish that Telemedia is dominant in the mobile market and refused the declar ation sought by Speednet.


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Case Update – Constitutional Challenge to Contempt of Court Law In the article “Legal Heavyweights do Battle over Contempt of proceedings or the enforcement of those arbitration Court Law,” Issue No. 3, Vol. 2, 2010 of LEXfocus we reported proceedings. The provision also gives power to the Court that a constitutional challenge had been launched against the to void and vacate an award made by an arbitral tribunal Supreme Court of Judicature (Amendment) Act 2010 (the in Belize or abroad. The Court accepted the Claimants Amendment Act) which made new provisions for criminal arguments on the issue of in personam criminal legislation contempt and the granting by the Court of injunctions and improper purpose in respect of subsection (8) and restraining arbitration proceedings found that the provision was “clearly and the penalizing of those who Notably while the challenge directed at [a] particular individual to the Amendment Act was still proceed to arbitration in the or group of individuals and specific face of the injunction. In that article types of existing proceedings, namely ongoing, the Legislature we also noted that the legislation arbitration. This is a violation of the sought to further amend was enacted to essentially deter principles of separation of powers the Amendment Act in parties from pursuing international inherent in the Constitution of Belize.” August 2010 by virtue of arbitration, especially in relation to The Court also found that “whilst it disputes with the government and Amendment Act No. 2 of 2010 is true that not every ad hominem specifically to arbitration awards (the Second Amendment Act) and ex post facto legislation will be the government does not want to in order to “fix” some of the seen to infringe or usurp the judicial honor. The penalties for breaches provisions of the Amendment power, the enactment of such a law of the injunctions ranged from as Act which are the subject of or the alterations in the law which much as $500,000.00 with fines as is not passed or intended for the the claim. high as $300,000.00 per day. The generality of the citizens, and directed Amendment Act also contains the draconian provision that at pending litigation will clearly amount to a transgression of the where an injunction is issued against a company or entity it line between the legislature and the judiciary.” The provision would apply to many persons such as company managers, was clearly meant for or directed at known or identifiable secretaries or similar officers, legal and other advisors and persons and existing litigation in respect of arbitration even potentially union leaders. proceedings then before the Court between the claimants As noted by the Court, the claim broadly described and the Defendant. The Legislature’s power to make was two-fold, namely that (1) the Amendment Act is in laws for the “peace, order and good government” of Belize personam and thereby improper, and that it offends the did not permit the Legislature to make laws for improper principles of separation of power and the rule of law and (2) purposes. Section 106A(8) constituted an “impermissible in the Amendment Act contravenes the fundamental rights personam provision and [was] passed for an improper purpose guaranteed by the Constitution and is disproportionate. thereby violating the principles of separation of power under the The seven (7) Claimants and eleven (11) Interested Parties Constitution.” The Court therefore held that the subsection therefore contended at the hearing of the claim that the was ultra vires the Constitution and struck it down. new contempt procedure, the significant fines and possible In respect of subsection (9), the Court noted that the jail terms and the broad application of penalties against subsection provides for the modes of service of notice company officers were unconstitutional, violated the of the injunction issued by the Court or of an application presumption of innocence and were essentially crafted to for an injunction. In this regard, the Court found that the attack Lord Michael Ashcroft’s interests. notice provisions were “woefully inadequate” as “no time has On 22 December, 2010 His Lordship Mr. Justice Sir been specified within which service is to be effected whether by John Muria delivered the judgment of the Court and held registered post, fax, courier service or notice in the Belize Gazette and declared that section 106A (8), (9) and (12) of the and whether the person to be served is within Belize or abroad.” Amendment Act are ultra vires the Constitution. The Court drew particular attention to the omission of the The Court noted that the Amendment Act conferred requirement for personal service on a person within the power on the Court to issue an injunction against a party jurisdiction and the absence of grounds upon which service or arbitrators from commencing or continuing arbitration of process abroad by fax, courier service or notice in the Cont’d. on page10

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Cases In Focus

Belize Gazette is to be effected. Ultimately, the Court found that “despite the circumstances recognized by the Civil Procedure Rules to be met when effecting service on a person out of the jurisdiction, subsection (9) simply does not permit such procedure…this is wholly unreasonable and contravenes the rights to fair hearing and right to access to the courts under section 6 of the Constitution.” The Court therefore struck down the subsection. In respect of subsection (12) dealing with notification of charges to offenders, the Court noted that the sting in the provision was not the length of notice required to be given but rather “in the discretionary manner of giving notice to the offender.” The Court went on to find that the provision was “plainly contrary to section 6 of the Constitution in that whereas section 6 of the Constitution makes it mandatory that adequate notice shall be given to an offender, whether he attends Court or not, of the charge, time and place, the obligation under this subsection to notify the offender of the charge, time and place of trial is discretionary. The service on an offender who lives abroad through publication in the Belize Gazette…can hardly be classified as adequate notice for the purpose [of] the rights

of an accused guaranteed under section 6 of the Constitution.” The Court therefore declared subsection (12) ultra vires the Constitution and struck it down. The Court found however that sections 106A (1), (4), (7), (10), (13), (14) and (15) were drafted in general terms, were not directed at any specific person nor at any existing litigation and were therefore not objectionable. The challenge to the Amendment Act continues however as all parties in the Claim have appealed to the Court of Appeal. It is expected that the appeal will be heard by the Court of Appeal June, 2011. Notably while the challenge to the Amendment Act was ongoing, the Legislature sought to further amend the Amendment Act in August 2010 by virtue of Amendment Act No. 2 of 2010 (the Second Amendment Act) in order to “fix” some of the provisions of the Amendment Act which are the subject of the claim. The Claimants were represented by Edward Fitzgerald CBE QC of Doughty Street Chambers, UK and by Eamon H. Courtenay SC and Pricilla J. Banner both of Courtenay Coye LLP.

Vidrine v Vidrine – Update The decision of the Court of Appeal in the case of Thomas Vidrine v Sari Vidrine (Civil Appeal No. 2 of 2010) was delivered on 27th January 2011. The decision is a significant addition to the jurisprudence of Belize relating to the division of matrimonial property, as Justice of Appeal Denys Barrow who wrote the judgment, made a very thorough and clear examination of the principles to be considered in actions brought pursuant to Section 148A of the Supreme Court of Judicature Act, (‘the SCJA’), subsection (3) of which empowers the Supreme Court to alter property rights during divorce proceedings. Justice Barrow disagreed with the application by former Chief Justice Conteh of the principles set out in the cases of White v White (2000) 3 WLR 1571, and Miller v Miller; McFarlane and McFarlane (2006) 3 All ER 1, which considered the provisions of Section 25(2) of Matrimonial Causes Act 1973 (UK), and with his conclusion that, as held in those cases, the objective of the Court when considering Section 148A of the SCJA was to achieve a fair and just outcome in the division of such assets, having regard to considerations of fairness, equality and non-discrimination. Rather, Justice Barrow correctly pointed out that Section 148A of the SCJA followed the Australian and Barbadian Family Law Acts, and so cases based on the legislation from those countries offered better guidance as to how the Belize law should be applied on applications

to alter property rights within divorce proceedings. Cases from these countries confirmed that the correct approach was comprised of two steps: (i) identify and value the property acquired by the parties during the marriage (ii) consider and evaluate the matters listed in sub-section (5) (a) to (i) of Section 148A. Justice Barrow made several important observations when discussing each heading, including the following: • (i) In identifying the property, neither property acquired before the marriage, nor the proceeds of sale of such property should be considered, even if the property was sold during the marriage. Conversely, property acquired while the parties are separated is still acquired during the marriage. • (ii) Each of the matters set out in sub-section 5(a) to (i) must be considered equally though the weight given to each may be different. • (iii) The court should not allow financial contributions to overshadow non-financial contributions, and must consider the weight to be given to each. • (iv) A distinction had to be made between a spouse’s nonfinancial contribution to the acquisition, conservation or improvement of the relevant property, and a spouse’s nonfinancial contribution in the role of a spouse, i.e. a consideration of the help and support given by a wife to a husband. • (v) ‘Other facts or circumstances’ as listed in sub-section Cont’d. on page 11

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(i) of Section 148A(5) should only be taken into account if the justice of the case requires it. Therefore, this section does not allow consideration of matters other than those specified in Section 148A (a) to (h) except to that limited extent. Applying the principles to the case before the Court, Justice Barrow held as follows: 1. Two properties owned by the husband were excluded from consideration by the Court. One was acquired before the marriage, and while the second was acquired during the marriage, the wife was unable to show any contribution to the acquisition of the same since it was acquired while the parties were separated. 2. The Court found that the wife had made a non- financial contribution to the third property in her role as wife, which had “…significantly benefited and positively impacted the husband, the home and the family unit in a general way at a time when the husband was engaged in the acquisition, conservation and improvement [of that property].” The court assessed her interest in that property at 30% of the same.

The award was a significant reduction of the judgment of the Supreme Court, where orders were made in favour of the wife in respect of all the properties. The Court of Appeal also took the opportunity to clarify some aspects of the law relating to the jurisdiction of the Supreme Court in matrimonial cases, which are worthy of note as follows: 1. Applications under Section 148A may only be made once divorce proceedings have begun. Conversely, applications for declarations of property rights by a husband or wife can be made at any time under the Married Womens Property Act (Chapter 176). 2. An application for maintenance must be made by a separate Petition pursuant to section 152 of the SCJA, and Rule 65 of the Matrimonial Causes Rules. The application is made after decree nisi and not later than one month from the decree absolute. The matters to be considered on such an application are limited to (i) the fortune of the wife, (ii) the ability of the husband and (iii) the conduct of the parties.

Mayan King goes to the Caribbean Court of Justice In June 2001 Mayan King terminated the services of 6 employees who were labourers at its banana farms. The employees applied to the Supreme Court for relief alleging that their termination was discriminatory and illegal and contravened the provisions of the Trade Unions and Employers’ Organisations (Registration , Recognition and Status) Act (‘the Act’). On 20th July 2009 Mr. Justice Awich determined that the 6 employees were dismissed for the purpose of thwarting unionization in direct contravention of the Act. He further held that the dismissals breached the employees’ constitutional rights and awarded damages of $70,000.00 to each of the 6 dismissed employees. Mayan King appealed the decision of Mr. Justice Awich to the Court of Appeal. The Court of Appeal partially upheld the decision of Mr. Justice Awich in that it considered there was sufficient evidence on which to conclude that the 6 employees were dismissed in contravention of the Act. However, the Court of Appeal determined that the employees’ constitutional rights were not breached and that Mr. Justice Awich therefore erred in awarding damages for breach of constitutional rights. The Court of Appeal instead awarded damages under the Act as it determined that the Act has created a new cause of action which empowers the Court to give relief that is ‘just and equitable’. The Court of Appeal therefore awarded the sum of $30,000.00 to each employee as compensation for injury to pride or

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feelings, in addition to compensation for loss of earnings for 1 year. The Court of Appeal decision appears contrary to long established principles of employment and contract law which provide that a person cannot be awarded damages for injury to feelings. Furthermore, there was no evidence as to the period of employment of each employee following dismissal. The Court of Appeal arbitrarily selected the period of 1 year for the assessment of damages. Mayan King has therefore instructed its attorneys, Courtenay Coye LLP, to appeal the decision to the Court of final appeal for Belize, the Caribbean Court of Justice (CCJ). In the March 2011 session of the Court of Appeal, Mayan King successfully obtained leave to appeal to the CCJ against the decision. While Mayan King’s appeal will only be the second substantive appeal to reach the CCJ from Belize, Courtenay Coye LLP has experience before the CCJ as it has represented other clients on interlocutory applications before the CCJ. The Court of Appeal decision appears contrary to long established principles of employment and contract law which provide that a person cannot be awarded damages for injury to feelings.


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Legislation In Focus

Highlights of the Labour (Amendment) Act The Labour (Amendment) Act will make significant changes to the law relating to the employer/employee relationship in Belize. While some of the changes are not as extensive as originally drafted, and are therefore unsatisfactory to the unions, they have still caused concern to employers who are already facing challenges in keeping their businesses afloat. Following are the main changes introduced, and the new sections of the Act in which they can be found: 1. The periods of notice required to terminate a contract of employment are as follows, except where the contract has more favourable provisions, where the contract is for a fixed period and expires, or where termination is either during a probationary period, or for good and sufficient cause: (i) Where the employment is for more than two weeks but not more than six months, the notice period is one week. (ii) Where the employment is for more than six months but not more than two years, the notice period is two weeks. (iii) Where the employment is for more than two years but not more than five years, the notice period is four weeks. (iv) Where the employment is for more than five years, the notice period is eight weeks. If notice is not given, the employer must pay the employee for the equivalent period in lieu of notice, while if the employee fails to give notice, he should give the employer a sum equal to half the wages payable in respect of the period of notice. (Section 37). 2. An employer may dismiss an employee without notice or severance payment, where the employee commits an act of gross misconduct directly related to the employment relationship, such that it is unreasonable to expect the employer to continue the relationship. The employee may also terminate without notice, or with less than the prescribed notice, where the employer’s conduct makes it unreasonable to expect the employee to continue the employment relationship. (Section 43).

An employer may dismiss an employee without notice or severance payment, where the employee commits an act of gross misconduct directly related to the employment relationship...

3. Unfair dismissal is defined as dismissal in circumstances including the following: • union membership, participation in union or industrial activities, seeking office as or acting as a worker’s representative; • race, colour, sex, marital status, religion, nationality; • political opinion where this does not interfere with work performance; • age, disability, physical structure; • pregnancy, or absence due to pregnancy; • Sexual harassment; • HIV status; • absence due to illness or injury not due to the worker’s negligence. (Temporary absence may extend up to 12 months except in the case of employees employed for a specific task or period, or who are employed on a probationary or casual basis). • where the employer’s conduct makes it unreasonable to expect the employee to continue the employment relationship. (Section 42). 4. The Act also makes special provision for the procedure to be adopted by an employer where the employer terminates the employee for redundancy. i.e where termination is a result of inter alia, modernization, automation, discontinuance, sale, or reorganization of a business, impracticability of carrying on business, reduced operations, or any other prescribed reason. In such cases, prior to termination the employer is required, to inform any trade union, workers representative and the Labour Commissioner, of the circumstances, persons likely to be affected, time period involved, list of claims for benefits, and any other relevant matter, no later than one month from the date of existence of the relevant circumstances leading to the redundancy, and consult with the persons named above, as to possible measures to avert, minimize or mitigate such events or their effect, as well as plans to settle the claims of employees. The Minister responsible for Labour may also require the employer to provide financial security to satisfy existing claims by employees. (Section 45). 5. The amendment to the Labour Act clarifies the sums payable for work done on public holidays as follows: the employee is be entitled to one and a half times his ordinary pay for work done on public holidays other than Christmas Day, Good Friday and Easter Monday, which fall on a scheduled work day. For work done on Christmas Day, Cont’d. on page 13

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Good Friday and Easter Monday, which fall on a scheduled work day, the employee is entitled to receive double his ordinary pay. (Section 117(3) and (4) ) 6. Every employer must provide clean drinking water and appropriate sanitary facilities at every work site, which must be maintained in proper working order. Noncompliance attracts a fine of up to $1000.00, but if the default continues more than two months, a daily fine of up to $50.00 may be imposed by the Labour Commissioner. 7. New provisions for severance payments are introduced as follows: (i) One week’s pay for every year of service, where an employee has been continuously employed for a period of five to ten years and his employment is terminated by the employer (except where termination is for good and sufficient cause), or the worker retires after reaching the age of 60 years or on medical grounds. (ii) Two weeks’ pay for every year of service, where an employee has been continuously employed for over ten years and either (a) his employment is terminated by the employer for reasons not amounting to dismissal, or (b)

where the employee has abandoned his employment for good and sufficient cause, or (c) where the defined period of employment has expired and the contract does not provide for or makes less favourable provision for severance pay, or (d) where the employee has retired on reaching the age of 60 years or on medical grounds, or (e) the employee resigns. However, where an employee has been continuously employed for over ten years as above, only one week’s pay is payable for the period served prior to the amendment of the Act, and two weeks’ pay is payable for the period served after the amendment. (Section 183). 8. The Act establishes a Labour Complaints Tribunal to provide an impartial appeal process from complaints of unfair dismissal or wrongful termination. The Tribunal has the power to order reinstatement of the employee as well as compensation and other remedies. The Tribunal will consist of an Attorney at Law nominated by the Chief Justice, a representative of workers nominated by the National Trade Union Congress of Belize, one representative from each of the Belize Chamber of Commerce, the Minister responsible for Labour, and the Commissioner of Labour (ex officio, without a right to vote).

Belize Income and Business Tax (Amendment (No. 2) Act, 2010 The Income and Business Tax (Amendment (No.2) Act, 2010 was assented to by the Governor General on the 30th of December, 2010 resulting in two fairly significant amendments to the Income and Business Tax Act as it relates to income tax. The first amendment provides further tax relief to employed persons earning not more than $29,000.00 per year. In sum, the Act creates four brackets for ascertaining the chargeable income of an employed individual who is resident in Belize, as follows: (i) Where total employment income does not exceed $26,000 – $25,600 is deductable. (ii) Where total employment income exceeds $26,000 but not $27,000 – $24,600 is deductable. (iii) Where total employment income exceeds $27,000 but not $29,000 – $22,600 is deductable. (iv) Where total employment income exceeds $29,000 – $19,600 is deductable.

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Using bracket one above as an example, if a person earns exactly $26,000 per annum, then only $400 of that income is taxable. This amendment is retroactive and was made effective from January 1, 2010 and replaces the amendment made in early 2010. The second amendment relates to section 108(1) of the principal act which sets forth the income which is exempt from tax. The amendment has included among those exemptions from tax “dividends paid to their shareholders by entities licensed to provide telecommunication services that offer real time voice services”. This amendment came into effect on the 1st day of January, 2011. Land Tax Partial Remission of Arrears Act 2010 Update In the last issue of LEX focus, we noted the passing of the Land Tax Partial Remission of Arrears Bill 2010 in August of 2010. The final Act was gazetted on the 27th of November, 2010 and provided for the forgiveness of twenty-five (25%) of outstanding property taxes plus all interest and penalties thereon during the amnesty period. The six (6) month amnesty period began on the 15th day of November, 2010 and ends on May 15th, 2011


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General

REGULATING PUBLIC UTILITIES IN BELIZE Overview In the 1980s and 1990s, Belize like many other countries privatized its state-owned utilities. The underlying rationale varied from seeking to stem losses caused by these ailing state enterprises, to selling the state assets for much needed government income, as well as a shift in the zeitgeist prevailing internationally. Regardless of the rationale, the delivery of improved and reliable utility services at affordable prices, to more consumers was always the overall objective. In Belize, the process started with the telephone monopoly, then the electricity monopoly and finally the water company. The results have been mixed. The privatization of the telecommunications company into what is today Belize Telemedia Limited, has achieved significant improvements in services to consumers as well as dramatic reductions in the cost of services. Telemedia remains an extremely profitable company. The telecommunications industry has also seen, in the past half-decade or so, competition in the mobile phone sector. Speednet Communications Limited, trading as Smart, has gained a significant share of this market and the competition with Telemedia is robust. In the electricity sub-sector the Belize Electricity Limited is the main player, and is owned primarily by Fortis Inc. of Canada. It continues to be the sole distributer and supplier of electricity to consumers in Belize. There are several companies that generate electricity and which sell the power to BEL for supply and distribution to the Public. Belize remains dependent on some supply from Mexico, especially during some peak periods. The Government privatized Belize Water Services Limited the water company in 2001 in a sale to Cascal, a British and Dutch owned company. However, in 2005 Government re-acquired the company and continues to own it today. There is no other service provider in the water sub-sector except for a Cayman-based company that sells water to BWSL in San Pedro, Ambergris Caye. Regulatory Framework Initially, the privatized utilities were regulated directly by the Government. Rates and standards, investments and returns on investment were negotiated directly with ministers and government officials. There was no legally sanctioned process for seeking approvals, which were given on an ad hoc basis depending on the needs of the entity

and the government at particular times. The Government ostensibly protected the interests of consumers. In each utility, privatization was gradual with Government maintaining an equity stake and significant influence on the boards of directors. Additionally, Government held the socalled ‘special’ or ‘golden’ share, which had attached to it certain rights including veto power over certain decisions. A fundamental change to the regulatory environment was introduced with the advent of the Public Utilities Commission in 1999. The PUC then became the regulator of utility companies in each sub-sector. The power of the Minister to directly set rates and service standards was transferred to the PUC. The PUC was led by Commissioners with an executive chairman all appointed by the Governor General on the advice of the Prime Minister after consultation with the Leader of the Opposition. The technical staff of the PUC managed the regulatory affairs of the sub-sectors. In discharging its main functions, the PUC seeks to foster competition, continuity of supply, the delivery of services to as many consumers as possible, lower rates, adequate returns to investors in order that they can meet their commitments and protect the environment. The PUC, with the approval of the Government, has power to promulgate regulations for rate setting and the setting of standards of service. In effect, these regulations set the regulatory framework for each industry. Recent Developments As the Government owns BWSL, there is very little activity in the water sector. BWSL recently sought a rate increase of 25 percent from the PUC and it was ultimately awarded an increase of some 12.1 percent. In each utility, privatization was gradual with Government maintaining an equity stake and significant influence on the boards of directors. Additionally, Government held the socalled ‘special’ or ‘golden’ share, which had attached to it certain rights including veto power over certain decisions. Cont’d. on page 15

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Rate setting in the electricity sub-sector is achieved through regular rate reviews by the PUC. BEL is obliged to go through a full tariff review proceeding every four years. By this process BEL forecasts its costs, its capital investment programme and its required rate of return; this is all reviewed by the PUC and electricity rates are set for the services to be delivered by BEL. Each year there is an annual review to measure the actual results against the performance that had been projected and adjustments are made if necessary. Over the years, the rate setting methodology has been changed four times. This has created serious differences between BEL, Government and the PUC. In the event, the rate setting proceedings have been subject of keenly contested litigation. In the most recent decision of the Supreme Court, ruled that “Good Regulatory Practice” as recognized and practiced worldwide does not apply to Belize under the rate setting methodology currently used by the PUC. This far-reaching decision is now on its way to the Court of Appeal. Courtenay Coye LLP has now been instructed by BEL to represent it in the Court of Appeal. In telecommunications, rates in the mobile sector are determined by competition between the two companies subject to approval by the PUC. In those sectors of the telecommunications industry where there is no competition, rates are set by the PUC. In late 2009 Telemedia interrupted the delivery of services to Speednet. This resulted in Speednet’s customers losing service and otherwise experiencing substandard service. Speednet was able to resume full services when the Supreme Court granted an injunction that obliged Telemedia to return services to the status quo ante. Speednet alleged that Telemedia’s actions

were in breach of its dominant position in the market. However, the Supreme Court has held that Telemedia was not acting in breach of its dominance as no proper market assessment had been done by the PUC to establish whether Telemedia is actually dominant in the market for mobile telecommunications services. The Supreme Court has called on the PUC to consider doing the required assessment. Another fallout from the Supreme Court decision is that all the agreements between Telemedia and Speednet need to be re-negotiated. This is to be achieved without any interruption in services. In the meantime, the PUC is in the process of designing and implementing new regulations for the telecommunications sector. There is a high level of instability in the regulatory environment in telecommunications and electricity. Because of the inability of the utilities and the PUC to reach agreements on fundamental matters, there continues to be appeals and court cases. It would appear that more litigation is to be expected going forward.

Justice Sosa is New President of Court of Appeal On January 3rd, 2011, Justice Manuel Sosa was sworn in as President of the Court of Appeal of Belize succeeding Elliott Mottley, whose resignation took effect at the end of December. Justice Sosa was sworn in by Governor General Colville Young and the event was witnessed by Attorney General, B.Q. Pitts at Belize House. Justice Sosa has been in the legal profession for 34 years. This has included time in private practice as well as various official capacities. The learned jurist was a Justice of the

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Supreme Court from 1993 to 1999, which included a brief stint as the Chief Justice of Belize in 1998, and has been on the Court of Appeal bench since 1999. The Corozal native, who is married and a father of three, is also a former Most Outstanding Law Student at the Norman Manley Law School in Jamaica; former President and Vice President of the Belize Bar Association and member of the Bar Committee and Association of General Legal Counsel, and was appointed Ordinary Commander of the Civil Division of the Order of the British Empire (CBE).


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General

New Justice of Appeal Justice Douglas L. Mendes is the new Justice of Appeal of the Court of Appeal of Belize. Born in Trinidad on June 8th, 1956, Justice Mendes attended the University of the West Indies Cave Hill graduating in 1981 and the Hugh Wooding Law School where he obtained his Legal Education Certificate in 1984. Having been called to the Trinidadian Bar in 1985 the learned jurist’s experience spans 26 years. During this time he has served in various capacities, from lecturer at the Cave Hill and St. Augustine campuses

of UWI to an acting Supreme Court Judge of Trinidad & Tobago in 1998. Mr. Mendes was elevated to the status of Senior Counsel in November of 2003 and has appeared before the Privy Council, the Caribbean Court of Justice as well as the Inter-American Court of Human Rights. The learned Justice is currently awaiting the award of a Master of International Human Rights law degree from the Oxford University. The June 2011 session of the Court of Appeal is expected to be the first time he sits as a member of the Court of Appeal.

Departure of Justice John Muria On December 22nd, 2010 a special sitting of the Supreme Court was convened at the chambers of the Acting Chief Justice where the judiciary of Belize and members of the legal profession bade farewell to Justice Sir John Muria. Justice Muria is originally from the Solomon Islands. His legal career spans thirtytwo years which, prior to Belize, included stints as Chief Justice of the Solomon Islands and then in Sierra Leone, West Africa, for three years, from December 2003 to November 2006, serving on the High Court, Court of Appeal and the Supreme Court.

The former Chief Justice of Solomon Islands was deployed to Belize under his duties as a Commonwealth Fund for Technical Co-operation (CFTC) expert with the goal of helping to reduce the backlog of civil cases and help tackle the ever-increasing volume of litigation faced by the Supreme Court in Belize. Having only been appointed to the Supreme Court bench of Belize in January 2007, it can be said that the learned Justice note only achieved this goal but in the process also presided over a number of high profile cases. One of the more notable cases was the extradition hearings of brothers Gary and Mark Seawell. Another significant one was one of his very last rulings, in which he upheld the validity of a multi-million dollar award given by the London Court of International Arbitration in favour of the British Caribbean Bank against the Government of Belize. Sir John and Mrs. Muria and their four daughters have moved on for him to take up another appointment as Chief Justice of Kiribati.

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LEXfocus April, 2011  

courtenay & coye law firm newsletter

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