Shawn Moree, centre, counsel for China Construction America Bahamas Ltd, and Brian Simms, top left, counsel for China Export Import Bank at the Supreme Court. Photo: Tim Clarke/Tribune Staff
By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
A JUDGE yesterday said he required two days to give an oral decision on Baha Mar CEO Sarkis Izmirlian’s motion to uphold, in The Bahamas, the developer’s ongoing Chapter 11 bankruptcy proceedings in the United States.
Justice Ian Winder’s adjournment of the matter to Wednesday followed six hours of legal exchanges between the attorneys for the major stakeholders in the $3.5 billion resort development.
Roy Sweeting, Baha Mar’s lawyer, spent nearly three hours alone trying to convince Justice Winder that The Bahamas is a common law jurisdiction with the power to recognise foreign insolvency proceedings.
Queen’s Counsels Damian Gomez and Brian Simms, respective lawyers for the Crown and the resort’s financier – the Export-Import Bank of China – begged to differ and asked the judge to dismiss Baha Mar’s application immediately.
The call for a dismissal from Mr Simms and Mr Gomez was supported by lawyers Sean Moree and Lester Mortimer, QC, who represented general contractor China Construction America (CCA) Bahamas Ltd and Cable Bahamas Ltd, respectively.
Cable Bahamas is one of Baha Mar’s creditors.
Mr Sweeting began the 10am hearing by saying that the talks between the major parties, “despite all that has been said publicly, those negotiations continued and still continues”.
“And in the last two days, showed signs of bearing fruit,” Mr Sweeting said, referring to negotiations in China with the developer and its lender.
Mr Sweeting added: “(The) Baha Mar development, we are told, is one of, if not the largest developments in the region and represents the largest ever foreign direct investment in The Bahamas.”
“I think everybody understands the importance of what’s at stake here,” Mr Sweeting stressed.
The resort’s attorney said despite more than 10 years of obstacles that were overcome, the resort has reached the stage where, because of multiple delayed openings, the halt of work by CCA, a large payroll for more than 2,000 employees, and no resolution to mediated talks between the developer and contractor, “they (Baha Mar) considered what options they had.”
He noted that his client owed money to a large number of unsecured creditors and with no completion date in sight for the resort, “the best option appeared to them was the Chapter 11 bankruptcy in the state of Delaware.”
“They couldn’t sit on their hands and wait for the creditors to act,” Mr Sweeting submitted to the court.
He argued that Chapter 11 proceedings were not as unique as they were being made out to be and presented affidavits explaining, in detail, how it worked.
The lawyer said the Chapter 11 route was the best option for all involved to get the resort up and running and also make the necessary arrangements for restructuring of finances as needed.
“The creditors are not shut out of the cold and forced to accept whatever the developer comes up with,” Mr Sweeting said.
“What’s the connection of the 14 companies to the state of Delaware?” Justice Winder asked the lawyer.
Mr Sweeting said there were a number of booking and purchasing offices of the affiliated companies based in the US, but none in Delaware.
He added that the important point was that “the directors of those companies had the absolute right to submit themselves to the jurisdiction of that court.”
Mr Sweeting also dismissed thoughts that hearing the matter in the US court would “compromise the sovereignty of the Bahamas.”
He noted that an amendment to the notice of originating notice supports his submissions, as it had, using Justice Winder’s words, elevated the government to the status of a creditor because “we agree that government has a vested interest.”
The dispute may arise over how much is owed, he added.
Mr Sweeting, to support the application, highlighted that countries around the world have recognised “modified universalism” in the past century.
It is a legal concept relating to the general principle that in relation to corporate insolvency, national courts should strive to administer the estate of insolvent companies in the spirit of international comity.
Mr Sweeting argued that notwithstanding the existence of the Companies Act, “the statute doesn’t abolish common law jurisdiction.”
The Chapter 11 route, he continued, “was, in my client’s view, which I say is a reasonable one, the best of a bad range of options that was available to him.”
The Baha Mar attorney referred to the London-based Privy Council cases of Cambridge Gas Transport Corporation (2006), Ruben v Eurofinance (2013) and Singularis Holdings Ltd (2014) as further support to the application.
Rebuttal
However, Mr Simms countered that the cases cited by Baha Mar’s counsel did not support the application in the explicit ways he claimed as they referred to foreign companies undergoing insolvency.
Mr Simms placed specific emphasis on Baha Mar’s originating motion, which is where the resort, he said, “started off on the wrong foot.”
“The right foot would’ve been to determine where is the right jurisdiction to hear the matter,” Mr Simms said, adding that he would “skip the history” of what happened with Baha Mar.
He pointed out to the judge that Northshore Mainland Services Inc, the foreign representative for all of the companies that filed for bankruptcy protection in Delaware, was not a representative in any capacity concerning the proceedings.
He stressed that this was important because “all of the Baha Mar companies are not foreign representatives to themselves” and because Baha Mar is applying for recognition of the US court’s order on the basis of common law jurisdiction, “a foreign representative would have to apply to obtain recognition.”
The lawyer said that Baha Mar’s application was not asking the court to exercise its jurisdiction, but in fact asking the court to apply US law here when the Bahamas’ own laws concerning insolvency clearly stipulate that this could not be the case.
He dubbed the application and Chapter 11 proceedings “as a bar on China EXIM taking any steps to enforce its security.”
He noted that the Bahamas’ insolvency provisions were “the reason why people come here to do business and lend money here.”
Mr Simms said Baha Mar’s arguments cannot stand on a legal basis for the very reason that it is “unprecedented, novel and misconceived.”
He submitted to Justice Winder: “You should dismiss the application and provide reasons at a later date.”
An early decision, he said, would assist the public, the parties, and even the Delaware Court in having “certainty as to what the legal rights are in this case.”
Mr Simms’ submissions were accepted by Mr Gomez, who argued that there would be major ramifications if a government had to collect taxes owed to it from a foreign court.
Mr Simms, Mr Mortimer and Mr Moree, made a motion for the judge to dismiss Baha Mar’s application.
Justice Winder said he would take an adjournment until July 22 at 10am when he would give an oral decision.
The written ruling would follow at a date to be announced.
Comments
Well_mudda_take_sic 8 years, 10 months ago
Our government never told Baha Mar and Sarkis Irzmirlian at the inception of the project, nor at any time before Baha Mar's Chapter 11 bankruptcy protection filing in Delaware and legal actions filed in the High Court in the UK, that Baha Mar would not be able to avail itself of laws in jurisdictions other than the Bahamas as a means of remedying major disputes that might arise during the development. If the agreements signed by Baha Mar with the Bahamian government and the Chinese enterprises concerned do not limit Baha Mar to seeking legal redress in the Bahamian courts for the claims relating to its grievances and its financial/liquidity needs attributable to those grievances, then the Christie-led PLP government is patently wrong in its application that Baha Mar be placed in liquidation by the Bahamian courts. Absent a limiting contractual undertaking, choosing the best jurisdiction for legal proceedings that must be initiated is a fundamental right of any private sector enterprise like Baha Mar. For the Bahamian government to now suggest, at this late stage of the development, that the project is a de facto public sector enterprise by virtue of being too large too fail, and therefore all legal proceedings relating to it must be brought before the Bahamian courts, is patently wrong and most harmful to the developer. As for the large sums currently owing by Baha Mar to the Bahamian government, the mere fact that the Bahamian government allowed these sums to become so large is prima facie evidence that the government was only too willing to extend significant sums of credit to Baha Mar to help out with the project's liquidity needs. In fact, it is generally well known that the Bahamian government has a well established history (rightly or wrongly) of extending very large amounts of credit to foreign developers. It is therefore a great travesty for the the Christie-led PLP government to now turn around and attempt in a most unjust way to pull the rug out from under Baha Mar. The behaviour of the Christie-led PLP government in this matter wreaks of vindictiveness and malicious intent, deviously masked by the pretense of concern for the sovereignty of the Bahamas. We can only hope that the impending ruling of Justice Winder will be seen as a most important step towards restoring the faith of the Bahamian people and the global community in the independence of our judicial system. We have a Constitution that expressly does not permit the "nationalisation" of privately owned assets by any means!
EnoughIsEnough 8 years, 10 months ago
well said....
Well_mudda_take_sic 8 years, 10 months ago
Hopefully Justice Winder knows only too well how receivership matters and liquidations drag on for many years in our Supreme Court because of the incompetency and/or shenanigans of the very highly paid Bahamian accountants and lawyers who, more often than not, are unable to set aside their enormous egos in order to best serve the interests of their clients as opposed to themselves. The Delaware Bankruptcy Court not only has great expertise and resources to handle large complex and important matters like the Baha Mar debacle, but also has a well-established track record for acting expeditiously. All of this is absolutely critical to the timely completion and ultimate financial success of the project at this critical and most time-sensitive juncture.
Well_mudda_take_sic 8 years, 10 months ago
The following is posted word for word on a U.S. Department of State website: "Article 27 of the Bahamian Constitution prohibits deprivation of property without prompt and adequate compensation. There is no evidence that the Government has ever expropriated a business, and both major political parties have stated that nationalization will not be an instrument of Government policy." However it now seems quite clear that Christie, Maynard-Gibson, Gomez et al. are precipitously (and possibly maliciously) seeking to nationalize the properties under development by Baha Mar, which by public admission of Christie himself is a project 97-98% complete at an out-of-pocket equity cost to the principle developer of about US$900 million. The likely malicious intent of the Christie-led PLP government is probably evidenced by the very fact that they will be relying on the principal Chinese stakeholders in the project to provide them (the Bahamian government) with the financial wherewithal necessary to provide the principle developer (Sarkis Izmirlian and his family) with prompt and adequate compensation as required by Article 27 of our Constitution. In other words, the Christie-led PLP government, in making an application to the Supreme Court of The Bahamas for the liquidation of Baha Mar, is aiding and abetting the Chinese stakeholders in their efforts to acquire full ownership and control of the Baha Mar project at a bargain basement price taken out of the hide of the Izmirlian family. A truly disgusting abuse of due legal process!
Reality_Check 8 years, 10 months ago
None other than our State Minister for Legal Affairs, Damian Gomez aka the Minion, states to the Tribune: "We're moving forward to secure a liquidator,....once that's done it's in his {Sarkis Izmirlian} interest to strike a deal as soon as possible otherwise creditors will take over and the restructuring will not be to his liking." This is tantamount to a public admission that by filing an application for the liquidation of Baha Mar, the Christie-led PLP government is seeking to force Baha Mar and the Izmirlian family to accept whatever unfair terms are put to them by both the Chinese general contractor (CCA) and the Chinese Export Import Bank. In a liquidation supervised by the Supreme Court of The Bahamas, the shots are called by the largest admitted creditors which would be the two aforementioned Chinese stakeholders. In other words, notwithstanding the appointment of one or more "neutral" liquidators acceptable to the largest creditors, the Chinese stakeholders would be, for all intents and purposes, firmly in the driving seat of the entire liquidation process. This seems to be precisely what the Christie-led PLP government wants to happen notwithstanding that Baha Mar (and the Izmirlian family through Baha Mar) have already found it necessary to seek Chapter 11 bankruptcy protection in Delaware as a result of the severity of its grievances with the Chinese stakeholders, which grievances are the subject of very weighty legal claims that have already been asserted and are now before the High Court in the U.K. By all appearances, our Christie-led PLP government is wrongfully in bed with the Chinese stakeholders to unjustly wrest control and possession of the Baha Mar project away from the rightful principle developer of the project (Sarkis Izmirlian). It would be a travesty of monumental proportion for the Bahamas and the Bahamian people if the Delaware court (judge) permitted the Christie-led PLP government to effectively nationalize the Baha Mar property for the benefit of the Chinese stakeholders by abuse of due process. The Christie-led PLP government is notorious for its willingness to wrongfully "lean" on matters before our Supreme Court in an effort to affect a desired outcome.
John 8 years, 10 months ago
Is someone receiving more money under the table? Had the Bah Mar deal not gone sour Bahamians would have never known how much of their country was given away to the Bah Mar group. Now it seems like this same government is favoring one set of the partners at the expense of the other. Don't ever think the "drop everything else and deal with Bah Mar" stance of the government is just about saving/creating jobs. They gat more than one horse in this race!
Reality_Check 8 years, 10 months ago
This comment was removed by the site staff for violation of the usage agreement.
Economist 8 years, 10 months ago
Once you put a company into liquidation there is no turning back....it gets wound-up....end of story so how can Gomez suggest the that is when Izmirlian should strike a deal?
TalRussell 8 years, 10 months ago
May I suggest both Comrade legal minds Shawn and Brian, should be on solid legal grounds considering' "the United States is not a party to any international agreements or treaties concerning enforcement or recognition of foreign judgments.' Nor does the United States have any federal statutes governing the enforcement or recognition of judgments rendered in the courts of foreign nations. Traditionally, foreign judgments have been enforced or recognized on the basis of international comity under common law standards! These standards are generally governed by the laws of the state in which enforcement or recognition is sought." This being the case, like a US state, we courts will decide what gets recognized or enforced in Bahamaland. Besides, Baha Mar buildings just happen to sit on lands, belonging to we the people, not the people of the good state of Delaware.
Now that we know the US government have always left court matters to the state, we can dismiss all the foolish arguments, that somehow "our" own government are pissing off the USA government, by its handling of Izmirlian. Even Papa Huber to his credit in his letters to the Chinese, never blamed Baha Mar's problems PM Christie.
asiseeit 8 years, 10 months ago
No matter what government says, this most certainly is going to be seen as the government of The Bahamas siding with the Chinese and stealing a private business from it's principle. Who in the hell would invest in a country where that can happen to your investment? These guys are playing a very dangerous game and The Bahamas as a whole stands to lose much more than just Bah Mar. Get this straight in your heads, they get rid of Izzy, they sink the nation. Cuba must be very happy just about now.
Sickened 8 years, 10 months ago
This is modern day piracy being done by our leaders. If the PLP can't solve the country's debt issues then they will just steal the biggest asset in The Bahamas and sell it off. I just hope that most of the revenue from the eventual sale of Baha Mar ends up in our consolidated fund and not in the hands of our MP's.
I imagine if this theft is delayed by the courts then our Government will start confiscating cruise ships and private islands and then sell them off. From piracy to wrecking then blockade running to rum running then drug running to private enterprise theft. What our little country will do to stay afloat.
Reality_Check 8 years, 10 months ago
Re-post from another article: The Bahamas also enjoys reciprocating laws with other jurisdictions like the U.S. that require it to recognize the laws of those other jurisdictions. For all of the huff, puff and fluff by the many grossly overpaid lawyers who appeared before Justice Winder yesterday, the main legal issue is really a narrow one which should not take the Judge very long to rule on. There is no good reason (in fact, only many very bad reasons) for the Delaware Court not be fully recognized by the Supreme Court of The Bahamas in this matter.
Reality_Check 8 years, 10 months ago
Damian Gomez should be devoting his time to much more important matters such as the whereabouts of the missing court files relating to his major drug dealer client whom U.S. Federal authorities have been seeking for years now to have extradited to the U.S.
MonkeeDoo 8 years, 10 months ago
Where does "Christie-led PLP Government" come into this. Every single one of those yellow bellied sap-sucking PLP's are responsible for what is happening in this matter, and all should fall together. Simply changing Christie won't change a damned thing. They are all bloody crooks and thieves !
TalRussell 8 years, 10 months ago
“DOCK” at Western Nassau Paradise, Set alongside 1,000 acres along 3,000 feet of Cable Beach Generates calls for Audit behind “Stunning Extravagances….” May reveal, what lead Delaware Bankruptcy Filing?
Comrades I'm willing bet but a few of you have seen this "dock." According to Izmirlian, Baha Mar is 98% away from completion to officially open, or even if we go with PM Christie's claim that it's 97% complete, may I suggest if they hadn't built the 3.5 billion resorts projects under what many taxpayers have good reason to see as projects being built under the influence of extravagance, they could have already had an ‘soft” official opening to start generating much needed revenues. Take a look at the massiveness of the dock, cuz it makes absolutely no sense Izmirilan, should ever had to go running back begging for another 15 million dollars equity investment on the same day, just hours before he filed for Chapter 11 Bankruptcy, when it could be argued the developer may have easily had the funds to complete the 3 or 4% remaining unfinished, had he cut back on the extravagance sunk into building that damn dock? If they built this dock the way they wastefully and unnecessarily did, how many more extravagances of treasures of wasted monies, are there, yet to be discovered? As importantly, how in the hell did any developer, ever get permission to extend this dock, far out into the "people's ocean?" And you thinks Nygard Cay, been getting away doing extensions over sea waters?
Comrades have you noticed, how the dock, curves directly towards the Hilton British Colonial Hotel? What prevents this massive dock from being extended, all the way to the Hilton British Colonial Hotel, then along the Bay Street "Redevelopment" Waterfront. and ending up resting under the Sir Sidney Bridge? Comrades, I keep telling you, this stuff cannot be made-up, it for real.
Are you not as curious as hell, if this extravagance was one of the 1300 design changes indulgences requested to allow for the construction of what may just turn out to be the longest damn dock in the history of man-made docks? There is still lots to learn about how Izmirlian ran Baha Mar? Llke plenty things.
Discover Baha Mar's long-ass "dock" that would make the Sir Sidney Poitier Paradise Island Bridge, look like a midget in comparison.
...........https://www.youtube.com/watch?v=XalNM...">https://www.youtube.com/watch?v=XalNM...
by TalRussell
newcitizen 8 years, 10 months ago
Mr Simms - He noted that the Bahamas’ insolvency provisions were “the reason why people come here to do business and lend money here.”
No company has ever come to set up shop here based on the Bahamas antiquated insolvency provisions. It affords little to no protection to the company or the creditors. What an asinine statement.
MonkeeDoo 8 years, 10 months ago
newcitizen: What you expect ?
TalRussell 8 years, 10 months ago
Comrades, can a developer extend a dock, the length likes no other, blocking all water crafts and swimmers from forever crossing its barriers? What happen to our property ownership laws that states that; any and all water beyond the high water mark, is to be made available for the exclusive use of all citizens, residents and tourists, and not some developers paying or private guests? How did Izmirliin get permit build this dock?
Officials responsible for granting permits have a lot of explaining to do. We the people must see the documents and process under which this dock was approved and bult. Who signed the permits and what was their pay scales?
Comrades whatever you think about this PM, this is not just about raising another 200 or 600 million dollars for a 'promised" completion of the unfinished two or three percent but don't you agree that taxpayers, need know what else has been going on at Baha Mar, and who are the officials to be held accountable? Are taxpayers will to blindly allow thee resort projects to continue and not demand lots answers to some serious questions? Is that what the people of this nation have become? Yes Masters citizens?
Reality_Check 8 years, 10 months ago
Re-posted from another article: The debtor in possession restructuring under the Chapter 11 bankruptcy protection filing in Delaware would take much less time than liquidation proceedings in the Bahamas and during that time the creditors would be kept at bay; hence the word "protection". The developer would continue to have possession of and control over the project and all key aspects of its completion; accordingly, there would be no need for the appointment of a liquidator unfamiliar with the development. No such protection is allowed for in a liquidation under the insolvency laws of the Bahamas. Being the largest single creditor by far, the China Export Import Bank alone could easily force the complete winding up of Baha Mar in a liquidation supervised by the Supreme Court of The Bahamas. This would have the effect of unjustly destroying the equity value of the Izmirlian family's investment in the 97% complete Baha Mar project, currently estimated to be worth circa US$800-900 million. The argument that a foreign court cannot arrange for the dissolution and striking off of a company incorporated in the Bahamas is specious at best because any foreign court could make an application to the Bahamas Registrar of Companies for this to be done once all the requirements for doing so have been met.
a2z 8 years, 10 months ago
Seriously, Tribune. For God sake, dig DEEPLY! Tell us who among the politricians has financial interest in Baha Mar! We KNOW that's why they fighting so hard for it. Please, please, please!!! Bring them all to their knees!
a2z 8 years, 10 months ago
And is it just me, or has anyone else noticed that all three lawyers reppin the big players in this turmoil are melanin deficient? Just sayin. Where Wayne Munroe now? Oh, that's right, he does bat for the wicked side.
Well_mudda_take_sic 8 years, 10 months ago
The Judge has erred in as much as Baha Mar has never been technically insolvent under the insolvency laws of the Bahamas. As publicly admitted by the Christie-led PLP government, the concessions alone granted to the development have considerable value, upwards of the equivalent of US$1.2 billion. A consolidated statement of financial position of the Baha Mar development prepared on a fair value basis immediately prior to the Bahamian government's announcement that it would petition for the liquidation of the project, would undoubtedly show that total assets exceeded total liabilities, in which case Baha Mar was technically solvent notwithstanding its liquidity problems. Much of this net asset value was immediately destroyed though upon the liquidation announcement by our government; and most of the destroyed value related to the Izmirlian family's equity stake in the project which has, for all intents and purposes, been wrongfully nationalized. The definition of bankruptcy under a Title 11 filing in Delaware is not the same as the definition of insolvency under the laws of the Bahamas. Therein lies the injustice of the petition for liquidation filed our government.
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