The STC argued that the Betamax accord was aloof a way for the accompaniment to pay for Veekram Bhunjun’s (above) company’s acquirement of the oil tanker Red Eagle.
This anniversary saw hearings for Betamax’s address adjoin the Supreme Cloister accommodation to set abreast its adjudication accommodation at the SIAC. So how did a beginning politically-connected cartel to carriage petroleum to Mauritius end up actuality batty and what is it that is actuality absitively at the Privy Council?
How Betamax got the contract
The Betamax story, like so abounding others, began with a faculty of confused nationalism. In March 2006 the then-government headed by Navin Ramgoolam of the Labour Affair accustomed a council lath to attending into agency to added advance the Mauritius Aircraft Corporation Ltd (MSCL). On the agency it came up with was for the MCSL to get its own address to carriage petroleum imports for Mauritius. The afterward year, addition company, Maritime Logistics and Trade Consulting (MLTC) conducted a abstraction submitted on 25 May 2007 arguing that Mauritius accepting its own oil tanker would addition Mauritius’ aircraft activities, abate assurance on adopted aircraft firms for acute oil imports and would end up extenuative the government amid $12.6 actor and $13.5 million. On 23 October 2007, the clandestine area lobby, the Mauritius Chamber of Commerce and Industry (MCCI) beatific an email to its associates to arm-twist absorption in the government’s angle to get a 47,000 DWT Mauritian tanker to carriage oil from its supplier in Mangalore in India. One of the firms to acknowledge to the MCCI’s email was the Bhunjun Group, a 20-company amassed specializing in architecture and absolute acreage and whose CEO Veekram Bhunjun, is the brother-in-law of then-cabinet abbot Rajesh Jeetah. On 4 March 2008 the accessible basement admiral beatific the Bhunjun Group a address to clearly abode an announcement of absorption in the project, which it did on 28 March 2008.
What the Bhunjun Group proposed was this: one of its accessory companies Betonix Ltd – a ready-mix accurate aggregation – would authorize a collective adventure with a Singaporean close Executive Address Management Pte Ltd (ESM) to barrage a new aggregation alleged Betamax, in which Bhunjun’s Betonix would own 85 percent of the pale and ESM the actual 15%, to own and accomplish a tanker, the Red Eagle, which would be congenital by a shipyard in South Korea. In January 2009, the government’s Accompaniment Trading Corporation (STC), which imports Mauritius’ oil, agreed “in principle” to assurance the arrangement with Betamax, which was formally accustomed on 6 May 2009. That aforementioned day, addition set of manoeuvers was underway: On 28 April 2009 the Attorney-General’s Office warned the STC that aback the STC had not got the approval of the Central Accretion Lath (that allocates aloft accessible contracts) afore accordant to assurance the Betamax deal, it its view, “unless the approval of the Central accretion Lath is obtained, the STC will be precluded from signing the contract”. On the aforementioned day that Betamax was established, the STC’s lath abandoned the acknowledged admonishing and artlessly accustomed the deal. To accommodate added acceptance to the deal, the accounting close BDO in July 2009 came up with its own address advertence that the ante actuality proposed by Betamax were “more competitive” than those the government was actuality answerable by bales companies, Pratibha and ST Shipping, at the time. On 27 November 2009, the STC active a 15-year arrangement with Betamax.
The agreement and how Betamax absent the contract
What the STC is now arguing is that the accord that the Labour Affair government active with Betamax was too favorable to Bhunjun’s company. According to the agreement of the deal, the STC was apprenticed to pay Betamax for the abounding 100 percent of its bales capacity, behindhand of whether the barge was abounding or not. This was commodity that Betamax insisted on aback 7 April 2009. What the STC argued was that instead of affairs a 53,000 DWT tanker, the Red Eagle that Betamax bought was a 75,000 DWT tanker. Beyond accommodation agency beyond payments anniversary trip. Afore signing the arrangement in November 2009, the STC affirmed to accomplish these payments to Betamax. Addition action was that over the advance of the 15-year contract, the bulk paid to Betamax would escalate: by 1% for the aboriginal bristles years, 1.5% for the additional bristles years and 2% for the actual bristles years. What that meant was that although Betamax was paid $17.6 actor for its aboriginal year that bulk alone abound over time. Added altitude were that the STC would additionally pay for added costs such as anchorage and adjournment charges, demurrage fees and basement the bill for balance burden if added ships were needed. These altitude did not blooper the apprehension of the Singapore International Adjudication Centre (SIAC) which although it backed the amends of the Betamax deal, acclaimed nonetheless that “the attorneys accepts that the CoA was unusual, and added affiliated to a time allotment than a arrangement of affreightment”. Taken together, over the advance of the 15-year contract, Betamax looked to get $290 actor from the STC behindhand of bazaar bales ante during that time. By the time the Betamax accord came to an end, amid May 2011 and January 2015, Betamax had already been paid $125.2 million.
The new MSM-led government in 2015 capital to get rid of the Betamax contract. In a alternation of affairs with Bhunjun and his attorneys on 9, 14 and 22 January both abandon banned to aback down, arch the government on 30 January 2015 that it had dumped the Betamax deal. The government had additionally broke a Dubai-based law firm, Stephenson Harwood to go over the arrangement and acquisition a way to accord the government an out. According to then-Attorney General Ravi Yerrigadoo speaking in assembly on 19 June 2017, what the Harwood address begin was that, “STC had overpaid an bulk in the ambit of $45 actor to $53 million” for oil alien by Betamax as compared to it had gone through the market. This is the adverse of the acceptable accord that the BDO and the MLTC had ahead accustomed the Betamax accord to be. But although it criticized the agreement of the Betamax deal, the allegation of the Harwood address did not extend to auctioning the accord entirely.
The final breach was to appear on 4 February 2015. The attorneys for Betamax, Legis Consult, beatific a letter to the STC on 2 February adage that Betamax was due to captain aback to Mangalore to aces up addition addition of oil two canicule later. If it did not apprehend aback from the STC, the Red Eagle would abide as planned bold that the accord still stood. On 4 February 2015, the STC beatific a cannonball to Betamax announcement that it was “unable to account itself of your casework for the carriage of petroleum articles from New Mangalore any longer”. The abutting day, Betamax apprenticed for the STC to authority up its end of the arrangement which STC banned to do, bombastic its accommodation in addition letter on 23 February. On 7 April 2015, Betamax formally issued a acknowledged apprehension adage that it was absolute the arrangement because the STC was not accomplishing its end and on 15 May 2015 lodged a case at the SIAC.
What the SIAC decided
In effect, what Betamax wants the Privy Council to now do is put into aftereffect the deci- sion of Michael Pryles, the adjudicator at SIAC who on 5 June 2017 absitively to accolade Betamax Rs4.5 billion for the STC and government absolute Betamax’s contract. This was afterwards the accuse for cabal that the government had answerable Bhunjun, Anil Bachoo in affiliation with the Betamax accord were alone in 2016 for abridgement of evidence.
What both STC and Betamax agreed to at the SIAC was that the Betamax accord was not accustomed by the Central Accretion Lath (CPB). The aberration was what that meant in the ambience of the Betamax deal: what the STC argued was that aback the accord was not accustomed by the CPB as appropriate beneath the Accessible accretion Act 2006, it was an actionable arrangement that could not be enforced, that it was a cabal for the accompaniment to pay Betamax and that aback the government absitively to abolish the Betamax arrangement on 30 January 2015, the STC had no best but to accede as a amount of accessible action beneath commodity 1148 of the Code Civil of Mauritius. What Betamax argued was that the accord fell beneath a adjustment (GN No.68 of 2009) anesthetized in June 2009 (the aforementioned year that the arrangement was signed) that exempted the STC from accepting to canyon through the CPB for assertive types of aloft affairs and that accordingly the arrangement was accurate alike admitting it did not canyon through the procedures in the Accessible Accretion Act. The SIAC backed Betamax’s adaptation of the case and awarded Betamax the damages.
What the Supreme Cloister Decided
Shorn of all its acknowledged verbiage, the base of the Supreme Court’s accommodation to set abreast the SIAC’s accommodation on 31 May 2019 is absolutely almost simple. And this is what is at the anatomy of Betamax’s address at the Privy Council to alter the Supreme Cloister accommodation as well.
Unlike what the SIAC had found, the Supreme Cloister accomplished the adverse conclusion: that the 2009 regulations did not absolved the STC from accepting to get the Betamax arrangement accustomed by the CPB. The 2009 regulations additionally independent a area 2A which declared that, “Nothing in these regulations shall be construed as excluding the appliance of the Act to a accessible anatomy referred to in the Aboriginal Agenda to these regulations and the Agenda to the Act in account of a accretion arrangement to which the accessible anatomy intends to be a affair and which is authentic in cavalcade 2 of the Agenda to the Act.” What the agenda of the Accessible Accretion Act states is that the STC as a accessible anatomy has to canyon through the CPB as laid bottomward in the Accessible Accretion Act for affairs aloft Rs100 actor for ‘goods’.
And how are ‘goods’ authentic in the Accessible Accretion Act? “Every affectionate and description including commodities, raw materials, bogus articles and equipment, automated plant, altar in solid, aqueous or aerial form, electricity, as able-bodied as casework accidental to the accumulation of the appurtenances such as bales and insurance”. Aback the arrangement with Betamax was about a arrangement for freight, alteration oil from suppliers in India to Mauritius, it able as a arrangement for “goods” aloft Rs100 actor and accordingly had to canyon through the CPB. That the STC was not afar from this claim is what area 2 A of the 2009 regulations themselves said. Therefore, aback the arrangement did not canyon through the CPB, as the Accessible Accretion Act requires, the Betamax arrangement itself, the cloister ruled, was fundamentally illegal. And therefore, area 39 the Mauritius International Adjudication Act 2008 accustomed the cloister to set abreast the SIAC’s decision.
Ultimately, whether or not the regulations absolutely exempted the STC from accepting to canyon through the CPB afore giving the arrangement to Betamax aback in 2009 is what is the meat of the amount at the case currently underway at the Privy Council. This is the axiological catechism that London will accept adjudge in one of the better claims for amercement adjoin the Mauritian accompaniment in its history.
Key Dates in Betamax Affair
MARCH 2006: Government sets up council lath to advance Mauritian shipping.
MARCH 2007: Maritime Logistics and Trade Consulting recommends Mauritius accepting its own oil tanker to save money on oil aircraft costs.
OCTOBER 2007: MCCI sends out email to its associates to arm-twist absorption of Mauritian companies to buy their own oil tanker.
4 MARCH 2008: Admiral of Accessible Basement sends address to Bhunjun Group, headed by Veekram Bhunjun brother-in-law of then-minister Rajesh Jeetah to abide an announcement of interest.
28 MARCH 2008: Bhunjun Group lodges announcement of absorption in the project.
JANUARY 2009: Accompaniment Trading Corporation agrees “in principle” to assurance arrangement with Bhunjun Group.
28 APRIL 2009: Attorney-General’s Office warns STC not to assurance arrangement afterwards approval of Central Accretion Board.
6 MAY 2009: Bhunjun Group clearly establishes Betamax as a collective adventure with Singaporean firm. On the aforementioned day, lath of STC approves Betamax’s proposal.
JUNE 2009: Government passes adjustment GN.68 that exempts STC from Accessible Accretion laws for assertive types of contracts.
27 NOVEMBER 2009: STC signs 15-year arrangement with Betamax.
JANUARY 2015: New government starts talks with Betamax and Veekram Bhunjun to analysis Betamax contract.
30 JANUARY 2015: Cabinet announces its auctioning Betamax deal.
23 FEBRUARY 2015: STC informs Betamax its auctioning the deal.
7 APRIL 2015: Betamax issues acknowledged apprehension adage it’s absolute the arrangement due to non-performance by STC.
15 MAY 2015: Betamax lodges case at the Singapore International Adjudication Centre.
NOVEMBER 2016: Accompaniment prosecutor drops accuse of cabal in Betamax accord adjoin Veekram Bhunjun and Anil Bachoo for abridgement of evidence.
5 JUNE 2017: SIAC awards Betamax Rs4.5 billion in damages.
31 MAY 2019: Supreme Cloister rules Betamax arrangement ‘illegal’ and sets abreast SIAC award.
JANUARY 2021: Hearings at Privy Council afterwards Betamax appeals Supreme Cloister decision.
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