Govt. to pay road contractor $176M - as appeal Court upholds arbitration award

Govt. to pay road contractor $176M – as appeal Court upholds arbitration award

Mar 07, 2024 Court Stories, Features / Columnists, News

Kaieteur News – The Guyana Court of Appeal has upheld the appeal by Azad Mirza of Falcon Transportation and Construction Services against the Attorney General of Guyana.

The Court of Appeal set aside the judgment of Justice Navindra Singh and ordered that the Arbitration Award made on the 3^rd February, 2017 to Azad Mirza of $179,946,850 be enforced. The appeal arose out of a dispute by the Ministry of Agriculture and Azad Mirza in respect to the Canals Polder Control Structures and Access Roads. This is according to a press release from attorney for Mirza Senior Counsel K.A. Juman-Yassin. The lawyer explained that before the arbitration was completed, one of the three members of the tribunal resigned, which saw the other two members proceeding with the process and awarding Mirza more than $176,000,000.

According to the release, an application was subsequently made to the High Court for the arbitration award to be enforced but Justice Franklyn Holder had ruled at the time that the arbitration tribunal was not properly constituted. Justice Holder had held that after the resignation of one of the arbitrators, the tribunal was “wrong” to have proceeded with only the remaining two members.

The release said that as result, Mirza then proceeded to have another arbitration tribunal appointed but his efforts to have the Ministry of Agriculture appoint its arbitrator was unsuccessful. The release detailed that as a result of this, Mirza made an application to the High Court in 2016 for the appointment of an arbitration tribunal. Azad Mirza informed the Court that his appointee to the arbitration panel was Edward Gonsalves who had served on the first arbitration tribunal.

According to the release, the Attorney General was represented by Counsel and there was no objection to the appointment of Edward Gonsalves as a member of the arbitration tribunal.

It explained that the Ministry of Agriculture subsequently selected George Howard as their representative on the panel.

However a short time after, George Howard declined the appointment as he indicated that there may be a conflict of interest as he was to be employed by the Government. The Ministry of Agriculture was given time to appoint another person but failed to do so. As a consequence Justice Persaud appointed Leon Rutherford and both Edward Gonsalves and Leon Rutherford appointed Maurice Veecock to be the third arbitrator. The new arbitration panel met and after several meetings but without any input from the Ministry of Agriculture, despite several requests being made for their attendance and defense, an award in the sum of $179,946,850 was made on the 3^rd February, 2017 in favor of Azad Mirza.

No payment was made by the Ministry of Agriculture which resulted in an application to the High Court being filed for an order that the award made be enforced. The matter came up before then Justice Rishi Persaud but before he could conclude it, he was elevated to the Court of Appeal.

The matter was then heard by Justice Navindra Singh who dismissed the application on the following grounds – that the application was illogical and ill-advised, there was no application to the Court for the appointment of a new arbitration panel.

Singh noted that there was no evidence on the record that the parties had consented in any manner or form to designate the Court to be the Appointing Authority and that the Ministry of Agriculture nor the Attorney General had participated in the process in the appointment of the new tribunal and there was no Order of Court specifically appointing Edward Gonsalves.

Juman-Yassin S.C in his presentation to the Court of Appeal which was constituted by Justice Cummings-Edwards – Chancellor (ag), Madam Justice of Appeal Dawn Gregory and Justice Sandra Kurtzious submitted that – inter alia the appointment of the Arbitration Tribunal by the then Justice Rishi Persaud was proper and was done with the knowledge of the Ministry of Agriculture as they participated and had selected George Howard as their choice of arbitrator, there was no objection to the appointment by the Court of Edward Gonsalves and there was in fact an Order of Court with respect to the appointment of Edward Gonsalves that the Ministry of Agriculture/Respondent was stopped from pleading that Edward Gonsalves was bias because he had been a member of the first arbitration.