UTICO threatens NIA with legal action

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Published on Monday, 03 December 2012 15:01

Written by Toni Frederick

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St. Kitts and Nevis (WINN):  The lawyer for the Nevis Island Administration handling a controversial financial services registry management agreement with the Lebanese company UTICO says he will be responding shortly to recent correspondence which threatens civil action against the NIA for, “refusal to perform its obligations to date.”  

“It is not surprising that documents turn up…in the expectation that they prove embarrassing,” said Senior Counsel Anthony Astaphan, who told WINN FM that he had been a file in relation to the UTICO matter, but had received it just before he left his home base in Dominica to appear before the court in other jurisdictions including St. Kitts and Nevis.

He said however, that the instructions from Nevis Premier Joseph Parry were very clear.

“And based on his instructions I will look at the documents when I get home and prepare an appropriate response,” he told WINN FM at the end of last week.

A letter from the New York-based law firm of Fulbright and Jaworski L.L.P. to the Premier Parry dated October 18, 2012 indicates that the company had been retained by United Trading and Investment Company agreement (UTICO) in relation to the NIA’s, “breach of an internationally recognized contractual obligation,” which it says is subject to adjudication in the State of New York.

According to the letter the NIA and UTICO adopted a Memorandum of Understanding in November of 2009, put in place a non-disclosure agreement in January of 2010 and executed a detailed Term Sheet in February of 2010.  It says that the terms corporate registry management were fully and formally memorialized in the detailed agreement which was duly executed by both parties and witnessed.  The correspondence indicates that the Premier executed it on behalf of the Nevis Island Administration.

The letter goes on to detail the steps taken by UTICO to meet its terms of the arrangement, which its lawyers say cost a significant amount of time and money, and including setting up offices in Nevis and hiring staff.

“We have reviewed correspondence in which you indicate to UTICO that there are certain political and/or public relations pressured impeding the NIA’s ability to perform its obligations under the agreement.  You further indicate that, as regards the Agreement, certain ordinances of Nevis would necessitate amendments to the Laws of Parliament.  While respectful of your opinion, such considerations should in no way impede way impede the execution of a valid and binding agreement…” the letter states.

The UTICO lawyers say that their client values its relationship with the NIA and would prefer to resolve the dispute amicably.  However they indicate that, if the NIA does not provide the requested assurances, “UTICO will be left with no choice but to pursue legal remedies, including without limitation, claims for specific performance and/or damages.”

It goes on to state that, “Such legal action, once made public, may well have a deleterious effect on existing and prospective clients of the registry.”

It requests a response from the Nevis Island Administration within ten days.  

Contacted for a comment, Nevis Premier Joseph Parry directed WINN FM to speak with Senior Counsel Mr. Astaphan on the matter.

Mr. Astaphan told WINN FM that to the best of his knowledge, there had been no further correspondence from Fulbright and Jaworksi.  He said a government must make decisions that are in the best interests of its country.

“There are many times when governments may or may not enter into legally enforceable agreements…But there is a general principle…that even though an executive may enter into a contract, if somewhere down the road if certain things become clear that that contract is not in public interest, I think generally the courts would reserve the rights of the government, the crown or the state…to be able to repudiate and take decisions that are intended to protect the public interest,” he said.

“The question would arise as to why, was that not clear before any form of agreement, the truth is that things do have a tendency of coming to light after the fact.”

Mr. Astaphan said the first order of business would be to decide whether or not the agreement was legally enforceable under what law.  

“In any event, even if that’s the position there is the paramount principle of constitutional law that says a state or crown ought not to be burdened with an agreement [that’s not] in the public interest, other than perhaps a commercial agreement..”

The Senior Counsel indicated that a government has an overriding obligation to review any contract to decide whether or not it’s in the public interest, in matters which will impact on the economy.

“Other governments in the OECS have had to take similar positions,” S.C. Astaphan said.

When the agreement came to the public’s attention two years ago, Premier Joseph Parry disclosed that UTICO was to upgrade and modernize the registry of the financial services sector of Nevis, spending some $US5 to $US10 million.  Under the agreement UTICO would receive a management fee comprising of 25 percent of all Government fees, 50 percent government fees in respect of certificates of good standing and 80 percent collected from a trust. 

The Premier asserted that UTICO did not own anything, was merely going to modernize the registry, set up possible sub-registries in China and India and possibly have a marketing relationship government in a bid to increase the number of companies in Nevis. 

The agreement was made public by the opposition Concerned Citizens Movement Party on Nevis, which released a 30-page document highlighting the details of the agreement and questioning the financial provisions of the agreement, the possible loss of oversight and control of the sector, loss of reputation and existing business and the likelihood of conflicts of interests.    

The CCM called the agreement a “cloak and dagger” deal that was shrouded in secrecy.” 

A source close to the NIA told WINN FM that UTICO did not have the money to pursue legal action.

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