Antigua and Barbuda: The Quagmire Of Expropriation

On 3rd September 2019, Business in Vancouver, a British Columbia, Canada weekly paper and website, published a comprehensive front-page article entitled "B.C. Company mired in court fight over luxury Caribbean resort" that has shed further light on the long running saga involving the Half Moon Bay Resort in Antigua.

The author, Hayley Woodin, set out the background and presented argument from two of the key players, H.M.B. Holdings Limited and Replay Resorts.

Comment from the Government of Antigua & Barbuda was not included in the feature but its actions to date were clearly displayed for observers to take into account. In any case, they are neither new nor surprising to readers of these articles.

A quick review of the milestones is offered for new readers.

The Half Moon Bay Resort was first assembled and purchased by H.M.B. Holdings Limited in 1970. For the twenty-five years that followed, 1970 - 1995, the Company developed, maintained and managed its property, building an enviable reputation for service and business practice.

The Hotel itself was made up of a long strip of rooms and public spaces along a mile-long white coral sand beach, consistently ranked amongst the top ten in the world. Included in the Resort's 110 acres were a private 9-hole golf course, a complex of tennis courts and miscellaneous guest amenities, private estates and additional land earmarked for further hotel expansion into suites and villas.

Over its quarter century in service, the Half Moon Bay Resort had made significant contributions to Antigua's economy and international profile. The guest roster and the number of repeat guests provide valuable testament to its reputation.

Sadly, two consecutive devastating Category 5 hurricanes, Luis and Marilyn, struck Antigua in September of 1995 and all but destroyed the resort.

While the shareholders of H.M.B. Holdings Limited determined and vowed to rebuild its Resort, potential buyers, encouraged by the Antigua & Barbuda Government, saw this as an opportunity to buy the property at a distressed value and lined up in repeated attempts to do so.

Despite continued responses that the property was not for sale, the primary buyer emerged by virtue of being represented by The Hon. Lester Bird Jr., Antigua & Barbuda's Prime Minister himself offered to broker the sale of the property to a "friend of the Government, Sir (R.) Allen Stanford" who at the time had extensive business, financial and political influence in Antigua.

For several years, H.M.B. Holdings Limited made numerous attempts to obtain redevelopment financing, with each promising opportunity deliberately sabotaged by the Government of Antigua & Barbuda. The property, however, firmly remained "Not for Sale."

Finally, at its third attempt to do so, the Antigua & Barbuda Government succeeded in producing a public declaration from Parliament granting the Government the power of eminent domain for a " compulsory acquisition" of the Half Moon Bay property, using a novel interpretation of a "public purpose" under its Land Acquisition Act.

Peter Fritch's 2002 Wall Street Journal article, "R. Allen Stanford Casts Shadow over Antigua, Island of Sun," quotes Stanford's sanguine attitude to achieving his goal through expropriation.

H.M.B. Holdings Limited resisted the acquisition in court and was granted a stay until the full process of a Judicial Review of the Government's actions was completed.

The elections of a new "Government in the Sunshine" in March of 2004, led by the United Progressive Party Prime Minister Baldwin Spencer, who personally swore an Affidavit attached to the Company's application for the Judicial Review and publicly promised to ensure the reversal of the "acquisition" and the return of the property to its rightful owners, was a breath of fresh air with a renewal of hope and positive energy to all.

However, bad habits die hard and some never do. The then Attorney General Justin Simon was tasked with the responsibility for "this wrong to be made right," swiftly and justly.

He was the wrong man for the job.

Sadly, Sunshine became clouded amid a range of obstacles, personal agendas, outright malice and self-serving incompetence.

Many court battles followed all the way to London for a hearing before Her Majesty's Privy Council, the highest court of the Antigua & Barbuda jurisdiction. By its ruling in 2007, the Privy Council upheld the Government's right to exercise its power of eminent domain under its obsolete Land Acquisition Act, subject to fair and prompt payment of compensation as prescribed in detail by the Act and the Constitution of Antigua and Barbuda.

According to media reports, this allowed Stanford to present his development vision for the property to the Cabinet of the Antiguan Government. However, Stanford never succeeded in realising his plans for Half Moon Bay. He was arrested, tried and is now serving a 110-year sentence in a Texas jail for the largest banking fraud in history at that time. His assets have been distributed and thousands of his clients have lost millions of dollars in what transpired to be a huge Ponzi scheme.

In the meantime, new potential buyers were linked to the Half Moon Bay property, including Peter de Savary. Many, though, walked away after learning of forced acquisition of this foreign-owned property, while others would not or could not raise the funds for this project because of the on-going litigation.

This litigation was forced on H.M.B. Holdings Limited and continues to this day by the refusal of the Government of Antigua & Barbuda to deal with the financial consequences of its "acquisition."

While the Government took physical possession of the property in July 2007, it required an order of mandamus for the Government to commence the process of compensation, established in precise detail in the Land Acquisition Act, the only law grandfathered into the Constitution.

The value of the property was debated before an Assessment Board, with the valuations offered by the Government at US$22 million and a valuation presented by CB Richard Ellis of US$60 million on behalf of the Company.

Over the following seven years, that process of establishing the cost of the expropriation inched its way back to Her Majesty's Privy Council, encountering numerous delays, requiring two more orders of mandamus against the Ministers of Finance, a declaration by the Eastern Caribbean Supreme Court of Appeal that the Government of Antigua & Barbuda had breached the Company's constitutional rights by non-payment and several High Court orders with penal notices attached.

No payment was made during the seven years between the two Privy Council decisions.

In 2010, the Board of Assessment established a value of US$23.3 million. In 2012, the Court of Appeal reviewed the Board's decision and increased the value to US$45.5 million dollars. Finally, in 2014, the Privy Council decided that the value of the property should be decreased to US$26.6 million.

However, with the determination of interest on the principal amount due also before the Privy Council, the Learned Lords decided to allow a 10.25% rate of interest, originally established by consent of the parties, for the first half of the time lapsed between their two Decisions as a penalty for the delay in payment of compensation, with a 4% interest provided by the Land Acquisition Act on the principal amount to be applied thereafter, "until payment."

The Order further stated that "Her Majesty was pleased by and with the advice of Her Privy Council... and to order that those charged with administering the Government of Antigua and Barbuda and all others whom it may concern are to ensure that it is punctually observed and obeyed."

At the time of this final unappealable Order, the total amount established as owing to H.M.B. Holdings Limited was US$40.5 million.

The Government's public response was that no payment would be made until the property is sold to another developer, in spite of the Privy Council Order to pay "forthwith," or the Land Acquisition Act which required payment to be made from the Treasury, or the Constitution of Antigua and Barbuda, which set out protection for the dispossessed owners, requiring that "fair payment be made within a reasonable time."

Forced acquisition now clearly became expropriation, as the Government of Antigua and Barbuda defied its own laws and court orders and continued to refuse to pay the compensation due.

While the taking of privately-owned land from its citizens is not new in Antigua & Barbuda, the expropriation of Half Moon Bay was the first, and thus far, remains the only instance where the Government of Antigua & Barbuda expropriated foreign-owned private property. It is also the first time a Caribbean government, except for Cuba, expropriated property owned by U.S. citizens, setting a crucial precedent and warning for potential investors, observers of political risk and controllers of corporate governance.

Public warnings were issued by the US Congress and the US Department of State that private property belonging to United States citizens had been seized in a contentious manner, yet to be resolved. International press carried similar information.

Meanwhile, the effort by the Government of Antigua & Barbuda to depreciate the value of the property in order to minimize the cost of the expropriation came home to roost, when it became clear that it could not sell the property for an amount equal to its accrued debt.

New orders of mandamus were obtained, dates for instalment payments to H.M.B. Holdings Limited were set and breached. The Government's appeal to the Supreme Court of Appeal was rejected and announcements of nameless developers on the brink of purchase of Half Moon Bay started appearing in the media.

Among these candidates, the name Replay Resorts wove in and out of the narrative for most of 2015, with a fluctuating figure attached to its name between US$31million and US$20 million.

With yet another penal notice attached to the order of mandamus against the Prime Minister of Antigua and Barbuda, in his capacity as Minister of Finance, in December 2015, the Government advised H.M.B. Holdings Limited that Replay Destinations, acting as its agent, would be making a direct payment of US$16.5 million to H.M.B. Holdings Limited against the Government's debt. It would also be making a direct payment to retire a charge against the property, which would also be used to diminish the Government's debt to H.M.B. Holdings Limited.

The total of the two payments was equal to US$20 million, which was presented as the price of the Half Moon Bay property agreed to between the Government and Replay.

No further payment was made. All contact between the Government and H.M.B. Holdings Limited was discontinued. Once again, the Company returned to court for help.

However, due to the introduction of a Canadian buyer acting as the Government's representative and the total absence of any verification of the price and conditions of this sale of unpaid-for property was consummated, the Company now had the opportunity to extend its claims to jurisdictions outside of Antigua, namely the United States and Canada.

Who is Replay and what is its plan for the development of Half Moon Bay?

Replay Resorts was founded in 2007 by Chairman Joe Houssian and CEO Michael Coyle, both former executives of Intrawest Corp. which owned a number of US ski resorts, including Whistler Blackcomb and was sold to Fortress Investment Group LLC for US$2.8 billion.

Other former Intrawest executives make up some of Replay Resorts' senior team.

Subsequent to Replay's purchase of the Half Moon Bay property from the Government, Replay also purchased the adjacent property offered by the Mellon Estate, with the price of the purchase announced on a sliding scale between US$27 million and US$14 million dollars. This allowed Replay exclusive ownership of the entire frontage on Half Moon Bay, and a strip of land facing Willoughby Bay.

Press releases followed, with reference to the Mellon history and connection to Antigua.

The "Mellon cachet " was further enhanced by the agreement signed with Rosewood Hotels & Resorts, architectural and design plans were published and various criteria laid out in flowery detail.

Arton Capital 's press release dated 8 August 2018 announced its appointment as strategic advisor and exclusive sales agent in the MENA region for "Rosewood Half Moon Bay, Antigua," a Replay Destinations and Rosewood Hotels & Resort, to open "the most anticipated resort in the Caribbean in 2021.

In the article by Zoe Dare Hall, published on 24 October 2018 by the Telegraph entitled, "Why billionaires are fighting to own a slice of Half Moon Bay, the Caribbean 's most exclusive new resort," quotes William Anderson, Replay CEO, as saying:

How is Replay Resorts managing and funding the venture?

An affidavit filed in a legal action by Mrs. Querard, H.M.B. Holdings Limited's Managing Director, quoted in the Business in Vancouver article, shows that Paul Jorgensen, one of Replay's Directors, incorporated numerous companies in Antigua that would be involved in the development and management of the resort.

Gilbert Boustany was listed as the sole director of three of these: Replay Destinations Ltd, Replay Destinations Development Ltd. and Replay Destinations Sales Ltd. He was later replaced by Paul Jorgensen and David Hill, also a Replay Director.

[NOTE: After serving as Antigua & Barbuda's consul in Miami, Boustany is currently serving as ambassador to the United Arab Emirates.]

Several name changes later, Replay Destinations Sales changed its name to Half Moon Bay GP Inc., with British businessman Huaizheng Peng, Chinese businessman Zhaoxu Chen and Paul Jorgensen as directors for the year ended 31 December 2015. One of the Shareholders of that Company was Half Moon Bay CIP Management Inc.

In an Affidavit filed on 10 May 2017, Paul Jorgensen said CIP Management "markets investment opportunities on behalf of Visas Consulting Group, designated by the Government of Antigua and Barbuda under its Citizenship by Investment Program to promote investment opportunities in the country."

According to an article published by Antigua's Daily Observer on 1 October 2016 entitled "PM says gov't helped Replay Resorts to find funds, " Prime Minister Gaston Browne said the Antigua & Barbuda Labour Party administration had to help the investor group Replay Resorts raise funds to purchase the Half Moon Bay property from the government:

Browne added that the group had been interested in the property for years, but had been unable to raise the necessary funds, even after the deal had been restructured to make it easier for the group to acquire.

Browne continued, saying the deal was then changed to make it easier for the investor group to raise the funds, but the firm still struggled.

In March 2018 Jorgensen stated in his affidavit that the importance of the program to the purchase and development of the property "varied over time."

He acknowledged that in 2012, Replay would not have considered buying the property without the availability of the "Citizenship by Investment Programme" to raise funds for the development of the project.

It is likely that Jorgensen's previous knowledge and activity in the realm of Citizen by Investment programs increased the comfort level of Replay with regard to the joining of Antigua's CIP with the purchase of the Half Moon Bay property. Prior to joining Replay, Jorgensen was the President of The New York Tri-state Regional Center -- promoting and providing EB 5 Visas and US Residency in exchange for investment in business projects to wealthy foreigners.

Antigua & Barbuda's "Citizenship by Investment Programme" (CIP) provides applicants with a second passport through an investment in a business or property or a direct payment into the National Development Fund in the small twin-Island state, with practically no qualification beyond the payment for what in essence is visa-free international travel access into 132 countries.

Through its Half Moon Bay CIP Management subsidiary in Thurlow Street in Vancouver, Replay Resorts continues to market Half Moon Bay as "a unique investment product of the Commonwealth passport Market."

However, on 26 June 2017, the Government of Canada announced that:

"Business in Vancouver " reports in its 3 September 2019 issue cited above that Paul Jorgensen said Replay Resorts and its subsidiaries have revised their resort concept as they adjusted their expectations with respect to the significance of the CIP as a source of funding. They landed on "an ultra-luxury resort set amongst privately owned parcels of land that will be sold to high-net-worth individuals," to be financed "almost exclusively" through private land sales.

Litigation

And where does that leave H.M.B. Holdings Limited, the unpaid and dispossessed owners of this property?

Still in litigation for more than half of the total owed, as established by the Privy Council five years ago!

In April of 2017, the Company won a Default Judgment against the Government of Antigua & Barbuda in the High Court of British Columbia together with a Garnishment Order for over CAD$30 million. While claiming that there was no payment due from Replay to the Government, another US$3 million was paid by Replay directly to H.M.B. Holdings Limited as final payment for the property, to be booked against the Government's debt in December of that year, diminishing the Garnishment by an equal amount.

Another action was filed by the Company against the Government, Replay / Freetown Destinations and Half Moon Bay CIP Management -- which Replay elected to serve upon itself -- a first in British Columbia! It contained a number of serious allegations, reported in the article published by "Business in Vancouver." They can be summarised as follows:

By continued non-payment of the compensation as established by the Order of the Privy Council, the Government breached not only the order of its highest court, but also its fiduciary duty owed to the plaintiff under its own Constitution. The other Defendants, Replay and its subsidiaries "were willfully blind" to and "participated in or assisted the Government's breaches."

By identifying specific instances of such actions, the Company expects to prove its allegations of conspiracy and unjust enrichment.

Meanwhile, the matter remains in court, with the main hearing delayed by numerous interlocutory matters initiated by Replay, several of which are still pending appeal and one of which has actually been dismissed by the Supreme Court of Canada.

It is curious to note that the Government has not defended its own behaviour, beyond retreating behind the irrelevant statement that it has no money to pay the Company, since it could only obtain US$23 million for the property from Replay. All of the other arguments and counter claims come from Replay, taking on the fight against all applications for subpoenas, discovery and claims against the Government and other entities subject to garnishment. It does not quite square with the statement by Paul Jorgensen quoted in the Business in Vancouver article, contending that "litigation has nothing to do with our Company."

There also remain three separate issues in the High Court of Antigua & Barbuda:

The first is dealing with enforcement of the mandamus order against the Minister of Finance.

The second is another "conspiracy to commit fraud" claim against the Government, Replay/Freetown and the First Caribbean International Bank.

The third is a constitutional issue dealing with the Government's insistence that any moneys received by the Company should be booked against the principal amount established by the Privy Council, denying the Company its constitutional right to interest accruing on the remaining debt. Given that the debt is already 12 years old, with no end in sight, this can represent a substantial amount.

It should be noted that in all the conversations had with the Directors of H.M.B. Holdings Limited, what was and remains paramount in their considerations is that "setting a precedent" for others to lean into continues to be as important as realising a modicum of justice under the law for themselves and the other shareholders of the Company.

If anything can be learned from this saga, it would be that expropriation is a violent act by a government against citizens, with serious consequences to both parties. It must not be undertaken lightly, nor should it be taken advantage of by third parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.