GMR – Page 3 – Minivan News

Civil Court upholds Malaysian arbitration ruling

The Maldives Civil Court has ordered the implementation of a ruling by an international arbitration tribunal.

Malaysia’s Kuala Lumpur Regional Center for Arbitration ruled that a Maldivian company Gasveli Island Private Ltd must pay US$445,216.66 to International Construction Consortium.

The ruiling marks the first time a Maldivian court has ordered the implementation of an international arbitration verdict.

The Civil Court has ruled the Maldivian company must pay the amount to the court within three months. The ruling was issued in the absence of Gasveli.

Chief Judge Ali Rasheed Hussain said that, while the law is unclear on which court a complainant must ask for implementation of the arbitral award, regulations compiled by the High Court say the Civil Court can take up such cases.

The regulation states that the Civil Court can use procedures in place for for implementing arbitration awards.

The Maldivian government is currently awaiting the outcome of an arbitration process in Singapore over its abrupt decision to terminate an airport development contract with Indian infrastructure giant GMR.

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MACL can sue former chairman over GMR airport charge decision, says Civil Court

The Civil Court has ruled the Maldives Airports Company (MACL) can sue its former chairman for allowing the disputed Airport Development Charge (ADC) to be deducted from Indian infrastructure giant GMR’s concession payments during it’s ill-fated agreement.

MACL alleges ‘Kuda Bandhey’ Ibrahim Saleem’s decision to be an act of ‘Ultra Vires’ – meaning that Saleem had acted beyond his permitted authority.

The ruling came following a procedural issue taken by Saleem said he was being wrongfully charged claiming the lawsuit was filed in violation to Article 18 (c) of the Contract Act and Article 74 Company Act.

The Contract Act states a clause requiring a party to refer to arbitration any dispute arising from the contract shall be valid, while the Company Act says the court has a right to issue orders holding personally liable the directors of the company to commit an offense in the name of the company.

But the Civil Court ruling stated that the Company Act does not prohibit the company chairman from being sued personally.

The airports company sued Saleem after he signed a letter sent to GMR on January 5 2012 stating that the ADC and the insurance surcharge fee had been deducted from GMR’s concession payments.

In late 2011, the then-opposition Dhivehi Qaumee Party (DQP) had filed a successful Civil Court case blocking GMR from charging US$25 charge for outgoing passengers – stipulated in its agreement with the government – on the grounds that it was a tax not authorised by parliament.

Former President Mohamed Nasheed’s administration subsequently chose to honour the original contract, instructing GMR to deduct the ADC revenues from the concession fees due to the state-owned MACL while it sought to appeal the Civil Court ruling.

However, with the Nasheed’s controversial resignation coming just one month later, the opposition soon inherited the contractual problem.

Dr Mohamed Waheed’s government then received a succession of bills from the airport developer throughout 2012, despite its insistence that the January 5 letter from MACL outlining the new arrangement was no longer valid.

In December 2012, the Anti-Corruption Commission (ACC) filed a case with the Prosecutor General’s Office over Saleem’s decision to allow GMR to deduct the ADC from concession fees owed to the state.

As part of the filed case (Dhivehi), the ACC was seeking reimbursement of MVR 353.8 million (US$22.9 million) from Saleem and former Finance Minister Mohamed Shihab over the alleged misuse of authority it claimed had led to significant financial loses for the state.

These losses were used as justification for the contract’s eventual termination in December 2012, for which GMR is currently seeking compensation via a Singapore court of arbitration.

According to the case filed by the ACC, former Finance Minister Shihab stands accused of misusing his ministerial authority to benefit a third party by allowing GMR to deduct the charges between October 2011 and September 2012.

The ACC has also accused Saleem violating the company’s rules. According to the ACC’s case, normal procedure for MACL would be to have the company’s board of directors pass a resolution allowing for consent to be given to deduct the ADC.

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India offered to build naval dockyard in Maldives, says Indian media

India’s Army Chief General Bikram Singh has offered to build a dockyard worth MVR 7.7 billion (US$ 500 million) in the Maldives in his ongoing visit, Indian media has reported.

According to the Deccan Herald, China had already offered to develop the Uthuru Thilafalhu lagoon in the archipelago’s north.

Reclamation work is already underway in the area. Once completed, it will serve as the Maldivian Coastguard’s primary operations base and will provide a much-needed berthing space to naval ships and ocean liners.

India’s Foreign Secretary Sujatha Singh, during a visit to the Maldives in February, visited the Uthuru Thilafalhu project site. Minivan News understands discussions are underway on Indian investment in the project, but it is not clear if a decision has yet been made.

In recent months, India has been steadily increasing defense cooperation with the Maldives including the gifting of two ‘Dhruv’ Advanced Lightweight Helicopters (ALH) and development of the military hospital Senahiya.

Ties with India came under strain during President Dr Mohamed Waheed’s administration in the aftermath of Indian infrastructure giant GMR’s abrupt eviction. The company had won a concession agreement to develop the main airport.

Waheed went on to strengthen military ties with China, sparking Indian concern over “a Chinese policy to throw a ‘string of pearls’ – or a circle of influence – around India.”

Speaking during an official trip to India earlier this year, new President Abdulla Yameen stated that while the Maldives has “close ties” with China, “nothing will precede ties with India, which are far more precious”.

“While we have had a slight rough patch with India, the time of good relations far outweigh the rough patches we had. I suppose it is easy for us to be on the right track again,” Yameen said, referring to the airport dispute.

Singh’s visit is the first by a serving Indian Defense Chief since General Deepak Kapoor’s visit in February 2010.

An Indian High Commission press release on Tuesday said Singh’s three day visit – set to conclude today – will “further enhance bilateral defense cooperation.”

“India’s commitment to Maldives defense has been growing with each passing year. Both countries have inter-linked mutual security interests which need to be protected for the safety and security of the South Asian region and the Indian Ocean,” the statement said.

During his visit, Singh met with President Yameen, Defense Minister Mohamed Nazim and the Maldivian Chief of Defense Forces Ahmed Shiyam.

Singh also discussed the possibility of supplying fast-attack craft, amphibious landing craft and small arms from New Delhi, reported the Deccan Herald.

Another potential project is to train 40-60 officers of the Maldivian National Defence Force (MNDF) in Indian training establishments, the article continued.

“All such topics were discussed. But we will reveal details at a later time,” said MNDF Deputy Spokesperson Captain Ali Ihusaan, when asked for a comment on reports by Indian news sources.

Chinese investments including a US$54 million for an IT infrastructure project sparked Indian concern in 2013, with Indian Ministry of Communications and IT saying Beijing’s state owned companies must be “kept at bay.”

According to Indian media, the ministry – in an internal government note – suggested “substantial investment in the Maldives on similar projects [as being planned by China] ensuring that the traffic between India and the Maldives is handled through the equipment installed and commissioned in the Maldives by India.”

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GMR is only owed reimbursement, not compensation, says AG

Indian infrastructure giant GMR is only owed reimbursement for expenses, not compensation for the abrupt termination of the concession agreement to develop Malé International Airport (INIA), Attorney General Mohamed Anil has said.

Clarifying President Abdulla Yameen’s previous statement that GMR is owed a payment, Anil said the government believes the company is only owed reimbursement for a US$ 78 million upfront concession fee and any other expenses.

“When the agreement was first signed, US$78 million was given to the Maldivian government. In addition to that, we can see that they have spent some amount. So in the worst case scenario, if we are to revert to the state before the agreement was signed, everyone believes that they are owed [what they spent]. That is not as compensation for losses caused by the cancellation of the agreement,” he said.

GMR has said it will stick to a US$ 1.4 billion compensation claim – an amount that exceeds the annual state budget.

“The forceful takeover of the airport by Maldives government amounts to repudiation of a valid contract and therefore damages, including loss of future profit has to paid,” the company said in a statement on April 26.

Anil said GMR’s claim is unclear, as the company had not submitted documents detailing the assertion.

In response, GMR’s legal team member Uz. Fayyaz Ismail told Minivan News details of how GMR arrived at the figure will only be revealed in the second part of the arbitration process.

The arbitration tribunal in August 2013 had acceded to GMR’s request to split the proceedings in two – firstly determining liability, before quantifying the amount of compensation to be paid separately.

“GMR is claiming it to be a wrongful termination, and if the tribunal awards a verdict for that during the first part of this bifurcation arbitration [two part arbitration process] only then would the [compensation] amount be decided through second part of the arbitration. We are very confident the rightful compensation would be received,” Ismail said, adding that the figure may be subject to minor variations.

Yameen in early April said the Maldives government will not be able to pay GMR’s claim, but conceded “some sort of financial compensation must be paid.” He estimates the figure to be a “manageable” US$ 300 million.

The GMR in consortium with Malaysia Airports (MAHB) narrowly won the International Finance Corporation (IFC)-managed bid for the airport in 2010, and signed the agreement with MACL under the former government of Mohamed Nasheed. The opposition at the time, including Yameen’s Progressive Party of the Maldives (PPM), then began a vitriolic nationalist campaign to evict GMR.

Following Nasheed’s ouster in 2012, President Mohamed Waheed’s administration terminated the agreement claiming it was ‘void ab initio’- invalid from the outset.

When the Singaporean High Court’s injunction blocking the Maldivian government from voiding the agreement was overturned by the Supreme Court in Singapore in June 2013, GMR initiated an arbitration process.

The first part of the arbitration took place in Singapore from April 10 – 16. Minivan News understands the arbitration tribunal considered GMR’s claim of wrongful termination, parallel claim for loss of profits over the lifespan of the agreement, and the Maldive’s counter-claim for restitution.

A verdict is expected soon, at the latest by mid- June. Depending on the verdict, the second process of arbitration will begin on a mutually agreed upon date.

Although Anil said the second half could take months to begin or even year for a ruling, Ismail has refuted the claim.

Despite the pending arbitration decision, expansion and development of INIA was among the five mega-projects for which the government was seeking investors at the Maldives Investment Forum held in Singapore’s Marina Bay Sands in late April.

Meanwhile, Nasheed has warned of a sovereign debt crisis if the Maldives is forced to pay the full US$ 1.4 billion and reiterated his Maldivian Democratic Party’s (MDP) call to reverse the decision to cancel the contract.

In a press release last week, Nasheed insisted that international best practices were followed in the bidding process – which was overseen by the World Bank’s International Finance Corporation (IFC) – while the Anti-Corruption Commission (ACC) has since ruled out corruption in the airport deal.

“The Maldives is now known around the world as a country that doesn’t keep its promises or honour the contracts. The airport fiasco will hit each and every Maldivian because banks won’t lend money and companies won’t invest in our country without demanding much higher rates of interest,” Nasheed said.

“By now, Maldivians should have been looking forward to a world-class, new airport, to rival Kuala Lumpur, Singapore, and Hong Kong. Instead we have nothing but an abandoned building site. The actions of President [Abdulla] Yameen and [Dr Mohamed] Waheed have caused this crisis and Maldivians will be paying for their recklessness for decades to come” he added.

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Nasheed warns of “imminent sovereign debt crisis”

Former President Mohamed Nasheed has warned of a sovereign debt crisis if the Maldives is forced to pay US$1.4 billion in compensation to GMR over the abrupt termination of a concession agreement to develop Ibrahim Nasir International Airport (INIA).

Nasheed also reiterated calls for the government to reverse the decision to cancel the contract in December 2012.

The press statement insisted that international best practices were followed in the bidding process – which was overseen by the World Bank’s International Finance Corporation (IFC) – while the Anti-Corruption Commission (ACC) has since ruled out corruption in the airport deal.

Nasheed’s remarks comes on the heels of the opposition Maldivian Democratic Party (MDP) – of which he was recently appointed acting president – threatening to terminate any new agreements concerning the airport should the party regain power.

Failure to reinstate the airport development contract would cause the Maldives to “suffer unforeseeable risk and irrevocable harm,” the party said in a statement yesterday.

Compensation owed “in any case”

Following President Abdulla Yameen publicly conceding that the Indian infrastructure company was owed compensation, GMR said it intends to stick to the US$1.4 billion compensation claim.

Asked by reporters a day earlier if he was confident the outcome of the arbitration would be favourable for the Maldives, President Yameen said: “The reality we have to accept is that a government with full sovereign powers made an agreement with a foreign party and leased [the airport]. This is a government, and what preceded this was a government as well. So believe we have to pay them some kind of financial compensation.”

If the judges on the arbitration panel accept the government’s arguments for nationalisation or expropriation, Yameen said the compensation owed to GMR could be smaller.

“We’re going to have to provide compensation in any case,” he conceded.

Yameen however contended later that GMR was owed US$300 million as compensation for its investment as well as upgrades to the airport.

Yameen had previously said that the out-of-court settlement sought by GMR was too high, and that he would await the outcome of the arbitration proceedings, which could take up to another two months.

“Sovereign debt”

The US$1.4 billion sought by GMR at the Singapore Court of Appeal for “wrongful termination” of the 25-year contract exceeds the annual state budget whilst the national debt is expected to rise to MVR31 billion (US$2 billion) this year.

Nasheed meanwhile warned that “the consequences of the outcome of the arbitration will drive the Maldivian economy to the brink, leading to major sovereign debt crisis.”

The statement noted that estimated GDP for 2014 was US$2.5 billion with an external debt of US$868 billion while the Maldives presently “receives less than US$30 million in grant aid.”

“Coupled by the budget deficit and domestic debt crisis, we are looking at a heavy burden on our children and grandchildren. It would mean by the end of 2014, debt will increase from 25 percent of GDP to 88 percent of GDP,” it added.

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MDP calls for GMR reinstatement

Opposition Maldivian Democratic Party (MDP) has called for the reinstatement of the airport development contract with Indian GMR Infrastructure and warned the party will terminate any new agreements if it comes to power.

“The MDP immediately calls on the Government of Maldives that instead of repealing the annulled agreement in order to award it to another party, to render it to its original benefactor. The failure to conduct this repeal would allow Maldives to suffer unforeseeable risk and irrevocable harm,” the party said in a statement today.

“[T]his party on this day hereby resolves that any government formed by this party shall annul all corrupt agreements made by this government regarding the airport and render it back to whom it is rightfully due.”

The warning comes following President Abdulla Yameen Abdul Gayoom’s call for new airport developers at an investment forum in Singapore.

The GMR, in consortium with Malaysia Aiports, narrowly won the International Finance Corporation (IFC) managed bid for the airport in 2010, and signed the agreement with Maldives Airport Company Ltd (MACL) under the former government of Mohamed Nasheed.

However, following a nationalist campaign to evict GMR and Nasheed’s ouster in February 2012, new President Dr Mohamed Waheed Hassan declared GMR’s concession agreement ‘void ab intio’ (invalid from the outset) in December 2012, and gave GMR seven days to leave the country.

After Singaporean court upheld the government’s decision, the GMR filed a claim for US$ 1.4 billion in compensation from the Maldives – a figure that eclipses the annual state budget. Arbitration proceedings are now underway in Singapore.

Yameen has conceded the government must compensate GMR, but said the company is only owed US$ 300 million.

The MDP noted an Anti Corruption Commission (ACC) investigation had confirmed the GMR agreement to be corruption free and said the agreement had been made according to legal and international best practices.

The ACC noted an MACL managed airport would raise US$ 254 million in 25 years while the GMR consortium would bring in US$ 534 million.

“For these reasons the MDP Government, having found that the best advantage for the Government of Maldives would be to privatise the airport, it was assigned to GMR with the benefit and wellbeing of Maldivian people in mind; where it was impliedly and manifestly known that the matter was undertaken not for political gain but rather for the public good,” the party said.

“Notwithstanding this, those in the opposition at that time not only distorted the facts completely to the people; but the consecutive coup government that followed unscrupulously annulled the Airport Agreement. MDP is adamant to the fact that their position did not consider the wellbeing of the nation and its people.”

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President predicts US$300 million compensation for GMR

The Maldivian government believes GMR is owed US$300 million in compensation for the premature termination of the contract to develop the Ibrahim Nasir International Airport (INIA) instead of the US$1.4 billion the company is seeking, President Abdulla Yameen Abdul Gayoom told reporters upon his return to Malé last night.

Speaking to press after returning from Singapore to attend the Maldives Investment Forum, President Yameen insisted that the arbitration proceedings over GMR’s compensation claim has not deterred investors.

The INIA development project was the most popular among attendees at the forum, he said.

“The biggest interest was for the airport,” Yameen said.

The event – which took place on April 25 – was attended by over over 160 companies and nearly 200 representatives from 16 countries, and was the first overseas investor forum organised by the Maldives.

GMR compensation claim

Speaking to the press at the airport, Yameen argued that the previous government was within its rights to terminate the contract as it “damaged state and national interests”.

But since GMR had carried out some of the development works at the airport, the government has to pay compensation, he conceded.

President Yameen said that the compensation payment would affect the state budget, but added that $300 million is a “manageable” sum.

The state-owned Maldives Airports Company Limited (MACL), which now manages the airport, is “saving up” that sum, he said.

This statement comes after GMR is reportedly sticking to the US$1.4 billion compensation claim for the abrupt termination by the Maldivian government in December 2012.

“The forceful takeover of the airport by Maldives government amounts to repudiation of a valid contract and therefore damages, including loss of future profit has to paid. Thus, GMR’s claim is $1.4 billion,” Indian media reported the Bangalore-based infrastructure giant as saying in a statement on Friday (April 25).

Investment forum

On the investor forum, President Yameen said companies were also interested in developing a trans-shipment port in the north of the country, along with economic stimulation investments in Hulhumale’.

The island is a reclamation project to the north of Male’ to cater for the housing, industrial and developmental demands of the capital.

“Alongside (interests for the airport), there was (interest) for the economic development of Hulhumale’,” President Yameen said.

“Some large Chinese companies brought us (proposals) to develop a township in Hulhumale’, in addition to different (development) components for the airport. God willing, if we can put the effort, there is a lot to be gained here,” he added.

Moreover, the Ministry of Transport is seeking investors for building four new domestic airports. They are to be established on Haa Alif Huvanadhoo, Alif Alif Mathiveri, Faafu Magoodhoo and Meemu Muli.

The government is proposing leasing one or two islands for 25 years for resort development to the investors under a public-private partnership (PPP) programme in addition to a customs duty exemption for all equipment and material imported for the airport projects.

Moreover, the government has also made an announcement seeking a developer to expand Hanimaadhoo International Airport in the north of the country.

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Parliament approves hiking airport service charge to US$25

Parliament today approved legislation to raise the airport service charge from departing foreign passengers to US$25 from July onward as part of the current administration’s revenue raising measures.

The amendment bill submitted on behalf of the government by Progressive Party of Maldives MP Abdul Azeez Jamal Abubakur was passed with 32 votes in favour.

The government anticipates over MVR100 million (US$6.4 million) in additional revenue from the increased departure tax.

Parliament has also approved other revenue raising measures proposed by the government, including hiking import duties, reintroducing the bed tax until the end of November, raising the Tourism Goods and Services Tax (T-GST), and introducing GST for telecommunications services from May 1.

A proposal by the administration of former President Mohamed Waheed to raise the service charge to US$30 was narrowly defeated in April 2013.

The 1978 law imposing the airport service charge on departing passengers was first amended under the Maldivian Democratic Party government and raised to US$18.5 for foreigners.

The imposition of a similar Airport Development Charge (ADC) of US$25 by Indian infrastructure group GMR was previously a major point of contention for the Waheed administration, which terminated the concession agreement with the GMR-led consortium to modernise the airport in December 2012.

Other bills

A raft of other bills were also passed at today’s sitting of the People’s Majlis, including a bill on the state wage policy that was vetoed by former President Waheed in December 2012.

The legislation proposes the creation of a five-member National Pay Commission chaired by the finance minister with part-time members to determine salaries and allowances for the public sector and authorise pay rises.

The bill stipulates that the commission must consider the cost of living, inflation and the consumer price index in determining wages.

Moreover, salaries should incentivise government employees to work in islands with small populations.

The commission would also formulate standards and rules for determining the state’s pay scale or appropriate salaries based on qualifications and nature of employment.

Legislation on sole proprietors and business registration submitted by the administration of former President Nasheed in 2011 as part of an economic reform package was also passed today.

According to the draft legislation on business registration, the bill seeks to ensure that businesses, partnerships and cooperative societies operating in the Maldives are properly registered; specify what kind of businesses must be registered along with procedures for registration; and oblige businesses to submit information to the Registrar of Businesses.

The bill was also vetoed by President Waheed in April 2012 citing “socio-economic” concerns.

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GMR holds to US$1.4 billion compensation figure

GMR is sticking to the US$1.4 billion compensation claim for the abrupt termination by the Maldivian government in December 2012 of a concession agreement to develop the Ibrahim Nasir International Airport (INIA).

GMR noted that the Maldivian government had acknowledged for the first time that the company was owed compensation.

Prior to departing for Singapore on Thursday, President Abdulla Yameen told the press that the government would have to pay compensation to GMR upon conclusion of the arbitration process currently underway.

Asked if he was confident the outcome of the arbitration would be favourable for the Maldives, Yameen said: “The reality we have to accept is that a government with full sovereign powers made an agreement with a foreign party and leased [the airport]. This is a government, and what preceded this was a government as well. So believe we have to pay them some kind of financial compensation. “

He added that the government’s objective in the arbitration hearings was to lower the compensation amount.

If the judges on the arbitration panel accept the government’s arguments for nationalisation or expropriation, Yameen said the compensation owed to GMR could be smaller.

“We’re going to have to provide compensation in any case,” he conceded.

The US$1.4 billion sought by GMR for “wrongful termination” exceeds the annual state budget whilst the national debt is expected to rise to MVR31 billion (US$2 billion) this year.

Earlier this month, Yameen had said that the out-of-court settlement sought by GMR was too high, and that he would now await the outcome of the arbitration proceedings, which could take up to another two months.

President Yameen also met officials of the Beijing Urban Construction Group yesterday, who “expressed their interest in engaging in the infrastructure development of the [INIA],” according to the President’s Office.

Void ab initio

In December 2012, the administration of former President Dr Mohamed Waheed voided the 25-year concession agreement with the GMR-led consortium.

The US$511 million contract awarded by his predecessor former President Mohamed Nasheed – following a bidding process overseen by the World Bank’s International Finance Corporation (IFC) – was the largest foreign direct investment in the country’s history.

Waheed’s government – of which President Yameen’s Progressive Party of Maldives was a coalition partner – declared the contract ‘void ab initio’ – invalid from the outset – and gave the company seven days to leave the country.

After GMR received a stay order for the eviction from the Singapore High Court, the government successfully appealed the injunction at the Singapore Supreme Court.

Chief Justice Sundaresh Menon declared that “the Maldives government has the power to do what it wants, including expropriating the airport.”

At a press conference in the wake of the airport takeover, Finance Minister Abdulla Jihad – who retained his post under the new administration – said that the Maldives would pay whatever compensation was required “however difficult” while Attorney General Azima Shukoor expressed hope that the compensation would be lower than anticipated.

A special audit conducted by the Auditor General’s Office in early 2013 found that as of October 31, 2012, GMR Male’ International Airport (GMIAL) had completed 25 percent of the refurbishments and upgrades to INIA planned for the end of 2014, and had been invoiced by its contractor for US$69 million.

“Significant progress had been made in some areas – for example, 87 percent of the material for land reclamation had been dredged,” the report (English) stated.

“In the meantime, all work on the ground on the improvement to the airport has ceased. Sensitive elements of the new structures that had been planned by [GMR] are incomplete and exposed to the weather and at risk of damage – possibly closing off the option of re-using these elements to reduce the cost of any future development of the airport,” the report concluded.

After examining the bidding process, the audit report stated that evidence to back allegations of “improper interference” during technical bidding process “is not conclusive on this point”, and deferred the matter to the Anti-Corruption Commission (ACC), which ruled out corruption in June 2013.

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