Arbitration tribunal in GMR hearing agrees separate assessment of liability

The GMR-Malaysia Airports Holdings Berhad (GMR-MAHB) consortium has won an early legal skirmish in the Singapore-based arbitration hearings into its US$1.4 billion compensation claim for early termination of its contract by the Maldivian government.

GMR-MAHB won a concession agreement to manage and upgrade Ibrahim Nasir International Airport (INIA) under the Maldivian Democratic Party (MDP) administration, which was ousted from power on 7 February 2012 amid protests and a police mutiny.

The new government, comprising a coalition of former opposition parties under current President Mohamed Waheed, declared in late 2012 that GMR-MAHB’s agreement was ‘void ab initio’ (invalid from the outset) and gave the developer seven days’ notice to leave the country.

The US$511 million agreement was at the time the country’s single largest foreign investment. According to the government’s own engineering assessment, the development was 25 percent complete at the time GMR-MAHB was evicted.

The consortium has since lodged a US$1.4 billion claim with the Singapore Court of Arbitration, an amount eclipsing the Maldives’ annual state budget. The government is being represented by a Singapore National University Professor M. Sonarajam, while GMR-MAHB is being represented by former Chief Justice of the UK, Lord Nicholas Edison Phillips. The arbitrator is retired senior UK Judge, Lord Leonard Hubert Hoffman.

Latest hearings

During the second round of procedural hearings earlier this month, the tribunal acceded to GMR-MAHB’s request to split the proceedings into firstly determining liability, before quantifying the amount of compensation to be paid separately.

Minivan News understands that the tribunal agreed this would simplify examination and quantification of what was effectively three claims being made in the hearing: GMR-MAHB’s claim for compensation as per the termination clause of its concession agreement, its parallel claim for loss of profits over the lifespan of the agreement due to its termination, and the government’s counter-claim for restitution should the tribunal decide in its favour.

According to a source familiar with the matter, the government’s legal team opposed splitting the proceedings in such a fashion as they had not had access to GMR-MAHB’s documentation, and would therefore be unable to assess the scope of the claim at stake.

Minivan News understands that the tribunal rejected the government’s position on the grounds that it would be quicker, fairer and less costly to resolve the case by first determining liability for each of the claims, and then quantifying these.

Separate development paths

Local media has meanwhile reported that Maldives Airports Company Limited (MACL), which took over management of the airport following the government’s eviction of the foreign investor, has sought a US$150 million loan from Thailand’s Exim Bank for the construction of a new runway.

Sun Online reported MACL Managing Director Bandhu Saleem as stating that MACL’s three-year development project, involving reclamation of land for the runway and development of a new terminal, would cost a total of US$380 million.

“The terminal is being designed. The funding will be available in the next six months or so. We are planning to start the construction of the terminal as soon as the runway is completed,” Saleem reportedly told Sun.

Future development of the airport and fallout from the arbitration proceedings is likely to be affected by the upcoming election.

Of the four presidential candidates contesting the presidential election on September 7, both resort tycoon Gasim Ibrahim and incumbent President Mohamed Waheed have taken strongly nationalistic positions on MACL retaining full control (and responsibility for financing) the airport’s development.

Gasim’s running mate, Dr Hassan Saeed, was an early and emphatic proponent of GMR-MAHB’s eviction, previously issued a pamphlet calling for the cancellation of the agreement and likening it to “taking bitter medicine to cure a disease” or “amputating an organ to stop the spread of cancer.”

The Progressive Party of the Maldives (PPM), a major opponent of the MDP’s government’s signing of the concession agreement, has in recent months appeared to have taken a more conciliatory position, blaming the fallout of the agreement’s sudden cancellation on President Waheed.

“We told the next President Mr Waheed that he should hold discussions with the GMR Group and the Indian government to arrive at an acceptable solution, after which the government was free to act on its own,” PPM head and former Maldivian President Maumoon Abdul Gayoom told Indian media in June. “Unfortunately, this was not done and suddenly there was this unhappy ending.”

The MDP has meanwhile signalled that if elected, it intends to negotiate the return of the developer. Construction of the new terminal was originally pegged for completion by 2014.

“The coup government nullified the agreement, and we will see how best to rectify it,” former Economic Development Minister Mahmoud Razee told Minivan News.

“If need be we will go to the Majlis. Our objective is to get work restarted as quickly as possible,” he said.


AG slams former government over foreign investment “damage” from alleged lack of financial research

Attorney General Azima Shukoor has accused the previous government of failing to conduct sufficient research before signing several major foreign investment projects, that had now been terminated by the present administration.

Azima was quoted by private broadcaster Villa Televison (VTV) (Dhivehi) as claiming that unspecified “economic damage” currently faced by the state had resulted from a lack of economic and legal research by the administration of former President Mohamed Nasheed.

She was quoted in local media arguing that “damages” to the state had resulted from a number of foreign investment projects signed by Nasheed’s administration, including the US$511 million concession agreement signed with GMR to build and manage a new terminal at Ibrahim Nasir International Airport. Azima also raised over another deal with Malaysia-based Nexbis to manage and operate a border control system in the country.

Both agreements have since been terminated by the administration of President Dr Mohamed Waheed, with the Maldives facing a US$1.4 billion compensation claim from GMR after its contract was suddenly declared void in November. The company was then given a seven day notice period to leave before being evicted by authorities.

Nexbis was last week given 14 days to vacate by the government, which likewise terminated its concession agreement with the company.

However immigration officials last week questioned whether  replacement technology was ready to be implemented, in place of the Nexbis system.

Former government response

Responding today to the attorney general’s criticisms, Mahmood Razee, former economic development minister during the Nasheed administration, stressed that the former government had engaged with the World Bank’s International Finance Corporation (IFC) before moving ahead with the airport privatisation program.

As such, he rejected accusations that no research had been conducted before undertaking such a high profile project.

“Clearly this was not a stab in the dark,” Razee said of the deal. “[The World Bank engagement] determined how best to proceed with the airport development for the benefit of the government and the people. After looking at the revenue streams, it was concluded that it was best to move forward with the public private partnership.”

He claimed that aside from potential financial benefits of agreeing the deal, the consortium consisting of GMR and Malaysia Airports Holdings Berhard (MAHB) had been picked based on the companies’ experience in managing other airport projects.

With the deal now terminated, Razee added that it remained critical to secure development at the airport as soon as possible, claiming the current facilities at INIA did not meet the required standards.

Waheed’s government last year accused the IFC itself of negligence during the bidding process for the development of INIA, charges the World Bank rejected at the time.

By June this year, the Maldives’ Anti-Corruption Commission (ACC) ruled out corruptionin the awarding of a concession agreement in June 2010 to the GMR/MAHB consortium. The government meanwhile continues to insist the sudden termination of the contract was in the national interest.

“Cause and effect”

Former Economic Development Minister Razee said the Maldives would remain reliant on development funding for future development projects, which would cost hundreds of millions of dollars out of reach of the government.

With the country now lacking sufficient rating to obtain credit commercially, Razee argued that development funds remained the only means for a country like the Maldives to secure sizeable finance.

The present government’s decision to cancel two major foreign investments would have a “cause and effect”, he suggested.

Should the MDP be elected to power in the presidential election scheduled for next month, the party would have to consider returning to negotiations with GMR in a bid to avoid huge financial fallout from arbitration proceedings now being conducted in Singapore.

He claimed that the cooperation of international bodies such as the World Bank in securing the GMR deal would likely to be sought in other high-profile investment projects sought under an MDP government.

Economic problems

The Maldives National Chamber of Commerce and Industries (MNCCI) meanwhile last month accused senior politicians under successive governments of trivialising the severity of the country’s economic problems.

MNCCI Vice President Ishmael Asif claimed parties were addressing financial concerns and issues impacting foreign investment with negative slogans rather than actual policies in the run up to September’s election.

While accepting the present “bad shape” of the Maldives economy, the chamber of commerce was particularly critical of what it called negative economic campaigning by senior figures in the last two governments – arguing they had done little to address an ongoing shortage of US dollars and a lack of investment banking opportunities and arbitration legislation in the country.

Asif’s comments were made in response to claims by the government-aligned Progressive Party of Maldives (PPM) that foreign investors were now turning away from the Maldives due to concerns about political stability and safety in the country.


GMR era begins at Male’ International Airport amidst political wrangling

After months of political wrangling and counter allegations, as the clock turned one minute past midnight this morning Indian infrastructure giant GMR took the reins of Male’ International Airport as part of an overhaul it claims will help “increase the brand value” of the Maldives.

In a consortium with Malaysia Airports Holdings Berhad (MAHB), GMR says it will kick start a 180 day programme to try and improve service, efficiency and profitability of the site ahead of an US$511m expansion project that includes the construction of a new airport terminal by 2014.

The airport consortium, which saw off competition from a number of rival bids to win a long-standing contract to privatise the running of the country’s central transport hub, made a point of trying to offset concerns about the intention of foreign ownership and its potential impact on Maldivian workers.

“The airport belongs to the people of the Maldives,” said Kiran Kumar Grandhi, Business Chairman of Airports for the GMR Group at a function to commemorate the new management structure. “This consortium hopes to bring the best of technology and architecture and service to the airport.”

A coalition of opposition political parties formed an alliance back in June designed to try and protest against the deal on the grounds of nationalistic interests that included mps from the Dhivehi Qaumee Party (DQP), Dhivehi Rayyithunge Party (DRP), Jumhooree Party (JP) and the People’s Alliance (PA).

However, speaking during today’s handover ceremony on Hulhule’ Island, Mahmood Razee, Minister of Economic Development and a Maldives Democratic Party (MDP) member, claimed that the privatisation of the airport is aimed to directly benefit Maldivians as well as foreign travellers.

“It [the airport] belongs to all of us, to all Maldivians,” he said.

Razee stressed that the government would therefore continue to work with the shareholders of the airport consortium even under “difficult circumstances” such as parliamentary debate and legal wrangling. The Minister of Economic Development added that he views privatisation across the nation’s transport networks and economy as vital for future development.

“We have worked with the private sector,” he added. “We will continue to work with the private sector.”

The comments were echoed by President Mohamed Nasheed who said that the levels of requirement investment required at the airport, which he claimed could be called “the Bucket International Airport”, were substantial.

According to figures given by the president, at least US$300m would have been needed for the development from a government budget that he said was already stretched spending Rf1 billion on existing loans.

As the urgent need to develop the airport was “an undisputed truth” accepted by all, President Nasheed continued, vowing that the government “will not let anyone obstruct the country’s development.”

Airport opposition

DRP Leader Ahmed Thasmeen Ali told Minivan News that a coalition of political parties formed in opposition to the GMR airport deal remained committed to a Memorandum of Understanding (MOU) focusing on legal recourse to try and prevent the privatisation agreement.

Despite the handover already having taken place this morning, the opposition leader said that the coalition of political parties hasn’t yet “exhausted legal avenues” related to their opposition of the privatisation.

“We simply believe the deal is not in our national or security interests,” Thasmeen said. “With the privatisation of other [existing or soon to be] international airports in the north and south of the country, the state will not have an airport under its control.”

From a stand-alone DRP position, Thasmeen said his party was not strictly against privatisation, but the party would judge any new business propositions put forward by government on a case-by-case basis.

Debate over the issue of privatisation has raged for many months for and against allowing privatisation since GMR and MAHB were first contracted to oversee the airport expansion project back in June.

Deputy Leader of the DRP, Umar Naseer, told Minivan News on June 28 that ” if [the operators] allowed it, an Israeli flight can come and stop over after bombing Arab countries.”

The government has alleged that opposition to the airport deal stems from the “vested interests” of certain MPs, several of whom it arrested following the resignation of cabinet on June 29 in protest against the “scorched earth politics” of the opposition-majority parliament.

Initial 180-day plan

Beyond possible ongoing political and legal discourse, Andrew Harrison, new CEO of GMR Malé International Airport, pointed to greater efficiency in the day-to-day service of the airport as a key focus for the first 180 days of management.

As part of this programme, Harrison announced that an expansion of capacity at the airport was immediately required to allow for more flights to be handled simultaneously. In addition to customer handling capacity, a number of new x-ray scanners and service counters are also set to be provided over the period to speed up waiting times during check in and departure, he claimed.

Beyond operational commitments, Harrison said that the 180 day programme also aims to make a number of changes to the look of the arrivals and departure plaza.

This cosmetic overhaul is expected to include a number of new eateries and retail outlets to be situated across the site and also alongside the waterfront in a bid to boost the “guest experience” and play up the local environment.