Having won one legal battle in the fight against the sale of the state-owned Barbados National Terminal Company Limited (BNTCL) to regional petroleum products giant Sol, the France-based international company Rubis is threatening all out war against the Freundel Stuart administration to prevent the deal from going through.
Rubis last Friday secured an interim injunction until April 3 – extended today to May 26 – stopping the proposed US$100 million sale, which it claims would create a monopoly.
The company’s attorney Leslie Haynes, QC, told Barbados TODAY this afternoon that his client, which has also filed a claim against the Barbados National Oil Company Limited challenging the fairness of the tendering process, had put Government on notice that Rubis intended to trigger the articles of a bilateral investment treaty between the United Kingdom and Barbados.
He contended that because Rubis West Indies Limited was incorporated in Britain, the treaty protects it from unfair practices.
“Rubis West Indies Limited was originally incorporated in England, so we have written to the Government telling them that there is a bilateral investment treaty existing between England and Barbados and we are saying
to them that we are going to invoke the bilateral treaty to go to arbitration,” Haynes said.
Barbados TODAY understands that this legal option could come at a hefty price to the Barbadian taxpayer, as legal costs could run into millions of dollars.
Haynes argued that Rubis was invited to bid for the oil terminal based on a four per cent increase in throughput fees. However, “Sol was awarded the contract on a basis
of a throughput fee being increased by 32 per cent”.
This suggested that Rubis would have submitted a bid for the BNTCL based on projected lower profitability margins, which would have impacted on its offer price for the state asset.
“We are saying that this is unfair. We were never given an opportunity to bid on the basis that the throughput fee would be increased by 32 per cent. The increased throughput fees equate to increased value of the company [BNTCL]. So that is why we are saying that the bidding process was unfair and not as transparent as persons would have us believe,” the Rubis attorney said.
While conceding that he was not privy to the bid submitted by Sol, Haynes stressed that information which has since been made public, offered sufficient insight into alleged discrepancies of the process.
“We do not know what Sol bid, but we know that after the offers were submitted, the contract that was offered to Sol was not the contract that we were asked to send in an offer for,” he pointed out.
The Fair Trading Commission is currently probing the proposed agreement between Government and Sol with a view to determining whether or not the merger would be allowed.
Haynes said Rubis was willing to pay US$49 million for a 49 per cent stake in BNTCL, conceding control of the oil facility to Sol.
He was of the view that if the entity were jointly operated at the proposed 32 per cent increase in throughput fees, the returns would be good for the competing petroleum companies.
Rubis had last month offered Government US$50 million for a 50 per cent stake in the oil terminal.