Rubis gets Barbados Oil Terminal sale injunction

The multi-million sale of the state-owned Barbados National Terminal Company Limited (BNTCL) to Sol is yet to be given the green light.

On Friday March 14, 2017, Rubis West Indies Limited filed in the High Court, an application for Judicial Review of a decision to approve the inclusion of a 15 year moratorium clause in the Sale and Purchase Agreement between a Sol Subsidiary and the Barbados National Oil Company Limited (BNOCL).

This clause, which was included in the documents filed by the Sol Subsidiary and BNOCL with the Fair Trading Commission (FTC), would grant to the SOL Subsidiary a moratorium on the construction of any fuel terminal facilities in Barbados and a moratorium on the grant of licences for the storage of gasoline, diesel or fuel and aviation or jet fuels used for industrial and commercial purposes in Barbados, other than those that currently exist by the Energy Division or other Governmental Authority for a 15 year term.

The FTC is currently probing whether the US $100 million merger should be approved.

Rubis has been advised by its legal counsel that such a moratorium should not be granted, as it would constitute an illegal restriction of the right which the Minister of Energy has been granted by law to decide on such matters.

With this application, Rubis also applied for an urgent interim injunction to restrain the parties to the proposed merger agreement from including such a clause therein, should the FTC approve the sale of BNTCL as submitted.

The High Court granted Rubis the interim injunction applied for until April 3, 2017.

When the relevant parties attended court before Justice Olson Alleyne yesterday, to determine whether the interim injunction should be extended or discharged, they consented to the extension of the injunction.

Barry Gale, QC, who is representing Sol, told the media that during yesterday’s proceedings, the Court set directions for the hearing of the application, due to be heard on May 26, on whether or not the injunction should be continued or discharged.

“They give directions as to the filing of affidavits, in answer to Rubis’ affidavits and for replies to those affidavits as well as give directions for the filing of legal submissions so that when we come back on the 26th of May, the Court can hear the matter and hopefully make a decision on that day or as soon as possible. It’s not the main case; we are dealing only at this time with the injunction,” Gale said.

Meanwhile, Leslie Haynes, QC, who is leading Rubis’ legal team, said the legal challenge is a matter of urgency, especially considering that the FTC could make its decision at any date.

“By the Fair Trading Commission Act, they are not obliged to give notice to Rubis because Rubis is not a party to the application. So once the Fair Trading committee gives its decision of which Sol and BNOCL would have notice, the transaction could be completed within the next ten minutes, by the push of a button,” Haynes explained.

“The balance of the money could be paid. You ring up the bank and say ‘please transfer funds’. So yes, I understand that the FTC decision has not yet been given, but if we wait on the FTC decision, it may possibly be too late,” Haynes continued.

Haynes is being assisted by attorneys Nicholas Maynard who is from his chambers, and Sherica Mohammed-Cumberbatch, and Jason Wilkinson, both from Carrington and Sealy chambers.

Attorney General Adriel Brathwaite, who is the first defendant, is being represented by attorney Donna Brathwaite.

BNOCL, the second defendant, is being represented by Roger Forde, QC. (AH)