Tanesco loses big IPTL lawsuit
ORDERED TO PAY $148M: Washington-based tribunal rules in favour of Standard Chartered Bank, saying dubious payments from the Tegeta escrow account do not discharge TANESCO's obligations to the bank
TANESCO ordered to pay
$148m over IPTL dispute
Washington-based tribunal rules in favour of Standard Chartered Bank, saying dubious payments made from the Tegeta escrow account to businessman Harbinder Singh Sethi do not discharge TANESCO's obligations to the bank
By Guardian Reporter
THE Tanzania Electric Supply Company Limited (TANESCO) has suffered a massive blow in its protracted legal dispute with Independent Power Tanzania Limited (IPTL) after a World Bank tribunal last week ordered the state-owned power utility to pay Standard Chartered Bank-Hong Kong (SCB-HK) $148.4 million (over 320 billion shillings) plus interest in outstanding capacity charges.
The ruling comes nearly three years since the government controversially authorised payments of over $200 million (440 billion/-) from TANESCO-IPTL’s Tegeta escrow account to businessman Harbinder Singh Sethi’s Pan Africa Power Solutions Tanzania Limited (PAP).
This was after SCB-HK purchased the IPTL loan at a discount price of $76.1 million from Malaysia’sDanaharta Bankin August 2005, following the latter’s failure to secure its outstanding loan from IPTL.
The actual face value of the debt was $101.7 million, according to available evidence. IPTL borrowed over $100 million in 1998 from a consortium of Malaysian banks in order to finance construction of its 100-megawatt Tegeta power generating plant.
Under that transaction, SCB-HK was assigned a number of contracts, including the 1997 Security Deed, the Implementation Agreement and the Guarantee Agreement concluded between IPTL and the Tanzanian government. The available details show that SCB-HK also became the Security Agent under the Share Pledge Agreement and the Shareholder Support Deed.
Part of the agreement said: “As Security Agent, SCB HK holds all of IPTL’s ‘right, title and interest in and to the Assigned Contracts, including all moneys which may at any time be or become payable to the Borrower.’”
TANESCO had earlier taken its dispute with IPTL to the World Bank-affiliated International Centre for Settlement of Investment Disputes (ICSID) for arbitration after the state-owned power utility discovered that it was being overcharged in both capacity and energy charges.
Following this move, both parties agreed as stipulated in their 1996 Power Purchase Agreement (PPA) to establish an escrow account with the Bank of Tanzania (BoT), to be used to deposit all payments pending the outcome of the arbitration.
But a few months before ICSID issued its ruling, the government controversially (and secretly?) paid all the escrow money to PAP after the company claimed that it had acquired full 100 per cent ownership of IPTL in September 2013.
The Washington-based ICSID ruled in favour of TANESCO in February 2014, ordering a tariff recalculation so that finally the escrow money could be paid to either IPTL or the power utility firm, only to then be informed that a third party (PAP) had already been paid everything.
SCB-HK took TANESCO to the ICSID after it realised that the money in the escrow account has been paid to PAP at a time when there was still another pending case over the tariff dispute.
The bank was demanding outstanding payments to clear a loan taken by IPTL’s initial owners to set up the electricity generating turbines.
The Hong Kong-based bank took over control of IPTL after the company failed to pay its loan in 2008, and has since then been fighting to recover the debt.
And after more than five years of rigorous legal proceedings, ICSID judges have now finally ruled in favour of the bank.
"The tribunal orders that TANESCO pay to SCB-HK (Standard Chartered Bank Hong Kong) the amount of $148.4 million with simple interest at three month LIBOR (London Interbank Offered Rate) plus 4 per cent from September 30, 2015 until the date of this award," ICSID said in its latest ruling.
"Interest shall continue at the same rate until full payment is received," the ruling added.
DUBIOUS ESCROW ACCOUNT PAYMENTS
ICSID also ruled that payments made by the government from the infamous Tegeta Escrow Account "did not discharge TANESCO's obligations under the power purchase agreement (PPA) and thus cannot be used to reduce the amount that TANESCO owes SCB HK."
TANESCO paid more than $120 million from the IPTL Tegeta Escrow Account to Pan African Power Solutions (PAP)under dubious circumstancesin 2013.
The escrow account payments triggered a major national corruption scandal which ultimately led to the resignations of at least three senior ministers in then president JakayaKikwete's government.
A number of other senior government officials were also charged with corruption at the Kisuturesident magistrate's court over the IPTL escrow account scam.
Lawyers representing Standard Chartered Bank at the arbitration accused TANESCO of misleading the ICSID tribunal judges by concealing facts about the payments made from the escrow account to PAP.
"SCB-HK understands that PAP used $75 million of the funds obtained from the escrow account to pay VIP Engineering and Marketing Limited (owned by Tanzanian businessman James Rugemalira) for its 30 per cent shareholding in IPTL," says part of the 100-page ruling.
"The funds held in the escrow account that should have been available to satisfy TANESCO's payment obligations to IPTL under the PPA (power purchase agreement) have therefore been paid to two Tanzanian parties - VIP and PAP - neither of whom made any financial contribution to the construction of the facility," it adds.
The ruling seen by The Guardian was dispatched to the parties involved in the arbitration - Standard Chartered Bank and TANESCO - on September 12 this year.
The ICSID is part of the World Bank Group and is funded by the Bretton Woods institution. It is headquartered in Washington, DC, in the United States.
An ICSID award is binding on all parties to the proceeding and each party must comply with it.
If a party fails to comply with the award, the other party can seek to have the pecuniary obligations recognised and enforced in the courts of any ICSID member state as though it were a final judgment of that state’s courts.
Members of the tribunal that issued the award in favour of Stanchartwere Prof Donald McRae (president), Prof Zachary Douglas (arbitrator), and Prof Brigitte Stern (arbitrator).
In the arbitration process, the bank was represented by a team of lawyers from two London-based law firms - Herbert Smith Freehills LLP and Linklaters LLP.
TANESCO was represented by a team of lawyers from Tanzanian-based law firms R.K. Rweyongeza& Co. Advocates and Crax Law Partners, and a Zurich-based law firm KellerhalsCarrard.
ICSID ruled that each party should bear its own legal fees and expenses.
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