A HIGH Court judge’s ruling setting aside over $850 million awarded to Brazilian construction firm Construtora OAS SA, over the Solomon Hochoy Highway extension project, has been appealed.
In December, Justice Frank Seepersad remitted the award to be paid to OAS by the National Infrastructure Development Company (Nidco) to the International Court of Arbitration, for reconsideration.
Nidco was ordered by arbitrators to pay OAS $857m but Seepersad held that the arbitration court erred when it either disregarded, misconstrued or failed to properly evaluate certain pieces of evidence.
The arbitration was over Nidco terminating its 2011 contract with OAS for the highway extension from San Fernando to Point Fortin. On Wednesday, OAS filed an appeal.
In its notice, OAS took issue with 23 of Seepersad’s findings and filed 13 grounds of appeal in opposition to the ruling. OAS said Seepersad erred in finding there was a legal basis to set aside the award and send the dispute between the parties back to the arbitration tribunal for reconsideration.
It also said his finding on the court’s jurisdiction was wrong and so too was his ruling on the merits of the dispute between the parties, including the construction of the contract and assessment of the evidence, while he also failed to limit the scope of his review to the award itself.
“The learned judge failed to indicate any identifiable error of law on the face of the award and muddled the grounds of error…,” was another of OAS’s complaints.
Seepersad was also said to have impermissibly reversed the tribunal’s judgment and usurped the tribunal’s functions
In his ruling, Seepersad said having reviewed the evidence that was before the tribunal, he was resolute in his view that no reasonable arbitrator cognisant of the law and seized of the evidence could have arrived at the position reflected in the award.
“In the circumstances, this court without fear or hesitation must exercise its inherent jurisdiction and discharge its obligation to defend the rule of law and to protect the public interest.
“Consequently, the commercial decision reflected in the contract to have disputes determined by the arbitrator has to be overridden and the Court must set aside the award as same was premised upon findings which were unsupportable on the evidence, inconsistent with the law and are decisions which no reasonable arbitrator could have arrived at,” he said.
In its appeal, OAS wants Seepersad’s judgment set aside. It also intends to ask for a stay of the December ruling until its appeal is heard and determined.
OAS is represented by Rolston Nelson, SC, Gregory Pantin and Miguel Vasquez.
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