By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Democratic National Alliance’s (DNA) leader yesterday said the Supreme Court might be “hard-pressed” to resist Baha Mar’s Chapter 11 demands due to a law that allows foreign judgments and orders to be registered in the Bahamas, subject to certain conditions.

Branville McCartney told Tribune Business that the Reciprocal Enforcement of Judgement Act 1924 might make it “very difficult” for Justice Ian Winder to refuse Baha Mar’s demands for recognition of the Chapter 11 bankruptcy protection proceedings in Delaware, should the dispute over the $3.5 billion project require Supreme Court intervention.

“I certainly can’t speak for the judge, but if it’s [the Delaware Bankruptcy Court] a court of competent jurisdiction that made the Order, it could be very difficult for the Bahamian judge not to recognise that Order,” Mr McCartney told Tribune Business.

“If the Delaware court complies with the conditions set in the Reciprocal Enforcement of Judgment Act, the Bahamian court might be hard-pressed not to invoke the terms of that Order for it to have effect in the Bahamas.”

Mr McCartney, an attorney himself, directed Tribune Business to the website of his own law firm, Halsbury Chambers, and a summary of the Reciprocal Enforcement of Judgment Act that it posted some two years ago.

This confirms that “judgments obtained outside of the jurisdiction of the Bahamas can be registered in the Bahamas” provided they comply with the requirements set out in the Act’s chapter 77.

A judgment is defined in the Act as “any judgment or order given or made by a court in any civil proceedings”, yet it is by no means certain this piece of legislation will assist Baha Mar’s cause - although it may well be central to the developer’s legal arguments should the court battle resume next Monday.

Based on the Halsbury Chambers website, there is no case law or legal precedent involving the Reciprocal Enforcement of Judgment Act and its use to recognise, and give legal effect to, Orders emanating from a Chapter 11 bankruptcy protection case in the US.

And both the Government and Baha Mar’s Chinese partners - the China Export-Import Bank and China Construction America - will clearly be resisting any bid by Baha Mar to have the Chapter 11 proceedings recognised by the Supreme Court.

They will argue that just one of the 15 Baha Mar entities that have filed for Chapter 11 protection are domiciled in Delaware, with the rest incorporated here.

And, given that it is a Bahamas-based project, with Bahamian-based jobs, creditors and an economy that will be most greatly impacted, the Government and Chinese will doubtless press for this jurisdiction to be the centre of all judicial action.

Meanwhile, Mr McCartney said it was “very curious” that no Bahamian companies had been named to Baha Mar’s unsecured creditors committee by the US bankruptcy trustee.

Tribune Business revealed yesterday that only US-based companies had been appointed to that committee, the closest Bahamian connection being Osprey’s joint venture construction partner, Yates.

The Bahamian contractor and its partner were listed as Baha Mar’s third largest unsecured creditor with $5.28 million owing to them.

China Construction America, at $72.6 million, and the Bahamas Electricity Corporation (BEC) at $19.5 million, were listed as the largest two unsecured creditors, neither of whom have been appointed to the Baha Mar creditors committee.

“I am surprised they are not named,” Mr McCartney told Tribune Business of the several thousand Bahamian creditors of Baha Mar. “I would certainly question why they were not named.

“That’s very unfortunate. I really would want to know what that is the case. A lot of Bahamian creditors are owed a lot of money, and that has an affect on the Bahamian economy. It is surprising they’ve not been appointed.”

Other members of the Baha Mar creditors committee include SBE Hotel Management, the SLS brand operator, which gives Baha Mar’s hotel operating partners a seat at the table.

Also present is Terracon Consultants, who are understood to have been the ‘structural engineers of record’ for the Baha Mar development in partnership with Bahamian firm, Integrated Building Systems (IBS).

Another creditor committee member, Suddath Global Logistics Bahamas, while appearing to be a Bahamian company, is headquartered in Jacksonville in Florida, based on its mailing address.

The final three creditor committee members are Purchasing Solutions International from Fort Worth, Texas; Las Vegas-based Schadler Kramer Group; and AECOM Technical Services, another US company.