Planning for Intangible Assets Succession planning has always been central to protecting the continuity and value of a business. In Belize, where family-owned enterprises and international companies alike contribute significantly to the economy, the process of passing ownership and leadership to the next generation is becoming more complex. Traditionally, succession planning in Belize focused on tangible assets—real estate, machinery, inventory or established contracts. Today, however, the digital transformation of business means that many of the most valuable assets are no longer physical at all. The Rise of Digital Assets in Belizean Businesses From Belize City retail brands selling through e-commerce platforms, to tourism operators relying on online booking engines, to professional firms managing client databases—the digital backbone of a business now drives its value. Key digital assets may include: • Domain names and websites • E-commerce platforms and payment gateways • Social media accounts and digital branding • Proprietary software, algorithms, or customer databases • Cloud storage, hosting arrangements, and CRM systems These assets can be just as valuable as a property portfolio but they are far harder to measure, transfer, and protect without careful planning. You need to know now and act to be able to take advantage of the changes.
Trust Formation & Estate Planning
Glenn D. Godfrey & Co LLP has earned a strong reputation for its work in trust formation and estate planning, particularly for high-net-worth individuals seeking privacy, asset protection, and cross-border structuring. Here’s a quick snapshot of what we offer: If you’re exploring trust structures for privacy or asset protection, we are a solid choice.\
From Paperwork to Parenthood-
Building a Home Through Adoption in Belize Jane and Mark tried for years to have a child. But when they met 4-year-old Jamal at a fosterhome, something clicked. Today, James calls them “Mommy” and “Daddy,” and their home isfilled with laughter. This is the power of adoption—transforming not just a child’s life, but yourown. (Names changed for privacy.) Adoption in Belize is not as complicated as many assume. While it involves filing court documents, attending hearings, and possibly consulting government agencies, the process is manageable with the right guidance.For many, adoption marks the start of a beautiful journey—an opportunity to give love,stability, and family to a child in need. Whether the decision comes from infertility, personalconviction, or a desire to help, adoption opens the door to new beginnings.Legally, adoption is the process by which an adult or couple assumes full parentalresponsibility for a child, granting the child the same legal status as a biological one. InBelize, it is governed by the Families and Children Act (FCA), 2020, and the Adoption ofChildren (Supreme Court) Rules, both centered on the best interest of the child.Common concerns include eligibility, risks, and whether marital status affects the application.While many believe only married couples can adopt, the law permits committed, stableindividuals—including those in common-law relationships—to do so. With proper information and support, the adoption process in Belize can be a rewarding path to building a family. ARE WE ELIGIBLE TO ADOPT?A person applying to adopt (whether alone or jointly) must be at least 25 years old and atleast 12 years older than the child.There are restrictions to protect children—particularly female children—from being adoptedby a sole male applicant, unless the court is satisfied that special circumstances exist (e.g.,the applicant is a relative or the child has a serious disability). The current state of the law does not recognize common-law unions as valid for adoptionpurposes. If a common couple desire to adopt a child, the mother will have to make theapplication in her name.Adoption may occur through two channels: Private adoption, where the biological parent(s) willingly place the child for adoption. State-assisted adoption, where the child is under the care of the Department ofHuman Services, often as a ward of the State or in foster care.In either case, consent is crucial. Consent must typically be given by: The biological parent(s), The child’s legal guardian, or The Human Services Department (in the case of a ward of the State).There are circumstances where consent may be dispensed with—such as in cases ofabandonment, neglect, inability to locate the parent or guardian, or death.If the adopting party is a foreigner, additional documentation is required.Throughout the process, the adopting parties will interact with several agencies, includingthe Family Court, High Court of Belize, Department of Human Services, and in someinstances, the Immigration Department. However, the applicant need not concernthemselves with this, considering their Attorneys-at-Law will liaison with the respectivestakeholders in the process. WHAT IS THE PROCESS LIKE FOR US?Once the decision is made to adopt, the first legal step is to file an application in the HighCourt of Belize. This application must also appoint a Guardian ad Litem, typically theDepartment of Human Services, to represent the best interests of the child throughout theprocess.Prospective parents will need to submit a variety of documents, colloquially referred to bylocals as the “paperworks.” These include: These documents must be exhibited in an affidavit filed with the application. Truthfully, afteryou provide your legal representative with the listed documents above including any furtherinformation that is necessary to begin the process, your legal representative takes theresponsibility of moving the application forward from filing to finalizing the adoption order.This should cause a sigh of relief. Once the application is filed, the Department of Human Services will conduct a home studyto assess the living conditions and overall suitability of the prospective parents. Thisassessment ensures that the home provides a safe and nurturing environment in keepingwith the child’s best interests. The Department will then prepare a Home Study Report anda Social Inquiry Report. Both reports are relevant and crucial in the adoption process.Once the Home Study and Social Inquiry reports are filed, the court will set a hearingdate—ideally within 14 days of receiving the report. However, this timeline may be extendeddepending on the court’s schedule and other intervening circumstances. The Guardian adLitem must also be notified of the hearing date. Notably, adoptive parents may request a name change for the child during the applicationprocess. While the new name will appear in the court’s adoption order, the change must alsobe formally registered at the Vital Statistics Unit of Belize.If all documents are in order and the court is satisfied that adoption is in the child’s bestinterest, an Adoption Order will be granted—marking the beginning of a new family chapter.WHAT DOES ADOPTION MEAN FOR THE ADOPTED CHILD?The effect of an adoption order is far-reaching. Once granted, the adopted child is treated asthough born to the adoptive parent(s) in lawful wedlock. This means, the child is entitled toall rights and duties owed to or by a biological child, the child acquires the adoptive parents’surname (if requested). Furthermore, the adoptive parents assume full responsibility for thechild’s maintenance, education, and upbringing.Therefore, adoptions must be considered soberly and not a mere emotional undertaking tofulfil a dream. Additionally, the adopted child: Is entitled to inherit from the adoptive parents in cases of intestacy (i.e., where no willexists). Retains rights to property or interests from the biological family if such rights existedprior to the adoption. Is obligated, under law, to care for and maintain adoptive parents should theybecome infirm in old age.Ultimately, the law ensures that adopted children are not second-class citizens within theirnew families. They are fully integrated, protected, and loved—legally and emotionally. WHERE DO WE GO FROM HERE?While the legal process may seem complex, it is structured to safeguard the best interests ofchildren and to ensure that adoptive families are well-prepared and properly supported. In Belize, the law provides a clear framework for families who are ready to open both theirhomes and their hearts. For those considering adoption,
Why Should Banks Care About Quincecare Duty?
In today’s digital era, consumers, and banking service providers are more susceptible to fraudand cyber-attacks than ever before. Even with the best due diligence mechanisms, KYCprotocols and call back verifications, there may still be instances where fraudsters takeadvantage of the vulnerabilities of banking service providers or the consumer. A 2024 State of Fraud Benchmark Report published by Alloy, a company specializing in risk identification for financial service providers, revealed that nearly 60% of banks, fintechs, and credit unions suffered over USD $500,000.00 in direct fraud losses in 2023. Globally, the most common types of fraud include Authorized Push Payment (APP) fraud, bust-out fraud, and account takeover fraud. Despite agreements between banks and their customers attempting to exclude liability for fraud, a bank at common law still owes a Quincecare duty to its customers. This duty requires banks to refrain from executing a customer’s payment instructions if they have reasonable grounds to believe the transaction is an attempt to misappropriate funds. Understanding the Quincecare Duty The duty originates from the English case of Barclays Bank plc v Quincecare Ltd [1992], which established that the relationship between a bank and its customer is generally that of debtor and creditor. However, when processing a customer’s payment instructions, the bank also acts as the customer’s agent and, therefore, owes fiduciary duties. The court emphasized that banks must exercise reasonable skill and care in executing customer instructions and should not act on directions if put on notice of potential fraud. In that case, the court remarked that the circumstances of the transaction were “worth a call,” highlighting that simple, prudent measures might prevent large-scale financial loss. While this duty may appear burdensome, it is crucial in protecting customers from internal and externalfraud. Limits of the Duty: Philipp v Barclays Bank Whether this duty places a heavy burden on banks is a question worth considering. However, in cases like Philipp v Barclays Bank [2023] UKSC, where the Appellants lost their entire lifesavings in push fraud owing to the bank processing an order instructed by their clients who were being defrauded, the duty requires banks to be scrupulous with each transaction.In Philipp v Barclays Bank Mrs. Philipp scammed into transferring £700,000.00 to fraudsters.issue which concerned the court was whether the bank owed a Quincecare duty to an individual customer. The UK Supreme Court held that the Quincecare duty is not a standalone duty; rather, banks’ obligation is grounded in their contractual and tortious duties to act with reasonable care. This Case clarified that banks do not have a positive duty to prevent a customer from making a mistaken decision, unless acting through an agent .The court criticized the duty on two grounds. First, it noted that a bank’s duty of care may potentially conflict with its duty to execute its customer’s payment instructions. Secondly, the court observed that the approach adopted in the decision in Quincecare effectively imposes obligations on banks and their customers, regardless of whether they would have chosen those obligations themselves. The duty to combat fraud or protect consumers against fraud is not ordinarily implied in the contractual relationship between a bank and its customer. Nevertheless, despite these concerns, the Quincecare principle remains binding law and continues to be the subject ofongoing debate among scholars, jurists, and banking professionals. Regional Application: Caye International Bank v RosemoreThe Caribbean Court of Justice (CCJ) addressed the Quincecare duty in Caye InternationalBank v Rosemore [2023] CCJ 4 (AJ) BZ. In that case, the bank facilitated a transfer of funds based on instructions that were allegedly fraudulent, sent by individuals purporting to be the bank’s customer. The court considered whether the Quincecare duty applied in circumstances where a fraudster, without the customer’s authority, sent an email with an attached wire transfer request to the bank, appearing to originate from the customer. The court recognized that in the current internet banking environment, banks are already implementing enhanced security systems and authentication methodologies. Therefore, applying the Quincecare duty to online banking cannot be said to impose an unduly onerous standard on banks. The court affirmed that the duty is part of the prevailing law in Belize. Importantly, the bank did not provide any evidence of the measures it took after being put on inquiry about the possibility of fraud. The court held that, in the circumstances of the case, the bank should have exercised greater care in the verification process—such as by performing a call-back verification or sending an email to the client’s registered address. The court found that the bank breached its Quincecare duty and ordered that the bank return the sum of money that had been fraudulently transferred. Why Should Banks Care? Practical Implications? A bank’s client base spans individuals of modest means to high-net-worth customers andcorporate entities. Regardless of status, banks are entrusted with safeguarding their customers’ financial well-being. The Quincecare duty reinforces this obligation. Trust is foundational to banking relationships. With banking now largely digital, breaches in trust can significantly damage customer confidence. The rise of cryptocurrencies, marketed as more secure alternatives, only heightens the pressure on traditional banks to maintain strong ethical and security standards. Reputational risk is another key concern. Neglecting simple safeguards such as updated customer records or matching email addresses for verification can expose banks to costly legal action and public scrutiny. Litigation over fraud is both expensive and damaging to a bank’s brand. Regulatory compliance is also a compelling reason for banks to be diligent. In 2013, the Caribbean Financial Action Task Force (CFATF) identified Belize and Guyana as having significant AML/CFT deficiencies. Belize has since implemented legislation and systems to strengthen its banking sector and reduce its international risk profile. Maintaining strong compliance frameworks, including adherence to the Quincecare duty, supports these national efforts and helps banks avoid regulatory sanctions. A Call to DiligenceThe Quincecare duty reflects more than just a legal obligation; it is a standard of care that callsfor diligence, ethical conduct, and a proactive stance against fraud. In fulfilling this duty, banksnot only protect their clients but
Why Should Banks Care About Quincecare Duty?
In today’s digital era, consumers, and banking service providers are more susceptible to fraud and cyber-attacks than ever before. Even with the best due diligence mechanisms, KYC protocols and call back verifications, there may still be instances where fraudsters take advantage of the vulnerabilities of banking service providers or the consumer. A 2024 State of Fraud Benchmark Report published by Alloy, a company specializing in risk identification for financial service providers, revealed that nearly 60% of banks, fintechs, and credit unions suffered over USD $500,000.00 in direct fraud losses in 2023. Globally, the most common types of fraud include Authorized Push Payment (APP) fraud, bust-out fraud, and account takeover fraud. Despite agreements between banks and their customers attempting to exclude liability for fraud, a bank at common law still owes a Quincecare duty to its customers. This duty requires banks to refrain from executing a customer’s payment instructions if they have reasonable grounds to believe the transaction is an attempt to misappropriate funds. Understanding the Quincecare Duty The duty originates from the English case of Barclays Bank plc v Quincecare Ltd [1992], which established that the relationship between a bank and its customer is generally that of debtor and creditor. However, when processing a customer’s payment instructions, the bank also acts as the customer’s agent and, therefore, owes fiduciary duties. The court emphasized that banks must exercise reasonable skill and care in executing customer instructions and should not act on directions if put on notice of potential fraud. In that case, the court remarked that the circumstances of the transaction were “worth a call,” highlighting that simple, prudent measures might prevent large-scale financial loss. While this duty may appear burdensome, it is crucial in protecting customers from internal and external fraud. Limits of the Duty: Philipp v Barclays Bank Whether this duty places a heavy burden on banks is a question worth considering. However, in cases like Philipp v Barclays Bank [2023] UKSC, where the Appellants lost their entire life savings in push fraud owing to the bank processing an order instructed by their clients who were being defrauded, the duty requires banks to be scrupulous with each transaction. In Philipp v Barclays Bank Mrs. Philipp scammed into transferring £700,000.00 to fraudsters. issue which concerned the court was whether the bank owed a Quincecare duty to an individual customer. The UK Supreme Court held that the Quincecare duty is not a standalone duty; rather, banks’ obligation is grounded in their contractual and tortious duties to act with reasonable care. This case clarified that banks do not have a positive duty to prevent a customer from making a mistaken decision, unless acting through an agent. The court criticized the duty on two grounds. First, it noted that a bank’s duty of care may potentially conflict with its duty to execute its customer’s payment instructions. Secondly, the court observed that the approach adopted in the decision in Quincecare effectively imposes obligations on banks and their customers, regardless of whether they would have chosen those obligations themselves. The duty to combat fraud or protect consumers against fraud is not ordinarily implied in the contractual relationship between a bank and its customer. Nevertheless, despite these concerns, the Quincecare principle remains binding law and continues to be the subject of ongoing debate among scholars, jurists, and banking professionals. Regional Application: Caye International Bank v Rosemore The Caribbean Court of Justice (CCJ) addressed the Quincecare duty in Caye International Bank v Rosemore [2023] CCJ 4 (AJ) BZ. In that case, the bank facilitated a transfer of funds based on instructions that were allegedly fraudulent, sent by individuals purporting to be the bank’s customer. The court considered whether the Quincecare duty applied in circumstances where a fraudster, without the customer’s authority, sent an email with an attached wire transfer request to the bank, appearing to originate from the customer. The court recognized that in the current internet banking environment, banks are already implementing enhanced security systems and authentication methodologies. Therefore, applying the Quincecare duty to online banking cannot be said to impose an unduly onerous standard on banks. The court affirmed that the duty is part of the prevailing law in Belize. Importantly, the bank did not provide any evidence of the measures it took after being put on inquiry about the possibility of fraud. The court held that, in the circumstances of the case, the bank should have exercised greater care in the verification process—such as by performing a call back verification or sending an email to the client’s registered address. The court found that the bank breached its Quincecare duty and ordered that the bank return the sum of money that had been fraudulently transferred. Why Should Banks Care? Practical Implications A bank’s client base spans individuals of modest means to high-net-worth customers and corporate entities. Regardless of status, banks are entrusted with safeguarding their customers’ financial well-being. The Quincecare duty reinforces this obligation. Trust is foundational to banking relationships. With banking now largely digital, breaches in trust can significantly damage customer confidence. The rise of cryptocurrencies, marketed as more secure alternatives, only heightens the pressure on traditional banks to maintain strong ethical and security standards. Reputational risk is another key concern. Neglecting simple safeguards such as updated customer records or matching email addresses for verification can expose banks to costly legal action and public scrutiny. Litigation over fraud is both expensive and damaging to a bank’s brand. Regulatory compliance is also a compelling reason for banks to be diligent. In 2013, the Caribbean Financial Action Task Force (CFATF) identified Belize and Guyana as having significant AML/CFT deficiencies. Belize has since implemented legislation and systems to strengthen its banking sector and reduce its international risk profile. Maintaining strong compliance frameworks, including adherence to the Quincecare duty, supports these national efforts and helps banks avoid regulatory sanctions. A Call to Diligence The Quincecare duty reflects more than just a legal obligation; it is a standard of care that calls for diligence, ethical conduct, and a
Caught in the Clause: Limits on Arbitration Clauses & the Doctrine of Severability
Dispute resolution doesn’t always necessitate going to court. Alternative methods like mediation, arbitration, and negotiation offer diverse avenues for conflict resolution, often involving an impartial third party. In commercial contracts, arbitration clauses are particularly common. Arbitration is a private, alternative dispute resolution method where parties agree to let an independent third party make a binding decision. This agreement can stem from either mutual consent or a court order. Even when arbitration is agreed upon, certain situations—such as a void contract—may lead a party to seek court intervention instead. This is where the doctrine of separability becomes significant. The Doctrine of Separability asserts that an arbitration clause within a contract is a separate agreement from the main contract. This principle ensures that parties cannot evade arbitration by challenging the validity of the main contract. Thus, even if the main contract is deemed invalid or terminated, the arbitration agreement remains enforceable, compelling the parties to resolve disputes through arbitration. Instances When the Doctrine of Separability May Be Challenged While the doctrine of separability typically upholds arbitration agreements, there are instances where its application may be challenged, or the arbitration clause may not survive the contract. Absence of Binding Contract In DHL Project v. Gemini Ocean Shipping (the Newcastle Express) [2022] EWCA Civ 1555, the English Court of Appeal considered whether an arbitration agreement was binding when a pre-condition to the contract’s effectiveness was not satisfied. The Court distinguished between disputes concerning contract formation and contract validity. It held that in the absence of a binding agreement, the arbitration clause stood and fell with the main contract. Therefore, no contract existed to arbitrate. Illegal Contracts or Contracts Against Public Policy Courts may declare arbitration clauses void if the contract itself is illegal or against public policy. However, this is not always clear-cut, as courts may sometimes decide that an arbitrator is better suited to address the issue of illegality Challenging the automatic say of proceedings Parties to an agreement might feel disadvantaged by the potential outcomes of arbitration and prefer to have their disputes settled in court. These situations often arise from a breakdown of trust or confidence between the parties. Faced with an arbitration clause that limits their legal rights or avenues for recovery, a party may feel cornered into a process they believe to be unjust.Often, arbitration clauses in complex commercial agreements include predetermined choices of arbitrators, a choice of forum indifferent to one party’s situation, or a limitation of liability clause that excludes potential remedies. Faced with an arbitration process they deem invalid or untrustworthy, a party might seek court intervention, initiating a challenging legal battle. However, courts typically uphold the principle that it is not their role to rewrite the parties’ agreement, even if one party feels disadvantaged.In many jurisdictions, courts have a supervisory role in arbitration. In the UK and other Commonwealth jurisdictions, courts may also resist enforcing arbitration clauses under certain conditions. Before granting a stay of proceedings pending arbitration, courts assess whether the dispute falls within the arbitration clause’s scope and whether the prerequisites for a stay are met.English courts have recognized that serious allegations of fraud or professional dishonesty may justify refusing a stay of proceedings. In cases such as Radford v. Hare and Turner v. Fenton, courts have ruled that allegations of fraud by the party resisting arbitration can trigger judicial discretion, allowing the case to be heard in open court instead.Drafting and reviewing arbitration clauses with care is crucial. A clear, enforceable arbitration agreement aligned with the parties’ intentions is vital to avoid potential challenges later on. Legal representatives play a key role in ensuring that arbitration clauses are robust and reflect the parties’ expectations.Judicial decisions highlight that successfully challenging arbitration depends on the specifics of the dispute and the wording of the arbitration clause or the governing legislation. Despite the complexities, with the right legal strategy and careful contract drafting, it is possible to navigate and challenge arbitration mechanisms effectively. Immanuel P.O. Williams is an Associate at Glenn D. Godfrey & Co. LLP. You can reach him at immanuel@godfreylaw.bz or visit godfreylaw.net. This article is for general information and not legal advice.
Look Before You Leap: ENTERTAINMENT CONTRACTS IN THE ORANGE ECONOMY
Introduction In the vibrant landscape of Belize’s Orange Economy, encompassing a diverse array of creative industries, practitioners often find themselves navigating business arrangements without formal contracts. This ad hoc approach, colloquially known as “ketch and kill,” can lead to pitfalls for emerging talents. This article emphasizes the importance of formalizing business agreements through entertainment contracts to protect the rights and interests of creatives. Understanding the Orange Economy Defined as the creative economy, the Orange Economy is a rapidly growing sector contributing to 3% of the global GDP, generating $2.25 trillion annually. It is called the Orange Economy because orange is traditionally associated with creativity. With Belize making strides in the festival tourism scene, local talents are gaining exposure. As creativity becomes a commercial powerhouse, the need for careful consideration of business arrangements, particularly through contracts, becomes evident. The Role of Entertainment Contracts Entertainment contracts serve as binding agreements outlining the terms and conditions of business arrangements between parties. Tailored to the specific needs of the artist and industry, these contracts protect rights and define crucial details such as scope of work, timelines, payment terms, and more. Lack of a formal contract can lead to challenges, as exemplified by DJs facing unexpected situations during events. Common Pitfalls in Entertainment Contracts Contracts that fail to address the creative’s needs, often laden with legal jargon and vague performance obligations, can create ambiguity. Clarity is essential, ensuring that the contract aligns with the creative’s brand values and business goals. Additionally, protecting intellectual property (IP) is paramount. Creatives must address the use, management, and distribution of their IP in the contract to safeguard against copyright infringement and trademark violations. Compensation terms must be explicit to avoid delays or non-payment. Ambiguities in this area can result in creatives not receiving rightful compensation for their work. Legal advisers play a crucial role in implementing mechanisms to protect against such risks. Best Practices for Negotiating Entertainment Contracts Force majeure clauses have gained prominence, especially post-pandemic, providing protection when unforeseen circumstances disrupt contractual obligations. Creatives are urged to recognize the value of their reputation and artistry, necessitating due diligence in contractual engagements. Seeking legal advice helps foresee potential liabilities and ensures contracts are enforceable. Conclusion Belize’s Orange Economy is a reservoir of talent, making it imperative for creatives to formalize business arrangements through contracts. As the creative industry expands globally, the importance of protecting rights and establishing clear terms cannot be overstated. Before creatives sign the dotted line, it’s crucial to “look before you leap” and seek legal advice to navigate the intricacies of entertainment contracts in the evolving landscape of Belize’s Orange Economy. Immanuel P.O. Williams is an Associate at Glenn D. Godfrey & Co. LLP. You can reach him at immanuel@godfreylaw.net or visit godfreylaw.net. This article is for general information and not legal advice.
Virtual Assets and their Regulation
Virtual assets likely to be defined as to capture all crypto currencies, security tokens, utility tokens or other digital assets that is tradable or transferable, with the exception of digital fiat currencies. It may also be expressed as digital representation of value that can be digitally traded, transferred or used for payment; FATF’s rules apply when virtual assets are exchanged for fiat currency, but also when they are transferred from one virtual asset to another. Virtual assets make payment easier, faster and cheaper and provide alternative method for those without access to regular financial products. But proper regulations still need to be strengthened. The FATF has been closely monitoring the developments in the crypto sphere and in recent years has seen that the countries started to regulate the virtual assets sector, while others have prohibited virtual assets altogether. However, as yet the majority of countries have not taken any action. These gaps in the global regulatory system have created significant loopholes for criminals to abuse. With support from the G 20, the FATF has issued global, binding standards to prevent the misuse of virtual assets for money laundering and terrorist financing. The FATF standards ensure that virtual assets are treated fairly, applying the same safeguards as the financial sector. FATF’s rules apply when virtual assets are exchanged for fiat currencies, but also when they are transferred from one virtual asset to another. Countries need to implement the FATF measure soon; this will ensure transparency of virtual asset transactions and keep funds with links to crime and terrorism out of the crypto sphere. Now a davs virtual assets service providers are perceived it as risky business and denied access to bank account and other regular financial services. While implementing the FATF requirements will be challenging for the sector, it will ultimately increase trust in Block chain technology as the back bone behind a robust and viable means to transfer value. The FATF has revised its assessment methodology, which sets out how it will determine whether countries have successfully implemented the FATF’s recommendations and are regulating the virtual asset service provider sector. The effective global implementation of these standards by all countries will ensure virtual asset technologies and businesses can continue to grow and innovate in a responsible way, and it will create a level playing field. It will prevent criminals or terrorist seeking out and exploiting jurisdiction with weak or no supervision. Regulating virtual assets service providers is challenging for all. National authorities need to develop skills and to understand the technology involved, while the virtual assets service providers have to learn about the financial rules that now apply to their sector. It is up to the sector itself to develop the technology to meet the FATF’s requirements, particularly when it comes to securely collecting and transmitting originator and beneficiary information. To help governments and the industry itself, the FATF has developed risk based approach guidance with significant input from the sector itself. Written By: Sanjeev Das
Can a claim, debt, or other cause of action be assigned to a third party in Belize?
The answer to this question depends upon a variety of factors, all of which are set out in the case of Delia Andrews Hyde v. RF&G Insurance Company Limited, Civil Appeal No 1 of 2016. As is usual in cases involving insurance law, the short answer is, “It depends.” A slightly longer answer is that, yes, a cause of action may be assigned to a third party if several strict requirements are met. In case you don’t wish to read through the entire article, those requirements are as follows: If the case law is any indication, it appears that courts will be extremely hesitant to find that these conditions are met unless the assignee and assignor meet every technical and formal requirement under these conditions Delia Andrews Hyde v. RF&G Insurance Company Limited Before we embark upon an explanation of the conditions that must be met for a valid assignment to exist, a discussion of the leading case of Delia Andrews Hyde v. RF&G Insurance Company Limited, Civil Appeal No 1 of 2016 (Hyde) is warranted. That case was an appeal of a decision of Griffith J. on November 27, 2015 that found in favor of RF&G. The facts, briefly, are as follows: Delia Hyde was involved in a vehicle accident on November 29, 2013. She collided with a truck driven by Roselia Vallecillo, causing significant damage to it. Vallecillo was insured by RF&G, who paid her over $40,000 to settle the contract of insurance. Hyde was insured by Home Protector Insurance Co., but only for $20,000. Home Protector Insurance Co. paid RF&G the full $20,000 allowed by statute in Belize as Ms. Hyde was adjudged to be negligent and at fault for the collision. Thereafter, RF&G sued Hyde for an additional $17,980 to cover the remainder of its settlement of the insurance contract with Vallecillo. The trial judge found that Ms. Hyde was liable for the accident. He ordered Ms. Hyde to pay RF&G $16,805 plus costs and interest. Ms. Hyde appealed, arguing, among other things, that RF&G had no standing to sue her in its own name because Ms. Vallecillo’s claim had never been assigned to RF&G. The appellate court unanimously allowed Ms. Hyde’s appeal, finding that RF&G lacked standing to sue Ms. Hyde and that Roselia Vallecillo’s claim against Ms. Hyde had never been validly assigned to RF&G. The Doctrine of Subrogation and Exceptions Thereto The doctrine of subrogation applies to all contracts of non-marine insurance, including motor and fire insurance. It prevents the insured from recovering more than full indemnity and effectively allows an insurer to recover its losses against a tortfeasor who has harmed the insured. (See Paragraphs 32 and 33 of Hyde.) Such actions are brought in the name of the insured, rather than the name of the insurer. However, there is an exception to the doctrine of subrogation. Where the insured has assigned its claim to the insurer, the insurer must bring a claim in its own name. In an assigned claim, it is imperative that the plaintiff establish a valid assignment of the claim at issue, either in law or in equity. In the Hyde case, the respondent, RF&G Insurance, attempted to rely on Condition 5 of its contract of insurance with Vallencino, which read as follows: No admission offer promise or payment shall be made by or on behalf of the Insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in its name the defense or settlement of any claim or to prosecute in its name for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings and in the settlement of any claim and the Insured shall give such information and assistance as the Company may require. (Hyde, Paragraph 28) A number of facts were fatal to RF&G’s argument in favor of a valid assignment, however. Most importantly, the condition described above did not assign a valid, existing claim to RF&G. Instead, it merely assigned the right to pursue a claim that was not in existence at the time the contract was written. At that time, there was no loss and there was no payment for loss. Further, the assignment was not in compliance with Section 133(1) of the Law of Property Act, Chapter 190. I will turn to that subject next. The Law of Property Act Section 133(1) of the Law of Property Act, Chapter 190 reads as follows: (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, shall be effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice – (a) the legal right to such debt or thing in action; (b) all legal remedies for the same; and (c) … A careful reading of the foregoing provision will show that “express notice in writing” must be given to the debtor for a valid assignment to exist. In Hyde, the respondent insurance company argued that it’s attempt to secure reimbursement for its loss prior to instigating proceedings against the appellant counted as “express notice in writing.” The appellate court rejected that argument, finding that no less than formal notice in full compliance with the section was required. An Equitable Assignment The respondent insurance company also argued that there had been a valid equitable assignment insofar as the insured Vallecillo and RF&G entered into a valid contract for good consideration for the assignment of the former’s claim to the latter. The appeal court rejected that argument for the same reason that they rejected the claim that the
WHAT’S HAPPENING WITH STAKE BANK?
The term “Application for Leave for Judicial Review” is a term you have heard on the news recently. If it rings a bell it’s probably because it is the central issue of the highly anticipated case of Stake Bank Enterprise Limited (“Claimant/Applicant”) v The Attorney General of Belize, The National Environmental Appraisal Committee (NEAC), Department of the Environment (DOE) & Portico Enterprise Limited (collectively “the Defendants/Respondents”) Claim No. 269 of 2021. This case involves two cruise ports in Belize – Port Coral on Stake Bank Island, and Port of Magical Belize. Presently, construction of Port Coral has already begun while Port of Magical Belize has recently received environmental clearance. Stake Bank Enterprise Limited intends to challenge the decision of NEAC and the Department of the Environment of granting Environmental Clearance to Portico Enterprise Limited. To understand the development of this case it would be best to explain what judicial review is. Judicial Review is the procedure by which a court can review an administrative action by a public body and secure a declaration, order or award. In this instance the administrative actions were the granting of environmental clearance to Portico Enterprise Limited by the NEAC and entering into an Environmental Compliance Plan between the Department of the Environment and Portico Enterprise Limited. The public body being challenged is the NEAC and the Department of the Environment. The remedy being sought by the Claimant is an order of certiorari to quash both the decision of granting environmental clearance by the NEAC and the Environmental Compliance Plan entered into between Portico Enterprise Limited and Department of the Environment. Also, for an Order compelling the Defendants To establish a claim for Judicial Review the person intending to make the application must have the appropriate “locus standi”. Locus Standi is a Latin phrase describing a person who has sufficient interest in a claim. Rule 56.2(2) of the Civil Procedure Rules of Belize lists out who are people can hold a sufficient interest. “(2) This includes – After establishing Locus Standi the Application for leave and the grounds thereof are to be examined. The Court in deciding whether or not the application for leave will be granted follow the case of Sharma v Brown-Antonie [2006] UKPC 57. This case is important because it established a test that determines whether or not an application for leave is granted. The test established states that “the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy.” The test states that for a Court to grant Leave for Judicial Review the grounds on which the applicant is claiming must have a real prospect of success. This essentially means that the grounds on which the application are made for are not trivial and if explored would have a true chance of succeeding its court. The Claimant’s grounds for the application are as follows: After the assessment of the grounds was concluded it was held by Shoman J that all grounds applied by the Claimant attained the sufficient threshold to be considered a ground with a real prospect of success. An applicant can make their application by using any ground per se, however each case will be determined on the circumstances surrounding each individual case. As for Stake Bank Enterprise Limited, the grounds it has advanced its claim on were accepted by the court. CONCLUSION So what is happening with this case? In its shortest answer, there are two companies fighting to be the premier docking facility for cruise ship tourism in Belize. Stake Bank is challenging the Government’s decision to allow another company to construct a second cruise docking facility. Stake Bank needs the process of judicial review to have the Supreme Court order the Government of Belize and the relevant agencies to reverse their decision and reverse the granting of environmental clearance.
