Insurance firm heads to court over UG’s failure to pay $165M arbitration award

An insurance firm that was assigned all rights to recover the $165 million arbitration award against the University of Ghana over the termination of the Africa Integras deal has filed a petition at the United States Southern District Court of New York, to confirm the award. The petition has become necessary as a result of the failure of the University of Ghana to settle the judgment debt.

In its 16-page petition, ACE American Insurance Company indicates that the contract was terminated at the instance of the contractor, CPA Integras Ghana Limited, after the University failed to obtain a letter of credit as stipulated in the contractual agreement.

The petitioners, who claim to be successor-in-interest of the relevant rights and interests belonging to Africa Integras GH, are praying the US court to make an order confirming, recognizing, and enforcing the judgment debt.

“In accordance with 9 U.S.C. § 207 and Article III of the New York Convention, Chubb petitions this Court to confirm, recognize, and enforce the arbitration award that was issued in the United Kingdom by a duly appointed and authorized independent expert Case 1:21-cv-06472 Document 1 Filed 07/29/21 Page 1 of 16 2 on August 1, 2018 (the “Termination Value Award”), Bennett Decl. Ex. A, and subsequently assigned to Chubb via an Assignment Agreement between Chubb and CPA Ghana, dated October 11, 2019, Bennett Decl. Ex. B” paragraph one of the petition states.

Africa Integras GH was in 2015 contracted by the University of Ghana to construct four college buildings and a dormitory. But the company in May 2018 officially delivered a termination notice of the contract after Ghana’s premier university failed to obtain a letter of credit as stipulated in the contractual agreement.

The parties, therefore, began processes to decide a termination value as determined by the agreement when the termination arose out of a UG Event of default. The petitioners claim that clauses 3.9 and 8.4(b)(i) of the agreement directed the parties to go through a final and binding dispute resolution process that will require the parties to appoint independent experts to calculate the termination value.

The outcome of the termination value which the insurer claims will be final and binding must be paid by the institution within 90 days.

“The Concession Parties further agreed in Clause 3.9(a) that “the determination of the expert shall be deemed an arbitration award and shall be final and binding on the [Concession] Parties.”

Pursuant to this, the petitioner claims three independent experts were proposed to determine the termination value. According to ACE American Insurance Company known as Chubb, the University of Ghana accepted the proposal on May 16, 2018, and did not object to the grounds of termination.

Though the petitioner revealed that the University of Ghana later objected to the selection of Nicholas Vineall one of the experts, it participated fully in the termination value determination process. The petitioner alleges that the University of Ghana submitted rounds of written materials from external legal and financial advisers for consideration.

“Notwithstanding UG’s outside counsel’s purported reservations regarding the validity of Mr. Vineall’s appointment, the Concession Parties each proceeded to participate fully in the Termination Value determination process, as they indicated they would when Mr. Vineall was appointed. For example, the Concession Parties each submitted multiple rounds of written materials from external legal and financial advisers for Mr. Vineall’s consideration.”

Despite these concerns, the team determining the termination value on August 1 presented its report and awarded a cost of 165 million dollars against the University of Ghana.

“As the Concession Parties had agreed, on August 1, 2018, Mr. Vineall rendered his Termination Value Award in London, United Kingdom. Pursuant to the formula stipulated in Clause 1.2 of the Agreements and using “international financial best practices,” as stipulated in Clause 3.9, Mr. Vineall calculated the Termination Value payable by UG using the “Head B” calculation to be “US$145,077,127 plus the [Ghanaian] CEDI equivalent of US$20,688,626.”

While ACE American Insurance Company is not the contractor, it issued a corporate country risk insurance policy insuring the activities of the agreements against certain covered causes of loss including arbitration award, default on the part of the University of Ghana.

Following this, Chubb in October 2019 and Africa Integras executed an assignment agreement that transferred all rights of recovery in respect of the termination value award and all rights to receive any and all amounts outstanding under the award.

“On October 11, 2019, pursuant to Chubb’s country risk insurance policy covering the Agreements, Chubb and CPA Ghana executed an Assignment Agreement, by which CPA Ghana assigned Chubb “all rights of recovery . . . in respect of the [Expert Award]” and “all . . . rights, title, and interest in, and rights to receive, any and all amounts outstanding under the [Expert Award].”

The petitioner is therefore asking the US court, which it says has jurisdiction over the matter, to confirm and enforce the 165 million dollar judgment debt.

source:citinewsroom