Friday, September 3, 2021




While it was no secret that Ali Sadr Hashemi Nejad's shuttered Pilatus Bank was ultimately owned by his Hong Kong shell company, Alpene Ltd., the fact that he brought a Discovery application in US District Court in Brooklyn, to aid in his new Arbitration claim against the Republic of Malta, through that entity, raises questions which we hasten to find answers to. 

The Arbitration is through the World Bank, via the International Centre for Settlement of Investment Disputes (ICSID).  The Citation is Alpene vs. Malta,  ICISD Case No.: ARB/21/36. The Respondents are Malta's Prime Minister, Minister of Justice, Minister of  Finance and Financial Services, and Minister of Foreign and European Affairs.

According to the Application, Alpene Ltd. is the "indirect owner" of Pilatus Bank PLC (a Malta company),by virtue of its 100% ownership of Pilatus Holdings Ltd., which owns Pilatus PLC. Do we know why the direct owner of the bank, Holdings, was not the applicant in the US civil suit seeking Discovery ? Maybe we can venture an educated guess or two. 

Perhaps Sadr's attorneys (not the same as those who filed the failed New Hampshire case) fear that naming Pilatus Holdings exposes bank ownership to a Motion to Intervene, by a third-party claimant. if Holdings filed the Application, it would subject itself to the jurisdiction of the US courts, making it fair game for creditors, prosecutors and regulators. Who knows who would be going after it.

Alternatively, perhaps the fact that Malta, in 2009, entered into a Bilateral Investment Treaty with the Peoples' Republic of China may be a strategic reason, given that the underlying case is an international arbitration, under the auspices of the World Bank, rather than a civil suit, and that fact may offer tactical advantages amongst the sitting arbitrators. 

 On the other hand, does bringing the Application through Alpene raise Standing issues ? Standing, whether a party has sufficient legal interest and injury to bring an action, might be raised by attorneys for Elizabeth McCaul, the individual from whom Discovery is requested in the New York case. I frankly do not know whether it would prevail, but I bring it up because you should expect all possible issues to be raised. 

Does Alpene Ltd. own Pilatus Bank to conceal the fact that the Ultimate Beneficial Owners include Iranians who are OFAC sanctioned ? We cannot say, but there's a reason in there somewhere that demands an answer. Sadr never specifically said who owns the bank; he just stated he is an owner.

Whether there is any merit to Sadr's attorneys' claims of misconduct in connection with the winding down of Pilatus should be decided in arbitration, free from the money laundering issues, but there are always political considerations in arbitration, whether they are apparent or not. It will be interesting to follow the arbitration after the Application is decided. 

You can, of course, expect strong opposition from Elizabeth McCaul's attorneys. They will take offense to the allegations of misconduct, as will the Maltese regulators who were named and shamed. Expect details about Pilatus Bank that have previously not been made public to surface.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.