Lead Editor Investigations
asha.javeed@guardian.co.tt
With the mothball of the NiQuan plant scheduled to begin this week and the hearing on the wind-up action listed for Friday, the company’s founder Ainsley Gill is now focusing his efforts on suing the Government.
Last week, the company terminated its 75 employees pending the wind-up action which will appoint a liquidator if successful.
NiQuan owes investors and contractors hundreds of millions of dollars, with exposure to several financial institutions in the country, including sums outstanding from legal judgments of about US$400 million.
Gill, in an email to all staff, said the company did not get the financial support it expected from its financiers and investors.
However, the Sunday Guardian understands Gill is now focused on suing the state through a bilateral investment treaty claim.
NiQuan is a subsidiary of NiQuan Energy LLC, a United States-registered limited liability company.
Gill is reportedly basing this defence on what he describes as the “‘favourable” outcome from mediation between the company and the Trinidad and Tobago Upstream Downstream Energy Operations Company Ltd (TTUDEOCL) at the International Criminal Court (ICC), delivered by Lord Neuberger of Abottsbury on January 24, 2024.
Abottsbury had said the gas agreement was not terminated and that TTUDEOCL was obliged to supply gas to the plant.
On January 23, 2024, TTUDEOCL’s attorneys said they did not accept that the contract had not been terminated and that it had an obligation to supply gas in accordance with that contract.
But Gill has been using that preliminary “favourable” outcome to keep hope alive in the plant to investors, and has been using it in his legal defences.
To this end, Gill has said that NiQuan is now proceeding with its claims against TTUDEOCL under ICC Arbitration rules for significant loss, cost and damage for breach of contract, as opposed to specific performance of the gas supply contract.
In his defence, filed against former Niquan vice president David Small’s wind-up action, Gill had disclosed that in parallel with the ICC arbitration proceedings, NiQuan and its parent entity, NiQuan Energy LLC, would also be pursuing its claim against the Government under International Centre for the Settlement of Investment Disputes (ICSID) arbitration rules for breach by the Government of the extant Bilateral Investment Treaty between Trinidad and Tobago and the United States.
“These parallel legal proceedings are supported by NiQuan’s lead financial arranger and noteholders, shareholders and other stakeholders. In the interim, the NiQuan gas-to-liquids (GTL) plant is under preservation of assets in silent mode. Further, the earlier legal proceedings initiated by NiQuan in the Trinidad courts seeking injunctive and declaratory reliefs against TTUDEOCL and the GORTT to compel the provision of the contracted guaranteed gas supply for NiQuan’s GTL plant to restart operations have been discontinued,” he had said in the court documents.
In an email to staff last week, Gill said the company had run out of money keeping the plant operational.
“Further, it is likely that a winding-up order will be made by the High Court pursuant to a winding-up petition brought against the company by two unsecured creditors. The next hearing is before the court is scheduled for the 3rd May, 2024. As a result of this, pending appointment of a liquidator by the court, the company is unable to extend the current furlough past the date of the 30th of April 2024. Therefore, at 5 pm on the 30th of April 2024, your Contract of Employment will be terminated and the Company will issue individual formal termination letters,” Gill said.
Employees have been furloughed since September 2023, after the plant was shut down following the death of Massy Energy employee Allanlane Ramkissoon on June 15, 2023, and the termination of the gas supply contract by the TTUDEOCL over a US$21 million debt.
Employees had told Guardian Media that their National Insurance (NIS) payments and Pay As You Earn (PAYE) were also not paid up to date by the company but were deducted from their salaries. In addition, NiQuan did not make contributions to their pension plan, which was part of their employment package with the Guardian Group.
Employees still don’t know who will ultimately be held responsible for this breach of duty.
NiQuan’s collateral agent, Republic Bank, argued that an order to wind up the company could jeopardise the initiative to the detriment of secured and unsecured creditors.
In making its case to the court, Republic Bank argued that should the company become operational, Small would be repaid.
On November 7, 2023, Republic Bank, along with other noteholders, passed a resolution to appoint a steering committee among noteholders to establish a plan for the now defunct plant moving forward.
To this end, the steering committee has engaged PricewaterhouseCoopers to develop a plan to rehabilitate the company, with a view to starting operations to settle its obligations to its various creditor groups.