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‘Non-arbitration of audit dispute with BTRC breach of law’
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‘Non-arbitration of audit dispute with BTRC breach of law’

Dhaka, Dec 22 – Bangladesh has breached its treaty obligations under international law over the arbitration of resolving the Tk 1,2580 crore audit dispute between the country’s largest mobile operator Grameenphone and Bangladesh Telecommunication Regulatory Commission (BTRC). The allegations of breaching law have been brought against Bangladesh in a legal notice sent by Telenor Group, the main shareholder of GP, to President Abdul Hamid seeking arbitration to resolve the Tk 1,2580 crore audit dispute between the operator and BTRC.
“If no amicable settlement is reached within six months from the date of this notice, which sent to Bangladesh on October 14, 2019, Telenor Asia reserves the right to initiate International Centre for Settlement of Investment Disputes (ICSID) under Promotion and protection of Investment Treaty ( 2004 ) between Bangladesh and Singapour, the arbitration without further notice to Bangladesh,” according to the legal notice. The Independent has received a copy of the notice in the meantime. The notice served by Hong Kong SAR based law firm ALLEN AND OVERY.
In the legal notice, Grameenphone parent company Telenor alleged that it write to the president for various action and omission of Bangladesh, particularly BTRC, which amount to serious breaches of its obligations under the Treaty and have caused significant damage to Telenor Asia’s Investment and will cause further damage if Bangladesh’s present course is not immediately averted.
The dispute arises out unlawful and increasingly hostile action taken by the BTRC against GP since at least 2011 that resulted in a significant adverse impact on Telenor Asia investment in Bangladesh, the notice said.
“In spite of continued communications from GP reiterating the flaws in the scope and methodology adopted in the 2015 Audit and seeking an amicable resolution of the matter, on April 2019, the BTRC issued a demand letter claiming payment of BDT 84.940,104,730 (72.9% of which comprises interest) as well as a further sum of BDT 40,859,371,405 allegedly owed by GP to NBR,” the notice said.
The notice also said, “The 2019 demand claims sums allegedly payable to the NBR, despite the fact that the BTRC does not have the authority to claims any sums on behalf of the NBR and that such claims are either sub-judice or have already been settled with the NBR.”
The 2019 notice demand is based on allegations pertaining to periods going as far back as 22 years when the relevant limitation period for the claims made under most of the audit allegations has long since expired. The majority of the claims and the vast majority of the claimed amount are plainly time-barred as a matter of Bangladeshi law by the applicable limitation periods, the notice explained.
The 22 years long back dispute is highly prejudicial to GP as there are inevitably instances where GP is no longer in a position to defend itself properly due to the passage of time giving rise to serious natural justice concerns. The BTRC’s failure to raise the issue and the claims in a timely manner means that the claims are now also barred by the doctrine of laches, estoppels and waiver, the Telenor noted.
Bangladesh has breached its treaty obligations to create favourable conditions for investment under Article 3 (1), the obligation to grant fair and equitable treatment under Article 3 (2) and 4 (1) (2), the obligation to grant most-favoured-nation treatment under 4 (1), and the obligation to refrain from unlawful exportation under Article 5. Bangladesh is obliged to compensate Telenor Asia for all loses suffered by reason of the breaches of its treaty obligations, the notice said.
Telenor invested a huge amount of money in Bangladeshi leading mobile operator GP, which protected under the agreement between the government of the Republic of Singapore and the government of the People’s Republic of Bangladesh for the Promotion and Protection of Investments 2004 the Treaty. It sent the legal notice saying that its investment faced significant damage due to the unlawful action and omission by BTRC. – Staff Reporter

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