By Senator Rehman Malik
The important hard fact is that the actual custodian of the entire investigative outcome if any rests with Mr Robert Byrne who is a well-known detective in the UK; how come the entire investigation was sublet to a third party by Broadsheet as they did not have the capability to probe such financial corruption and this is a question for the then chairman and the government, if Broadsheet informed the NAB about it.
The government must approach Mr Robert Byrne, a highly professional detective to get more hard facts from him.
The country has now landed in an embarrassing situation, exposing our legal and ability to handle the issues going on in foreign courts. The then government hired Broadsheet to seek out alleged stolen money parked on foreign soil. Instead of hunting stolen money by some Pakistanis, Broadsheet, unfortunately, hunted Pakistan itself and now Pakistan has been forced to pay Broadsheet instead of getting the assets recovered.
This was the time when I was in exile, having arrived in London in 1999. Unfortunately, every government becomes a hunter of the previous government. An agreement was signed between the Broadsheet LLC and NAB in 2000 to help to recover the country’s stolen assets stashed in different offshore companies. Broadsheet LLC, based in the Isle of Man, was hired by NAB to trace out hidden assets of Pakistanis in foreign countries. It was Jerry James who signed this agreement, not with his own original company as one of his partners had undergone conviction and therefore James formed this new company under Man of Isle’s laws. NAB of the time, neither did the required due diligence nor bothered to add the exit clause in the agreement. It was a one-sided agreement full of flaws.
The company was established by Colorado businessman Jerry James and entered liquidation proceedings in the Isle of Man in 2005, before being dissolved. Although NAB had signed the agreement with Broadsheet from the Isle of Man, but terminated it through its solicitor Kendall Freeman in London on October 28, 2003, alleging Broadsheet had made a misrepresentation about its abilities. NAB of the time did not follow the right course to deal with this matter.
The few salient and relevant features and my comments on the agreement between NAB and Broadsheet are as under:
It is mentioned in the agreement that Broadsheet shall receive twenty percent of the amount available to be transferred plus a bonus if any, as may be allowed by Chairman NAB, and NAB shall receive the balance—eighty percent of the said amount thus recovered, which actually provided leverage to Broadsheet to openly demand a share of the proceeds by NAB.
NAB and Broadsheet agreed that in accordance with the authority granted to Broadsheet under the Power of Attorney it shall have the right, power, and authority to initiate litigation enforcement proceedings or negotiations it deems necessary in order to attach, seize, and ultimately gain control on behalf of NAB. This clause provided ultimate authority to Broadsheet to initiate proceedings and negotiation in their own capacity.
Both parties agreed to open an escrow account with a mutually agreed bank branch, that shall be jointly controlled by both, and also that the escrow account shall be operated in accordance with the terms of an escrow agreement that shall be governed by the laws of the Isle of Man and in case of there being no conflict and in accordance with the laws of the Islamic Republic of Pakistan, provided that in respect of the provisions for compensation, the laws of the State of Colorado and the United States of America shall apply. This clause was overlooked by name which was completely in favour of the other party.
It was also agreed that, in case of any dispute, the matter shall be finally resolved by arbitration with the right of appeal hereby agreed to be excluded and waived by the parties. This arbitration shall be conducted under the provisions and in accordance with the rules of the Chartered Institute of Arbitrators London mutually before a single arbitrator agreed by the parties. By accepting this clause, NAB deprived Pakistan of the right of appeal.
NAB and Broadsheet agreed that this Agreement may be terminated by either or both of them only with the consent of both parties. Either of them can terminate the agreement upon the provision of a written Notice of Termination to the other party effective thirty (30) days after receipt thereof. It should be determined whether NAB gave prior notice of 30 days’ notice to Broadsheet before terminating the contract in 2003.
No Notice of Termination shall be applied to persons or entities registered by Broadsheet in accordance with the terms since Broadsheet shall be allowed to continue its efforts to recover assets and no termination shall be affected. This is a contradictory clause; how could it be inserted in the presence of the above clause?
No Notice of Termination shall come in effect in any way during ongoing arbitration or any arbitration resulting from the processing of a registered case and settlement of any registered case.
NAB and Broadsheet agreed that the Power of Attorney attached here shall remain in force not to be in any way amended, revoked, or modified with respect to all Registered Claims until either the last of the Registered Claims has been settled, collected, or fully paid.
Upon the obligation of all the terms and conditions mentioned above, the agreement shall stand terminated which is again in the favour of broadsheet.
From these very clauses, in the end, Broadsheet very smartly protected its interests unethically which should have been realised and understood by the legal team of then NAB.
The question arises as to how can the name of a bankrupt company be used to form another company under the same name in the USA and why was this fact kept hidden from both parties?
Why has our government so far failed to lodge criminal proceedings both in the Isle of Man and in the USA? Kaveh Moussavi, who had no apparent connection with the infamous Asset Recovery Agreement of 2000, made his entry on the scene in 2009 by directly landing Pakistan into arbitration court.
In fact, when NAB had issued the termination notice in October 2003 to Broadsheet, Moussavi was in the middle of his legal troubles for misappropriation of oil proceeds by a multinational oil company as the main company was declared bankrupt in his petition in the UK.
Why was the entry of Moussavi not challenged as he was easily allowed to corner the government of Pakistan?
This information was a blessing for Moussavi as he rushed to the Isle of Man where he found another creditor of the original Broadsheet LLC and simply got the dissolution order reversed. He also appointed a liquidator of his choice and brought the original Broadsheet LLC back to life in order to sue NAB in arbitration but he kept secret that another similarly named company had been formed and did not initiate criminal action.
It is embarrassing and mind-boggling to note that NAB officers of high competence and probity hired Broadsheet LLC without any due diligence as they failed to notice that Broadsheet LLC was established a few weeks earlier with a capital of $200 only.
It is interesting to note that the original entity associated with the Asset Recovery Agreement, Jerry James, committed suicide in 2011, reportedly by jumping off the fifth-floor balcony of a Paris hotel. Eventually, in December 2018, former English court of appeal judge Sir Anthony Evans QC issued the order entitling Pakistan to make payment of $28.5m to Broadsheet which the federal cabinet has approved to pay in damages to Broadsheet LLC from the taxpayers of Pakistan without questioning the illegalities present in it. It is a fraud proven beyond any doubt with documented proofs and arbitrator judgment can also be challenged based on this criminal act by Broadsheet and its owners including IRA.
Despite the original defective agreement, why has the government failed to point out the criminal acts of the broadsheet and why was this criminal misconduct not made part of the arbitration?
In my opinion, Broadsheet owners/claimants deserve to be in jail rather than being the beneficiary of $28 million from our national exchequer. The government must move a case for criminal proceedings against them as no agreement can enable them to stop criminal proceedings which are independent courses of action as per UK laws.
I have explained the whole matter and failure in very simple language with hard facts. My Pakistan was defrauded and unfortunately, our legal fertility failed to defend its motherland.
Note: Opinions expressed are solely my own and do not necessarily reflect the views or opinions of my party.
(The writer is former Interior Minister of Pakistan, Chairman Senate Standing Committee on Interior and Chairman of Think Tank “Global Eye”. He is the author of four books and his fifth book is about to get published. He can be reached at: email@example.com, Twitter @Senrehmanmalik)