Attorney General of Belize & Ors v Belize Telecom Ltd & Anor (Belize)  UKPC 10 (18 March 2009)
Privy Council Appeal No 19 of 2006
(1) Attorney General of Belize
(2) ECOM Limited
(3) Belize Telecommunications Limited Appellants
(1) Belize Telecom Limited
(2) Innovative Communication Company LLC Respondents
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 18th March 2009
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Present at the hearing:-
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Hoffmann]
"The holder of the Special Share shall so long as it is the holder of 'C' Ordinary shares amounting to 37.5% or more of the issued share capital of the Company be entitled at any time by written notice served upon the Company to appoint two of the Directors designated 'C' Directors and by like notice to remove any Director so appointed and appoint another in his or her place."
"112. The office of director shall be vacated, if the director:
(a) holds any other office of profit under the company except that of managing director or manager; or
(b) becomes bankrupt; or
(c) is found lunatic or become of unsound mind; or
(d) is concerned or participates in the profits of any contract with the company…"
"[T]he court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court's function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves."
"If a term is to be implied, it could only be a term implied from the language of [the instrument] read in its commercial setting."
"In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men"
"(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying' (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract".
"I think that the articles of association of the company should be regarded as a business document and should be construed so as to give them reasonable business efficacy, where a construction tending to that result is admissible on the language of the articles, in preference to a result which would or might prove unworkable."