Minister of Finance v Bunge Ltd

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Ward JA
• Judgment Date: 18 November 2013
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2013 No 4
• Date: 18 November 2013

[2013] Bda LR 83

In The Court of Appeal for Bermuda

Before:

Zacca P; Evans JA; Ward JA

Civil Appeal 2013 No 4

Between:

Minister of Finance

Appellant

and

Bunge Ltd

Respondent

Mr M Pettingill and Ms S Dill for the Appellant

Lord Pannick QC and Mr J Elkinson for the Respondent

The following cases were referred to in the judgment:

Lewis & Ness v Minister of FinanceBDLR [2004] Bda LR 66

Durant International Corporation v AG and Federal Republic of Brazil [2006] JLR 112

R (Evans) v Serious Fraud Office DirectorWLR [2003] 1 WLR 299

Liversidge v AndersonELR [1942] AC 206

Tax Information Exchange Agreement — Judicial review — Request for assistance — Confidentiality — Disclosure of the terms of the request

JUDGMENT of Evans JA

1. This appeal is against the judgment of Hellman J dated 13 March 2013 which granted an application for judicial review made by Bunge Limited (‘Bunge’) in relation to a statutory demand for information made by the Minister of Finance, the Appellant, under the International Cooperation (Tax Information Exchange Agreements) Act 2005 (‘the 2005 Act’). As stated in its Preamble, the Act ‘makes general provision for the implementation of tax information exchange agreements entered into by the Government of Bermuda … with other jurisdictions…’

2. The relevant Agreement was made between the Governments of Bermuda and Argentina and came into force on 14 October 2011 (‘the Agreement’). It provides by Article 1 —

‘the competent authorities of the contracting parties shall provide assistance through exchange of information that is relevant to the administration and enforcement of domestic laws of the contracting parties concerning the taxes and the tax matters covered by this Agreement… Information shall be exchanged in accordance with the provisions of this Agreement and shall be treated as confidential in the manner provided in Article 8.’

3. Article 5 is headed ‘Exchange of Information upon Request’ and reads —

‘1. The competent authority of a requested party shall provide upon request in writing by the requesting party information for the purposes referred to in Article 1…’.

4. In the present case, Argentina was ‘the requesting party’. Article 6 of the Agreement lists certain requirements for ‘information’ to be provided by the requesting party in support of its request to the requested party, Bermuda. Article 6 reads —

‘6. The competent authority of the requesting party shall provide the following information to the competent authority of the requested party when making a request for information under this Agreement in order to demonstrate the relevance of the information to the request:

• (a) the identity of the person under examination or investigation;

• (b) the period for which the information is requested;

• (c) the nature and type of the information requested, including a description of the specific evidence sought and the form in which the requesting party would prefer to receive the information;

• (d) the tax purposes for which the information is sought and the reasons for believing that the information request is relevant to the administration or enforcement of the domestic law of the requesting party;…’

5. It must be noted that the ‘information’ that must be provided by the requesting party (Argentina) to the requested party (Bermuda) is distinct from the ‘information’ which Argentina requests Bermuda to provide to it.

6. The Agreement contains a Confidentiality clause which reads —

‘Article 8

Confidentiality

1. All information provided and kept by the competent authorities of the contracting parties shall be kept confidential, in the same conditions as that obtained under its domestic laws … and shall be disclosed only to persons or authorities (including courts and administrative bodies) officially concerned with the purposes specified in Article 1 and used by such persons or authorities only for such purposes, including the determination of any appeal, or the oversight of the above. For these purposes, information may be disclosed in public court proceedings or in judicial proceedings.’

The 2005 Act

7. In order to comply with its international obligations under this and other Agreements of this sort, known collectively by their anagram ‘TIEA’, Bermuda enacted the 2005 Act. It provides —

‘Duties of the Minister

3. (1) The Minister is the competent authority for Bermuda under the agreements.

(2) The Minister may provide assistance to any requesting party according to the terms of the agreement with that party.

Power to require information

4. (1) The Minister may, by notice in writing served on any person in Bermuda, require the person to provide any information that the Minister may require with respect to a request for assistance by a requesting party.

(2) …

Power to require information

5. (1) The Minister may, by notice in writing served on any person in Bermuda, require the person to provide any information that the Minister may require with respect to a request for assistance by a requesting party.

(2) …

Statutory duty to provide information

6. (1) A person on whom a notice has been served under section 5 shall provide the information specified in the notice to the Minister, within the period specified in it.

(Failure to provide information as required by section 6(1) is a criminal offence: section 9)

Judicial review

8A. Nothing in this Act shall preclude the right of any person to apply for judicial review of any matter...