By Felix
Engsalige Nyaaba
The Commercial Division of the Accra High Court, yesterday
fixed Thursday October 11, to give its ruling on whether the court can invoke
its own jurisdiction and set aside an interlocutory injunction it granted for
the confiscation of Argentina Naval Vessel, following a judgment debt owed to
NML Capital Limited, an international funding company and commercial creditor
to the Argentina government.
The presiding judge, Mr. Justice Richard Adjei
Frimpong, fixed the date after he had received written submission of case and verbal
legal argument by both counsel in the case.
According to the judge, the case has an international
interest, as it involves a sovereign state and that the court would study the respective
arguments and statement of case by the parties and gives its ruling on
Thursdays October 11, 2012.
The ruling by the High Court would determine as to whether
or not the court can invoke its original jurisdiction and set aside the
interlocutory injunction for the seizer of the Argentina Military vessel on
Ghana’s territorial waters.
The court on October 2, this year granted an
interlocutory injunction brought by NML Capital Limited, for the confiscation
of the Argentina Naval vessel, following a judgment debt the Argentina
government owed in excess amount of US$280 million plus interest.
The orders by the Ghana’s High Court was in relation
with an earlier orders granted by United
Kingdom and United State courts in favour of the NML Capital Limited, which
therefore open the flood gate for
similar suit in Ghanaian court.
The Ghana High court orders requires the vessel ,
the Ara
Libertad to remains on Ghana’s territorial waters at Tema , till the final
determination of the case in court for
the enforcement of the judgment debt against the Argentina government by the
United state District Court for the Southern District of New York as well as similar court judgment in UK.
But in an application for an order to set aside the
interlocutory injunction and interim preservation of Ara Libertad vessel, the Argentina government said, the injunction
granted by the Ghana’s High court was illegal, for in its view the republic of
Argentina is a sovereign state and has a diplomatic immunity and that it naval
vessel could not be confiscated in Ghana.
In his legal argument, counsel for the Argentina government,
Mr. Larry Otu, said the Vessel was in Ghana on a diplomatic mission and has
such immunity covering it and that the injunction granted against the
government of Argentina was palpably contrary to the international laws and
that of the United Nations Law of the Sea on state property and immunity
(2004).
He contended that, the bond purchased and signed
under the Fiscal Agency Agreement (FAA), between the plaintiff and the
defendant, was on assets and property of the government within its jurisdiction
with limitations that can be confiscated, but not those assets outside it
boundaries and that the court has erred in granting the interlocutory
injunction for the seizer of its vessel in Ghana.
According to Counsel, per the Fiscal Agency
Agreement, the diplomatic waiver of the defendant asset was limited to its
diplomatic mission assets in other countries, but not its security or military
assets ands that the vessel was in Ghana under an invitation of the Ghanaian
Military to assist in training of officers and that could not be attach as
property of the defendant to defray the debt owed by the government of
Argentina.
Counsel argued that, the Ghana’s High court has
erred in granting the interlocutory injunction, confiscating the Ara Libertad, for in his view the United
Kingdom and New York District Courts orders was directed on the defendant
assets on diplomatic mission, but not on security assets and that the
injunction must be set aside for it has no legal bases.
But counsel for the plaintiff, Mr. Ace Ankomah,
opposed the application to set aside an order of interlocutory injunction and
interim preservation of Ara Libertad to
be set aside.
According to counsel, per the Fiscal Agency
Agreement (FAA), the defendant, expressly and irrevocably agreed not to waiver
any immunity from pre-judgment and execution attachment of any of its assets
and properties.
Counsel said the orders of the interlocutory
injunction and the interim preservation of the Ara Libertadvessel, are orders that were anticipated and agreed to
by the two parties and that the court has not breach any law.
He contended that, although the United Nations
Convention on the Law of the Sea recognizes the immunity of warship, that
recognition was based on the rules and principles of customary international
law which permit the immunity to be waived.
He argued that the defendant does not enjoys any immunity
under the terms of the United Nations Convention on jurisdictional immunities
of states and their properties (2004) as neither the defendant nor Ghana has
ratified that in its statutory laws.
Mr. Ankomah added that , although the defendant provided
limitation to its irrevocable waiver of immunity under the Fiscal Agency
Agreement (FAA), it chose to apply that limitation to only specific property
located in Argentina, and that the Naval Vessel is excluded since it was not
located at Argentina but on the Tema port of Ghana.
He therefore vehemently opposed to the application
to set aside the interlocutory injunction, inviting the court to dismiss the
application, saying it was in the contrary to the FAA and the United Nations
Convention Law of the Sea on which the bonds and securities was purchased upon.
The case of the plaintiff is that the defendant
entered into a Fiscal Agency Agreement dated October 19, 1994 with the Bankers
Trust Company and issued securities and bonds for the purchase by the general
public.
According to the facts, plaintiff purchased two
series of bonds issued by the defendant
, including 12%Global Bonds which was authenticated on February 3, 2000 and another
10.25% Global Bonds which also
authenticated on July21,2000, but the defendant failed to fulfilled the bonds
after it authentication.
The legal action in Ghana per the facts is one among
several of courts actions brought by private creditors around the world seeking
to recover their loans.
Argentina is allegedly to have had notorious
reputation for consistently ignoring international courts and international
creditors that have won more than 100 court judgements against the government,
but the country has refused to redeem those judgments.
More than a decade after the Argentina committed the
largest sovereignty default in history; the country has since accumulated more
than US$45 billion in foreign exchange reserves, yet has failed to resolve its
overdue debts to the numerous bondholders and lenders.
The confiscated Libertad Vessel is used for training
Seamen from Argentina and other countries. It was launched in 1956 and has
overall length of nearly 104 meters and Tema is one of more than a dozen ports
where the Ara Libertad plans to
calling for training and supplies in its six-month circumnavigations of the
Atlantic Ocean.
No comments:
Post a Comment