Argentine ship case before Ghana’s Court of Appeal
The Court of Appeal Monday ordered that the record of appeal in the matter relating to the seized Argentine naval ship should be remitted to the Registrar of the Commercial Division of the Accra Fast Track High Court for the inclusion of certain processes in order to make it accurate and complete.
The court’s order followed a motion filed by Mr Ace Ankomah, counsel for NML Capital Limited, a commercial creditor of Argentina, which is embroiled in a legal tussle with that country over the recovery of the principal amount of $284,184,632.30 with respect to 10.25 per cent Global Bonds due July 21, 2030, plus interest thereon.
This comes barely three days after the UN International Tribunal for the Law of the Sea (ITLOS) had ordered Ghana to release the naval ship.
According to the Court of Appeal, its records indicated that the Republic of Argentina had been served with the motion, which was filed on December 10, 2012, but there was no indication as to any affidavit in opposition.
Consequently, the court granted the motion, as prayed by Mr Ankomah.
There was no legal representation for the Republic of Argentina, while the parties were absent.
Mr Ankomah prayed the court that since counsel for the Argentine government had been served, he wanted to move the motion and his prayer was upheld by the court.
He said the amendment of the record of appeal was in respect of four specific processes, namely, the record of proceedings of the trial court for November 9, 2012; a ruling of the trial court dated November 21, 2012; a motion by the Argentines dated November 13, 2012, and record of proceedings dated November 13, 2012, as well as a ruling of the court on that day.
Counsel said those processes were not accurate and needed to be amended, hence the application.
The Argentine Navy training vessel was held at the Tema Port on Tuesday, October 2, 20I2 after NML Capital Ltd had obtained an order at the Commercial Division of the Accra Fast Track High Court that Argentina owed NML Capital Ltd $284,184,632.20 in bonds which had been in default since 2002.
That followed the granting of an application for an injunction and interim preservation filed by NML Capital against that country.
Argentina has appealed against the decision.
NML Capital is a subsidiary of Elliott Management, a New York-based investment fund engaged in the management of investments on behalf of pension funds, university endowments and other institutions and individuals.
International creditors have won more than 100 court judgements against the Argentine Government but Argentina has refused to honour the judgements and repudiated bonds which it issued in good faith.
US and UK courts are said to have awarded $1.6 billion in claims in favour of NML Capital.
The legal action in Ghana is among hundreds of court actions brought by private creditors around the world seeking to recover their loans.
NML Capital was, on December 18, 2006, granted a summary judgement by the US District Court for the recovery from Argentina the principal amount of bonds valued at $284,184,632.30 with respect to 10.25 per cent Global Bonds due July 21, 2030, plus interest thereon.
Consequently, on December 5, 2011, the UK High Court (QB) ordered the payment of the principal bond amount with interest by consent.
The ARA Libertad, a training ship for seamen from Argentina and other countries, was said to be on a tour of Africa. Its value has been estimated at between $10 and $15 million.
It was launched in 1956 and has an overall length of nearly 104 metres.
Tema is one of more than a dozen ports where the ARA Libertad had planned to call for training and supplies in its six-month circumnavigation of the Atlantic Ocean after arriving on October 1, 2012 on an official goodwill visit to Ghana.
While the appeal in Ghana was pending, on October 29, 2012 Argentina submitted a request for Arbitration under Annex VII of the UN Convention on the Law of the Sea seeking the release of the training vessel.
Prior to the establishment of the Arbitral Tribunal on November 14, 2012, Argentina had filed a request for the prescription of provisional measures to the ITLOS in Hamburg and requested that the tribunal order “that Ghana unconditionally enable the Argentina warship ARA Libertad to leave the Tema Port and the jurisdictional waters of Ghana, and be resupplied to that end”.
Ghana submitted its written response on November 28, 2012, inviting the ITLOS to reject Argentina’s request on the basis that the Annex VII Tribunal lacked jurisdiction over the dispute and that the requirements for provisional measures were not met in the case.
Oral hearings took place in Hamburg on November29 and 30, 2012.
Last Saturday, the ITLOS asked Ghana to release the Argentine naval ship which had been restrained from moving from the Tema Port to the Argentine Government by December 22, 2012.
According to the court, Ghana should “forthwith and unconditionally release the frigate ARA Libertad” and provide the assistance the crew would need to leave the port.
It said detaining the ship was “a source of conflict that may endanger friendly relations among states”.
The Germany-based court, presided over by Shunji Yanai, ordered that the vessel be resupplied if need be.
It held that the ARA Libertad had immunity because it was a military vessel.
Both countries were to pay their own costs.
“The Government of Ghana will carefully consider the tribunal’s order with the view to ensuring that it is given effect, having regard to the requirements of the Constitution and the country’s international obligations.
“The Ghana High Court decision to detain the ARA Libertad placed the Government of Ghana in a very delicate situation on account of the strong and positive relations we enjoy with Argentina. The Government of Ghana has always maintained that it does not consider itself to be in dispute with Argentina,” a statement issued in Accra by the government said.
Ghana, it said, cherished its democratic credentials with a democratically elected government and was firmly committed to the rule of law and utmost respect for the separation of powers.
“It is for this reason that the Government of Ghana was bound to respect the decision of the High Court in Accra to detain the ARA Libertad. Under the terms of Ghana’s Constitution, the Executive branch of government must have regard to the independence of the Ghanaian Judiciary,’’ it said.
A skeleton crew of sailors remains on board the Libertad after about 300 crew and naval cadets were flown home to Argentina in October.
Source: Daily Graphic
Funds like NML have been castigated as vulture funds by Argentina and even the UN. Well done to GBN for not using that word once. Whether you like them or not, they play a critical part in the international financial system because they provide badly needed liquidity for defaulted and nonperforming bonds. In the financial markets as in nature, vultures play a crucial role.
However, the role played by Ghana in this case raises eyebrows. If Ghana was such an innocent bystander, why did it have to spend a small fortune in taxpayer money employing top barristers from England in a now failed attempt to scuttle the hearing of an international tribunal? Ghana could just have gone to the tribunal and said they have no vested interest in this matter and the naval ship is in Ghana following diplomatic protocols at government to government level. Since Ghana is so concerned to maintain the separation of powers between the executive and judiciary, they want the tribunal to decide according to international law of the sea since Argentina brought the matter to the tribunal.
It would be interesting to find out the quantum of legal fees paid by NML. Or may be there is a perfectly rational explanation for the part paid by Ghana.