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Home Articles posted by Michail Risvas

The Saga Continues: Argentina’s Request for Provisional Measures v Ghana before the ITLOS

Published on November 20, 2012        Author: 

On 14 November 2012 Argentina filed a Request for provisional measures before the International Tribunal of the Law of the Sea (ITLOS) based in Hamburg, Germany in accordance with Article 290(5) of the United Nations Convention on the Law of the Sea (UNCLOS), requesting Ghana to release the frigate ARA Libertad, a sailing training vessel of the Argentine Navy. For the background of the case relating to Argentina’s default on its external debt in 2001 see my previous EJIL:Talk! post. This brief post will touch upon certain jurisdictional and substantive issues of the case, with particular emphasis on the jurisdictional framework established by the UNCLOS, the question of jurisdiction, and the scope of Argentina’s waiver with regard to enforcement immunity of warships.

Some Jurisdictional Aspects of the Case: The Forum

Although the case relates to the seizure of a vessel, it should be stressed that the case in question is a provisional measures case and not a prompt release case (Article 292 UNCLOS) which constitute the majority of the cases decided by the ITLOS so far. Where there is no agreement regarding which court or tribunal should decide on the prescription of provisional measures, the ITLOS will decide on the matter, provided that proceedings are already initiated before an arbitral tribunal  (Article 290 UNCLOS). Read the rest of this entry…

Filed under: EJIL Analysis, International Tribunal for the Law of the Sea, Law of the Sea, State Immunity
 

Argentina’s Sovereign Debt Default Cases: Some Recent Developments in a Continuing Saga

Published on November 9, 2012        Author: 

More than ten years have passed since Argentina defaulted on its external debt obligations in December 2001. However, the repercussions of the Argentine financial crisis continue to contribute to the development of international law. This brief note provides a short overview of the most recent decisions of different domestic courts arising out of this Argentinian saga: NML Ltd et al. v the Republic Argentina before the US Court of Appeals decided on 26th October 2012 (see reporting here, here, here and here), and the decision of the Ghanaian Commercial Court of 2nd October 2012 (see Opinio Juris, BBC, Al Jazeera,  and elsewhere: here, and here), while reference will be made to the NML v Argentina case, before the UK Supreme Court which was decided on 6th July 2011 (see reporting here and here).

These three cases pronounced on inter-related, but distinct, legal issues (enforcement of foreign awards, state immunity, and non-discriminatory treatment of bondholders) arising out of the Argentine decision to default on its external debt. In combination, they have far-reaching legal implications. It is noteworthy that different courts from around the globe repeatedly ruled in favour of bondholders and against Argentina. Although Argentina in and out of court has invoked political arguments, such as the implications of the court’s approach to the Eurozone crisis resolution efforts (in NML v Argentina before the US Court of Appeals) and the nature of the claimants as ‘vulture funds’ (see here reacting to the Ghanaian Commercial Court ruling; see also Lord Phillips and Lord Collins in NML v Argentina  [2011] UKSC 31, paragraphs 1 and 104-107 respectively), domestic courts consistently prioritise a more legal or stricto sensu approach and promote the Rule of Law in international economic and financial relations.

Background and US Proceedings

After the default in 2001, Argentina made exchange offers to holders of bonds, which were governed by the Fiscal Agency Agreement (FAA). Read the rest of this entry…

Filed under: EJIL Analysis, Financial Crisis, International Economic Law, International Law and Domestic Law, State Immunity