Another chapter has begun in the saga of NML Capital Ltd’s attempts to collect on its holdings of Argentinean bonds (see here for earlier reporting on EJIL:Talk!) with the initiation of inter-State proceedings by Argentina against Ghana under the 1982 UN Convention of the Law of the Sea.
It will be recalled that on 2 October 2012, whilst on an official visit, the Argentinean naval training vessel the ARA Libertad was arrested in the Ghanaian port of Tema. Its arrest was ordered by Justice Richard Adjei Frimpong, sitting in the Commercial Division of the Accra High Court, on an application by NML to enforce a judgment against Argentina obtained in the US courts. The judge considered that the waiver of immunity contained in Argentina’s bond documents (which are at the heart of the dispute with NML) operated to lift the vessel’s immunity from execution. That waiver provides that:
To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the Foreign Sovereign Immunities Act to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment).
Argentina has strongly resisted this assertion of jurisdiction, claiming that it violates the immunity enjoyed by public vessels, which cannot be impliedly waived. It appears that the vessel remains under the control of a skeleton crew, who have prevented any efforts by the Ghanaian authorities to move the vessel, whilst being preventing themselves from leaving port.
Both States being parties to UNCLOS, on 29 October 2012 Argentina instituted arbitration proceedings against Ghana under Annex VII UNCLOS (Ghana not having made a declaration under Article 287 UNCLOS: see Article 287(3)). On 14 November 2012 Argentina applied to the International Tribunal for the Law of the Sea for the prescription of provisional measures prior to the constitution of the Annex VII arbitration tribunal (ITLOS press release here). Argentina may well have the law on its side as regards State immunity for warships. It may be, however, that ITLOS and an UNCLOS Annex VII arbitral tribunal are not the right fora for the settlement of its dispute with Ghana.