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Shipping News of the World: Round Two for Argentina

posted by Anna Gelpern

The International Tribunal for the Law of the Sea (ITLOS) in Hamburg has ordered Ghana to release Argentina's tall ship Libertad. The ship has been held in the port of Tema since October pursuant to a Ghanaian court order enforcing foreign judgments for NML. The ITLOS ruling was unanimous, but several judges filed separate opinions. The parties are due to report on compliance by December 22.  Thoughts after the jump.

  • Perhaps the most striking part of the order and the opinions is their essential avoidance of the issue that, to me, goes to the heart of the matter: waiver of sovereign immunity with respect to warships.
    • The order is very robust in reaffirming immunity of warships in general, and citing the policy grounds for it: without immunity, there is international conflict. It did not help Ghana that its port officials tried to move Libertad to a quieter location, and were greeted by armed and angry Argentine sailors.
    • However, the whole point here is that Argentina had waived immunity from attachment and execution the world over in its bond contracts. Some jurisdictions do not allow such waivers with respect to military ships; others require waivers to be express and construe them narrowly; yet others -- including Ghana -- seem to take the blanket waiver literally.
    • If the ship sails, the question becomes academic.
  • The order and the opinions spend the bulk of their energy on whether the tribunal has jurisdiction to hear the case and to order the release of the ship. One big question is whether the dispute between Argentina and Ghana involves interpreting the Law of the Sea convention. The fact that the ship was detained in Ghana's "internal waters", not farther out, complicated matters for some members. In the end, the majority decided that Article 32 of the convention, which deals with the immunity of warships, was good enough to cover them. The separate opinions are instructive because they range from citing additional treaty provisions supporting jurisdiction to basing the ruling on equitable grounds.
    • Ghana seems to have made itself vulnerable to equitable attack in two ways. First, it invited the ship and at least implicitly let Argentina assume it was safe to visit in reliance on the government's invitation. Second, Ghana essentially agreed with Argentina on the merits of immunity, but said it could not go against its own courts on separation of powers grounds -- a domestic constitutional argument that international courts do not like.
  • Since the port is losing revenue and the government is at least torn about the whole thing, I suspect Ghana will comply with the order. But as with anything in this case, nothing will surprise me.
  • Taking a step back, consider just how much of this entire debt saga hinges on interim remedies. In New York and in Tema, the creditors' only game is to make life miserable enough for Argentina (or anyone who might stand in the way) for long enough that it would settle. There is no permanent remedy because there is not enough accessible property to satisfy a judgment--interim pressure points are all there is. In this context, the traditional view of interim remedies as preserving the status quo pending the real thing is an awkward fit. This is just another byproduct of the perversity of restrictive immunity, a topic for another day (meanwhile, see Mark's post and excellent paper).
  • Taking another step back, ponder the creeping takeover of the global docket by Argentine crisis-related matters. National courts, ICSID -- now ITLOS ... Is any forum safe? Reading the various opinions, I wonder if the tribunal members might have felt creeped out for being dragged into this. On the bright side, since someone is clearly trying to mess up the holidays for the sovereign debt crowd, at least we now have real public international law types to keep us company.
  • The video is certainly worthwhile. It makes great background for party cooking, and is immensely instructive -- especially to those Argentina-Elliott watchers who are used to national court proceedings. The questions are different, the reasoning is different, the setting and manner of presentation are all different.
  • Finally, let us commit to avoid liberty puns; the "Don't Cry for" heading industry has ruined it for everyone forever.

Revised to add links.


Please find the latest update here - http://www.lexology.com/library/detail.aspx?g=e8c27516-1d90-47da-9b6e-52b10bbde08a - a legal dispute now is merely an academic discussion, indeed, at ITLOS.

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