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Argentine ship case before Court of Appeal
From: Ghana | Daily Graphic          Published On: December 18, 2012, 08:38 GMT
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Argentine ship case before Court of Appeal

The Libertad

The Court of Appeal Monday ordered that the record of appeal in the matter of 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% 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) 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 of any affidavit in opposition.

Consequently, the court granted the motion as Mr Ankomah had wished.

There was no legal representation for the Republic of Argentina.

Mr Ankomah asked the court that since counsel for the Argentine government had been served, he wanted to move the motion. The court upheld his prayer.

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, 2012 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 judgments against the Argentine Government but Argentina has refused to honour the judgments 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 judgment by the US District Court for the recovery from Argentina of the principal amount of the bonds, valued at $284,184,632.30 with respect to 10.25% 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 initially 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, asking 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 November 29 and 30, 2012.

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