Samstag, 13. Oktober 2012
So that if under U. S law, it is not permissible to attach military assets, then that is the U. S. Law not Ghana law. // ob Schiffe der GRI-Kriegsmarine auch Ghana anlaufen......
Final question is did the Defendant/Applicant waive the immunity?
In answering this question I am compelled to sacrifice brevity and at the risk
of being repetitive re state the second bit of the term in the FAA and the bonds
on which the Plaintiff relies to clam waiver. The second part is what directly
relates to assets. It states:
"To the extent the Republic or any of its assets or properties shall be
entitled in any jurisdiction in which any specified court is located, in which
22
any related proceeding may at any time be brought against it or any of its
revenues, assets or properties, or in any jurisdiction in which any specified
court or other court is located in which any suit action or proceeding may
at any time be brought solely for the purpose of enforcing or executing
any Related Judgment, to any immunity from suit, from the jurisdiction of
any such court, from set-off, from attachment prior to judgment, from
attachment in aid of execution ofjudgment, from execution of a judgment
or from any other such legal or judicial process or remedy and to the
extent that in any such jurisdiction there shall be attributed such as
immunity, the Republic has irrevocably agreed not to claim and has
irrevocably waived such immunity to the fullest extent permitted by the
laws ofsuch jurisdiction ...."
It was not for nothing that Lord Collins of the U. K. Supreme Court describes
the provision as "the clearest possible waiver" of immunity Argentina could
have given.
What is essential to note is that the Defendant/Applicant gives a proviso and
proceeds to list a number of things which the immunity does not cover. Even
there the Defendant/Applicant names another category of courts as the
"Republic's Courts" and places the list within the purview of those courts.
Learned Counsel for the Defendant/Applicant has argued that the courts of
the United States of America where the judgment was given has failed to
recognize the inclusion of military assets in those properties that could be
attached. I do agree that the U.S Court have done so. But what I think Counsel
23
fails to recognize is theaspect of the provision which subjects the threshold of
the assets attachable to the municipal law of the court exacting the
attachment. The relevant portion reads:
"... 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".
So that if under U. S law, it is not permissible to attach military assets, then
that is the U. S. Law not Ghana law.
In fact it has been shown that the U S. has a specified legal regime under the
Foreign Sovereign Immunities Act which specifically forbids the detention of
assets or properties used in connection with a military activity or of military
character or under the control of a military authority or defence agency.
I do not know of any such legal regime in Ghana. The closest I think Counsel
could come to any such regime was his reference to Section 392 of Ghana
Shipping Act.
The Section provides:
"Non Commercial Cargoes owned by a state and entitled at the time of
salvage operations to sovereign immunity under recognized principles
of public international law are not subject to seizure, arrest or detention
by legal process or to an action in rem without the express consent of
the state owner of the Cargo".
24
As it can be seen the whole of part 12 of the Act under which Section 392 falls
is on salvage. The vessel Libertad is not on salvage in Ghana. In any case, the
same provision recognizes waiver because of the phrase:
"without the express consent of the state owner of the Cargo".
Having examined the arguments from both sides, and upon reading the
parties own agreement, I find that the Defendant/Applicant has in clear terms
waived the immunity attributed to the vessel Libertad through the mode of a
written contract which made is recognized by the rules of international law.
CONCLUSION
In the end I come to the conclusion that no sufficient basis has been
demonstrated by the Defendant/Applicant for me to set aside the order I gave
on the 2nd October 2012. The order was properly and validly made. It gave
the Republic of Argentina the option of providing security and taking away the
ship.
If that option is unattractive for whatever reason, so be the order of the Court.
The motion is accordingly dismissed.
(SGD)
RICHARD ADJEI-FRIMPONG
JUSTICE OF THE HIGH COURT
ganz hartgesottene Kläger/Vollstrecker vs Sovereigns erhalten die kompletten 24 Seiten gegen email
rolfjkoch@web.de
Keine Kommentare:
Kommentar veröffentlichen