Follow-Up: Ghanaian Court Actions

Following on from last Friday’s post on Blue Ridge petitioning the United States Court for the Southern District of New York for confirmation of the CMS Gas arbitral award against Argentina, there have been some interesting enforcement steps taken in a Ghanaian court in respect to Argentine assets.

Last week, Ghana’s Superior Court of Judicature granted NML Capital Limited, a judgment creditor of Argentina, an injunction and interim preservation order against the Argentine-owned vessel ARA Libertad, which arrived last Monday at the Tema port.  The injunction and preservation order was granted pending hearings on the enforcement in Ghana of judgments against Argentina issued by the aforementioned SDNY and supported by similar judgments in London.

As many readers are likely aware, this case is among hundreds of court actions brought by private creditors around the world seeking to enforce various judgments and awards against Argentina.  Argentina may obtain release of the ship by posting a bond with the High Court in Accra.

Given the narrowing enforcement options with respect to States that shield their assets, is ship arrest becoming the only viable means of enforcing an award against a foreign state that does not honour its obligations?  What are other effective methods to enforce a Sovereign award or judgment debtor to pay up?

S.D.N.Y. Court Breaks New Ground on the Enforcement of ICSID Awards

This past Sunday, the US District Court for the Southern District of New York issued an important decision on the enforceability of an ICSID award under the bilateral investment treaty between Argentina and the US.

The decision relates to the CMS Gas award and is noteworthy for the fact that it deals with issues of first impression such as the assignability of an ICSID award and whether there should be a limitations period in the enforcement of such an award.  It is also remarkable given the small number of published US court opinions dealing with the enforcement of ICSID awards.

Factual background

On January 8, 2010, Blue Ridge Investments L.L.C (‘Blue Ridge’) filed a petition in the US District Court for the Southern District of New York to confirm an ICSID award obtained against Argentina five years earlier by initial claimant CMS Gas Transmission Company (‘CMS’).  CMS brought a claim against Argentina in 2001.  The Tribunal found that Argentina had breached its obligations to CMS under the bilateral investment treaty between the US and Argentina, and awarded $133.2 million plus interest in compensation (the ‘Award’).  Argentina has not paid any portion of the Award to date.

In 2008 Blue Ridge purchased the Award, thus becoming its assignee.  Soon thereafter, Blue Ridge notified Argentina that it was the successor-in-interest to CMS and sought to enforce the Award in the Southern District of New York.  After two previous aborted attempts at enforcement, Blue Ridge again sought to have the award recognised and Argentina moved to dismiss on several grounds, discussed below.

Decision

US District Judge Paul G. Gardephe considered, amongst other things, whether Blue Ridge, as an assignee, lacked standing to seek recognition and enforcement of the Award.  Argentina argued that the term ‘party’ as used in Article 54(2) and throughout the ICSID Convention, refers to parties to the underlying arbitration, and therefore, only the original parties can seek recognition or enforcement of an award under Article 54(2).

Judge Gardephe went on to examine the meaning of the term ‘party’ or ‘parties’ under different articles of the ICSID Convention, carrying out a thorough textual analysis before concluding that the ICSID Convention used the term “party” in different ways depending on the meaning of each particular article and that there was nothing in Article 54 that limited the identity of those who could rightfully seek enforcement to the parties to the underlying arbitration.  Thus, Blue Ridge, as assignee, was able to seek enforcement.

Furthermore, the court considered whether there should be a limitations period for the enforcement of an ICSID award in the US courts.  As regards to limitation period, the Court concluded that under Article 54 of the ICSID Convention “a federal court is to treat the award of the arbitral tribunal as it would be a final judgment from a state court”.  Therefore, a 20-year statute of limitations which, under New York law, governs the enforcement of a final money judgment from a court of another state, is applicable in to the enforcement of an ICSID award in the New York courts.

Issues for Discussion

This decision may be seen as an important milestone International Arbitration case law as it may provide a new category of ‘tradable’ awards that can be bought and sold to third parties that may have nothing to do with the initial arbitral proceedings and may, potentially, fall short of satisfying essential requirements for bringing arbitral proceedings in the first place.

Additionally, the application of a 20-year statute of limitations seems controversial given the silence of the ICSID Convention (and, indeed, the U.S. implementing statute) on the matter.

 

Please leave your comments below!

Regular Postings from Young ICCA

As Young ICCA continues to grow and expand (now with over 800 members!), one of our goals is to use the Young ICCA blog as a means of providing regular posts concerning current events and topics in the arbitration world. Spearheaded by Young ICCA Co-Chair, Tim Foden, posts will include questions which we ask Young ICCA members to discuss in the ‘comments’ section. We look forward to your participation!

European International Arbitration Review seeks case note submissions

A new journal called the “European International Arbitration Review” is seeking case note submissions . The Review is published twice yearly around May and November. The Case Notes section constitutes a panorama of state court case law from around Europe touching upon or in relation to arbitration. The Review’s editors intend to procure as many case notes as possible for each edition of the Review. It intends to publish submissions from lawyers on case law developments in North, South, East and West Europe, as well as supranational/international case law developments (e.g., Court of Justice of the European Union, European Court of Human Rights) from time to time, to ensure as wide and balanced coverage as possible. Typically, there shall be 4-5 case notes per issue, ideally one report from each geographic area and, where appropriate, from the supranational/international arena as well.

The inaugural issue of the Review examined State support for arbitration (“arbitration-friendly” legislation, court judgments, etc.) and how this contributed to the creation of a self-contained system of international arbitration. In the November 2012 edition, the editors wish to examine the flip-side, namely, attacks by States on the scope/sphere/nature of arbitration through court judgments or legal proceedings before State courts in the interests of protecting higher systemic interests, such as ensuring the observance of fundamental principles of due process, etc (national level and EU level) or the uniform application of EU law, or for other reasons.

Young ICCA members interested to contribute to the second issue of the European International Arbitration Review, are invited to submit a case note touching upon or in relation to this issue. If this is of interest to you please submit in the first instance an abstract of 250-400 words in length by 15 September 2012 to editors Tim Foden (at Timothy.Foden@AllenOvery.com) and John Gaffney (at JGaffney@KSLAW.com), following which the editors may invite you to submit a full draft case note by 1 October 2012.

 

New- University of Miami and Young ICCA Scholarship Winner Announced

Wamiq Chowdhury has won the Young ICCA-University of Miami scholarship competition. The announcement was made by Ms. Judy Freedberg of the University of Miami at the closing ceremony of the ICCA Congress on 13 June in Singapore. The scholarship entitles Mr. Chowdhury to a fully-paid place in the year-long LLM programme in international arbitration, taught by leading international arbitrators including ICCA Governing Board President and Member, Jan Paulsson and Albert Jan van den Berg.

Mr. Chowdhury’s winning essay entitled “Recent Developments in ICSID Arbitration: Too Early to Jump Ship”, will be published on the Young ICCA blog. Mr. Chowdhury is a recent JD graduate of the NYU School of Law where he focused on international arbitration, participated regularly in NYU’s Arbitration Forums, and was a member of the University’s multiple award-winning Foreign Direct Investment Moot team. Marike Paulsson, Young ICCA co-chair says “we are delighted to offer a young arbitration specialist the opportunity to get insights from the leading arbitration specialist- this is a big step towards opening the doors of international arbitration”!