ATTORNEY General (AG) Anil Nandlall, SC, has filed an appeal against the recent High Court ruling by Justice Gino Persaud, which favoured a United States (US) hydrocarbon exploration and production company seeking to enforce an arbitral award against Petróleos de Venezuela, S.A. (PDVSA), the Venezuelan state-owned oil and natural gas company.
The decision concerned the enforcement in Guyana of an arbitral award against PDVSA’s subsidiaries, Corporation Venezolana Del Petroleo, S.A and Petroleos De Venezuela, S.A, which was obtained by US company ConocoPhillips Gulf of Paria B. V in 2019.
The enforcement of the arbitral award means that ConocoPhillips can garnish monies it believes are being held by the Government of Guyana as debts to Venezuela.
The arbitral award has already been enforced in multiple jurisdictions, including the United States of America (USA), the United Kingdom (UK), Hong Kong, and several Caribbean nations.
The US company had brought arbitration proceedings at the International Chamber of Commerce (ICC) after the Venezuelan government expropriated its oil assets.
Justice Persaud, in his ruling, emphasised that the award had already been successfully enforced in other jurisdictions and found no lawful reason why it should not be recognised and enforced in Guyana. “A foreign arbitral award will be enforced at common law if the award is (a) in accordance with an agreement to arbitrate which is valid by its applicable law, and (b) valid and final according to the law governing the arbitration proceedings. A claimant is required to plead and prove both the arbitration award and the agreement,” the judge reasoned.
In his decision, Justice Persaud rejected the Attorney General’s arguments, including an assertion that enforcing the award could be perceived as “unpatriotic” and “anti-nationalist.”
In the Notice of Appeal filed Friday at the Court of Appeal, the Attorney General has outlined some primary grounds for challenging the High Court ruling.
The appeal challenges the jurisdiction of the Guyanese court to enforce a foreign arbitral award.
Nandlall contended that “The arbitral award is neither recognisable, registrable nor enforceable under the laws of Guyana and/ or by or in the Supreme Court of Guyana.”
As well, the AG argued that Justice Persaud’s ruling is “in excess of jurisdiction, null, void, and of no effect” and that it “affects or is likely to affect the national security and national sovereignty of Guyana.” The Attorney General has indicated in the notice that other grounds of appeal will be included upon the availability of Justice Persaud’s written ruling.
In a press release and on his weekly show “Issues in the News,” Nandlall talked about the potential effects of the award’s enforcement on Guyana’s ties with its neighbour to the west.
Enforcing the arbitral award, according to Nandlall, would go against Guyana’s “public policy” in light of the ongoing border dispute with Venezuela and the parties’ agreement in the Argyle Declaration to refrain from taking further action until the International Court of Justice (ICJ) renders a final decision, which may take years. According to him, Guyana’s Arbitration Act provides for the objection of the registration of such award on the ground that its enforcement would be contrary to the public policy of Guyana. If there had been no ongoing dispute, he said, the government would not have opposed the award’s enforcement in Guyana.
Nandlall has disagreed with the judge’s conclusion that his submissions constituted a “veiled threat to the independence of the judiciary,” pointing out that his submissions were not disrespectful in the slightest and that the country’s sovereignty is at stake.
He called the judge’s remarks unfortunate and stated that filing a complaint with the Judicial Service Commission (JSC) was still a possibility. Judges are expected to act judiciously when on the bench, whatever the conduct with which they are confronted, the AG noted. Attorney-at-Law and Leader of the Alliance for Change (AFC), Nigel Hughes is representing ConocoPhillips.
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Publish date : 2024-08-16 21:10:00
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