The case of the day is Osei v. Standard Chartered Bank (SDNY 2015). The plaintiff, Akwasi Boakye Osei, alleged that Standard Chartered Bank and Standard Chartered Bank Ghana Ltd. wrongfully dishonored several checks, causing him to suffer an injury. He sued in the High Court in Ghana, claiming breach of contract, conspiracy, and defamation and seeking more than $40 billion (!) in damages. He claims to have won a judgment of $14 million in Ghana, and he sought recognition in New York and other relief.
Continue reading Case of the Day: Osei v. Standard Chartered Bank
So as not to get too far into the week without some cases of the day, I am going to cover some recent happenings in two of our favorite cases in a single post. First is an update on the hearing on Chevron’s motion to dismiss in Toronto; second, the hearing on the Liberdad case in the Hague.
Chevron’s Motion to Dismiss
There has been a fair amount of coverage of Chevron’s motion to dismiss in Yaiguaje v. Chevron Corp., the Lago Agrio plaintiffs’ effort at recognition and enforcement in Ontario. According to Bloomberg, the judge seemed to favor Chevron’s jurisdictional arguments, which focus on the lack of connection between the case and Ontario, or rather the Chevron subsidiaries with a presence in Ontario. We will, of course, have full coverage of the judge’s decision once it is announced, but that may not be for several weeks or even a few months.
The International Tribunal on the Law of the Sea held hearing in the Liberdad case on November 29 and 30. I have previously linked to Argentina’s application; here now is Ghana’s written statement, which focuses on jurisdictional and procedural issues and not on the main substantive question of the vessel’s immunity from arrest under international law. However, the substantive question and other aspects of the case are discussed in the verbatim records of the hearing, which are available at the ITLOS website. One particularly interesting tidbit came from the second day of the hearing, when Ghana’s advocate, Philippe Sands QC, pointed to an internal memorandum from the Argentine ministry of foreign affairs indicating that the government of Argentina had appreciated for months the risk that the Liberdad might be seized:
The frigate Liberdad enjoys the immunities provided for the State’s public property. However, bearing in mind the existence of judicial proceedings against the Republic in various foreign jurisdictions, it is not possible to guarantee that its training voyage might not result in potential claims, precautionary measures or enforcement measures during its stay in foreign ports.
The Tribunal’s decision is expected on December 15, though that date may change.
As I briefly noted a few weeks ago, a Ghanaian court, on the motion of NML Capital, arrested an Argentine naval vessel, the ARA Liberdad, while it was in port. NML, of course, is one of Argentina’s creditors on its sovereign debt. A coup for NML and its lawyers, and highly embarrassing for Argentina.
I assume that the arrest was legal under Ghanaian law, though for comparison note that it would almost certainly not have been legal under § 1611(b)(2) of the FSIA. But Argentina asserts that it was illegal under international law. I assume the case is that international law makes the Liberdad immune from arrest and that either Argentina has not waived its immunity or the immunity is not waivable.
Argentina has now taken its case to the International Tribunal for the Law of the Sea in Hamburg. It seeks the unconditional release of the Liberdad as a provisional measure.
Question: is the FSIA’s apparently absolute immunity for military property evidence of the customary international law here?
I’ll keep you posted!
Update: Here is Argentina’s request to the Tribunal.