Argentina Takes the Liberdad Case to the ITLOS

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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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