High Court judge raps Attorney General for veiled threat to judiciary’s independence; orders release of PetroCaribe debt to US oil company

Last Updated on Saturday, 27 July 2024, 16:58 by Writer

Guyana High Court Judge, Gino Persaud.

High Court Judge, Gino Persaud has hit out at Attorney General Anil Nandlall for saying that if the court had recognised an arbitral award that monies owed to Venezuela and its state-owned oil company, PDVSA, were to be released to American oil company, ConocoPhillips, whose assets had been nationalised by the Venezuelan government, this would be anti-nationalist tantamount to potential interference in Guyana’s judiciary.

The High Court found that ConocoPhillips had successfully registered and enforced the same award in the United Kingdom, United States, Hong Kong, Jamaica, Trinidad, the Netherlands and Portugal and no lawful reason was established as to why it should not be registered and enforced in Guyana. The Respondents did not appear to contest it.

After the High Court issues the order, the respondents have 42 days to apply for it to be set aside.

“The notions submitted by the AG in writing at paragraphs 69 and 71 of his submissions that if I were to recognise the Award it would be wholly offensive and expose the Court in the minds of the Guyanese people to allegations of unpatriotic and anti-nationalist conduct is an offensive submission if not a veiled threat to the independence of the judiciary designed to intimidate the Court,” Mr Persaud said in his judgement.

The 2022 Report of the Auditor General states that “[a]ccording to the Bank of Guyana Statement of Account, the opening balance on this account as at 1 January 2022 was G$5.344 billion or US$25.632 million while the closing balance as at 31 December 2022 was G$6.674 billion or US$32.011 million, an increase of G$1.33 billion or USD$6.379 million.” On 17 January 2018, the Ministry of Finance requested the Bank of Guyana to open an interest-bearing US Dollar bank account to set aside all payments due, and which cannot be made to Venezuela. This account has been established in Switzerland at the Bank for International Settlements (BIS) and has been credited with all obligations payable to Venezuela.

After the Venezuelan Government nationalized the assets of ConocoPhillips, that American oil company took PDVSA to arbitration and won a huge award. ConocoPhillips then sought to enforce the award against PDVSA in countries where they had assets. Guyana under the Petrocaribe agreement has money holding for PDVSA and Venezuela under the repayment of the loans under Petrocaribe.

Justice Persaud assailed the Attorney General for taking his political position to the court and said not even a lawyer just out of Law School should resort to level such accusations against a judge more so as part of a written submission. “The AG is not the legal guardian of the minds of the Guyanese people. It is an opportunistic political argument perhaps best suited to the hustings of an elections campaign than a sound legal argument suitable for Court. It is most unfortunate, disrespectful and should have been withdrawn. No practitioner (whether a novitiate recently admitted to the Bar or the Leader of the Bar) should ever accuse a sitting judge of unpatriotic and anti-nationalist conduct moreover to reduce it into writing,” the judge who, as a lawyer was a human rights and transparency advocate,” he said.

In his decision, Justice Persaud said he was satisfied that on a balance of probabilities that ConocoPhillips was entitled at common law to have the arbitral award recognized and judgement entered in its favour in terms of the award and to have it enforced in Guyana.

Justice Persaud said he disagreed with Attorney General Nandlall’s public policy argument, saying it could not be relied upon to defeat the ConocoPhillips’ enforcement application. “I do not accept that recognition and enforcement of the Award would be contrary to public policy within the parameters argued by the Attorney General. This argument is misconceived,” the judge said.

Justice Persaud said the right to enforce an arbitral award at common law is well established and arises from the implied promise to pay the award that emanates from the arbitration agreement.

He said the Jamaican Supreme Court appointed a Receiver in 2021 to collect funds owed by the Government of Jamaica to PDVSA in relation to the PetroCaribe arrangement between Venezuela and Jamaica and so far, approximately US$22 million has been collected and used towards satisfaction of the award.

Justice Persaud cautioned that Guyana as a premier destination for investment and the world’s fastest growing economy would not augur well for the country’s image and reputation in the eyes of international corporate titans who may be willing to do business here that international arbitral awards are problematic to recognise, register and enforce in Guyana or it is not worth the effort or that the burdens outweigh the benefits. “To counter such negative perceptions, it is imperative more than ever that a strong and independent judiciary be capable of fairly and impartially pronounc[e] on such enforcement applications with predictability which the commercial world takes comfort in. The Judiciary cannot be timorous in the face of impassioned opposition by the State to deny recognition and enforcement because to do so would be “offensive, unpatriotic and anti-nationalist.”