AG appeals High Court decision to allow ConocoPhillips Arbitral Award in Guyana

The Guyana Government is seeking to set aside a decision by the High Court that allowed the enforcement of an arbitral award in favour of United States company, ConocoPhillips, which is seeking to claim monies owned to Venezuela and its state-owned oil company, PDVSA.
In 2019, ConocoPhillips obtained an arbitral award valuing a large sum of money against the Venezuelan Government. The decision followed a moved by the Bolivarian Republic to nationalise assets belonging to the US company.
Subsequently, ConocoPhillips moved to enforce the award in countries where PDVSA has assets including Jamaica, Trinidad and Tobago, the United Kingdom and Hong Kong.
This year, the US company approached the local High Court seeking a similar ruling before Justice Gino Persaud, who sought to make the Attorney General a party to the case. However, the judge disagreed with the AG’s argument on the matter and ruled in favour of enforcing the award in Guyana.

Reports are that the Guyana Government’s escrow account for the payment to Venezuela has a deposit of US$32.01 million under the PetroCaribe agreement, which ConocoPhillips was trying to access.
However, Attorney General Anil Nandlall, S.C., has appealed Justice Persaud’s decision, asking the Full Court of the High Court to issue an order that set aside the whole ruling. He is also asking for costs to be paid in both the Full Court and the lower court.
The Notice of Appeal named Conocophillips Gulf of Paria B.V.; Corporation Venezolana Del Petroleo, SA., and Petroleos De Venezuela, S.A., as respondents.
In his grounds of appeal, the Attorney General contended that the judge’s decision is misconceived and erroneous in law. He argued that the High Court decision is contrary to and in contravention of the provisions of section 28 of the Arbitration Act, Chap. 7:03.
“The decision of the Learned Hearing Judge is wrong, erroneous, and per incuriam insofar as it fails to take into account and/ or fails to properly take into account the effect and purport of the provisions of section 28 of the Arbitration Act, Chap. 7:03 and/ or at all,” the AG insisted.
According to the Notice of Appeal, the High Court’s ruling is contrary to, in breach of, and contravenes the public policy of Guyana.
AG Nandlall pointed out that the decision of Justice Persaud is contrary to, and in abrogation of, the doctrine of separation of powers, and accordingly, is unconstitutional, unlawful, null, void, and of no effect. He added that the decision is without and in excess of jurisdiction, null, void, and of no effect.

“The decision of the Learned Hearing Judge affects or is likely to affect the national security and national sovereignty of Guyana. The Learned Hearing Judge failed to take into account relevant considerations and took into account irrelevant considerations which have rendered his decision erroneous and wrong.”
“The decision of the Learned Hearing Judge violates, contravenes and/ or is likely to violate and contravene the sovereign immunity of Guyana. The property intended to be the subject of enforcement pursuant to the Order of the Learned Hearing Judge dated 26th July 2024 is lawfully incapable of being the subject of such enforcement,” the court document detailed.
The attorney general went onto argue that the High Court Judge erred and misdirected himself on the law by the method used to calculate the interest on the sum that is purportedly the subject of the enforcing award.
He contended that the Arbitral Award, dated July 29, 2019, made by the arbitral tribunal in the matter of ICC Case No. 22527/ ASM/JPA between the First Named Respondent and the Second and Third Named Respondents is neither recognizable, registrable nor enforceable under the laws of Guyana and/or by or in the Supreme Court of Guyana.
AG Nandlall further maintains that the High Court decision is against the weight of the evidence.
During last week’s edition of his programme – Issues In The News, AG Nandlall argued that enforcing the arbitral award would contradict Guyana’s “public policy.”
Given the ongoing border controversy with Venezuela and commitment by both sides to desist from escalating the matter until the International Court of Justice delivers its ruling.
“In that volatile environment, how do you think the Venezuelan government will view a court in Guyana permitting an American company to take away money owed to Venezuela by Guyana?” Nandlall questioned last Tuesday.
However, the Judge said the AG’s submission was designed to intimidate the court, noting that potential investors must not think that international arbitral awards are problematic to recognise, register and enforce in Guyana
The Attorney General said the Government would not have objected to the enforcement of the award in Guyana if there was no ongoing dispute.
“In the ordinary course of things, the state would pay no interest, would have no objection to the registration and enforcement,” he said.
He added that the executive determines the national policy of a country and “If anything goes wrong, it is the executive that has to answer for the national security of this country, it is the executive that has to answer for national sovereignty of the country.”
It must be noted that the lawyer representing ConocoPhillips is Attorney-at-law and Leader of the Alliance For Change (AFC) Nigel Hughes. (G8)