Branch Austin McCormick is acting for the government of the Republic of Vanuatu (Republic), a nation of seventy nine Pacific islands, in a legal battle over the sale of its fishing quota of Jack Mackerel which it claims was corruptly awarded to a Panamanian registered company, Unimed Glory S.A. (Unimed). The case has attracted much media interest, not only in Vanuatu but here in London and elsewhere, including China.
In March 2023, Unimed obtained an injunction against the Republic preventing it from selling its quota to buyers of its choice, rather than to Unimed. The Court determined that the Republic had waived its State immunity and such waiver would have prevented the making of an injunction against it, by reference to a written agreement with Unimed. This is despite the Republic’s position that the “agreement” containing the waiver is a fraud.
We are pleased to confirm that the Court of Appeal has granted permission to the Republic to appeal the injunction.
The issue for the Court of Appeal to determine is whether the High Court had the power to make an injunction in circumstances where the document which waived State immunity is alleged by the State to be a forgery. In the absence of a waiver of State immunity the High Court does not have the power to injunct a State, under the State Immunity Act 1978.
The Republic’s position is that the agreement in which it is purported to have waived its State immunity is a forgery. However, despite the position of the Republic the High Court determined that it still had the power to make the injunction.
It is the Republic’s case that there is no existing English law on this precise point, a view possibly shared by the single judge in the Court of Appeal when he granted permission to appeal, on an expedited basis.
The fishing quota is an extremely valuable natural resource for the Republic, which it urgently needs.
The appeal is to be heard on 13 December 2023. If the appeal is successful, the Republic will be free to sell its future quotas until such time as the High Court has determined whether the agreements with Unimed for it to sell the quotas are forgeries or are valid. The trial of that issue is yet to be listed for a final hearing.