The Guyana Court of Appeal has unanimously overturned the 2023 ruling of Justice Sandil Kissoon’s Order for Exxon Mobil Guyana to provide an unlimited guarantee for liability.

The Court of Appeal also overturned Justice Kissoon’s Order that the Environmental Permit issued to Exxon Mobil be suspended until Exxon provided the unlimited guarantee.

In the High Court, the Environmental Protection Agency had advanced the position that the country will receive a US$2B parent guarantee from Exxon. But Justice Kissoon had ruled that even in such a case, ExxonMobil will still be in breach of its permit obligations.

The Court of Appeal, comprising Justices of Appeal Dawn Gregory, Nareshwar Harnanan and Priya Sewnarine- Beharry, held that Justice Kissoon erred in declaring that the financial assurance obligation must be unlimited.,

In its decision, the Court ruled that neither the Environmental Permit nor the Environmental Protection Agency Act made any provision or referred to an unlimited guarantee and that Justice Kissoon erred in seeking to substitute his own discretion and decision for that of the Environmental Protection Agency.

A stay of Justice Kissoon’s ruling was granted by the Court of Appeal after the EPA and Exxon approached the Court. Earlier this year, the Court heard arguments from the applicants and the respondents in the case.

Attorney General Anil Nandlall had sought to intervene in the appeal, where he was hoping to advance the position of the State’s contractual obligations under the Agreement with Exxon Mobil, but the Court of Appeal refused his application to intervene which resulted in an appeal to the Caribbean Court of Justice, which ruled in favor of the Attorney General and he was added as a party to the case.

The CCJ agreed with the position articulated by the Attorney General that the Attorney General is the protector of the public’s interest and therefore must be heard for and on behalf of the State in a matter of such national importance.

At the Court of Appeal the Attorney General presented written and oral arguments highlighting several issues including that fact that the Agreement with Exxon Mobil was by no means an ordinary contract and that this is an Agreement that generates hundreds of billions of dollars, which the Government uses in its budgetary allocations for the general development of Guyana and the public good, as is provided for by section 16 (2) (a) of the Natural Resources Fund Act, 2021.

The Attorney General also pointed out to the Court of Appeal that one of the primary issues to be determined by the Court was whether the Environmental Protection Act and (the Environmental Permit) required an unlimited Guarantee as was ordered by the Judge and that the Court will first have to determine whether such an animal exists in law.

The Attorney General submitted that if such a Guarantee could not be provided, then the rights of the Government of Guyana under the contract may be permanently affected thereby bringing the contract practically to an end, resulting in immeasurable financial loss and damage to the State’s revenue stream (proprietary interest), the fiscal affairs of the State, national developmental agenda, and indeed, the public good.

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