Guy Blackwood and Paul Henton (instructed by Holman Fenwick Willan ) for the claimant; Dan Sarooshi and Siddarth Dhar (instructed by Vinson & Elkins LLP ) for the defendant.
By a final UNCITRAL arbitral award the claimant was awarded a sum against the defendant in respect of demurrage, war risk premiums, a performance bond, insurance and costs under a number of contracts under which the claimant had purchased oil and gas from the defendant. The court granted the claimant permission to enforce the award. The court also made interim third party debt orders in respect of two companies, including Credit Agricole CIB London Branch and ordered the appointment of a receiver to receive monies in respect of the defendant’s interest as a beneficiary in letters of credit issued by Credit Agricole. The defendant applied to the court to set aside the interim third party debt orders and the order appointing a receiver on the ground that the court lacked jurisdiction. A number of issues were raised, including that of state immunity. A primary issue was whether the third party debt orders should be set aside for lack of jurisdiction.
The interim third party debt order against Credit Agricole and the receivership order were to be set aside because the payment promise made by Credit Agricole in the letters of credit was made not only to the defendant but also to another promisee, the Central Bank of Iraq, and so the debt due under that promise could not be attached to an interim third party debt order under CPR r 72.2. The debts sought to be attached by the claimant were never within the free disposition of the defendant and accordingly the interim third party debt orders made against Crédit Agricole could not stand. The judge considered the issue of state immunity at paras 44–60 and concluded that the defendant’s argument for state immunity failed.