Posts Tagged DIFC

Pearl v Kurdistan. The DIFC on waivers of sovereign immunity.

Update 17 November 2017 For discussions in Dutch case-law (including re contractual waiver) with respect to SHAPE, see here.

Thank you Peter Smith over at Tamimi for flagging [2017] DIFC ARB 003 Pearl v Kurdistan. Peter summarises as follows:

‘In 2007, Crescent Petroleum, the oldest privately-owned oil and gas company in the Middle East, agreed with Dana Gas, one the leading publicly-listed natural gas companies in the region, to create a joint venture called Pearl Petroleum (together, “the Consortium”). The Consortium entered into an agreement with the Kurdistan Regional Government (“KRG”) for the development of the Khor Mor and Chemchemal petrochemical fields in the Kurdistan region of Iraq. The KRG were and remain engaged in a political dispute with the Federal Government of Iraq, meaning that the Consortium were unable to export gas produced by the developed fields. As a result, the KRG became liable under its contract with the Consortium to pay a minimum guaranteed price, but it failed to make the required payments in full.’

Arbitration in London under LCIA rules ensued. The contract between the Consortium and the KRG was governed by English law and provided explicitly that “the KRG waives on its own behalf and that of [The Kurdistan Region of Iraq] any claim to immunity for itself and its assets”.

Cooke J held that whilst the UAE’s recognition of other states was a matter of foreign policy which the DIFC Courts could not rule on, construing the KRG’s waiver of immunity was a question of law and not public policy. In agreeing to arbitrate, a party agrees that the arbitration shall be effective in determining the rights of the parties (at 26). The waiver of any claim to immunity for itself and its assets must mean waiver of immunity from execution (at 28): any argument on that is blocked by issue estoppel (at 36).

Sovereign immunity therefore was not a trump which could be played at the time of enforcement: whatever immunity there might or might not have been had been contractually signed away.

An interesting and well argued judgment.

Geert.

, , , , , , , , , , , , , , , , ,

Leave a comment

Fasten your (Road and) belts. China to follow example of DIFC and ICC.

Update 9 April 2019 see Matthew Erie’s paper on ‘new legal hubs’ or NLHs discussing these and other issues here.

Susan Finder has an absolutely indispensable post on two recent initiatives over at the Chinese Supreme Court.

Firstly, the Supreme People’s Court is working on a judicial interpretation of the rules on recognition and enforcement of civil and commercial judgments. This follows the first such recognition from a judgment originating in the United States, Liu Li v. Tao Li and Tong Wu (2015) Yue Wuhan Zhong Min Shang Wai Chu Zi No.00026 – see professor Clarke’s review here. The recent conference at Wuhan which I reported on at my Twitter feed, shows the intensity of engagement of China with the Hague Judgments project.

Next, the SPC is engaging with a multitude of stakeholders to consider setting-up specialist mediation centres, with the examples of Dubai’s DIFC and Singapore’s ICC in mind, to smoothen the participation of foreign governments and companies in China’s Belt and Road initiative. Susan has great review of the implications of same.

Don’t forget to look to the East: Exciting stuff happening there.

Geert.

 

, , , , , , , , , , , , , , , ,

1 Comment

%d bloggers like this: