Illegality Clause Loan Agreement

This clause was contrasted with the corresponding clause in the Lamesa case, which expressly provided for non-payment and was part of the obligation to pay in the contract (unlike in the present case where non-payment was not explicitly mentioned and the corresponding clause was placed under the heading `penalties`). The Tribunal also found that the Lamesa Court of Appeal had established good reasons for non-payment. The specific clause of credit agreements invoked by PDVSA (section 7.03) stated that the question was whether the sanction clause contained in credit agreements constituted a condition precedent for PDVSA`s liability (so that if triggered, it suspended PDVSA`s payment obligations – in the case of PDVSA) or whether it was a negative obligation in favour of the bank. Pdvsa (bank case), however, had no influence on PDVSA`s payment obligation. PDVSA relied on the decisions in Mamancochet Mining Limited v Aegis Managing Agency Limited [2018] EWHC 2643 (Comm) and Lamesa v Cynergy to assert that in trade agreements it would be entirely normal and sensible to suspend payment obligations if otherwise the payment was contrary to unilateral US sanctions. It is clear from this Decision that the parties should take into account the potential impact of extraterritorial sanctions regimes on the performance of their obligations, provide for a clear allocation of contractual risks in this regard and take into account any standard clause that may affect the allocation of that risk. The Court of Appeal then considered the relevant context of the installation agreement. Contrary to these requirements, the court stated that the issue of payment to the account established in the United States was not illegal, but rather unenforceable: it is not illegal for PDVSA (a non-U.S. company based outside the United States) to initiate a payment and it is not clear that it is illegal for the bank to receive it (if the funds are then blocked). In any case, it is possible that payments in euros may be made to a bank outside the United States by modifying the credit agreements for which the bank would have questioned.

As a result, the court questioned that the „very narrow door“ of Ralli Bros. The Court of Appeal approved the result of the High Court, but adopted a different line of reasoning. In particular, the Court of Appeal pointed out that the clause in question was a standard clause and that the factual context therefore had a much more limited role to play in the interpretation than that assigned by the High Court. While the High Court focused on the specific intentions of the parties to the facility agreement in question, the Court of Appeal focused on the broader context of Tier 2 capital supply agreements within the EU. . . .

Dieser Beitrag wurde unter Allgemein veröffentlicht. Setze ein Lesezeichen auf den Permalink.