Kensington International Ltd. & Anor v Republic of the Congo, Court of Appeal - Commercial Court, May 26, 2006, [2006] EWHC 1712 (Comm)
Linked as:
Extract
Kensington International Ltd. & Anor v Republic of the Congo, Court of Appeal - Commercial Court, May 26, 2006, [2006] EWHC 1712 (Comm)
Case No: 2002 1357 NEUTRAL CITATION NUMBER: [2006] EWHC 1712 (Comm)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCOMMERCIAL COURTRoyal Courts of JusticeStrandLondon WC2A 2LLDate: Friday, 26 May 2006BEFORE:MR JUSTICE CRESSWELL-------------------BETWEEN:KENSINGTON INTERNATIONAL LIMITED & ANRClaimant- and -REPUBLIC OF THE CONGODefendant-------------------Digital Transcript of WordWave International LimitedPO Box 1336 Kingston-Upon-Thames Surrey KT1 1QTTel No: 020 8974 7300 Fax No: 020 8974 7301(Official Shorthand Writers to the Court)-------------------Mr E McQuater, QC and Mr P Ratcliffe (instructed by Dechert LLP) appeared on behalf of the ClaimantMr J Gruder, QC (instructed by Ince & Co.) appeared on behalf of the Defendant-------------------Judgment1. MR JUSTICE CRESSWELL: The third parties apply for an order discharging the order of Gloster J dated 5 April (as varied by the order of 10 April) on the grounds that these orders were wrongly granted, and for an order that the claimant should pay damages pursuant to its undertaking in damages to any Vitol party which has suffered loss pursuant to the orders.2. The third parties further seek a declaration that:``The Third Parties and any of the Vitol Parties be free to purchase oil from any Congo Party (including on a prepayment basis if required by the relevant Congo Party) so long as the transaction is not at an undervalue as defined in section 423(1) of the Insolvency Act 1986.''3. The parties to this litigation Kensington International Limited is a corporation organised and existing under the laws of the Cayman Islands. Kensington is in the business of, among other things, purchasing and selling debt and equity instruments issued by domestic US and foreign entities. Kensington is managed by Elliot International Capital Advisers Inc, a Delaware corporation with its principal place of business in New York City. 4. The third parties, Vitol Services Limited and Vitol Broking Limited, are English companies which provide broking and other services to Vitol SA, a company organised under the laws of Switzerland, and to other companies in the Vitol Group of companies.5. It is necessary to refer to a number of relevant Congo entities. 6. Société Nationale des Pétroles du Congo (``SNPC'') is the state oil company of Congo, incorporated in 1998. Mr Justice Cooke in the Nordic Hawk (see below) found that SNPC is part of the Congolese State, having no separate existence from the State. 7. SNPC UK is an English company, a subsidiary of SNPC, established in May 1998 as a commercial branch of SNPC in London. It ceased activity in November 2003. It was put into creditors' liquidation in mid-2004.Cotrade SA and Cotrade Asia are wholly owned subsidiaries of SNPC through which the Congo sells its oil. Cotrade is a contraction of ``La Congolaise de Trading''. In the Nordic Hawk, Cooke J found that Cotrade, like SNPC, is an emanation of the Congolese State with no separate existence from the State. Sphynx Bermuda Limited is a Bermuda company incorporated in February 2002. Cooke J found in the Nordic Hawk that Sphynx Bermuda Limited is a ``sham'' company, a ``creature'' of the Congo in a façade used by the Congo to sell its oil. Sphynx UK is an English company incorporated in February 2002. Cooke J found in the Nordic Hawk that this company is controlled by Mr Gokana (President and Director General of SNPC since January 2005) to act as contact/service company for Sphynx Bermuda.8. The orders of Gloster JOn 5 April, Gloster J granted ex parte orders against the third parties. Disclosure orders were made as set out in paragraphs 1 to 7. An injunction was granted (paragraph 8) in the following terms:``Until further order of the Court, the Third Parties must not (unless the Claimant's solicitors consent in advance in writing) whether by themselves, their servants or agents or otherwise howsoever:(a) pay, or cause to be paid, or assist any other person to pay to any of the Congolese Parties (as defined in Schedule A):(i) any sum of money due or accruing due by or from any of the Vi...
See the full content of this document
Sponsored links
