Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA, Court of Appeal - Commercial Court, October 06, 2009, [2009] EWHC 2410 (Comm)

Reporting Judge: [2009] EWHC 2410 (Comm)

President: Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA

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Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA, Court of Appeal - Commercial Court, October 06, 2009, [2009] EWHC 2410 (Comm)

Neutral Citation Number: [2009] EWHC 2410 (Comm)

Case No: 2008 Folio 1325 & Folio 1326

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/10/2009

Before :

MR. JUSTICE TEARE

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Between :

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Raymond Cox QC and Henry King (instructed by Shearman and Sterling LLP) for the Claimants

Richard Salter QC and Jonathan Mark Phillips (instructed initially by Matthew Arnold & Baldwin LLP and now by Mischon de Reya) for the Defendants

Hearing dates: 24 July 2009

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Judgment

Mr. Justice Teare :

1. This is an application for summary judgment by the Claimant upon Advance Payment and Performance Guarantees issued by two banks, the Defendants. The Claimant says there is no defence to the claims on those guarantees. In essence the Defendants say that they have a defence with a real prospect of success, namely, that the demands on the guarantees were made fraudulently.

The parties

2. The Claimant, Enka Insaat Ve Sanayi AS (``ENKA''), is a Turkish company which carries out major construction projects in Turkey and Russia. On 12 October 2007 ENKA entered into a contract with the Russian company OAO ``KMKI Dobryninsky'' (the ``Owner'') for the design and construction of a multifunctional retail and office building in Moscow. The façade works sub-contractor was OOO ``Frener & Reifer Russia''(``F&R''), a Russian company. On 17 January 2008 ENKA signed a sub-contract with F&R pursuant to which F&R was to design and install the external façade of the building for the fixed price of US$36,304,345.15 plus ...

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