“Saad Trading, Contracting and Financial Services Company (“Saad”) is responsible for the information contained in this Offering Circular. Saad, to the best of its knowledge and belief and having made all reasonable inquiries to ensure that such is the case, confirms that the information contained in this Offering Circular is true and correct in all respects material in the context of the issue and offering of the Certificates and, in light of the circumstances under which it is provided, is not misleading, that there is no omission of a material fact necessary to make such information, in light of the circumstances under which it is provided, not misleading, and that the opinions and intentions expressed in this Offering Circular are honestly held. Saad accepts responsibility accordingly. The Issuer, to the best of its knowledge and belief and having made all reasonable inquiries to ensure that such is the case, confirms that the information contained in this Offering Circular (other than the information provided under the headings Saad Trading, Contracting and Financial Services Company and ‘Saad Group of Companies’) is true and correct in all respects material in the context of the issue and offering of the Certificates and, in light of the circumstances under which it is provided, is not misleading, that there is no omission of a material fact necessary to make such information, in light of the circumstances under which it is provided, not misleading, and that the opinions and intentions expressed in the information contained in this Offering Circular are honestly held. The Issuer accepts responsibility accordingly. No person has been authorised to give any information or to make any representation regarding the Issuer or Saad respectively, or the Certificates, other than as contained in this Offering Circular in connection with the offering of the Certificates. Any such representation or information should not be relied upon as having been authorised by the Issuer, Saad or the Lead Managers. …”
“Saad and the Issuer have, in the manner provided above, confirmed the information contained herein, but the Lead Managers have not verified the information contained herein. Accordingly, no representation or warranty is made or implied by the Lead Managers or any of their respective affiliates and neither the Lead Managers nor any of their respective affiliates make any representation or warranty or accept any responsibility as to the accuracy or completeness of the information contained in this Offering Circular or any other information provided by Saad or the Issuer in connection with the Certificates, their distribution or their future performance. … Each investor contemplating purchasing any Certificates should make its own independent investigation of the financial condition and affairs, and its own appraisal of the creditworthiness, of Saad and the Issuer. Prospective investors should rely only on the information contained in this document or to which reference is made herein. Saad and the Issuer have not authorised anyone to provide prospective investors with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate on the date of this document.”
“There can be no assurance that a secondary market for the Certificates will develop, or if a secondary market does develop, that it will provide the Certificateholders with liquidity of investment or that it will continue for the life of the Certificates. The market value of the Certificates may fluctuate. … Application will be made for the listing of the Certificates on the Bahrain Stock Exchange but there can be no assurance that such listing will occur after the Closing Date or at all.”
“Saad is a Saudi limited partnership company and is registered in, and has its operations and the majority of its assets located in, the Kingdom of Saudi Arabia. Accordingly there may be insufficient assets of Saad located outside the Kingdom of Saudi Arabia to satisfy in whole or in part any judgment obtained from an English court relating to amounts owing under the Certificates. If investors were to seek enforcement of an English judgment in the Kingdom of Saudi Arabia, or to bring proceedings in relation to the Certificates in the Kingdom of Saudi Arabia, then the limitations described below would apply. The Certificates are expressed to be governed by English law and provide for the jurisdiction of the courts of England, subject only to an option for Certificateholders to bring proceedings before The Committee for the Resolution of Securities Disputes established under the Saudi Arabian Capital Market Law. Despite this, the courts and judicial committees of the Kingdom of Saudi Arabia may not recognise the choice of English law for submission to jurisdiction of the English courts. Accordingly, in any proceedings relating to the Certificates in the Kingdom of Saudi Arabia, Islamic law (Shari’ah), as interpreted in the Kingdom of Saudi Arabia, may be applied by the relevant court or judicial committee. The courts and judicial committees of the Kingdom of Saudi Arabia have the discretion to deny the enforcement of any contractual or other obligations, if, in their discretion, the enforcement thereof would be contrary to the principles of Islamic law. … Disputes of a commercial nature in the Kingdom of Saudi Arabia are heard before a court called the Board of Grievances which strictly applies Islamic law. In addition, the Board of Grievances has the exclusive jurisdiction to consider the enforcement of foreign judgments and arbitral awards, supervise insolvency and bankruptcy proceedings of commercial entities and hear claims against Saudi Arabian government bodies. Accordingly, if a judgment from an English court is to be enforced in the Kingdom of Saudi Arabia, it would need to be submitted to the Board of Grievances for enforcement. The Board of Grievances may, at its discretion, enforce all or any part of a foreign judgment provided that (a) the judgment is not inconsistent with Islamic law and/or Saudi Arabian law and (b) the judgment creditor can demonstrate to the Board of Grievances that the courts of the jurisdiction granting the judgment will reciprocally enforce the judgements of the courts and committees of the Kingdom of Saudi Arabia in such foreign jurisdiction. Such reciprocity may be demonstrated by way of the existence of a treaty or protocol between the Kingdom of Saudi Arabia and the relevant jurisdiction or by virtue of a plaintiff providing evidence that the relevant foreign court has recognised and enforced a Saudi judgment on a previous occasion. In the case of an English judgment, there is no relevant treaty and, accordingly, Certificateholders seeking to enforce an English judgment might be required to adduce other evidence of such reciprocity. No assurance can be given that investors would be able to meet the requirements of reciprocity of enforcement. In addition, even if Certificateholders were able to meet this requirement, they should be aware that if any terms of the Certificates (including any provisions relating to the payment of profit) were found to be inconsistent with Islamic law, they would not be enforced by the Board of Grievances.”
“A promissory note shall contain the following particulars: a) a stipulation of order or the expression ‘promissory note’ written in the text of the note in the language in which it is written; b) an unconditional engagement to pay a certain specified sum of money; c) the date of maturity; d) place of payment; e) the name of the payee or to whose order it is payable; f) date and place of making the note; and g) the signature of the maker of the note.” a) a stipulation of order or the expression ‘promissory note’ written in the text of the note in the language in which it is written; b) an unconditional engagement to pay a certain specified sum of money; c) the date of maturity; d) place of payment; e) the name of the payee or to whose order it is payable; f) date and place of making the note; and g) the signature of the maker of the note.”
“I put it no higher than this: that there is a possibility that on the different facts of this case, where there were witnesses to evidence the identity of the person affixing the signature, then the CSNID (and indeed any other tribunal in Saudi Arabia) might come to a different conclusion as to the requirement of an actual handwritten signature.”
“The first is whether the defendant assumed responsibility for what he said and did vis-à-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant … Third is the incremental test … the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’.”
“The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on the advice or information in deciding whether or not to engage in the transaction in contemplation. In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it. So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it.”
“63. The mezzanine syndication involved a number of interlocking contractual relationships giving rise to rights and obligations defined in documents drafted by specialist lawyers. In such circumstances the court should be very slow to superimpose any obligations of negligence going beyond those carefully defined in the contractual documentation. 64. Goldman Sachs was not acting as an adviser to IFE or purporting to carry out any professional service for IFE, as the terms of the SIM made plain. It was acting for the sponsors and not on behalf of the recipients of the SIM. In general a party involved in negotiations towards a commercial venture owes no positive duty of disclosure towards another prospective party. A duty of disclosure may be undertaken, but no such duty was undertaken in this case either expressly or impliedly. The expression ‘assumption of responsibility’ has on occasions been used in cases where it would be more accurate to speak of the court imposing a responsibility, but I can see no ground on which it would be fair to impose on Goldman Sachs the duty of care contended for by IFE.”
“28. I can start by clearing one or two issues out of the way. First it seems to me that the argument that there was some free standing duty of care owed by GSI to IFE in this case is in the light of the terms of the Important Notice hopeless. Nothing could be clearer than that GSI were not assuming any responsibility to the participants: Hedley Byrne v Heller & Partners[1964] AC 465 . The foundation for liability for negligent misstatements demonstrates that where the terms on which someone is prepared to give advice or make a statement negatives any assumption of responsibility, no duty of care will be owed. Although there might be cases where the law would impose a duty by virtue of a particular state of facts despite an attempt not ‘to assume responsibility’ the relationship between GSI either as arranger or as vendor would not be one of them. I entirely agree with the judge on this aspect.”
“478. I also accept Chase’s primary submission that it is not necessary, at least for the purposes of the general advisory claim, to undertake a detailed textual analysis of the precise ambit, extent and legal effect of each individual clause because the contractual documentation, taken as a whole, has the broader evidential significance of negating the assumption of any general advisory duty or obligation on the part of Chase. Thus I accept that the contractual documentation presented a consistent, and commercially coherent picture; namely that Springwell’s trading through the Investment Bank, whether in emerging markets instruments or otherwise, was not intended to give rise to, or impose upon the Private Bank or the Investment Bank, investment advisory obligations or responsibilities, either in relation to the particular securities purchased or sold, or more generally, in relation to Springwell’s financial position in the light of its emerging markets portfolio; in other words, that the relationship between Springwell and the Private Bank, and between Springwell and the Investment Bank, was one where neither the Private Bank nor the Investment Bank had an obligation to give any investment advice, and, moreover, was one where, even if any such advice was given, Springwell acknowledged that the Chase entities had no responsibility for any such advice, (a) because Springwell acknowledged that it had not relied upon any such advice in making its investment decision, and (b) because it had agreed that the Chase entities were not liable for any loss caused as a result of any investment decision by Springwell (save in the case of gross negligence or wilful default).”
“521. As made clear in the Springwell case, in determining whether the circumstances are such as to impose a duty of care, an important factor is the way in which the parties have sought to regulate their relationships, and to allocate risk, by contract. Where the parties have entered into agreements containing representations or acknowledgements as to sophistication and non-reliance the court is not required to undertake a detailed textual analysis of the precise ambit, extent and legal effect of each relevant clause. This is because ‘the contractual documentation, taken as a whole, has the broader evidential significance of negating the assumption of any general advisory duty’ (Gloster J at [478]).”
“It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained.”
“In these cases in which the loss has been caused by the claimant’s reliance on information provided by the defendant, it is critical to decide whether the defendant (rather than someone else) assumed responsibility for the accuracy of information to the claimant (rather than to someone else) or for its use by the claimant for one purpose (rather than another). The answer does not depend upon what the defendant intended but, as in the case of contractual liability, upon what would reasonably be inferred from his conduct against the background of all the circumstances of the case. The purpose of the inquiry is to establish whether there was, in relation to the loss in question, the necessary relationship (or ‘proximity’) between the parties and, as Lord Goff of Chieveley pointed out in Henderson v Merrett Syndicates Ltd[1995] 2 AC 145 ,181, the existence of that relationship and the foreseeability of economic loss will make it unnecessary to undertake any further inquiry into whether it would be fair, just and reasonable to impose liability. In truth, the case is one in which, but for the alleged absence of the necessary relationship, there would be no dispute that a duty to take care existed and the relationship is what makes it fair, just and reasonable to impose a duty.”
“The law requires of the professional man that he live up in practice to the standard of the ordinary skilled man exercising and professing to have his special professional skill. He need not possess the highest expert skill; it is enough if he exercises the ordinary skill of an ordinary competent man exercising his particular art. So much is established by Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 , which has been applied and approved time without number. ‘No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made’. (Saif Ali v Sydney Mitchell & Co[1980] AC 198 at 220D, per Lord Diplock). From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require over a professional man that he be a paragon, combining the qualities of polymath and prophet.”
“And bring to witness two witnesses from among your men. And if there are not two men, then a man and two women from those whom you accept as witnesses – so that if one of the women errs, then the other can remind. And let not the witnesses refuse when they are called upon.”
“…In addition, in relation to the execution of the Promissory Note … BNP Paribas have requested that two individuals from The Alliance act as the witnesses to the execution of these documents by Saad. We understand that the witnesses need to be Saudi citizens and independent, and it would be advantageous if a member of your firm could act in this capacity in order to ensure that the execution is valid. Please confirm that this is viable.”
“As a general rule under Saudi law, the witnesses should only be adult male Muslims over 21 old. However from our experience it is mostly advisable to have Saudi witnesses to make sure the witnesses are available in Saudi Arabia to give their testimony in case of dispute. The Promissory Notes could be held outside of Saudi Arabia. As for having two lawyers from the Alliance to be the witness we will come back to you today.”
“Thank you – it would be most advantageous for us if you could supply known witnesses who are independent – we would appreciate it greatly.”
“… the Place of Issue should (unless you advise otherwise) be Al Khobar (being the location of Saad's offices). The documents should be left undated and we can arrange for dating when all the other documentation is signed. As regards witnessing (for the promissory notes and all other relevant documentation), please be advised that we have arranged for a law firm in Al Khobar (that knows Saad) to provide 2 witnesses. Please confirm that this will be acceptable. …”
“Michael Alexander (Saad’s counsel) has today taken execution versions of all documentation required to be signed by Saad and Mr Maan Al-Sanea to KSA. Michael will arrange for these documents to be executed by Saad and Mr Al-Sanea. … The Promissory Note … will be completed by The Alliance (following receipt of all necessary information on Friday regarding pricing) and will be forwarded to Saad (Hussien, Maan and Michael) by email. Witnessing of the documentation will be undertaken by two representatives from Jamal A. Al-Muzein (lawyers in Al Khobar) (being Saudi citizens and adult Muslim males over 21 years old). Saad will arrange for a representative to travel with the signed copies to Bahrain on Monday 14 May.”
“… It is acceptable to have Saudi witnesses from a law firm in Al Khobar who can identify Mr Al Sanea.”
“Where the only question is the relevant date for taking the market price, the financial consequences of the breach may be said to ‘crystallise’ at that date. But where, after that date, some supervening event occurs which shows that that neither the original contract (had it continued) nor the notional substitute contract at the market price would ever have been performed, the concept of ‘crystallising’ the assessment of damages at that price is unhelpful. The occurrence of the supervening event would have reduced the value of performance, possibly to nothing, even if the contract had not been wrongfully terminated and whatever the relevant market price.”