“BNP Paribas is a leading European financial banking institution that creates, implements and manages a variety of investment strategies, with a presence in various financial sectors at a global level and with liquid resources of over 345 billion EUR at its disposal, in accordance with our latest financial reports. Through this letter, we have the honour of welcoming the Republic of Angola to our platform of investments, and inform you of the approval of the structure of the Special Purpose Vehicle (SPV) submitted by our partners Resource Conversion/Mais Financial Services to BNP Paribas Investment Partners, a financial institution responsible for the asset management of a portfolio comprising more than 500 (five hundred) billion assets in total, across the globe. Therefore, through the medium of an Investment Fund supported by us and the banks Bankinter, Deutche Bank, Société Générale, amongst others, we are prepared to: 1. Make available foreign currency, EUR/GBP/YEN, immediately and in an unlimited nature, to the Banco Nacional de Angola, through the international banks of WEU/UAE mentioned above. 2. To create a strategic fund for investment in Angola with an estimated financial capacity of Thirty billion Euros, through Asset Management and Project Finance. 3. To negotiate the purchase of the Angolan external debt with different countries. This financial structure is coordinated by Hugo Onderwater, through the aforementioned European financial institutions and, in Angola, by Dr. Jorge Pontes. These entities, together with BNP Paribas, are available for a meeting, strictly at the highest level, subject to Your Excellency’s availability and consideration of Your Excellency. Yours sincerely. Jean Lemierre”
“We note the English translation refers to Resource Conversion Plc and Mais Financial Services S.A. as being “partners” of BNP Paribas Investment Partners. We confirm that BNP Paribas London Branch has checked its systems and found no record of any relationship between any BNP Paribas entity and Resource Conversion Plc and Mais Financial Services S.A. Further, on1 June 2017 BNP Paribas Investment Partners rebranded to be called BNP Paribas Asset Management. This was announced on25 May 2017 … . A genuine letter sent by the Chairman of BNP Paribas SA in mid-June 2017 would have very likely referred to BNP Paribas Asset Management rather than BNP Paribas Investment Partners. Accordingly, to the best of our information and belief, we believe the letter attached to your email to be a counterfeit.”
“Establish and set up SPV. SPV = RC-MFS Financial Engineering Ltd, with its head office at 6, Honduras Street, London, United Kingdom.”
“- Create a strategic investment fund to accelerate diversification of the Angolan economy - Create a fund with the capacity to act as a reserve fund for the Angolan State via “Asset Management”
“Phase 5 Set up SPV: RC-MFS Financial Engineering Ltd: as qualified SPV “Qualified Trust Company”
“23. Taking into account the mechanisms’ potential merits, we are recommending that the developers submit a more detailed technical proposal for the financing transactions. This will enable a better understanding of the costs, risks and benefits of the funding structure. 24. The technical teams from the Ministry of Finance and the BNA, supported by a team of lawyers, should start negotiations with developers (including BNP Paribas – the principal signatory) as soon as possible.”
“At this stage, based on our analysis and the questions raised by NRF, the Ministry of Finance decided that it did not wish to proceed with the transaction. However, I now understand that the BNA continued with the transaction (i.e. without the Ministry of Finance).”
“Management contract of instructions between the MFE and the syndicate of banks involved in the operation. This document has yet to be made available, because the account of the JV is pending in all the banks involved, as per points 3 and 5 respectively of the aforementioned timetable.”
“In respect of the documents which have yet to be finalised, this is due to the principle of “Non Solicitation”, a basic rule of compliance for the mechanism installed. Even though, even without some of the essential steps of the process having been completed, Resource Conversion and Mais Financial Services have commenced process within the banking structure, as demonstrated by the bank statement attached. DOCUMENT ANNEX VI.”
“K) In today’s global economy and financial crisis is urgent to adopt an appropriate macroeconomic strategy and define and implement monetary measures to ensure the adequate development of the Angolan economy in order to overcome or at least decrease the effects of the financial crisis. L) Such strategy and measures should be preceded by elaborating a comprehensive study of the country’s economic and financial reality (hereinafter referred to as the “Study”), which provides for proposals for the adoption and contracting of adequate and effective financial instruments in the international financial markets, enabling the BNA to perform its legal duties to the best of its ability, including preserving the value of the domestic currency. M) BSFS is a corporation dedicated, among other activities, to management, financial and technical advisory, having technical conditions to support the BNA in preparing and developing this study and in implementing the measure referred to in the previous Recital. N) The BNA intends to enter into a Technical-Financial Consulting Agreement with MFS for preparing a study on the implementation of monetary measures to be adopted by the BNA and the Angolan government for the development of the Angolan economy, namely with respect to the assumptions and procedures for the constitution of a strategic reserve fund by means of the asset management of foreign currency for the BNA and a private equity fund in accordance with the outcome of the abovementioned study. O) Subsequently, the BNA shall enter into a further asset management agreement with Mais Financial Engineering Ltd (hereinafter referred to, as abbreviated, “MFE”), a joint venture between MFS and Resource Convention Plc, (“RCP”, which shall take the form of a “special purpose vehicle” (“SPV”), with a view to increasing BNA’s foreign currency capacity by means of the opening of clearing accounts for the latter in Kwanzas, in banks that are members of the European banking syndicate and vice versa.”
“Clause Nineteen (SCOPE AND PRINCIPLES”) 1. By this Contract, the MFS assumes as obligation to: a) Provide technical assistance to the BNA in the origination of the following fund; (i) a strategic reserve fund (hereinafter referred to as “Reserve Fund”) via “asset management” of the foreign currencies for the BNA and (ii) a private investment fund for management of a “private equity fund”; b) Establish the Reserve Fund; c) Establish the Asset Management Fund; d) Support the BNA in the fulfilment of monetary expansion operations, particularly with the objective of increasing the net foreign exchange reserves in the Country and protecting the value of the national currency, in line with what is stipulated in No of article 3 of law No 16/10, of 15 July; e) Operate the asset portfolio to be managed, as well as the investments and operations in the financial market; f) Support the BNA in setting up the protocols between this central bank and the WEU/UAE banks for operations in Kwanzas. 1. In the provision of the Services, the MFS must fulfil the following principles of proper management of the Reserve Fund and the Asset Management Fund, as applicable: a) fulfilment of medium/long-term investments in the mixed portfolio regime; b) fulfilment of international debt investment of the Sonangol and Angolan State; c) participation in “buy-back” programmes of existing international debt and strategic assets.” a) Provide technical assistance to the BNA in the origination of the following fund; (i) a strategic reserve fund (hereinafter referred to as “Reserve Fund”) via “asset management” of the foreign currencies for the BNA and (ii) a private investment fund for management of a “private equity fund”; b) Establish the Reserve Fund; c) Establish the Asset Management Fund; d) Support the BNA in the fulfilment of monetary expansion operations, particularly with the objective of increasing the net foreign exchange reserves in the Country and protecting the value of the national currency, in line with what is stipulated in No of article 3 of law No 16/10, of 15 July; e) Operate the asset portfolio to be managed, as well as the investments and operations in the financial market; f) Support the BNA in setting up the protocols between this central bank and the WEU/UAE banks for operations in Kwanzas. a) fulfilment of medium/long-term investments in the mixed portfolio regime; b) fulfilment of international debt investment of the Sonangol and Angolan State; c) participation in “buy-back” programmes of existing international debt and strategic assets.”
“b) If the dispute relates to strictly legal questions, or if the provision of the legal matters shall have implications in all the other matters in dispute, the dispute must be submitted to the Angolan Courts as soon as possible, the parties agreeing, immediately, to cooperate in the swift fostering of the legal procedure; and c) in any other case, the dispute shall be decided by the Angolan Courts, the parties being subject, for this purpose, to the exclusive jurisdiction of these former.”
“The interpretation, insertion, fulfilment and breach of the Contract is governed by the legal framework in force in the Republic of Angola.”
“I am writing in reference to the letter dated the13th July 2017 which is addressed to MFS & RESOURCE Project Partnership Ltd (u.c.) with CC to Sumitomo Bank, Att; Mrs Nisrin Hala which was received by us from BNA on the18th July 2017 . We have carefully review the letter, taken note of the contents and after due consideration, we are writing to inform you that, unfortunately, Sumitomo Mitsui Banking Corporation Europe Limited (SMBCE – SMBCGB2L) is not in a position to accept a request to open an account in the name of MFS & RESOURCE Project Partnership Ltd as referred to in the letter. The proposed request of opening such an account sits outside of our appetite at SMBCE and therefore we would be unable to proceed. We take this opportunity to note that BNA’s account (account number: 304786) referenced in the letter is established solely for the purposes of deposit placements by BNA with SMBCE; noting that any deposits necessitate both incoming and outgoing payments to be made in accordance with BNA’s standard settlement instructions for that account.”
“In response to the authorisation to travel to London, United Kingdom, from 31st of July to04th August 2004 , for a business mission to get contacts and meetings with the banking union’s international banks in order to create the investment funds, we inform that the tasks foreseen into the timetable for actions, duly agreed with the consulting entity, Mais Financial Services, SA, are carried out adequately. So, after having prepared satisfactorily all the conditions and carrying out all the preparatory meetings, we were informed today that the meeting with Consórcio. Resource Conversation/Mais Financial Services and the main international banks were scheduled for the 07th and 08th August in order to have a final discussion about the documents, which will lead to our stay in London for another 5 (five) days, therefore, we request, Your Excellency, the appropriate authorisation.”
“Therefore, the following actions were carried out during the week: HSBC’s positioning in the trade union’s leadership, which is replacing Sumitomo, in order to expedite the course of the fundraising process; Creation of conditions for restoring the banking relations such as the case of HSBC; Money transfer to Standard Chartered Bank, the bank operator mentioned by Consórcio Resource Conversation, which is replacing Sumitomo; Analysis and negotiation of draft Agreement of the Asset Allocation & Management Agreement, which will serve as a basis for managing the accounts that will raise the funds; Preparation and availability of the information requested by Consórcio Resource Conversation/Mais Financial Services to complete the compliance process with the bank operator; The screening meetings with Consórcio Resource Conversation/Mais Financial Services. Therefore, on 06 August, the transfer of USD1.5 trillion request for the Standard Chartered bank, since the type of bank account opened at Sumitomo does not work out with this banking operation. … During, this week, between the 8th and 11th of August, the Protocol/Trust Agreement will be submitted by the international banks’ trade union and be signed the Asset Allocation & Management Agreement in London. Moreover, the travelling to Angola of the representatives of the trade union of international banks and Consórcio Resource Conversation/Mais Financial Services are scheduled between the 14th to 21st August in order to carry out the courtesy meeting with His Excellency and sign the Protocol/Trust Agreement with BNA to boost the funds in Luanda. In view of the foregoing, we request, His Excellency, your authorisation to sign the Asset Allocation & Management Agreement, whose contents are attached to this information. We also ask for the authorisation of our stay in London, as meeting and subsequent events require us to stay in London until the weekend.”
“Given the economic state of Angola after the oil price drop, the BNA wanted to make the most of the assets they were holding, such as the country reserves and the “other assets”
“(1) The MANAGER has business relationships with major international banks, investment houses, brokerages, lawyers and auditors in terms of which the MANAGER is able to organize the receipt/transfer of Cash Funds, Bank Instruments and Bonds, and obtain cash liquidity against the Assets. Further, the MANAGER is able to arrange for the Project Finance and Funding Capacity through the creation of International Investment Funds based on the Assets and project guarantees as own capital to finance the aforementioned projects.” (Clause 2.2.1)”
“Transfer Instructions … According to the AA-agreement dd. signed10th August 2017 between Banco Nacional de Angola and MFS & Resource Project Partnership Ltd, we kindly request you to transfer the first tranche of USD 500.000.000,00 (five hundred million United State Dollars) to the bank account of the Trustee with the following co-ordinates: Account name: PERFECTBIT LIMITED Address: 179 TORRIDON ROAD, LONDON SE6 1RG, UK Bank Name: HSBC Bank UK Bank address 8 Canada Square London E14 5HQ … Concept: Trust Agreement Dr S. Barbosa”
“Dear Dr Jorge, The following has just been advised: Since the guarantee was established, the Euroclear system has already been consulted 4 times to verify the guarantee, but without using the correct codes. every time this happens, it leaves a “flag” in the system. this is because on the part of the BNA they are probably trying to see, but they do not have the subscription of Euroclear or not with the level of subscription sufficiently high. the market operator is upset because this phase of the process is supposed to be CONFIDENTIAL. therefore, PLEASE ask those at the BNA to CALM DOWN, and not screw things up now. no more checks please. Its’ all OK”
“Dear Dr Jorge, Today begins the financial part of the operation. The market operator and Dr S.B. will advise BNA to maintain absolute ‘radio silence.’ The most sensitive point for the banks is to check for a breaking of banking secrecy.”
“I will help BNA with the outline step-by-step how to verify the screen. However, simple verification can be done on the ISIN number on the euroclear site. On the screen a message will pop-up requesting password access which the BNA banker must have. After the screen will open an they can see the 14 pages. As will if they are on they own euroclear account screen, they only need to input the ISIN Number and all information will appear. Let me know if they need extra help.”
“The MFSRPP has signed an “Asset Allocation & Management Agreement” (AAMA) with BNA worth a total amount of USD$1,500m as part of which a transaction of temporary first allocation of funds worth USD$500m has been performed by MFSRPP via the appropriate financial banking institution. The transfer of funds took place via the signing of a “Trust Agreement” with PERFECTBIT LTD – HSBC London, who is holding the untouched funds in its capacity as Trustee, as per the supporting documentation enclosed here in Annex 1. The BNA assumes no risk as part of this transaction since, Credit Suisse, at the request of PERFECTBIT LTD – HSBC London, issued BNA with an irrevocable, unconditional and transferable bank guarantee for the same amount of transferred funds (USD$500M ), guaranteeing its validity for a period of 1 (one) year, as per the supporting documentation enclosed here in Annex 2. The operative instrument of this guarantee was put forward as per BNA’s instruction. The initial funds transferred by BNA will be fully reimbursed during the week ending10th November 2017 , provided that BNA issues the “letter of confirmation” requested by HSBC, as per the supporting documentation enclosed here in Annex 3. This initial, temporary transfer of funds permitted financial market transactions as per the supporting documentation enclosed here in Annex 4 and which, until the initial allocation of funds is reimbursed to BNA, will generate profits from developed financial instruments on the international financial markets by PERFECTBIT LTD – HSBC London, estimated to be worth up to USD$3 billion (“leverage”) and which will then be used to establish an investment fund owed by the Angolan State.”
“BNA did not undertake any risk in this operation, since Credit Suisse, at the request of PERFECTBIT LTD – HSBC LONDON, provided an irrevocable, autonomous and transferable bank guarantee in favour of BNA in the same amount as the allocated funds (USD$ 500 million ), a guarantee that is valid for the period of 1 (one) year.”
“71 On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran[1994] 1 AC 438 , 453–457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, ie a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: eg Carvill America Inc v Camperdown UK Ltd[2005] 2 Lloyd's Rep 457 , para 24. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context “good arguable case” connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 , 555–557, per Waller LJ affirmed[2002] 1 AC 1 ; Bols Distilleries BV v Superior Yacht Services (trading as Bols Royal Distilleries)[2007] 1 WLR 12 , paras 26–28. Third, the claimant must satisfy the court that in all the circumstances [England and Wales] is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”
“… the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case.”
“113. At paragraph 12-033, the editors of Dicey note the classic exposition of Lord Goff’s forum non conveniens test in the Spiliada case, but add: Lord Goff could not have foreseen, however, the subsequent distortion which would be brought about by the decision of the European Court in Owusu v Jackson. The direct effect of that case is that where proceedings in a civil or commercial matter are brought against a defendant who is domiciled in the United Kingdom, the court has no power to stay those proceedings on the ground of forum non conveniens. Its indirect effect is felt in a case in which there are multiple defendants, some of whom are not domiciled in a Member State and to whom the plea of forum non conveniens remains open: it is inevitable that the ability of those co-defendants to obtain a stay (or to resist service out of the jurisdiction) by pointing to the courts of a non-Member State which would otherwise represent the forum conveniens, will be reduced, for to grant jurisdictional relief to some but not to others will fragment what ought to be conducted as a single trial … There is no doubt, however, that the Owusu factor will have made things worse for a defendant who wishes to rely on the principle of forum non conveniens when a co-defendant cannot.”
“On any ex parte application, the fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all facts known to him or which should have been known to him had he made all such inquiries as were reasonable and proper in the circumstances.”
“The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court's discretion. A fact is material if it would have influenced the judge when deciding whether to make the order or deciding upon the terms upon which it should be made. The question of materiality is a matter for the court and not the subjective judgment of the applicant or his lawyers.”
“171 The obligation to anticipate defences in pursuit of the obligation to make full and frank disclosure is very important. Mr Smith submitted that his clients were not to know that these points were to be taken by Mr Pugachev because he had not then (and has not even now) put in a Defence in the supported Russian proceedings. However, the fact that they have not been articulated in the supported Russian proceedings is not the point. An applicant for without notice relief has actively to consider what points of defence might be taken by the defendant and put them before the court. That is a fundamental requirement, and safeguard. 172 In making an assessment as to whether a point of defence is sufficiently obvious, one must guard against assuming that any point that has occurred to the defence lawyers ought to have occurred to the claimants' lawyers. The obligation to disclose does not require that every potential point be flushed out. Nevertheless there is an obligation to look at things from a defendant's point of view and anticipate defences which are obvious and those which require some thought but are nonetheless plain enough (as arguable defences) when thought about. Each case will depend on its own facts, and it is impossible to define a neatly applicable test which is capable of answering the point in every case. It is going to be easier to see what ought to have been disclosed in the light of the alleged non-disclosure, but that is no excuse for not giving the matter enough thought beforehand.”
“(5) If material non-disclosure is established the court will be “astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure … is deprived of any advantage he may have derived by that breach of duty:” see per Donaldson L.J. in Bank Mellat v. Nikpour, at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioners'; case [1917] 1 K.B. 486, 509. (6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented. (7) Finally, it “is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:” per Lord Denning M.R. in Bank Mellat v. Nikpour [1985] F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.” “when the whole of the facts, including that of the original non-disclosure, are before [the court, it] may well grant … a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:” per Glidewell L.J. in Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings Plc., ante, pp. 1343H–1344A” “when the whole of the facts, including that of the original non-disclosure, are before [the court, it] may well grant … a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:” per Glidewell L.J. in Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings Plc., ante, pp. 1343H–1344A”
“(1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial. (2) Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order. (3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (4) The court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction. (5) The court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance. (6) The court can weigh the merits of the plaintiff's claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff's case is allowed to undermine the policy objective of the principle. (7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice. (8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence. (9) There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.”
“18 Without attempting a comprehensive restatement which would serve no useful purpose, I consider that the following points are particularly relevant in the present case: a. A fact is material if it is one which the judge would need (or wish) to take into account when deciding whether to make the freezing order. b. Failure to disclose a material fact will sometimes require immediate discharge of the order. This is likely to be the court's starting point, at least when the failure is substantial or deliberate. c. Nevertheless the court has a discretion to continue the injunction (or to impose a fresh injunction) despite a failure of disclosure; although it has been said that this discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. d. In considering where the interests of justice lie, it is necessary to take account of all the circumstances of the case including (without attempting an exhaustive list) (i) the importance of the fact not disclosed to the issues which the judge making the freezing order had to decide; (ii) the need to encourage proper compliance with the need for full and frank disclosure and to deter non-compliance; (iii) whether or to what extent the failure to disclose was culpable; and (iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts. e. The interests of justice may sometimes require that a freezing order be continued, but that a failure of disclosure be marked in some other way, for example by a suitable order as to costs.”
“36 As long ago as 1990 Sir Nicolas Browne-Wilkinson V-C asked this court for guidance about the right approach to be taken to the inevitably lengthy hearings which were then growing in relation to non-disclosure in respect of freezing and search and seizure orders, see Tate Access Floors Inc v Boswell[1991] Ch 512 , 533H–534D. I am not aware that this court has ever answered that cri de coeur and we did not receive any argument which would enable us to do so authoritatively in the present case. The judge adopted the approach of Toulson J (as he then was) in Crown Resources AG v Vinogradsky (15 June 2001 ) for cases of any magnitude and complexity and I am content to do the same: ‘… issues of non-disclosure or abuse of process in relation to the operation of a freezing order ought to be capable of being dealt with quite concisely. Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non- disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself (pages 4–5 of the transcript). Secondly, where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion (page 6). I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees (page 7). In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion (page 22).’” ‘… issues of non-disclosure or abuse of process in relation to the operation of a freezing order ought to be capable of being dealt with quite concisely. Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non- disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself (pages 4–5 of the transcript). Secondly, where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion (page 6). I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees (page 7). In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion (page 22).’”
“The Seventh Respondent, Mr Pontes, is a Chairman and director of Mais and a director of Project SPV. Companies House records list his occupation as accountant, his nationality as Angolan and his country of residence as Angola.”
“There are a number of aspects of the Consultancy Agreement which I find concerning. In summary: If the BNA was going to engage a third party to provide technical advice on macroeconomic matters and manage the State’s assets, I would expect the provider to have appropriate expertise and experience of similar projects. As I explain in paragraph 76 below, while Mr Pontes is a well known businessman in Angola, I am not aware of a website for Mais or any online record of its prior experience or expertise (or indeed of Mr Pontes having such expertise). The absence of such matters casts considerable doubt, to the least, on the likelihood of Mais being experienced enough and able to provide the appropriate technical advice.”
“Mais is incorporated in Angola, according to the Consultancy Agreement. Online and UK Land Registry searches have not identified any assets own by Mais. Mr Pontes, who appears to be the chairman of the board of directors, appears to have Angolan nationality and to be resident in Angola. On the basis of the available information it seems likely that any assets Mais or Mr Pontes have will be located in Angola. … Online searches have not identified any assets owned by Dr Barbosa, Mr Onderwater or Mr Pontes. To the extent they have assets, on the basis of the limited information available, it seems most likely they would be located in Japan, Portugal and Angola, where they are respectively resident. … I note that, given the urgency of the application and the importance of not alerting the Respondents in advance of the hearing, only very limited assets searches have been conducted and the Applicants have not engaged the services of an enquiry agent, who may ultimately be able to identify some additional assets.”
“23.1 Article 4(1), which sets out the default rule that the law applicable to a tortious/delictual claim is the law of the country where the damage occurred “irrespective of the country in which the event giving rise to the damage occurred.” 23.2 Article 4(2), which provides for the disapplication of the default rule where the claimant and the defendant are both habitually resident in the same country. 23.3 Art 4(3), which provides for the disapplication of articles 4(1) and/or (2) in circumstances where the tort/delict in question is “manifestly more closely connected” with a country other than that identified pursuant to those articles. 23.4 Article 12(1), which provides that, in relation to non-contractual claims arising out of pre-contractual dealings, the law applicable to the claim is that which applies to the contract in question (or which would have so applied, had the contract been concluded).”
“24. There are two distinct elements to the damage which the Claimants’ have suffered as a result of the alleged wrongdoing; namely (a) the making of a payment of$500m to Perfectbit pursuant to the Asset Management Agreement; and (b) the making of payments totalling€24.85m to Mais pursuant to the Consultancy Agreement. 25. The Claimants submit that English law governs claims relating to the payment of$500m ; 25.1 Applying article 4(1) of Rome II, English law would apply because the damage (which consisted of the making of a payment from one English bank account to another) clearly occurred in England. 25.2 It might be said that, under article 4(2), any claim against Mais in respect of this payment was governed by Angolan Law (because the Claimants and Mais could be said to be habitually resident in Angola). However, if it be right that all of the other claims in relation to this payment were governed by English law, with the result that Mais’ liability arose entirely as a result of its participation in an English law conspiracy, then the Claimants would submit that Angolan law ought to be disapplied, in favour of English law, under article 4(3). 25.3 In any event, if the claim is properly to be analysed as one relating to the fraudulent inducement of contract, and therefore as being within article 12 of Rome II, English law would apply in any event. This is because the contract which was induced by the fraud, and pursuant to which the payment of$500m was made (namely the Asset Management Agreement) is expressly subject to English law. 25.1 Applying article 4(1) of Rome II, English law would apply because the damage (which consisted of the making of a payment from one English bank account to another) clearly occurred in England. 25.2 It might be said that, under article 4(2), any claim against Mais in respect of this payment was governed by Angolan Law (because the Claimants and Mais could be said to be habitually resident in Angola). However, if it be right that all of the other claims in relation to this payment were governed by English law, with the result that Mais’ liability arose entirely as a result of its participation in an English law conspiracy, then the Claimants would submit that Angolan law ought to be disapplied, in favour of English law, under article 4(3). 25.3 In any event, if the claim is properly to be analysed as one relating to the fraudulent inducement of contract, and therefore as being within article 12 of Rome II, English law would apply in any event. This is because the contract which was induced by the fraud, and pursuant to which the payment of$500m was made (namely the Asset Management Agreement) is expressly subject to English law. 26. If the claims in respect of the$500m are governed by English law (and the Claimants submit that they are for the reasons set out above) then it would follow that the question of whether Perfectbit holds that payment (or any of the traceable proceeds thereof) on constructive trust for the Claimants would also be governed by English law – see Dicey, Morris & Collinson the Conflict of Laws (15th Ed) at 29R-075. This conclusion would be supported by the general principle that claims to ownership of property or assets are governed by the lex situs of the relevant assets at the time of transfer. Given the transfer in England between two banks of the US$500m , it is clear that if the lex situs rule were applied, it would lead to English law applying as well. 27. It is the Claimants’ case that the inducement of both the Consultancy Agreement and the Asset Management Agreement formed part of a single, continuous fraudulent conspiracy. In those circumstances, there is a strong argument that, under article 4(3) of Rome II, the claims in respect of the sum of€24.85m ought also to be treated as being governed by English law. However, in relation to the claim concerning this sum, there are arguments that some other law may apply: 27.1 The sum of€24.85 million was made pursuant to the Consultancy Agreement, which is subject to Angolan Law. Under article 12 of Rome II, non-contractual claims arising out of dealings prior to that contract would be governed by the same law. 27.2 The sum was paid from an account held by the BNA in Germany. Accordingly, under article 4(1) of Rome II, it might be said that German law applied. However, the Claimants submit that this possibility can be discounted in light of (a) the impact of article 12; and/or (b) the complete absence of any other connections between the Claimants’ claims and Germany. 28. The Claimants maintain that the most appropriate law governing these claims is English law. To the extent necessary, the Claimants will submit that attempts to point to another law based on choice of law clauses in documents which appear to have provided non services, and were never intended to provide any substantive services or give rise to real obligations and were no more than mere vehicles for effecting the fraud should be discounted.”
“Scope of Article 12. According to Recital (30) to the Regulation culpa in contradendo is an autonomous concept and should not necessarily be interpreted within the meaning of national law. The Recital goes on to point out that it should include “the violation of the duty of disclosure and the break-down of contractual negotiations.”
“12.07 As the primary connecting factor within Art 12 is the law applicable to a contract, either concluded or contemplated, there is a strong argument for restricting its scope to claims between the (intended) parties to the contract so as to exclude (for example) a claim for damages by one of the parties against the issuer of securities that he has purchased on the market or the agent of another for misrepresentation or as a false procurator. There may, of course, be good reasons for concluding that claims against an agent, whether in contract or in tort/delict, should be governed under the Rome I Regime or Art 4 of the Rome II Regulation by the law of the contract (lex contractus), especially if he has taken an active part in negotiations conducted on the basis of drafts containing a choice of law provision. Art 12, however, would appear to contemplate an existing or contemplated contractual relationship between the parties to the non-contractual obligation. That view is consinstent, for example, with the approach taken under English law to liability for misrepresentation, providing a separate claim for damages as between the contracting parties only. … 12.08 The language of Recital (30) (12.03 above) reduces the significance of comparative analysis of this kind, which in any event is inconclusive. On balance, therefore, claims by or against the representatives of negotiating or contracting parties should be considered to fall outside Art 12, although the contract or supposed contract to which the agent’s conduct relates should be considered as a circumstance to be taken into account in applying a flexible rule of displacement such as that in Art 4(3) of the Rome II Regulation or in identifying the law applicable under the Rome I Regime to any contract between agent and counterparty.” 12.08 The language of Recital (30) (12.03 above) reduces the significance of comparative analysis of this kind, which in any event is inconclusive. On balance, therefore, claims by or against the representatives of negotiating or contracting parties should be considered to fall outside Art 12, although the contract or supposed contract to which the agent’s conduct relates should be considered as a circumstance to be taken into account in applying a flexible rule of displacement such as that in Art 4(3) of the Rome II Regulation or in identifying the law applicable under the Rome I Regime to any contract between agent and counterparty.” (3) The Supplement to that text provides at 12.20C: “It is possible that a claim may relate to the defendant’s conduct preceding the conclusion of two or more contracts, with different governing laws. In such a case, unless there is one contract to which the others are clearly subordinate (in which case it may be possible to apply the maxim accessorium sequitur principale to support the application of the law of the principle contract, the laws of each of the individual contracts should probably be applied on a ‘distributive’ basis, with the damage being apportioned between them. This process will be more straightforward if a contract has been concluded and performance has taken place, than if the negotiations have failed.”
“Despite that position, out of an abundance of caution, the Claimants consider it appropriate to address the question of how their claims against the Alleged Fraud Defendants would fall to be analysed under Angolan law: 29.1 In the limited time available, the Claimants have been able to obtain two letters from the legal office of the Ministry of Finance. These letters provide a brief summary of certain relevant principles of Angolan law. 29.2 Unsurprisingly, it appears that Angolan Law confers upon the victim of a fraud the right to claim damages against the fraudster. 29.3 In terms of interim remedies, Angolan law permits the seizure or freezing of assets “which have been improperly lost, and are in the possession of the defendant. 29.4 Where two or more persons conspire to commit unlawful acts, Angolan law renders them jointly and severally liable for the damages caused. 29.5 It therefore appears that, insofar as relevant to this application, Angolan law is sufficiently similar to English law that its applicability would not militate against the granting of the interim injunctions which the Claimants now seek.”