“Dear All, I understand that you have been informed that I have taken overK Ghertsos companies including PSBA. Therefore K Ghertsos has no more corporate authority to finalise this transaction hence this email to notify you accordingly. In relation to this transaction and the execution of the legal documents I had a preliminary review. The current status andconditions are not in line with my expectation consequently not in the position to execute the deal that i (sic) can be executed as certain parameters needs reviewing mainly: 1) SPA wording: certain clauses are not acceptable so please send Word version for marking up comments to rebalance the legal position, 2) 10% K Ghertsos shares should be directed to PSBA, 3) I Fux liabilities not 100% covered as per initial understanding. There are minor other issues which can be addressed later. I appreciate that this may be some deviation to what may have been discussed before but surely a deal must be fairly balanced between the parties which is not the case for now and therefore need to be addressed accordingly.”
“We are taken aback by your message, which we receive as an attempt by PSBA Alpha BV to re-negotiate the agreed transaction between us, in bad faith. We request that youprovide us with your legal authority to represent PSBA, and your date of appointment…” …As recently as December 12, 2019 Kostas stated in writing “We‘re agreed thank you” in response to my direct question “I would like to know we have agreement on the form of documents before we engage with the notary to get this formalized. Are we agreed or is there another process now?”
“I note that you have ignored my request that you provide us with your legal authority to represent PSB Alpha AG, and your date of appointment. According to information provided by Kostas in July 2019 you ceased to be a shareholder of PSBA in 2018 (see attached email). You will also have read Mr. van Croonenburg‘s email to you of January 13, 2020, and will understand why we need to confirm your authority. I therefore once again request that you provideus with your legal authority to represent PSBA, and your date ofappointment. If you do not have legal authority to represent PSBA, please advise of your relationship to the transaction. … At this juncture, we must clearly understand whether your legal authority to represent PSBA, or we need to understand what relationship you have to the transaction (ie are you a creditor of PSBA, are you a third party purchaser, etc.) If you do not have legal authority to represent PSBA and are not a bone fide purchaser of our interest in ATBV, we demand that you immediately cease interfering in our transaction. From wherewe sit your previous statement that you “have taken over KGhertsos companies including PSBA” has not been substantiated…”
“I am writing to confirm that PSB Alpha AG has executed a binding Share Purchase Agreement with our subsidiary AT Holdings BV and that the transfer of 100% of the shares of Alpha Terminals BV from PSB Alpha AG to AT Holdings BV has been completed under the attached Deed of Transfer, with the Dutch Trade Register being updated accordingly. Mr. Krueger, we note that despite repeated requests you havenever provided to us any proof that you have legal authority torepresent PSB Alpha AG. We also understand that you have recently been misrepresenting to third parties that you have such authority, and/or that you have authority over Alpha Terminals BV. You are hereby notified to CEASE AND DESIST interfering with our affairs, including but not limited to the affairs of our subsidiaries AT Holdings BV and Alpha Terminals BV…”
“(1) Unless otherwise agreed by the parties, the court has for thepurposes of and in relation to arbitral proceedings the samepower of making orders about the matters listed below as it hasfor the purposes of and in relation to legal proceedings. (2) Those matters are— (a) the taking of the evidence of witnesses; (b) the preservation of evidence; (c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings— (i) for the inspection, photographing, preservation, custody or detention of the property, or (ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property; and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration; (d) the sale of any goods the subject of the proceedings; (e) the granting of an interim injunction or the appointment of a receiver. (3) If the case is one of urgency, the court may, on theapplication of a party or proposed party to the arbitralproceedings, make such orders as it thinks necessary for thepurpose of preserving evidence or assets. (4) If the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties. (5) In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively.”
“(3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined— (a) section 43 (securing the attendance of witnesses), and (b) section 44 (court powers exercisable in support of arbitral proceedings); but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.”
“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”
“An applicant for a freezing order does not need to establish the existence of a risk of dissipation on the balance of probabilities. It is sufficient for the applicant to prove a danger of dissipation to the 'good arguable case' standard.”
“38. This requirement was regarded as axiomatic by Floyd J in HMRC v Cozens[2011] EWHC 2782 (Ch) in which the Revenue sought a freezing order against an alleged "inward diversion" fraudster. He said:- "40. One aspect of the basis for the grant of a freezing order which needs to be scrutinised with care is the question of whether the defendant in fact has assets on which the order will bite. That this is a principle which underlies the freezing order jurisdiction is reflected in a number of the cases, and was not the subject of challenge. Indeed, as Mr Moser submitted, it is inherent in the requirement to show that thereis a risk of dissipation of assets that the cases in which freezinginjunctions are granted are cases in which there is evidencethat the defendant has some assets to dissipate. Thus in the Mareva case itself, Mareva Compania Naviera v International Bulk Carriers[1980] 1 All ER 213 , Lord Denning MR said at 215:- If it appears that the debt is due and owing, and there is a danger that the debtor will dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. There is money in a bank in London which stands in the name of these charterers. The charterers have control of it. They may at any time dispose of it or move it out of the country." (emphasis added) "40. One aspect of the basis for the grant of a freezing order which needs to be scrutinised with care is the question of whether the defendant in fact has assets on which the order will bite. That this is a principle which underlies the freezing order jurisdiction is reflected in a number of the cases, and was not the subject of challenge. Indeed, as Mr Moser submitted, it is inherent in the requirement to show that thereis a risk of dissipation of assets that the cases in which freezinginjunctions are granted are cases in which there is evidencethat the defendant has some assets to dissipate. Thus in the Mareva case itself, Mareva Compania Naviera v International Bulk Carriers[1980] 1 All ER 213 , Lord Denning MR said at 215:- If it appears that the debt is due and owing, and there is a danger that the debtor will dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. There is money in a bank in London which stands in the name of these charterers. The charterers have control of it. They may at any time dispose of it or move it out of the country." (emphasis added) 41. The evidence of the existence of assets need not be specific: indeed it may in some cases be unreasonable to expect a party seeking such an injunction to have evidence of precisely what assets his adversary in litigation has. But theremust be some material from which it is reasonable to infer ordeduce that there are assets on which the injunction will bite.Otherwise the court will run the risk of acting in vain." 39. In the light of these authorities, I would therefore hold that it is not enough for a claimant to assert that a defendant is an apparently wealthy person who must have assets somewhere. Although Parker LJ said that a claimant must "satisfy" the court of the existence of assets he was not purporting to set out what the standard of proof should be. A test of "likelihood" on its own is inappropriate; the right test must be either a "good arguablecase" or "grounds for belief". There is, no doubt, not muchdifference between the two but I prefer "grounds for belief" which is how Robert Goff J expressed it in A v C. Since a claimant cannot invariably be expected to know of the existence of assets of a defendant, it should be sufficient that he can satisfy a court that there are grounds for so believing. That is not an excessive burden but if an order is sought against numerous companies or LLPs and those companies and LLPs can show that there is no money in their accounts and the claimant cannot show that the account has been recently active, it may well be right to refuse relief.”
“119. In my view it is apparent from the cases cited earlier, and is sufficient for present purposes, that this court will only beprepared to exercise discretion to grant an application in aid offoreign litigation for a freezing order affecting assets not locatedhere if the respondent or the dispute has a sufficiently strong linkhere or, in cases where the European jurisprudence referred toby Potter LJ at paragraph 114 of Motorola (No. 2) does notapply, there is some other factor of sufficient strength to justifyproceeding in the absence of such a link. This way of putting the matter does not assume that presence of the respondent here will necessarily be sufficient to warrant the exercise of discretion in favour of an applicant — although as was observed by Lord Bingham in Credit Suisse Fides Trust it may weigh in favour of granting relief. Nor does it assume that any other particular factor will be sufficient. There will always need to be a careful examination of the justification for any part of the proposed order which would tend to run counter to principles of comity with courts in other jurisdictions.”
“27. Drawing the strands together, I derive the following principles as applicable when the court is asked to grant a freezing order in support of foreign proceedings under section 25. (1) It will rarely be appropriate to exercise jurisdiction to grant a freezing order where a defendant has no assets here and owes no allegiance to the English court by the existence of in personam jurisdiction over him, whether by way of domicile or residence or for some other reason. Protective measures should normally be left to the courts where the assets are to be found or where the defendant resides or is for some other reason subject to in personam jurisdiction. (2) Where there is reason to believe that the defendant has assets within the jurisdiction, the English court will often be the appropriate court to grant protective measures by way of a domestic freezing order over such assets, and that is so whether or not the defendant is resident within the jurisdiction or for some other reason is someone over whom the English court would assume in personam jurisdiction. (3) Where the defendant is resident within the jurisdiction, or is someone over whom the court has in personam jurisdiction for some other reason, a worldwide freezing order may be granted applying the discretionary considerations which were explained in the Cuoghi, Motorola and Banque Nationale cases. (4) Where the defendant is neither resident within thejurisdiction nor someone over whom the court has or wouldassume in personam jurisdiction for some other reason, the courtwill only grant a freezing order extending to foreign assets inexceptional circumstances. It is likely to be necessary for the applicant to establish at least three things: (a) that there is a real connecting link between the subjectmatter of the measure sought and the territorial jurisdiction ofthe English court in the sense referred to in Van Uden ; (b) that the case is one where it is appropriate within thelimits of comity for the English court to act as an internationalpoliceman in relation to assets abroad; and that will not be appropriate unless it is practical for an order to be made and unless the order can be enforced in practice if it is disobeyed; the court will not make an order even within the limits of comity if there is no effective sanction which it could apply if the order were disobeyed, as will often be the case if the defendant has no presence within the jurisdiction and is not subject to the in personam of the English court; (c) it is just and expedient to grant worldwide releif, takinginto account the discretionary factors identified at paragraph 115 of the Motorola case. They are (i) whether the making of theorder will interfere with the management of the case in theprimary court, e.g. where the order is inconsistent with an order in the primary court or overlaps with it; (ii) whether it is thepolicy in the primary jurisdiction not itself to make to makeworldwide freezing/disclosure orders; (iii) whether there is adanger that the orders made will give rise to disharmony orconfusion and/or risk of conflicting, inconsistent or overlappingorders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located; (iv) whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order; and (v) whether in a case where jurisdiction is resisted and disobedience may be expected the court will be making an order which it cannot enforce.”
“54. International trade, and particularly the international oil trade, is conducted predominantly by means of letters of credit. London is one of the two major financial centres of the world and enormous numbers of letters of credit are issued by international banks from their London branches. It would have been entirely foreseeable by SOMO that a majority of the letters of credit against which they sold oil would be issued out of London and subject to English law. SOMO's trade therefore involved a long term connection with the jurisdiction. Successful international commerce depends upon the enforcement of contracts, the enforcement of arbitration awards and the enforcement of judgments. Both the international plane, through the 1958 New York Convention and the UNCITRAL Model Law and Rules, and the domestic plane, through theArbitration Act 1996 , evince a clear policy to ensure the efficient recognition and enforcement of arbitration awards.”
“I am informed by Mr Krueger that, after initial review of the documents available to him, he concluded that whilst there had been some discussions between Century and Mr Ghertsos, there was no binding agreement between PSB Alpha and Century. Mr Krueger was unwilling to enter into a share purchase agreementon the terms of the draft document that had been forwarded tohim, and indicated that certain issues needed to be resolved. This was made clear in his email of9 January 2020 .”