“there is only one correct modern approach [to statutory interpretation] – that one must ascertain the meaning of the words in the light of their context and the purpose of the provision”
“The committee’s opinion is that this intrusive regime is not required by art 2(2) of the 2002 Regulation. First, it is not required to give effect to the purpose of the Security Council resolution, which was obviously to prevent funds from being used for terrorist activities. Indeed, the licence tells Mrs M that the licence conditions are ‘to provide safeguards against the risk of these funds being diverted to terrorism’. It is however hard to see how the expenditure of money on domestic expenses, such as buying household food, from which Mr M derives a benefit in kind, can create any risk that he may divert funds to terrorism.”
“Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connexion with its whole context…”
“every word in an enactment is to be given meaning”. . (5) Words or phrases used in legislation are presumed to have the same meaning throughout the legislation. Bennion, p18 at s. 1.53, referring to s. 21.3. (6) There are differences of approach to statutory interpretation in EU and English law. In EU statutory interpretation the teleological or purposive methodology commands greater emphasis, while the English approach places relatively more weight on language. Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran v International Military Services Limited[2019] EWHC 1994 ,[2019] 1 WLR 6409 at [37] English doctrine is more literalist and “permits a strained construction only in comparatively rare cases”
“A credit by its nature is a separate transaction from the sale or other contract on which it may be based. Banks are in no way concerned with or bound by such contract, even if any reference whatsoever to it is included in the credit. Consequently, the undertaking of a bank to honour, to negotiate or to fulfil any other obligation under the credit is not subject to claims or defences by the applicant resulting from its relationships with the issuing bank or the beneficiary.”
“The regulations contained in this instrument that are made under section 1 of [SAMLA] are for the purposes of encouraging Russia to cease actions destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine.”
“Sanctions are intended to increase pressure on Russia to achieve the outcome of Russia ceasing actions which are destabilising Ukraine, or undermining Ukrainian sovereignty”
“The intention is to apply pressure in order that the Government of Russia changes its behaviour, and to send a strong message that actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine will not be tolerated. Applying these restrictions to individuals involved in this destabilising activity is intended to both directly and indirectly bring about behaviour change in the Government of Russia.”
“[i]t is a question of fact whether a connection exists within the meaning of the statutory provision in question”
“For some prohibitions there are some specific activities that DIT considers are likely to be consistent with the aims of the sanctions. These are set out in the table below. If you think that your proposed activity falls within one of these specific descriptions you should make this clear and explain why you believe this to be the case in your application for a licence. You should not assume that a licence will be granted or engage in any activities prohibited by trade sanctions until your licence has been granted.”
“A licence may be granted for the provision of technical assistance, brokering services, financial services or funds related to aviation and space goods and technology if the Secretary of State is satisfied that the technical assistance, brokering services, financial services or funds are necessary for the execution of obligations arising from contracts concluded before8 March 2022 , or ancillary contracts necessary for the execution of such contracts, provided that the activity is completed before28 March 2022 . This licensing ground will no longer be available for use from28 March 2022 .”
“58. —(1) The prohibition in regulation (asset-freeze in relation to designated persons) is not contravened by an independent person (“P”) transferring to another person a legal or equitable interest in funds or economic resources where, immediately before the transfer, the interest— (a)is held by P, and (b)is not held jointly with the designated person.”
“Here it is said that to pay this money in London is unlawful by the law of Hungary. If this contract had been to pay money in Budapest, no doubt that principle would have applied, and the law of Hungary would have been the lex loci solutionis, but the payment of the money was to be made in England, and the law of England is the lex loci solutionis. Therefore the exception where the performance is unlawful by the law of the country where the contract is to be performed does not arise, and the defendants can base no defence on that principle”
“In this contract the obligation is to pay certain money in London, and the contract is not concerned with the steps which the debtors may have to take to put themselves in a position to pay. It is concerned only with the payment itself, which is to be made in this country”
“This decision demonstrates the importance of identifying the due place of payment because, as has been shown, the law of that place may have an impact the enforceability of the bank's repayment obligation. This will, however, usually be the place where the account is held. In the Libyan Arab case, New York may be described as the place of settlement but, given the analysis adopted above, illegality in that place does not detract from the validity and enforceability of the bank's obligation to repay the deposit. London was the due place of payment.”
“the withdrawal or transfer of funds from an account governed by English law can be blocked by the law of any foreign state through whose jurisdiction the funds must necessarily pass. As has already been noted above, even an offshore transfer of funds may necessitate those funds passing through the country of the currency of the transfer so that the transaction is partly performed in that country.”
“The plaintiffs, a Libyan bank, had a call account with the London branch of the defendants, an American bank. They also had a demand account with the defendants' New York branch. The arrangement was that the plaintiffs maintained a peg balance of U.S.$500,000 in the New York account. Each morning, in the light of the balance of the New York account at the end of the previous day's trading, funds were transferred to or from London so that the peg balance was maintained. At 2 p.m. each day the balance of the New York account was again determined and similar transfers made between the two accounts. At 2 p.m. on7 January 1986 a sum of U.S.$165.2m . was available for transfer to London and at 2 p.m. on 8 January there was a sum of U.S.$161.4m . available. Neither sum was transferred. At 4 p.m. on8 January 1986 the President of the United States of America signed an executive order freezing all Libyan property in the United States or in the possession or control of United States persons including overseas branches of United States persons. The plaintiffs demanded payment of U.S.$131m ., the balance standing to the credit of the London account at the close of business on8 January 1986 and a further U.S.$161m . on the basis that that sum should have been transferred from the New York to the London account on 8 January. Payment was demanded by banker's draft, in cash or by any other commercially recognised method of transferring funds. The defendants refused to pay contending that it would be impossible for them to make any payment to the plaintiffs without committing an illegal act in the United States. The plaintiffs commenced proceedings, claiming the sums in debt or damages or, alternatively, on the ground that the contract had been frustrated:- Held, giving judgment for the plaintiffs, (1) that the defendants would be excused from complying with the plaintiffs' demands for payment if the payment was illegal by the proper law of the contract or it involved doing an act which was unlawful in the place in which it was to be performed; that there was only one contract between the parties in respect of the New York and London branches of the defendants but the contract was governed by both English and New York law; and that, applying the general rule that the contract between a bank and its customer was governed by the law of the place where the account was kept, the rights and obligations of the parties in respect of the London account were governed by English law. (2) That the plaintiffs had to show that they had made a demand for payment with which the defendants were obliged to comply; that, in respect of their credit balances with the London branch the plaintiffs had a personal right to demand cash or an account transfer; that, since by making a demand for payment the plaintiffs had exercised their right unilaterally to determine the management account arrangement, it was no longer a term of the contract that all transactions should pass through New York; that no such term could be implied from the usage of the international market in Eurodollars, and that, therefore, the London branch had obligations to make transfers from that account on the instructions of the plaintiffs which did not involve infringement of United States law in the United States. (3) That, although the plaintiffs demanded a banker's draft on the defendants' London office, a draft for the sums demanded would not have been eligible in the circumstances for London dollar clearing and, therefore, the defendants were not obliged to comply with the demand for a banker's draft; but that a demand for cash was an assertion of a customer's fundamental right and delivery by the defendants of cash in London of the sums claimed would not have involved illegal action in New York, and that, therefore, since the plaintiffs had made a demand for cash, they were entitled to receive payment in dollars or, if payment in dollars was impossible, in sterling and, accordingly, the defendants were liable to the plaintiffs for breach of their obligation to provide cash on the plaintiffs' demand. (4) That the defendants were in breach of contract in failing to transfer U.S.$165.2m . to the London account at 2 p.m. on 7 January and in not transferring U.S.$161.4m . to London at 2 p.m. on 8 January as a result of which there had been a net loss to the London account of U.S.$161.4m .; that, but for the breaches of contract that sum would have been recoverable by the plaintiffs from the London account; and that therefore, the plaintiffs were entitled to recover a further U.S.$161.4m . (5) That the effect of the Presidential order was to suspend the defendants' contractual obligation; that the parties had not been altogether discharged from further performance of the contract; and that, accordingly, the contract had not been frustrated.”
“(ix) Cash - dollar bills Of course it is highly unlikely that anyone would want to receive a sum as large as U.S.$131m . in dollar bills, at all events unless they were engaged in laundering the proceeds of crime. Mr. Osbourne said in his report: "As to the demand for payment in cash, I regard this simply as the assertion of a customer's inalienable right. In practice, of course, where such a large sum is demanded in this manner, fulfilment of the theoretical right is unlikely, in my experience, to be achieved. A sensible banker will seek to persuade his customer to accept payment in some more convenient form, and I have yet to encounter an incident of this nature where an acceptable compromise was not reached, even where the sum was demanded in sterling." I would substitute "fundamental" for "inalienable"; but in all other respects that passage accords with what, in my judgment, is the law. One can compare operations in futures in the commodity markets: everybody knows that contracts will be settled by the payment of differences, and not by the delivery of copper, wheat or sugar as the case may be; but an obligation to deliver and accept the appropriate commodity, in the absence of settlement by some other means, remains the legal basis of these transactions. So in my view every obligation in monetary terms is to be fulfilled, either by the delivery of cash, or by some other operation which the creditor demands and which the debtor is either obliged to, or is content to, perform. There may be a term agreed that the customer is not entitled to demand cash; but I have rejected the argument that there was any subsisting express term, or any implied term, to that effect. Mr. Sumption argued that an obligation to pay on demand leaves very little time for performance, and that U.S.$131m . could not be expected to be obtainable in that interval. The answer is that either a somewhat longer period must be allowed to obtain so large a sum, or that Bankers Trust would be in breach because, like any other banker they choose, for their own purposes, not to have it readily available in London. Demand was in fact made for cash in this case, and it was not complied with. It has not been argued that the delivery of such a sum in cash in London would involve any illegal action in New York. Accordingly I would hold Bankers Trust liable on that ground.”