“… Djibouti are not blameless ingenues here. The strategy of concealment from the courts that the conviction was unsafe and the evidence upon which it was based … was developed at the meeting at Kroll on27 August 2013 attended by [Djibouti representatives] and … it is to be inferred that they agreed with this strategy. … There are other aspects of Djibouti’s conduct which can only be described as reprehensible and which inevitably bear upon the question whether it would be appropriate to grant a fresh freezing injunction: (i) their continued use of my judgment internationally notwithstanding that they knew it was based on a misapprehension; (ii) the so-called evidence that they have produced of a grenade attack… (iii) the continued reliance upon the unsafe conviction and the unreliable confession in their criminal complaint in Dubai in June 2014, after their extradition request had failed and (iv) the thoroughly improper pressure put upon Mr Boreh by Kroll on behalf of Djibouti to settle the litigation. These are four particularly egregious examples of reprehensible conduct, all of which fall a long way short of the standards of behaviour which the court is entitled to expect of a sovereign state.”
“…All important decisions to do with the new port facilities were clearly taken by the President personally. This is only to be expected, since it is he who is the sole effective ruler of the Republic and who dictates Government policy. It was quite clear that all the witnesses called by the Republic at trial, all of whom were present or former Government ministers or high-ranking civil servants, were in fear of the President and were not prepared to say anything in their oral evidence which might contradict the position which the President has adopted towards Mr Boreh in this litigation, of which the President is clearly in ultimate control. … thirteen claims in all … were abandoned either during the claimants’ opening or during the trial or in the claimants’ closing submissions. In so far as those claims were ever quantified, they exceeded U.S.$35 million . … Like counsel, I cannot recollect a case in which so many claims (let alone ones involving allegations of dishonesty) have been pursued with such vigour and then abandoned at trial. … I am left with the distinct impression that the Republic was intent on pursuing a scattergun approach against Mr Boreh of throwing as much mud as it could in the hope that something would stick. … There is no legitimate explanation for the way in which the Government has conducted itself. The most likely explanation is that this was all politically motivated and designed to ruin Mr Boreh.”
“Where no applicable law has been chosen, a trust shall be governed by the law with which it is most closely connected. In ascertaining the law with which a trust is most closely connected reference shall be made in particular to – (a) the place of administration of the trust designated by the settlor; (b) the situs of the assets of the trust; (c) the place of residence or business of the trustee; (d) the objects of the trust and the places where they are to be fulfilled.”
“The situs of the assets of the trust may deserve little weight: the movables included in a trust are usually intangible, e.g. stocks, shares and bonds; and the situs of an intangible movable is to some extent a fiction.”
“… These criteria are all in principle on the same footing; however, the conference has given them their places by order of importance so that it might be said that there is among them a certain implicit hierarchy … In the end the idea that the preliminary draft constituted a reasonable compromise between the civil law conceptions and the common law conceptions. The delegations of the civil law countries also agreed that the second paragraph, by the order in which the criteria were set forth, comprised an implicit hierarchy which would satisfy the needs of practice. But the text will also allow the judges of the common law countries to take into account, as they have the habit of doing, all factors at the same time …”
“the assets may be spread in many territories, so their situs may be less important than the residence of the trustees and beneficiaries, especially if all reside in the same territory”
“… where assets are scattered across the globe, the situs may fail to point to a single law of closest connection. Against that, however, it can be said that the common law cases treat the situs as far from irrelevant where all the assets are located in a single state and that, where a different law has been found to be the proper law, this has been in cases where the court has found factors indicative of an implied choice of law. If, ex hypothesi, there has been no choice of law, and particularly where no place of administration has been designated by the settlor, the situs becomes the most obviously important factor in the search for the law of closest connection.”
“it is a relevant consideration that one of the possible choices of law would be that of a jurisdiction in which the trust would be invalid, as it must be assumed that the settlor would wish to create a valid trust”
“One would think that … the judge will have a tendency to conclude that a trust is most closely connected with a State which has this institution”
“A bare trust is a relationship where (i) the nominee or bare trustee holds property on behalf of a (usually single) beneficial owner; (ii) the nominee or bare trustee has no active powers of investment, other than to deal with the relevant asset as instructed by the beneficial owner; and (iii) save where it would be illegal to do so, the nominee or bare trustee must deal with the asset as instructed by the beneficial owner: see, e.g., Lewin on Trusts (20th ed, 2020) § 1-028. The beneficiary rather than the trustee is the true owner of the property: see Tasarruf Mevduatti Sigorta Fonu v Merrill Lynch Bank[2011] UKPC 17 .”
“True ownership may be inferred from the fact that a person exercises control over assets ostensibly owned by another: see, e.g., Phoenix v Cochrane[2017] EWHC 418 (Comm) § 17(5). In the case of assets ostensibly settled on a discretionary trust, the settlor’s power to call for them or exercise other powers tantamount to ownership may lead to the conclusion that they are actually held on bare trust for him: Tasarruf v Merrill Lynch; JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev[2017] EWHC 2426 (Ch) . The same conclusion may also be reached where a person has control in practice over the trust assets because the trustees do whatever he asks: see JSC VTB Bank v Skurikhin[2015] EWHC 2131 (Comm) §§ 39 and 45.”
“There are a number of matters which may support the conclusion that the apparent owner of property in fact holds it as a nominee for someone else: whether someone other than the alleged nominee exercises control over the asset (Phoenix v Cochrane [2017] EWHC (Comm), [17(5)]); whether the apparent owner uses or allows the asset to be used in a manner which advances someone else’s interests rather than its own ([Prest v Petrodel Resources Ltd[2013] 2 AC 415 ], [52]); who paid for the asset, which may support a conclusion that it is held on constructive trust (Lewin, 10-019) and whether the person alleged to be the ‘real’ owner had a motive to disguise his or her ownership (JSC BTA Bank v Solodchenko & Ors[2015] EWHC 3680 , [8]).”
“It is relevant to consider whether a company alleged to be a nominee: i) acts in a manner that is not consistent with its own best interests (e.g. if a company gives away assets/does not use them for business purposes - such as allowing a property to be used as a matrimonial home for no consideration); ii) deals with its assets informally, without requiring its affairs to be properly documented; iii) has any trading business; or iv) has been newly incorporated to hold the asset in question: see, e.g. NRC Holding Ltd v Danilitskiy[2017] EWHC 1431 (Ch) § 39.”
“In this court the issue becomes: was there sufficient evidence to justify the judge in reaching that conclusion of fact? In submitting that there was, Mr Wilson draws attention first and foremost to the words used. When one bears in mind the unsophisticated character of the deceased and his relationship with the plaintiff during the last few years of his life, Mr Wilson submits that the words that he did use on more than one occasion, ‘This money is as much yours as mine’, convey clearly a present declaration that the existing fund was as much the plaintiff’s as his own. The judge accepted that conclusion. I think he was well justified in doing so and, indeed, I think that he was right to do so. …”
“Mrs Tadoral explains that since her appointment as provisional administrator, she has never been able to perform her duties properly because of DPWD’s behaviour in systematically refusing to provide her with the accounting documents that she has requested and calling her appointment into question.”
“The Bank accepts that … its case in these proceedings is an inferential one: it contends that the court may draw an inference from the factual circumstances concerning the particular transaction that the, or a, purpose of the asset transfer was the Alleged Purpose. An inference is simply a conclusion which flows logically, reasonably or rationally, through a process of reasoning, from proven or admitted facts. But: (a) Any inference must be drawn from, and be consistent with, all the relevant proved and admitted facts. (b)An inference of this kind must be drawn on the balance of probabilities. This means that the court must be satisfied that the inference the Bank seeks to draw as to Ahmad’s purpose was more likely than not on all the relevant and proved facts. If there are ‘conflicting inferences of equal degrees of probability, so that the choice between them is mere matter of conjecture, then the applicant has failed to prove [its] case’. …”
“I do not accept this submission which is overly broad and lacks proper analysis. It brings to mind the typically pithy observation of Charles Hollander KC in his seminal work Documentary Evidence (14th edn), where he states as follows at [11-28]: ‘Parties say they will ask the judge to draw adverse inferences in many circumstances where such a conclusion would be entirely unjustified. Too often the use of the expression is meaningless and is simply used as a substitute for “we will ask the judge to reject your case.”‘ … An adverse inference, if drawn, is a factual inference, and is not to be regarded as a penalty imposed on a party for his failure to call evidence or disclose documents.”
“… Here, we are concerned with whether the court should draw an adverse inference in favour of the Bank as a matter of ordinary rationality in the light of all the evidence before the court. It is for the Bank to persuade the court that it should do so and that there is no other equally likely or more likely inference which could be drawn from the admitted or proved facts.”
“Notably, it is public knowledge that Ms Tadoral has close links to the Government and a close relationship with the First Lady of Djibouti, Mrs Kadra Mahamoud Haid.”
“On30 September 2018 , the Administrator wrote to DPWD’s nominated directors and to Quinn Emanuel informing them of her appointment and asserting that DCT’s scheduled Board Meeting could no longer be held. Furthermore, she threatened the Board of Directors with criminal sanctions if they were to hold the Board Meeting as planned.”
“… the Republic applied to the Djibouti CFI on emergency basis to seek and obtain the appointment of … Ms … Tadoral. It quickly appeared to me that she was acting as an agent or instrumentality of the Republic. … … Ms Tadoral has communicated on several occasions with the lawyer of the Republic unilaterally and has not acted impartially in the interests of DCT. Digressing for a moment … this is not the first time that Ms … Tadoral has been criticized for lack of independence. It another unrelated matter, she had been appointed as liquidator in connection with the judicial liquidation of the Djiboutian joint venture between Total and Libya Oil. Ms … Tadoral’s management was severely criticised, due to her links with the government, by an American company also present in Djibouti. As was reported by the press: ‘Emiroil’s relations with the government deteriorated after its management criticised the partisan way Total and Libya Oil had been liquidated. IN particular, Emiroil had denounced the fact that one of the two liquidators, Chantal Tadoral, was close to the Attorney General … and the First Lady ….’ Ms Tadoral’s behaviour in the present case is equally subject to criticism. On several occasions, she has not acted in the best interests of DCT but has clearly aligned with the Republic.”
“… my application is not made on behalf of the Republic, to which I have absolutely no connection, but on behalf of DCT”
“I therefore confirm to you that I remain … the sole duly appointed statutory representative of DCT. Neither Mr Al Banna nor any one of the former members of the Board of Directors is authorised to represent the company in the context of proceedings between DCT and your client before the Hong Kong courts. …”
“it is advisable to designate Mrs Chantal Tadoral as provisional administrator with the mission to replace the governing bodies and will be vested with all the powers given by law to those bodies”
“As a result, [the Court] designates Mrs Chantal Tadoral as temporary administrator with the powers that the law confers on the governing bodies … the interim administrator will replace the board of directors with the time needed to deal with the crisis”
“If the President were telling the truth … then it is difficult to see what he would have to fear by coming to England to give evidence”
“… there should be jurisdiction to charge an interest under a ‘foreign’ trust, although as a matter of discretion the court will not exercise the jurisdiction where it could expose the trustees to a risk of double jeopardy. …”
“The execution of a judgment is an exercise of sovereign authority. It is a seizure by the state of an asset of the judgment debtor to satisfy the creditor’s claim. And it is a general principle of international law that one sovereign state should not trespass upon the authority of another, by attempting to seize assets situated within the jurisdiction of the foreign state …”
“You might have duality of acts, but you have – you do not have clearly an intention to deceive. You have the intention to hide. You have the intention to hide the precise identity of the owner. This, of course.”
“The purpose of the prête-nomis to hide of course. The purpose of the prête-nomis to create a false appearance”
“… you intend to hide the real, I would say, owner or person doing the transaction”
“Those investing there, specifically DP World and the banks who finance these projects, were only prepared (to invest in Djibouti) on the basis that management control rested with DP World and that there was no interference from the government.”
“But there is a troublesome point here concerning third parties. An injunction, as an order of the court, can affect the conduct of persons other than the defendant in the proceedings against whom the order is made. This was a matter considered in the recent Spycatcher litigation: Attorney-General v Newspaper Publishing Plc[1988] Ch. 333 . For the purposes of the present appeal it is sufficient to note that it is well established that a person who knowingly assists in the breach of a court order is himself in contempt of court: see, for example, Seaward v Paterson[1897] 1 Ch. 545 and, in the context of a Mareva injunction, Z Ltd v A-Z and AA-LL [1982] Q.B. 558. This principle is one of the strengths of a Mareva order, but it is the application of this principle to an injunction in respect of overseas assets such as I have described above that causes difficulty.”
“This is not an acceptable situation. It would be wrong for an English court, by making an order in respect of overseas assets against a defendant amenable to its jurisdiction, to impose or attempt to impose obligations on persons not before the court in respect of acts to be done by them abroad regarding property outside the jurisdiction. That, self-evidently, would be for the English court to claim an altogether exorbitant, extraterritorial jurisdiction. … To meet this difficulty 1 can see no alternative but to grasp the nettle firmly, and write into the order, which applies only to property outside the jurisdiction, an express provision to the effect that nothing in the relevant part of the order is to affect any person other than the defendants personally. This will remove any extraterritorial vice which be binding only on the conscience of the defendants personally. This will remove any extraterritorial vice which otherwise the order might have, or be thought to have. The order will be binding only on the conscience of the defendants.”
“…the order should be confined in its effect to the defendants personally, thus excluding everyone else, even the defendants’ servants or agents. The defendants’ servants or agents, as much as banks and other third parties, may be acting outside the jurisdiction, so that the problem of extraterritorial effect may be as much relevant to them as it is to banks and others. Thirdly, I do not think that it would be right to attempt to distinguish between third parties who are resident or domiciled or present within the jurisdiction and those who are not. This could give rise, for instance, to a distinction between an overseas bank which has a branch in London and one which does not. More importantly, however, attempting to draw any such distinction is wrong in principle. If it is to be free from extraterritorial vice, the order must not attempt to regulate the conduct abroad of persons who are not duly joined parties to the English action in respect of property outside the jurisdiction.”
“In my view I cannot ignore the actions of the Defendants. They were aware of the anti-suit injunction and chose to ignore it. By virtue of the MRA they had agreed to submit disputes to arbitration in Singapore upon election by any party and the Plaintiffs have so elected. In the circumstances it would be manifestly against public policy to give recognition to the foreign judgment at the behest of the Defendants who have procured it in breach of an order emanating from this Court.”
“All disputes which could arise during the course of the Company or its liquidation, either between the Shareholders themselves regarding the Company affairs, or between the Shareholders and the Company, are subject to arbitration, in accordance with the Rules of the International Court of Arbitration of London, the State and the artificial persons of Djiboutian public law, Shareholders of the Company expressly waiving any privilege of jurisdiction or enforcement.”
“Shareholders means: (i) any shareholders in the Equity Share Capital of the Company who are Parties to this Agreement, being PAID and DPW Djibouti as of the date hereof; and (ii) any Person to whom Shares are issued or transferred in accordance with this Agreement from time to time and who has executed a Deed of Adherence; while any Shares are held by such Persons; and Shareholder means any of them (as the context requires).”
“Shareholders means: (a) The subscribers to these Articles of Association holding Shares in the Capital of the Company, and (b) Any Person to whom Shares are issued or Transferred in accordance with these Articles and who have executed a Deed of Adherence; while any Shares are held by such Persons; and Shareholder means any of them (as the context requires).”
“The Djibouti CFI rejected the argument made by DCT that the transfer of shares between [PDSA] and the Republic was made in violation of the provisions of the Articles of DCT and the relevant shareholders’ agreement. The Court held that the shareholders agreement was signed by PAID [later renamed PDSA], and not by the Republic, such that the Republic was not bound thereby. The Djibouti CFI further found that the shareholders agreement had already been terminated by the Presidential Order before the Republic became a shareholder. … The Djibouti CFI and Djibouti CA gave valid reasons for the making of the Appointment Order”
“On26 October 2015 , a criminal peace judge in Ankara, Judge Süer, appointed a number of individuals including the trustees as directors of group companies including Koza Altin. This was done pursuant to article 133 of the Turkish Criminal Procedure Code (‘TCPC’) which allows the court to appoint trustees to administer a company with a view to running its business. There have to be strong grounds for suspicion that one or more of a number of scheduled crimes is being committed within the activities of the company and the appointment of trustees must be necessary for revealing the factual truth during a criminal investigation or case. The claimants allege that the judgment of Judge Süer was corrupt.”
“On12 November 2015 an appeal against that judgment was determined on the papers by Judge Sahinbey, another criminal peace judge, and dismissed. Mr Ipek then appealed to the Turkish Constitutional Court and on8 April 2016 filed an application with the European Court of Human Rights (‘ECtHR’) challenging the appointment of the trustees as a breach of the European Convention on Human Rights (‘ECHR’). That application was declared inadmissible on11 May 2017 for failure to exhaust all domestic remedies. By a judgment delivered on24 May 2018 , the appeal to the Turkish Constitutional Court was dismissed. On12 December 2018 Mr Ipek filed a further application to the ECtHR which was still pending at the time that the judge’s judgment was delivered on28 July 2021 . Since his judgment, the ECtHR has handed down judgment on21 October 2021 dismissing that application. The defendants sought to put that judgment before this Court in an application to adduce fresh evidence. That application was not opposed and the parties made submissions as to the effect of that judgment with which I will deal hereafter.”
“In relation to the Süer judgment, the judge noted at [62] that the claimants contended that English public policy considerations were engaged because the individual defendants’ authority derived from a judicial process conducted for a corrupt political purpose. It was also said that Judge Süer had not acted independently and impartially on the basis of the evidence but his judgment was tainted by what the claimants described as the influence of the Erdogan regime, leading to it being impeachable for fraud. It was also said the judgment was contrary to Turkish law, perverse and not given in good faith. The judge went on to record at [63] the claimants’ submission that if the challenge to the individual defendants’ authority requires them to rely on the Süer judgment to establish that authority, the English court will not accept their authority if the judgment from which it derives is corrupt or given in breach of principles of natural justice or in breach ofarticle 6 of the ECHR .”
“The judge went on to refer to the report of Professor Sir Jeffrey Jowell KC (‘the Jowell report’) on behalf of the claimants referring to the deterioration in the rule of law and the independence of the judiciary in Turkey which the Erdogan regime has caused or to which it has contributed. He noted at [67] the claimants’ submission that one of the consequences of this state of affairs was that the Turkish judicial system did not at any material time operate independently of the government. One of the manifestations of that lack of independence was said by the Jowell report to be the abolition in 2014 of the then system of criminal peace courts and their replacement by a small pool of criminal peace judges (including Judge Süer) whose procedures had been the subject of sustained international criticism. They are appointed directly by the government.”
“As Mr Crow put it, he was not asking this Court to agree with everything that the Turkish Constitutional Court said. That was not the question for us, but rather whether this review by the Turkish Constitutional Court provides a sufficient answer to the criticisms of the Süer judgment for this Court to say that it will recognise the Süer judgment, on the assumption that contrary to his primary case, such recognition is required. The question was not, as Mr Scott suggested, whether the Turkish Constitutional Court is part of the normal appellate structure or whether it was concerned not with facts and law but only fundamental breaches of human rights. That was an erroneous line of argument, because the question in this Court is not whether the Turkish Constitutional Court provides a full de novo review of all the evidence and law, but whether, as it was put in Maximov, the judgment of the Turkish Constitutional Court is so perverse that no bona fide court could have reached it. He submitted that it was simply not possible to reach that conclusion in relation to the judgment of the Turkish Constitutional Court. Nor was any such allegation made by the claimants in the re-amended particulars of claim, which simply noted the decision of the Turkish Constitutional Court as part of the chronology of what had occurred in Turkey.”
“Mr Crow submitted that whilst the Jowell report makes a large number of criticisms of different aspects of the administration of justice in Turkey, as the judge correctly pointed out at [79], the Jowell report is as consistent with a finding that the Turkish Constitutional Court is independent, precisely because it does find against the government sometimes and the government simply chooses not to comply with its rulings. Furthermore, that the Turkish Constitutional Court is capable of providing effective remedies for alleged breaches of human rights has repeatedly been recognised by the ECtHR, for example in Mercan v Turkey (2016) at [25] and [30]. There, as in previous cases, the ECtHR dismissed the application for failure to exhaust domestic remedies, which as Mr Crow said, it would not have done if it thought that the Turkish Constitutional Court could not provide adequate remedies.”
“… in September 2016, legislative decree no 674 was promulgated under which the powers of trustees such as those appointed to Koza Altin were transferred to the SDIF, part of the executive, and the SDIF then appointed a new board of directors to Koza Altin. The SDIF has made a number of subsequent changes to the identity of the directors, most recently by a decision dated5 November 2020 (referred to at [18] above), by which the individuals who were the directors at the time the 2021 proceedings were commenced were appointed. It is the authority of those directors which the claimants seek to put in issue.”
“It follows that it is Turkish legislative and executive acts from which the current directors derive their authority to act as directors of Koza Altin, not the Süer judgment.”
“Even if, contrary to the analysis I have just expounded, the authority of the current directors is derived from the Süer judgment, I consider that the effect of the judgments of the Turkish Constitutional Court and/or of the ECtHR of21 October 2021 is that the claimants cannot establish that there is a serious issue to be tried that the Süer judgment was corrupt and should not be recognised by this Court.”
“The judgment of the Turkish Constitutional Court is some 30 pages of well-reasoned analysis. As Mr Crow said (recorded at [112] above), at the outset of the judgment it states in a nutshell what the complaint was and is, that the applicant’s rights to a fair trial and property rights had been violated by, inter alia, the appointment of the trustees pursuant to the Süer judgment. … .”
“There is nothing in the judgment of the Turkish Constitutional Court, which I have considered carefully, to suggest that it did not deal with the issues raised by the applicant or that its approach to those issues was anything other than impartial. As I note at [92] above, Mr Scott relied upon a number of criticisms of the Turkish legal and judicial system contained in the Jowell report, but none of these is a specific criticism of this decision of this Turkish Constitutional Court. As the judge correctly said at [79]: ‘Professor Jowell’s report is as consistent with a conclusion that the government regularly ignores or sidesteps its decisions, as it is with a conclusion that the court itself does not function as an effective means of judicial review and control.’”
“I agree with Mr Crow that there is nothing in the claimants’ point that the Turkish Constitutional Court is not part of a normal appellate structure or did not provide a full de novo review of all the evidence and law (although on my reading it conducted a pretty thorough analysis of the issues raised). When an impugned foreign judgment has been subject to review by a higher court which has rejected the criticisms made, then unless the decision of the higher court can itself be impugned as not having been made in good faith, it is entitled to be recognised by the English court and its conclusions are entitled to be respected. The judge correctly stated the applicable principle at [79] derived from Maximov [2017] CLC 121 at [53]-[54]. Mr Scott sought to distinguish Maximov because it was a decision reached after a full trial, but the principle is of general application, as stated by Sir Michael Burton at [15]: ‘The fact that a foreign court decision is manifestly wrong or is perverse is not sufficient (see for example Dicey, Morris and Collins, The Conflict of Laws (15th edn) at 14-163, OJSC Bank of Moscow v Chernyakov[2016] EWHC 2583 (Comm) and Erste Group Bank AG (London) v JSC VMZ Red October[2013] EWHC 2926 (Comm) ). The decision must be so wrong as to be evidence of bias, or be such that no court acting in good faith could have arrived at it.’" He ended by saying this at [159]-[160]: “In his submissions to this Court, Mr Crow accepted that, whilst in his oral submissions before the judge he had not specifically dealt with whether there was a serious issue to be tried in relation to the integrity of the decision of the Turkish Constitutional Court, he had always made it clear to the judge that he was not abandoning anything that was in his written submissions. I note that in his skeleton argument before the judge at [117(1)] he referred to the decision of the Turkish Constitutional Court and to the decision of the ECtHR of11 May 2017 referred to at [6] above declaring Mr Ipek’s application as inadmissible for failure to exhaust domestic remedies. As Mr Crow had said at [109] that was an important point because, at the very time when Mr Ipek’s appeal to the Turkish Constitutional Court was pending, the ECtHR was of the view that the Turkish Constitutional Court was capable of providing redress for ECHR violations, as the ECtHR had previously decided in Uzun v Turkey (2013) and Mercan v Turkey (2016). At [118] of his skeleton argument, Mr Crow went on to say this (in a passage repeated in essentially the same terms in the skeleton argument for this appeal at [37(b)]): ‘Nowhere in the claimants’ (extensive) evidence is there any attack on the bona fides of the Turkish Constitutional Court. Quite the reverse-the suggestion is that one of the problems in the Turkish legal system is that the decisions of the Constitutional Court are not properly implemented when they go against the judgment … . Nor is there any specific attack on the Constitutional Court’s decision of24 May 2018 dismissing Mr Ipek’s appeal against the appointment of trustees. Nor are there even any pleas on these matters. In the circumstances, any ‘non-recognition’ of judgments case could not get off the ground.’ Accordingly, in my judgment, there is no proper basis for any suggestion that the defendants had somehow conceded before the judge that the claimants had an arguable case which should go to trial that the decision of the Turkish Constitutional Court lacked integrity or was somehow itself corrupt. There is, in any event, no serious issue to be tried as to the integrity of that decision. As the judge correctly said at [76]: ‘A functioning system of review and appeal should be capable of validating in the eyes of the English court a decision of a foreign court that might otherwise have been regarded as corrupt’. In my judgment, the decision of the Turkish Constitutional Court did so in relation to the Süer judgment and, in consequence, there is no serious issue to be tried as to whether the Süer judgment should be recognised in England.”
“In our judgment the time has come, in accordance with the rationalisation and highly authoritative guidance of Lord Collins and the Privy Council in Altimo Holdings, to hold that the act of state doctrine does not prevent an investigation of or adjudication upon the conduct of the judiciary of a foreign state, whether that conduct lies in the past, or in the future, and whether or not its conduct in the past is relied upon as the foundation for an assessment of the risk as to its conduct in the future. As Hamblen J stated in the present case, such a distinction is without principle: it is truly so, for such a distinction has never even been formulated. …”
“In our judgment, therefore, the act of state doctrine does not apply to allegations of impropriety against foreign court decisions, whether in the case of particular decisions or in the case of a systemic dependency on the dictates or interference of the domestic government. Nor is there an absence of justiciable standards by which to adjudicate such allegations.”
“Two questions on this aspect of the present case have been canvassed on this appeal. The first is the standard of proof to be satisfied by the party which asserts that justice will not be done in the foreign jurisdiction: does that party have to show that justice will not be done, or simply that there is a risk that it will not be done? The second is whether the court may rule that as a result, for example, of endemic corruption, justice is not to be obtained in the foreign legal system in general.”
“Is the court able to find that justice will not, or may not, be done because of endemic corruption in the foreign system? The Appellants say that the court is precluded from undertaking this task by the act of state doctrine or the related principle of judicial restraint enunciated in Buttes Gas & Oil Co. v Hammer[1982] AC 888 .”
“The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence. That, and not the act of state doctrine or the principle of judicial restraint in Buttes Gas & Oil Co v Hammer, is the basis of Lord Diplock’s dictum in The Abidin Daver and the decisions which follow it. Otherwise the paradoxical result would follow that, the worse the system of justice in the foreign country, the less it would be permissible to make adverse findings on it.”
“That conclusion is also supported by the many cases in the United States courts in which the standard of justice in the foreign court has been examined in the context of forum non conveniens questions. It was said in Blanco v Banco Industrial de Venezuela, 997 F 2d 974, at [50] (2d Cir 1993), quoting earlier decisions, that it ‘is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.’ That is not the enunciation of the act of state doctrine (well known in the United States) or the doctrine of judicial restraint in foreign relations cases (which has its origin in the United States), but simply a reflection of the fact that comity considerations require the court not to pass judgment on the foreign court system without adequate evidence. Evidence of corruption in the foreign court system is admissible (as, e.g., in Cariajano v Occidental Petroleum Corp, 626 F 3d 1137 (9th Cir 2010)), but it must go beyond generalised, anecdotal material: Tuazon v RJ Reynolds Tobacco Co, 433 F 3d 1163, 1179 (9th Cir 2006); Stroitelstvo Bulgaria Ltd v Bulgarian-American Enterprise Fund, 589 F 3d 417 (7th Cir 2009). Cases in which justice in the foreign legal system has been found wanting have been rare but they are by no means unknown: Rasoulzadeh v Associated Press, 574 F Supp 854 (SDNY 1983), affd 767 F 2d 908 (2d Cir 1985) and Osorio v Dole Food Co, 665 F Supp 2d 1307 (SD Fla 2009) are examples in the contexts of forum non conveniens and enforcement of foreign judgments respectively.”
“It is thus clear that cogent evidence is required before it is possible to call a foreign court decision partial and dependent. The relevant degree of cogency may well differ in different countries.”
“By court order No. 72/18 of September 27th, 2018, the Commercial Chamber of the Court of First Instance, having heard the Claimant [and not] the Defendant, through summary proceedings, and in first instance: According to the provisions of Articles L 113-1, L 362-1 et seq. of the Code of Civil Procedure, Article 52 of the Articles of Association of Doraleh Terminal Container (DCT); declared the Commercial Chamber, ruling in summary proceedings, to have jurisdiction to hear this dispute; found that there is a disagreement and a conflict between the shareholders which may hinder the proper operation of the company Doraleh Container. Stated that the conditions for the appointment of a provisional administrator are met in this case. As a consequence, designated Madame Chantal TADORAL as provisional administrator with the [same] powers granted by law to the corporate governing bodies [of the company). Stated that the Provisional Administrator will replace the Board of Directors for the time necessary to resolve the crisis; sets the Administrator’s fees at the sum of 400,000 FDJ per month from the date of this order until the end of her assignment to be claimed from DCT funds. States that her assignment will end upon order by the court (requête ou référé). Notes that this order is enforceable immediately, notwithstanding any appeal or opposition. Orders the Defendant to pay the costs.”
“Following the authorization to oppose the nomination of the provisional administrator] through summary proceedings, Doral Container Terminal was authorized to summon the State of Djibouti on October 11th, 2018 at 10 a.m. before the President of the Court of First Instance, for the purpose of declaring DCT’s claim admissible and well-founded in its opposition, to declare that there was not sufficient time between the summons and the hearing, for DCT to prepare its defense. Consequently, declares null and void the summary proceedings of September 26th, 2018 and the subsequent order of November 27th, 2018; in the alternative, declares the State of Djibouti incompetent to act in order to request the judicial appointment of a provisional administrator. Consequently, withdraws the order of September 27th, 2018; in the further alternative, declares that the conditions for appointing a Provisional Administrator were not met. In any event, orders the State of Djibouti to reimburse the costs incurred by DCT until Article L 381-6 of the Code of Civil Procedure.”
“Considering that Article L 362-2 of the Code of Civil Procedure provides that ‘the request shall be brought by way of summons to a hearing held for this purpose on the usual days and hours of the summary proceedings. If, however, the case needs to be expedited, the judge may allow the court to summon, at the time indicated, even on public or non-working days.’ That under Article 362-3 of the same Code: ‘In any case, the judge shall ensure that sufficient time has elapsed between the summons and the hearing for the summoned party to have prepared its defense.’ Considering that the claimant argues that the one-day period between the notification to the public prosecutor’s office of the legal representative located abroad and the date of the hearing did not in any way allow DCT to be aware of the summons before the said hearing. That this short period of time necessarily adversely affected it since DCT was not able to prepare its defense and was not represented at the hearing on September 27th, 2018.”
“Considering that the right of defense of DCT was hardly violated, since the order issued on September 27th, 2018 was rendered by default and DCT was authorized to file an opposition with the court that rendered the decision and thus, both parties were heard and the adversarial principle restored. It is therefore appropriate to reject the invalidity claim submitted by the oppositionClaimant as unfounded.”
“Considering that DCT argues that the State of Djibouti would not be entitled to take action to request the appointment of a provisional administrator within DCT because the latter cannot claim to have a legitimate interest in the success of its claim. Considering that Article 231-3 of the Code of Civil Procedure provides that ‘a party taking legal action must have a legitimate interest in the success or rejection of its claim and a standing to act.’ Considering that under Presidential Order n°2018-001/PRE dated September 9th, 2018, the shares held by PAID and then PDSA in the share capital of DCT are transferred to the State. That PDSA held 66.66% of the shares. Since this transfer, the State of Djibouti has become the majority shareholder with 66.66% of the shares in the capital of DCT. Considering that, as a result, the State of Djibouti, as the majority shareholder, undoubtedly has a personal and legitimate interest in taking legal action in order to request that the dispute between it and its co-shareholder be resolved and to request the appointment of a provisional administrator. Considering that the opposition Claimant argues that the transfer of shares between the majority government shareholder PAID and then PDSA and the State of Djibouti was made in violation of the provisions embodied in the Articles of Association of DCT and the shareholder agreement. Considering that the State of Djibouti, the majority shareholder, claims not to have adhered to the shareholder agreement on the grounds that it was terminated by the government shareholder PSDA before the transfer of its shares to the State. Considering that the shareholder agreement was effectively terminated by PDSA on 28/07/18 and by Presidential Order No. 2018-001/PRE dated September 9th, 2018, PDSA’s shareholding in DCT’s capital was transferred to the State. Considering that under article 1240 of the Djibouti Civil Code, ‘legally formed agreements shall be regarded as law for those who made them’, that the DCT shareholder agreement was signed by PAID, now PSDA, and DPWD and not with the State. … That, in view of the aforementioned reasons, the State of Djibouti, as majority shareholder, is indeed entitled to take legal action so that the dispute between it and its co-shareholder DPWD can be resolved and therefore request the appointment of a provisional administrator.”
“Considering that DCT argues that the conditions for the appointment of a provisional administrator are not met in this case since the State does not report any conflict with the minority shareholder that paralyses the operation of DCT. Considering that the appointment of an administrator by the judge who will replace the legal bodies while the crisis is being resolved is a serious and exceptional measure, it is neither provided for nor organized by law. Considering that, according to settled case law, the judge is allowed to interfere in the management of a company in the event of paralysis of the corporate bodies and the presence of an imminent danger [for the company], and that the judge’s intervention must be assessed in light of the interest of the company Considering that, of course, disagreements between the shareholders do not justify the appointment of a provisional administrator as long as the corporate bodies are functioning normally. Considering that, on the other hand, the appointment of a provisional administrator is necessary when these dissensions or conflicts between partners are such that they threaten the sustainability of the company. … Considering that DPWD claims that the State wants to protect not the corporate interest of DCT but its personal interest, which is to take control of DCT by ousting DPWD.”
“Considering that these disagreements and conflicts between partners/shareholders hinder the proper operation of the company and therefore endanger the interests of the company. In view of these reasons, the invalidity and inadmissibility raised by the Claimant should be rejected as unfounded. Consequently, confirm the order for interim relief dated September 27th, 2018, even if opposed, which appointed Mrs Chantal Tadoral as provisional administrator with the duties mentioned in the said order.”
“The issue in the Dutch proceedings was whether the annulment decisions setting aside the arbitral awards were ‘partial and dependent’; if they were, then they were not to be recognised by the Dutch courts. Mr Pollock for Yukos Capital submitted that the issue in the English proceedings is exactly the same since, if the decisions were "partial and dependent", the English courts will not recognise them. It is true that the Dutch courts treat the decision as one of Dutch public order and the English courts will treat it as a matter of English public order. But the public policy, submitted Mr Pollock, is the same in each country and the issue to be decided in accordance with that public policy is identical. The difficulty with Mr Pollock’s submission is that ‘public order’ or ‘public policy’ is inevitably different in each country. The standards by which any particular country resolves the question whether the courts of another country are ‘partial and dependent’ may vary considerably and it is also a matter of high policy to determine the circumstances in which this country should recognise the judgments of a state where the interests of that very state are at stake. Normally such recognition will be given and, if it is to be refused, cogent evidence of partiality and dependency will be required. Our own law is (or may be) that considerations of comity necessitate specific examples of partiality and dependency before any decision is made not to recognise the judgments of a foreign state. It is our own public order which defines the framework of any assessment of this difficult question; whether such decisions are truly to be regarded as dependent and partial as a matter of English law is not the same question as whether such decisions are to be regarded as dependent and partial in the view of some other court according to that court’s notions of what is acceptable or otherwise according to its law.”
“DCT (i) no longer generated operating revenues; (ii) paid no further dividends; and (iii) ceased to incur management-fee obligations to the Claimant [DPW] rendering the company de facto an empty corporate shell”
“As the parties put forward their arguments, the court was subjected to a barrage of noise from a protest outside the building, including music blaring from loudspeakers. Two of the more readily recognisable ditties were those of the themes The Great Escape and The Dambusters. Concluded at [18] that “I decline to allow [Hemisphere] to escape from the effect of their dilatoriness in pursuing this asset at any time before this, notwithstanding the well publicized litigation which was taking place and initiated by Kensington. I further decline to bust the dam or open the flood-gates to allow all creditors of the Congo to latch on to this debt as a matter of equitable discretion and to take advantage of the fruits of Kensington’s diligence.”
“I have reached the conclusion that Cooke J [in FG Hemisphere] was right in saying that in non-statutory insolvency regime cases, the general rule is that the principle of ‘first past the post’ applies. However, it is only a general rule, to which there may be exceptions when it is appropriate in the exercise of the court’s discretion not to make a charging order final. It seems to me that (despite Mr Lord’s submissions to the contrary) there may be exceptional cases where even though no statutory insolvency regime applies, it is appropriate to conclude that someone in the position of HSBC should not have the benefit of a final charging order.”
“It seems to me that this conclusion flows from the fact that bothsection 1 of the Charging Orders Act 1979 and the terms ofCPR 73.8 recognise the existence of a discretion as to whether to make an order final. However, I do not consider that the discretion is a general one at large. Rather, subsection (5) talks about any other creditor being ‘unduly prejudiced’ by the making of the charging order. I agree with Mr Twigger that Mr Lord is wrong in suggesting that this provision is only intended to inure to the benefit of the general body of creditors, since it refers in terms to ‘any other creditor’ as opposed to ‘all other creditors’. However, the expression ‘unduly prejudiced’ seems to me to recognise that a charging order in favour of one creditor will almost certainly, in one sense, prejudice other creditors, because it gives that creditor security against which to enforce his judgment which the other creditors do not have, but it is only where that prejudice is ‘undue’ that the court should consider not making a final charging order.”
“In my judgment, the prejudice to other creditors, such as the opposing banks in the present case, can only be said to be ‘undue’ if there is something about the judgment creditor’s conduct which would cause undue prejudice if there were a final charging order or if there are some other exceptional circumstances, which mean that other creditors will suffer some prejudice over and above the prejudice they would inevitably suffer, if an order were made in favour of the judgment creditor.”
“There is no authority directly on the point as to when, in non-statutory insolvency regime cases, the prejudice to other creditors will be ‘undue’ or as to what constitutes an exceptional situation, so that it would be appropriate for the court to exercise its discretion not to make a charging order final. However, I accept that (although the House of Lords in Roberts disapproved the ratio of Burston and therefore care must be taken in placing too much reliance on the judgments) the judgments of Megaw LJ and Shaw LJ in that case do provide some guidance as to when it would be appropriate not to make a charging order final because of exceptional circumstances, such as aspects of the judgment creditor’s conduct. Nonetheless, in my judgment, it is of some significance that all the examples the two Lords Justice give are ones of what might be described as ‘sharp conduct’ by the judgment creditor: putting other creditors off the scent by purporting to agree to forego immediate pursuit of a claim or undue haste in obtaining a preferred position or unfair use of special knowledge.”
“The fact that Kazakhstan holds the ultimate beneficial interest in the national fund and thereby has a beneficial interest in the cash accounts held by AAMGS on behalf of NBK does not, in my view, mean that there is a debt due or accruing due to Kazakhstan in respect of those accounts. Kazakhstan has no contractual rights against AAMGS either under the global custody agreement or otherwise. There is no relationship of debtor and creditor between them. The fact that Kazakhstan may, ultimately, have a beneficial interest in the money represented in the cash accounts cannot, in my view, create such a relationship.”
“i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court’s attention to significant factual, legal and procedural aspects of the case; ii) It is a high duty and of the first importance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make; iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents; iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on; v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction; vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect; vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits; … .”
“Unless the court orders otherwise an arbitration claim form must be served on the defendant within 1 month from the date of issue and rules 7.5 and 7.6 are modified accordingly.”
“(3) The parties on whom the arbitration claim form is served must acknowledge service and the enforcement proceedings will continue as if they were an arbitration claim under Section I of this Part.”
“While these arbitration claim cases have generally involved applications relating to pending arbitrations or challenges to arbitral awards, the policy of ‘speedy finality’ which they reflect is, in my opinion, equally applicable to applications brought with a view to assisting the enforcement of arbitral awards. Indeed, in that context, the position might be thought to be even more compelling.”
“I would add by way of postscript that it is common ground that the same problem could not arise under the CPR.CPR 62.18 is very similar to the old RSC Order 73 rule 10 but it provides that the application may be made without notice in an arbitration claim form. UnderCPR 62.4 the general rule is that any arbitration claim form must be served on a defendant within one month of the date of issue unless the court orders otherwise… .”