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Supreme Courte UK: 17 August 2012. SerVaas Incorporated (Appellants) v Rafidain Bank and others (Respondents) [2012] UKSC 40
Supreme Courte UK: 17 August 2012. SerVaas Incorporated (Appellants) v Rafidain Bank and others (Respondents) [2012] UKSC 40
SerVaas Incorporated (Appellants) v Rafidain Bank and others (Respondents) [2012] UKSC 40
On appeal from: [2011] EWCA Civ 1256
JUSTICES: Lord Phillips (President), Lady Hale, Lord Clarke, Lord Sumption and Lord Reed.
BACKGROUND TO THE APPEALS
On 9 September 1988, the Appellant (“SerVaas”) entered into an agreement with the Iraqi Ministry of
Industry for the supply of equipment, machinery and related services required for the commissioning
of a state owned copper and brass processing factory in Iraq. On 2 August 1990 Iraq invaded Kuwait
and on 4 August 1990, the assets of Rafidain Bank (“Rafidain”) in the UK were frozen in accordance
with a United Nations sanctions regime. On 13 August 1990 SerVaas terminated the agreement and
subsequently commenced proceedings in the Paris Commercial Court against the Ministry to recover
money due under the agreement. It gave judgment in favour of SerVaas for US$14,152,800 (“the
Judgment”). The Judgment was recognised in the Netherlands and SerVaas recovered US$966,515 by
partial enforcement there against Iraq's assets. In July 2002, SerVaas received US$6,736,285 from the
UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion
of Kuwait.
In May 2003, the regime of Saddam Hussein in Iraq fell. On 22 May 2003 the UN Security Council
passed Resolution 1483 establishing the Development Fund for Iraq (“DFI”). On 21 November 2004,
Iraq made a debt cancellation agreement with government creditors comprising the Paris Club. In
December 2004, Iraq began a process of debt restructuring with its commercial creditors and the
creditors of other specified Iraqi entities, including Rafidain under the auspices of the Iraq Debt
Reconciliation Office (“the IDRO Scheme”). Rafidain, in the meantime, had had a winding up petition
presented in respect of it by the Bank of England, in relation to which Provisional Liquidators had
been appointed in respect of its UK assets, but which petition had been adjourned generally. On 26
July 2005, Iraq announced an offer to repurchase claims for the commercial creditors of specified Iraqi
debtors, including Rafidain, where claims arose before 6 August 1990. In May 2006, Iraq issued an
invitation to tender claims for cash purchase and for exchange. Thereafter Iraq took assignments of
certain debts owed to Rafidain's creditors by Rafidain in accordance with the IDRO Scheme.
On 3 April 2008, a scheme of arrangement for the distribution of assets held by the Provisional
Liquidators to Rafidain's creditors was sanctioned (“the Scheme”). By 19 August 2009, Iraq had
submitted claims in the Scheme which were admitted in the sum of US$253.8 million (“the Admitted
Claims”). The original commercial debts constituting the Admitted Claims were acquired by Iraq by
way of assignment from existing creditors of Rafidain. On 4 November 2009, SerVaas obtained an
order registering the Judgment in England and Wales against the Ministry under the Civil Jurisdiction
and Judgments Act 1982 (“the Registration Order”). It was served on Iraq on 2 May 2010 and became
enforceable against the Ministry and Iraq in England and Wales on 2 September 2010. On 11 October
2010 Iraq's US lawyers responded to a request from the Scheme Administrators by stating that the
dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with
the Federal Reserve Bank in New York. As at November 2010, the debt due in respect of the
Judgment is said to have amounted to US$34,481,200.49.
The Supreme Court of the United Kingdom
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In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on
proceedings against Rafidain and made an order preventing Rafidain, the Provisional Liquidators and
the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the
Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted
Claimant to a third party which would have the effect of reducing the amount payable to Iraq to an
amount less than the Judgment debt.
On 13 October 2010 SerVaas issued an application for a Third Party Debt Order, that is, an order that
the debts payable to Iraq by Rafidain by way of dividend under the Scheme be instead paid to SerVaas
insofar as necessary to satisfy the Judgment. On 30 November 2010, the Chargé d'Affaires and Head
of Mission of the Embassy of Iraq in London signed a certificate (“the Certificate”) that the Admitted
Scheme Claims have never been used, are not in use and are not intended to be for use for any
commercial purpose. Iraq applied to discharge the injunction on the ground that monies due to Iraq by
Rafidain were immune from execution by virtue of section 13(2)(b) of the State Immunity Act 1978. In
the High Court, Arnold J held that the Admitted Claims were immune from execution by reason of
s.13(2)(b) and (4) because they were not property which was for the time being in use or intended for
use for commercial purposes. By a majority, the Court of Appeal dismissed SerVaas' appeal. SerVaas
appealed to the Supreme Court.
JUDGMENT
The Supreme Court unanimously dismisses the appeal. Whether property is “for the time being in use
or intended for use for commercial purposes” within the meaning of s.13(4) of the State Immunity Act
1978 does not depend on whether that property has in the past been used for commercial purposes.
Lord Clarke gives the leading judgment with which Lord Phillips, Lady Hale, Lord Sumption and Lord
Reed agree.
REASONS FOR THE JUDGMENT
It was common ground that (a) the monies payable under the Scheme are a debt and a chose in action
and as such are “property” within the meaning of s.13(2)(b); (b) that Iraq's state intention is to transfer
the proceeds of the Admitted Claims to the DFI; (c) that, the Certificate creates a rebuttable
presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d)
that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that
the debts were intended for use for sovereign and not commercial purposes. As these are summary
proceedings, the issue is whether there is any real prospect of SerVaas rebutting the presumption.
The central question in this appeal is therefore whether the nature of the origin of the debts is relevant
to the question whether the property in question was in use for commercial purposes. It is not. This
conclusion is based on the language of s.13(4) and on previously decided domestic and comparative
authority. As to language, s.13(4) should be given its ordinal and natural meaning having regard to its
context and it would not be an ordinary use of language to say that a debt arising from a transaction is
“in use” for that transaction. Parliament did not intend a retrospective analysis of all the circumstances
which gave rise to property but an assessment of the use to which the state had chosen to put the
property. The language of s.13(4) can also be contrasted with other sections of the Act. As to
authority, Lord Diplock in Alstom v Republic of Columbia [1984] AC 580 distinguished between the origin
of the funds on the one hand and the use of them on the other. Various decisions of the American
Federal courts of appeals and of the Court of Appeal in Hong Kong also support this distinction.
NOTE
This summary is provided to assist in understanding the Court's decision. It does not form
part of the reasons for the decision. The full judgment of the Court is the only authoritative
document. Judgments are public documents and are available at:
www.supremecourt.gov.uk/decided-cases/index.html
Avv. Antonino Sugamele

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