The case of the day is Receivers of Sabena SA v. Deutsche Bank AG (N.Y. App. Div. 2016). Sabena, before it became insolvent, was Belgium’s national airline. It provided airplane maintenance services to Sudan Airways Ltd. In 1997, to pay for some services Sabena had provided for its planes, Sudan Airways initiated an electronic funds transfer for $360,000 with Sabena as the beneficiary. Sudan Airways’s bank was the National Bank of Abu Dhabi. Generale Bank was Sabena’s bank. Bankers Trust, in New York, was the intermediary bank. Its successor-in-interest was Deutsche Bank.
The case of the day is Presley v. N.V. Masureel Veredeling (Tex. Ct. App. 2012). Marina Presley was the president of Sudaglass Fiber Co. She and Sudaglass entered into a joint venture agreement with Masureel, a Belgian company in the business of yarns and fabrics finishing. The aim of the joint venture was to sell continuous filament fiber. The joint venture agreement provided that it was to be “governed by, and construed and interpreted in accordance with, the laws of Belgium.” It also had agreement to arbitrate disputes “arising out of or in relation with the Agreement”.
Presley also entered into a loan agreement with Masureel on the same day as the joint venture agreement. The loan agreement was attached as an exhibit to the joint venture agreement. It contained a choice of law and choice of forum clause that provided: “This agreement shall be governed by and construed in accordance with Belgian law. The courts of Kortrijk have non-exclusive jurisdiction for any dispute which may arise under or in connection with this agreement.”
Masureel, claiming that Presley had failed to pay as required by the loan agreement, brought an action in the Kortrijk court for payment. Presley defended on the grounds that the joint venture agreement and the loan agreement “constituted one whole,” and that the dispute arising under the loan agreement was within the scope of the agreement to arbitrate. She also counterclaimed for breach of the joint venture agreement.
The Belgian court held that it had no jurisdiction to hear the counterclaim, which was within the scope of the agreement to arbitrate. But it held that it did have jurisdiction to hear Masureel’s claim, as the parties had evidently intended that disagreements about the loan agreement could be litigated in the court notwithstanding the arbitration agreement in the joint venture agreement. It awarded damages to Masureel. On appeal, the Court of Appeals in Ghent affirmed, explaining that hearing claims but refusing to hear counterclaims, when the scope of the arbitration agreement so required, was correct except in the rare case where the claims and counterclaims are “indivisible,” and that wasn’t the case here.
Masureel sought recognition and enforcement of the judgment in the Texas state courts in Houston. Presley opposed recognition and enforcement on the grounds that the judgment was contrary to the parties’ agreement to arbitrate the dispute (as we have seen before, this is one of the grounds for nonrecognition under the UFMJRA). The trial court recognized the judgment, and on appeal, the court affirmed. The court decided the question under Texas law, and its decision seems clearly correct, as it seems pretty plain that the parties intended to allow lawsuits regarding the loan agreement. But the court also noted that the agreement was governed by Belgian law, and that Presley had given no reason to think that the Belgian courts had gotten the Belgian law of arbitrability wrong. 1
The parties’ choice-of-law clauses could have more clearly indicated that Belgian law governed both the main contract and the arbitration agreement, but it seem pretty clear that that was the parties’ intent. ↩
NML Capital, one of Argentina’s creditors, has been trying to collect on a US judgment for years. As we saw in NML Capital v. Banco Central (2d Cir. 2011), the case of the day from July 8, 2011, the Second Circuit held that the assets of the Argentine Central Bank on deposit with the Federal Reserve Bank of New York were immune from attachment under 28 U.S.C. § 1611(b). Gilles Cuniberti has reported on NML’s efforts to get at Argentina’s assets in Belgium and France, where NML attempted to attach bank accounts held by Argentine embassies and missions to UNESCO and other international bodies. In both cases, Argentina asserted diplomatic immunity. The issue in both cases turned on the Vienna Convention on Diplomatic Relations. (We discussed the Convention a few days ago, noting that the US precedents support the view that bank accounts used by embassies for diplomatic purposes are immune from execution under Article 25 of the Convention, which requires the host country to “accord full facilities for the performance of the functions of the mission”).
Article 22(3) of the Convention provides:
The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
In the French case, the Cour de cassation held that under customary international law, embassy bank accounts are entitled to immunity, and a waiver of diplomatic immunity must specifically state that it applies to diplomatic assets if it is to be effective. Thus the attachments in France were void. Interestingly, the decision does not expressly justify the court’s conclusions about the content of customary international law on these points, but Cuniberti writes that the Cour de cassation‘s opinions are often cryptic in this way.
I don’t have access to the Belgian decision, but according to Cuniberti, the court held that the attachment was valid, on the grounds that the Vienna Convention’s only limitation on waivers of diplomatic immunity was the requirement that the waiver be express, and there was no question but that Argentina had made an express waiver. The Belgian court, in other words, refused to find a requirement that the waiver refer expressly to the immunity of diplomatic assets in order to be effective, as the Cour de cassation had done.