Autoridad Del Canal De Panamá v Sacyr, S.A. & Ors [2017] EWHC 2228 (Comm) (05 September 2017)

Autoridad Del Canal De Panamá v Sacyr, S.A. & Ors [2017] EWHC 2228 (Comm) (05 September 2017)

The English law APGs are not demand bonds but guarantees imposing primary obligations to pay sums due under the contract, not dependent on establishing the principal's liability under Panamanian law; the claimant is entitled to summary judgment as the repayment obligations were triggered and the defences raised do not provide a real prospect of success; the stay applications fail as the APGs are subject to the exclusive jurisdiction of the English courts and not to arbitration.

Citation
[2017] EWHC 2228 (Comm)
Parties
Claimant: Autoridad del Canal de Panamá; First Defendant: Sacyr, S. A.; Second Defendant: Salini-Impregilo S. P. A.; Third Defendant: Jan De Nul, N. V.; Fourth Defendant: Constructora Urbana S. A.; Fifth Defendant: Sofidra S. A.
Jurisdiction
England and Wales
Judgment Date
05 September 2017
Procedural Posture
Commercial Claim (summary Judgment and Stay Applications) / High Court (commercial Court) Judgment on Summary Judgment and Stay Applications
Outcome
Summary judgment granted for the claimant; applications for stay dismissed.
Legal Topics
Advance Payment Guarantees, Summary Judgment, Stay of Proceedings, Jurisdiction Clauses, Interpretation of Guarantees, Arbitration Act 1996 S.9
Commercial Law Arbitration Construction Law Advance Payment Guarantees Summary Judgment Stay of Proceedings Jurisdiction Clauses Interpretation of Guarantees +1 more

Case Brief

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Parties

Autoridad del Canal de Panamá

Claimant

Sacyr, S. A.

First Defendant

Salini-Impregilo S. P. A.

Second Defendant

Jan De Nul, N. V.

Third Defendant

Constructora Urbana S. A.

Fourth Defendant

Sofidra S. A.

Fifth Defendant

Procedural Posture

Commercial Claim (summary Judgment and Stay Applications) / High Court (commercial Court) Judgment on Summary Judgment and Stay Applications

Legal Issues

  1. 1 Whether the English law Advance Payment Guarantees (APGs) are demand bonds or 'see to it' guarantees
  2. 2 Whether the proceedings should be stayed under s.9 Arbitration Act 1996 or case management grounds
  3. 3 Whether the claimant is entitled to summary judgment under the APGs

Ratio Decidendi

The English law APGs are not demand bonds but guarantees imposing primary obligations to pay sums due under the contract, not dependent on establishing the principal's liability under Panamanian law; the claimant is entitled to summary judgment as the repayment obligations were triggered and the defences raised do not provide a real prospect of success; the stay applications fail as the APGs are subject to the exclusive jurisdiction of the English courts and not to arbitration.

Court Disposition

Summary judgment granted for the claimant; applications for stay dismissed.

Orders

  • Defendants to pay US$288,275,465.20 plus interest under the APGs.
  • Applications for stay under s.9 Arbitration Act 1996 and case management powers dismissed.