Autoridad Del Canal De Panamá v Sacyr, S.A. & Ors

Autoridad Del Canal De Panamá v Sacyr, S.A. & Ors

The APGs are not first demand instruments; liability is not triggered merely by demand but is dependent on the liability of the principal debtor under the Main Contract. The 'matter' in these proceedings is the claim under the English law APGs, not the GUPC Repayment Issue under Panamanian law guarantees. Section 9 Arbitration Act 1996 does not mandate a stay because the proceedings are not brought in respect of a matter agreed to be referred to arbitration. No compelling case for a discretionary (case management) stay is made out at this stage, but the possibility remains open for the future.

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 (advance Payment Guarantees) / Judgment on Summary Judgment and Stay Applications
Outcome
Summary judgment refused; stay applications refused
Legal Topics
Advance Payment Guarantees, Exclusive Jurisdiction Clauses, Arbitration Stay, Summary Judgment, Interpretation of Guarantees
Commercial Law Arbitration Contract Law Advance Payment Guarantees Exclusive Jurisdiction Clauses Arbitration Stay Summary Judgment Interpretation of Guarantees

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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 (advance Payment Guarantees) / Judgment on Summary Judgment and Stay Applications

Legal Issues

  1. 1 Whether the English law Advance Payment Guarantees (APGs) are first demand instruments or guarantees with liability coextensive with the principal debtor
  2. 2 Whether proceedings under the APGs should be stayed under s.9 Arbitration Act 1996 in favour of arbitration under Panamanian law guarantees
  3. 3 Whether a discretionary (case management) stay should be granted pending arbitration

Ratio Decidendi

The APGs are not first demand instruments; liability is not triggered merely by demand but is dependent on the liability of the principal debtor under the Main Contract. The 'matter' in these proceedings is the claim under the English law APGs, not the GUPC Repayment Issue under Panamanian law guarantees. Section 9 Arbitration Act 1996 does not mandate a stay because the proceedings are not brought in respect of a matter agreed to be referred to arbitration. No compelling case for a discretionary (case management) stay is made out at this stage, but the possibility remains open for the future.

Court Disposition

Summary judgment refused; stay applications refused

Orders

  • ACP's application for summary judgment on the basis that the APGs are first demand instruments is refused.
  • Defendants' application for a stay under s.9 Arbitration Act 1996 is refused.