AES-3C Maritza East 1 Eood v Crédit Agricole Corporate and Investment Bank & Anor [2011] EWHC 123 (TCC) (31 January 2011)

AES-3C Maritza East 1 Eood v Crédit Agricole Corporate and Investment Bank & Anor [2011] EWHC 123 (TCC) (31 January 2011)

The First Demand was invalid as it claimed sums not yet due and was not supported by notices or claims as required by Clause 4(f) of the Bond. The Second Demand was valid and compliant with the Bond's requirements. There was no evidence of fraud in the First Demand. Judgment for the sum claimed in the Second Demand is granted, but enforcement is stayed while French court injunctions prevent payment.

Citation
[2011] EWHC 123 (TCC)
Parties
Claimant: AES-3C Maritza East 1 EOOD; First Defendant: Crédit Agricole Corporate and Investment Bank (previously known as Calyon Corporate and Investment Bank); Second Defendant: Alstom Power Systems GmbH
Jurisdiction
England and Wales
Judgment Date
31 January 2011
Procedural Posture
Commercial Summary Judgment Application / Summary Judgment Determination
Outcome
Summary judgment granted for the claimant on the Second Demand; enforcement stayed pending lifting of French injunctions; summary judgment refused on the First Demand.
Legal Topics
On Demand Bonds, Summary Judgment, Performance Guarantees, Fraud Exception in Bonds, Conflict of Laws, Enforcement of Foreign Injunctions
Banking and Finance Construction Law Commercial Law On Demand Bonds Summary Judgment Performance Guarantees Fraud Exception in Bonds Conflict of Laws +1 more

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Parties

AES-3C Maritza East 1 EOOD

Claimant

Crédit Agricole Corporate and Investment Bank (previously known as Calyon Corporate and Investment Bank)

First Defendant

Alstom Power Systems GmbH

Second Defendant

Procedural Posture

Commercial Summary Judgment Application / Summary Judgment Determination

Legal Issues

  1. 1 Whether the First Demand under the Performance Bond was valid and compliant with the Bond's terms
  2. 2 Whether the Second Demand was valid and compliant with the Bond's terms
  3. 3 Whether a fraudulent demand was made

Ratio Decidendi

The First Demand was invalid as it claimed sums not yet due and was not supported by notices or claims as required by Clause 4(f) of the Bond. The Second Demand was valid and compliant with the Bond's requirements. There was no evidence of fraud in the First Demand. Judgment for the sum claimed in the Second Demand is granted, but enforcement is stayed while French court injunctions prevent payment.

Court Disposition

Summary judgment granted for the claimant on the Second Demand; enforcement stayed pending lifting of French injunctions; summary judgment refused on the First Demand.

Orders

  • Summary judgment in favour of AES for €96,604,166.83 against Calyon, not to be enforced while French court injunctions prevent payment.
  • Application for summary judgment on the First Demand refused.