Servaas Incorporated v Bank & Ors [2011] EWCA Civ 1256 (03 November 2011)

Servaas Incorporated v Bank & Ors [2011] EWCA Civ 1256 (03 November 2011)

The property in question (Iraq's admitted claims under the Rafidain Bank scheme) was not, at the relevant date, in use or intended for use for commercial purposes. The evidence, including the certificate from the Iraqi chargé d'affaires, established that the funds were to be paid to the Development Fund for Iraq for sovereign purposes. The origin of the debt as commercial was not sufficient to bring the property within the exception to immunity. Therefore, the property was immune from execution under section 13(2)(b) of the State Immunity Act 1978.

Citation
[2011] EWCA Civ 1256
Parties
Appellant/cross Respondent: Servaas Incorporated; Respondent: Rafidain Bank; Respondent: Michael David Gercke; Respondent: Russell Downs; Respondent: David Christian Chubb; Interested Party/respondent/cross Appellant: The Republic of Iraq
Jurisdiction
England and Wales
Judgment Date
03 November 2011
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From Chancery Division
Outcome
Appeal dismissed
Legal Topics
State Immunity, Enforcement of Foreign Judgments, Third Party Debt Orders, Sovereign Debt Restructuring
Public International Law Civil Procedure Insolvency Law State Immunity Enforcement of Foreign Judgments Third Party Debt Orders Sovereign Debt Restructuring

Case Brief

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Parties

Servaas Incorporated

Appellant/cross Respondent

Rafidain Bank

Respondent

Michael David Gercke

Respondent

Russell Downs

Respondent

David Christian Chubb

Respondent

The Republic of Iraq

Interested Party/respondent/cross Appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From Chancery Division

Legal Issues

  1. 1 Whether Iraq's admitted claims under the Rafidain Bank scheme are immune from execution under section 13 of the State Immunity Act 1978
  2. 2 Whether the property in question was 'in use or intended for use for commercial purposes' under the SIA
  3. 3 Whether the certificate of the Iraqi chargé d'affaires as to non-commercial use is rebutted

Ratio Decidendi

The property in question (Iraq's admitted claims under the Rafidain Bank scheme) was not, at the relevant date, in use or intended for use for commercial purposes. The evidence, including the certificate from the Iraqi chargé d'affaires, established that the funds were to be paid to the Development Fund for Iraq for sovereign purposes. The origin of the debt as commercial was not sufficient to bring the property within the exception to immunity. Therefore, the property was immune from execution under section 13(2)(b) of the State Immunity Act 1978.

Court Disposition

Appeal dismissed

Orders

  • SerVaas's appeal is dismissed; the property is immune from execution under section 13(2)(b) of the State Immunity Act 1978.