FG Hemisphere Associates [2010] JRC 033 (17 February 2010)

FG Hemisphere Associates [2010] JRC 033 (17 February 2010)

The maintenance of the injunctions would constitute an unwarranted and inequitable interference in the commercial activities of innocent third parties, as the effect would be to prevent completion of the share sale, create no attachable debt in Jersey, and potentially expose the third parties to double payment or significant loss. The Royal Court's exercise of discretion in discharging the injunctions was reasonable, and there was no sufficient prospect of success on appeal to justify a stay.

Citation
[2010] JRC 033
Parties
Appellant: FG Hemisphere Associates LLC; First Respondent: The Democratic Republic of the Congo; Second Respondent: L'Office des Mines d'Or de Kilo-Moto (Okimo); Third Respondent: Kibali (Jersey) Ltd; Fourth Respondent: Randgold Resources Ltd
Jurisdiction
Jersey
Judgment Date
17 February 2010
Procedural Posture
Appeal / Application for Stay Pending Appeal
Outcome
Application for stay pending appeal refused; injunctions not re-imposed.
Legal Topics
Garnishee Proceedings, Interim Injunctions, Enforcement of Arbitration Awards, State Immunity, Discretion in Granting Injunctions, Third Party Debt Orders
Civil Procedure Arbitration Injunctions International Law Garnishee Proceedings Interim Injunctions Enforcement of Arbitration Awards State Immunity +2 more

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Parties

FG Hemisphere Associates LLC

Appellant

The Democratic Republic of the Congo

First Respondent

L'Office des Mines d'Or de Kilo-Moto (Okimo)

Second Respondent

Kibali (Jersey) Ltd

Third Respondent

Randgold Resources Ltd

Fourth Respondent

Procedural Posture

Appeal / Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether interim injunctions (arrêt entre mains) should be re-imposed pending appeal to restrain payment under a share purchase agreement to satisfy an arbitration award against a sovereign state.
  2. 2 Whether the Royal Court correctly exercised its discretion in discharging the injunctions and releasing third parties from proceedings.
  3. 3 Whether a contingent debt under a foreign law contract can be subject to garnishee proceedings in Jersey.

Ratio Decidendi

The maintenance of the injunctions would constitute an unwarranted and inequitable interference in the commercial activities of innocent third parties, as the effect would be to prevent completion of the share sale, create no attachable debt in Jersey, and potentially expose the third parties to double payment or significant loss. The Royal Court's exercise of discretion in discharging the injunctions was reasonable, and there was no sufficient prospect of success on appeal to justify a stay.

Court Disposition

Application for stay pending appeal refused; injunctions not re-imposed.

Orders

  • Refusal to re-impose interim injunctions (arrêt entre mains) pending appeal.
  • No stay of the Royal Court's order discharging the Third and Fourth Respondents from proceedings.