REPUBLIC OF KENYA v. NEDERMAR TECHNOLOGY BV LTD ...

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under the project. Nedermar has never received any complaints concerning the supplied work and goods. The invoices have never been challenged by Kenya, and Kenya has never invoked any default under the agreement by Nedermar. Only on 8 June 2006 was Nedermar notified on behalf of Kenya that, on account of suspicion of corruption within the government of Kenya as well as lack of clarity regarding the identity of Nedermar, no more payments were to be made. The agreement is a turn-key agreement on the basis of which Nedermar has entered into various subcontracting agreements and is therefore obliged to make considerable payments. Nedermar entered into these commitments with on the assumption that Kenya would comply with its obligations. Nedermar therefore has an urgent interest in its claim, all the more so since Project Nexus has in the mean time been transferred and is being used. The Court in Interlocutory Proceedings has jurisdiction over the counterclaim on the ground of its connection to the claim of Kenya. Both claims after all flow from the agreement and from the circumstance that Kenya has postponed its payment obligations towards Nedermar. Also, the selection of parties of arbitration under the UNCITRAL rules, on the ground of the provisions in article 26 section 3 of said rules, does not preclude an application to the Court in Interlocutory Proceedings. A party is at liberty, in spite of an arbitration clause, to apply to the Court in Interlocutory Proceedings for a preliminary measure in interlocutory proceedings. The reference in the agreement to the English court does not mean that the Dutch Court in Interlocutory Proceedings does not have jurisdiction to adjudicate on the dispute. It follows from the UNCITRAL provision that UNCITRAL arbitration may be pursued on the basis of the agreement and furthermore that applying to the Dutch court is possible insofar as this concerns a preliminary provision. This is all the more urgent since UNCITRAL arbitration cannot provide relief in the short term. Nedermar has an urgent interest in its claim amounting as of 1 March 2006 to more than 30 million Euros. Kenya, which has never challenged the amount and its indebtedness for the claimed amounts, has failed to make any instalment payments since 14 June 2004. Nine subsequent instalments have not been paid. Due to the default in payment, all outstanding amounts have become due and payable with immediate effect. Nedermar is hampered in its operational management by not being able to have the amounts due and payable under the agreement at its disposal. Furthermore, the project has in the mean time been transferred to Kenya and the project is used to Kenya's satisfaction. Kenya has put up a reasoned defence that will be discussed hereinbelow insofar as required. 3. The assessment of the dispute In the main action 3.1 The Court in Interlocutory Proceedings of the district court that granted the leave to attach has jurisdiction regarding the claim to lift said attachment. On 8 March 2006, the Judge in Interlocutory Proceedings of this Court gave Nedermar permission to have said attachments made. Thus the Judge in Interlocutory Proceedings of this court has
jurisdiction to make a ruling regarding the claim in suit of Kenya. 3.2 The argument of Kenya that it does not know the identity of Nedermar is not recognized, because it is implausible. It may be the case that Nedermar did not use its full name under its articles of association in the agreement, but that its identity therefore is not known to Kenya is not plausible at all. It has after all been established that Nedermar has in the mean time transferred the project in its (almost) full entirety and that Kenya is making use of the communication centre supplied by Nedermar. Kenya has never objected to Nedermar as the contracting party. In any case, the attachments were made by Nedermar Technology <strong>BV</strong> Ltd, which is incorporated in a lawful manner under the law of Saint Vincent and the Grenadines. All this is apparent from the fax from Nedermar which – as agreed at the session – it sent the day after the hearing to the Judge in Interlocutory Proceedings. 3.3 So-called waivers are included – inter alia in article 75.1 - in the agreement. The question should now be assessed whether Nedermar can successfully invoke – the validity of – the aforementioned waiver(s). It has been established that the agreement, including the waiver, was signed by two Departments on instruction of a third Department, and has also been checked by the Permanent Secretary of the Cabinet of the President of Kenya. It is thus sufficiently shown that the waivers have come into being in a lawful manner. The argument of Kenya that it has not lawfully waived its immunity in this way with respect to the goods in suit, is not accepted. In the aforementioned waiver, a general waiver was after all made, that is to say with regard to all “property”, of the immunity from execution. It may be taken that as a consequence of the waiver(s) no goods are protected from attachment and/or enforcement. It is not apparent why the waiver would not pertain to all goods. Also, no mandatory provision has been shown to exist in international law stipulating that some goods are always be immune, even if immunity from enforcement has been waived. The waiving of immunity from enforcement would be a dead letter in the contract if that were the case. 3.4 A creditor can recover the value of his claim from all goods of the debtor, with the exception, however, of – inter alia – goods that are intended for public service. Furthermore, for reasons of public interest, the immediate lifting of a garnishment or other attachment may be sought. 3.5 It should therefore be assessed now whether the public interest in the matter in suit requires that the balances on Kenya's bank accounts that have been garnished, as well as the immoveable property which has been attached before judgment, must be capable of being used without any impediment in accordance with their intended use. Said question should be answered partly in the affirmative, partly in the negative. The reason therefor is that, in accordance with case law of the Supreme Court, the public interest requires that the bank accounts of an embassy – insofar as they are used for non-
Page 1 and 2: REPUBLIC OF KENYA v. NEDERMAR TECHN
Page 3 and 4: de vennootschap opgericht naar het
Page 5 and 6: 2. De vorderingen, de gronden daarv
Page 7 and 8: vordering in conventie van Kenia. B
Page 9 and 10: die vertegenwoordiging werkzaamhede
Page 11 and 12: 1.1 Nedermar is lawfully incorporat
Page 13: The scope of the article concerned
Page 17 and 18: 3.10 As regards the lack of clarity

REPUBLIC OF KENYA v. NEDERMAR TECHNOLOGY BV LTD ...

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