REPUBLIC OF KENYA v. NEDERMAR TECHNOLOGY BV LTD (NETHERLANDS)
10 August 2006 - District Court of The Hague
Parties:
Claimant Republic of Kenya (Kenya)
Defendant Nedermar Technology BV Ltd (Netherlands)
Judge(s):
R.J. Paris, Judge
Place of Arbitration:
The Hague (Netherlands)
Subject matters:
Immunity of jurisdiction
Immunity of enforcement
Court ordered interim measures
Waiver of immunity
Digest by: Jackie J. Van Haersolte-van Hof,
Freshfields Bruckhaus Deringer Amsterdam, ITA
Board of Reporters
In this case, the president of the District Court in The Hague
considered whether to lift several attachments which were issued
in ex parte proceedings. The attachments were made
on the embassy buildings of Kenya as well as on the official
bank account of the embassy. The attachments were made in order
to obtain security for a claim alleged on the basis of an agreement
for the provision of military technical equipment. This agreement
contained a far-reaching waiver of immunity, extending not
only to the immunity of jurisdiction, but also the immunity
of enforcement.
The court rejected the request to lift the attachment on the buildings recognizing that these goods have a public designation. The Court held that the management of the Republic’s public tasks would not be frustrated by the attachment. However, in relation to the bank account and in accordance with prior case law of the Dutch Supreme Court, the Court held that the public interest requires the bank account of an embassy, as far as it is used for non-commercial purposes, to be used without impediments and should not be used for security for creditors of the concerned country.
As for the counterclaim, recognizing the parties had agreed on UNCITRAL arbitration, designating London as the place of arbitration, and the fact that arbitration had been initiated by the claimant, the Court held that it lacks jurisdiction to issue interim measures. The Court considered that Nedermar failed to show the intention to designate the Dutch courts as having jurisdiction (in this case over the request to order an interim measure advance payment of the full amount in dispute). The Court emphasized that otherwise, by making attachments in countries outside England, the claimant would be able to create jurisdiction.
