CL-2022-000249 - [2025] EWHC 1156 (Comm)

I do not need to consider in any detail the question of whether payment out of the sums held in US dollars by ING would necessarily involve a breach of US sanctions or whether there are ways in which payment could be made which would avoid US sanctions being engaged. This is because it is common ground that ING bank will not release the funds without an appropriate OFAC licence and in any event the funds are presently subject to the control of the Dutch court. It will be for the Dutch court to determine in what circumstances it is prepared to order the release of the funds. In reaching that decision, it seems to me inevitable that the Dutch court will consider both the effect of US sanctions and the concerns of ING bank that they should not be required to release the funds without the protection of an OFAC licence.

Accordingly, any sums paid in respect of the interim payments will only be made in circumstances where the transfer of those funds will not contravene US sanctions.

In the course of argument, the Defendant did seek to suggest that any payment of the interim payments under the Interim Payment Order could only be made through the New York Clearing House System via BNP Paribas as a US correspondent bank in accordance with the terms of the Guarantees. I do not accept this suggestion. Payment by the Defendant under Interim Payment Order is to be made in respect of sums, which the court considers are likely to be adjudged due to the Claimants from the Defendant. The payment obligation under the Interim Payment Order is accordingly in respect of an anticipated judgment debt, not a liability under the Guarantees.