CL-2022-000456 - [2025] EWHC 1938 (Comm)

In the light of the Assignment, a further question also arises in relation to Article 11(1) of Regulation 833. It provides that claims in connection with any contract which has been affected by Regulation 833 shall not be satisfied, if they are made by any persons within categories (a), (b) or (c), as set out.

The claims under the Bonds were originally made by EuroChem NW2, which is a Russian entity. I understand the Claimants’ case to be that the claims are now made by EuroChem AG. They rely on clause 2(b) of the Assignment, which provides that they “have the right to seek enforcement with respect to the Claimed Amounts and pursue all claims and demands”.

However, the correct analysis is that set out in ‘Guide to ICC Uniform Rules for Demand Guarantees URDG 758’ at paragraphs 33.20-21, which I have set out in Section XXV above. As a mere assignment of proceeds, the Assignment did not make EuroChem AG a party to the Bonds or entitled to make a demand in its own name. Nor did it in fact purport to do so. It has at all times relied on the demands made by EuroChem NW2. At most, the assignment may have conferred beneficial rights, so that EuroChem AG became entitled (if necessary) to require EuroChem NW2 to allow EuroChem AG to use its name for the purpose of pursuing claims under the Bonds, with a view to recovering the proceeds.

As that work notes at paragraph 33.21, EuroChem AG acquired its rights under the Assignment “…subject to any claims and defences that would have been available against the assignor”. In principle, this includes any defence arising from Regulation 833.