Immunity from Freezing Orders

08/05/14

Assuranceforeningen Gard Gjensidig v. The International Oil Pollution Fund

[2014] EWHC 1394 (Comm)

The 1971 Fund is an international organisation headquartered in London under the terms of a Headquarters Agreement with the UK Government.  The HQ Agreement entitles the Fund to immunity from “any form of administrative or provisional judicial restraint, such as requisition, confiscation, expropriation or attachment”.  These words were not repeated in the Order in Council made under the International Organisations Act 1968 which instead granted immunity from jurisdiction and suit except in respect of actions brought against the Fund in accordance with the provisions of the 1971 International Fund Convention and in respect of any loan or other transaction for the provision of finance.  The 1971 Fund is about to be wound up and its remaining assets disbursed to the member states.  Gard sought a freezing order in support of Venezuelan proceedings and in respect of proceedings commenced in the Commercial Court.  The 1971 Fund claimed immunity.  Hamblen J held that no injunction should be granted in respect of the Venezuelan proceedings because they were not brought in accordance with the Convention.  However, he held that the Commercial Court proceedings were arguably brought in respect of a loan or other transaction for the provision of finance, and that the 1971 fund was not entitled to immunity on the terms of the Order in Council.  He held that the terms of the Order were not ambiguous and that effect must be given to them irrespective of whether this meant that the UK was in breach of its treaty obligations..  He did not decide whether the HQ Agreement intended the Fund should have immunity from freezing order, but indicated that the Order did not appear to confer the general immunity stated in the HQ Agreement and that there was force in the 1971 Fund’s argument that a freezing order was a provisional judicial restraint.

The judgment is here.