Assuranceforeningen Gard Gjensidig v The International Oil Pollution Compensation Fund

A statutory instrument implementing treaty obligations must first be construed according to its own language. Where its terms are clear, the court must give them effect even if that produces inconsistency with the treaty. Immunity from suit and legal process is qualified where the statutory exceptions apply. A sufficiently arguable arrangement under which one party funds another’s liabilities pending repayment may constitute a loan or transaction for the provision of finance. A claim is not brought in accordance with a convention merely because it concerns liabilities arising under that convention. Freezing relief requires a good arguable case and a real risk of dissipation.

The claimant, an insurer, sought a freezing injunction against the defendant international organisation in support of English and Venezuelan claims concerning liability for pollution damage. The defendant relied on immunity under the Headquarters Agreement and the International Oil Pollution Compensation Fund (Immunities and Privileges) Order 1979. The English claim concerned an alleged contractual funding and balancing arrangement between the insurer and the Fund. The Venezuelan claim sought declarations and reimbursement connected with a Venezuelan judgment concerning the Fund Convention. The central issues were whether immunity applied, whether the claimant had a good arguable case, and whether there was a real risk that the Fund’s assets would be dissipated during its proposed winding up.

1. Immunity from freezing relief. The court construed s.6 of the International Oil Pollution Compensation Fund (Immunities and Privileges) Order 1979. The words “suit and legal process” did not confer complete immunity. The immunity was qualified by the exceptions in s.6(1)(a)–(h) and s.6(2). A freezing order was a form of legal process.
2. The Order was clear and unambiguous. It therefore had to be given effect according to its terms, without resort to the Headquarters Agreement to cure any alleged inconsistency. The claimant had a good arguable case that its English claim fell within s.6(1)(c), as a loan or transaction for the provision of finance. The Fund accordingly had no immunity in respect of the English proceedings.
3. The Venezuelan claim did not fall within s.6(1)(b). It was not a claim conferred by or recognised in the Fund Convention. Exclusive jurisdiction under the Convention and reliance on facts and findings under Art 7(6) did not alter the substantive nature of the claim. The Fund retained immunity in respect of freezing relief supporting the Venezuelan proceedings.
4. Freezing relief. The claimant had a good arguable case concerning the alleged English contractual arrangement. The evidence of a proposed resolution to return Fund assets to contributors established a real risk of dissipation. Freezing relief was therefore appropriate in relation to the English proceedings, but not the Venezuelan proceedings.