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Seeing as it is exam time across many universities, this is one of a series of posts where some core elements of international litigation strategy is considered. One or two students of the law might find these ponderings useful e.g. in essay submissions.
In African Export-Import Bank v National Government of the Republic of South Sudan & Anor [2025] EWHC 1079 (Comm), claimant would be entitled to apply for default judgment. Yet it seeks a reasoned judgment from the Court on the merits, so as to aid its efforts to enforce any judgment abroad. Accordingly, Afreximbank applied for permission to apply for summary judgment, and to be granted such judgment – both of which were granted by Lionel Persey KC.
The case clearly echoes DVB Bank v Vega Marine, to which the judge here also refers, and Trafigura v Republic of South Sudan[2020] EWHC 2044 (Comm).
[19] Defendants have been given full notice of the proceedings (with detail provided of course by claimant) and the proceedings take place in the forum agreed in the relevant facility agreement for the resolution of the parties’ disputes. Defendants have utterly declined to participate.
[20] The principles governing the applications were summarised by Bryan J in European Union v Syria [2018] EWHC 1712 (Comm) at [61]-[62] and can be summarised as follows:
(1) The purpose of the rule requiring permission to apply for summary judgment against a defendant prior to the filing of an acknowledgement of service is (a) to ensure that no application for summary judgment is made before a defendant has had an opportunity to participate in the proceedings, and (b) to protect a defendant who wishes to challenge the Court’s jurisdiction from having to engage on the merits pending such application.
(2) Permission should generally be granted only where the Court is satisfied that the claim has been validly served and that the Court has jurisdiction to hear it.
If those conditions as to valid service and jurisdiction are met, there is generally no reason why the Court should prevent a claimant with a legitimate claim from seeking summary judgment – all the more so in the light of the relevance to smooth enforcement.
[30] ff a claim for sovereign immunity (appropriately flagged by counsel for claimant as a possible defence, should defendants have appeared) is dismissed: but the ‘prior written agreement’ and the ‘commercial activities’ exception to immunity readily apply.
A good reminder of the principles.
Geert.
https://x.com/GAVClaw/status/1921109738827256108