229
ENFORCEABILITY OF JUDGMENTS
The Issuer was incorporated in Jersey, the Guarantors were incorporated in Jersey, the British Virgin Islands, Kuwait and
Egypt and certain members of the Board and executive officers reside in countries outside the United States.
Substantially all of the assets of the Issuer and the Guarantors are located outside the United States. Although the Group
will appoint an agent for service of process in the United States and will submit to the jurisdiction of New York courts,
in each case, in connection with any action under US securities laws, it may not be possible for investors to effect service
of process on the Group within the United States in any action, including actions predicated upon the civil liability
provisions of US federal securities laws.
If a judgment is obtained in a US court against the Issuer or a Guarantor, investors will need to enforce such judgment in
jurisdictions where the relevant company has assets. You should consult with your own advisors in any pertinent
jurisdictions as needed to enforce a judgment in those countries or elsewhere outside the United States.
Jersey
The United States and Jersey currently do not have a treaty providing for the reciprocal recognition and enforcement of
judgments (as opposed to arbitration awards) in civil and commercial matters. Consequently, a final judgment for
payment rendered by any federal or state court in the United States based on civil liability, whether or not predicated
solely upon US federal securities laws, would not automatically be recognised or enforceable in Jersey. In order to
enforce any such US judgment in Jersey, proceedings must first be initiated before a court of competent jurisdiction in
Jersey. In such an action, a Jersey court would not generally reinvestigate the merits of the original matter decided by the
US court (subject to what is stated below) and it would usually be possible to obtain summary judgment on such a claim
(assuming that there is no good defence to it). Recognition and enforcement of a US judgment by a Jersey court in such
an action are each conditional upon (among other things) the following:
•
the US court having had jurisdiction over the original proceedings according to Jersey conflicts of laws principles;
•
the US judgment being final and conclusive on the merits in the sense of being final and unalterable in the court
which pronounced it and being against a specified person for a definite sum of money (although there are
circumstances where non-money judgments can also be enforced);
•
the US judgment not contravening Jersey public policy;
•
the US judgment not being for a sum payable in respect of taxes, or other charges of a like nature, or in respect of
a penalty or fine;
•
the US judgment not being for exemplary, multiple or punitive damages, for example having been arrived at by
doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damages sustained,
and not being otherwise in breach of Section 5 of the United Kingdom Protection of Trading Interests Act 1980
(as extended to Jersey by the Protection of Trading Interests Act 1980 (Jersey) Order 1983);
•
the US judgment not having been obtained by fraud or in breach of Jersey principles of natural justice;
•
there not having been a prior inconsistent decision of a Jersey court in respect of the same matter; and
•
the enforcement proceedings in the Jersey court are duly served.
Subject to the foregoing, investors may be able to enforce in Jersey judgments in civil and commercial matters that have
been obtained from US federal or state courts. However, we cannot assure you that those judgments will be recognised
or enforceable in Jersey. In addition, it is questionable whether a Jersey court would accept jurisdiction and impose civil
liability if the original action was commenced in Jersey, instead of the United States, and predicated solely upon US
federal securities laws.
British Virgin Islands
There is no statutory enforcement in the British Virgin Islands of judgments obtained in the US courts. However, in the
case of a final and conclusive judgment obtained in a US court (for either a liquidated sum (not in respect of penalties or
taxes or a fine or similar fiscal or revenue obligations), or in certain limited circumstances, for in personam non-money
relief, such judgment may be recognised and enforced in the BVI courts without any re-examination of the merits at
