Loan Agreement Judgment

In a ruling today in the case of Sheikh Mohamed Bin Issa Al Jaber and MBI – Partners UK Limited against Sheikh Walid Ibrahim Al Ibrahim and Sheikh Majid Bin Ibrahim Al Ibrahim [2018] EWCA Civ 1690, the Court of Appeal (Arden, Simon and Newey LJJ) rejected the allegation that an oral loan agreement had been reached in a commercial context. should have an implied interest rate clause simply because the lender expected an unspecified benefit from the loan. First, the Court found that the parties to a loan agreement are free to agree that the repayment amount is less than the loan amount, whether on the basis of participation in the loss of a lender or in some other way. The Court therefore held that the parties are also free to expressly provide for the lender`s payment of negative interest to the borrower. Such a contract should be characterized as an atypical loan contract or an innomin contract. In that case, the court said that the three members of the Makdessi test were intertwined. With respect to the contract, which is considered a comprehensive agreement for a certain return over the duration of the contract, the Tribunal commented that „… Not only do mathematics inexorably conclude that the sum is in no way disproportionate, but it also suggests that the commitment is a primary sum and not a sum owed (including on the merits).┬áThe question was whether the sanction clause in the credit contracts was a precondition for PDVSA`s liability (so that if triggered, it would suspend the payment obligations of PDVSA – the pdVSA case) or if it was a negative agreement for the benefit of the bank, but did not affect the obligation to pay PDVSA (The Bank`s Affair). PDVSA relied on the decisions in Mothercochet Mining Limited/Aegis Managing Agency Limited [2018] EWHC 2643 (Comm) and Lamesa/Cynergy to argue that, in trade agreements, it is perfectly normal and reasonable to suspend payment obligations if the payment is contrary to unilateral U.S. sanctions.