This is an application for an interim injunction made by the claimant, PDVSA Servicios SA ( "PDVSA"), against Clyde & Co Solicitors, acting in their capacity as trustees of monies held in escrow, from paying out those monies in accordance with an arbitral award in a long running arbitration between PDFVSA and a company called Petrosaudi Oil Services (Venezuela) limited ("POS"). As a result of the award, Clyde & Co is obliged to pay the bulk of the monies to POS. Clyde & Co, as well as being escrow agent, also act for POS in the arbitration.
The first issue is whether the application is properly made without notice. The reason advanced by the applicant is that if notice were given there is a risk that Clyde & Co will be obliged to inform POS (who would immediately request payment of the funds) and then transfer to POS the escrow funds.
On one view there is currently no risk of Clyde & Co paying the monies out because there already exists an order of the Malaysian court prohibiting them from doing so. Indeed, in his affidavit in support of the application, Mr Kakkad says: "Clyde & Co are, on the face of it, prevented from paying out the monies anyway by reason of the Malaysian Court Order."
The applicant's solicitors, however, referred Clyde & Co to that order and asked for confirmation that in light of it they would not pay out the sums, but Clyde & Co's response was to question the applicant's solicitors' standing to make that request. No confirmation has been given. It is not known whether Clyde & Co are subject to the jurisdiction of the Malaysian court and thus bound in any way by its order.
A further reason to question whether a without notice application is warranted is that there was an information barrier put in place within Clyde & Co in the course of the arbitration. A procedural order of the panel noted that the parties had reached an agreement which provided that "The individuals within Clyde manging the escrow account will be separated from those representing [POS] through an information barrier."
However, the applicant does not know the precise terms of that information barrier and, most importantly, does not know whether it continues to apply after the delivery of the final award by the pane