Summary

IN RE EX PARTE APPLICATION OF JOINT STOCK COMPANY BELARUSIAN POTASH COMPANY for an order pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings.

MEMORANDUM OF LAW IN SUPPORT OF JOINT STOCK COMPANY BELARUSIAN POTASH COMPANY'S EX PARTE APPLICATION PURSUANT TO 28 U.S.C. § 1782 FOR AN ORDER TO TAKE DISCOVERY FROM J.P. MORGAN CHASE & CO., CITIBANK, N.A., THE BANK OF NEW YORK MELLON, DEUTSCHE BANK TRUST COMPANY AMERICAS, AND BANK OF AMERICA, N.A., FOR USE IN FOREIGN PROCEEDINGS

PRELIMINARY STATEMENT

This is Joint Stock Company Belarusian Potash Company's ("BPC") first ex parte application for discovery under 28 U.S.C. § 1782 (the "Application") in this Court. BPC submits this Section 1782 application seeking discovery from J.P. Morgan Chase & Co. ("J.P. Morgan"), Citibank, N.A. ("Citibank"), The Bank of New York Mellon ("BNY Mellon"), Deutsche Bank Trust Company Americas ("Deutsche Bank"), and Bank of America, N.A. ("Bank of America"), collectively (the "Correspondent Banks,") all of which are headquartered and/or conduct correspondent banking for international transactions in New York City, for use in foreign proceedings in Panama and/or other fora with jurisdiction over Continental Trading Resources S.A. ("CTR") and/or its assets for recognition and enforcement of an arbitration award issued by the London Court of International Arbitration (the "LCIA") located in London, United Kingdom. (the "Foreign Proceedings").

The basis for the Application is as follows: on August 15, 2022, BPC entered into a contract to sell 26,000 metric tons of potash to CTR (the "Sales Contract"). BPC performed and shipped the potash as the Sales Contract dictated. BPC even made several amendments to the contract to accommodate CTR. As required by the Sales Contract, BPC issued three invoices demanding payment of the total amount of $13,959,140. Although CTR paid $7,400,250 of the amount owed, it failed to pay the remaining $6,558,890 owed under the contract and effectively breached the Sales Contract between the parties. As a result of CTR's breach, and as required by the Sales Contract, BPC instituted an action before the LCIA to recover the unpaid amounts owed by CTR under the Sales Contract. While BPC was represented, appeared, and participated in the arbitration, CTR did not appear nor were they represented.

During the arbitration, the LCIA issued several procedural orders, but CTR time and time again failed to comply. One such order directed BPC to bring the arbitration proceeding to CTR's attention, which BPC did. Another such order directed BPC to serve CTR with the Statement of Case and propose a schedule, giving CTR 28 days to produce its Statement of Defense after BPC serves its Statement of Claim. Yet again, BPC complied while CTR evaded the LCIA's order and never filed its Statement of Defense or anything at all. The LCIA further required CTR to serve its reply in response to an application for Interim Measures. However, CTR did not comply. After months of arbitration, and with no appearance or compliance from CTR, the LCIA issued an award in favor of BPC concluding that BPC was owed by CTR, per the Sales Contract, the outstanding amount of $6,558,890. Additionally, the LCIA awarded BPC the following: (1) $1,635,050.41 in interest, (2) $1,617.26 in daily interest on the outstanding amount owed until the date of payment, (3) 17,520 in BPC's legal costs with 9% yearly interest, which is equivalent to 4.32 per day, and (4) it ordered CTR to reimburse BPC 48,600.05 Great British Pounds ("GBP") in arbitration costs and dismissed all other requested claims and reliefs. For these reasons and for purposes of enforcement of the LCIA arbitration award and as set forth more fully below, BPC requests that the Court grant the Application.