DANA GAS PJSC V DANA GAS SUKUK LTD

[2018] EWHC 278 (Comm), Commercial Court, Financial List (QBD), Mr Justice Leggatt, 1 February 2018

Contract - Agreement requiring payment of price although no title in property could be transferred - Effect of use of words "sale" and "purchase" - Commercial sense in context - Public policy

This was the claimant's application to set aside a judgment from November 2017 ([2018] Lloyd's Rep Plus 16) on a preliminary issue, following the quashing of an anti-suit injunction by the Court of Appeal of UAE which had prevented the claimant from presenting oral arguments. The preliminary issue concerned the enforceability of a Purchase Undertaking by the claimant to buy certain assets, namely sharia-compliant investment certificates governed by UAE law and held by a trustee. The Purchase Undertaking was governed by English law. It provided for the payment of the "Exercise Price" under certain circumstances. The claimant argued that the agreement was unenforceable, where the trustee proved not to have the power to transfer the assets to the claimant.