Lloyd's Maritime and Commercial Law Quarterly
FREEZING FOREIGN BANK ACCOUNTS
Libyan Arab Foreign Bank v. Bankers Trust Co.1
In a world of credit cards and electronic transfers of funds, where cash seems as outmoded as cowrie shells as a medium of exchange, it is perhaps surprising that the humble banknote should have been the key to the success of the Libyan Arab Foreign Bank (hereafter, Libyan Bank) in its efforts to recover almost $300 million which was, or should have been, standing to its credit in its account with Bankers Trust London, a branch of Bankers Trust New York. Bankers Trust had refused to hand over the moneys after a United States Presidential Order made on 8 January 1986 had purported to freeze all property and interests in property of the Government of Libya in the U.S. or within “the possession or control of U.S. persons including overseas branches of U.S. persons”. No such assets freeze was imposed by the British Government: return of the moneys was illegal under New York law but not under English law.
The case arose from an unremarkable arrangement between Libyan Bank and Bankers Trust. The main features of that arrangement, which had first been agreed in 1980 and modified in 1985, were as follows. At the relevant times, Libyan Bank had a managed account with Bankers Trust. It consisted of a call account (similar to a British deposit account) on which interest was payable, with Bankers Trust London, denominated in U.S. dollars. At the close of business on 8 January 1986 that account was credited with $131,506,389.93. It also had a demand account (similar to a British current account), denominated in U.S. dollars, with Bankers Trust New York, paying no interest, which was used for day-to-day payments and receipts by Libyan Bank. At 2 p.m., on 8 January 1986, prior to the making at 4.10 p.m. on that day of the U.S. Presidential Order, the balance credited to the New York account was $161,997,000. It had previously been agreed that $500,000 (the “peg” or “target” balance) would be kept in that account to compensate Bankers Trust for its services in connection with the account. Bankers Trust would consider Libyan Bank’s New York balance at 2 p.m. each day, transferring, in multiples of $100,000, sums in excess of the peg balance to the London account; on the following morning, Bankers Trust would review the closing balance in the New York account for the previous day and, in order to maintain the peg balance, would transfer appropriate amounts either to or from the London account. Accordingly, $161,400,000 was available for transfer from the New York demand account to the London call account at 2 p.m. on 8 January 1986. Libyan Bank’s main claims were in respect of the sums of $131.5 million in the London account of £161.4 million which should have been transferred to that account from New York on 8 January
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