As Maitland observed, “[t]he forms of action we have buried, but they still rule us from their graves”.1 However, on reading the majority judgments in Taurus Petroleum Ltd v State Oil Marketing Co of the Ministry of Oil, Republic of Iraq,2 one might think that the rigidities of the forms of action may have been buried more deeply than ever before.

The dispute in Taurus arose over the High Court’s discharge3 of interim third-party debt orders (“TPDOs”) and receivership orders obtained by Taurus to enforce certain arbitral awards granted against the State Oil Marketing Company of Iraq (“SOMO”). The interim enforcement orders had been made against Crédit Agricole SA (“Crédit Agricole”) over supposed debts owed to SOMO arising from two irrevocable4 letters of credit that had been issued on the instructions of a company in the Shell group (“Shell”) to pay for oil it had purchased from SOMO.

The letters of credit were issued by Crédit Agricole via telexes in a modified form of UCP600.5 As vendor, SOMO was named as the beneficiary6 of these letters of credit; payment would be made by Crédit Agricole upon presentation of the requisite documents by SOMO. However, the telexes were sent to the Central Bank of Iraq (“CBI”), to whom the letters of credit were also addressed.7 Both letters of credit were expressly stipulated to be neither assignable nor transferable,8 thus excluding “transfers” of the letters of credit to another beneficiary as envisaged by UCP600, Art.38.9 But the letters of credit also incorporated two unusual clauses:10