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U.S. court rules "Crystallex has failed to state a claim" in Venezuela dispute




By Reuters

Petroleumworld 01 04 2018

A U.S. court has dismissed Canadian gold miner Crystallex's lawsuit against asset transfers by Venezuelan-owned refiner Citgo as part of a long-running dispute over the South American nation's 2008 nationalization of the company's assets.

Crystallex International Corp is seeking to collect $1.2 billion plus interest awarded in 2016 by a World Bank tribunal against Venezuela, which Venezuela has refused to pay.

The company has argued that Citgo financial operations in 2015 and 2016, including bond issues and dividend payments, were “fraudulent transfers” meant to prevent Crystallex from collecting the award.

The 3rd U.S. Circuit Court of Appeals accepted the defendant's request to dismiss the suit because Crystallex's claim is against Venezuela rather than Citgo, which is owned by Venezuelan state oil company PDVSA.

“While we do not condone the debtor's and the transferor's actions, we must conclude that Crystallex has failed to state a claim,” the court said in a ruling on Wednesday.

A lawyer representing Crystallex declined to comment. PDVSA did not immediately respond to a request for comment.

Crystallex's lawsuit had targeted a Delaware-incorporated subsidiary of PDVSA which in turn owns Citgo. It called the transfers a violation of the Delaware Uniform Fraudulent Transfer Act.

The case has been closely followed by investors holding Venezuela's distressed bonds. Some have considered targeting Citgo in the event that President Nicolas Maduro's government, struggling under hyperinflation and an economic crisis, defaults on its debt.

Sovereign nations and state-owned companies are generally considered separate legal entities, meaning companies that have commercial disputes with the former face an uphill battle in seeking to collect from the latter.

Crystallex has argued that PDVSA is in fact the “alter ego” of Venezuela.

Venezuela, which has around $30 billion in outstanding bonds, has little in the way of offshore assets.

That has encouraged creditors to consider ways to pursue Citgo under a potential default scenario.

“This decision is a big blow for Crystallex's fraudulent transfer theory but doesn't undermine the legal basis for its alter ego theory,” said Mark Weidemaier, a professor of law at the University of North Carolina at Chapel Hill who is an expert on international debt disputes and resolution.

Maduro said in November his government would restructure foreign debt, but Caracas has continued to make payments - with significant delays - on both PDVSA and Venezuela bonds.

Reporting by Brian Ellsworth; Editing by Frances Kerry from Reuters. 01 03 2017

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