On 9 December 2020, the Supreme Court granted permission to appeal to the “Guaidó Board” of the Central Bank of Venezuela (the “BCV”) against the judgment of the Court of Appeal in the Venezuelan Gold dispute. The rival “Guaidó Board” and “Maduro Board” of the BCV are vying for control of the BCV’s assets in London, including nearly US$ 2 billion of gold bullion stored at the Bank of England.

At first instance, and following a trial of preliminary issues of Recognition and Justiciability, Mr Justice Teare held that Her Majesty’s Government (“HMG”) had since 4 February 2019 recognised Juan Guaidó as the constitutional interim President of Venezuela, necessarily to the exclusion of Nicolás Maduro. Teare J also held that interim President Guaidó’s appointment of the Guaidó Board and of a Special Attorney General were acts of the Venezuelan state which, under the foreign Act of State doctrine, an English Court would treat as valid and effective, thereby ruling out the Maduro Board’s various challenges to the validity of those appointments under Venezuelan law.

On appeal, the Court of Appeal held that HMG’s express recognition of Mr Guaidó as the de jure President of Venezuela left open the possibility that HMG may impliedly recognise Mr Maduro as the de facto President of Venezuela. The Court held that before any such conclusion could be reached, HMG should be invited to clarify its position and the case was remitted to the Commercial Court for this purpose. The Court of Appeal also held that it was not yet possible to give a definitive answer to the Justiciability Issue until the Commercial Court had decided whether to recognise the judgments of Venezuela’s Supreme Court (the “STJ”), by which the STJ had purported to strike down Mr Guaidó’s appointments. The Guaidó Board alleges that the STJ is a corrupt puppet of Mr Maduro and his regime (a view shared by the UK, the US, the EU and many other States).

The UK Supreme Court has now granted the Guaidó Board’s application for permission to appeal against the Court of Appeal’s decision in relation to both the Recognition Issue and the Justiciability Issue. There are three grounds of appeal:

  1. That the Court of Appeal was wrong in law to interpret HMG’s express statement of recognition of interim President Guaidó as leaving open the possibility of a continuing implied recognition of Mr Maduro as President.
  2. That the Court of Appeal was wrong in law to conclude that a de facto recognition of Mr Maduro would (even if established) require the Court to treat interim President Guaidó’s acts as nullities.
  3. That the Court of Appeal was wrong in law to conclude that the Justiciability Issue was not capable of being answered without first determining whether the STJ judgments should be recognised by an English court.

The Supreme Court also dismissed the Maduro Board’s application for permission to cross-appeal. The Maduro Board had sought to argue that the “one voice” doctrine (by which the judiciary must follow the position of the executive on matters of recognition) was not engaged by a statement of de jure recognition by HMG. That contention was held by the Supreme Court not to give rise to an arguable question of law.

At a Case Management Conference held in the Commercial Court on 10 December 2020, Mrs Justice Cockerill ordered that the Commercial Court proceedings involving the BCV should now be stayed pending the outcome of the Guaidó Board’s appeal to the Supreme Court. No further substantive hearings will take place in the Commercial Court until the Supreme Court has heard and determined the appeal.

Andrew Fulton and Mark Tushingham represent the Guaidó Board, instructed by Arnold & Porter.

The decision of the Court of Appeal is reported as “Maduro Board” of the Central Bank of Venezuela v “Guaido Board” of the Central Bank of Venezuela [2020] EWCA Civ 1249.

The first instance decision of Mr Justice Teare is reported as Deutsche Bank AG London Branch v Central Bank of Venezuela [2020] EWHC 1721 (Comm).