Excalibur Ventures LLC v Texas Keystone Inc & Ors (Rev 1)

In 2007 Kurdistan was one of the last largely unexplored inland regions where there were prospects of discovering oil. Excalibur Ventures LLC (“Excalibur”), the claimant, contends that it has been unlawfully cut out of a deal under which, in the events which have happened, it became entitled to an interest in four blocks in Kurdistan, one of which – the Shaikan block – has been found to have very large quantities of oil – something like three times the amount of Brent North Sea oil.

The foundation of Excalibur’s claim is a Collaboration Agreement (“the Collaboration Agreement”) of 16 February 2006 under which the parties agreed to collaborate in bidding for petroleum blocks in Iraqi Kurdistan. In Kurdistan the form which concessions take is that the Kurdistan Regional Government of Iraq (“KRG”) enters into a Production Sharing Contract (“PSC”) with one or more companies.

The Collaboration Agreement is expressed to be between Excalibur and Texas Keystone Inc (“Texas”), the first defendant. Excalibur claims that Gulf Keystone Petroleum Ltd (“Gulf”), the second defendant, was also a party to that agreement (either because Texas executed it as Gulf’s agent or because Texas was the alter ego of Gulf) or became one by assignment.

In the event, Excalibur accepted not being a party to any PSC to be entered into as a result of a successful bid. On 6 November 2007, after a series of proposals (as opposed to a formal bid), a PSC was entered into between the KRG on the one hand and (i) Gulf Keystone International Ltd (“Gulf International”), the third defendant, a Gulf subsidiary; (ii) Texas; and (iii) Kalegran Ltd (“Kalegran”) on the other in respect of the Shaikan block. Kalegran is a Cypriot company wholly owned by MOL Hungarian Oil & Gas Public Company Ltd (“MOL”), a public oil and gas company listed on the Budapest Stock Exchange, whose largest shareholder is the Hungarian State.

Excalibur contends that, although it is not a party to the Shaikan PSC, the Collaboration Agreement entitles it to an interest in it. Any such interest would necessarily be indirect. The principal remedy which it claims is specific performance of the Collaboration Agreement, so as to give effect, in such manner as the Court may determine, to its indirect interest in Shaikan. It also claims similar relief in respect of three other blocks:

Akri-Bijeel, which was the subject of another PSC of 30 October 2007 between the KRG and Kalegran and of an acreage swap of 31 December 2007 whereby MOL (the bidder) exchanged a 20% interest in Akri-Bijeel for a 20% interest in Shaikan;

Sheikh Adi; and

Ber Bahr.

Alternatively Excalibur claims damages from Texas and Gulf in contract, including various claims in the alternative to its primary contractual claim, and under five non-contractual headings (interference with contract, interference with business relations, breach of fiduciary duty, fraud by misrepresentation and fraud by concealment). It puts its damages at over US (Footnote: ¹) $ 1.75 billion in respect of Shaikan alone. All the defendants contend that Excalibur is not entitled to any relief against any of them.

Gulf claims, inter alia, that it was never a party to the Collaboration Agreement, and that it was entitled to bid for Shaikan (and any other block) without reference to Excalibur. Both Texas and Gulf contend that, by deciding that it did not need to be on the PSC, Excalibur in effect gave up on any rights under the Collaboration Agreement, which does not, they say, confer or recognise any indirect interests. Even if it might have been entitled to an indirect interest, Excalibur could not raise the necessary finance for the bonuses payable under the Shaikan PSC within any commercially acceptable timeframe, so that it was in material breach of its obligations under the Collaboration Agreement, or renounced them. It was, in any event, neither ready nor able to fulfil those obligations within such a timeframe, so that, on both counts, it is disentitled to any such interest.

The closing submissions in the present case exceed by about 30,000 words the length of the Old Testament (in the King James version). They have 9,214 footnotes helpfully hyperlinked to the documents and the transcript. I do not intend to deal in this judgment with all the material referred to, facts asserted, or arguments made. If and insofar as I do not do so that does not mean that I have ignored them. I have read the entirety of the submissions more than once and reread a very substantial proportion of the referenced material. This judgment contains such findings of fact as I consider it necessary to make and my conclusions thereon in the light of the submissions made.

Many, but by no means all, of the facts are not the subject of serious dispute. In this judgment I have made extensive use of the framework and content of Volume 2 of Gulf’s final submissions (which contains a detailed narrative history) and, in particular, its summary or citation of documents and evidence, but with many variations, additions, omissions, qualifications and substitutions of my own. I have done so because I have found it a reliable summary of relevant parts of the enormous quantity of documentary material and the oral evidence of both sides. Wherever I have made use of the text from that source (whether in original or altered form) I have checked the relevant references to satisfy myself that the citation is accurate and not incomplete.

Excalibur, the claimant, is a Delaware corporation. It is the corporate vehicle of Mr Rex Wempen (“Mr Wempen”), who founded it in April 2003, and his brother Eric Wempen. Under an Amended and Restated Operating Agreement of 6 January 2008 (“the Operating Agreement”), which replaced the original agreement of 1 May 2003, he is its sole Manager and in complete control. The company has no shares and consists only of membership interests – 75% in the case of Rex and 25% in the case of Eric Wempen (Footnote: ²).

Excalibur has no working capital; and no Board. It never had any formal management or investment team (as opposed to people on whom it might be able to call on to work on different projects). It had no employees in any sense after 2004. The Operating Agreement provides that Excalibur shall not hold annual meetings of members: clause 5.7.2. It is not an oil company and has no track record in respect of oil exploration or production, nor any oil and gas expertise. It is, in essence, a nameplate for the Wempen brothers, who have no relevant management experience.

Excalibur has not prepared financial statements or any other financial information since 2005. It is not required to do so. The only set of accounts located (for 2003) shows Total Assets of $ 6,739, and a trading loss of $ 5,935 against revenue of $ 146,799. In 2006 Excalibur had no income. Excalibur did not maintain management or similar accounts (Footnote: ³). The bank accounts for 2003-4 were left in the Baghdad office and have been lost, as have tax records prior to 2009 save for a filing in 2008, which declared that Excalibur had nil assets and a net loss of $ 120,992. Because Mr Wempen has not since 2008/9 conducted business through Excalibur, other than the pursuit of these proceedings, it has had no assets or liabilities on its books.

Texas was incorporated in Texas on 4 October 1988. It was founded by David and Todd Kozel for the purpose of oil and gas exploration and production in the United States. The male members of the Kozel family consist of Frank Kozel (Footnote: ⁴), and his sons Robert, David and Todd (in that order). Since early 1999 when Robert Kozel exercised an option to buy 10,000 shares it has been beneficially owned by all three Kozel brothers in equal shares. Frank Kozel is entitled to a 25% share of the profits. Texas is primarily involved in the development and production of oil and gas from wells located in the Appalachian basin with operations in Pennsylvania, West Virginia and New York State, where it has interests in over 1,800 producing oil and gas wells.

Initially Frank Kozel was President and Todd and David Kozel were Vice-Presidents. David Kozel was in control of field operations. When he joined the company in around 1994 Robert worked on fund raising and became a Vice President.

From 1994 until September 2004 Todd Kozel (hereafter “Mr Kozel”) was President of Texas. Until a date in 2003 he was also its Chief Executive Officer, although Frank Kozel played a significant management role until around 2001. From 2003 until July 2011 Robert Kozel was Chief Executive Officer and from September 2004 until July 2011 he was President and Mr Kozel was Vice Chairman (but not an officer). Robert Kozel ran the company from its offices in Pittsburgh, Pennsylvania. David Kozel remained in charge of field operations. In 2006 and 2007 the Board consisted of Frank Kozel and the three Kozel brothers. Texas currently has about 50 employees all of whom work in the USA.

By 2006 Texas was a well-established oil company, having facilitated the drilling of some 1,200 wells and at that stage overseeing the operation and distribution activities of more than 800 actively producing wells. The Kozel family had extensive experience in oil and natural gas in the USA with more than 375,000 acres of land under management. Texas had considerable technical capabilities. Its gross revenue for 2006 was over $ 40 million.

In late 1999 the Kozel family and other UAE and Kuwaiti investors founded Gulf Keystone Petroleum LLC (“Gulf LLC”) in Sharjah in the U.A.E. to pursue oil and gas development opportunities outside the US, particularly in North African and Middle Eastern countries, seeking foreign energy companies as partners in the development of oil and gas reserves. The idea was to try to use in these countries the small independent model which had worked for Texas in the United States. Sheikh Faisal Bin Sultan Al-Qassimi (“Sheikh Al-Qassimi”) was Chairman and Frank Kozel Vice Chairman.

Gulf LLC participated in Algeria’s first international bid round for oil and gas licences. As a result on 14 February 2001 it was awarded, together with Sonatrach, Algeria’s national oil and gas company, a PSC for Block 126 in the Ferkane area of North East Algeria. The contract was signed on 28 February 2001.

On 29 October 2001 Gulf LLC incorporated Gulf Keystone Petroleum Algeria Ltd (“Gulf Algeria”) in Bermuda as a 100% subsidiary to act as Gulf LLC’s operating company in Algeria to include the development of Block 126. With Sonatrach’s consent Gulf LLC assigned all its rights and obligations, including its interest in Block 126 to Gulf Algeria (Gulf LLC becoming a guarantor of the obligations).

On 20 May 2004, in preparation for the listing referred to below, Gulf Algeria changed its name to Gulf, the second defendant. On 26 May 2004 Roger Parsons and Bill Guest joined the Board as non-executive directors. Mr Parsons, who became non-executive Chairman, had over 35 years of investment banking experience. Mr Guest, who became President, had substantial oil and gas exploration experience through Shell, Monument Oil and Gas Plc and Endeavour International Corporation.

Gulf LLC and Gulf were initially financed by capital and loans provided by the Kozel family and unrelated foreign investors. Some of this finance was provided by Texas or Falcon Partners, a Pennsylvanian business trust founded by the Kozel family in 1996.

In 2002, 2003 and 2004 Gulf secured about $ 9.5 million, $ 14.95 million and $ 13 million by private placement of Series A preferred shares to individual and institutional investors.

On 8 September 2004 Gulf floated on the Alternative Investment Market (“AIM”) of the London Stock Exchange raising $ 60 million gross in an initial public offering (“IPO”).

For the purpose of the IPO Gulf had to produce a “Competent Persons Report”, describing and assessing the company’s assets. The Competent Persons Report was carried out by a subsidiary of Exploration Consultants Limited (“ECL”), a company based in Henley-on-Thames, providing consultancy and operations services (seismic and well site geology) to exploration and production (“E & P”) companies. ECL’s Chairman was Dr Ashti Hawrami (“Dr Hawrami”), an Iraqi Kurd, who was in May 2006 to become the Minister of Natural Resources in the KRG. Gulf continued to use ECL’s services after the listing. Mr Kozel first met Dr Hawrami in 2002 or 2003 (Footnote: ⁵).

After its flotation Gulf focused on the development of exploration activities in Algeria. In April 2005 it acquired, against stiff international competition, a further 8 licences for exploration blocks in Algeria so that its total acreage was 33,216 km². One of the blocks acquired was the Hassi Ba Hamou block (“HBH”) gas concession. The only loan made by the Kozel family to Gulf after the IPO was a 12 months loan of $ 2.5 million made to Gulf through Falcon Partners at 7% per annum when Gulf was facing liquidity problems. GIBCA, Gulf LLC’s 51% shareholder (see para 31 below), provided a similar loan. The loan agreements were signed on 9 June 2006.

In August 2006 Gulf farmed out part of its interest in HBH to the BG Group, raising $ 55 million. The loans referred to in the previous paragraph were fully repaid with interest on 13 January 2007 after the completion of the BG deal.

In 2006 Gulf made a profit of $ 46.3 million and had net assets of $ 163.351 million, with cash and cash equivalents of $ 59.328 million. As at 31 December 2007 its net assets were $ 133.99 million with cash and cash equivalents of $ 88.29 million.

Over the years the commercial environment in Algeria became increasingly difficult as the Algerian authorities sought to re-negotiate contracts; and in 2009 Gulf decided to exit Algeria. Oil production in Algeria ceased in June 2008 and Gulf surrendered its remaining oil assets to the Algerian Government. In February 2010 it sold its remaining gas interest in HBH to BG for $ 10 million and it ceased operations there in 2011.

Gulf Keystone Petroleum (International) Ltd (“Gulf International”) is a wholly owned subsidiary of Gulf, which was incorporated in Bermuda on 6 August 2007. It was to become a party to the PSCs for the four blocks at issue in these proceedings. Its directors in 2007 were Mr Kozel, Mr Ali Al-Qabandi (see para 31 below) and Mr Jon Cooper, then Gulf’s Chief Financial Officer.

Gulf Keystone Petroleum (UK) Ltd (“Gulf UK”) is a wholly owned subsidiary of Gulf, which was incorporated in England on 17 November 2004. It provides geological, geophysical and engineering services and administration to companies in the Gulf group. Although it is the fourth defendant no relief appears to be claimed against it and it can be ignored.

When Gulf LLC was formed its shares were held in the following percentages:

51% GIBCA, a company founded by members of the Al-Qassimi family (Footnote: ⁶), who were in banking and construction in Sharjah;

10% Mr Ali Al-Qabandi, a Kuwaiti, whom Mr Kozel had met at the end of the first Gulf War in 1991, and who prior to early 2001 worked for the Kuwait Oil Company;

10% Mr Ibrahim Al-Khaldi, a Saudi, who prior to early 2001 had been working for Baker Hughes Inc, a major oilfield service company;

29% Mr Kozel in trust for his father and the three brothers.

In 2003 Mr Kozel bought an 11% shareholding from GIBCA.

In May 2011 Gulf LLC was wound up and its shares in Gulf were distributed to its shareholders.

On 27 May 2004 each common share of US $ 1 in Gulf Algeria was sub-divided into 100 common shares of US $ 0.01. Gulf LLC’s holding then became 90 million common shares. It transferred 20 million to GIBCA, 20 million to Mr Kozel and 5 million each to Mr Al-Qabandi and Mr Al-Khaldi leaving it with 40 million. Mr Kozel agreed with his father and brothers that he would own his 20 million shares personally.

The $ 60 million raised by the September 2004 IPO was in exchange for 125 million new common shares of US $ 0.1 each at an issue price of 48p. In addition to the 90 million common shares in issue prior to the placing, the 37,564,500 Series A preferred shares which had been issued in exchange for earlier financing were converted to 37,564,500 common shares.

Excalibur contends that the relationship between Gulf and Texas is such that Texas is to be regarded as the alter ego of Gulf; that Texas danced to Gulf’s tune; and that Robert Kozel was, in relation to Texas’ affairs, dominated by his younger brother. I consider these contentions in more detail below. For the moment it is necessary to set out a number of facts.

Gulf is a public, AIM listed company, incorporated in Bermuda. It is, thus, subject to the requirements of the company law of Bermuda and the applicable rules of the London Stock Exchange. The AIM Rules call for supervision by a Nominated Adviser (“Nomad”) who has to meet the eligibility criteria set out for Nominated Advisers and be approved by the AIM Regulation Team.

Texas does not have, and never has had, any shares in Gulf.

As at 31 December 2004 Mr Kozel had a direct interest in 20 million shares in Gulf. On 18 July 2005 he purchased 500,000 shares which brought his total direct shareholding to 20,500,000 shares. That was his shareholding as at 31 December 2005. He had 2,650,000 share options that could be exercised for a certain period up until 2014 if the company’s share price reached certain levels. The total share capital of the company at this time was 253,732,140 shares. As at 31 December 2007 he still had 20,500,000 shares and the share options had not been exercised. The total share capital at this time was 278, 040, 556 shares (Footnote: ⁷). He, therefore, directly owned 7.2% of the issued share capital.

In addition Gulf LLC owned (see para 34) 40 million shares in Gulf i.e. just under 16%. Mr Kozel had an 11% shareholding in Gulf LLC and a 25% beneficial interest in a further 29% of Gulf LLC i.e. 7.25%, making 18.25% of Gulf LLC and, thus, a further indirect interest in Gulf of 2.92% (16% of 18.25%).

On 24 February 2009 Mr Kozel established the Gokana Trust, a trust of which Mr Kozel was the settlor but not a beneficiary. On 15 April 2009 he transferred 20,000,000 shares in Gulf, then equivalent to 5.4% of Gulf’s issued capital, by way of gift to Emeralp (sic) Trust Ltd, the trustee of the trust. In early August 2009 the trust subscribed for 10,750,000 new shares in Gulf with the benefit of a loan from Mr Kozel, which was later repaid.

The arrangements in respect of the trust are unclear. Mr Marcus Hugelshofer, Mr Kozel’s lawyer, was described by Mr Kozel as a trustee. There is in the papers what appears to be the trust deed, which provides for a number of charitable beneficiaries and excludes Mr Kozel and the Trustee or any director or employee of the Trustee as beneficiaries. Mr Kozel said in evidence that, at the discretion of trustees, the trust was capable of having beneficiaries which were not charities provided that they did not include him or anyone related to him. But he also said that he issued a letter of wishes at the end of August or the beginning of September 2009 (Footnote: ⁸) asking for his ex-wife and children to be added as beneficiaries although that was, he said, cancelled later, apparently because they were not capable of being beneficiaries at all.

There have been later developments in relation to Mr Kozel’s shareholding in Gulf the details of which are immaterial. He has never substantially controlled it and has always had a small minority stake.

Texas is a private, family owned company with its management based in Pittsburgh. The Kozel brothers own all the shares in Texas in equal proportions. None of them is, therefore, a controlling shareholder.

Gulf does not have, and never has had, any shares in Texas.

Texas is a family run business. The Kozel brothers, who are the only shareholders, and their father (who, in addition to them, is a director) communicate with each other and make decisions in an informal way, often in person or by telephone. Their offices and that of their father were next to each other in Pittsburgh. They were not much given to minutes or memoranda. But board level decisions, however informally taken, were made by the board. Mr Kozel did not have power to take such decisions unilaterally. After Mr Kozel resigned as President and CEO in 2003 Robert Kozel was in charge at Pittsburgh. Mr Kozel’s day to day involvement with Texas ceased and his overall involvement with Texas decreased (being confined to receiving drilling and other reports and being consulted as a director) save that the operation of the Collaboration Agreement was very much his responsibility. His brothers expected him, subject to any direction or decision of the Board, to take charge of it. They did not expect to be, and were not, copied in on every, or even every significant, email.

Frank Kozel was Chairman from its incorporation in 2001 until he stepped down on 26 May 2004 in preparation for the AIM flotation. Roger Parsons then became Chairman which he remained until July 2007, when Mr Kozel became Chairman. Mr Kozel was the Chief Executive Officer at all material times. Mr Guest was President from 26 May 2004 until July 2007.

Mr Al-Khaldi (referred to as “Abe”) was a director and chief operating officer between 2001 and 2004. He resigned as a director in May 2004 (together with Frank Kozel, Mr Al-Qabandi and Sheikh Al-Qassimi) but continued as COO until 1 October 2008, when Mr Gerstenlauer joined, after which he served as Vice President (MENA Region). He resigned from Gulf on 3 September 2009.

Mr Al Khaldi’s position at Texas is convoluted. Robert Kozel said that he was appointed VP of International Business Development at Texas in June 2005. He was in fact engaged because he could be of assistance in a dispute that the Kozel family had in relation to shares in Texas with “the original GKP company” i.e. Gulf LLC in the UAE. But he was not paid by Texas until 2010. It appears that, until at least 2009, his real employment was at Gulf (including at an early stage acting as the interface with the Texas personnel who were performing services for Gulf under certain Management Services Agreements – see para 51) and his employment was dressed up as employment with Texas in order that he could obtain a US visa (Footnote: ⁹). A petition to extend his visa drafted by an attorney in 2007 describes him as having been employed by Gulf until June 2005 (sic) and as responsible for directing all the company’s business planning and implementation activities throughout North Africa and the Middle East. Texas had no such activities and Mr Al Khaldi never carried out the VP’s duties for Texas specified in the draft. Mr Kozel said that Mr Al Khaldi had agreed to act as Texas’ representative if something did transpire in Kurdistan; but, even if that is so, as will become apparent, so far as Texas was concerned it bowed out of Kurdistan. The draft also wrongly described Gulf as Texas’ parent.

None of the other directors or officers of Gulf, or Gulf International or Gulf UK was ever a director or officer of Texas and none of the other directors or officers of Texas was a director or officer of Gulf at any material time.

In the early years Texas provided Gulf LLC and Gulf with professional and administrative services pursuant to two Management Services Agreements dated May and October 2001. These included engineering, geological and geophysical services (charged out at the same hourly rates as Texas charged third parties), and administrative functions including financial systems, controls and reporting, employee training, benefits management and payroll services and risk management and insurance coverage assessments (charged out at cost + 10%). Gulf LLC and Gulf also leased unused office space from Texas in Pittsburgh.

After Gulf’s flotation it established an office in Berkeley Street in London, and began to hire staff. By the end of 2005 the London office had about 20 members of staff as Gulf took over many of the services previously provided by Texas. After 2005 professional and administrative services were no longer provided by Texas, although Gulf continued to lease office space from Texas during 2007. In 2006 and 2007, the years with which this action is primarily concerned, Mr Kozel as Chief Executive Officer of Gulf was based in Berkeley Street in London, and he often dealt with matters affecting Texas from there.

As appears from the foregoing Mr Kozel has never had more than a relatively small (albeit now very valuable) minority stake in Gulf and a one third stake in Texas. He controlled neither company. Gulf and Texas were not part of the same group. They were not under common control or ownership and were run and controlled by their respective Boards. Gulf did not have the power to compel Texas to act nor vice versa. It was suggested that in reality Robert Kozel acted in respect of the Collaboration Agreement as Mr Kozel directed and that he was under his control. Todd Kozel reacted to the idea that he dominated his elder brother (or that Gulf dominated Texas) with some bemusement (Footnote: ¹⁰), and, having heard from both Robert and Mr Kozel I am satisfied that this suggestion is incorrect. The fact that the Kozels left it to Mr Kozel to get on with matters relating to the Collaboration Agreement did not mean that the Texas Board were ciphers or puppets or that they exercised no independent judgment.

The factual evidence given orally came from (i) Rex Wempen; (ii) Eric Wempen; (iii) Robert Kozel; (iv) Todd Kozel; and (v) John Gerstenlauer. Written evidence came from Adnan Samarrai, who was due to give oral evidence but was not well enough to testify.

Rex Wempen (“Mr Wempen”) comes from a family with a military background and strong Republican Party links. He went to Cornell University on a 4 year US Army Reserve Officer Training Corps scholarship and received a B.A. in Political Science. He then studied for and obtained a Masters in National Security Studies under the Georgetown National Security Studies program during which time he served as an assistant to two US Congressmen and in the Maryland Army National Guard Special Forces. He was called to active duty during the first Gulf War. He served full-time during the 1990s in the US Army, joining in 1994 the 1st Battalion, 1^st Special Forces Group (such groups being known as Green Berets). He rose to the rank of Captain with top secret security clearance, leading deployments in five countries commanding very small units and training or liaising with local forces. From 1999 to 2001 he did an MBA course at Marshall Business School, University of Southern California (“USC”), continuing as an Army Reservist with the Defence Intelligence Agency (“DIA”).

He then joined an entertainment technology company in California but returned to active duty with the DIA after 9/11. From November 2002 to February 2003, he worked as a “business consultant” to a company called Pivotal Ventures Inc. He describes his role as “advising them on counter-terrorism applications for their technology and supporting their federal government marketing efforts by briefing high level Pentagon officers such as Vice-Admiral Poindexter and members of Congress”. He established Excalibur two months after the end of his role with Pivotal. He acts as a consultant in Washington doing some sort of work with the US Government for which he maintains a top security clearance.

Excalibur was founded in order to develop further business opportunities in Iraq. But, although it was involved in initiatives in relation to various projects – e.g. petroleum development, power projects, building materials, commodities – practically none of them came to fruition. In 2004 it was involved in the National Economic Survey of Iraq, for which it engaged (but did not employ) a large number of data gatherers.

Mr Wempen is an impetuous go-getter; who, on many occasions, took positive salesmanship (as he termed it) beyond the point of accuracy. As will become apparent he repeatedly misrepresented Excalibur’s funding position and made misleading statements to a range of people, including Mr Kinnear, his close business associate. He was not a satisfactory witness.

At the beginning of his cross examination he told me that he had resigned voluntarily from the army and “entirely voluntarily” from the Reserves. He said he had never been convicted by a court of criminal jurisdiction. In fact, he had been convicted of disturbing the peace (“wrestling around on a lawn with an army buddy at 2 am”) and received 2 years unsupervised probation. This would have been of very little consequence but for the fact that he implausibly claimed to have forgotten it.

In 1999 when he left the Army he was the subject of an unfavourable officer evaluation report (“OER”) and was the subject of what are called Article 15 proceedings (apparently for being in an area of nightclubs where he was not supposed to be). He joined the Reserves. In September 2002 he was discharged from the Reserves following allegations that he had forged the signatures of officers on an OER, which, whether true or false, “resulted in the termination of [his] reserve career”: see the official statement of Mr Wempen and his brother of 26 September 2003. Again this might have been of limited consequence but for the fact that his evidence in relation to these topics was cagey and his denial that the allegations led to the end of his reserve career was, on the basis of his own statement, false. He sought to have his record “sealed”, which would have made it unavailable for public inspection, and his unfavourable OER erased.

His evidence displayed a considerable degree of evasiveness and, at times, a marked inability or unwillingness to answer the question or stay on the point. He tended to engage in advocacy of his cause beyond that to be expected from someone to whom the case meant so much, reiterating points he wished to make whether they were an answer to the question or not. As a result his evidence took far longer than should have been necessary. Some of his oral evidence displayed remarkable changes from his written evidence; some appeared to be contrived to fit with the case being put (e.g. his evidence that the Prime offer of finance was a good offer when at the time it was regarded as a very poor one).

Eric Wempen is a tax lawyer. He, too, is a former US Army Reservist. He was at one stage with KPMG LLC. In 2005 he was with Baker & McKenzie LLP. He later became an executive director and in-house counsel with UBS bank in Stamford, Connecticut, specialising in finance, tax and cross-border Mergers & Acquisitions. He left them in May 2012 in order to devote himself full time to this litigation. He will receive 25% of any net recoveries.

Eric Wempen’s connection with the events the subject of this claim was intermittent. It consisted largely of the provision of legal or tactical advice in respect of Excalibur’s dealings with Texas and Gulf given to his brother on various occasions, without, on some occasions, much sustained thought. I did not regard him as a wholly reliable witness.

He described himself in one email as his brother’s “consigliare (sic)”. His activities in this respect included devising litigation strategies, one of which contemplated the use of unacceptable tactics such as the idea of blackmailing Mr Kozel (see paras 934-940 below), and a suggestion to his brother that they “pull a fast one” by deleting wording in the jurisdiction clause of a draft confidentiality agreement but not drawing it to Gulf’s attention in the hope that they would “never miss it in pdf form” in order to “keep any future litigation on this out of the UK courts.” In late 2007 he purported to represent UBS vis à vis Gulf in a manner which was not justified. His account of how he came to ask for certain information from Mr Patrick of Gulf was not truthful: see para 791 below.

Prior to their involvement with Excalibur neither brother had any experience of the oil industry, or of raising money for oil exploration. Nor did they have resources of their own with which to contribute any meaningful capital to an oil exploration venture. If their claim is valid they will each become immensely rich. This case has taken over their lives and the need to support the legal theories put forward has, in my view, coloured their evidence.

Robert Kozel is the eldest Kozel brother, who has spent his life in the oil industry. I found him a straightforward and reliable witness.

Mr Kozel is the youngest Kozel brother. He, too, has spent his life in the oil industry. He is something of an adventurer, having branched out into Gulf LLC and Gulf and developed a highly successful and profitable venture in Kurdistan. He is plainly a focused and motivated operator who works all the time. He is not keen on documentary communication, nor is he someone who scrutinizes his emails, a medium he does not like much, with any intensity. He is not likely to correct mistakes in the emails of other people. I regarded him as a credible witness.

Mr Gerstenlauer became Chief Operating Officer of Gulf on 1 October 2008. He is an oil man through and through. He was a plainly honest, impressive and engaging witness. He accepted that he had, in his statement, catalogued the risks in 2007 and 2008 (rather than the potential pluses) because, as he put it “prior to discovery... there is no upside”. At one point in his evidence he described how the oil business is very much like a gold rush culture and that Kurdistan was the latest fad. I do not take this expression to signify a view that in late 2007 it was easy to obtain finance for exploration there. Mr Jull, one of the defendants’ expert witnesses, did not share Mr Gerstenlauer’s opinion. Kurdistan was, in his view, interesting, as were other areas, but some, e.g. Brazil, were “hotter”.

Mr Samarrai is a qualified geologist with over 45 years experience with extensive experience in Iraq. He had worked for the Iraq Petroleum Company from 1964 until it was nationalised in 1972, then for the North Oil Company until 1984, and from 1985 for Oil Exploration Company, a subsidiary of the Iraqi National Oil Company. He had been the Chief Geologist at Kirkuk.

Both sides called expert evidence on the law of New York. Excalibur called Judge Joseph Bellacosa, a distinguished former judge of the New York State Court of Appeals. The defendants called Judge George Pratt, a former member of the US Court of Appeals for the Second Circuit, which hears appeals from the District Courts in, inter alia, New York. I was greatly assisted by both witnesses. As was to be expected there was, in the end, limited difference between them, when cross examination had elucidated their evidence and, in the case of Judge Bellacosa produced, in a limited number of instances, amendments to reports which had, in the first instance, been drafted by Clifford Chance and then worked on and amended by him. On a spectrum between a nuanced and a black letter approach Judge Bellacosa was closer to the former.

Excalibur called Mr J Jay Park QC as their expert in three fields: (a) oil industry practice; (b) oil industry financing and (c) Kurdish law (not explored at trial). Mr Park is a well-established lawyer of good repute in private practice in Canada (he was a partner with Norton Rose Canada) who has specialised in oil and gas law since 1980. He is a director of some oil and gas companies. He is not, however, a professional in the financing sphere nor a securities lawyer. He has attended 12 or so meetings between clients and investment bankers.

I have considerable doubts about Mr Park’s suitability as an expert for the purposes of this case and as to his independence.

As to the former, his expertise in the relevant fields is markedly inferior to that of the experts called by the defendants. His evidence in relation to the non-legal aspects of oil finance is, as he accepted, at the periphery of his expertise. He is not an expert as to the approach of investment banks seeking to raise equity or on private equity investment in oil and gas projects. His basic thesis – that Excalibur’s lack of a management team with any financial or technical competence would not have been an insurmountable obstacle to the raising of finance given the appetite for investment in Kurdistan and that can-do investment banks would assist in securing the necessary changes – was inherently unconvincing.

As to the latter, there are a number of matters, relied on by the defendants, in my view justifiably, which are of concern. In his first report he expressed the view that Excalibur was no different from many companies which signed PSCs. At this stage all he knew about Excalibur was what he had read in the pleadings. He did not refer to the fact, of which he was ignorant, that Excalibur was, in essence, a nameplate. He was unaware when giving evidence that Excalibur had no board of directors or shareholders. In his third report he considered in some detail the example of a company called Vast, which he described as a very small player which did not appear to have any international expertise or credentials, as comparable to Excalibur. He did not mention that Vast was a company in the Forbes & Manhattan Group, although he knew of the connection between the two.

Some of his evidence as to fund raising activity on the Canadian financial markets in 2007 and 2008 in relation to Kurdistan was inaccurate. He referred in cross examination to the fact that Western Zagros (one of his clients) had no positive seismic at the relevant time, when in fact it had. It also had cash assets of about
$ 82.5 million and an experienced management team. He initially suggested (wrongly) that it was common ground between him and Mr Wilkinson, the defendants’ expert, that the capital and appetite available for listed and unlisted private placements were the same; and said that, insofar as there was a difference, there was no reason to suppose that Excalibur could not achieve listing relatively quickly. This was (a) inconsistent with what he had said in a joint memorandum; and (b) wrong. He wrongly suggested that UBS did not get involved in Kurdistan projects.

He also showed a tendency to act as advocate for Excalibur. This was particularly so in his third and fourth reports. In his first report he was not prepared to opine on the likelihood of Excalibur being able to raise finance because he did not know enough about the company to express a view. In the joint report with Mr Wilkinson he said that it was speculative as to what Excalibur would have been able to do by way of fundraising and in what time frame. By the time of the third report he was clear that “subject to the title defect” it was far more likely than not that it would have raised the necessary finance. The content of his first and third reports had to be revised in the course of his cross examination in a significant way. He sought to advance the proposition that the Collaboration Agreement gave rise to an indirect interest without being able to identify with any precision how that might be so.

Mr Emslie, Excalibur’s oil industry expert, had not expressed an opinion on the value of Excalibur’s interest as at the date of the breach i.e. at the time when its interest was not recognised in 2007. In the course of the trial I directed that any question as to the present value of an interest in Shaikan should be determined, if relevant, after the delivery of this judgement. He did not, therefore, give oral evidence.

The defendants’ oil industry expert was Mr David Codd. He started as a lawyer but has over the past 32 odd years been involved in the management of oil exploration companies including companies with interests in Kurdistan. I found him an entirely reliable witness.

The defendants called Mr Philip Jull to give evidence as to the ability of Excalibur to obtain finance on the Canadian capital markets in 2007. He was asked to do so shortly before trial when it became apparent that Mr Park was placing considerable reliance on the availability of finance in those markets. I regarded his reports as carefully written, his evidence as the product of an independent mind, and his views as cogent and given with authority.

Mr Joseph Wilkinson gave evidence for the defendants on the approach of private equity investors to the financing of oil exploration projects in 2007. From 1991 to 1997 he managed an energy private equity investment fund which completed 8 financings 4 of which involved oil exploration in addition to some oil development. He also reviewed investment proposals weekly. From 1997 to 2007 he worked at Deloitte Financial Advisory Services in Houston as leader of the oil and gas group. Half of his time was litigation related; half in providing management advisory and corporate finance consultancy services. I am satisfied that he was qualified to give evidence as to the availability of private equity finance; and that his evidence, although occasionally dogmatic, was reliable.

The only expert evidence of the value of the relevant blocks in 2007 and 2009 came from Mr Stephen Rogers. I regarded him as a reliable witness, undoubtedly expert and experienced in this field. Oil companies, banks, and investors might have taken a more rough and ready approach to valuation. That is in no sense a criticism. Valuation of an exploration opportunity is not an exact science (although there are well recognised methods). The basis on which someone considering investment may value an asset is a function of the method, assumptions and approach that he is minded to take. When, however, the court seeks to assess a value it should, in the first place, look, if it can, to a valuation provided by someone of the competence and thoroughness of Mr Rogers.

Oil exploration is a risky business wherever it takes place. On occasion it produces high rewards. But enormous costs are involved in finding out whether hydrocarbons are present at any location in commercially exploitable quantities. The results of exploration are, as it is said, binary: either the oil is there or it is not. If it is not, the expense of looking for it is wasted with serious or even catastrophic economic consequences, particularly for a small oil company, such as Gulf, without a diverse portfolio. Even if there has been a “successful” exploration well, further exploration may reveal that the necessary volume of commercially exploitable oil or gas is not there. Investing in the oil and gas business in Kurdistan involved several different types of risk: exploration, technical, and political.

In 2005 – 2007 (and beyond) the exploration risk in Kurdistan was very high. Kurdistan was known to contain oil. It was, as Mr Gerstenlauer put it, “a large unexplored area in a good fairway” – a fairly rare opportunity – where oil companies could, to the extent they were allowed, choose their blocks. Kurdistan lies at the northern end of the Zagros fold belt, within which are some of the largest of Iraq’s oil fields (Footnote: ¹¹). The Kirkuk field which is very large is at the edge of Kurdistan. Taq Taq and Tawke had world class flow rates. There was, therefore, a substantial amount of interest in Kurdistan where some 14 PSCs were awarded between August and December 2007 (two of which were re-signings). The bonuses payable in respect of these were about $ 420 million.

The Shaikan block is some 85 kilometres northwest of Erbil and covers an area of 283 square kilometres. The block is dominated by a single large anticlinal structure with the geological strata dipping away from the centre of the block in all directions, suggesting the possibility of a structural trap for hydrocarbons in the subsurface.

But the Shaikan and Akri-Bijeel exploration blocks, although broadly on trend with the belt, were “wildcat” blocks i.e. there had been no exploration wells and the blocks were not in the vicinity of any known oil or gas fields. The only offset well (Footnote: ¹²) (the Jebel Kand well) for Shaikan was 26 km away and, although it went down 5,000 metres, was a dry hole. Geologists and geophysicists can form an educated view on the likelihood of finding oil, relying on structures or experience in similar areas (Footnote: ¹³). But the view may well turn out to be no more than a bad guess. Even the seepage of oil or gas from the surface, which was apparent in Shaikan, may mislead. It indicates that there was a reservoir structure at some stage with a significant amount of hydrocarbons. But it may also signify that oil has leaked away from the underground trap because the cap rock is ineffective or has been ruptured. Talisman and Niko Resources declined to farm in to Shaikan in 2008 out of concern about the effectiveness of the reservoir trap. One geologist at the University of Mosul had written a thesis with a very negative conclusion about Shaikan’s prospectivity.

By 2007 Iraqi Kurdistan had been largely unexplored. No wells had been drilled between 1982 (at the time of Saddam Hussein) and 2006. There was little reliable data from analogous fields. Shaikan was, as Mr Kozel put it, “real frontier” exploration. Mr Rogers, Gulf’s expert, summarised the exploration risk as:

Even if oil is discovered in substantial quantities, there will be uncertainty about (i) the quantity of oil-in-place; (ii) the amount of oil that can be recovered; (iii) its quality; (iv) the ease of recovering it (and, thus, the rate of extraction) and the cost thereof; and (v) the prices that it might achieve.

Kurdistan could thus be looked at as “highly prospective” because there was a fair chance that oil would be discovered somewhere, and, if so, it might be in large quantities; but also high risk because any place chosen might turn out to be a dry hole (Footnote: ¹⁴). In September 2005 Mr Wempen emailed Azzat of Dabin (see para 116) to say that “everybody is scared of Iraq” and that, after talking to numerous oil companies “nobody is sure that there is any oil there”. Those companies included Ryder Scott (who were convinced there was no oil there), Statoil (who were not sure there was any there) and Delta. Gulf, on the other hand, at a presentation made to the KRG in July 2007 estimated the recoverable reserves at 244 million barrels.

Exploration in Shaikan has involved considerable technical difficulties. The rock was exceptionally difficult to drill and cost about three times as much as typical drilling costs. The oil in Shaikan, Akri-Bijeel and Sheikh Adi is heavy oil which requires higher pressure to drive it up the borehole and larger pipelines. The presence of toxic hydrogen sulphide has been a major factor. Access to drilling locations has been difficult as a result of which Gulf International has had to carry out more difficult directional drilling. The absence of available service contractors and equipment has increased prices and required the commissioning of a new rig in Houston. The absence of feeder pipelines means that, for oil fields other than Tawke, in order to access the Kirkuk-Ceyhan (Footnote: ¹⁵) pipeline, the only one currently available for oil exports, oil has had to be trucked to Faysh Khabur, close to the Turkish border. Bad weather has caused enforced shutdowns and the presence of minefields and unexploded ordnance has caused problems.

Whilst these difficulties are not unimportant they are likely to be capable of solution, albeit at a price.

Investing in oil exploration in Kurdistan involved significant political risks. Saddam Hussein was overthrown in April 2003. In May 2003 the Coalition Provisional Authority (“CPA”) was established and lasted until the end of June 2004. On 8 March 2004 the CPA “Law of Administration for the State of Iraq for the Transitional Period” came into force. The Law recognised the provinces of Dohuk, Erbil and Suleimaniyah as an autonomous region. On 15 October 2005 a new Constitution for Iraq was approved by referendum. It entered into force in 2006 on the formation of a government pursuant to it. Under it Iraqi Kurdistan was recognised as an autonomous region with the three provinces forming governorates, and the KRG became its regional government. By 2007 the Constitution was, therefore, only two years old and its durability uncertain.

The KRG claims that the Constitution gives it the right to control and make deals for oil produced by the region subject to sharing profits with the rest of Iraq. The Iraqi Federal Government, dominated by non-Kurds, disputes this. It takes the position that the PSCs awarded by the KRG are invalid. On 26 November 2007 Hussain al-Shahristani, the Federal Oil Minister, wrote to MOL, which had just signed the Shaikan and Akri-Bijeel PSCs, declaring the annulment of all the contracts recently signed with the KRG’s Ministry of Oil and Natural Resources.

The risk that the PSCs will be annulled has receded over the years; and is now unlikely, but still possible. In 2007 it was markedly more pronounced. The Federal Government threatened to blacklist any companies entering into PSCs with the KRG. This probably accounts for the absence of the larger international oil companies (“IOCs”) from participation in the Kurdistan region upstream sector in 2007. The US Government supported the Federal Government, taking the position that US companies should deal with the Federal Government and not the KRG in respect of petroleum matters. In July 2011 the Deputy Prime Minister of Iraq indicated that Hess would be excluded from licence activities in southern Iraq after it signed PSCs with the KRG. A number of companies, including Exxon Mobil, declined to participate in Kurdistan as a result of pressure from the Federal Government.

The dispute between the KRG and the Federal Government remains unresolved. As a result no Federal Petroleum Legislation has been agreed or enacted by the Iraq Council of Ministers or the Council of Representatives. When agreement is reached and a Federal Energy Law is passed, as will probably occur sometime, existing contracts may be challenged or reviewed, as in 2007 the Iraqi Oil Minister warned would happen, and such contracts might have to be renegotiated (as the price of the Federal Government approving the PSC), or they might be compulsorily altered. In my judgment, reached in 2013 in the light of the views of Mr Codd and Mr Park, the likelihood now (after hundreds of millions of dollars have been invested in oil in Kurdistan) is that any amendment required would be limited to a fairly modest reduction in the value of the contractors’ terms (e.g. royalty rates, profit oil percentages) – perhaps in the order of single figure percentages. But it is impossible to be certain; and the position in 2007 was less clear. Whilst annulment or major amendment was unlikely it was still a risk.

The Federal Government owns and controls (though its agency North Oil Company) the only currently available oil export pipeline, the Kirkuk-Ceyhan pipeline, whose use is governed by a treaty between Turkey and Iraq, and which passes through Kurdistan for a few kilometres at Faysh Khabur. As a result it has a monopoly over oil exports. Companies which entered into PSCs ran (and run) the risk that they would not have access to the pipeline and thus to the international oil market and might be limited to selling, at much lower prices, to the local market. By the time that Mr Gerstenlauer gave evidence in December 2012 Gulf, which had made minimal use of the pipeline, had done the preliminary design work, and was getting towards final construction design, for a 122 km pipeline with a capacity of about 400,000 barrels a day feeding from Shaikan into the existing Kirkuk-Ceyhan pipeline, was waiting for the go ahead; and expected construction to start in 2013. In May 2012 the KRG had also recently announced that it was planning a new 1 million barrel a day pipeline from Kurdistan to the Turkish border to reach the border by August 2012 with a second pipeline connecting to the Kirkuk-Ceyhan pipeline intended for 2014. Up until at least the time of Mr Gerstenlauer’s first statement Gulf had trucked the small amount of oil which it exported from limited production at the Shaikan-1 and Shaikan-3 wells to Faysh Khabur.

The Federal Government also has a monopoly on the marketing of official oil exports, which is carried out by the State Oil Marketing Organisation (“SOMO”). SOMO decides at what price it will sell oil that has passed down the pipeline and it collects all oil revenues. SOMO should then pay to the KRG the sale price less transportation costs. The KRG should then distribute the share due to the companies under the terms of their PSCs (some of it being a royalty to the KRG, some being cost oil, and some, to the extent that there are no costs to be paid, profit oil for the KRG and the other parties). In fact pending resolution of the Federal Oil and Revenue sharing laws SOMO has decided that the KRG shall be reimbursed a proportion of the revenues which it treats as cost oil, which is to go to the contractors to defray their costs. The value of Iraq’s total production of oil and gas is, under the Constitution, supposed to be shared between the different regions in proportion to their populations. Kurdistan’s proportion is 17% and, as I understood from Mr Codd, the KRG is waiting to receive it, although it has been paid more than cost oil from time to time. But most of the contractors have not yet received any profit oil. Receipt of this awaits resolution of the dispute with Baghdad or a new pipeline from Kurdistan to Turkey.

The oil companies are, thus, at risk that a dispute between the KRG and the Federal Government/SOMO cuts off or reduces oil revenues in which they are entitled to share. This risk is not theoretical. Oil exports began in May 2009 but were suspended by the KRG in September/October 2009 until February 2011 as a result of a dispute between the Federal Government and the KRG over the division of oil revenues. Exports were again suspended in April 2012 because the KRG did not receive its share of the revenues from SOMO for 10 months. Production had to be diverted to the local market. When payment was eventually made to the KRG it was said by the Federal Government to be for reimbursement of contractor costs. What the oil companies then received was just a lump sum. Exports were resumed from 1 August 2012, but on the basis, as Dr Hawrami made clear in a letter to the then current major exporters of oil, that this was only temporary pending payment of the substantial sums owed to the KRG from previous export periods.

The Kurdish people form part of a regional diaspora. There are significant Kurdish populations in Iraq, Turkey, Syria and Iran and significantly more Kurds outside Iraq than within it. Kurds in all these countries have, historically and to varying extents, argued for independence. Kurdistan (Footnote: ¹⁶) is bordered by Turkey and Iran which have sizeable Kurdish minorities and separatist movements; with an accompanying risk of instability in the region. A report by Control Risks prepared for Gulf dated 23 November 2007 outlined salient threats to Gulf’s operations in Erbil and Dohuk which included ongoing Turkish and Iranian military operations and external and internal Islamic extremist threats.

Kurdistan is, in general, safer than the rest of Iraq. In 2005 and 2006 Western visitors felt the need for armed protection and body armour, although in retrospect that may have been unduly cautious. On 7 April 2006 Mr Kozel sent Mr Wempen an article from the Times commenting on the insurgent attacks in and around Kirkuk. From 2007 onwards the position eased although personal security is still a concern. Gulf personnel stopped wearing bullet proof vests for visits after the first Erbil visit in June 2006. Others were more cautious. In 2008 the KRG Minister of State for the Interior reported in a KRG publication that there had not been a single attack on foreign business and civilian assets.

More recently the Kurdistan Region has been affected by intermittent security incidents, including explosions, the result of terrorist activity by the PKK, the Kurdish separatist group, which have ruptured the pipeline (most recently on two occasions in August 2012) and armed clashes between Turkish forces and PKK guerrillas along the border with Turkey, which has led to incursions by Turkish troops into Kurdistan.

There are, of course, other regions where the risks are similar in degree or worse. As Mr Gerstenlauer put it, Gulf had not “run into anything in Kurdistan that hasn’t been encountered in one or two other places in the world”.

In early 2003 war in Iraq was imminent. Mr Wempen saw the war, which he expected to be brief, as an investment opportunity because the private sector would play a leading role in post war economic recovery. He wanted to get in first. Kurdistan was of particular interest because of its untapped natural resources and pro-American population (protected for a decade by the US–led No-Fly Zone). He had friends in Washington who were involved in helping the Kurds and who had maintained close ties with them, and he knew members of the US military and intelligence community with connections in Kurdistan. He made plans with Jas Dhillon, managing director of Pivotal Ventures, a USC alumnus and venture capitalist for whom he had worked in 2002 and 2003 and who had been his mentor, and David Halpert, managing partner of the New York hedge fund Prince Street Capital Management, who was interested in working on a fund to rebuild Iraq. Mr Wempen’s idea was that he would travel to Iraq, be one of the first to meet the leaders of the new government when formed, and identify and develop opportunities; and that those two should produce or procure the necessary capital.

In March 2003 Excalibur made an application for financing to the Overseas Private Investment Corporation (“OPIC”), an agency of the US Government, in respect of a fund to be called “Excalibur 1” on the footing that Pivotal Ventures with Prince Street Capital would raise $ 100 million to be guaranteed by OPIC to launch the fund for investment in infrastructure and telecommunications projects in Iraq. As is apparent, Mr Wempen was aiming high. This fund did not get off the ground.

In May 2003 Mr Halpert suggested in an email to Eric Wempen that what Mr Wempen needed to do was to make some money on one deal, say $ 250 – 500,000, and use the proceeds as seed capital to start his business for the next few years. In an email to Mr Wempen himself he warned him not to take on too many different projects but to get one project done well. This was not a course which commended itself to Mr Wempen, who sought to pursue multiple projects.

On 13 March 2003 Mr Wempen flew to Ankara and met various Kurdish leaders from the Kurdistan Democratic Party (“KDP”) and the Patriotic Union of Kurdistan (“PUK”), the two political parties between whom the US had brokered a peace agreement in September 1998 and which were later, in 2004, to form the Democratic Patriotic Alliance of Kurdistan (“DPAK”) (Footnote: ¹⁷). They were there to meet Zalmay Khailizad, President Bush’s advisor on Iraq. Mr Wempen was invited by Mr Hoshyar Zabari, then the Speaker of the KDP and soon to be Foreign Minister of post war Iraq, to whom he had expressed a desire to be one of the first US businessmen to invest in Kurdistan, to attend a further meeting with him and senior representatives of the KDP in Erbil the following week.

On 20 March 2003 Operation Iraqi Freedom commenced. The Turkish border with Iraq was closed. Mr Wempen got into Kurdistan after a four day and night trek through the Alborz mountains with Kurdish smugglers and eventually reached Erbil, where Mr Zabari told him they would have to defer their discussion until Saddam Hussein had been got rid of, and that he should feel free to travel around. Mr Wempen set off with a contingent of Pesh Merga (Kurdish guerrillas) deputed to “look after” him and roamed relatively freely. On 9 April 2003 Baghdad fell. Mr Wempen travelled with the Pesh Merga to Kirkuk and Mosul and decided to stay in Baghdad where the PUK provided him with four Kurdish bodyguards. Excalibur was formed in the same month to develop investment opportunities in Iraq.

In Baghdad Mr Wempen established headquarters in the Ishtar Sheraton Hotel; met representatives of major companies seeking to do business in Iraq; and had discussions regarding investment opportunities. He assisted in establishing an Iraq branch of a US firm called Diligence to provide intelligence and security, and was acting Country Operations Officer, which involved visiting every corner of Iraq. In the Spring of 2004 he was hired by Occidental as a consultant and won for Excalibur, with an Iraqi partner, a CPA contract to conduct the National Economic Survey of Iraq. He also provided representation and marketing services for Qualcomm Corporation. He acted as a consultant for, or had links with, other companies.

Mr Wempen floated the idea of an Iraq Recovery Fund (“IRF”), which would form US majority owned project companies to invest in energy and infrastructure projects in Iraq. An early Executive Summary of the fund describes a large team of Iraqis and international investment professionals with members in Iraq and New York. The team included Mr Halpert and others at Prince Street Capital Management, the name of which appears on the first page. Most of those names were personal friends or business contacts. Different names appear in later versions. They had jobs of their own. None of them ever entered into any contractual commitments with the Fund or were paid, although they were prepared to come on board if Excalibur was successful. The target size of the Fund was $ 250 million and it was said to be interested in an extremely wide range of projects. Excalibur itself had no expertise in any of the areas concerned.

The IRF registered to apply to OPIC for political risk insurance. On 23 June 2004 it entered into a framework agreement with OPIC whereby OPIC set out the terms on which “it may” provide a letter of commitment for one or more contracts of insurance subject to approval by the OPIC investment committee. The agreement required numerous conditions to be satisfied. On 1 July 2004 the IRF made a further application to OPIC for political risk insurance, envisaging an initial investment of $ 50 million, with $ 25 million to follow, in respect of the construction of a ready mix cement plant. On 27 July 2004 OPIC agreed to reserve $ 50 million capacity to issue contracts of insurance until 30 September 2004 (extendable at OPIC’s discretion and subject to renegotiation of the terms) subject to numerous conditions precedent. Nothing ever came of this. No application was ever made in respect of oil exploration.

Mr Wempen used to pray the OPIC commitment in aid in his search for funding for projects. In reality there was no binding commitment at all. Nor would political risk insurance provide any cover in respect of the most significant risk for an oil exploration project – the loss or absence of reserves.

The idea of raising money through a fund surfaced and resurfaced from time to time as Mr Wempen sought to raise finance for Excalibur’s participation in the Kurdistan oil exploration venture. In the event the IRF never raised any money for any specific project nor was any money ever invested in it. Nor did anything come of another fund intended to focus on oil and gas ventures, called Thames Chesapeake LLP, which was to be a Cayman Islands limited partnership, whose investment manager (the “Manager”) was to be a Cayman company, which was to be owned by Excalibur and Fuel Handling Systems, a company owned by Mr Iain Kinnear (see para 129). The Manager was to own the General Partner, another Cayman company.

In April/May 2004 Mr Wempen established the Iraq branch of the US Chamber of Commerce, recruiting the founding members. He maintained contacts with various businessmen, US diplomats and representatives of the CPA. He made proposals for independent private power plants to the Ministry of Electricity with the idea that it should form an anchor project for the IRF with Excalibur as fund manager.

Between 2003 and 2005, Excalibur entered into numerous agreements with clients and consultants on projects including petroleum development initiatives, power projects, building material projects, logistical and transportation projects and communications initiatives. Excalibur was also involved in initiatives to supply commodities to Iraq such as oil, grain and sugar.

An example of Mr Wempen’s “positive” approach was his proposal to supply 200MW of power to the Iraqi Ministry of Electricity. On 1 September 2004 Excalibur entered into a non-binding memorandum of understanding with Kellogg, Brown and Root (“KBR”) to work on a “possible strategic partnership” and develop commercial ventures in Iraq, which were to be the subject of separate agreements once an opportunity had been identified. On 31 October 2004 he wrote a letter on IRF paper on behalf of Excalibur and the IRF to the Ministry with the proposal. In his letter he said that the IRF, which was described as a “financing vehicle designed to provide US Government backing and insurance”, “will finance this project” and would insure the project against political risks; that Excalibur was managing “this unique US Government insured financing vehicle”; and that KBR was the “lead EPC contractor”. In fact the IRF had no funding or commitment to funding and there was no firm commitment from OPIC to the IRF to insure. There was also no contract between Excalibur and KBR, only an expressly non contractual memorandum of understanding providing for evaluation of opportunities for a possible strategic partnership and development of ventures in Iraq where KBR would “potentially conduct lead contractor functions”.

Mr Wempen’s attitude in respect of this and other instances of misleading information was to dispute, or not to concede, that what he wrote was misleading, and to observe that it was necessary to get the deal first (“you need a deal to raise a dollar”), after which financing and insurance would follow. The letter was saying what was going to happen. He claimed that the Minister knew that Excalibur had nothing in the bank. I doubt it.

Towards the end of 2004 Mr Wempen began to focus on Kurdistan and realized that it was necessary to have a local partner with strong local ties. On 16 December 2004 Excalibur entered into a Memorandum of Understanding (“MOU”) with the Dabin Group (“Dabin”). Dabin was a Kurdish investment development company based in Erbil focused on working with foreign enterprises to develop investment projects in Kurdistan. Khaled (Azzat) Othman (Spindari) (hereafter “Azzat”) was its VP for business development. Izeddin Berwari was its President. He was a retired member of the KRG and a continuing senior member of the KDP. At the time Dabin’s focus was on construction and real estate development but it was interested in expanding into infrastructure and petroleum projects. Dabin viewed the IRF as something that would enable them to achieve this and Mr Wempen viewed Dabin as a partner who would negotiate approval of the IRF’s projects.

Under the MOU Excalibur and Dabin agreed to use their best efforts to raise financing for co-managed funds with pre-planned or pre-approved projects, several of which Excalibur was said to have identified, the intent being that the projects would be financed through the OPIC-insured IRF.

On 4 January 2005, Excalibur (described as in the business of fund management) signed a services agreement with Dabin (“the Dabin Agreement”) under the terms of which Dabin agreed to provide general consulting and fundraising services including: “identifying, providing introductions to, and negotiating with appropriate Kurdish and national Iraqi government and private entities in support of [Excalibur’s] business activities”. Dabin was also to be responsible for obtaining all licences required for operations in Kurdistan, providing labour and project management services as appropriate on a project by project basis under separate contract. Excalibur was to pay Dabin 10% of the profits from commercial activities it was involved in, including “10% of the carried interest or equity [Excalibur] owns or is entitled to on a project by project basis”.

On 13 March 2005 Mr Wempen received a letter from Nichervan Barzani, the Prime Minister of the KDP-controlled region of Kurdistan (and in 2006 of the unified KRG), with whom Dabin appear to have had connections, inviting him (on behalf of Excalibur) to Erbil to discuss investment opportunities. The KRG was interested in attracting foreign, particularly American, capital.

In May 2005 Mr Wempen travelled to Erbil where on 17 May 2005 he met Prime Minister Barzani, who received his ideas and the Iraq Recovery Fund presentation positively. Mr Barzani referred Mr Wempen to Dr George Yacu (“Dr Yacu”), his senior oil and gas advisor. Dr Yacu was Vice President of the Oil & Gas Establishment, set up by Law No 38 of the Kurdish National Assembly. Mr Wempen had several meetings with Dr Yacu, who suggested that the best way for Excalibur to proceed would be to bring an independent oil company to Kurdistan to operate a petroleum block on its behalf with whom it could co-invest during exploration and development. He made it clear that whatever oil company was brought in would need to be a US company because the KRG wished to be seen to be awarding concessions to US companies. The KRG wanted a US led consortium (a) because it was friendly towards the US and grateful for its assistance; and (b) because the presence of US interests in Kurdistan would be likely to provide some form of protection against hostile incursions, including from Baghdad itself (Footnote: ¹⁸).

Mr Wempen’s other investment proposals were also positively received and the Prime Minister arranged for his Ministers of Electricity, Energy & Industry and Communications to meet with Mr Wempen also. Mr Wempen discussed with them proposals to build an Excalibur/Dabin turnkey cement plant; to build, own and operate a 200MW power plant and a refinery; and to build a regional data network for dual use by security forces and the general public in the 450MHz and 1900 MHz range in Kurdistan.

An Excalibur Corporate Profile dated June 2005 states that Excalibur was the petroleum representative of the Shaw Group and a development partner of Halliburton Corporation and that it could “readily access world class exploration and production teams through its proprietary network of petroleum professionals and private equity sources in the US and worldwide”. In fact Excalibur had no such network. At best Excalibur had some expectation of support from Halliburton, which seems to have been derived from Mr Jim Kitterman, the deputy country manager for Iraq of KBR and a founder of Peregrine International, a project management and consultancy firm in Kuwait, and hoped to be able to access Halliburton’s team of professionals. According to Mr Wempen “its proprietary network” was (implausibly) referring to Halliburton’s network.

The Profile described Excalibur as “managed by highly qualified professionals who bring in rich and diverse experience in managing investments…”. In fact Excalibur was managed by Mr Wempen. The professionals referred to were those he hoped to bring in and who were listed as members of the team. One of them was Mr Farrell (see para 125 below) who on some date between 11 and 15 June gave Mr Wempen some forthright advice that he needed “one whole hell of a lot more help”, that if Excalibur was interested in pursuing an oil company and a cement project it needed to be prepared to commit $ 500-700,000 over the next 6 months and that “Excalibur has enjoyed 5 free months looking up my dress, it is now time to get serious – or not”. He invited Mr Wempen to come to Ankara with his cheque book. Mr Farrell then faded from the picture.

In the Profile Mr Wempen was said to have 15 years of international experience in private equity, business consulting and government. He did not. It is likely either that a previous version of this document was shown to Dr Yacu in May or that the pitch to him was in similar terms.

On 11 June 2005 Mr Wempen wrote to Dr Yacu on behalf of Excalibur to request an oil concession or distinct geological formation in Kurdistan for immediate exploration, preferably in an area which already had some preliminary technical data recorded “by your office”. The letter is another example of Mr Wempen’s misleading salesmanship. It said that “we are prepared to explore for oil in Kurdistan” when Excalibur had no present ability to do so and had not secured a US partner as Dr Yacu had said was required. Mr Wempen referred to Excalibur’s board of directors and said that Excalibur had over 30 years in the oil business, and included the former President of Dorchester Gas company and Vice President of Atlantic Richfield Company (i.e. Mr Farrell). In fact Excalibur (a) had no board of directors (there is no reason to believe that Dr Yacu knew that); (b) was founded in April 2003; and (c) had never been in the oil business. Mr Farrell was not part of Excalibur. Mr Wempen referred to “our team” having exploration experience on all continents and in 30 countries. Whatever might have been the position of the individuals whom Mr Wempen wanted to lend their names to the IRF or Excalibur, these statements were not true for Excalibur itself.

On 11 July 2005 Mr Wempen received four letters from a KRG Minister of State, expressing interest in each of the proposals made during the May 2005 visit and inviting Excalibur to return to Kurdistan in order that the KRG might learn and understand in depth Excalibur’s approach. The letter in respect of petroleum exploration asked for relevant data and information indicating “the financial capabilities, technical expertise, and petroleum experience of your investment firms, affiliate companies and organizations”. None of these letters received a reply.

Mr Wempen decided that the best way forward was to concentrate in the first instance on the oil and gas proposal as the anchor investment for the IRF. An IRF term sheet dated 15 July 2005 envisaged a $ 250 million placement with an annual return of 25-35%. The term sheet stated that Excalibur (the Fund’s “Local Adviser”) had been “assigned a contract to provide finance and insurance for a BOO electricity plant from a development partner that was awarded such a contract” by the Iraqi Ministry of Electricity. This was not true.

Mr Wempen returned to Washington, where he set up an office, and began to seek a partner. Occidental Petroleum told him that the time was not right and they preferred to concentrate in the south of Iraq. Various oil companies and sources of finance in Geneva and London were not interested. Mr Duane Gaither, a Texan, was CEO of two oil companies. These were Atlas Petroleum Exploration Worldwide Ltd, an international petroleum company with an offshore exploration block in Tunisia, and Gaither Petroleum Corporation, which was focused on domestic onshore US exploration and development in Texas and Louisiana. Mr Wempen thought they would be a good package to help him. Mr Gaither showed some interest but a trip arranged for him to meet Dr Yacu in Erbil was cancelled by him because of his other commitments.

In 2003 Mr Wempen had met Mr Iain Kinnear (“Mr Kinnear”) in Kuwait. Mr Kinnear (who has since died) owned a fuel distribution business named Fuel Handling Systems and had contacts in the oil industry. He did not have oil exploration or production experience. They had kept in touch, communicating opportunities which might be of interest. On 3 November 2005 Mr Wempen told Mr Kinnear that he wanted him as an oilfield services partner in Iraq and, when Mr Kinnear expressed interest, told him that Excalibur intended to assist with “mature field extraction and pipeline and oilfield infrastructure construction/upgrades” which Mr Kinnear understood to cover purchasing and specifying equipment for oil extraction and pipelines.

On 2 December 2005, OPIC registered Excalibur for a $2 billion oil refinery project, for political risk insurance. The letter made clear that “This registration does not constitute a commitment by OPIC to provide insurance for this project.” (Footnote: ¹⁹). Excalibur could apply for insurance so long as the registration remained in effect. It was initially valid over a period of 2 years. The letter also said that OPIC only offered insurance after investors had investigated the possibility of private political risk insurance with at least two insurers and insurance was not available on terms sufficient to make the investment viable. Excalibur never investigated such possibility other than to contact AIG and discover that they did not have much appetite for it.

On 6 December 2005, OPIC acknowledged the IRF’s interest (in relation to its application in July 2004) in obtaining OPIC political risk insurance for any investment in the IRF.

Mr Kinnear approached Mr Al-Qabandi, a founding shareholder of Gulf LLC and Gulf’s Vice President for business development, with whom he had a personal but not a business relationship. On 15 December 2005 Mr Kinnear emailed Mr Wempen to tell him that he had found a “US/Kuwaiti/Algerian company with private money sources …, street credibility and a proven track record” which he believed would meet Mr Wempen’s criteria. On 16 December 2005 Mr Wempen replied, after checking the Gulf website, to point out that they were not a US company adding “[Well] let’s see what we can do”. He spoke with Mr Al-Qabandi on the same day. In his first witness statement of 13 April 2012 he said that Mr Al-Qabandi had told him that Mr Kozel had his own family owned oil company, Texas, and that Excalibur could work with Texas in partnership with Gulf. When he came to give evidence Mr Wempen had no independent recollection of this call.

It is unlikely that Mr Al-Qabandi gave anything approaching a commitment as opposed to suggesting a possibility. Mr Wempen had not yet met Mr Kozel, who would be the immediate person to make a decision about the prospect of either Texas or Gulf joining up with Excalibur. Mr Al-Qabandi was Gulf’s business development director and his role was to pass things on, not to make decisions about what Gulf, let alone Texas, would participate in. The likelihood is – as Mr Kozel later understood from Mr Al-Qabandi – that Mr Kinnear had thought that Gulf was US owned and had approached Mr Al-Qabandi on that footing. When it became apparent that Mr Wempen needed a US company, Mr Al-Qabandi told him of Mr Kozel’s involvement with Texas and may well have discussed the possibility of involving both Texas and Gulf.

Mr Al-Qabandi asked Mr Kozel to meet Mr Wempen and Mr Kozel invited him to a meeting in Tampa, Florida.

The meeting took place on 22 December 2005 at a restaurant over a 1½ hour lunch. Mr Wempen gave Mr Kozel an account of his exploits in Kurdistan and the several projects for which he said he was bidding which were said to be complementary.

According to Mr Kozel, Mr Wempen told him that there was an opportunity to acquire a licence in respect of the Taq Taq field, where oil had already been discovered (i.e. a proven field). He said that Excalibur needed an American flag oil company to operate the licence because that is what the Kurdish authorities required and was the only way in which OPIC insurance could be obtained. Mr Wempen said that Excalibur already had an institutional backer in place in the form of UBS. He wanted Texas to enter into a joint venture with Excalibur and for Excalibur to have at least 50% of the contract. He originally asked for 80% or something like it on the footing that Excalibur had UBS as a backer. Mr Kozel said he would only be interested if Texas was the operator and had at least 51% of the equity, pointing out that, however big the size of their backer, Excalibur was inviting Texas to invest millions of dollars without itself having the necessary experience or expertise. Mr Wempen understood the difference between Texas and Gulf, which Mr Kozel explained to him. Mr Kozel said that, since it was only Texas that was a US company, which is what the KRG required and Mr Wempen was looking for, Mr Kozel was, for the purpose of any deal, representing Texas. The possibility of Gulf having the chance to participate at a later stage was discussed (Footnote: ²⁰).

According to Mr Wempen, he said that the KRG wanted a US company to lead the consortium and that that would help them to obtain OPIC insurance. He raised the possibility of using Texas to lead as the consortium’s named operator but with Gulf doing all the work. He did not say he had UBS backing (but that Excalibur was “perfectly capable of acquiring financial backing”). Nor did he offer the prospect of an interest in Taq Taq because it was already allocated. Mr Kozel himself may have mentioned Taq Taq. (In support of this he refers to the fact that a map sent to Mr Kozel after the meeting features two marked up exploration area which did not include Taq Taq). The upshot of the meeting was that it was agreed that both Texas and Gulf would be part of a consortium to bid for blocks; that the involvement of Texas was to be essentially “cosmetic” (Footnote: ²¹), with Gulf being the “real partner” and doing all the work. There would be a 50/50 split as between Excalibur and Texas/Gulf with the precise split as between Texas and Gulf being resolved at a later date. Mr Kozel made it clear he could deliver both companies.

In the absence of any note or record it is not easy to determine exactly what was said at a meeting attended only by Mr Wempen and Mr Kozel and in respect of which Mr Kinnear and Mr Al-Qabandi’s subsequent understanding was second hand.

In my judgment the likelihood is that the discussion was broadly in the form described by Mr Kozel as summarised in para 136 above. I prefer his evidence which is supported by the following considerations.

The KRG wanted a US oil company to operate any concession, as Dr Yacu had said; and OPIC would only insure a consortium if it was US majority owned, as Mr Wempen understood. I reject the suggestion made by Mr Wempen in evidence that he had in mind at this meeting obtaining some form of partial OPIC insurance, whereby Texas or Excalibur might be insured for their minority interest. If the deal was one which Mr Kozel had understood then to be available to a non-American company such as Gulf, he would, as he realised, have had to offer it to Gulf.

Mr Wempen’s evidence was that he would not have considered presenting to the KRG a consortium of Texas and Excalibur alone. In his witness statement he said that Texas did not have the necessary financial capability or technical knowledge for Kurdistan petroleum operations although in his oral evidence he acknowledged the technical expertise of the “Keystone companies”. I do not think it likely that at this stage Excalibur would have been reluctant to introduce Texas, a US oil company, to the KRG, which was looking for one, or that he knew enough about Texas to take the view that it lacked the necessary capabilities. In fact it had considerable experience in the conduct of oil and gas operations. The suggestion that Texas’ participation was intended to be cosmetic (thus masking the reality from someone) is not easy to square with Mr Wempen’s repeated insistence that the KRG and the US authorities knew everything about the Excalibur/Texas/Gulf consortium.

Mr Kozel would not have been content for Texas not to be an operator with at least 51% (a majority share for the operator being standard in the industry). Mr Kozel is likely to have told Mr Wempen as much. He was, also, understandably unsure of Excalibur’s ability to shoulder as much as 50% of the obligations and is likely to have said so.

As to UBS backing, Excalibur points to the fact that Mr Eric Wempen did not start at UBS until the summer of 2006 and that in 2005 Mr Wempen had had (according to his second witness statement) no dealings with UBS or any connections there. The likelihood, however, is that Mr Wempen either said or implied that he had financial backing from (or including) UBS and referred to that in support of his claim to an 80% share. He is highly likely to have wished to establish his financial credentials and he had a tendency to exaggerate Excalibur’s financial backing when talking to third parties (Footnote: ²²). In July 2003 Eric Wempen had wanted Mr Jon Paul Javellana, a Wempen family friend and a Vice President – Investments with UBS Financial Services in California, to start a security business with the Wempens in Iraq. On 7 October 2003 Mr Wempen informed a Mr Haider Hamoudi, from whom he wanted assistance in respect of private placements for Iraqi companies, that “My firm is working with UBS Warburg and KPMG”. This was untrue. Excalibur had no work at the time with UBS or KPMG (Footnote: ²³) (which was where Eric then worked), although Mr Javellana might have been interested in any deals which Excalibur came up with. On 11 October 2003 Mr Wempen asked Mr Javellana whether it would be possible to “package a private equity deal under the UBS name...”. On 27 October 2003 he complained to his brother about Mr Javellana’s failure to get back to him in relation to UBS backing.

It is Mr Wempen who is likely to have made reference to Taq Taq. Mr Kozel knew little about Kurdistan and the name Taq Taq meant nothing to him at this stage. Mr Wempen was hazy on the detail too (Mr Kozel recalled that he did not know its acreage). It is possible that there was a misunderstanding on Mr Wempen’s part because he had thought that there was a prospect of obtaining a licence in respect of Taq Taq, when there was not. Whether or not that is so, I do not think that Mr Kozel has simply made up the idea that Taq Taq was mentioned by Mr Wempen. Mr Kozel’s account is corroborated by his brother Robert who recalls that when he discussed the position with Mr Kozel in January 2006 it was Taq Taq of which Mr Kozel spoke as a field where there was an opportunity to obtain a licence – the unfamiliar name being a reason for his recollecting it.

Mr Wempen handed over an Executive Summary of the IRF for which Kurdistan was intended to be the anchor deal. The summary referred to the fund being led by an outstanding team of Iraqis and international investment professionals with members in Iraq, Washington DC and California. The team members were now said to be Mr Wempen, Jaymie Durnan, John Balfe, Jas Dhillon, Imad Jonaby, Ronald Parks, and Eric Wempen. The Summary was calculated to suggest that Excalibur had this team of financial and local experts on board. In fact Excalibur had no contractual links with any of them. Mr Kozel was not to know that: he took Mr Wempen at his word in relation to what he was saying about UBS and the IRF.

On 23 December 2005, Mr Eric Wempen, then working for Baker & McKenzie in California, sent Mr Kozel a draft joint venture agreement dated 26 December 2005. In the accompanying email the draft was described as between “Excalibur and Gulf Keystone”. Mr Eric Wempen said that Mr Wempen had requested that he forward the draft and described himself as Excalibur’s counsel and said “Please feel free to make any proposed changes or alterations to the agreement”. This was the only direct communication (whether in writing or orally) between him and Mr Kozel.

The draft is expressed to be between (i) Excalibur and (ii) “Texas Keystone/Gulf Keystone LTD, a limited liability company organised and existing under the laws of the state of ----------- of the United States of America and of Bermuda, respectively (Keystone)”. It thus appears to treat Texas and Gulf as alternatives since, in addition to the use of “/”, it refers to a single company (albeit one apparently incorporated in two different jurisdictions). But this may have been intended to signify that the counterparty could be either Texas or Gulf or both (albeit “and/or” would have been clearer for the latter). The signature block provided for execution by Mr Wempen for Excalibur and for execution on behalf of Keystone Investment Company (which does not exist and was presumably intended to be some special purpose vehicle). The first two recitals recorded that the Parties (Excalibur and Keystone) wished to collaborate to pursue and ultimately prepare bids to develop petroleum blocks in Iraqi Kurdistan and, in the event that Consortium Bids were successful, wished to develop and sell petroleum resulting therefrom through a joint venture to be established between the Parties. These are described as the “Transactions”. The third recital recorded that the Parties wished to memorialise in the Agreement “their preliminary understanding of the principal terms of the Transactions”.

Clause 2 provided for the parties to act in consortium to submit Consortium Bids to the National Owner but that before a Consortium Bid was submitted the Parties should enter into a “Comprehensive Agreement” setting out in greater detail their rights and obligations in conjunction with the preparation and submission of the bid. Clause 3 provided that, after the Parties had submitted the Consortium Bid, they should as between themselves be jointly bound to the National Owner by its provisions. Clause 4 recorded the Parties’ agreement that the Comprehensive Agreement was to be performed through a US joint venture company to be established between the Parties if and when it became apparent that the Consortium Bid would be successful, with a 50/50 split of profit interests or share capital as between Excalibur and Keystone.

The draft is, thus, something of a muddle so far as the parties are concerned, and the agreement contained in it is inchoate. It contemplates the making of a further Comprehensive Agreement before the making of a bid. If the bid was successful the Parties were as between themselves to be jointly bound to the National Owner (which would involve them being parties to the contract with the National Owner resulting from the successful bid). The agreement was only a joint venture agreement in the sense that it contemplated the establishment of a jointly owned company which, once the bid was successful, would carry out the development and sale of petroleum resulting therefrom.

The agreement was despatched by Eric Wempen within a matter of hours of Mr Wempen’s lunch with Mr Kozel after a short telephone conversation between the two brothers. It was based on a standard joint venture agreement which Eric Wempen had developed for Excalibur. Eric Wempen said that he filled it in with a description of the counterparty provided by Mr Wempen but what exactly that description was (it may have been simply “Texas/GulfKeystone”) is, and may at the time have been, unclear. Mr Kozel ignored the draft, which he had not been expecting, because the question of structure had not been discussed and he had neither the time nor (on the day before Christmas Eve) the inclination to address or correct it. He would respond in his own time.

Mr Wempen was and remained in a great hurry to have something signed because he feared that, without it, he might miss out on the opportunity. He was now, as on other occasions, extremely impatient. He thought that Mr Kozel had got cold feet when in reality he was simply busy with his family in Florida over Christmas. He was also awaiting the birth of his second daughter, who was born on 16 January 2006. Mr Wempen may have been, or felt himself to have been, under pressure from Kurdistan via Dabin to come up with a proposal, especially as the scheduled visit of Mr Gaither had been cancelled. He reckoned that he would need to pay another visit to Erbil.

On 5 January 2006 Mr Kinnear emailed Mr Wempen to tell him that his corporate business partners were not going to run with northern Iraq (they were said to be “too busy looking at risk”) but that he would run alone without them. In the same email chain Mr Kinnear said that he was “Waiting on an answer from Dubai on what will happen but its on track. Todd has to ask others”. What exactly that refers to is unclear (Gulf had no business in Dubai and Sultan Al Qassimi came from Sharjah and Ras Al-Khaimah): but it may be a reference to Mr Kozel having to clear matters with Gulf before proceeding further on behalf of Texas (see para 157 below).

On 6 January Mr Kinnear sent an email to Mr Kozel asking for an update on the “Kurdistan project”. He understood that there would be a meeting with the Kurdish minister the following week and he wanted to know whether Mr Kozel would be attending or whether it was just Mr Wempen and his “team” alone. If it was the latter, Excalibur would, he noted, struggle as it had “no track record in this Industry”. On the same day Mr Wempen told Mr Kinnear that if Mr Kozel did not come through the next day the two of them would have to go to Erbil without him “and present our financing letters at least”. Excalibur had no such letters. Mr Wempen was making out to Mr Kinnear, as he continued to do thereafter, that he had (or would have) available sources of finance.

On 8 January 2006 Mr Kinnear emailed Mr Al-Qabandi expressing concern that the project would fall through and asking if it was of real interest to Gulf. He referred to the need for a “white face” (by which he meant a non-Arab) to present the case to the Kurdish Government. Mr Al-Qabandi replied:

Thereafter Mr Wempen sent several emails desperately chasing for a signed contract.

In early January Mr Kozel telephoned each of his father and brothers, being the other members of the Texas board, to inform them of the opportunity being presented by Excalibur for Excalibur and Texas to collaborate to bid for oil projects in Kurdistan. He had several discussions with Robert Kozel. Robert Kozel recalled Mr Kozel saying in the initial conversation that he had met Mr Wempen, through the introduction of Mr Al-Qabandi. Mr Wempen, he was told, claimed to have political and business contacts in Kurdistan and said that there were opportunities for American companies to be involved. Mr Kozel wanted to know whether the other Kozels were interested. Robert Kozel did not recall Mr Kozel mentioning Gulf in the first conversation but there were subsequent discussions about including Gulf and reference to that possibility was added to the Collaboration Agreement. He did recall mention of Taq Taq. Mr Kozel’s father and brothers thought, as did he, that the opportunity was worth looking into and were content for him to conduct further discussions with Mr Wempen on Texas’ behalf. They wanted to know the initial cost which Mr Kozel estimated at a few hundred thousand dollars.

Insofar as Kurdistan was an opportunity available to Gulf (Mr Kozel’s probably correct understanding was that since an American flag company was needed, it was not one then open to Gulf), there was a potential conflict of interest between Texas and Gulf. Mr Kozel who was on the board of both was conscious of this conflict, which was later to become marked. In the New Year he had informal conversations with Mr Roger Parsons, the non-executive Chairman, and Mr Bill Guest, the President, of Gulf to whom on Tuesday 10 January 2006 (Footnote: ²⁴) he sent a copy of the draft joint venture agreement, about the Kurdish opportunity. He described it as a Texas deal. At this stage Mr Parsons and Mr Guest were not keen for Gulf to become involved in Kurdistan on top of its involvement in Algeria. This would add another exploration project in a politically unstable area when Gulf was looking towards expanding in less risky areas and away from exploration risks. But Mr Guest wanted Gulf to have the opportunity to participate at a later date.

Mr Kozel did not want a joint venture agreement, from which Texas might not be able to withdraw or which might commit it to a bid. The rest of the Texas board had similar concerns. Instead he preferred a joint bidding agreement which would give Texas the freedom to bid or not as it wished.

At this stage Mr Kozel was still in Florida, awaiting the birth of his daughter. Mr Guest in London offered to help him out in relation to Kurdistan and, to that end, approached Ms Sandy Shaw of McGrigors, Gulf’s lawyers, for a draft agreement. That firm had the relevant experience and expertise for dealing with a joint bid agreement. Texas did not have experience with a joint bidding agreement. McGrigors did the drafting and Texas paid the bill. The invoice ultimately issued was directed to Texas (at Gulf’s London address). The itemised description of the items of work charged for referred to the drafting as having been “Work on Gulfkeystone Excalibur project”. That does not mean that Gulf was intending to be bound, as opposed to potentially interested, in the Collaboration Agreement. Some of the items for which Texas paid were Gulf Algeria matters, which Texas paid in error.

On 11 January 2006, Bill Guest emailed Mr Kozel in response to Mr Kozel’s request for him to contact Sandy Shaw and get a draft of a “joa or kc (Footnote: ²⁵)”. He wanted to discuss the equity levels and operating principles that “you and Texas (sic) ... are after”. Mr Kozel explained to him in a telephone conversation the need for an American flag company for the Taq Taq opportunity and told him that Gulf could have the opportunity to be part of the deal if that arose, but that that was not possible at this stage.

On the same day Mr Kozel emailed Mr Wempen to say that he had attempted, unsuccessfully, to send a “Doc Package” on the afternoon of Monday, 9 January; and that he was going to send something that afternoon and wanted approval of a cover letter. He also said that he had brought Mr Guest in on the whole deal on Monday that he was now up to speed and would be contributing. This was a reference to his assistance in getting a draft agreement out. What exactly Mr Kozel had tried to send on 9 January is unclear. Mr Kozel recalled that Mr Wempen had wanted to see the type of information that needed to be submitted by a bidder to the KRG because he did not know what was needed and he speculated that it might be a package of such information.

Also on the same day Mr Kozel’s assistant at Texas in Pittsburgh, Mr Steve Goda, sent a package of documents to Mr Wempen. It included a draft introductory cover letter from Texas (which Mr Kozel had previously sent to Mr Goda) for presentation to the KRG. Mr Kozel had told Mr Wempen in the email referred to in the previous paragraph that Mr Wempen’s approval of it was required and in a later email “Letter needs your input. No poetic license”.

The draft was based on one of Gulf’s submissions for an Algerian licence. Texas was described as the company exploring the opportunity of participating in oil and gas exploration. The letter said that it included a profile for Gulf, and explained how Mr Kozel had co-founded Gulf and about its activities in Algeria. The purpose of this was in order to bolster the KRG’s confidence in Texas because of Mr Kozel’s experience. A similar exercise but with Texas and Gulf reversed was used when Gulf introduced itself to the Algerian authorities. The letter also said that it submitted qualification documents for the “Texas Keystone group of associated companies”. When the letter was eventually signed on 17 February 2006 these were: (i) a document describing Texas’ corporate structure, (ii) a Texas interim presentation and (iii) Gulf’s Annual Report. The package also included a number of documents relating both to Texas and Gulf.

On 12 January 2006 Mr Wempen pressed Mr Kozel to sign the draft joint venture agreement. It was never signed by either Texas or Gulf despite further urgings on 12, 13, 17, 19 and 20 January from Mr Wempen to Mr Goda, Ms Margaret Berry, who was Mr Kozel’s assistant, and Mr Kozel.

On 24 January 2006, Mr Guest of Gulf emailed Mr Kozel, in an email whose subject was “joint bidding agreement”, to suggest that, on the assumption that the opportunity “gets past first base”, the two companies should sit down and “conceptualise the commercial/structural H[eads] O[f] A[greement] that [Gulf] may need to put in place with [Texas]”. This email recognises that Gulf was not then part of the deal.

On 25 January 2006, Mr Goda of Texas sent Mr Wempen a copy of a (fourth) draft joint bidding agreement between Excalibur and Texas under cover of a letter to Mr Wempen on Texas notepaper. The signatory of the letter was expressed to be Mr Kozel. It was signed by Mr Goda in Mr Kozel’s name. It described the enclosed agreement as a “Joint Bidding Agreement” and read:

Even if the previous proposals had been for an agreement between Excalibur and both Texas and Gulf this letter was a counter offer from Texas alone. It was obviously referring to the shareholders and directors of Texas. Mr Wempen suggested in his oral evidence that the reference to shareholders was to Gulf shareholders. It cannot have been. Gulf was publicly quoted and had thousands of shareholders, to whom Mr Kozel could not possibly have spoken. The attached agreement, whose parties were expressed to be Excalibur and Texas, proposed a consortium in which the interests were split 80% Texas and 20% Excalibur. It made no mention of Gulf.

Eric Wempen’s evidence was that Mr Wempen forwarded the letter and agreement to him and he and his brother discussed it. No documentary evidence of the forwarding or of the discussion has been produced. Mr Wempen said that if they had found an objectionable term they would have let their concerns be known and that he probably noticed that Gulf was not mentioned – he could scarcely have failed to do so – and that he discussed this issue with his brother. Mr Wempen did not consider the absence of Gulf to be a problem; nor (he said) did his brother, who did not suggest that Gulf needed to be a signatory. Eric Wempen’s evidence was that he reviewed the documents (for an hour or an hour and a half) and concentrated his review on the transfer provisions. At this stage these gave Texas the right to assign part but not all of its consortium interest to an Associate, which meant any third party.

Mr Wempen telephoned Mr Kozel to ask about the change from a 50/50 to an 80/20 split. Mr Wempen’s evidence was, initially, that Mr Kozel referred to a Gulf Board meeting in Geneva, which Mr Wempen later corrected to Zurich. The Gulf Board never met in Geneva and had not met anywhere since 10 December. The likelihood is that, if Mr Kozel said that there had been a board meeting, he meant Texas. The Texas board had discussed the proposal.

On 27 January 2006, Mr Wempen replied to Mr Kozel that “the terms of the agreement you sent through your Texas Keystone affiliate” (Footnote: ²⁶) were acceptable, but that Excalibur wanted to negotiate the percentages allocated to the parties. The email stated that “our financial backers” had been offering their support based on the previous 50/50 split. (Mr Wempen said this was a reference to Mr Halpert of Prince Street Capital and Mr Talal Al Ghalib of Gulf Finance House who “might in time” finance Excalibur’s project: even if this is true they were not then backers, let alone persons who had agreed to back it on the basis of a particular split). The email made a counter-offer of 60%/40% “after consultation with our financing team”. This was one of many messages which conveyed the misleading impression of the existence of actual financial backers and a retained or operating team of financiers or financial advisers. Mr Wempen suggested in this and other instances that Mr Kozel understood the true position. He did not; and, if he had done so, Mr Wempen would not have spoken in those terms. In fact Mr Kozel reported to his brother on a number of occasions that Mr Wempen had backers.

On 30 January 2006 Mr Wempen emailed Mr Kozel to ask for confirmation of the 60/40 counteroffer saying that he assumed “your board members in the Gulf have examined it”. The assumption was misplaced and probably arose because Mr Wempen misinterpreted the board which Mr Kozel had referred to.

On 2 February 2006, Steve Goda of Texas sent a message to Mr Wempen from Mr Kozel. It read: “The Shareholders and Directors have reviewed the counter-offer and come back to you with a proposal of 70% Texas Keystone – 30% Excalibur Ventures…Best regards Todd.F.Kozel President.” This was plainly a reference to the shareholders and directors of Texas. Mr Wempen said it did not cross his mind that this was a counter offer from Texas alone, but it plainly was. Unless Mr Wempen gave it no proper thought (which is possible) he must have realised that it was (Footnote: ²⁷).

On Friday 3 February 2006, this proposal was accepted by Mr Wempen (“We accept”) for Excalibur. On 6 February 2006, he emailed Mr Goda, with a copy to Mr Guest, referring to the 2 February 2006 email and saying “Per our preliminary response on … 3 February.. we accept the terms”. He referred to the latter email as containing a proposal of a 70/30 “Gulf/Excalibur” split. This was a mis-description. The 2 February 2006 email, accepted on 3 February 2006, had had no mention of Gulf.

On 13 February 2006, Mr Wempen sent Mr Kozel a signed copy of the agreement dated 10 February 2006 which set out what the accompanying letter described as the “agreed 70% Texas Keystone/ 30% Excalibur Ventures economic split”. Mr Wempen thereby corrected the erroneous reference to a 70/30 Gulf/Excalibur split. The letter was addressed to Mr Kozel as CEO of Gulf at its London office and referred to the Joint Bid Agreement forwarded through “your affiliate, Texas Keystone”.

On 15 February 2006 Mr Kinnear met Mr Al-Qabandi and Mr Kozel in London.

On 16 February 2006 Mr Kinnear emailed the two of them to say how Mr Wempen was well backed by some senior Republicans and that he had just phoned “about MOU as his backers are all waiting in both countries to sell the deal between themselves in Kurdistan/US”. That is what Mr Wempen must have told him. There were no such backers. According to Mr Wempen in evidence, the reference embraced friends and supporters and the fact, so he claimed, that there were “people capable of financing projects that were interested in what we were doing”.

In his email of 16 February 2006 Mr Kinnear explained to Mr Wempen that the delays in signing the agreement which Excalibur had encountered were due to its lack of experience in the oil industry and said that he had had “to stand surety for you to enable the board to agree this deal”. He spoke of the huge sums involved, and that “you must have backers and some political cover and you should line up those to meet with them as it will build confidence for the next phase”. He said that they (i.e. the backers) should travel to Iraq sooner rather than later. Mr Kinnear assumed that Mr Wempen had such backers (as did Mr Kozel because that is what Mr Wempen had told him, as he had reported to Robert Kozel). In his email in reply Mr Wempen said that he hoped for something tomorrow and that “We will have to go with somebody next week, unfortunately, even if it is a smaller company I can’t keep Kurdistan on ice forever.” There was no such company.

On the same day Ms Berry sent a revised version of the agreement to Mr Wempen, with the corrections set out on a separate document. Among the changes were the following:

Recital D now recited that Texas wished to reserve the right to introduce Gulf as a Party and/or as participant in any Consortium Bid; previously the right reserved was to introduce one or more third parties (“Associates”);

“Gulf” was a defined word and the definition stipulated that “for the avoidance of doubt at the date of this Agreement [Gulf] is not an Affiliate”

Clause 3.3 now gave Texas a specific option to assign a part of its Consortium interest to Gulf, as opposed to an Associate.

In a sense this was the Gulf price for letting Mr Kozel go ahead with the Kurdistan deal on behalf of Texas. Mr Kozel had discussed with Robert Kozel his wish, from his perspective as the CEO of Gulf, to preserve the potential for Gulf to participate if an opportunity presented itself and terms could be agreed.

Mr Wempen faxed a signed copy of the agreement to Mr Kozel whose company was described in the Fax Cover Sheet as Texas Keystone. The fax was sent to Mr Kozel’s Texas number for the attention of Mr Goda, who was asked to copy it to Mr Kozel. Mr Goda sent the fax by email to Mr Kozel in London. Mr Kozel duly executed the agreement on behalf of Texas (mistakenly signing as CEO when it should have been Vice Chairman) and Ms Berry emailed Mr Wempen a copy of the executed agreement. Mr Kozel thought that there would have been a discussion with his family, the Texas board members, before he actually signed, authorising him to do so. There is no record of this and I cannot tell whether it happened or not. In any event it is plain that the Kozel family were leaving the agreement for Mr Kozel to deal with and that the 70/30 split was acceptable.

On 17 February 2006, Mr Kinnear emailed Mr Al-Qabandi again. He said that events were running away the previous evening when “the main backers requested we move forward if necessary to another company, as the new petroleum laws were nearing completion in Baghdad...The backers were taking this out of Rex’s hands, and I also would have withdrawn...” Mr Kinnear was probably relaying what Mr Wempen told him – see paras 176-7. But there were no backers.

Mr Wempen said that he read the agreement carefully. Eric Wempen said that he reviewed the final version of the agreement and discussed it with his brother. He noticed the assignment provisions. He accepted that there was a significant question mark as to whether Gulf was a party and that Recital D indicated that it was not. His response to the suggestion that he should have spotted this at the time was as follows:

Mr Wempen signed the agreement on behalf of Excalibur and faxed an executed copy to Mr Goda for Mr Kozel’s attention. Mr Kozel executed the agreement on behalf of Texas.

Whether or not Gulf was a party to the Collaboration Agreement ab initio is an objective question. Evidence as to the subjective view of either Wempen or Mr Kozel, if relevant at all, is relevant primarily to any question of apparent authority although it may have some tangential relevance as to whether the dealings between the parties were on the basis that Gulf was a party – since what the parties thought may have affected how they conducted themselves.

Mr Wempen’s evidence was that the Wempens regarded the agreement originally proposed by Texas as being an agreement to which Gulf would be a party (with Gulf as the majority partner and Texas as the face of the consortium – as Mr Wempen says he explained the deal to his brother) and that they said nothing about the fact that Gulf was not mentioned in the Collaboration Agreement because they did not see it as a problem. This is surprising. Any ordinary businessman, let alone one with a degree in Business Administration (Mr Wempen), or who was a practising lawyer (Eric Wempen), would realise that signing a contract to which Gulf was supposed to be a party, but which made no mention of it, could give rise to problems.

Eric Wempen’s evidence is that when it came to the amended draft he, at any rate, saw that there was a problem: see para 182. The analysis of which he speaks is of the most general character and does not even appear to assume that Gulf would necessarily be treated as a party ab initio. I have some doubts as to how far he thought through these matters at the time that the contract was made, but I am prepared to assume that his thinking was of the nature described.

On any view Mr Wempen was in a great hurry to sign a contract. The likelihood is that, insofar as he addressed his mind to the question of parties, he was content for the agreement to be with Texas, a US oil company, on the basis that it contained terms which contemplated that Gulf might join in the bid or the Collaboration Agreement at some stage. In Mr Eric Wempen’s somewhat incoherent, or at any rate inchoate, thinking, if Gulf came in on the bid, things would probably work out all right in the end, in the sense that Gulf could not bid without becoming under some liability to Excalibur. For both of them the key thing was to sign up.

Neither of the Wempens raised any concern with Mr Kozel on the issue of Gulf being a party. At this stage, they were content to contract with Texas and wished to sign up as soon as they could in order to get back to Kurdistan with the news that they had done so. What Mr Wempen was concerned with was the interest split. Eric Wempen was prepared to take the risk involved in Gulf not being expressed as a party. So far as Mr Kozel was concerned he regarded Texas as a party and not Gulf.

The Collaboration Agreement is the foundation of Excalibur’s claim to relief. The parties to it are Excalibur and Texas.

The Recitals to the Collaboration Agreement record that:

Clause 1 of the Collaboration Agreement contains a number of defined terms, including the following:

Clause 2, headed “SCOPE OF AGREEMENT”, provides as follows:

Under Clause 3 headed “PARTICIPATING INTERESTS”, it was agreed as follows:

Clause 5 dealt with “EXPENDITURE” and provided:

By Clause 6 the parties agreed that Texas would be the Operator and would be responsible for the preparation of any Consortium Bid; for the preparation of all work programs and budgets and for their submission to the Operating Committee for approval; and, subject to any necessary approval of the Government, would be the operator of the Acreage if awarded to the parties pursuant to a Consortium Bid.

Clause 7 provided for an Operating Committee for the purpose of undertaking the Transactions. Schedule 2 provided for Texas’ representative on the Committee to be Mr Kozel and Excalibur’s to be Mr Wempen. Under clause 7.2. the duties of the Committee were (a) to consider and determine all matters relating to any Consortium Bids to be made; (b) to consider and amend or approve all proposed programs and budgets submitted pursuant to the Agreement; and (c) to consider and, if approved by all Parties, to acquire Data.

Clause 8 addressed certain aspects of the process of bidding for petroleum blocks. It provided in material part as follows:

Clause 9.1, headed “RELATIONSHIP OF THE PARTIES”, provided that “Each of the Parties shall carry out its responsibilities and duties under this Agreement in good faith, responsibly, with due care, competence and diligence…”. Clause 9.2. provided that:

Clause 11 provided for the contract to become effective on the date of its execution, and to terminate on the Termination Date i.e. two years thereafter.

Clause 20 headed “Entire Agreement” provided:

By clause 14.3.1 the Agreement was to be governed by and construed in accordance with the laws of the State of New York.

Schedule 1 set down an accounting procedure as contemplated by clause 5.2. although the parties did not, in fact, follow it. The Schedule provided that:

Schedule 3 provided that the Joint Operating Agreement should adopt the UKOOA Proforma and should incorporate a number of provisions including:

Schedule 4 contained the terms of the Deed of Adherence of Gulf as Assignee in favour of Excalibur and Texas as Assignor. Recital A recorded that Excalibur and Texas were the present parties to the Collaboration Agreement and Recital B recorded that pursuant to it Texas was entitled to assign part (but not all) of its Consortium Interests to Gulf on notice to Excalibur and subject to the execution by Gulf of a Deed of Adherence. The Deed provided, in clause 2, that the Assignee gave notice to Excalibur of an assignment of part of Texas’ Consortium Interest to the Assignee and clause 3 contained an undertaking to Excalibur and the Assignor to be bound by the terms of the Agreement “in every way as if the Assignee had been at all times a Party thereto”. The draft provided for execution by Gulf as a deed and signature by Texas and Excalibur by way of acknowledgment of delivery.

The signature block provided that Mr Kozel was executing the agreement for and on behalf of Texas.

The following issues arise in respect of this agreement:

If Party A does not bid for a Concession but consents to Party B, or Parties B & C (if at any stage there are more than two parties), bidding on the basis that Party A would not be a party to any resulting Concession, is Party A entitled to any interest in the Concession obtained as a result of the successful bid of Party B or Parties B and C?

Was Gulf a Party to the agreement from the beginning and by what law is that question to be decided?

The first question arises because by paragraph 8 of Excalibur’s Reply:

Excalibur contends that, despite this consent, when the bid for Shaikan was successful Excalibur became entitled, by virtue of clause 3.1.2 of the Collaboration Agreement, to an indirect 30% interest in the rights acquired by Texas and Gulf in the PSC (between the KRG, Texas, Gulf and Kalegran) which resulted from the success of the bid. Excalibur does not claim any rights against Kalegran. But it does claim that Gulf was a party to the Collaboration Agreement – hence the second issue – such that it is entitled to a 30% indirect interest in the 80% interest in Shaikan acquired by Texas and Gulf between them i.e. 24% of the whole. The defendants have denied such entitlement and are, in consequence, in breach of contract.

There is little difference between New York and English law. The applicable principles may be summarised as follows. The Court’s aim is to discern the intentions of the parties from the words they used in the context and circumstances in which they did so. It is not for the court to “improve or purify” (Judge Bellacosa’s words) the agreement which the parties reached. The contract, which is the primary and often the only place to look, must be read as a whole. The Court should avoid ascribing to a contract a purely technical or unduly literal meaning or a strained or unnatural interpretation. It should not strive to find an ambiguity. If there is a genuine ambiguity, apparent to someone familiar with the customs and practices of the relevant trade or business, the Court will examine extrinsic evidence including the conduct of the parties after the contract has been made (but not the uncommunicated subjective intentions of the parties). In this latter respect New York law differs from that of England & Wales.

As the experts (Mr Park and Mr Codd) agree, the Collaboration Agreement has the following features all of which are typical of an upstream joint bidding agreement (“JBA”):

a statement of the parties’ interest shares (in the agreement their “Consortium Interests”) which, in the absence of agreement to the contrary will represent their shares in any bid (“Participating Interests”) in which they choose to join;

a provision reserving to each party an unfettered choice of whether or not to participate in any particular bid;

a procedure for determining whether to submit a bid for a particular block and if so on what terms;

a requirement for the parties to notify each other of their commitment to the bidding terms thus agreed;

a provision to the effect that in the absence of a statement of commitment to go forward on the agreed terms (or those which the agreement stipulates) a party is deemed not to participate;

a term which prevents a party not participating in a bid from bidding in any other capacity;

a term by which the parties opting to participate in a bid undertake to each other to be jointly bound to the host government in the terms of the bid once the bid had been submitted i.e. they agree to assume joint liabilities;

in the event that a bid is successful, a requirement for the parties to execute a contract giving effect to the host government concession or licence and to enter into a joint operating agreement which will often be defined as a JOA based on a particular model form.

A bidding agreement regulates the position between the parties at the very beginning of the oil exploration process when the risks are likely to be at their highest. It is for that reason that bidding agreements typically contain the provisions referred to in sub-paras (b) – (d).

Against that background the meaning of the Collaboration Agreement is, in my judgment, clear. The Recitals and Clause 8 show that the scope of the Collaboration Agreement extends to (i) the process in respect of Consortium Bids; (ii) the consequences of participating in or staying out of a Bid; and (iii) the obligations of the parties upon a Bid succeeding. As appears from the definition of “Concession” the agreement is drafted for use with several different forms of contract with a host government. In the present case the Concession bid for was a production sharing agreement (i.e. a PSC). Thus a Consortium Bid meant an application, bid or tender by the Parties or any of them for a production sharing agreement “pursuant to [the] Agreement”. An application for a production sharing agreement connotes that the applicant is seeking to become a party to the agreement. Clause 8.2 required the bid to be submitted by the Operator. An application “pursuant to [the] Agreement” is an application made in accordance with the regime laid down by clause 8 to regulate the bidding process and the consequences of opting to participate in a bid or opting not to.

If there is no other agreement, a Party’s “Consortium Interest” is to be that Party’s “Participating Interest” in any Consortium Bid: clause 3.1.2. The definition of “Participating Interest”:

If a party could claim some form of indirect interest it would mean that a party to a JBA such as the Collaboration Agreement could claim to be entitled to some indirect interest without incurring any direct liability to the host government or, it would appear, any liability to the parties to the PSC who were not parties to the JBA. The parties to the PSC would in the first instance bear the costs of the venture. Anyone who was a party to the PSC but not the Collaboration Agreement would have no rights against the holder of the indirect interest. This the parties to the Collaboration Agreement cannot have intended.

Mr Simon Picken QC for Excalibur submitted that the definition of Participating Interest was wide enough to cover an indirect interest and that, in the event of a successful bid, the parties participating in the bid would each be entitled to a share in whatever interest, rights and obligations were awarded to any of them as a result of the bid in the proportions set out in clause 3.1.1 whether directly or indirectly. He contrasted the words “arising from and in respect of a parcel of Acreage acquired pursuant to this Agreement as a result of a Consortium Bid” with the words “arising under this Agreement” in the definition of Consortium Bid.

I disagree. The words describing the share itself are identical (“such Party’s participating interest share in”). The description of that which is being shared in is different, being “the interests, rights, duties, obligations, and liabilities” either:

“arising under this Agreement from time to time”; or

“arising from and in respect of a parcel of Acreage acquired pursuant to this Agreement as a result of a successful Consortium Bid”.

There is good reason for the difference. Consortium Interests can only be shares in the Collaboration Agreement. But a party to a Concession may find that the Concession, which may take several different forms, grants him interests (e.g. in or in respect of property) or subjects him to obligations (e.g. by statute) in respect of the relevant parcel of Acreage which are not confined to rights or obligations expressed in the PSC to which he is party as a result of a successful Consortium Bid. In addition the share is to be a share of, in effect, the rights and obligations in relation to the Acreage which are contained in the PSC. To share in those rights and obligations it is necessary to be a party, with others, to the PSC i.e. the contract pursuant to which they arise.

If the draftswoman (Footnote: ³⁰) had intended to provide for indirect interests she could scarcely have done it in a more recondite or unhelpful fashion. Such an intention is left to be discerned from the definition of Participating Interest, which does not, in my view, bear the meaning attributed to it. The construction argued for requires treating a Party as participating in a Consortium Bid, even though it has no intention of becoming a party to the PSC, with the result that those who are parties to the PSC must in the first instance shoulder the liability to the KRG themselves. Moreover the agreement provides no indication as to how effect is to be given to any such indirect interest in a PSC and no mechanism relating to it – not even an agreement to agree. Mr Park suggested in his oral evidence that the default position would be for the indirect interest to be given effect to by a trust; but clause 9.2 precludes such an approach. Finally, Mr Wempen accepts that Excalibur’s payment obligations were the same whether their interest was direct or indirect. But the Collaboration Agreement contains no mechanism in respect of such indirect obligations.

These considerations militate against construing the agreement as having provided for indirect interests, especially when no one has come up with an example of any other case where a joint bidding agreement created an indirect interest (a somewhat elusive concept) and when Mr Codd’s evidence was that in his 32 years in the industry he had never come across one.

The true construction of the Collaboration Agreement is not hard to discern. The parties have specified Consortium Interests: 70% for Texas and 30% for Excalibur. Unless they agree otherwise those will be their Participating Interest in any Consortium Bid: clause 3.1.2. That assumes that they have agreed to participate in the Bid. It cannot apply to a party who has decided not to participate in the Bid. The proviso to clause 2.1 makes clear that no Party is required to submit a Consortium Bid in which it does not wish to participate.

The agreement contemplates that the parties will, to the extent that they can, disclose data relating to the Acreage and to any opportunities for Consortium Bids. Clause 5 provides that the basic rule is that all costs incurred or accrued in the course of the agreement are to be the responsibility, and for the account, of the Party incurring them. Clause 5.2, by way of exception, provides for the Parties to agree a program and budget pursuant to the provisions of clause 7 to cover the costs of Data acquisition, joint studies and the preparation of any Consortium Bid and, if appropriate, negotiations with the Government. All costs incurred pursuant to a program and a budget are to be joint account costs calculated and borne pursuant to the terms of the Accounting Procedure in Schedule 1. Clause 7 established an Operating Committee to consider and determine all matters relating to any Consortium Bids and to approve all proposed programs and budgets and to consider and, if approved by all Parties, to acquire Data. In fact the parties did not convene an Operating Committee as such but acted more informally, as is not uncommon.

Clause 8 dealt with Applications for Acreage. After evaluation of any parcel of Acreage the Operating Committee representatives were to meet to decide whether they wished to apply jointly for acreage and the commitments they were willing to accept. No later than 10 days after the Deadline each of the Parties was to give notice to the other Parties of its commitment to participate in or withdraw from each Consortium Bid and if a party failed to give notice it was deemed to have elected to withdraw from the Bid.

In short the Parties had a free option whether to participate or withdraw but had to give notice if they sought to participate: clause 8.1. The Deadline was defined as 30 days before the Closing Date being the closing date for the submission of Bids in respect of each parcel for which the Parties were considering the submission of a Bid.

In the event there was no date specified by the KRG as the date by which a bid had to come in. Further, insofar as Bids were submitted they were constituted by the submission of draft PSCs. Excalibur failed to give notice to participate at any time prior to what must be taken as the closing date for the submission of Bids, namely the moment before the Bid was accepted. The fundamental effect of clause 8.1 is clear: in the absence of notice to participate a Party is deemed to withdraw. Further Excalibur “consented to the submission of a bid for the Shaikan PSC on the basis that Excalibur would not be a party to that PSC”. Excalibur thereby withdrew from the Bid made.

Mr Picken submitted that Excalibur could be regarded as applying jointly with Texas, (or Texas and Gulf), if Texas or Texas/Gulf was applying to be on the PSC and Excalibur was content not to be on the PSC and only seeking an indirect interest. I cannot accept that this is what the Collaboration Agreement contemplates. Applying for a concession in the form of a PSC is one thing; claiming an indirect interest in something for which someone else has successfully applied is quite different. The former is what the Collaboration Agreement contemplates; the latter is not. A deemed and, a fortiori, an actual withdrawal from a bid is prima facie inconsistent with the retention of any interest in the fruits of the bid. Further, the notion that a party who withdraws is in some sense a joint applicant is impossible to reconcile with clause 8.5 which specifies the consequences of withdrawal in the following terms:

Under clause 8.2 the parcel of Acreage agreed upon was to be the subject of a Consortium Bid submitted by Texas as operator on the terms agreed by the Parties who had elected to participate (being Texas and, if Gulf was a party, Gulf). It was such Parties who were to use their best endeavours to acquire Acreage in proportion to their respective interests. The clause does not apply to those who have withdrawn from the bid who cannot use any endeavours to acquire Acreage for which, ex hypothesi, they have not applied. In the present case the Bid was submitted by Gulf or Gulf and Texas and was not submitted on behalf of Excalibur which declined to be a party to the PSC. If Excalibur had been applying jointly with Texas, it would have become a party to the PSC: but that was the one thing which was not intended.

Under clause 8.6.1 the Parties who prepare, approve and submit the Consortium Bid to the National Owner are as between themselves jointly bound to the National Owner by its provisions. This clause, typically to be found in JBAs, shows that the parties to a Consortium Bid are those who are to become bound to the National Owner (by becoming party to the PSC) – a category which in the present case would not include Excalibur. Once the Bid is submitted the Parties are not at liberty to vary it without the consent of the other Party.

Under clause 8.7 the Parties who are awarded a Concession are bound to accept it, to use their best endeavours to complete the documentation to effect the award (i.e. the PSC) and to enter into a JOA as defined. This is the mechanism by which a Participating Interest is to be acquired. Acceptance of a Concession in the form of a PSC involves being prepared to accept the rights and obligations contained in it. It does not cover someone who has declined to be part of it.

“Joint Operating Agreement” is defined as an agreement “based on the UKOOA 20th Round Proforma Joint Operating Agreement, incorporating all the principles set out in Schedule 3”. The UKOOA 20th Round Proforma JOA, often used in relation to the North Sea where the Concession usually takes the form of a licence, is drawn in terms which make clear that the parties to a JOA in this form will be the contractors to the related host government contract. The same applies in relation to the AIPN Model Form Operating Agreement. Further the evidence is that the parties to upstream oil and gas industry JOAs are invariably the parties to the related host government contract: see the Park-Codd Joint Memo para 4.6 (m). Mr Rogers, Mr Park and Mr Codd had never come across a situation where a party to the JOA was not the holder of a direct interest in the related host government contract. All this makes complete commercial sense. By the JOA the contractor parties to the PSC agree among themselves their respective rights and obligations in respect of the performance due under the PSC.

It is, of course, open to parties to vary a proforma but the proforma that they specified is a good guide to what they were aiming at. In the present case Schedule 3 to the Agreement made certain further provision as to what the JOA should incorporate including the following:

Thus clause 8.7 requires the parties to give effect to their interests in a Concession by becoming parties to a PSC and entering into a JOA so as to allocate, as between themselves, their respective rights and obligations in respect of the performance of that contract. The inference must be that the interests with which the Collaboration Agreement is concerned are the interests of those who have participated in a successful bid and have become parties to a PSC in consequence. The PSC is the source of their entitlement, although the Collaboration Agreement or the mechanism provided by it (i.e. the provision that, by agreement, a participating interest may differ from a consortium interest) will in the first place determine the respective interests of the bidders amongst themselves. Clause 8.7 does not cater for indirect interests.

The construction of the Collaboration Agreement is not a matter for evidence. It is however of interest to consider what features of it could be said to give rise to an obligation to recognize an indirect interest. Mr Park, Excalibur’s expert, was unable to do so and his argument (for such it was) boiled down to there being a distinction between (i) a party opting not to participate (even indirectly) in the Bid; and (ii) a party opting not to participate in the PSC whilst continuing to participate (indirectly) in the Bid. A party would have an indirect interest in case (ii) but not in case (i). I do not regard this as a distinction which the Collaboration Agreement contemplates. (Footnote: ³¹)

In particular the contention advanced misunderstands the nature of a “bid” in the present context. As to that, I agree with the observation of Mr Park in evidence that “when we speak of a bid, we speak of the document that is tendered by a party that is showing that they are – that they wish to be party to the host government contract. That’s one of the structures that industry uses to create a joint venture relationship.” Thus the bid, if accepted, will result in a contract with the host government. If it is accepted, there is no distinction between being a party to a bid and being party to the host government contract.

Thus, in my judgment, on the proper construction of the Collaboration Agreement:

a Party who opts or consents not to be party to a PSC cannot be regarded as participating in a Consortium Bid for the PSC in question;

a Party who has been successful in a Consortium Bid and become a party to the PSC is not obliged to recognise or give effect to any indirect interest in favour of another Party who has, or is deemed to have, withdrawn from the Consortium Bid, by not giving notice to participate and thereby, or otherwise, indicating that it does not wish to be or consents not to be a party to the PSC.

I have not forgotten that in the event of ambiguity the post contractual conduct of the parties may be a guide to construction. It does not, however, appear to me that the Agreement is ambiguous so as to justify recourse to subsequent conduct. In any event, the subsequent conduct of the parties does not cause me to infer that they must be taken to have agreed that the Collaboration Agreement provides for an entitlement to an indirect interest: a raft of communications and internal documentation shows the opposite. The parties were considering whether Excalibur would be on the PSC. The idea of an indirect interest did not surface until 13 November 2007, after the Shaikan PSC was entered into.

Excalibur claims to be entitled to a 30% interest in Gulf’s interests in Akri-Bijeel. The Gulf defendants’ interest in Akri-Bijeel was, it says, in effect the consideration for MOL being allowed to acquire an interest in Shaikan and the defendants’ interests in both Shaikan and Akri-Bijeel were in reality acquired as a single Consortium Bid. I do not accept this. There was no Consortium Bid for Akri-Bijeel. The only person who bid for Akri-Bijeel was Kalegran.

Alternatively, Excalibur says that it is entitled to a 30% share in Gulf’s interest in Akri-Bijeel because Akri-Bijeel was “a parcel of Acreage acquired … as a result of a successful Consortium Bid”. A similar argument is put forward in respect of Sheikh Adi and Ber Bahr and it is convenient to address it in that context.

Excalibur also claims an entitlement to an indirect interest in these fields. As will become apparent, – see para 1296 below – those blocks were acquired by Gulf Keystone/Gulf Keystone International as part of a deal with the KRG and ETAMIC, under which ETAMIC acquired a 50% shareholding in Gulf Keystone International, which in turn acquired an 80% interest in the Sheikh Adi block and a 40% interest in the Ber Bahr block. Gulf Keystone thus initially acquired an indirect 40% interest in Sheikh Adi and a 20% interest in Ber Bahr respectively. That indirect interest subsequently increased to 80% and 40% when the ETAMIC transaction was unwound, and Gulf Keystone International reverted to being a wholly-owned subsidiary of Gulf Keystone whilst retaining the full direct interest that it had acquired in these two blocks.

Excalibur’s case under this heading has gone through several mutations about which it is not necessary now to say any more than that the earlier versions have been abandoned. Excalibur now contends that it was only because Gulf had successfully acquired interests in Shaikan and Akri-Bijeel that it was given the opportunity to obtain further interests in these two blocks. In those circumstances Gulf’s interests in these fields were acquired “as a result of a successful Consortium Bid” within the meaning of the definition of Participating Interest, namely the bid made in 2007. Excalibur is, therefore, entitled to its (indirect) Consortium Interest (30%) in those blocks.

I disagree. A Participating Interest is a share in the rights and obligations in respect of a parcel of Acreage “acquired pursuant to this Agreement as a result of a Consortium Bid”. The only relevant causal connection (“as a result of”) between the Bid and a block is that the bid was for that block and resulted in an interest being acquired pursuant to the Collaboration Agreement. Sheikh Adi and Ber Bahr were not the subject of a Bid pursuant to that Agreement, which expired on 10 February 2008. Gulf issued shares in Gulf International to ETAMIC which gave it an indirect interest in Shaikan and Akri-Bijeel and Gulf International received interests in the two fields. There was no relevant Participating Interest. Participating Interests are for those who are on the PSC.

Excalibur’s contention, if valid, would have the odd consequence that any use of the Shaikan and Akri-Bijeel asset to acquire an interest in another block would automatically entitle Excalibur to a 30% interest in that block. It would also appear to oblige Excalibur to accept such an interest, despite the express recognition in the Collaboration Agreement that no Party is bound to participate.

The argument is equally inefficacious in relation to Akri – Bijeel.

Accordingly, even if my conclusions in para 234 are wrong, Excalibur has no claim in respect of the blocks other than Shaikan on any of the bases so far considered.

Excalibur contends that the Collaboration Agreement expressly or impliedly obliges Texas (and Gulf) to give effect to Excalibur’s indirect interest.

It puts forward six possible ways in which effect could be given to such an interest. I consider these later in the context of the claim for specific performance. On its case the Parties were bound to enter into one of the suggested (or some other) method of giving effect to the indirect interest.

I am quite satisfied that there is no such implied obligation.

Under New York law the principles for the implication of a term are not significantly different from those applicable under English law. The Court may imply a term into an agreement to give effect to the parties’ unexpressed but intended purpose and may do so if the promise sought to be implied is one which a reasonable person in the position of the promisee would be justified in understanding was included. The test is, however, as in English law, a strict one:

New York law would not sanction the implication of a term simply in order to make a contract fairer, or better to accord with its own notions of commercial reasonableness. Contractual implication is not a licence to improve, rewrite or purify the parties’ own agreement – per Judge Bellacosa. A term may be implied in order to give business efficacy to a contract which would otherwise lack it: see Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91 (N.Y. 1917) in which
Bowen J’s dictum in The Moorcock 14 P.D. 65, 68 was cited with approval by Cardozo J. But this does not justify the implication of a term to improve a contract that sufficiently covers the matter in hand or which makes commercial sense without it. Where the instrument contains an express covenant in regard to any subject, no covenants are to be implied in respect to the same subject matter. The rule was recently cited in RJ Capital, S.A. v. Lexington Capital Funding III, Ltd., No. 10-25 (PGC), 2011 WL 3251554, 13 (S.D.N.Y. July 28, 2011).

The supposed implication fails on many grounds. The Collaboration Agreement makes express provision for the manner in which the parties would acquire and give effect to an interest in a Concession. These provisions make business sense, do not lack business efficacy, and are consistent with arrangements habitually made in the industry. In those circumstances there is no room for the implication of some alternative regime providing (without saying so) for indirect interests. The claim advanced by Excalibur – to participate indirectly in one of the various modes suggested – is inconsistent with the provisions of clauses 8.6.1 and 8.7 which require the Parties who submit a Consortium Bid (in which Excalibur professes to have been indirectly participating) to be jointly bound to the National Owner and to complete the documentation to effect the award of the Concession (i.e. the PSC) and to enter into a JOA which regulates the relationship inter se of those who are on the PSC. If the implied term had been suggested to reasonable persons in the position of the Parties, they would neither have agreed that it was impliedly included nor that it should be.

The supposed implication would also raise, but not resolve, many questions including: (a) how is effect to be given to the indirect interest; (b) if by one of the six postulated modes (or any other), who is to decide which one; (c) if one of them is chosen (e.g. the establishment of a special purpose vehicle), who is to determine the applicable terms, e.g. its place of incorporation, the terms of its memorandum and articles or equivalent and of any shareholders’ agreement; (d) if the Court is, in the end, to decide all these questions, can it decide on a model to which all Parties object; (e) what criteria is it to apply in reaching any of its decisions; (f) how is effect to be given to Excalibur’s obligation to pay its share of the liabilities, expenses and costs?

Further, insofar as it is suggested that there should be some form of trust the implication is in conflict with clause 9.2 which provides that “nothing herein contained shall be construed as creating … a trust”. A net profit share agreement or a gross overriding royalty would confer on Excalibur a right to income (either gross or net) whilst absolving it from any actual liability for losses, or any duty to pay the costs as they fall due, whereas a Participating Interest includes an interest in “obligations”.

In truth the implied term contended for involves rewriting the contract and imposing on the parties an agreement they have not chosen to make. Insofar as the implication leaves it to the parties to agree the mode of giving effect to the indirect interest and the terms thereof, it amounts to an agreement to agree potentially complex documentation without any template, formula, or criterion. Such an agreement would not be enforceable. As Judge Pratt observed:

A covenant of good faith and fair dealing is generally implicit in contracts governed by New York law. Clause 9.1 of the Collaboration Agreement makes it express. But, as Judge Pratt explained, this covenant cannot be used to create an obligation that is different from and inconsistent with what the parties have expressly agreed. It does not permit the court to add substantive terms to the contract. Additionally, if the contract explicitly provides for a singular method for effectuating a party’s interest, the court cannot re-write that provision. Judge Bellacosa effectively accepted this (although not in so many words).

Gulf is said by Excalibur to have become a party to the Collaboration Agreement ab initio because Texas (acting through Mr Kozel) entered into the contract on Gulf’s behalf, having actual or apparent authority so to do. There are thus two questions:

whether Texas had authority to contract on behalf of Gulf (“the authority issue”) and

whether it exercised that authority so as to make Gulf a party (“the party issue”).

On the authority issue it is agreed that the law applicable to whether or not Texas had apparent authority is to be determined by the law of New York as the law of the Collaboration Agreement.

The question of whether an agent is able to bind his principal in contract vis-à-vis third parties is excluded from the scope of the Rome Convention by Article 1(2)(f). On the question of actual authority there are two alternative points of view. The first is that, as between third party and supposed principal actual authority is to be determined by the law of the main contract between principal and third party (a view espoused by Bowstead 19^th Ed 12-017) as opposed to the law of the relationship between principal and agent (a view espoused by Dicey, Morris & Collins 15^th Ed (2012) Volume 2, ¶ 33-433).

Excalibur espouses the first alternative and submits that the law of New York applies. Alternatively it says that any agency agreement between Gulf and Texas was governed by the law of New York. The draft joint venture agreement and the Collaboration Agreement always provided for the law of New York so that any contract to be entered into was always intended to be governed by that law. In those circumstances, it is said, Texas and Gulf must have contemplated that the same law would apply to their agency agreement. Further, the law of New York is the law with which the agency contract in issue had its closest connection.

Gulf contends that the issue is to be determined by the law of the agency contract and that that law is the law of Bermuda or England being the countries where Gulf had its central administration or place of business.

I do not find it necessary to resolve this dispute (although I incline to the view espoused in Dicey) because New York and English law are materially identical. Under New York law, as under English, actual authority exists if there is a “manifestation of consent by one person to another that the other should act on his behalf and subject to his control, and the consent by the other to act”: Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 AD 3d 71, 96-97 (1st Dept 2009).

On the party issue it is agreed that the law of New York applies.

It is convenient to consider the party issue first since, if Texas did not intend or purport to enter into the Collaboration Agreement on behalf of Gulf, questions of its authority to do so are irrelevant. Gulf is not said to have been an undisclosed principal, whose existence or connection with the transaction was unknown to Excalibur. The critical question is, therefore, whether or not it was the intention of those concerned, and in particular Texas, the putative agent, that Gulf should be a party as well as Texas. That is a question of construction of the contract.

The Collaboration Agreement makes it clear that Gulf was not intended by Texas or Excalibur to be a party from the outset. That is apparent from the following. Gulf is referred to in the Agreement but is not specified as a party. The Parties are defined as Excalibur and Texas. Recital D records Texas’ wish to reserve a right to introduce Gulf as a party. Clause 3.1 gives Excalibur a 30% and Texas a 70 % Consortium Interest. Gulf has none. Clause 3 entitles Texas to assign part but not all of its Consortium Interest to Gulf if Gulf executes a Deed of Adherence in the form set out in Schedule 4 in which case it is to have rights as if it were a party on and from the date of execution but without any liability for any period prior to the execution of the Deed: clause 3.3.2. The Deed of Adherence set out in Schedule 4 itself records that Excalibur and Texas are the present parties to the Agreement (Recital A) and contains an undertaking by Gulf to be bound by the Agreement as if it had been at all times a Party. Clause 20 stipulates that the Collaboration Agreement represents the entire agreement between the parties. The signature block provides that Texas is executing the agreement for and on behalf of Texas. This combination of provisions does not make sense if Gulf was already a party as and from 16 February 2006.

Excalibur’s case is that Gulf was not named as a party to the Collaboration Agreement because the KRG wanted to be seen to be awarding contracts to US companies. The consortium would be more acceptable to the KRG and have a greater chance of success if Gulf’s involvement was kept from the public gaze so that the KRG would be seen to be awarding PSCs to a US led consortium. If Gulf’s involvement was publicly known it would have been obvious that the consortium was Gulf led. The understanding was that Gulf would step out from behind the curtain after the PSC was awarded. Texas and Gulf would then allocate the respective percentages between themselves using the assignment mechanism in the contract.

There are several difficulties with this. The Collaboration Agreement was a private and confidential document. There was no reason for the KRG (or the public) to see it. The KRG never asked to see it, nor did it occur to Mr Kozel that they would. Moreover, it is Excalibur’s case that Parties to the Agreement and to a Consortium Bid do not have to be parties to the PSC, and that a Party to the Collaboration Agreement who is not on the PSC is nevertheless entitled to an indirect interest in it. If that be right, there seems little reason for Gulf not to be a party to the Collaboration Agreement, even if the KRG might see it. Texas and Excalibur could be on the PSC with Gulf having an indirect interest. If the intention was to avoid the possibility of the consortium being Gulf led, the Agreement was inapt for that purpose since Texas could transfer 99.9% of its direct interest to Gulf.

Further, in his evidence Mr Wempen accepted that there was no need to conceal Gulf’s involvement from the KRG (since both the KRG and the US government were kept fully informed) and that the KRG would have been perfectly content with Texas transferring 99.9% of its interest to Gulf. In Excalibur’s final submissions it is said that everyone involved, including the KRG, knew that in reality Gulf was to be the de facto operator but that Mr Wempen believed that the consortium would be more attractive if Gulf’s involvement was kept from the public gaze. Including Gulf as a party to the Collaboration Agreement would not, however, place it in public view.

Further, on Excalibur’s case, it seems that the period for which Gulf was to be behind the curtain (diaphanous so far as the KRG was concerned) was temporary. The Collaboration Agreement was a joint bidding agreement and, when the bid came to be made, the identity of the bidders would be patent. If Gulf was to be a bidder, their participation would become apparent once the bid was made. If Gulf was to be an assignee of a portion of Texas’ interests under the PSC, once it had been obtained, that would be apparent also, particularly if it was to be de facto operator. The advantage to the KRG of creating what it would know to be a temporary illusion of US leadership (since it and the US knew the true position) seems remote.

If Excalibur, Texas and Gulf had intended that Gulf should be a party from the outset, there was nothing to prevent that happening. If that was the intention, it is impossible to believe that Gulf’s solicitors would have drafted an agreement which did not name it as a party and left any assignment to Texas’ choice, or that the Gulf Board (or Mr Kozel alone) would have been prepared to have the Agreement executed in these terms, without even a side letter setting out the position, whatever might have been discussed at a lunch in Tampa two months before. The reality, as I find, is that Texas and Gulf did not intend that Gulf should be a party and Excalibur, in the person of Mr Wempen, was perfectly prepared to contract with Texas, the only US company in view, which would, so he hoped, take him forward quickly in his quest for a Concession in Kurdistan. It was envisaged that Gulf might play a part in the future.

Since the position is not ambiguous it is not open to Excalibur to rely on extrinsic evidence to contradict the terms of the Agreement. As Judge Bellacosa’s evidence shows, the parol evidence rule applies to the party issue. If the terms of the Collaboration Agreement are inconsistent with Texas acting as Gulf’s agent that would be treated by a New York Court as relevant, albeit not dispositive, evidence that there was no authority and thus no agency relationship. But, as both he and Judge Pratt confirmed, under New York law the terms of the Collaboration Agreement are dispositive of the party issue if the terms of the Collaboration Agreement are unambiguously inconsistent with Gulf being a party. In such a case, of which this is one, evidence to the contrary breaks the parol evidence rule: W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162 (N.Y. 1990); Kashfi v. Phibro-Salomon Inc., 628 F. Supp. 727, 731-32 (S.D.N.Y. 1986); Edgreen v. Learjet Corp., 180 A.D.2d 562 (N.Y. App. Div. 1st Dep't 1992).

Excalibur relied on three cases, which it suggested were to different effect – (i) Thomas Gordon Malting Co. v. Bartels Brewing Co., 206 N.Y. 528 (N.Y. 1912), (ii) Guardian Life Ins. Co. of Am. v. Chemical Bank, 94 N.Y.2d 418 (N.Y. 2000), (iii) Spagnola v. Chubb Corp., 264 F.R.D. 76 (S.D.N.Y. 2010). None of them is, in my judgment, authority for the proposition that parol evidence is admissible to prove that someone is a party to the contract if that proposition is plainly inconsistent with its terms. The position is otherwise if the contract does not make clear that X is not a principal so that the identity of the real principal is left ambiguous.

Judge Bellacosa thought that, even if a contract provided that X was not a party, it might be open to the court to decide that he was if, to the knowledge of all concerned, X was described as not being a party in order to hide the fact that he was from others e.g. creditors. No authority to which I have been referred supports this departure from the usual rule and I have doubts as to whether an intention to mislead could properly justify it. In any event, I do not regard the suggested circumstances as comparable since, firstly, all concerned are said to have known the true position and the agreement, far from hiding Gulf’s existence, contemplates it becoming a party for anything below 100%.

Even if the usual rule is ignored, the evidence does not lead me to conclude that at the time that they entered into the contract the parties intended Gulf to be a party to it or that Texas was or appeared to be acting on behalf of Gulf. I do not accept that the position after the Tampa meeting was that Texas was to be there for cosmetic reasons and Gulf the real partner. But even if the discussion at Tampa went further than envisaging the possibility of Gulf taking a role later, by 16 February 2006 events had moved on. The draft joint venture agreement, contemplating some sort of Texas/Gulf participation, had been rejected; the draft Collaboration Agreement had been put forward and accepted with alacrity; and amendments to add reference to Gulf as a potential assignee were later added to the draft. There is no evidence of any discussions at this stage qualifying the effect of the documentation or stating or confirming that Gulf was the real partner.

Excalibur contends that Texas could not and would never have wanted to bid for and operate concessions in Kurdistan on its own, and was focussed on domestic production and development and taking advantage of US tax breaks. It had, as Mr Kozel put it, dabbled in exploration. It would not, it is said, have wanted to spend the $ 1- 5 million involved in getting to the bid stage. Robert Kozel knew virtually nothing about Kurdistan and had little involvement in it. By contrast Kurdistan was a “perfect fit” for Gulf, consistent with its international aspirations. In those circumstances the Court should readily infer that Texas was contracting for itself and for Gulf.

I do not accept this analysis. Whilst Mr Guest and Mr Kozel were interested in Kurdistan (as were Gulf’s technical people), the Gulf Board as a whole was not: its focus at that stage was on Algeria with the possibility of expanding elsewhere in North Africa and selected areas in the Middle East (Footnote: ³²). I do not accept that Texas lacked the technical ability to conduct oil and gas explorations. Whilst Texas was focussed on domestic production, Mr Kozel had a more international focus and was signing up to a deal because he thought it had potential and could be taken forward in a number of different ways. Mr Kozel had set up Gulf, with the support of his family. There was no reason in principle why Texas could not establish a “Texas Kurdistan” to take on the project if it remained of interest. Gulf itself had been formed with Texas’ investors’ capital. The conclusion of the Collaboration Agreement did not commit Texas to much. What the project might involve in terms of (a) technical expertise and (b) cost was unknown. To the extent that Texas lacked either it could access others. Texas was willing to incur some costs and ended up by paying some $ 239,000 of third party costs. It had a free hand whether to bid or not, and if it was a party and Gulf was not, it would be in control. The Collaboration Agreement had benefits from Gulf’s point of view in that it preserved the opportunity for Gulf to participate in a venture which had come Texas’ way because Texas was a US operator, without committing Gulf in any way at all. In accordance with the Kozel family way of doing things Robert Kozel was content to let Mr Kozel take the lead on the project and for the board to make decisions at the appropriate time.

Nor can Excalibur derive any benefit from post – contractual events. None of the three parties – Excalibur, Texas, Gulf – proceeded on the basis that Gulf was a party to the Collaboration Agreement from the outset.

No one on the Gulf Board thought that Gulf was a party to the Collaboration Agreement from February 2006. The Gulf Board minutes of 1 March 2006 make no mention of Kurdistan, Excalibur or Texas. On 16 June 2006 Mr Patrick emailed to Mr Guest a draft minute recording (i) that Mr Kozel had reported that he was going on a visit to Erbil on behalf of Texas to discuss oil and gas opportunities only open to American oil companies; (ii) that Mr Patrick and David Clark, Vice President of Exploration (New Ventures) of Gulf UK were to accompany him on the understanding that, if the opportunity was of interest, Texas and Gulf would agree a basis on which both companies would participate jointly; and recognising that there was no conflict of interest in Mr Kozel pursuing this opportunity on behalf of Texas.

At the Gulf Board meeting on 14 July 2006 Mr Patrick reported on the visit to Kurdistan with Mr Kozel “representing Texas Keystone” and a representative of Excalibur who had made the initial arrangements for the meeting. He said that the Oil Minister had received the visitation well and invited the group to make a specific proposal for one or more exploration areas in Kurdistan. Mr Patrick reported that work was now proceeding to prepare such a proposal, with any commitment being subject to a full investment recommendation being made to and approved by the Board, and to a satisfactory agreement with Texas Keystone regarding their respective interests.

At the Board meeting on 22 September 2006 Mr Patrick reminded the Board that negotiations to date had been led by Texas and that Gulf’s involvement required finalisation of an agreement with Texas which had not yet been done. At the same meeting Mr Kozel told the Board that he had come to the conclusion that his skills as an entrepreneur were not consistent with Gulf’s needs for the next stage of its development. He, therefore, supported the search for a new CEO. He would remain as CEO until the December Board meeting or earlier appointment of his replacement and then remain a non-executive director.

On 26 September 2006 Mr Patrick emailed Mr Guest to point out that the existing agreement between Texas and Excalibur “envisaged [Gulf] becoming party to it...” and suggested an agreement that provided that GKP “will become a party” to the agreement. On 15 December 2006 the Board (with the exception of Mr Kozel) resolved to conclude the proposed agreement to assume the current 70% interest of Texas in the Agreement with Excalibur.

On 1 March 2007 Mr Parsons emailed Mr Patrick recording that he had told Mr Kozel that an agreement had to be signed sharpish “if only for the obvious reasons that … we are representing this as being ours when we currently have no legal interest whatsoever”. The minutes of 10 May 2007 record Mr Kozel as confirming that Texas had agreed to assign its 70% interest but that its partners had not agreed due to the uncertainty over the ownership of Gulf and had counter proposed for Gulf to have a 35% interest as a non-operator. It was agreed that Gulf would incur no more expense until it had received written confirmation of its right to participate. The reference to uncertainty over ownership was a reference to the then pending prospect of a takeover of Gulf by RAK Petroleum Plc (“RAK”), an energy investment company incorporated in the Ras Al Khaimah Emirate of the U.A.E. founded by Sheikh Sultan Bin Saqr Al-Qassimi. On 13 June 2007 Mr Parsons wrote a long letter to Mr Kozel complaining that he had failed to conclude Gulf participation in the Kurdistan project and “the group”.

These communications, which show Gulf as seeking to become a party to the agreement and/or to obtain an assignment of Texas’ interest, are inconsistent with Gulf having been a party since February 2006.

Excalibur also proceeded, on the basis that its agreement was with Texas alone. A letter from Texas of 17 February 2006, into which Mr Wempen had input, referred to Texas’ partners as Excalibur and Dabin. Emails written by Mr Wempen to the KRG in the first part of 2006 refer to a two party consortium of Excalibur and Texas e.g. his emails to Dr Yacu of 22 April and 17 May 2006; and to Dabin on 21 June 2006. In January 2007, Mr Wempen emailed Mr Kinnear to say: “We signed a deal with Texas Keystone, which will have to be expanded to include Gulf Keystone…”.

In March 2007 Mr Wempen wanted to keep the Collaboration Agreement with Texas alone. This was when he learnt that there was a prospect of Gulf being taken over by a third party. On 21 March 2007 he emailed Mr Kinnear to say “You may wish to have Ali [Mr Al-Qabandi] put the pressure on Todd NOT to assign the Kurdistan bid deal to Gulf. That would give us maximum control.” On the same day he emailed his brother a draft of an email to Mr Kozel stating that he had not been averse to a partial assignment to Gulf by Texas but expressing concern at a possible management change at Gulf in consequence of a buyout of Gulf. He floated the idea of some kind of buyout clause in the event of a management change at Gulf (Footnote: ³³). On 22 March 2007 Mr Kinnear expressed concern that the Kurds might give the deal to someone else if they did not like the new buyer of Gulf.

On Friday 23 March 2007 there was a meeting between Mr Kinnear and Mr Al-Qabandi either at the Gulf office or in a restaurant nearby. Mr Kozel may have met Mr Kinnear briefly but was not at the body of the meeting. Its purpose was to bring Mr Kinnear up to date with what was happening.

On 24 March 2007 Mr Kinnear reported on the meeting to Mr Wempen, telling him that on Monday or Tuesday Gulf would be taken over by “a crew of Arab UAE investors”. He said:

It is apparent from this sequence that Excalibur was maintaining that Gulf should not become a party to the Collaboration Agreement. Consistently with that on May 5 Mr Wempen sent Mr Kozel an email which said “To correct any misunderstandings here, at this time Gulf Keystone is not part of this deal” and that “the deal is between Texas Keystone, Excalibur Ventures and the Government of Kurdistan” (Footnote: ³⁴).

On 31 May 2007 Mr Wempen submitted an application to the US Department of Commerce requesting advocacy assistance in relation to Shaikan/Gulley Keer and Ain Sifni: see para 522. He described the project in a questionnaire as involving “a completely US consortium consisting of Texas Keystone, Inc. (TKI), a Pittsburgh, PA based US oil exploration and production company operating since 1988, and Excalibur Ventures, LLC a US advisory firm”. The information in the questionnaire was certified by Mr Wempen to be complete and accurate. No mention was made of Gulf, the supposed majority partner of the consortium.

In an email to Mr Maguire, a contact of Mr Wempen’s and a lobbyist with The Decapolis Group in Washington, dated 21 June 2007 Mr Wempen described the relationship of the parties as follows:

This description of the relationship between the parties is wholly inconsistent with Gulf already being a party and having been so since February 2006. I do not accept Excalibur’s submission that it is “specific to the immediate context” and, therefore, “not a reliable indicator of Excalibur’s overall attitude to the agreement reached when the Collaboration Agreement was entered into”. When asked about the description of the consortium as American led “and always will be” Mr Wempen said that he was “expressing intentions as I saw them at the time” – a position inconsistent with Gulf already being the real party through the agency of Texas.

One reason why it was important for Gulf not to be a party to the Collaboration Agreement from the outset was because OPIC insurance was only available to a consortium which was US majority owned or controlled. On 19 July 2006 Mr Wempen pressed Mr Kozel for a draft proposal to present to Dr Hawrami in Erbil and noted that “we should complete preliminary registration with OPIC and start pushing that registration through the diplomatic process” – a suggestion inconsistent with the consortium already being a Gulf majority consortium.

On 25 April 2007 Excalibur sent a letter to Mr Kozel refusing any transfer from Texas to Gulf of Texas’ rights in the Collaboration Agreement in which Mr Wempen said:

Last, but by no means least, at no time before the service of the pleadings, did Mr Wempen or his brother assert that Gulf, through the agency of Texas, always had been a party to the Collaboration Agreement. If that had been their understanding in 2006 or 2007, they would surely have done so. In fact Mr Wempen later invited Mr Kozel to sign a letter acknowledging Excalibur’s interest (see para 780 below) which referred to the Collaboration Agreement as being with Texas, not with Texas and Gulf. On 14 November 2007 he suggested in an email to his brother that they could argue that Gulf’s participation in the deal would not become valid until Excalibur received a signed Deed of Adherence: see para 833. On the same day he prepared a draft email to Mr Kozel asserting that Excalibur had waived the requirement for its prior consent to an assignment in Erbil in July 2007, whether in whole or in part. In an email of 28 November 2007 Eric Wempen observed that “Not having counsel involved is what screwed you in the first place with the deed of Adherence and letting them continue with no docs in place”. This was a recognition of the weakness of Excalibur’s claim to have a contractual relationship with Gulf. He also produced a suggested script for a meeting which Mr Wempen had on 3 December 2007 (see para 1023 below) with Mr Kozel which referred to December 2005 as “the time I partnered with TKI”.

In short, reference to subsequent evidence, if admissible, confirms me in the conclusion that Gulf was not a party to the Collaboration Agreement. The matters to which I have referred are not the only indicators that Gulf was not a party. There are many others: including the matters referred to in paras 275, 281-287, 291, 302, 347, 368-9, 381-4, 415-417, 424-5, 430-431, 436-439, 449-455, 808.

If that analysis be right, the agency issue does not arise. If it does, there are two questions: first whether Texas authorised Mr Kozel to constitute Texas as Gulf’s agent when entering into the Collaboration Agreement; second, whether Gulf authorised Texas to act as its agent when entering into the agreement.

I am quite satisfied that Mr Kozel did not have actual authority from Texas to act in its name as agent for Gulf or from Gulf to bind Gulf to the Collaboration Agreement. He was, of course, Chief Executive Officer of Gulf and Vice Chairman of Texas. But, as he confirmed, he did not have the authority of either Board to commit either company to such a contract with Excalibur without the consent of the boards. He had authority from the Texas Board to contract on its behalf. He neither sought nor obtained the authority of the Texas Board to contract in Texas’ name on behalf of Gulf; nor from the Gulf Board to enter into the contract (in the name of Texas) on behalf of Gulf. Nor would I regard it as part of the usual authority of someone in his position to enter into an agreement of this kind without it being considered and agreed (if necessary by an appropriate majority) by the Gulf Board.

Mr Wempen’s evidence was that at the Tampa meeting Mr Kozel said that he was able to deliver both companies. Mr Kozel described that evidence as fanciful. Such a statement, if made, is capable of more than one meaning. The first is that he could procure the agreement of the relevant board. The second is that he could act on behalf of the company without reference to them. As to the first, I think it unlikely that Mr Kozel said that he would be able to deliver the Gulf Board. He may have said that he would be able to get the Texas Board to embark on the venture (as in the event he did) and, in that sense, deliver. As to the second, I regard it as most unlikely that he said anything to the effect that he could act without reference to or without securing authority from either board, not least because, had he said it, it would have been inaccurate.

I also accept Mr Robert Kozel’s evidence that Texas did not act as agent for Gulf, which necessarily implies that the Texas Board did not authorise Mr Kozel to constitute Texas the agent of Gulf. There is no evidence that the Gulf Board even considered the idea of Texas signing the Collaboration Agreement on Gulf’s behalf. Had it authorised Mr Kozel to act, via Texas, on behalf of Gulf, it is inconceivable that there should be no reference in the minutes of any board meeting to this curious arrangement whereby Gulf would become a party, but not on the face of the document, to an agreement in which it had no specified Consortium Interest, where, in the absence of an assignment, its rights were at worst non-existent and at best unclear, and which contained terms indicating that it was not yet a party at all.

There were discussions with Gulf Board members, in particular Mr Parsons and Mr Guest, about Mr Kozel signing the agreement on behalf of Texas because of the potential conflict of interest. Mr Kozel had told Mr Wempen that he would need to speak to the Gulf Board on this account.

Lastly, the terms of the Collaboration Agreement are inconsistent with Texas acting on behalf of Gulf so as to make it a party ab initio. The terms are not dispositive on the agency question. But they are powerful evidence that Texas was not authorised to act on behalf of Gulf.

Under the law of New York an agent will have apparent authority if (i) the words or conduct of the principal cause the third party reasonably to believe that the agent has authority to contract on the principal’s behalf and (ii) the third party reasonably relies on that belief. Hallock v. State, 64 N.Y.2d 224, 231 (N.Y. 1984). The requirement of reasonable reliance may mean that the third party cannot rely on an appearance of authority if it has not taken steps to determine the true scope of the agent’s authority. There is no general duty of inquiry but it may be incumbent on the third party to do so “when the facts and circumstances are such as to put him on inquiry”: Herbert Constr. Co. v. Continental Ins. Co., 931 F.2d 989, 995-96 (2d Cir. 1991). This is another way of asking whether the third party reasonably relied on the representation of the agent that he possessed authority: ibid.

In order, therefore, for there to be apparent authority it is necessary for Excalibur to show that Texas, through Mr Kozel, purported to act on behalf of Gulf. I am not persuaded that it did so. Excalibur relies on the fact that Mr Kozel is said to have said that he could deliver both companies. As I have already held (para 295), I think it unlikely that he said that in relation to Gulf. Even if I am wrong about that I do not accept that such an expression should (in the absence of further inquiry as to what was meant) be taken as meaning that Mr Kozel was holding himself out as having authority to commit either company without reference to the relevant board. If that is what he is to be taken as saying, I do not regard it as right to treat that as a statement made (through him) by Gulf as principal in relation to the position of an agent, namely himself. On that hypothesis the reality is that he, the putative agent, was claiming to have the authority of a principal, which does not amount to a holding out by the principal.

In any event, if that is too strict a view or simply wrong, it was not in my judgment reasonable for Excalibur to rely on Mr Kozel as having the authority of Gulf to enter into that agreement on Gulf’s behalf in circumstances where:

the draft joint venture agreement had been rejected;

the agreement proffered for acceptance (a) was couched in terms which did not state that Gulf was a party or that Texas was entering into it on Gulf’s behalf; and (b) contained provisions (see para 262 above) inconsistent with Gulf then being a party; and

no attempt had been made, after the rejection of the joint venture agreement, to raise with Gulf the issue as to whether it was intended to be a party.

As to (i), the effect of the rejection of the joint venture in favour of the draft Collaboration Agreement was an indication that Gulf was not intended by Mr Kozel to be a party.

As to (ii), it is clear that the terms of the contract itself may make it unreasonable to rely on any appearance of authority: Zigabarra v. Falk, 143 AD 2d 901 (App Div, 2d Dept 1988) (Footnote: ³⁵). I regard this as just such a case.

As to (iii), it is apparent from Mr Eric Wempen’s evidence (see para 182 above) that there was a question mark for him over whether Gulf was a party to the Agreement. He took the risk that, on the language of the agreement, it was not a party, in circumstances where he or Mr Wempen could have easily asked whether any assumption that Gulf was a party was correct. If, which I doubt, the Wempens had a firm understanding that Gulf was a party, nothing could be more natural than for them to confirm it with Gulf.

In reaching this conclusion I have borne in mind that Eric Wempen was a lawyer, although my conclusions would have been the same if Excalibur had no lawyer on board. It would have been apparent to any commercial lawyer, as it would to any intelligent businessman, that the proposition that Gulf was a party to the Collaboration Agreement was, at the very lowest, problematic, and that whether that was truly so was something that cried out for inquiry, not least as to how the agreement was intended to work if Gulf had no specified Consortium interest. It was not reasonable to rely upon any appearance of authority without further inquiry. Excalibur had no reason to feel inhibited from any such inquiry if, as it claims, it was poised to begin a three-way consortium.

Excalibur’s case is that the role of Texas was, from the beginning, to lend its name to the project as the US face of a three-way consortium consisting of Excalibur, Texas and Gulf, in which Gulf would be the de facto operator both during the bidding phase and thereafter if the consortium’s efforts to obtain a PSC were successful. In the light of the terms of the Collaboration Agreement and the way in which the parties conducted themselves I do not regard this analysis as correct. The fact that from early 2007 onwards Gulf came to play an ever increasing role in the quest for a PSC in Kurdistan, including carrying out the technical work in preparation for visits to Erbil and the bid, and that the interest of the Texas Board in participating in Kurdistan waned as that of Gulf waxed, did not (subject to the question of assignment with which I deal below) alter the character of the contractual relationships (or the lack of them) between the parties, particularly in circumstances where Gulf was under the terms of the Collaboration Agreement a prospective party.

In short:

a party to the Collaboration Agreement who does not participate in the Consortium Bid because he does not wish, or is content not to be on, the PSC, and thereby withdraws from the Consortium Bid is not, if the Bid is successful, entitled to an indirect interest under the PSC;

Gulf was not a party to the Collaboration Agreement.

Excalibur also claims that Texas is to be regarded as the alter ego of Gulf such that Gulf is to be treated as a party to the PSC or that Gulf became a party to the Agreement by a partial oral assignment in late 2007. I do not accept either of these claims which I address below.

If, as I hold, the Collaboration Agreement confers no indirect interest, Excalibur has six alternative contractual claims (to damages) under the following clauses of the Collaboration Agreement: (i) clause 8.2; (ii) clause 2.1(a); (iii) clause 2.1.b; (iv) clause 2.2.(a); and (v) clause 9.1. It is convenient to set out my conclusions on these claims before addressing the very lengthy history of events.

Clause 8.2. provides that:

This clause obliges those who have agreed to participate in a Consortium Bid (and have thereby undertaken the obligations on bidding parties imposed by clauses 8.2, 8.6.1 and 8.7) to use their best endeavours to acquire the Acreage that they are to bid for in the ratio of their Participating Interests. It does not oblige them to use any endeavours to secure an interest for a Party, which has (or is deemed to have) withdrawn from the Bid and has undertaken no such obligations. Excalibur never committed itself to a bid; never gave notice of its commitment to participate in the Bid; and, in effect withdrew from the Bid, or, at the lowest, is deemed to have done so: see clause 8.1.

Excalibur contends that, if it was necessary for it to be a direct party to the PSC in order to acquire an interest, clause 8.2 obliged the defendants to use their best endeavours to ensure that all of the parties to the Collaboration Agreement, including Excalibur, became parties to the Shaikan and Akri-Bijeel PSCs, and acquired direct interests in those blocks. It would be extraordinary if it did this, since, if so, the non-bidding party could not have any of the obligations of a bidder foist upon him (see the proviso to clause 2.1), nor would it have to bear any of the associated costs of the bid; and yet, if and when the bid succeeded, it would be entitled (presumably at its option) to a share in the Acreage equal to what would have been its Participating Interest, if it had committed to participate, that share coming out of the share which the parties to the Bid intended for themselves. Further, so far as Akri-Bijeel is concerned there never was a Consortium Bid agreed upon. The construction contended for has the bizarre consequence, which the parties cannot have intended, that Texas and Gulf (if a party) and Excalibur were bound to seek to secure a direct participation on the PSC when Excalibur had consented not to be on it.

Even if Excalibur had been and remained a party to the Consortium Bid, I would not regard the clause as a mutual assistance clause whereby each Party was bound to assist its fellow bidders to acquire their interest. The obligation on the parties was to use their best endeavours to acquire (not to enable others to acquire) Acreage in proportion to their respective percentages. The purpose of the provision is to ensure that no member of the Consortium is left holding a greater share of liabilities than the one to which it had committed.

In any event Excalibur consented to not being a party on the PSC. It cannot now complain that it was not on it. Even if Mr Wempen was mistaken as to the consequences of Excalibur not being on the PSC, it is not suggested that any such mistake was known to Gulf (the proposition was not put to Mr Kozel) and it was not; any mistake is therefore irrelevant. I do not accept that Mr Kozel “knew that Excalibur had not truly agreed” to not being a party to the PSC. So far as appeared to Mr Kozel, Mr Wempen, for Excalibur, did consent. That he did so was not surprising to Mr Kozel because of Excalibur’s difficulty (as matters stood in July 2007) in getting on the PSC. In any event it was a matter for Excalibur to choose. It was not incumbent on Mr Kozel to advise him. Whatever was going on in Mr Wempen’s mind did not vitiate or qualify his consent.

Lastly, even if there was a breach, Excalibur has not established that it has suffered loss in consequence. In order to do so it would be necessary to show that, had Gulf and Texas used their best endeavours, Excalibur could and would have taken a direct interest.

As to that, it is not at all clear that Excalibur would have chosen to participate directly if told by Gulf that it must do that or not at all. There appear to have been a number of reasons why Mr Wempen was not keen on direct participation (see para 928 below); and it is not even clear that Mr Wempen would have accepted that advice. In the course of his evidence he was asked this:

On the assumption that Mr Wempen would in fact have accepted that advice, the question is whether, even with the defendants’ best endeavours, Excalibur would have got on the PSC – which would have required it to have the necessary technical and financial capabilities and be acceptable to the KRG. As will become apparent, my judgment is that it would not have succeeded. Further MOL would not have agreed to participate alongside Excalibur without some form of financial guarantee which Gulf was neither prepared nor obliged to provide.

Excalibur claims that, in relation to Akri-Bijeel (in which Gulf acquired a 20% interest in return for MOL’s 20% interest in Shaikan) Texas and Gulf were in breach of clause 2.1 (a) which provided that:

Acquire, share and review data and opportunities for the acquisition of Acreage by way of Consortium Bid. ”

Excalibur says that the information received by Gulf and Texas about the possibility of bidding for Akri-Bijeel as part of a ‘swap’ under which MOL would join in their bid for Shaikan, and in turn Gulf Keystone would join in MOL’s bid for Akri-Bijeel, fell squarely into 2.1 (a). But neither of them shared that information with Excalibur, or gave it the opportunity to join Gulf in bidding for an interest in the Akri-Bijeel block. The result was that Excalibur:

I do not accept this for a number of reasons. First, Texas was not involved in MOL’s bid for Akri-Bijeel or in the assignment by MOL to Gulf of a 20% interest in the block and had no opportunity to share. Under clause 2.2 (b) Texas was bound to procure that its Affiliates did not become involved in transactions falling within the scope of that clause. But Gulf was, expressly, not an Affiliate of Texas. Second, Gulf, as I have held, is not a party to the Collaboration Agreement. Third, Gulf did not bid for Akri-Bijeel and there was never any question of it doing so. The opportunity of a farm in from MOL was not an opportunity to bid for a block (i.e. “the acquisition of Acreage by way of Consortium Bid”) even if the farm in was approved by the KRG. Fourth, insofar as reliance is placed on clause 2.2 (a), that prevented the independent pursuit of “the Transactions”, which are, relevantly, defined as the pursuit and preparation of bids to acquire Acreage by way of Consortium Bid. That would preclude a party bidding independently for Acreage; but not, in my view, acquiring Acreage by way of assignment from another successful bidder. Fifth, and in any event, Akri-Bijeel was a farm in opportunity which was not realistically available to Excalibur. Excalibur would never have joined with MOL in bidding for Akri-Bijeel or sought to acquire by assignment a share of MOL’s interest. It did not wish to be on the Shaikan PSC either originally or by a farm in from Gulf and there is no reason to believe that it would have a different attitude to Akri-Bijeel. MOL would not have entertained Excalibur as a co-bidder on the block or been prepared to have it on the PSC by way of farm in, in the absence of a guarantee from Gulf, which Gulf would not provide. Nor would the KRG. If there was any breach, no substantial damage resulted from it.

Clause 2.1(b) provides for the Parties to:

In paragraph 12.6 of its Opening Excalibur claimed that:

In paragraph 7.16 (b) of Excalibur’s Closing, the defendants are said to have been in breach of 2.1 (b):

This borders on the nonsensical. Excalibur, as it’s pleading makes plain, consented to a bid proceeding on the basis that it would not be a party to the PSC. It withdrew from any Consortium Bid as it was entitled to do. Neither Texas nor Gulf was bound, or entitled, to bid on behalf of Excalibur, when Excalibur was unwilling to do so. They were entitled to continue with the bid. It was Excalibur which under clause 8.5 was prevented from applying independently.

This clause, in full, provides:

The Parties shall work exclusively together in the pursuit of the Transactions described in the Recitals and no Party shall at any time pursue all or any part of the Transactions independently or with or through any Affiliate or with or by any third party unless otherwise agreed in writing between the Parties . ...”

I do not regard Texas or, if they were a party, Gulf as in breach of this clause. The prohibition against pursuing the Transactions independently does not apply if the Agreement provides otherwise. The Agreement provides that, upon the actual or deemed withdrawal of a party from the Bid, the withdrawer is not required to submit a Bid (proviso to clause 2.1), but remains bound by the Agreement and may not itself apply for Acreage: clause 8.5. The effect of the withdrawal of a party is that the Transaction/Consortium Bid becomes that of the remaining parties, who are entitled to proceed with it by themselves.

Further, Recital D recorded that Texas “wishes to reserve the right to introduce Gulf as a Party to this Agreement and/or as a participant in any Consortium Bid pursuant to the terms of this Agreement”. The right reserved was thus a right to introduce Gulf as a participant whether it was a party or not. Accordingly for Texas to introduce Gulf as a participant in a Bid was in accordance with the terms of the agreement, the Recitals of which, by clause 1.2.a, constitute an integral part of it.

If, contrary to my view, Excalibur’s consent in writing was required, the bar for what constitutes agreement in writing ought not to be set too high, given the relative informality with which parties to agreements such as these are wont to proceed. Consent to Gulf and Texas proceeding was given orally. Thereafter Excalibur was notified in writing of Gulf’s proposed participation by its inclusion as a party to the draft PSC sent to Rex Wempen on 26 July 2007, and again on 30 July 2007. Mr Wempen’s response on 29 July was to say “Todd, good to hear from you. …Looks as if we are back in the driver’s seat in Kurdistan”. In context that was sufficient consent in writing.

In any event, if consent in writing was required but not given, Excalibur, in my view, waived any right for its consent to be required to Texas proceeding with the Shaikan bid along with Gulf and MOL. Under New York law, as the experts agree, a waiver involves a “voluntary abandonment or relinquishment of a known contract right.” - see the 1^st report of Judge Pratt at paragraph 7.50. Excalibur knew of its rights because it was party to the Agreement and plainly gave up on any requirement for its agreement to be in writing (insofar as it was not).

Excalibur suffered no loss as a result of the failure to secure its written consent. The Shaikan PSC would never have been obtained by any party prepared to share with Excalibur without the participation of Gulf. Texas would probably not have participated without a guarantee from Gulf, and certainly not for any substantial percentage. Lastly, Excalibur was in no position to participate directly in the PSC for want of funds.

Clause 9.1 expresses the mutual obligation of good faith and fair dealing that is implicit generally in contracts governed by New York law. Its effect is “not to create a new obligation. It is to give effect to what the obligations of the parties were”: per Judge Bellacosa. As he said, the obligation of good faith “cannot substitute for a non-viable breach of contract” and cannot oblige the parties to operate in a manner inconsistent with the express terms. The mutual obligation of good faith operates to give effect to what the parties have agreed but cannot be used to force upon them a mode of performance different from and inconsistent with the substantive terms: see Murphy v. American Home Products Corp. 58 N.Y.2d 293, 304 (N.Y. 1983) (“the implied obligation [of good faith and fair dealing] is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship.”). Nor can it impose new obligations which go beyond what the parties have agreed. But encompassed within the implied obligation of each promisor to exercise good faith are “any promises which a reasonable person in the position of the promisee would be justified in understanding were included”: Rowe v. Great Atlantic & Pacific Tea Co., N.Y.2d 62, 69 (N.Y. 1978).

The term precludes a party from taking some positive step that would prevent performance or frustrate the contract:

The good faith duty may oblige a party to act in a particular way if such an obligation is necessary to give business efficacy to the transaction. Thus if one party grants another party some exclusive right, such as a celebrity’s product endorsement, in return for a share of the profits to be made from the exercise of that right, there may be an implied obligation to use reasonable efforts to bring profits and revenues into existence: Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88 (1917) per Cardozo J. A party may even be in breach although it has abided by the strict terms of the contract e.g. if it exercises a contractual right as part of a bad faith scheme to deprive the other party of the fruits of his bargain: Serdarevic v. Centex Homes LLC, 760 F. Supp. 2d 322, 333 (S.D.N.Y. 2010).

Excalibur’s pleaded case is that in breach of clause 9.1 of the Collaboration Agreement:

Texas and Gulf bid for the Shaikan and/or Akri-Bijeel Blocks on their own behalf without Excalibur and without telling Excalibur that they were doing so;

Texas and Gulf failed to inform Excalibur that Dr Hawrami had in August 2007 expressed an unwillingness to deal with Excalibur (if he had) and failed to advise Excalibur that it needed to take steps to persuade Dr Hawrami to allow it to participate in any concession; and

Texas and Gulf failed to take any steps to intervene on Excalibur’s behalf to persuade Dr Hawrami to allow Excalibur to participate in the two blocks.

As to (i) Excalibur was well aware that Gulf was bidding for the Shaikan PSC without it and consented to that. It was also aware of MOL’s involvement. The contract did not oblige Gulf to tell Excalibur about Akri-Bijeel. As to (ii) Mr Kozel did tell Mr Wempen what Dr Hawrami had said in August 2007: see para 580 below. In any event I do not regard the duty of good faith as obliging Gulf to inform Mr Wempen what Excalibur needed to do to get on the PSC (in respect of which he claimed to be indifferent) or what Dr Hawrami had said. As to (iii) the duty of good faith did not require Gulf to take positive steps to advocate Excalibur’s cause to Dr Hawrami, particularly in circumstances where to do so might risk alienating him.

Two further breaches were alleged in Excalibur’s Written Opening viz:

Texas and Gulf failed to inform Excalibur that it was necessary for it to be a party to the PSCs and/or JOAs in order to have its interests recognised and encouraged or acquiesced in Excalibur’s belief that it was not necessary;

If the defendants’ intervention on behalf of Excalibur with Dr Hawrami proved unsuccessful, Gulf failed to give effect to Excalibur’s alleged interests by means which did not require the KRG’s consent (or that of anyone else).

As to (iv) the contract did not impose on Gulf an obligation to advise Excalibur as to the true meaning and effect of the Collaboration Agreement, which was an agreement between two commercial parties each of whom could be expected to take their own legal or other advice in respect of the Collaboration Agreement, the PSC and Article 24 of the Kurdistan Region Oil and Gas Law 2007, particularly when Eric Wempen was, himself, a lawyer and Excalibur had retained Dabin. Further it was not suggested to Mr Kozel that he was aware that Mr Wempen had a mistaken understanding of the effect of the Agreement. Nor is it clear that Mr Wempen, who still asserts that the Agreement gives Excalibur an entitlement to an indirect interest, would have accepted advice to the contrary from Mr Kozel: see para 316 above.

As to (v) nothing in the Agreement contemplated or required that Texas or Gulf should provide for Excalibur some (undefined) indirect mode of participation; and the duty of good faith cannot fashion a substantive obligation which the parties have not agreed; nor create a viable case in breach of contract if none otherwise arises.

In short, I do not regard Texas or Gulf as in breach of the obligation of good faith and fair dealing.

Excalibur contends that, had the defendants taken the steps they ought to have taken under para 334 (i) – (iii) above, Excalibur would have insisted that it participate in the bid for both blocks and would, with the help of Texas and Gulf, have persuaded both MOL and the KRG to allow it to participate. These contentions are only relevant if I am wrong on the question of breach and are dependent on facts which I do not find established. In those circumstances there is limited use in considering the issue. It is sufficient to say that I do not regard the case as made out.

As to (i) Excalibur knew that Gulf was to bid for Shaikan without it and was content with that course. In those circumstances the proposition that Excalibur would have done something different if told that Gulf was bidding is untenable. In relation to Akri-Bijeel, the fifth point mentioned in para 320 applies. As to (ii) even if Excalibur was not told of Dr Hawrami’s misgivings, it is doubtful that, if it had been, it would have acted differently, given that it claims an entitlement to an indirect interest without becoming a party to the PSC: see para 317 above. As to (iii) it seems to me unlikely that Gulf would have been able to cause Dr Hawrami to change his mind or persuade MOL to accept Excalibur, absent a Gulf guarantee.

I deal in the paragraphs that follow with the complicated factual history following the making of the Collaboration Agreement on 16 February 2006. It is relevant for an understanding as to how the dispute arose; and in relation to the following issues: (i) the intentions of those concerned in relation to whether Gulf was a party to the Collaboration Agreement; (ii) whether Texas was the alter ego of Gulf; (iii) the deceit and fraudulent concealment claims; (iv) the claim that Texas assigned the Collaboration Agreement to Gulf; (v) the defendants’ case on deemed withdrawal under clause 8.6.2; (vi) the alleged plan to cut Excalibur out of the deal; (vii) specific contractual defences: impossibility, material breach and anticipatory repudiation; (viii) particular tortious claims; (ix) Excalibur’s “prevention” case; and (x) whether Excalibur could ever have raised the necessary funds and got on any PSC.

On 17 February 2006, Mr Kinnear emailed Mr Wempen to say that “If this is to work you and Todd need to get together as these brinkmanship area [sic] could be serious later. Also you have a deal that looks good but nothing substantial to back it hence the wary touch from Gulfkeystone”. He advised him that it would be “prudent to prepare a partner profile of your backers. That may be a stumbling block if you do not. You are not in the oil business and they will need reassurance of who is who and can you deliver”. This advice, which referred to Mr Wempen’s supposed financial backers, was sound and far sighted. Two years later, relations between Mr Kozel and Mr Wempen (and Mr Kinnear) broke down when Mr Wempen’s lack of financial backing became apparent.

Mr Kinnear gave similar advice in an email to Mr Wempen of 27 February 2006 in which he urged Mr Wempen to be “proactive and gain trust by arrangeing [sic] the visit for the Gulfkeystone team. Also to outline you[r] backers and contacts in Iraq.” In a second email of that date he said that Mr Kozel and Mr Al-Qabandi knew nothing about Excalibur and were going on Mr Kinnear’s reassurance. Mr Kinnear advised:

Also on 17 February 2006 Mr Wempen emailed Mr Kozel to say that there was a “significant meeting” coming up in Kurdistan and that they should release the draft introductory letter of 11 January 2006 referred to in para 162 above, which he attached. The letter was addressed to Dr Yacu. Mr Kozel signed and sent that letter. Mr Wempen also asked Mr Kozel to arrange for a version of the letter to be sent directly to Prime Minister Barzani and Mr Kozel did so. This version of the letter said:

On 20 February 2006 Mr Wempen emailed Mr Kozel to say that he was “considering sending a letter of financial support from Excalibur to accompany [Texas’ letter of 17 February] and I would appreciate a ballpark neighbourhood of what you are thinking the exploration activity is going to cost”. This was pure bravado. Excalibur was in no position to send such a letter.

On 1 March 2006 the Gulf Board met in Zurich. It confirmed the appointment of a new Legal and Commercial Director, Mr Iain Patrick, and a new Finance Director, Mr Jon Cooper. Neither Excalibur nor Kurdistan was mentioned in the minutes. At this stage Kurdistan was not a priority because Gulf had made no commitment to it. Some minutes of a management meeting on 8 March 2006 contain a one line phrase “Approval for Kurdistan”. It is not clear what exactly that referred to. It may have been approval for Mr Kozel to continue with Kurdistan, or for a visit to Kurdistan, or for expenditure of money or the allocation of management time to considering Kurdistan.

Mr Wempen was expecting an invitation to come to Erbil. It was not immediately forthcoming. One reason for the delay appears to have been that Dr Barzani and others had gone to Baghdad to resolve a dispute over who would be the next Prime Minister of Iraq.

On 4 March 2006, Mr Wempen wrote to Dr Yacu to say that Excalibur believed that Texas and “its affiliate Gulf Keystone” were the best candidates to support initiatives in Kurdistan, and that “Keystone” had “ready access to the billions of dollars in funding which would be required to fully exploit a significant oil fund”. Mr Kozel had told Mr Wempen no such thing. Mr Wempen’s evidence was that there was “some very positive salesmanship there”, which he sought to justify on the basis that anyone such as Gulf/Texas with a good enough asset can raise very large sums of money. In reality it was wholly unrealistic to suppose that billions of dollars could easily be raised and untruthful to say that it was ready to hand. The letter ended by saying that the President of Texas and Mr Wempen looked forward to a meeting in Erbil.

When he joined Gulf, Mr Patrick reviewed all its activities. On 7 March 2006 he emailed Mr Wempen to say that Mr Kozel had asked him to get in touch “about how we might proceed when events permit”. He said that he would like to arrange to meet him and the “principal shareholders of Excalibur to make sure we understand as fully as possible the nature of the opportunities and how the relationship between our companies would work”. He asked a number of detailed questions. It is apparent that Mr Patrick thought that Excalibur was an organisation of some standing, not a one or two man band with no shareholders and no assets. Mr Wempen’s evidence was that he discussed Excalibur in detail with Mr Patrick and told him that they were a small outfit consisting of him and his brother with the help of Dabin and industry partners, and highly connected. I doubt whether the discussion was in detail, and the likelihood is that he spoke in grand sounding terms. What he did not say was that Excalibur was a company without shareholders (only Membership interests and only two at that) or assets. The likelihood is that he indicated that Excalibur had financial backing. That would be consistent with the document “Kurdistan talking points” that Mr Wempen emailed to Mr Patrick on 4 April 2006: see para 353.

On 29 March 2006 the Chairman of KRG’s Oil, Gas and Petroleum Establishment (“OGE”), Mr Sarbaz Hawrami, emailed Mr Wempen inviting him and the President of Texas Keystone and “your technical group” to visit the OGE in Erbil to explore opportunities and projects for cooperation in, inter alia, exploration and oil field development projects. Those attending would meet Mr Sarbaz Hawrami and Dr Yacu, the Vice Chairman of the OGE, and other members of the OGE. Mr Wempen replied:

No mention was made of Gulf. If in reality Excalibur had two contractual partners, with Gulf in the lead, and, as Mr Wempen says, the KRG knew what was going on, there was no need to be silent about Gulf. If they did not the email was misleading. In fact it was accurate. On 4 April 2006 Mr Wempen emailed Mr Hawrami to give details of availability, saying that “Accompanying us will be the president of Texas Keystone and appropriate technical and commercial staff”. I do not accept that Mr Wempen and Mr Kozel agreed a course of action whereby the correspondence with the KRG would reflect a two person consortium when the reality was that it was three. (Footnote: ³⁶)

On 4 April 2006, in response to Mr Patrick’s questions in his email of 7 March 2006, Mr Wempen emailed Mr Patrick a document entitled “Kurdistan Talking Points”. It provided basic information about Kurdistan and Excalibur and noted that OPIC was offering 90% coverage to US investors in Kurdistan and US majority controlled consortia. The document suggested that it was the “intent of EXV to offer to co-finance a refinery with our JV partner, the Dabin Group”. It also claimed that “The area of exploration is up to us”. Excalibur had at the time no means of co-financing the project (the IRF was no more than an idea) nor would the consortium have a free choice as to where to prospect.

On 15 April 2006 Mr Kinnear raised again the lack of information about Excalibur. He said that Keystone “need to know more about you guys and names to make them feel comfortable”. Mr Wempen’s response ignored the point. On 16 April 2006, Mr Kinnear emailed Mr Wempen again to report that Mr Al-Qabandi had been asked at a board meeting “who you all were and Ali could not answer”; nor could Mr Kozel: this was “not well received”. Mr Kinnear went on to say that Mr Kozel and Mr Al-Qabandi “came back to me and I did not answer.” He asked Mr Wempen if he had a company profile. As is apparent, Mr Wempen was being warned by Mr Kinnear that he was losing credibility.

In response on 18 April 2006 Mr Wempen sent Mr Kinnear a summary in respect of the IRF “which will take our part of the deal”. On the same day he emailed Mr Paul Behrends, a senior policy adviser with the law firm Crowell & Moring LLP (although not himself a lawyer) asking him to ask a Mr Shemdin for help in arranging meeting dates with Mr Hawrami and Dr Yacu, saying:

A technical team was needed in order to assess the prospects in Kurdistan. Texas had geological and technical capability but did not have specific experience in the Middle East. In the event that was supplied by Gulf, in the person of David Clark (now deceased), a geologist who was its head of exploration. He had previously spent time working on geological studies and consulting projects in Kurdistan and had worked for Dr Ashti Hawrami at ECL. The Gulf Board, although hesitant about Kurdistan, was prepared to provide this support in order to see what the opportunity might amount to. Texas paid all third party invoices for the trip to Erbil in June 2006 (see para 370) in the sum of about $ 350,000 including the fees of Mr Samarrai.

On 22 April 2006 Mr Wempen emailed Dr Yacu to tell him that “...Texas Keystone and Excalibur Ventures are ready to come and visit you any time starting this week. The technical team has been prepared and the Texas Keystone CEO and I are ready to accompany them”. A similar reference to a consortium of Texas and Excalibur was contained in an email of 17 May 2006.

From the mid-1990s the KDP controlled the governorates of Erbil and Dohuk, and the PUK controlled Suleimaniyah. After the Iraq Constitution had been adopted in October 2005, the KDP and PUK drafted a Kurdistan Region constitution, and in May 2006 the two KDP and PUK dominated administrations were merged into the Kurdistan Regional Government of Iraq.

Mr Wempen’s contacts had been predominantly with the KDP. The leader of the KDP was Mr Massoud Barzani, who became President of the unified KRG. His nephew Nichervan Barzani was Prime Minister of the KDP controlled region from 1996 to 2006 and Prime Minister of the unified KRG from 2006 to 2009 and from March 2012 to the present.

By April 2006 the prospect of any award of any Concession was on hold pending the formation of a new government. Mr Wempen was concerned that if there was a change in government and Dr Hawrami of the PUK (whom he had not met) took control of oil matters Excalibur might be out of any deal (see his email to Azzat of 26 April). In the event, in May 2006 Dr Hawrami became Minister for National Resources, one of the most important portfolios in the KRG. He knew Mr Clark, Mr Samarrai and Mr Kozel. Dr Hawrami is a qualified oil engineer with a PhD in oil reserve engineering. He had significant international upstream experience having worked in the oil industry in the UK since 1975. He is agreed, on all sides, to have detailed technical knowledge, to be a man of integrity and someone who would appreciate what was in the best interests of the KRG in considering bids and awarding contracts. In practice it would be he who would decide who would get the award of any contract.

Gulf had a liquidity crisis at this time, in part because of its Algerian commitments and also because it needed to pay a $ 906,044 invoice from a subsidiary of SONATRACH, called Enageo. At its Board meeting on 5 May 2006, Mr Kozel told the Board that the invoice would be paid by Texas under the Management Services Agreement and the cost recovered in the usual way. It was proposed that Gulf’s “cornerstone investors”, i.e. the shareholders in Gulf LLC who had founded the company, should provide a short term facility of $ 5 million to ease the liquidity difficulties. Both the Kozel family and GIBCA confirmed a willingness to do this. On 9 June 2006 Falcon Partners and GIBCA entered into loan agreements with Gulf to provide facilities of $2.5 million each on standard terms (Footnote: ³⁷). Both loans were repaid in January 2007 in full together with interest on completion of the farm out of Gulf’s HBH licence to the BG group.

The board also considered Mr Kozel’s position. Mr Parsons, supported by Sheikh Sultan, proposed that Mr Kozel should step down as CEO so that he could concentrate on doing what he did best – developing the business and doing deals – while Mr Guest concentrated on managing the company. This marked the beginning of a period of marked tension between Mr Kozel and other members of the Board.

Dan Franchi was a contact of Mr Wempen. He was a former Assistant Treasurer of Unocal Corporation, a US based oil company. According to his CV he had a particular strength in project financing (which was never an option for Excalibur). He had played a part in raising $ 2.6 billion for the Baku-Tbilisi-Ceyhan pipeline by way of limited recourse debt. Mr Wempen wanted him as a Chief Financial Officer (“CFO”) for Excalibur and made him an offer of employment. On 6 April 2006 Mr Franchi expressed enthusiasm and accepted the terms of employment proposed, on the basis that the offer was “conditional on funding”. This condition was never fulfilled because the funding never came.

On 10 April 2006, Mr Franchi sent a draft employment contract. It provided for him to be a full-time CFO at a salary of $ 300,000 per annum. Under its terms, any compensation would accrue until funding, but if funding had not occurred before 1 July 2006, he had the option to cancel the contract and Excalibur would owe him
$ 20,000. The employment contract was never signed. That did not stop Mr Wempen from emailing Mr Kinnear on 14 April 2006 to say “we are building a bit of momentum, having signed the former vice-treasurer of Unocal”. Mr Franchi was never contractually bound to Excalibur (although he provided some help on an ad hoc basis) and could not accurately be represented as Excalibur’s CFO or acting CFO. Nevertheless on 2 May 2006 Mr Wempen emailed Mr Patrick about having a “conference call with our CFO in LA” – a reference to Mr Franchi. He had also mentioned Mr Franchi to Mr Kozel as being a director of Excalibur.

On 3 May 2006, Mr Wempen emailed Mr Franchi to update him on the planned visit to Kurdistan. The plan was “to strike a deal for as large an exploratory concession as we can.” He went on to say:

On 7 May 2006, after a meeting on 4 May 2006 between Mr Wempen, Mr Clark and Mr Patrick to talk about the Kurdistan opportunity, possible areas and local contacts, Mr Clark of Gulf suggested to Mr Kozel that he should invite Mr Samarrai to help select areas that might be prospective and advise on how they might obtain data prior to the visit and what they should ask for during it. Mr Kozel agreed to this. Mr Samarrai met Mr Clark, Mr Kozel and Mr Al-Khaldi at Gulf’s premises and discussed structures in Kurdistan. On 15 May 2006, Mr Clark asked Mr Samarrai for a summary of his thoughts on the prospective areas in Kurdistan, which he produced in return for £ 1000 (2 days at £ 500 per day), and he came on the trip to Erbil in June 2006.

On 15 May 2006, Mr Clark also informed Mr Kozel that Dr Hawrami had resigned from ECL and taken up his new post in Kurdistan. Mr Kozel appears not to have taken this email about Dr Hawrami properly on board: when he went to Erbil the following month he was pleasantly surprised to see Dr Hawrami as the Oil Minister.

The Texas board had authorised Mr Kozel to take matters forward on Texas’ behalf in relation to Kurdistan. The Gulf Board was, at this stage, not particularly interested in Kurdistan, nor prepared to commit to any exploration, although (at any rate so far as Mr Guest was concerned) potentially interested in the opportunity.

On 13 June 2006 Mr Kozel met with Mr Guest and Mr Patrick to discuss the trip. He also had discussions with other board members around this time. It was agreed that Mr Kozel would, in relation to Kurdistan, act for Texas. The position was reflected in a draft minute (Footnote: ³⁸) prepared by Gulf’s solicitors, Memery Crystal, which (as later amended by Mr Patrick) read:

Between 17 and 20 June 2006 Mr Wempen (for Excalibur) and Mr Kozel (for Texas), accompanied by Mr Patrick and Mr Clark, together with Mr Samarrai visited Kurdistan and met Dr Hawrami (Footnote: ³⁹). Their purpose was to explore the possibility of obtaining a concession for oil exploration. Mr Kozel met Izzeddin Berwari and Azzat of the Dabin group.

A meeting took place (either on 18 or 19 June 2006) at the Oil Ministry with Dr Hawrami. Dr Yacu was there. Dr Hawrami came into the room with a big smile on his face; Mr Kozel was taken aback to see him; Dr Hawrami asked Mr Clark, whom he knew well, why the group had come to Kurdistan. Mr Kozel told Dr Hawrami that the purpose was as set out in Texas’ introduction letter and gave him his Texas business card. Dr Hawrami also asked about how things were going for Gulf (with which he had had a business relationship) in Algeria. He was also particularly interested in the fact that Mr Kozel owned Falcon Drilling. I do not accept that there was a presentation first for Gulf and then for Texas or that there was talk of Texas taking the lead in front but with Gulf being the main player.

There was no presentation by Excalibur. Whilst Mr Kozel was speaking Mr Wempen started to say that Excalibur could build roads, power plants, infrastructure and hospitals. He was cut off by Dr Hawrami who told him that he had created an unfavourable impression in Erbil because he had made lots of promises but had not delivered, and that there were a number of people in the KRG who were not happy with him. He was told by Dr Hawrami not to speak further at the meeting (Footnote: ⁴⁰). This was embarrassing for Mr Wempen. Mr Kozel says (but Mr Wempen disputes) that he later agreed with Mr Wempen that he should not attend further meetings at the Oil Ministry. Whether or not that was so, he did not meet Dr Hawrami more than once thereafter (August 2006) and even that is in dispute. Mr Kozel says that he turned up at Gulf’s offices but did not attend the meeting with Dr Hawrami.

Dr Hawrami made clear during the discussion that it was only a preliminary meeting and that no new contracts would be awarded until a new Oil Law had been put in place.

During the visit the group visited a number of sites, including Taq Taq (Footnote: ⁴¹). They were denied entry to Taq Taq where the licence was held by a Turkish consortium including Genel Enerji, into which Addax Petroleum had farmed-in in July 2005, but the drilling was being performed by personnel from a Chinese company, Great Wall Drilling, who were in some form of joint venture with a company – Taq Taq Operating Company – owned by Genel and Addax. I do not regard the fact that sites other than Taq Taq were visited as an indication that Taq Taq had never been presented as an opportunity; indeed the fact that an attempt was made to visit Taq Taq suggests that it was an opportunity that had been contemplated. I accept Mr Kozel’s evidence that it was a complete shock to Mr Wempen to find that Taq Taq had already been licensed and that he tried to blame Texas for not moving fast enough.

On 21 June 2006, Mr Wempen emailed Mr Berwari of Dabin to thank him and noted that “Our new partners, the Texas Keystone Petroleum corporation and I will be working on a final proposal for Dr Ashti Hawrami over the next month”. He spoke in similar terms to Dr Yacu on 28 June 2006. All the thank you letters (copied to Mr Wempen and sent at his request) came from Texas.

The Kurdistan trip had gone well. It had not produced the promise or offer of a contract which Mr Wempen had implied that it would. But contact had been made with Dr Hawrami who was happy for the consortium to study whatever sites it wanted to. After the return home, work started on preparing a proposal. Dr Hawrami invited Mr Kozel and Mr Patrick to the Henley Regatta on 30 June 2006 when he told Mr Kozel that he was keen for him to follow up on the Erbil trip with a proposal.

On 23 June 2006, Mr Clark emailed Mr Kozel with recommendations on what needed to be done in the light of the visit, which included retaining the services of Mr Samarrai, who started to gather together the best available maps. Mr Samarrai commenced working for Gulf on a consultancy basis. (A formal consultancy agreement was entered into on 21 July 2006 in respect of his services from 10 July 2006 and some, at any rate, of his fees were charged to Texas). He and Mr Clark were keen to investigate and to make a proposal to Dr Hawrami for the Demir Dagh structure, a prospect on which oil had been found to the west of Erbil.

Mr Wempen realised the need to raise money for Excalibur’s participation. On 25 June 2006, Mr Wempen submitted some sort of financing proposal to Mr Franchi which the latter described as “laughable”. Mr Franchi appears to have developed (without reward) some indicative investment returns for Iraq. On 26 June 2006, Mr Wempen emailed Mr Franchi to say that “We will have to arrange some significant 8 figure exploration finance to support our 30% of the Keystone work plan, and in short order.” Mr Wempen told him “we are not just doing energy here, but power and infrastructure” and that he was glad that he had Mr Franchi because he was a “finance professional and you can speak to investment bankers and investors in their language”.

Mr Franchi, however, was not optimistic. He told Mr Wempen that “to engage an investor in this difficult area we need to present information that is factually accurate. It will still be difficult to raise the funds, but credibility is a must”. The product of Mr Franchi’s work appears to consist of a single piece of paper entitled “II The Case for Iraq” which suggested that Iraq would have returns similar to the 11% P/E ratio for Pakistan.

As a result of the visit Gulf’s geologists’ interest in Kurdistan was stirred. Mr Kozel was enthused by Kurdistan. But he had decided to step down as CEO of Gulf because he thought the board was taking it in the wrong direction and because he had a very different and more entrepreneurial management philosophy than them.

Mr Patrick wanted to discuss with Mr Kozel the arrangements that would need to be put in place if Gulf was to take part in the project. A note prepared by Iain Patrick dated 13 July 2006 recorded (correctly): (i) that the only arrangement in place was the Collaboration Agreement between Texas and Excalibur; (ii) that Texas had the right under the agreement to introduce Gulf into the consortium; and (iii) that it was now appropriate to determine arrangements between Texas and Gulf (Footnote: ⁴²) so that both parties were clear on their roles going forward.

At a Gulf Board meeting in Algiers on 14 July 2006, the Board was presented with a paper on Kurdistan prepared by Mr Patrick which summarised the existing position including the fact (a) that the initial approach was from Excalibur to Mr Kozel “presumably as a representative of Texas”; (b) that the Collaboration Agreement had been entered into between Excalibur and Texas; (c) that under it Texas had a right to introduce Gulf into the consortium “and this would be an appropriate [time] to determine the arrangements between Texas and [Gulf] so that both parties are clear on their roles going forward”; and (d) that the third party costs of the initial trip were paid by Texas. He assumed that “all technical, commercial and legal work will continue to be done by [Gulf], assuming it is part of the consortium”. He said that, if the Board supported the continuation of an evaluation of this opportunity, the next step would be to agree the basis for cooperation with Texas Keystone (and Excalibur/Dabin) before much more cost and time was incurred.

The minutes of the meeting record that Mr Kozel was representing Texas in relation to Kurdistan and that there was no agreement between Texas and Gulf as to their respective roles in Kurdistan. They say:

It is apparent from the above that Gulf did not consider itself already a party to any agreement.

On 4 August 2006 Gulf farmed out 49% of its interest in the HBH concession in Algeria to BG North Sea Holdings Ltd (“BG”) which became the operator of the licence. The farm out raised $ 55 million and a further £ 13.4 million (less expenses) was raised later in the month with a successful share placement.

A return trip to Erbil for Saturday 13 August 2006 was planned to see Dr Hawrami. On 25 July 2006 Mr Wempen asked Dabin how he could get an appointment with Mr Barzani, the Prime Minister, to show him the final proposal. He also asked Mr Kozel to send him a letter to the PM letting him know that they were returning to Erbil on Saturday 13 August with a final proposal. Mr Wempen made arrangements to fly there via London.

By a letter of 31 July 2006 Mr Kozel requested a meeting with Dr Hawrami in between 7 and 10 August in Kurdistan. He told Mr Wempen that he declined to write to anyone until that meeting was fixed. In his instructions to Ms Berry Mr Kozel had asked her to write a letter requesting a meeting to review the “gkp proposal”. The letter of 31 July was on Texas paper (as Mr Kozel had instructed) and included the phrase:

Mr Wempen turned up at Gulf’s offices on Tuesday 1 August 2006 at a time when Mr Kozel was occupied with the Gulf Algeria farm out and was not around. He also attended a meeting with Mr Clark on 4 August 2006 when he was shown the presentation to be made to Dr Hawrami.

On Monday 7 August 2006 Dr Hawrami came to Gulf’s offices in London for a meeting. There is a dispute as to (i) whether Mr Wempen had been asked to attend a follow up meeting in London with Dr Hawrami; and (ii) whether he attended this meeting. Mr Wempen says that he was flown over by Gulf; he, together with Azzat, attended the meeting, which lasted for 1 ½ hours; Dr Hawrami was friendly; Mr Clark gave his presentation; Dr Hawrami said that for $ 60 million the consortium could have Demir Dagh. After it Mr Kozel said that Demir Dagh was “a dog” and that Gulf did not have the funds for that sort of bonus. But he told Mr Clark to prepare a full proposal.

Mr Kozel says that he had not expected Mr Wempen to turn up for the meeting (in the light of what had been agreed in Erbil) and he was not particularly welcome to Dr Hawrami. He had told Mr Wempen about the meeting for information; but, although he turned up at the office, he did not attend the meeting; nor did Azzat, who was with him. They stayed in the reception area. Either on that or a later evening he, Mr Kozel and Azzat, met at his house and went out to dinner. They spent other time together over the weekend.

I prefer the account of Mr Kozel. The likelihood is that Mr Wempen had not been asked to attend a meeting with Dr Hawrami, whose email to Mr Al-Qabandi of 4 August 2006 shows that he was planning to see Gulf and makes no mention of Mr Wempen. Mr Wempen came to London on his way to Kurdistan where he hoped to meet the PM. He turned up at the office with Azzat, who had been invited by Mr Kozel to London at Mr Wempen’s suggestion because Azzat was keen to get to know Texas – and Mr Wempen was keen that he should – and who was combining his visit with a holiday to see family in Holland. Neither were present at the actual meeting itself. Although Mr Wempen gives evidence of the content of the meeting, the figure of $ 60 million to which he refers is likely to be incorrect. It appears from an email from Mr Clark on 18 August 2006 that Dr Hawrami mentioned a signature bonus of US $ 250 million. Mr Kozel says that his reference to Demir Dagh as “a dog” was much later and that is consistent with Texas’ continued interest in Demir Dagh (see para 398 below).

An email of 3 August 2006 from Azzat indicates that Mr Berwari of Dabin wanted him to be at the meeting with Dr Hawrami (which may explain his presence at the office). But that does not mean that he was necessarily there; and his relatively junior position means that it is not surprising that the meeting took place between the Oil Minister and Mr Kozel alone.

The meeting lasted about half an hour (in the absence of much geological information). Mr Clark made a power point presentation identifying Demir Dagh as an area of interest, as well as 3 others.

On 7 August 2006, the KRG produced a draft Petroleum Law and draft model PSC. Mr Clark emailed it to Mr Kozel, Mr Patrick and Mr Samarrai.

On 9 August 2006 Mr Clark emailed Dr Hawrami a list of structures that were of interest. On 11 August 2006 Mr Wempen emailed Azzat referring to a US lobbying group to “help with plan B” which was to take more than one area. He urged Azzat to contact Dr Hawrami and take 4 prospective areas “and anything else you can”.

On 14 August 2006 Mr Wempen emailed a contact at Morgan Stanley saying: “I have got the ball rolling on a deal in Kurdistan, but it can take care of itself, and I am looking at infrastructure and energy analyst jobs in London.” This email is illustrative not only of Mr Wempen’s grandiose ambitions but of his mind-set, which was that he had performed the valuable introduction, which was his contribution to the venture, and it would take care of itself (through the activities of others).

On 20 August 2006 Azzat told Mr Wempen that he was arranging a meeting with Dr Hawrami and implored Mr Wempen to “Find funds”, a request that Mr Wempen ignored. He replied expressing his concern that he had wanted to finalise the deal with Mr Barzani on the latter’s trip outside the country, and was worried they were late. He urged Azzat to make a map of the properties that were available, to give the map to Mr Clark and to get a formal letter to Dr Hawrami and, via Mr Berwari, to the PM from Gulf; and to get an appointment with the PM. A little later he told Azzat that he needed to put pressure on the PM “so he knows our project is important to his friends and supporters. I hope Dabin is more important to him than the lobbying firm he hired in Washington”. As we shall see (para 1337 below), attempts by Mr Wempen to procure influence did not go down well with Dr Hawrami.

Gulf (in particular Mr Guest and Mr Clark) was becoming more interested in Kurdistan and Mr Clark worked on a draft proposal to send to the KRG. On 24 August 2006 Mr Clark sent Mr Kozel a draft (“We would like to confirm Gulf Keystone’s strong interest in … Demir Dagh”) but told Mr Kozel that he might wish to change the references from Gulf to Texas, which he did. On the same day Texas submitted a proposal to the KRG to confirm Texas’ strong interest in the exploration of the Demir Dagh structure. The following day Mr Clark emailed Dr Hawrami with the areas of interest in order of priority (Demir Dagh, Ain Sifni, Qadir Karam, Udhaim). Excalibur relies on this sequence of events as showing that Texas was fulfilling a purely nominal role. It seems to me, however, a recognition of the fact that the Collaboration Agreement was with Texas and that any participation of Gulf would be dependent on the preparedness of the KRG to have a non US company on the PSC.

In early September 2006, Dr Yacu told Mr Samarrai on a confidential basis that Dr Hawrami was going to force DNO to give up certain areas including Shaikan and Gulley Keer. The names of the blocks did not remain constant. At this time reference to Shaikan usually meant what became Sheikh Adi and reference to Gully Keer meant what became Shaikan (Footnote: ⁴³). DNO’s PSC had been awarded to it by the previous KRG administration and covered the whole of the Duhok area (considered by Dr Hawrami to be too large for one company). As a result the focus of Mr Samarrai’s attention shifted to these areas.

Excalibur claims credit for having, through Dabin, identified the area now known as Shaikan. According to Mr Wempen, at a meeting between Dabin (Azzat and Mr Berwari) and Dr Hawrami on 31 August 2006 Dabin went over a map and (according to Azzat’s account to Mr Wempen on that day or shortly thereafter, confirmed in another conversation on 17 September) Mr Berwari pointed out the Shaikan area (as now is) and Azzat said “we want these worms”. Dr Hawrami then agreed to allocate the Shaikan area to the consortium.

In an email of 1 September 2006 Mr Wempen reported on the meeting to Mr Kozel saying that “Azzat is saying Demir Dagh is ours to lose”; that Dabin and Dr Hawrami would meet Dr Barzani about Pirmum Dagh; that the KRG wanted Mr Clark to return and look at more areas; and that “Azzat thinks he has found a good area for us”. In an email the next day he noted that they had discussed “Demir Dagh, Pirmum Dagh, and other options”; and that Azzat was convinced that he had found a great area near Ain Sifni, “but you know how that goes. David should probably validate that, and will probably have to visit and create his own map”.

Azzat probably had identified an area he thought would be good, although where exactly that was is unclear. Any such identification cannot have been based on any geological or petrochemical experience since Dabin had none. Dr Hawrami may well have responded positively to Dabin at the meeting. (He appears to have had a map in his office on which he pinned names of which companies he was considering for what blocks). But he did not make any allocation. There appears to have been an indication at some stage that one exploration and one production block would be available.

Thereafter Mr Wempen was impatient to close the deal he understood to be available as soon as possible and for Mr Kozel to contact Dr Hawrami. He feared that others might get in first. On Monday 4 September 2006 he sent Mr Kozel, by mistake, an email intended for Mr Kinnear, entitled “Todd is wasting time”, which asked Mr Kinnear whether he had met Mr Kozel and Mr Al-Qabandi to emphasize that “We need to move to closure in Kurdistan”. He did not identify to Mr Kozel where Mr Clark should investigate. Mr Kozel responded that he had been told over the weekend by Mr Berwari to await a call from Dr Hawrami.

On 7 September 2006 Mr Wempen told Mr Kozel that “Basically this deal should be done. You have reserved blocks”. This was a reference to whatever block(s) Azzat had been referring to, which Mr Wempen could not in evidence identify. On 9 September 2006 he emailed Mr Kinnear to say that he wanted Mr Kozel to meet Mr Hawrami one to one, to sign a commitment letter and hopefully a contract too and then they should “move on to Uzbekistan”. The email includes the following:

On 10 September 2006, Mr Kozel had emailed Mr Clark to tell him to speak to Mr Samarrai because they were being directed to a structure, which Dr Yacu had come up with Azzat, north east of Ain Sifni and east of the DNO licence. On 13 September 2006, Mr Clark emailed Mr Kozel saying that the area they should press for was to the South East of the DNO block including Shaikan, Ain Sifni and Sheikh Adi. These were identified on an attached map.

On 17 September 2006, Mr Wempen, who had received a copy of the map from Mr Clark, emailed Mr Kozel and Mr Clark and said:

On 18 September 2006, Mr Clark responded to Mr Wempen’s email, saying:

On 20 September 2006, the KRG held a petroleum briefing in London, at which Dr Hawrami was present and which Mr Kozel attended. After it he wrote to Dr Hawrami expressing an interest in a rectangular block (“the rectangle”) of which he gave the relevant coordinates, which had been supplied to him by Mr Clark, who himself had had discussions with Dr Hawrami. This block included most but not the entire ellipse and extended beyond it to the south.

On 26 September 2006 a meeting took place at Gulf’s offices attended by Dr Hawrami, Mr Kozel and Mr Clark. As appears from Mr Clark’s emails to Mr Kozel of 28 September and 3 October 2006 there was discussion of blocks. Texas asked for the Shaikan and Ain Sifni anticlines. Dr Hawrami preferred to offer the Shaikan and Atrush anticlines (as they were all then named). The Gully Keer anticline appears to have been included with Shaikan. After the meeting Mr Clark reviewed the structure proposed and found Shaikan “very prospective” although Atrush less so. The coordinates of the somewhat odd shaped block discussed with Dr Hawrami were set out by Mr Clark in his email of 3 October 2006. This block included some of the area within the rectangle and almost all of what later came to be known as Shaikan. No agreement was reached for the allocation of a block.

Nevertheless Mr Wempen sent out messages suggesting that he had now clinched the deal. On 25 September 2006, he emailed Mr Franchi to report that the “Minister says we have a block reserved” but that it would be another month or two until the Kurdish Parliament enabled him to sign an agreement. On 27 September 2006, Mr Wempen emailed a “congratulatory message” to Mr Kinnear: “Looks like we have winner on this one...Now, on to Uzbekistan”.

On 28 September 2006 Mr Wempen sent Mr Kinnear a draft joint venture agreement between Excalibur and Fuel Handling Systems to acquire voting interests in multiple petroleum exploration and production projects. On 2 October 2006 he emailed Talal al Ghalib of Gulf Finance House undertaking to seek to raise $ 50 million for a Sharia compliant bank in Qatar. He then emailed his brother to see if he could find some UBS capital partners for this purpose; and contacted Mr John Allen of Lehman Bros, from whom he had previously got some advice about an Iraq fund, asking for advice in relation to the Qatar funding. He got no reply. None of the $ 50 million was ever raised by Mr Wempen.

Throughout October 2006 Mr Wempen was repeatedly asking about progress and when a contract would be signed. His impatience, borne of inexperience in respect of oil deals, ignored the need for an enacted oil and gas law, a draft PSC, identification of the coordinates of the field, consideration of the commercial terms proposed, and further geological assessment. He was also in contact with Dabin about various projects: housing, cement, tuna, security and a refinery. On 25 October 2006 he emailed Mr Kinnear to say that his “partners and I” were scheduling fundraising meetings for “a company to do business internationally, starting with taking passive positions in exploration rights in Iraq, Congo and Uzbekistan”. There were no partners and no such meetings took place. On 30 October 2006 he sent him an email seeking to exchange information so as to get “the team” started on fundraising. Nothing came of this.

On 13 October 2006, following further geological work by Mr Clark and Mr Samarrai, Texas wrote to Dr Hawrami seeking permission to negotiate a PSC for an area that included Shaikan (now Sheikh Adi), Gulley Keer (now Shaikan) and Atrush, as bounded by the coordinates in Mr Clark’s email of 3 October.

Gulf was now becoming increasingly eager to put in place arrangements which would secure it an interest in the Kurdistan deal, which, at that stage could only be achieved with a US company as operator. Since it was not a party to the Collaboration Agreement its participation in Kurdistan could be, but did not have to be, by an assignment to it of a Consortium Interest. On 25 August 2006 Mr Guest, who together with Mr Clark was particularly keen, emailed Mr Kozel to say that there needed to be a formal agreement in place between Gulf and Texas vis-à-vis Kurdistan “before we roll our sleeves up and go much further”. Following a further email from Mr Guest, on 11 September 2006, Mr Patrick re-circulated his note of 13 July 2006 (see para 381) discussing a partnership proposal with Texas, and suggested that Gulf take “50% of the project”, with costs, including time-writing (i.e. recorded hours), adjusted accordingly.

On 22 October 2006 Mr Kozel and Mr Patrick reported on the discussions with Dr Hawrami “which appear to have stalled recently” and expressed the hope that a forthcoming industry presentation would offer an opportunity to resume negotiations. Mr Parsons:

On 27 September 2006, Mr Guest emailed Mr Kozel to “get the GKP/TK relationship sorted out” proposing Heads of Agreement with Texas involving a working interest split of the 70% presently available to the non-Excalibur “group” (Footnote: ⁴⁴). He attached a list of the costs incurred by Gulf (£ 134,072 & $ 248,142) and Texas (£ 99,554 & $ 234,872) so far. Gulf, in the form of Mr Guest, was trying to muscle its way into the deal. On account of difficulties with members of the Gulf Board and in particular Mr Guest, on 18 September 2006 Mr Clark resigned and was replaced by David Mackertich as Executive Vice-President (Technical and Exploration), who had been hired without Mr Kozel’s knowledge. On 28 September 2006, Mr Clark emailed Mr Kozel to complain about the way in which Mr Guest was behaving. As he noted, “[Mr Guest] said that GKP will be operator and the operation will be run from the London office. This is contrary to the expressed wishes of Ashti [Dr Hawrami].”

On 29 September 2006, Mr Patrick emailed Mr Guest with draft proposals for Gulf to become a party to the Collaboration Agreement. His email noted that the “existing agreement between TK and Excalibur is quite detailed and envisages GKP becoming party to it.” He proposed wording providing that “GKP will become party to the Collaboration [Agreement]” and for Texas to remain the “operator of record” whilst subcontracting the role of operator to Gulf.

During the autumn of 2006 and beyond Mr Kozel’s relationship with the other members of the Gulf Board got markedly worse. In respect of Kurdistan, Mr Kozel represented Texas, while Mr Guest acted on behalf of Gulf. Mr Kozel was then thought to be about to leave Gulf, and no arrangement for Gulf’s participation had been made in circumstances where it was increasingly interested in doing so. There was, therefore, the prospect that he might leave Gulf and take the Kurdistan project with him.

Mr Kozel’s view was that, if the Gulf Board wanted to participate in the Kurdistan opportunity, it needed to start paying the invoices for expenditure incurred in relation to it because it was requiring expenditure to be made which was not necessary in order to decide whether to go ahead with the project. On 15 November 2006, he emailed Mr Hinderliter, the head of accounting at Texas, to tell him to send back two recent invoices to Gulf because Gulf was “taking over the project”, which should, he said, have read “taking over the expenses of the project”. On 16 and 17 November 2006, there was an exchange of emails between Gulf’s executives (not including Mr Kozel) which discussed what should now happen for Gulf to “take over” the project. The main issue was to ascertain the feasibility of getting a licence. As to that Mr Patrick asked “Is the original requirement for an American group still applicable (if so are we wasting our time?)”.

On 22 November 2006 Dr Hawrami emailed a model PSC to Ms Berry. On 24 November 2006, Mr Patrick emailed Mr Kozel to insist that they needed to “finalise the partnership arrangements” with Texas next week. Mr Kozel responded saying:

Mr Kozel’s evidence is that, at this stage, he was in a very uncomfortable position. He knew that Dr Hawrami (a) wanted a US company, (b) was negotiating with Texas, and (c) would not accept Gulf, a non US company, instead of Texas. He was about to leave Gulf, from which he regarded himself as being pushed out, and did not want an interesting project to be lost if it was denied to Gulf. At the same time he was being put under immense pressure by the Gulf Board, with whom he was scarcely on speaking terms, to secure a Gulf participation, in accordance with the understanding recorded in the draft minute in June (see para 370), and did not wish to appear to be obstructive. Gulf would not accept him telling them that the offer was only open to a US company. To get them off his back he decided he would take the proposal to the Texas board, which would have to decide whether to accept it. It would also be for Dr Hawrami to decide whether the proposal was acceptable to the KRG, which, in Mr Kozel’s understanding, it would not be. If there was to be a transfer to Gulf of the whole of Texas’ interest Excalibur would have to consent as well and Mr Kozel reckoned that they would not consent to a transfer of Texas’ interest because the American flag would be lost. By proceeding in this way he thought that he was keeping his options open. When he wrote the email he was, he said, being a touch sarcastic – as a sort of jibe about Gulf assuming that it could be involved. In essence he was going through the motions of 100% transfer, anticipating, rightly in the event, that it would not be acceptable to Excalibur or the KRG.

Excalibur submits that this is nonsense. The reality is that Mr Kozel was recognising that Gulf should now formally take its place as leader of the consortium of which it was already the effective leader.

I accept Mr Kozel’s evidence. He was about to leave Gulf and would not have been happy for the project, which was at that stage a Texas project, simply to pass to Gulf, who, as matters stood, could not be on the PSC. However, I am not sure that he was being sarcastic; any sarcasm would not be apparent from reading his email and it seems to me that his approach involved misleading Gulf as to, at any rate, his preparedness to assign.

On 24 November 2006 Mr Patrick sent a revised draft assignment agreement to Mr Kozel. He said:

On 28 November 2006, Mr Patrick emailed Mr Kozel to say that, if he was happy to sign the draft, which transferred the entire Texas interest to Gulf, then “GKP would pick up all costs from now on and would reimburse Texas Keystone’s past costs.” The idea of Texas bowing out with nothing other than payment of its past costs (a position which in discussion with Mr Guest Mr Kozel had said was inadequate) did not appeal to Mr Kozel. At this stage he wanted the deal to stay with Texas.

On 30 October 2006 Mr Wempen had sent to Mr Kozel the Council of Ministers’ draft of the KRG Petroleum Law which had been produced on 21 October 2006 together with an explanatory memorandum. This included details of the statutory requirements for participants. On the same day the Texas proposal of 13 October 2006 (see para 413) which had been sent to the wrong email address and not received by the KRG was re-sent to Azzat for the Minister. On 12 November 2006 Texas sent a further letter to him asking for a meeting to consider the Texas proposal in order to begin negotiations for an exploration contract (Footnote: ⁴⁵).

On 22 November 2006, Dr Hawrami emailed a model PSC to Ms Berry inviting a proposal for Shaikan (now Sheikh Adi) and Gulley Keer (now Shaikan) but not Atrush. He said that the proposal needed to include a signature bonus and made it clear that the amount would be at least $ 10 million to $ 15 million as well as production bonuses and other commitments. He said that the KRG would be happy to proceed to completion in December. It was also clear from the model PSC that contractors would be required to make a very substantial investment including a minimum exploration programme and phased payments of production bonuses. Mr Kozel circulated Dr Hawrami’s email and PSC to Mr Wempen.

This was a very important development. From this point onwards Mr Wempen was aware that the parties to a PSC would be likely to have to pay a signature bonus within 30 days of signature as the model PSC provided. The 22 November email did not make clear whether the bonus was for each or for both structures. But at the lowest Excalibur would have to raise $ 3 million in short order. In his evidence Mr Wempen said he had complete confidence in being able to raise whatever sum of money was needed “given sufficient documentation”. In discussion with Mr Kozel he indicated that Excalibur would be able to come up with its share of the bonus.

In December 2006 Dr Hawrami was due in London and on 6 December 2006 Texas emailed him to ask to arrange a meeting to give a presentation on Demir Dagh and to finalise the discussions in relation to Shaikan and Gulley Keer.

On 15 December 2006 the Gulf Board met in Zurich. It noted RAK’s interest in taking over Gulf. This interest arose, at least in part, because Sheikh Sultan Al Qassimi was never happy with the public listing of Gulf, which meant that the board had to be reformed to reflect various regulatory requirements and led to the removal of some of his family members. The takeover would be a means of regaining control of the company.

In relation to Kurdistan the Board, according to the minutes, agreed to pursue negotiations to secure on acceptable terms the areas offered by the KRG to Gulf and it was proposed:

Although he was due to leave by December 2006, in the light of the fact that a suitable successor had not been selected and the approach from RAK, it was thought to be better for him to stay as CEO until the deal had been completed.

On 19 December 2006 Mr Mackertich circulated within Gulf a Kurdistan proposal for submission to the KRG. This included costings and a work programme for the Gulley Keer and Shaikan areas. It gave the prospects of success as 21%.

In early 2007 the bidding process for exploration blocks in Kurdistan was on hold as Dr Hawrami was negotiating a Federal Petroleum law.

Texas itself was becoming increasingly interested in pursuing exploration prospects in North America and, in particular in the Marcellus Shale formation in Pennsylvania, West Virginia and New York, which was amenable to “fracking” (Footnote: ⁴⁶). Texas’ increased interest in moving away from a high risk exploratory play in remote Kurdistan thus began to tally with Gulf’s increasing interest towards it. Mr Kozel discussed with his brother Robert a possible assignment by Texas of all or some of its interest to Gulf.

On 15 January 2007, Mr Kozel forwarded the draft assignment of 24 November 2006 to Robert Kozel and Steve Goda at Texas. Mr Kozel asked for the draft to be passed to Mr Wempen.

On 22 January 2007 Mr Wempen emailed Mr Kozel to say that matters were on hold because of the draft law in Baghdad and asked him to “let me know your thoughts on strategy, including whether you want to use Gulf Keystone instead of Texas for Iraq, and whether you want to look at other portfolio options ventured by Iain while we wait for Iraq to break, such as Uzbekistan.” On 24 January 2007 he emailed Mr Kinnear to say “We signed a deal with Texas Keystone, which will have to be expanded to include Gulf Keystone and will have to include other properties besides Kurdistan now, per our MOU, discussions, etc.” These communications are not consistent with any belief or understanding that Excalibur contracted with Gulf from the outset.

On 24 January 2007, Mr Kozel told Mr Patrick that the amendment to the bidding agreement had been sent by Texas to Mr Wempen. On 26 January 2007, Mr Patrick emailed Mr Wempen asking him to sign this amendment. He explained that “This brings Gulf Keystone in as a partner in place of Texas Keystone.” Mr Wempen said that he would check the mail and send a copy.

Mr Wempen was aware that Mr Kozel was having difficulties with the Gulf Board and that Gulf wanted to take over the deal. On 26 January 2007 he told Mr Kozel that he could transfer 95% unilaterally but that the Kurds had expressed a preference for and, he believed, still wanted a US company to lead the consortium.

On 3 February 2007 the Gulf Board met in Dubai. The minutes record that Gulf was waiting for Texas to sign the assignment agreement and that Mr Kozel would try to chase it up. The board decided to open an office in Erbil and that Mr Samarrai should be the Country Manager. Mr Kozel agreed to step down as CEO when requested and to continue as a consultant thereafter as requested.

On 28 January 2007, Mr Wempen emailed Azzat. He said that he “ke[pt] telling Todd to be patient” and that “Todd’s board gave him a very very hard time for not closing the deal. Our investors are doing the same to us.” The latter was not true. There were no investors doing that. At most there were contacts such as Mr Halpert wondering what was going on.

On 8 and 9 February 2007, there was an email exchange in which the Wempen brothers argued about whether a fund was the best way to proceed to raise finance. Mr Wempen expressed himself frustrated about trying, and failing, over 4 years to raise funds on a “deal by deal” basis, and was adamant that “we need a fund to get started with it”. Eric Wempen’s advice was: “Enough of ‘the fund’ stuff”. In effect he was saying – rightly – that Mr Wempen created an additional problem for himself by going down the fund route, because Mr Wempen had no experience of fund management. Mr Wempen was insistent that “these guys” (Footnote: ⁴⁷) were insistent on a fund idea. He went on:

As is apparent Mr Wempen was aware at an early stage of the need to find a sizeable amount of money as soon as any PSC was signed. In the spring of 2007 he made some efforts to get funding in place including looking at raising money via his Thames Chesapeake fund. There was no realistic prospect of this. Nor was there ever any prospect of UBS (or any other bank) providing debt finance for an exploration project such as this.

On 6 February 2007 Gulf made an official regulatory news announcement of the receipt of an approach to it to purchase its entire share capital. The possibility of such a takeover had first arisen in mid-December 2006 and Sheikh Sultan Al-Qassimi had declared his interest at the December Board meeting. The announcement did not identify the bidder. Mr Wempen’s immediate reaction was to tell Mr Kozel, in an email of 9 February 2007, not to sell Gulf until the deal in Kurdistan had been closed.

On 11 February 2007, in an email dealing with the idea of raising a fund, Mr Wempen emailed Mr Kinnear:

After several weeks of discussions, on 16 March 2007 the Gulf Board approved the terms on which it would recommend the offer to the Gulf shareholders. The official public announcement that recommended the takeover was not made until 13 April 2007. As part of its due diligence, RAK investigated Gulf’s contracts, and asked when Gulf would enter into an agreement with Texas and Excalibur on the Kurdistan opportunity: RAK was told that no agreement had yet been signed between Gulf, Texas and Excalibur.

On 4 March 2007 Azzat reported to Mr Kozel on a technical trip which Mr Mackertich and Mike Adams of Gulf had made to Kurdistan. He sought a contract between Gulf and Texas and the Dabin Group. Mr Kozel was surprised at this since he knew that Dabin was Excalibur’s partner, and did not want to get involved. In the end nothing resulted from the approach, although Mr Patrick and Mr Mackertich had thought it would be helpful to have Dabin committed to the project.

On 1 March 2007, Mr Parsons emailed Mr Patrick to say that he had spoken to Mr Kozel about Iraq and told him that the assignment agreement transferring Texas’ interest to Gulf had to be:

In the light of Texas’ increased interest in the Marcellus Shale Robert Kozel signed, on behalf of Texas, the draft Assignment Agreement for the transfer of the whole of Texas’ 70% Consortium Interest to Gulf. He also signed a Deed of Adherence in the form prescribed by Schedule 4 to the Collaboration Agreement on Texas’ behalf. That signature simply acknowledges delivery of the Deed. He had previously asked counsel to review the assignment agreement and some changes had been made. Mr Kozel had also emailed his brother with proposed revisions.

On 9 March 2007 Mr Kozel forwarded these documents to Mr Patrick. Excalibur’s consent was (as Texas realised) needed if this transfer (of the whole of Texas’ interest) was to take effect. Accordingly on or around 9 March 2007 Steve Goda sent copies of the transfer with attached Deed of Adherence to Mr Wempen for Excalibur’s signature.

Mr Wempen did not give that consent. Nor did Gulf execute the Deed of Adherence. On 15 March 2007 Mr Wempen emailed the documentation to his brother for review. On 16 March 2007, he emailed Todd Stevens of Occidental attaching the Thames Chesapeake term sheet, and sought his thoughts on the document. As the email noted “At this point, we have an agreement signed with an independent for co-investment on the deal we discussed, and wish to start lining up sources to back us when the deal closes”. There was no response.

At this stage Mr Wempen did not know who was seeking to acquire Gulf. On 21 March 2007 he mailed Mr Kinnear to ask him who it was and in a further email of the same date told him:

Also on 21 March 2007 Mr Wempen emailed his brother with a draft email to Mr Kozel expressing concern at an assignment of Texas’ entire interest to Gulf “coupled with a change in management that might be disadvantageous” and floating the idea of a buyout clause in the event of a management change at Gulf. Eric Wempen advised his brother to wait before sending that letter (which was never sent).

On 22 March 2007 Mr Kinnear replied to Mr Wempen. He expressed concern about what could happen if Gulf was taken over and the Kurds did not like the new buyer.

It is plain from these communications that, even before the meeting of March 23 2007 – see para 457 below – Mr Wempen and Mr Kinnear were against Texas assigning the deal to Gulf. Mr Wempen’s idea, as he acknowledged in evidence, was to keep the agreement with Texas alone. This stance is wholly inconsistent with Gulf already being a party to the Collaboration Agreement.

By 23 March 2007 Mr Wempen was in Washington having attempted to raise interest in his fund with Mr Javellana of Deutsche Bank in Los Angeles. They were not interested in a fund, nor was anyone Mr Javellana called. He met Mr Franchi as well. Nothing came of this either.

On Friday 23 March 2007 there was a meeting between Mr Kinnear and Mr Al-Qabandi. Mr Kozel, who was engaged with the RAK takeover, did not attend.

On Saturday 24 March 2007 Mr Kinnear reported to Mr Wempen that Gulf was to be taken over “by a crew of Arab UAE investors...It would be disasterious [sic] for our venture for them to appear complete with flowing robes and headgear in Kurdistan.” Mr Kinnear set out what was needed from Excalibur. This included:

There is a dispute as to whether Mr Kozel was present at this meeting. Mr Wempen, who was not at the meeting, says that Mr Kozel was present. Mr Kozel says that he had agreed with Mr Al-Qabandi that Mr Al-Qabandi should tell Mr Wempen what was happening, namely that Excalibur was being asked to consent to an assignment to Gulf which would prejudice the project because Gulf was not US owned; that he might have met Mr Kinnear in passing at Gulf’s office; but he was not at the meeting proper, being involved with the RAK takeover.

On Wednesday 21 March 2007 there had been a number of relevant email exchanges. Mr Kinnear emailed Mr Wempen to say that Mr Kozel was meeting with the Minister on Thursday 22 March (as he did – at a seminar in London) and he hoped to meet with Mr Kozel on Friday 23 March and added “I have spoken to Ali about chasing an ghost [sic] called Todd and I will info you”. Mr Kozel emailed Mr Kinnear asking for a time when he could call him or meet up. A little later Mr Kozel told Mr Kinnear he had earmarked Friday for a meeting and invited confirmation. Mr Wempen suggested to Mr Kinnear setting up a conference call while “you are meeting with Todd and Ali”. His email of 22 March 2007 to Mr Kozel said “I had heard you were possibly meeting with Ashti today and Iain and Ali tomorrow”. Mr Kinnear’s emails of 24 March 2007 reporting on the meeting observed that “Todd & Ali will be working with us more …” and refers to a six hour meeting, although that may have included lunch. The report of what was discussed uses the plural (e.g. the reference “they now support us and will agree to leave Texaskeystone in control with them technical back up partner.”).

I have come to the conclusion that Mr Kozel is unlikely to be wrong when he says he did not attend a six hour meeting with Mr Kinnear. I accept his evidence that he was not at the meeting. Whether he attended or not it is clear that the idea of a letter came from Mr Kinnear, who was concerned at the loss of a US owned Texas and the effect of an Arab owned Gulf, although it served Mr Kozel’s interests as well, since he did not want the deal to leave Texas. Mr Kinnear reiterated the need for two letters in an email to Mr Wempen on 25 March 2007. Mr Wempen emailed Mr Kinnear on 26 March 2007 to say “We should keep the deal with Texas if at all possible”. Mr Kinnear replied that “we need” a letter from “your mates in Kurdistan” saying the same thing. Mr Wempen agreed to write the Excalibur letter.

On 27 March 2007, in an email entitled “Please keep this deal at Keystone – I am attempting to secure the new bid format”, Mr Wempen informed Mr Kozel that any bid should be made in the name of Texas and not Gulf. He said:

In a formal letter attached addressed to Mr Kozel as Vice President of Texas he wrote:

Mr Wempen’s position is set out in his witness statement:

I reject the suggestion that the stance being taken by Mr Wempen was largely Mr Kozel’s idea, or his and Mr Al Qabandi’s, or that Mr Kozel was procuring a reluctant Mr Wempen to object. I am also satisfied that, although it may not have been able to prevent it, Excalibur did not want a partial transfer to Gulf, at any rate after the identity of the bidder was known. A partial transfer of any size would have given rise to similar problems in relation to Arab ownership as a 100% transfer and loss of control.

Excalibur’s position at this time is reflected in a pitch page that accompanies the draft Thames Chesapeake term sheet dated 1 April 2007 where the “Team” is listed as Mr Franchi, Mr Kinnear and Mr Wempen, and the “Public Partner” as “Texas Keystone Inc, Joint Bid Agreement Partner for Kurdistan, and potential partner for future acquisitions.” No mention is made of Gulf.

The pitch was extravagant in its pretensions. The “Concept” was described as:

The pitch described “Direct Investments in Oil Fields” and said of Kurdistan “Technical survey completed with conclusion of high probability of success”. No such conclusion had been drawn. Kurdistan was said to be “In final stages of approval with Oil Ministry”, when it was not. The pitch made claims in relation to Uzbekistan (“Producing fields located”) even though Mr Kinnear had previously told Mr Wempen that the target for Uzbekistan had fallen through. Under “Private Investment in Public Equities” it claimed “imminent expansion of midstream capabilities (pipelines)” – a reference which Mr Wempen could not explain. The document would not have withstood any sustained scrutiny by a banker or investor. The pitch also referred to investments in oil fields in the Middle East, North America, Central Asia, and Africa; it mentioned Uzbekistan, the Congo, and Kurdistan.

The term sheet itself misleadingly referred to the Fund’s two investment advisers – Excalibur and Fuel Handling Systems. Neither had any expertise in the provision of investment advice. Excalibur was described as an emerging market advisory firm investing globally from Washington whose two primary officers had “a combined 35 years in the energy business including three years on the ground in Iraq and participation in previous deals as members of other entities in the Gulf, Central and South East Asia, Africa and Latin America”. Excalibur had no officers and, even if Mr Franchi is to be counted as one, there was no combined 35 years’ experience in the energy business. Mr Wempen had none.

On 4 April 2007, Mr Wempen emailed Mr Kozel to say that “As it appears we are getting ready to bid, please send any further technical data you have, so we may provide further information to our investors. Please advise if Texas continues to lead the bidding, or Gulf.” This was another example of Mr Wempen referring to (non-existent) investors when he meant potential investors whom he hoped to be able to attract using the network of contacts on his Rolodex (Footnote: ⁴⁸). These and similar statements caused people like Mr Kinnear and Mr Kozel to think that there were persons waiting to invest when there were not.

On 6 April 2007, Mr Kinnear reported to Mr Wempen that Mr Kozel had submitted his resignation and noted they would be “dealing with a crew of new faces all run from Dubai” and that we should “keep it as Texas”. Mr Wempen in reply said that “We have been at this over a year, and Texas Keystone was supposed to bid five months ago. I am not sure how they managed to screw it up... Anyhow, I agree we need to keep it with Texas...”. This exchange shows that the idea of not having Texas assign to Gulf was very much a Wempen/Kinnear idea. I do not accept that all that was in discussion was the operatorship.

On 7 April 2007 Dr Hawrami emailed Mr Kozel a draft PSC for the Shaikan exploration block. The covering email read:

On 17 April 2007 Ms Berry forwarded the draft PSC and a copy of Dr Hawrami’s email to Mr Wempen and Robert Kozel. Mr Wempen read it, he said, as carefully as he could but did not recall looking at it in detail.

On 9 April 2007, Mr Wempen emailed Mr Kozel to say that “[s]o we may further communicate with our investors as to the timing and structure of this deal, please let me know whether you intend to submit under the Texas Keystone name (recommended) or Gulf, and forward both technical data and financial/valuation projections.” There were no such investors; nor had there been any communication to further. As is apparent Mr Wempen intended to rely on Texas/Gulf’s technical and valuation data.

The draft PSC left blank the names of the contractor entity. “Contractor” was defined to mean “either jointly or individually, []” so that if there were two they would be jointly liable. Article 9 required the provision by each entity constituting the Contractor of a guarantee to the KRG in respect of the Minimum Exploration Obligations, which were substantial: see Article 10.2. Mr Wempen’s evidence was that he did not recall seeing the guarantee; did not think he would have had a problem if he had seen it; and that Excalibur was not going to provide a guarantee because it was a consulting firm with no assets working alongside an operator who would be able to provide one. This, itself, would rule it out as a party to the PSC.

Article 32 provided for a signature bonus of $ 15,000,000 and a capacity building bonus of $ 10,000,000 (the combination is hereafter referred to as “the signature bonus”) payable within 30 days of the Effective Date, being the date when the conditions in Article 48 – signature by both parties and notice of ratification by the Prime Minister – were fulfilled (Footnote: ⁴⁹). It was thus apparent to Mr Wempen from then onwards that Excalibur, if on the PSC, was going to become liable to pay to the KRG at least some $ 7.5 million (30% of $ 25 million) within 30 days of any PSC becoming effective. In fact it would be jointly liable to pay the whole bonus (with rights of contribution). It was also apparent that Dr Hawrami had described the terms as non-negotiable.

In his evidence Mr Wempen suggested that Excalibur would not as between itself and Texas/Gulf be liable to make payment of its proportion of the signature bonus unless and until a JOA had been agreed between them incorporating a schedule of payments, which he said he anticipated signing fairly soon after the PSC. When such a JOA had been agreed (but not before) interest would accrue at 2% above LIBOR on due but unpaid amounts. He referred to the Accounting Procedure laid down in Schedule 1 to the Collaboration Agreement which provides for such interest on any advance required of a Party by the Operator but unpaid. In fact Schedule 1 does not have anything to do with unpaid bonuses. It relates to costs incurred pursuant to a program and budget in respect of the costs of data acquisition, joint studies and the preparation of any Consortium Bid and negotiation with the Government for any acreage: clause 5.2. It does not provide an indefinite “carry” by one Party of the other in respect of bonus obligations owed by the Parties to a PSC to the KRG.

In one version of the PSC sent to Mr Wempen on 5 May 2007 Mr Patrick had put the names of Texas and Excalibur on the PSC. In his oral evidence Mr Wempen said that he did not recollect discussing having Excalibur on or off the PSC with Mr Kozel and the likelihood is that at this stage he did not.

Mr Wempen’s evidence was that Mr Kozel and Mr Kinnear were always aware of Excalibur’s true financial position and that it was looking to raise a Fund or to obtain funds, on the back of the Kurdistan deal. They were, no doubt, aware of the fund idea, but, in my judgment, they were not, until much later, aware of Excalibur’s true financial position, namely that it was a company without any assets, without what could properly be called backers or investors ready to go, or anywhere near it; or that the oft repeated references to “our investors” and the like were illusory.

When he received the draft PSC Mr Wempen emailed Mr Kozel telling him to “send the bid in”. He asked for information to “update our investors” and “strongly recommend[ed]” that the bid should be made by Texas. Mr Wempen’s support for a bid implied that Excalibur would shoulder its share of the obligations of a contractor under the PSC when they arose. In effect, as he agreed, Mr Wempen was indicating that Excalibur would be good for the money when the time came and able to pay by one means or another. He gave no indication to Mr Kozel that there would be any problem. The investors were, of course, non-existent.

On 17 April 2007, Mr Wempen emailed Mr Javellana saying that he was heading out to New York to “meet with our oil company partner for the Kurdistan deal”. He said that “We are starting to move to closure now...” and that “We … need fundraising partners to commit in coming weeks”. Nothing came of this and around this time he gave up trying to raise money in advance of the deal. As Mr Wempen put it:

That approach amounted in effect to a recognition that, prior to the award of a PSC, Excalibur had no prospect of raising finance. It also meant that it might well have no finance available to meet its share of the bonus when the “terrible fact” materialised.

On 18 April 2007 Mr Compton, a petroleum economist at Gulf, emailed Mr Kozel a detailed analysis of the terms of the PSC, the gist of which was that they showed a significant downgrade on what had been expected in early January, noting that their initial expectation was to pay in the region of $ 10 million “for signature – and in some way stage this on milestones during the work program” whereas the draft provided for $ 25 million per block within 30 days of signature. He suggested a counter offer of $ 10 million per structure on signature and $ 10 million on commercial success. Mr Kozel forwarded that analysis to Mr Wempen on 19 April just before their meeting on that day. There was some discussion of the terms at that meeting.

On the evening of 19 April 2007 Mr Wempen and Mr Kozel met at JFK Airport in New York for about half an hour. Mr Kozel was on the way back to London. The meeting was at Mr Wempen’s suggestion. Mr Kozel handed over a package of data including geology work programmes, capital expenditure projections and contract information and contract economics based on an economic model of Mr Compton. He did some page turning. There was no detailed discussion, but it was apparent from what was there that a large amount of money had to be raised for the signature bonus and work programme budgets. This led to Mr Wempen suggesting that Mr Kozel or his father or one of his brothers should join the board of an energy fund which would finance Excalibur i.e. the Thames Chesapeake Fund. Their presence would give oil and gas credibility. Mr Kozel said that he was not interested. Mr Wempen asked him to speak to his family.

Mr Wempen’s evidence is that, in the telephone call arranging to meet at JFK, Mr Kozel invited Mr Wempen to work with him in any new company he formed after leaving Gulf; and that he repeated the offer, extending it to Mr Wempen, at the JFK meeting. Mr Picken QC suggested to Mr Kozel that this was because there was a possibility that Mr Wempen might agree to the transfer from Texas to Gulf and Mr Kozel wanted to keep him on side i.e. against the transfer. I think this is unlikely, even though Mr Wempen recorded such an invitation in an email to Mr Kinnear of 22 April 2007. Mr Wempen, with no oil or gas experience, would not be of use to Mr Kozel in any new company. Nor did Mr Kozel want, when poised to start a new company of his own, to embark on raising a fund for Excalibur. Mr Kozel was also quite likely to be able to persuade Texas not to transfer to Gulf if he was no longer part of Gulf. What Mr Kozel probably did indicate was that, if he formed a new company, Excalibur and that company could work together.

There was discussion about the consequences of any RAK takeover of Gulf. Mr Wempen was displeased that he had not been informed about the proposed RAK takeover in advance. Mr Kozel explained the constraints on reporting given that Gulf was a public company. Mr Kozel said that Excalibur should write formally recording its views, with reference to the public announcement of the forthcoming takeover and the fact that he was now going to leave Gulf. He did not tell him what to write.

On 20 April 2007, David Mackertich emailed members of the Gulf Board (but not Mr Kozel) to report on a conversation he had had with Mr Kozel on his return from New York. He reported that Mr Kozel had said that “Excalibur and Dabin had both provided letters saying that they would not accept a arab/muslim company (ie RAK) as operator”. He also recorded Mr Kozel as saying that “Excalibur were good for the money and were well connected (with some big US wigs) assoc with the company”. Mr Guest replied that Gulf had a number of choices which it needed to discuss, but that “In the meantime...we need to continue to adopt a position of total confidentiality and security in respect of all data and documentation associated with Kurdistan. No more information, data or thoughts must be shared with Texas Keystone...”. Gulf suggests that this is an unlikely approach for a company to have adopted towards another company which it is alleged to have used as its alter ego. I agree.

On 23 April 2007 Mr Wempen sent Mr Kozel the Thames Chesapeake term sheet and the Excalibur pitch page – see para 466 above – and invited Mr Kozel to have his name added to the Team. On 22 April 2007 he sent the pitch page to Eric Wempen and on 25 April 2007 he sent both documents to Mr Javellana following a discussion with him as to “how we might support Deutsche Bank’s energy strategy” and offered to give a presentation. Nothing came of this.

On 22 April 2007 Mr Wempen told Mr Kinnear that he was having “investor meetings” in New York. This was a reference to meeting UBS in relation to an oil deal involving a company called QTC and a man called Taleb al Nabet with a purported offer of large quantities of Russian diesel over a 12 month period. This deal, which may have been entirely illusory, came to nothing. In the email, he described UBS as “the same people raising our fund”. This was completely untrue. UBS was doing no such thing.

In his witness statement Mr Wempen says that he “believe[s]” that he also had “positive” meetings with Rodman & Renshaw and David Halpert of Prince Street Capital around this time, and that Rodman & Renshaw “invited me for further discussions should any deal be signed with the KRG”. There is no documentary evidence of any such meetings or discussions. There are no references in the disclosure to Rodman & Renshaw after 18 March 2006 when Cameron Smith sent a list of possible contacts to approach; and no references to Mr Halpert after an IRF document in 2005. If there were any such meetings, which I doubt, they did not come to anything.

On 23 April 2007 Mr Wempen emailed Mr Kozel: “Send the bid!”.

On 25 April 2007 Mr Wempen emailed to Mr Kozel the letter which had been discussed at JFK under cover of an email which said:

The letter addressed to Mr Kozel as Vice-Chairman of Texas, said:

Mr Kozel asked Mr Wempen to address the letter to Robert Kozel as President of Texas with a copy to him as CEO of Gulf and Mr Wempen then did so.

This letter is (a) wholly inconsistent with Gulf already being a party to the Collaboration Agreement; and (b) shows that Excalibur/Mr Wempen was opposing any transfer of ownership rights (albeit Excalibur could not stop a 99% transfer) because of the KRG requirement for a US partner and the need for OPIC insurance, which would require a US controlled consortium. There is no indication that everyone knew that in reality Gulf was already party to the agreement and that what they were engaged on was a deceptive sleight of hand.

Mr Kozel discussed the letter with Robert Kozel. Mr Kozel told him that Mr Wempen felt that having an American company bid would maximise the chances of success; and that he could not force Excalibur to consent to the assignment. They agreed that Texas would continue to investigate the potential opportunities in Kurdistan and Texas’ participation, if any, could be sorted out over time.

In the light of Excalibur’s refusal, which amounted to a rejection of any offer of Texas to Excalibur to assign to Gulf, the status quo remained. Gulf was not party to the Collaboration Agreement and Texas was to pursue the Kurdistan opportunity, which, as Mr Kozel understood it, required at least 51% American interests and Texas as operator.

On 26 April 2007, Mr Patrick sent Mr Kozel and others at Gulf a draft memorandum of agreement to be signed by Texas, Gulf, Excalibur and Dabin setting out the possible terms for participation by Gulf in a bid for the “Shekh Adi area in Kurdistan” (now broadly the Shaikan block as shown in the map attached to the memorandum). The draft provided for a bidding group comprised of Texas (35%), Gulf (35%), and Excalibur + Dabin (30% to be split in unspecified proportions). It envisaged that the parties would sign a new bidding agreement based on the Collaboration Agreement, as part of which they would agree a form of joint operating agreement, the principles of which were to include the following: (a) Texas was to be the official operator and Gulf the technical operator; (b) the costs of the Joint Operations would be funded in the specified proportions; each party was to provide a guarantee or cash collateral for its share of the signature bonus and work commitment under the PSC; and (c) any party that failed to pay its share of costs by the due date would be liable to forfeit and lose its whole interest in the Area.

Mr Patrick’s accompanying email expressed the understanding that the terms of the Memorandum were “acceptable to all parties” and asked Mr Kozel to confirm that they were agreed by Texas and to ask Dabin and Excalibur for their confirmation. The inclusion of Dabin as a party had not formed part of any previous proposal.

The exact genesis of the 35%/35% split is unclear. Since it would mean a transfer of only a portion of Texas’ interest it would avoid the need for Excalibur’s consent. It would also mean that there was a majority US ownership. Mr Kozel’s evidence was that this was simply Gulf’s proposal; Mr Patrick and Mr Guest had now understood that there would be no 100% transfer of Texas’ interest to Gulf and suggested that Gulf should now come up with another arrangement. Mr Kozel had said “make me a proposal”. Mr Kozel objected to the 35%/35% proposal because Texas would, if it was to be operator, as the KRG then wished, want a 51% interest at least and he made that clear. Excalibur suggests that Mr Kozel had indicated that a 35%/35% split would be acceptable.

The likelihood is that Mr Kozel said that, because of the need for a US led consortium, only a minority interest could be transferred. Since Texas had been prepared to assign 100% of its interest Mr Patrick, who was promoting Gulf’s interests, thought that assigning 50% of the interest, which would still mean US control, would be no problem.

On 1 May 2007 Mr Compton emailed to Mr Kozel, who forwarded it to Mr Wempen, his suggested terms for a proposed counter-offer for the PSCs for Gulley Keer and Ain Sifni. These envisaged in particular a $ 10 million signature bonus for each structure, making $ 20 million in all and production bonuses thereafter.

On 2 May 2007 Mr Wempen emailed Mr Kozel, saying that he had “good news” from Washington: Dr Hawrami had agreed to “the attached terms verbally”. Those terms included total signature bonuses of $ 5 million for each of the Gulley Keer (referred to by the Ministry as Shaikan) and Ain Sifni structures, i.e.
US $ 10 million in all. Mr Wempen asked to be sent the full contract with financial terms and geographic coordinates and told Mr Kozel not to contact Dr Hawrami separately. He said that “our envoy” was accompanying Dr Hawrami to Erbil that night. The “envoy” was, according to Mr Wempen, Mr Jonathan Morrow, a partner in the law firm Hill Stern and the senior legal adviser to the KRG’s Ministry of Natural Resources. Mr Wempen had had discussions with him earlier in the year and again at this time, when, according to his evidence, Mr Morrow had told him over the telephone on a bad line as they were getting ready to get on the plane that Dr Hawrami had verbally agreed the terms. Mr Morrow was not an envoy of Excalibur. The email, Mr Wempen said, should have read “his envoy”. Mr Wempen accepted that he may have misheard what Mr Morrow was saying.

I do not accept that Mr Morrow told Mr Wempen that Dr Hawrami accepted these proposals. The signature bonuses stipulated by Dr Hawrami on 7 April 2007 were
$ 25 million for one block, and there had been no counterbid. It is impossible to suppose that he now agreed bonuses which were 80% less than bonuses previously said to be non-negotiable. What exactly happened is not clear; but Mr Wempen must have got the wrong end of the stick.

Mr Mackertich then drafted a letter to be sent to the KRG which set out the terms referred to in the penultimate paragraph, with a total $ 10 million signature bonus, which he sent to Mr Goda; Mr Kozel signed it (on Texas paper) and forwarded it by email to Mr Wempen.

On 4 May 2007 Mr Patrick emailed Mr Kozel an amended draft Memorandum which deleted Dabin as a party and asked that Texas and Excalibur sign it as soon as possible “as you confirmed this morning that this is now agreed”. Mr Kozel replied “I confirm that the structure is verbally agreed and I will persue (sic) appropriate signatures”. According to Mr Kozel he meant that it was verbally agreed at Gulf but not yet at Texas. I doubt this. Mr Robert Kozel’s evidence was that he was content with the terms but understood that the percentages were not yet set in stone. Mr Kozel was trying to get Gulf off his back. What Mr Kozel said indicated to Mr Patrick (see the next para) that the 35% was agreed. Either he intended or was content for Mr Patrick to have that impression or he was intending to say that the idea of Gulf and Texas sharing an interest carved out from Texas’ 70% was verbally agreed (as in effect Mr Robert Kozel had done) but leaving room for a different percentage (e.g. one which would leave Texas with at least 51% of the whole).

On 5 May 2007 Mr Patrick sent Mr Kozel a revised PSC which included the changes in the proposed counter-offer set out in Texas’ draft letter to Dr Hawrami: see para 505. Mr Patrick wrote:

The draft PSC, which covered Gulley Keer (now Shaikan) and Ain Sifni, named the KRG, Excalibur and Texas as Parties and included an obligation on the latter two to pay the signature bonuses. On 5 May 2007, Mr Kozel forwarded the PSC to Mr Wempen, saying “Here is a DRAFT PSC that we have taken a stab at quickly amending as per your instructions”. The forwarded email chain included Mr Patrick’s email in the previous paragraph with its reference to Gulf having a 35% interest.

Mr Wempen said in evidence that he was somewhat surprised to find Excalibur’s name on the PSC but at the time did not have any problem with it. At that stage he had not considered in detail how to structure Excalibur’s participation. In his view, which he came to form some time in or after spring 2007, it did not matter whether Excalibur was to be a party to the PSC. He did not expect that it would necessarily have to be a party, and whether it was would depend on “how our financiers would want to arrange things”. He came to agree that the bid for a Shaikan PSC could go ahead without Excalibur being a party since under the Collaboration Agreement Excalibur’s interests could, as he thought, be recognised indirectly.

If Mr Wempen thought that the Collaboration Agreement gave Excalibur such an indirect entitlement, it was not as a result of any discussion with Mr Kozel (with whom he had not discussed the pros and cons of being on the PSC) nor was that understanding ever communicated to him. His misreading of the Collaboration Agreement was not induced by anything said or done by Gulf or Texas. Nor was it incumbent on Mr Kozel to have realised Mr Wempen’s mistake or corrected it.

Texas and Gulf suggest that Mr Wempen never believed that the Collaboration Agreement entitled Excalibur to participate on an indirect basis. In reality he realised that Excalibur was never going to get on the PSC because the KRG would not accept it as a bidding party since it lacked finance or competence. He therefore pinned his hope on being able to participate in some way by arrangement with Texas/Gulf after the PSC had been won and finance would be easier to find.

I do not believe that in 2007 Mr Wempen gave any careful consideration or clear thought to the question whether and, if so, how, the Collaboration Agreement entitled Excalibur to an indirect interest. The proposition itself does not spring from its terms; and even Mr Park had difficulty in formulating how it might. Mr Wempen was never particularly interested in the exact terms of the agreement. He no doubt regarded Excalibur as entitled to participate in some way if Texas and/or Gulf became parties to a PSC as his reward for introducing the deal, in a manner to be decided and subject to Excalibur bearing its share of the concomitant obligations at some stage (Footnote: ⁵⁰). He assumed that, in the event that a PSC was obtained, the funds would follow the deal. But how, if at all, any legal entitlement to an interest arose either from the Collaboration Agreement or the conduct of the parties, was not something to which at the time he gave much, if any, thought. So far as the documentation goes the idea of taking an indirect interest seems first to have been articulated – by Eric Wempen – on 13 November 2007.

I do not accept that it did not matter to Mr Wempen whether Excalibur was on the PSC or not. What happened, in my view, is that it became increasingly apparent to him that Excalibur would have the greatest difficulty in financing the obligations of a party under the PSC and in satisfying Dr Hawrami of Excalibur’s suitability. It had no assets of its own to speak of and, at some time in the spring, Mr Wempen had abandoned the idea of raising money in advance of the deal. It was, therefore, in Excalibur’s interest not to seek to become a party originally (or, at any rate, in early 2007 to defer any decision) in the hope or expectation that, with the PSC signed, it could raise funds and participate in the venture either by a farm in (so that it became a party) or in some other way. There may also have been other reasons why he came to regard it as in his interests for Excalibur not to be on the PSC: see para 928.

Mr Wempen immediately replied to Mr Kozel on 5 May 2007 “to correct any misunderstandings” and to make clear that:

Mr Wempen’s evidence was that this was all a “branding issue”, whatever that means. This email, in which, according to his evidence, Mr Wempen did not say anything he did not believe to be true, is, like so many others, inconsistent with the idea that Gulf was the main or “real” partner in the consortium in which Texas’ participation was “cosmetic”. There could scarcely be a plainer denial – in an email to which the KRG was not privy and where no cosmetics were needed – of any current interest of Gulf in the deal. I do not accept that all that Mr Wempen was saying was that the current PSC did not name Gulf. In the end Mr Wempen accepted in his evidence that he was anxious to avoid even a partial transfer to Gulf at this stage because of the possible consequences of an RAK takeover, subject to the qualification that he had no problem with “split issues being resolved later on down the line”.

On 6 May 2007, Mr Patrick emailed Mr Kozel again seeking the signature of Mr Wempen and Mr Robert Kozel to the Memorandum of Agreement “before we go any further”. Mr Kozel duly emailed them a copy of the draft memorandum, which set out the proposed Texas 35%/Gulf 35%/Excalibur 30% split.

On the same day Mr Wempen replied to Mr Kozel:

On 10 May 2007 the Board met in Zurich. Mr Kozel participated by telephone from Paris. Mr Patrick had circulated a note in advance dated 9 May 2007 reporting that Excalibur and Dabin had rejected the “previous understanding” for Gulf to take over Texas’ 70% interest in a bidding consortium, and had instead offered a non-operated 35% interest, which Mr Kozel had confirmed that the parties had agreed. The note included the memorandum providing for a 35%/35%/30% split.

The minutes record:

After the meeting Mr Patrick emailed Mr Kozel as follows:

As is apparent, there had been no assignment to Gulf; which, as matters stood, would have no legal interest under the PSC.

On 31 May 2007 Excalibur submitted an application to the US Department of Commerce requesting advocacy assistance in relation to Shaikan/Gulley Keer and Ain Sifni. The email accompanying the application said the following:

The Questionnaire itself, whose contents Mr Wempen certified to be true, described the project in this way:

Question A 8 asked whether the applicant was bidding in partnership or in consortium with other companies and then asked for the “Ownership/structure/control of consortium...”. Mr Wempen answered “70% Texas Keystone, Inc., 30% Excalibur Ventures, LLC.” Texas was described as the operator and Excalibur as investor. Dabin was mentioned as the local advocate and partner. The answer to question B 6 revealed that Excalibur planned to apply for OPIC insurance for the project once it was awarded.

Nowhere was there any reference to Gulf.

If, as Excalibur contends, Gulf was always the majority or real partner and Texas merely the outward face of the consortium and “place-holder for Gulf” this application was based on a lie. In fact it was not. The consortium at this stage was, by design, a consortium of Excalibur and Texas.

Robert Kozel, Mr Kozel and their father discussed the position of Texas in relation to Kurdistan from time to time. Robert Kozel’s view was increasingly that, if Texas was to participate at all, it would probably only want to do so at the smallest percentage that it could negotiate, so as to preserve its capital for projects in the Marcellus Shale formation, which would be less risky, less capital intensive and, it was thought, potentially more profitable. The likely future costs of the Kurdistan project were becoming apparent and they would be substantial. Robert Kozel had reviewed the draft PSC with its bonuses and other commitments.

What split was possible, and with whom, depended very much on the attitude of the KRG. At around early to mid-May Dr Hawrami was indicating to Mr Kozel that participants in Kurdistan would need to have a big enough balance sheet, both because the financial commitments would be large but also because of the need to avoid criticism from Baghdad that the PSCs were not being made with serious players.

On 6 June 2007 Mr Kozel emailed to Mr Guest Excalibur’s letter of 26 April refusing consent to an assignment by Texas to Gulf. By now his relationship with the Gulf Board had completely broken down and he was under serious pressure to secure Gulf an interest in Kurdistan. On 14 June 2007 he was sent a formal letter from Mr Parsons, the Gulf Chairman, setting out the Board’s concerns and the lack of any “satisfactory written confirmation of [Gulf’s] right to participate” and asking him to explain the status of all discussions and negotiations relating to his efforts on Gulf’s behalf in respect of Kurdistan. Mr Kozel did not read the letter at the time. He told Mr Parsons to send it to his lawyers. Mr Parsons reiterated his request for a response at the Board Meeting on 19 July 2007.

In his evidence Mr Kozel described the letter as an attempt to rewrite history insofar as it stated that he had been entrusted with the task of concluding Gulf’s participation in the Group. It took no account of the fact that he had declared his interest from the start and that it had been agreed that in relation to Kurdistan he would act for Texas. He had presented Gulf’s proposal for an assignment to Texas. In the light of (a) the understanding recorded in the draft minute; and (b) the way Mr Kozel had kept his options open in respect of any transfer and (c) Gulf’s increasing keenness to obtain all of Texas’ interest, the letter is not wholly surprising.

On 14 June 2007 Robert Kozel emailed Mr Kozel and Mr Wempen a revised Collaboration Agreement reflecting (by an additional recital to the Deed of Adherence) the possibility of a transfer of half of Texas’ interest to Gulf. Mr Kozel forwarded it to Mr Patrick and on 15 June 2007 Mr Patrick circulated a draft JOA between Gulf, Texas and Excalibur to Mr Kozel, Robert Kozel and Mr Guest. This provided for participating interests of 35%, 35% and 30%. All of this was soon to be overtaken by events.

On 14 May 2007, Mr Wempen sent an email to Mr Keith Schuette (a consultant to Prime Minister Barzani and a contact of Mr Wempen) to arrange a time to hand over to him “our proposal” at his yacht before he went to the airport in Washington. A later email of the same day refers to the handover of a “proposal packet”. Mr Schuette, who was introduced to Mr Wempen by Mr Behrens, is said by Mr Wempen to be a “longstanding consultant to Prime Minister Barzani”, working between Washington and Erbil. He was a US army officer who had been an adviser to the Kurds. According to Mr Wempen’s witness statement he was to take with him a copy of Texas’ letter of 1 May signed by Mr Kozel (see para 505) to Dr Hawrami. But in his oral evidence Mr Wempen said that it was a big presentation, too large to email, written by him, before reverting to saying that it was the 1 May 2007 letter, with an accompanying folder of documents. It is not at all clear what Mr Wempen in fact delivered for Mr Schuette to take, and why it had to be delivered by hand. I assume that it was some form of presentation of the project.

On 23 May 2007, Mr Wempen thanked Mr Schuette for “bringing our offer to Nichervan”, i.e. the Prime Minister. On 24 May 2007 Mr Schuette reported that he had left Erbil after a few days because the PM and Dr Hawrami had gone to Baghdad but would return. On 6 June 2007 he replied to the 23 May email saying that he was en route back to the US “essentially empty-handed” because Dr Hawrami was away most of the time and the PM said that lack of agreement on the oil law with Baghdad meant that it was not possible to finalize new deals.

On 14 June 2007, Mr Wempen emailed Mr Behrends to say that his (Mr Wempen’s) plane tickets were on hold and he wanted Mr Behrends to become involved in the deal, because Dabin was not getting the deal done. He suggested that if Mr Behrends was friends with “Talibani’s son (Footnote: ⁵¹), maybe we should just go straight through him and forget about Ashti and the Deputy Prime Minister”. He also said that he had received “interest in funding this thing from several quarters”. He had received no interest worth the name.

Mr Wempen also turned to Mr John Maguire (JM) of the Decapolis Group, who had previously worked for the CIA in Baghdad. He hoped that they would bring “some pressure to bear on Dr Hawrami to sign our deal”. On 19 June 2007, Mr Wempen emailed Mr Behrends about the need to talk to Mr Maguire. His email said that they were “moving forward with both a good public and private diplomacy strategy”. Mr Wempen noted “I think it would be best for me to talk to JM and address some specific issues regarding the private approach to the Barzanis. JM is taking off in a few days for Erbil, and we do not want to miss this opportunity. Schuette is apparently not going to hand our packet to the Barzanis, but John should, especially if we mention certain friends of mine”. Mr Wempen suggested initially that “certain friends” was a reference to Dabin. It is more likely that it was a reference to some US politicians, members of the Congressional Kurdish caucus or the like. PM Barzani knew Dabin, as Excalibur’s agent, so mention of their name was unlikely to have any helpful effect. Later on 19 June Mr Wempen emailed Mr Behrends to say that he had been pushing to try to meet Mr Maguire before he, Mr Wempen, left “so he could carry the packet”.

As is apparent from the previous paragraphs Mr Wempen was attempting to set up a parallel route to influence the KRG not involving Dabin. This may not have been a good idea. Dr Hawrami did not welcome this sort of alternative approach.

On 19 June 2007, Mr Wempen emailed Mr Maguire. Mr Wempen described the consortium as including Texas, Dabin and Excalibur, with Texas as operator of record. It referred to a plan for Texas to accept a minority interest from Gulf. Excalibur was said to be a “special purpose vehicle backed by international investors”. This was untrue – there were no such backers.

On 21 June 2007, in response to some questions from Mr Maguire of 20 June, Mr Wempen wrote:

On 19 June 2007, Mr Wempen emailed Mr Behrends to discuss Mr Maguire and his company. Mr Behrends had forwarded to Mr Wempen an email recording that Mr Maguire had successfully brokered a PSC between an American oil company and the KRG. Mr Wempen said:

When asked why he wanted the deal to be “under the radar” Mr Wempen suggested that it was because Baghdad had not approved the Kurdish deals, although later he said that he wanted the negotiations kept confidential which is not the same thing. He persistently failed to give any clear explanation of his reasons other than general statements about wishing to operate in as confidential a way as possible. The likelihood, as it seems to me, is that one reason why he wanted the deal to be “under the radar”, so far as Excalibur was concerned, was so as to preserve his options for doing business in southern Iraq. He appears also to have been concerned that he might lose or imperil his top secret security clearance (then under, or about to be under review) and harm his political connections if his company was party to a PSC with the KRG – which was against US policy at the time.

On 21 June 2007 Gulf announced that negotiations with RAK had terminated. This happened because the takeover had been conditional on the approval of the Algerian government and RAK was not prepared to make the $ 10 million payment which it required.

The effect was very marked. Mr Kozel, who had been wanting to leave, together with Mr Al-Qabandi and Mr Al-Khaldi, because they envisaged a different strategy, now thought it was those who had championed the takeover – (i) Messrs Parsons and Guest, who wanted to sell and get out; (ii) Sheikh Sultan Al-Qassimi, who wanted to take over the company through RAK; and (iii) Messrs Patrick and Cooper who had wanted a greater financial stake – who should consider their positions.

On 29 June 2007 the KRG published its final draft of the Oil and Gas Law.

On 1 July 2007, Mr Wempen revised the Thames Chesapeake term sheet. He added a biography of Mr Kozel and a sentence to the body of the text: “The fund is led by a management with deep global experience in energy, property acquisition and portfolio analysis”, a reference to Mr Kozel. There is a dispute as to whether Mr Kozel did in principle agree to join Thames Chesapeake. Excalibur points to the fact that Mr Kozel sent no email saying in plain terms that he was not interested. Mr Kozel says that he made plain that he was not interested; but that Mr Wempen was like a dog with a bone who would not take no for an answer.

I think it unlikely that Mr Kozel agreed to join the fund in principle. He had enough to be getting on with without raising a fund for Excalibur. There was a discussion between him and Mr Wempen on or about 5 July 2007 at which Mr Wempen went through the draft term sheet and a proposed service agreement between Excalibur and Mr Kozel under which he would act as managing director of Thames Chesapeake Limited Partners, both of which documents he mailed to Mr Kozel the next day. Mr Kozel may have said that he would think about it or that he would show the term sheet to his attorney, as a way of getting Mr Wempen off his back. On 6 July 2007 Mr Wempen emailed Mr Kozel the draft term sheet for forwarding to Mr Kozel’s attorney saying:

On 2 July 2007 Mr Wempen met Mr Kozel and Mr Al-Qabandi at lunch in London. They discussed Dabin’s desire for an enhanced profits share and a separate agreement with Texas. Mr Wempen drafted an agreement between Dabin and Texas based on the Excalibur-Dabin agreement that afternoon under which Texas would pay Dabin 10% of Texas’ net profits generated by the Kurdistan project and sent it to Mr Kozel and Mr Al-Qabandi. Mr Kozel forwarded it to his brother. It was never executed.

Excalibur still wished to maintain an exclusively US consortium involving only Excalibur and Texas. On 5 July 2007, Mr Wempen emailed Azzat asking for a letter from Dabin to Mr Kozel setting out its insistence that Texas remain the lead company with Excalibur. He had discussed with Mr Kozel what needed to go into the letter. The draft provided by Mr Wempen read:

As is apparent Excalibur had for a prolonged period refused to consent to Texas assigning any of its Consortium Interest to Gulf. That it did so is not only inconsistent with the case that Gulf was already a party to the Collaboration Agreement; but also with (a) Gulf having the ability to dominate Texas (or control it); or (b) the existence of a de facto joint venture or three way bidding consortium of Texas, Excalibur and Gulf by virtue of which all three participants owed each other fiduciary duties of loyalty. Excalibur plainly did not regard itself as under any such duty to Gulf. Given that Gulf was not a party to the Collaboration Agreement it was entitled to act independently of Excalibur, including bidding for a PSC by itself and would commit no breach of contract or tort if it did so.

At this moment Dr Hawrami invited Mr Kozel to go to Erbil for a meeting. He wanted to hold discussions with the six interested companies before the bid round got under way. Mr Kozel went there like a shot. He told Mr Wempen of the trip and Mr Wempen, who was in London, asked to come along. On Sunday 8 July 2007 the two of them, together with Mr Mackertich, left for Erbil.

It is common ground that Mr Wempen did not meet Dr Hawrami on the trip. But there is a dispute as to the precise sequence of events.

Mr Kozel says that on the evening of Wednesday 11 July 2007 there was a barbecue at Mr Berwari’s house, to which Mr Wempen was not invited and at which neither Dr Hawrami nor Mr Mackertich were present. Either then or later on the trip Mr Berwari asked for an agreement with Texas. On Thursday 12 July 2007 Mr Kozel met Dr Hawrami for dinner at his government residence during which Mr Mackertich gave a technical presentation. Mr Khaled Shah from the Minister’s office was also there.

Mr Wempen says that there was a meeting between Mr Kozel and Dr Hawrami at Mr Berwari’s house on 12 July 2007 which neither he nor Mr Mackertich attended. They both stayed at the hotel.

I prefer the evidence of Mr Kozel. It seems to me unlikely that he has wholly misremembered Mr Mackertich’s participation at the meeting of 12 July or its location. That meeting is referred to by Mr Mackertich in his email to Gulf colleagues dated 13 July 2007 (see para 559 below).

Mr Kozel’s evidence was that at the meeting with Dr Hawrami Mr Mackertich gave a presentation in respect of Shaikan and Ain Sifni which Dr Hawrami said was one of the best he had seen. In addition to these Mr Mackertich had identified block K 38 (Footnote: ⁵²) as of interest. Dr Hawrami was not prepared to allow one operator to have 3 blocks. He wanted one block per operator, or at most two, because he wanted as many foreign flags as possible. He discussed the need for participants in the PSC to have big balance sheets, something he had mentioned to Mr Kozel before. Mr Kozel asked whether it would be possible to have two blocks with the participants’ interests being split between the two, and suggested various partners including MOL, Lundin and Premier Oil. Dr Hawrami could not assent without consulting the PM and the next day he telephoned, having consulted the PM, to agree this in principle (Footnote: ⁵³).

In the course of the meeting Excalibur’s name was mentioned. Dr Hawrami did not say that Excalibur was not welcome. What he did say was that small companies were not of interest to him and that what he wanted was bigger companies. This signalled to Mr Kozel that Excalibur would struggle to persuade Dr Hawrami to let it on the PSC.

It is common ground that after the meeting with Dr Hawrami Mr Kozel told Mr Wempen that he had the impression that Dr Hawrami no longer needed to have a US company as operator; that Mr Wempen said that he would leave the final negotiations to Mr Kozel as well as the final split between Texas and Gulf; and that he said that it made no difference whether Excalibur was named as a party to the PSC.

Mr Kozel’s evidence is that he came back from the meeting and reported that it looked strongly as if they would get one block; and that they were waiting for Dr Hawrami to get back to them (having spoken to the PM) on the possibility of two. He told Mr Wempen that the Minister did not think that a company like Excalibur would be acceptable on the consortium – he wanted bigger companies – and that Mr Wempen would have to get himself sorted out, with the assistance of Dabin and any other contacts, if he wanted Excalibur to be approved. It was in that context that Mr Wempen said that it was not necessary or made no difference to him whether or not Excalibur was on the PSC. There were drinks on the lawn but no celebration.

Mr Wempen’s evidence was that after his meeting with Dr Hawrami Mr Kozel returned to the hotel with Azzat and reported that the deal was done and the details would be discussed the next day. A joyous celebration ensued. On the following morning – Friday 13 July 2007 – Mr Kozel and Mr Mackertich went back to the Ministry to give the technical presentation. It was on that morning that he was told by Mr Kozel that he had the impression that Dr Hawrami no longer needed a US company named as operator. Mr Wempen said that that was fine with him and that he left everything in Mr Kozel’s hands – the final negotiations with the KRG and the final spilt between Texas and Gulf. He also said that it made no difference to him whether Excalibur was a named party to the PSC. In reply Mr Kozel said that he would not “screw [him] over” in Kurdistan. The group posed for a celebratory photograph in the parking lot (as they did).

I prefer Mr Kozel’s account, which I found credible for a number of reasons. First, however positive the meeting, no deal was done, as appears from Mr Mackertich’s email of 13 July 2007 which is much more modest. It records:

Secondly, it seems to me unlikely that Mr Kozel and Mr Mackertich should have secured some sort of deal without making any presentation and then return to the Ministry after the deal to make one, let alone on a Friday when the Ministry would be closed.

Thirdly, Mr Kozel’s explanation of the problem facing Excalibur in getting on the PSC provides the likely context in which Mr Wempen would have said that it made no difference to him whether Excalibur was on the PSC or not.

There is a dispute as to whether the conversation between Mr Wempen and Mr Kozel took place in the evening after the meeting or the next morning. Since the meeting went on until the small hours there is not a great deal of difference. The likelihood is that Mr Wempen was told about it as soon as Mr Kozel came back from the meeting. On the evening of Thursday 12 July Mr Wempen learnt from his brother that his mother had only weeks to live (both he and Mr Kozel recall that he was called to the phone after Mr Kozel had reported back when they were having a drink at a table or on the lawn) and he was heavily shaken by the news. Mr Kozel arranged the flight for Mr Wempen to return to the United States the next morning. He flew back to Los Angeles via London.

Mr Kozel accepts that there was an occasion when he told Mr Wempen that he would not screw Mr Wempen over Kurdistan. Mr Wempen says that it was as he was about to set off to the airport with Mr Mackertich. Mr Kozel does not recall when it was. I think that it was probably said at a later date in November 2007. In an email to his brother of 18 November 2007 Mr Wempen records the use of that phrase in the context of the dispute which then arose as to the terms of a Non-Disclosure Agreement.

Even if I am wrong on that, Mr Wempen accepts that he was not in this conversation seeking to effect any change in the legal position of Excalibur vis à vis Texas and Gulf nor did he think that Mr Kozel was doing so either.

After he had returned home Mr Wempen emailed Mr Kozel from Los Angeles on 15 July 2007 “Did we get it”. Mr Kozel sarcastically replied “Did we get what?” Mr Wempen said “R u kidding”. These exchanges shows that nothing that could be called a deal can have been thought to have been done in the evening of 12 July.

What happened in Erbil did not, in my judgment, mark the inception of, or prelude to, a cunning plan on the part of Mr Kozel to steal the deal from Excalibur, much less to do so by taking advantage of Mr Wempen’s departure to see his dying mother. In a discussion that cannot have lasted very long Mr Kozel reported truthfully on the upshot of his meeting with Dr Hawrami and its implications for Excalibur. In response Mr Wempen volunteered the fact that he did not mind whether Excalibur was on the PSC or not.

Mr Wempen did not resile from that position at any time prior to the signature of the PSC. He was also content for MOL to be a party to the PSC. As Excalibur’s Reply (para 8) and Mr Wempen’s oral evidence confirm, he consented to Excalibur not being on the PSC. He was content to adopt that stance because, as he must have recognised, Excalibur would face great difficulties in getting on the PSC, and would probably have to postpone its participation (in whatever form) until it had raised funds once the PSC had been signed and the deal struck. Mr Kozel realised that, if Excalibur did not want to be on the PSC, that would mean that it would be withdrawing from the process provided for by the Collaboration Agreement, which was designed to lead, via a bid, to a PSC and a JOA. But, if it could raise the necessary funds and become acceptable to the KRG, it might be able to participate in the PSC after that had been obtained. If Excalibur could come up with the money Mr Kozel was happy to have it on board. (Footnote: ⁵⁴)

Mr Kozel left Erbil on 15 July 2007. He then left London for a Gulf Board meeting which was to take place in Zurich.

On 17 July 2007 Mr Wempen again emailed Mr Kozel his proposal that Mr Kozel join his fund by forwarding his email of 6 July. The next day he re-sent it, saying “Let’s get this done and head out to Uzbekistan and beyond”.

The Gulf Board was now rift with dissension. On 19 July 2007 at its meeting in Zurich (where most of the directors attended by telephone) Mr Parsons, Mr Guest and Sheikh Sultan resigned. So did Mr Patrick and Mr Cooper although they were to stay until their notice expired. The meeting was adjourned to 23 July 2007 in Budapest. Mr Kozel was appointed Executive Chairman and Mr Al-Qabandi as a director.

By this stage Gulf was critically short of funds. Mr Cooper produced a paper for the Board meeting and an update for the adjourned meeting which predicted that Gulf would run out of funds during the second quarter of 2008 on account of the funding needed for Algeria. Mr Mackertich presented a technical update. The minutes record:

As is apparent from the minute, by this stage it was looking likely that Texas would only take a small proportion of the equity to the extent required by Dr Hawrami. As matters progressed through 2007 Gulf had sought to have as much of Texas’ 70% as it could get. The proportion of its 70% interest that Texas might transfer – reflected in communications passing between Gulf (in the form of Mr Patrick or Mr Guest) through Mr Kozel to Mr Robert Kozel – had varied from a possible 100% to nil (when RAK was poised to take over Gulf) to 50% (when the RAK takeover had failed and as suggested by Gulf). Mr Kozel’s view was that, if Texas, as a US company was needed for the deal, it would want to have at least 51% and be operator. If it was not needed for the deal, it could take a much lesser percentage (or even none at all). By this stage (a) it was beginning to look likely that the operator would not have to be a US entity; (b) the Texas board wanted little involvement in Kurdistan; and (c) Mr Kozel was in the ascendant with Gulf. In those circumstances a minimal Texas participation made sense for Texas, Gulf and Mr Kozel.

On 19 July 2007, whilst Mr Kozel was in Zurich for the board meeting, Dr Hawrami telephoned him to offer him a choice between blocks 5 (Shaikan) and 6 (Ain Sifni) and he chose Shaikan.

By this stage Gulf had been in discussions with MOL about some form of collaboration in relation to Kurdistan. MOL was looking at taking an interest in Gulf and, in the light of what Dr Hawrami had said about the need for the parties to PSCs to have large balance sheets, Mr Mackertich was keen to get them involved in a partnership for block K 38. On 20 July 2007 Mr Kozel and Mr Mackertich met MOL in Budapest. At this stage he and Mr Patrick proceeded on the basis that for the block 5 (Shaikan) bid Gulf, Texas and Excalibur would be parties with Texas as operator and for the Block K 38 bid (Qadir Karam and Udhaim) MOL and Gulf would be parties with MOL as operator.

On 25 July 2007, Mr Mackertich emailed to Mr Kozel a draft proposal to Dr Hawrami on Gulf headed paper for the K 5 block (Shaikan) which enclosed a draft PSC (the “July draft PSC”), naming Gulf, Texas and Excalibur as parties. He also enclosed the draft proposal for the K 38 PSC. The K 5 proposal said:

On 26 July 2007, Mr Kozel emailed the draft proposal and PSC for Shaikan and the cover letter to Dr Hawrami to Texas (Mr Robert Kozel), Excalibur (Mr Wempen) and Dabin (Azzat). This served to underline the fact that if Excalibur wanted to be on the PSC it would have to fund over $ 7.5 million of bonus within 30 days of signature. Mr Wempen did not at this stage tell Mr Kozel that he would have any difficulty in raising the money in time, or suggest some alternative structure for Excalibur’s investment. On 29 July 2007 he emailed Mr Kozel to say that it looked like they were “back in the driver’s seat” in Kurdistan.

Mr Wempen accepts that at about this time he spoke with Mr Kozel on the telephone and was told that Dr Hawrami wanted to bring in a larger player to take a minority interest and that he had begun discussions with MOL.

According to Mr Kozel, at the end of July or beginning of August 2007, he met Dr Hawrami at the Lanesborough Hotel in London. He puts the meeting at some point between Monday 30 July 2007 and Thursday 2 August 2007 as it was during this timeframe that Excalibur’s name was removed from the draft K 5 PSC (see para 587 below). I accept his evidence as to this meeting. Mr Kozel may have been on holiday on and after Thursday 26 July 2007, but he is likely to have been back in London by at least Wednesday 1 August 2007 because this is when Mr Cooper on 25 July 2007 suggested a meeting to discuss Gulf’s finances.

At the meeting the two of them discussed the possibility of a PSC and who would be acceptable as a party to the PSC. Mr Kozel believes he probably showed Dr Hawrami a copy of the July draft PSC which shows Excalibur as a party. He certainly spoke of the parties. Dr Hawrami told him that Excalibur was not acceptable as a party to the Shaikan PSC because it was not an oil company or a serious player. He made it clear that he would not approve Excalibur. Mr Kozel told Mr Mackertich that Dr Hawrami wanted Excalibur removed from the PSC.

I accept his evidence that he also told Mr Wempen not very long afterwards words to the effect that Dr Hawrami had said that he did not want Excalibur to be on the Shaikan PSC; that it had not got itself organised or shown that it was a serious party for a PSC; and that Mr Wempen/Excalibur needed to get its act together (or some vernacular phrase which conveyed that message) by getting approval using Dabin and whatever contacts he had, if it wished to be on the PSC. In his evidence Mr Kozel indicated that this could be done by proving that Excalibur had finance and technical capabilities, which would involve assembling the right team, by using Dabin with its access to the Prime Minister, and by pitching Excalibur as a serious player to Dr Hawrami (Footnote: ⁵⁶).

I accept that evidence because I regarded Mr Kozel as a reliable witness in this respect and because there seems to me no good reason why he should not have revealed that which he had been told, particularly in circumstances where Excalibur indicated that it made no difference to it whether or not it was on the PSC.

Excalibur disputes that this meeting between Dr Hawrami and Mr Kozel took place or, if it did, that the content of it was passed on. It points to (i) the absence of any contemporaneous note of the meeting or the arranging of it; (ii) the fact that on 14 and 21 August 2007 Mr Kozel made written requests for a meeting with Dr Hawrami without reference to this earlier meeting; and (iii) to the absence of any email to Mr Wempen delivering this important and unwelcome news.

I do not regard these points as compelling. Mr Kozel was not in the habit of making notes of his meetings with Dr Hawrami. They would meet from time to time either at the Lanesborough (Dr Hawrami’s favourite hotel in London in 2007) or at Gulf’s office when they were both in London. There were several (unminuted) meetings in August and September 2007. Both Dr Hawrami and Mr Kozel, who had a friendly business relationship (and socialised a bit), were peripatetic. Dr Hawrami would call up when he was in London and invite Mr Kozel to walk round to see him at the hotel a few blocks away from Gulf’s offices.

The fact that a meeting of the kind described took place is consistent with the matters to which I refer below. Dr Hawrami was considering at this time who would be acceptable on the PSC. It is clear that he, in fact, had a low opinion of Excalibur. Mr Kozel was the natural person to whom to communicate this view. That Dr Hawrami, an experienced oil man, should have held this view at this time is not surprising. Excalibur was a Wempen name plate with neither oil and gas nor financial experience. It had submitted no information to the KRG that vouched its suitability as a party to a PSC. What happened at this meeting was, in effect, a more explicit confirmation of what had been apparent from what Dr Hawrami had said in Erbil in July.

There is corroboration of Mr Kozel’s account from Robert Kozel. His evidence was that he had been informed by his brother during a telephone conversation in the first half of August 2007 that Dr Hawrami had specifically informed him that Excalibur would not be allowed to participate in the Shaikan PSC. His recollection of exact words was that Dr Hawrami had said that the Kurdistan government did not “recognise” Excalibur as a legitimate oil company and would not therefore “allow them to participate”. Mr Kozel told his brother that he had informed Mr Wempen what Dr Hawrami had said.

Excalibur suggests that Mr Kozel has invented his account of the Lanesborough Hotel meeting as an explanation for the subsequent process of squeezing Excalibur out of the deal in Kurdistan and as a cover story allowing him to say that he considered the consortium to be dead. This is unconvincing. In the light of what had happened in Erbil in July such elaborate subterfuge would have been unnecessary. As will become apparent I do not accept that Gulf sought to squeeze Excalibur out.

At around this time Excalibur’s name disappeared from the draft PSC. On 2 August 2007, Mr Mackertich sent Ms Berry the latest drafts of the Shaikan (K 5) and Qadir Karam and Udhaim (K 38) PSCs. The Shaikan (K 5) PSC no longer included Excalibur as a party. Mr Mackertich’s email noted, “These include the partners (exclude Excalibur as per Mr Kozel’s advice)”. I take that to be a reference to what Mr Kozel had told Mr Mackertich following the meeting with Dr Hawrami. Mr Wempen could not recall whether he was sent a copy of this PSC without Excalibur’s name on it, but he said in re-examination that if he had been sent it “I would have been fine with it.”

On 3 August 2007, Ms Berry forwarded the latest draft of the Shaikan (K 5) PSC to Azzat, noting “As you requested, Excalibur has been removed from these contracts.” The likely explanation of why Dabin requested the removal of Excalibur is that it was aware of Mr Kozel’s conversation with Dr Hawrami at the Lanesborough Hotel; or at any rate of Dr Hawrami’s views. Mr Kozel was aware that Dabin had spoken to Dr Hawrami about Excalibur.

Mr Wempen says that he became aware at some time in the end of August/September that Excalibur was not going to be on the PSC, probably in the course of telephone conversations with Mr Kozel about the way forward in the context of dealings with MOL. For practical purposes this must have been apparent from Mr Kozel’s description of the meeting at the Lanesborough hotel. Excalibur was content for this to happen since a bid for a PSC with Excalibur (in its then state) as a party would not succeed. Mr Wempen also recalled discussions with him in August about assisting in securing delivery of a PSC (without Excalibur’s name on it) to Azzat for Azzat to deliver to Dr Hawrami.

Mr Wempen complains that Mr Kozel never told him that Excalibur needed to be on the PSC in order to be entitled to an interest in Shaikan. Mr Kozel was under no such obligation. Nothing in the Collaboration Agreement (or anything else) required Mr Kozel to give Excalibur advice on what is in essence a question of the construction of an agreement governed by New York law. Mr Wempen did not tell Mr Kozel that Excalibur thought that the Collaboration Agreement entitled it to an indirect interest. Mr Kozel did not realise that that was what Mr Wempen thought, if he did. To him it was obvious that the participation contemplated by the Collaboration Agreement was secured by bidding for a PSC. Mr Wempen did not, prior to the Shaikan PSC, have any discussion with Texas or Gulf as to the means by which any indirect interest might be recognised.

Excalibur claims that, if the Lanesborough Hotel meeting took place, but Mr Kozel did not tell Mr Wempen about it, then Mr Kozel deceived him. The claim pleaded in the Re-Re-Amended Particulars of Claim is as follows:

Since I have found that the meeting took place and that Mr Kozel told Mr Wempen about it, the claim necessarily fails. It would have done so even if I had found that the meeting had taken place but Mr Wempen was not told about it. This is for a number of reasons.

The first question is as to the applicable law. Excalibur accepts that the bulk of the events relevant to the tort took place in London (or alternatively Kurdistan, whose law must be assumed to be materially identical). It alleges however that, applying section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 the factors connecting the torts to New York significantly outweigh those connecting them to England (or, alternatively, to Kurdistan) because the fraud was essentially directed at bringing about a situation in which Excalibur would not take steps to protect its interests under the Collaboration Agreement, and thus at a denial of those interests which arise under New York law.

I disagree. I am not persuaded that New York law is substantially more appropriate to an independent claim for fraud said to arise from conduct which took place in London or Kurdistan and none of which occurred in New York. I shall, however, consider both laws. I consider first the position under English law.

First, the fraudulent representation pleaded bears all the hallmarks of a lawyer’s artefact. Mr Wempen, on whose authority the plea was entered, was unable when giving evidence to explain how, if the meeting happened and he was not told about it, he had been deceived (“I must defer to counsel on this”).

Second, the representation is said to have arisen by a course of conduct in continuing to involve Excalibur in the development and pursuit of the Shaikan PSC, which gave the impression that the defendants regarded Excalibur as remaining a participant in the Shaikan bid. This is a puzzling suggestion since such involvement as Excalibur had was in circumstances where it had agreed not to be on the PSC, in which case Dr Hawrami’s views about Excalibur’s eligibility or suitability to be on it were irrelevant. Any failure to tell Mr Wempen of Dr Hawrami’s attitude would be consistent with Mr Kozel regarding that attitude as irrelevant to Mr Wempen, or at any rate not something that he should disclose.

Third, the allegation is based on conduct. In order to succeed it would be necessary for Excalibur to establish (i) that Mr Kozel realised that his conduct was creating a false impression as to a particular state of facts, which impression he knew to be untrue; (ii) that he intended Mr Wempen to receive that impression; and (iii) that Mr Wempen did so. In short Excalibur must show that Mr Kozel made (as he understood) a representation which he knew to be false, intending that Mr Wempen should understand it in the sense in which it was false, and that Mr Wempen understood it in that sense: The Kriti Palm [2007] 1 Lloyd’s Rep. 555. It has failed to do so.

Fourth, Mr Wempen could not explain how, if a representation like the one pleaded (Footnote: ⁵⁷) had been made, he would have acted differently had it not been made (“I don’t see how it would have affected my behaviour”) – that being the relevant test: Raiffeisen Zentralbank v. RBS [2011] 1 Lloyds Rep 123 at [87]. This is not surprising. Since his case is that he was indifferent to whether or not Excalibur was on the PSC it is not easy to see how being wrongly told, in effect, that Gulf believed the KRG to be content for Excalibur to be on the PSC, could have induced Excalibur to act in a way in which it would not otherwise have done. The same applies if – as to which see paras 600-603 below – he was wrongly told, in effect, that Gulf believed the KRG was content for Excalibur indirectly to participate in the PSC – a matter over which the KRG could have no control, especially since the means of participation was, according to Excalibur, to be agreed or determined after the PSC was signed.

Excalibur contends that the only way in which Gulf could have avoided saying (as it is said impliedly to have done) that there was no problem would have been to say that there was a problem, and that it is therefore relevant to inquire what Excalibur would have done if so told. I do not regard this as the correct analysis. It does not seem to me impossible for Gulf to have said nothing, one way or the other, about its knowledge, belief or understanding of the attitude of the KRG otherwise than by saying that it believed that the KRG had a problem.

In its final submissions Excalibur suggested that (whilst its primary case was that the August meeting never took place at all) what Dr Hawrami said was to the effect that Excalibur could not participate on the PSC either directly or indirectly, and that the implied representation was that the defendants were not aware of any KRG objection to either such participation.

Gulf contends that this case is not open to Excalibur on the pleadings. Gulf pleaded that Dr Hawrami told Mr Kozel that Excalibur “could not participate in a PSC”. The amended Particulars of Claim picked up this phrase and pleaded that the defendants represented that they did not know “that the KRG would not permit Excalibur to participate in any concessions awarded as a result of a Consortium Bid” and that that representation was false. The natural meaning of what Gulf pleaded was, it is submitted, that Dr Hawrami was saying that Excalibur could not be a party to the PSC.

I do not propose to determine the issue on that basis. Excalibur’s pleading is far from clear but is (just) sufficient to allege that the defendants represented that they did not know that the KRG would not permit Excalibur to participate in any concession whether directly or indirectly.

I do not, however, accept that Dr Hawrami said anything about the KRG objecting to indirect participation. I accept Mr Kozel’s evidence that what Dr Hawrami was talking about was participation on the PSC. For Mr Kozel the Collaboration Agreement was an agreement designed to lead to participation on the PSC by being a party to it (that being the only way, to his mind, that you participated in a PSC) and it was such participation that Dr Hawrami and he were talking about and concerned with. Nor did Mr Kozel realise that he was creating any impression, let alone a false one, about Dr Hawrami’s views on indirect participation or intend to do so.

The law of New York is not materially different to that of England in respect of this claim and Excalibur’s reliance on it fails for essentially the same reasons. Thus:

Mr Wempen’s evidence included the following:

At one point in his cross examination Mr Wempen suggested, for the first time, that “We had a complete understanding that whether… Excalibur ... was on the PSC or not had no bearing on our participation...” and that from the very beginning all parties to the Collaboration Agreement “understood that if one member signs we were all on board”. I do not accept this. There was no such understanding.

In respect of this New York law claim Excalibur contends that Gulf owed it a duty of disclosure (a necessary incident of a claim in fraudulent concealment); that in breach of it Gulf intentionally failed to disclose that in July or August 2007 Dr Hawrami had made it clear that Excalibur could not participate in a PSC; and that:

I do not regard Gulf as having a duty of disclosure. Gulf was not Excalibur’s advisor, agent or fiduciary. Excalibur could legitimately be expected to look to its own commercial interests; to seek legal or commercial advice (e.g. as to the impact of Article 24) and to seek its own clarification as to Dr Hawrami’s position either through Dabin or directly.

There is, under New York law, a “special facts” doctrine whereby a duty to disclose arises where “one party's superior knowledge of essential facts renders a transaction without disclosure inherently unfair”: Swerskv v. Dreyer & Traub, 643 N.Y.S.2d 33, 37 (N.Y. App. Div. 1st Dep’t 1996), (quoting Beneficial Commercial Corp. v. Glick Datsun, 601 F. Supp. 770, 773 (S.D.N.Y. 1985) (quoting Chiarella v. United States, 445 U.S. 222, 248 (1980); Ferer & Sons v. Chase Manhattan Bank, 731 F.2d 112, 123 (2d Cir. 1984))). But, as a threshold matter, the doctrine requires satisfaction of a two-prong test: that the material fact was information “peculiarly within [the] knowledge” of the defendant, and that the information was not such that it could have been discovered by the claimant through the “exercise of ordinary intelligence” (Black v. Chittenden, 69 N.Y.2d 665, 669 (N.Y. 1986) (quoting Schumaker v. Mather, 133 N.Y. 590, 596 (N.Y. 1892) [“[if] the other party has the means available to him of knowing... he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations”: Jana L. v. West 129th St. Realty Corp. 22 A.D.3d 274 (N.Y. App. Div. 1st Dep’t 2005)]. In the present case I do not regard knowledge of the KRG's attitude to be peculiarly within Mr Kozel’s knowledge and undiscoverable by the exercise of ordinary intelligence on the part of Mr Wempen (e.g. by making inquiries of the KRG, Dabin or Mr Kozel himself). Even if Gulf did not disclose what it knew of the KRG’s attitude it must have been obvious to Mr Wempen by now that Excalibur, if it was to be on the PSC, needed to get itself into a position where it was acceptable to Dr Hawrami, and that, at this stage, it was not.

In any event, if Gulf did have such a duty, it fulfilled it. If I am wrong on that, Excalibur has not established that it was prejudicially affected by the alleged concealment. Revelation of Dr Hawrami’s adverse attitude to Excalibur being on the PSC would have confirmed the wisdom of not attempting to get on it.

Further, to the extent that Mr Wempen considered it unnecessary for Excalibur to be on the PSC in order to obtain an interest, knowledge of Dr Hawrami’s attitude would make no difference. Thus in evidence, Mr Wempen said this:

A little later he agreed that “If Dr Hawrami had said “You can't be on the PSC” for whatever reason, that would not have been a major issue.”; and that he would only have been concerned “If he had said “You can't be part of the consortium at all in any fashion” certainly that would have been a major problem for us and we would have taken immediate action in the manner described.”

It was this evidence that led Excalibur to suggest that what Dr Hawrami had said was that Excalibur could not participate on the PSC whether directly or indirectly. As I have said, I do not regard this allegation as correct in fact.

Even if (a) Dr Hawrami had said that Excalibur could not participate indirectly; (b) Mr Kozel had said nothing about what Dr Hawrami had said; (c) relief is to be assessed on the basis of what would have happened if Mr Kozel had told Mr Wempen what Dr Hawrami had said, it seems to me unlikely that Excalibur would have been in any better position. The KRG could not decide who could participate indirectly. If Excalibur was entitled to an indirect interest, that entitlement would not depend on the KRG’s approval. Nor is Dr Hawrami’s objection likely to have been removable by any endeavour of Excalibur, Mr Wempen or Dabin.

These conclusions on causation are, also fatal to any deceit or fraudulent misrepresentation claim, insofar as, on the assumption that Excalibur was not told of the KRG’s position, it is material to consider what difference it would have made if it had been.

In any event Mr Kozel was not guilty of any fraud or dishonesty (Footnote: ⁵⁸). I do not think he would necessarily have been guilty of either if, contrary to my view, he had not told Mr Wempen of Dr Hawrami’s concerns. He could have taken the view that it was not incumbent on him to do so in circumstances where Mr Wempen had already agreed that Excalibur need not be on the PSC. He could have assumed that Mr Wempen appreciated the KRG’s likely attitude and that Excalibur was, as matters then stood, not in a position to obtain KRG approval. Since, however, Mr Kozel’s view was that he “should have told Mr Wempen” (as he said in evidence) of his conversation with Dr Hawrami and since, as I find, he did so, it is not necessary to consider this issue further.

I also reject the suggestion put to Mr Kozel that he kept Mr Wempen in the dark because he did not want to risk Mr Wempen, if apprised of the KRG’s objections to Excalibur’s participation, derailing Gulf’s bid by going to the Minister to protect Excalibur’s position in some way, or getting Dabin to do so. Any such approach by Mr Wempen is not likely to have derailed the bid.

Excalibur also claims that the defendants were under a duty to disclose that they intended not to observe Excalibur’s interest in the Shaikan block. This claim fails. Excalibur had no such interest, save in the loose sense that it was a potential company to which an interest might be farmed in. None of the defendants knew or thought that it had any interest for them not to observe and none of them acted dishonestly.

On 6 August 2007 the Kurdistan Regional Oil and Gas Law (“KROGL”) was passed by the Kurdistan National Assembly. This was a culmination of Dr Hawrami’s efforts to make the bidding process transparent and compliant with international norms. KROGL set out the framework by which petroleum operations would be regulated in the KRG and paved the way for the grant of PSCs. Article 24 laid down the criteria that had to be satisfied by anyone who wanted to participate in a PSC. It entitled the Minister to conclude a Petroleum Contract for exploration and development in respect of a specified area with “a Person – (defined as “a natural person, or other legal entity”) – or a group of Persons”.

The Article, which was in materially the same terms as in the draft sent to Mr Wempen in October 2006, provided in Article 24:

There is a dispute as to whether, as a matter of Kurdistan law, if there is a group of Persons, each member of the group must demonstrate both of the characteristics or whether it is sufficient that the group as a whole does so.

There is no evidence before me from any qualified Kurdistan lawyer that the law of Kurdistan approaches the question of statutory construction in any way differently to the courts of England and Wales. In those circumstances it is open to me to decide on the true construction of Article 24 of KROGL by applying English law principles, although there is a degree of artificiality in my determining a question which no Kurdistan court has ever decided or, so far as I am aware, considered.

Insofar as it is necessary to do so, I regard the Article as requiring that each of the Persons who are to bid as a consortium demonstrates the necessary characteristics. The characteristics are required to be shown by “a Person” and the Article distinguishes between “a Person” and “a group of Persons”. It is not the group that must demonstrate the necessary characteristics. This view is reinforced by Recital E of the Model PSC promulgated under KROGL which states in relation to each contracting entity that it is a company with the financial capability and the technical knowledge and technical ability to carry out Petroleum Operations in the Contract Area.

A company would demonstrate the necessary characteristics if it, itself, had the necessary financial resources and employed the requisite technical personnel. A more difficult question (particularly if considered in the abstract) is the extent to which it is sufficient for the company to have access to the necessary capabilities. As to that I would regard the defining criterion to be whether the capabilities in question can for practical purposes be regarded as those of the company. So far as finance is concerned, the backing of a financially sound parent should suffice. Similarly it would not be necessary for the relevant technical personnel to be employees of the company, provided they were available to it (e.g. because they are or can be engaged as consultants or seconded from a parent, subsidiary or other company in the group) to do the work. I would not, however, regard Article 24 as satisfied by company X if, for instance, it had no technical resources but had agreed to be on the PSC with company Y, which had them, even if Y had agreed with X that Y would provide them.

There is, however, a further question, namely how Dr Hawrami and the KRG would in practice apply the law in 2007, of which there is no evidence other than that afforded by looking at the PSCs in fact awarded. It is not apparent from the list of the companies which were awarded PSCs that any of them lacked either financial or technical ability, let alone both, although in respect of some of them information is sparse. Excalibur cites the example of Impulse Energy which signed the Ain Sifni PSC alongside Hunt Oil. That was a company incorporated in the British Virgin Islands the day before it signed the PSC. But it is not clear to me that it lacked either capability. The KRG press release describes it as “a private company that invests in the energy sector in developing economies targeting oil, gas and power”, which suggests significant financial resources. It had on its board Matthew Heysel who appears to have had a background in the oil and gas industry and financial experience.

In the absence of direct evidence as to Dr Hawrami’s approach it is not, I think, possible to say that Dr Hawrami would invariably require strict compliance by each participant with Article 24. Insofar as he was prepared to be flexible I would expect him to adopt a purposive approach, i.e. to apply the criteria so as to secure that the members of a group had between them the financial and technical capability to carry out the relevant operations. He might not require that each member could, alone, finance the contemplated operations. Thus, if $ 200 million was needed and A and B could each provide $ 100 million, they would not necessarily be ruled out because they could not each provide $ 200 million. The position might be different if one of them could only provide $ 5 million. Similarly he might not necessarily require all the technical knowledge and ability needed to be present in, or available to, each Person. But he would require each member of the group to have what he regarded as a sufficient degree of financial capability and/or technical knowledge and ability. A party with very little financial or technical capability would reduce the attractiveness of the consortium and its operational capability (unless the other member[s] were financially/technically very strong). I use the phrase “and/or” because both capabilities would be desirable; both would be likely to be required by Dr Hawrami, and, at the very least, one of them: as Mr Park and Mr Codd, I think, agree: see para 3.1 (o) of their joint memorandum. Origination of the deal would not be sufficient.

Dr Hawrami was well aware that the participants in any PSC would be subject to public scrutiny, particularly in Baghdad, which challenged their legal validity. Awarding a PSC to financially or technically incompetent contractors would be most unwelcome to him.

Excalibur’s problem was that it had neither financial nor technical capability (or the imminent prospect of either), let alone the ability to produce reliable documents as proof. In those circumstances it did not qualify under Article 24 either in terms or as ever likely to be applied by Dr Hawrami, and was, therefore, unacceptable to him. The fact that Excalibur had introduced Texas, and, as a result, Gulf, was not in 2007 a matter of significance. Excalibur relies on the fact that the KRG enlisted its help to get an oil company as an indication of its acceptability. But that enlistment was made by Dr Yacu and before the KRG underwent a substantial change in April 2006 and before KROGL became law.

As to financial capability, Excalibur as a company had no significant assets or income of its own and, from about the spring of 2007 abandoned efforts to secure funds during the bidding process. Mr Wempen’s personal finances were not enough. He had some modest income from his work at the Pentagon. But in November 2007 (see para 958 below) he could not raise $ 10,000 on his credit card to pay a lawyer: see his email of 26 November 2007. In April 2008 he and Mr Franchi contemplated providing $ 100,000 for a SPAC idea (see para 1244); but how much might have come from him was unclear.

He and his brother had houses; but I do not believe that they would have been willing to sell or mortgage them in 2007 or 2008. What exactly their combined free assets were is unclear. Mr Wempen said that their personal assets were worth about $ 1.5 million, including their houses, with liquid assets of about $ 600-700,000. These included certain Blauner trust accounts said to be of in excess of $ 500,000, which passed or were due to pass to the brothers on the death of their mother. No disclosure has been given in relation to these accounts (or the extent of the brothers’ entitlement thereto) and I am left in doubt as to how much they could realise from them and when. In any event (a) I regard it as unlikely that the brothers would have been prepared to use hundreds of thousands of their own dollars, including the value of their houses, for the Kurdistan project; and (b) any sums that might have been used were wholly inadequate. At one point in his evidence Mr Wempen accepted that he could not contribute a cent (Footnote: ⁵⁹) to any fundraising, which he later qualified as meaning that Excalibur could not contribute a cent.

As to technical knowledge and ability, neither Excalibur nor Mr Wempen had any experience in the oil and gas industry or any relevant technical competence or experience. Excalibur sought to rely in this respect on its access to Mr Franchi. Excalibur had no contract with him and never formally employed or retained him: for his involvement see para 364 above. He has not been called, although he was an available witness. There is, therefore, no direct evidence from him as to his skills, availability, or involvement. His primary expertise was in project financing, particularly for oil pipelines – a physical and useable asset. This is something completely different to raising money for oil exploration. His c.v. reveals that he has degrees in industrial engineering and refers to the fact that he had provided “production engineering and oversight and direction” in relation to oil and gas operations of various oilfields whilst at Proteus Energy Corporation, of which he was acting President and COO under a consultancy agreement. His time at Proteus was said to be from March 2007 until the present. This part time experience was limited and is not in oil exploration.

Excalibur never took any steps which secured the necessary financial or technical capability. It was well aware of the provisions of Article 24. In October 2006 Mr Wempen had sent Mr Kozel a copy of the draft law, with terms (then in Article 30) materially identical to the law as passed in August 2007. His brother had looked at the draft at that time. Mr Wempen had sent Azzat a copy of the KRG Press Release in respect of the final draft on 1 July 2007. It must have been apparent to him that Excalibur lacked both relevant capabilities, or, at the very least that there was real risk that the KRG would treat it as ineligible or unacceptable.

In the course of his evidence Mr Wempen said:

In those circumstances it was, as matters stood in late 2007, impossible for Excalibur to get on the PSC either in terms of eligibility under Article 24 or acceptability to the KRG. By then Excalibur did not seek to be on the PSC. So, in one sense this did not matter. However, since Excalibur was not entitled to a Participating Interest without being a party to the relevant PSC, the fact that it was impossible for it to do so, itself brought the contract to an end.

Under New York law, impossibility of performance due to a supervening event, the non-occurrence of which was a basic assumption on which the contract was made, relieves a party from any further obligation to perform the contract. The Collaboration Agreement assumed that it would be lawful and possible for Excalibur to get on the PSC. The effect of the impossibility was, thus, as Judge Pratt explained, to discharge Excalibur and Texas/Gulf from any further obligation to perform. Whether that would give rise to any claim in damages would depend on whether the impossibility resulted from Excalibur’s breach.

Excalibur had no contractual entitlement to a Participating Interest without being a party to the relevant PSC. Since it could not be the defence of impossibility is applicable. Insofar as Excalibur’s alternative claims recognise that Excalibur had no entitlement unless a party to the relevant PSC, the defence is available in respect of those claims also.

By now it was Gulf which was leading the negotiations with the KRG. Nevertheless on 22 August 2007 Mr Kozel emailed Mr Wempen to tell him that he had been in touch with Azzat (as on 3 August 2007 he had) about delivering the contract to Dr Hawrami. The plan had been that Dabin should hand deliver the draft to Dr Hawrami in Erbil, as he had required. This never happened because Azzat was involved in a road accident in Jordan. In the email Mr Kozel said:

Excalibur relies on this email as a recognition by Mr Kozel of Excalibur’s continued participation in the Excalibur/Gulf/Texas consortium; and as deceitful if Mr Kozel had by then planned to exclude Excalibur. Mr Kozel’s evidence was that he was asking for Excalibur’s comments because it was a potential participant, if it proved able to join the contract, in which case it would be a welcome contributor. Since the contract was one which Excalibur might later join (it was not to be on the PSC at this stage) it was important to get its comments on the draft at this stage, in order to avoid going back to Dr Hawrami later with a second round of changes if Excalibur showed enough financial strength to be acceptable to Dr Hawrami but did not like some of the terms. I accept that evidence. This email was not a recognition of an Excalibur/Gulf/Texas consortium in the sense of a binding collaboration agreement to which all three continued to be parties. It was an example of holding the door open for possible participation by Excalibur. That was certainly how Robert Kozel, one of the recipients, viewed it.

Mr Wempen said that he treated this as a request for approval of a PSC submission without Excalibur; and that it was possible that he had actually been sent the PSC without Excalibur’s name on it. He did approve. That did not, on Excalibur’s case, mean that it would be under any lesser obligation than it would have been under if a direct participant. As Mr Wempen put it “I certainly intended to pay my way as well”. Mr Wempen also accepted that after the July meeting in Erbil Mr Kozel was proceeding on the understanding that when the time came Excalibur would be good for the money.

Meanwhile Gulf continued its discussions and negotiations with MOL which were protracted. In addition the KRG decided that it wanted to have the right to grant an interest of between 5 and 25% in a PSC to a “local partner”. It wanted to able to award such an interest to companies in order to obtain other benefits in exchange. The effect would be to dilute the equity and significantly affect the economics of any deal to the considerable disadvantage of the existing parties.

Gulf was vigorously opposed to this proposal and in the end managed to negotiate the percentage down to 15%. It appears to have prayed in aid the 10% net profit interest to Dabin in support of this reduction.

On 8 September 2007 the KRG signed a PSC with Hunt Oil Company and Impulse Energy in respect of Ain Sifni. This was the first PSC to be signed since the KROGL was passed. Hunt Oil was one of the largest privately held US oil companies. The presence of an American flag company in oil in Kurdistan caused Mr Kozel to think that it might be possible to have a deal with KRG without Texas. After the July Meeting in Erbil it was, Mr Kozel said, clear that Dr Hawrami would consider Texas’ removal. He had many discussions with Dr Hawrami about Texas’ involvement in September and October. Dr Hawrami’s views fluctuated.

The Gulf Board met on 11 September 2007. Mr Kozel reported on Kurdistan. He said that the technical people thought that Kurdistan “represented the greatest unexploited onshore oil exploration opportunity other than Iraq”. He reported that he had met with Dr Hawrami and made a proposal in respect of block 5 (Shaikan). As the minutes record:

The square brackets around Excalibur are in the original. Excalibur was thereby envisaged as a possible participant, taking 30%, with Gulf taking 50%. At this meeting the proposed establishment of Gulf International (then “Gulf Kurdistan Petroleum Limited”) as a Gulf subsidiary for the purpose of Kurdistan projects was noted.

Mr Cooper reported to the meeting that although the company had $90 million in cash, its projects were capital-intensive and the worst case scenario was that it might run out of cash by the third quarter of 2008, but this was fairly pessimistic. Thus Gulf needed to find partners to share the risks and costs. Gulf’s 2007-2009 work programme and budget presented to the board noted that in relation to Kurdistan the company was “confident of its ability to, and would most likely wish to, bring in partners” to its application “by means of farm out or swap”. A number of potential partners were under consideration.

On 7 September 2007 a new model PSC was promulgated, which was circulated by Mr Kozel to Texas and Excalibur on 13 September 2007.

On 12 September 2007, Mr Kozel circulated to Mr Robert Kozel and Mr Wempen the draft assignment agreement. He did so by forwarding an email which he had received from Mr Patrick on 10 September 2007, which had forwarded the 24 November 2006 email with the draft assignment which provided for the assignment of Texas’ entire interest pursuant to clause 3.2.2 of the Collaboration Agreement. Mr Kozel said:

At this stage MOL wanted to apply for the Qadir Karam and Udhaim (K 38) block with Gulf as a partner. In the event the block went to Sterling Energy. This was good fortune. It was a dry hole.

Internal Gulf emails at this stage proceeded on the assumption that Excalibur would participate in the Kurdistan opportunity. On 20 September 2007, Mr Mackertich emailed Mr Compton, one of Gulf’s oil economists, to discuss Block K 5, and said “All being well we will sign gkp 70% (plus excal I guess for 30%).” On 24 September 2007, Mr Mackertich emailed Mr Samarrai on his visit to Erbil and said: “Think we will sign with gkp, excalibur and I think this company (hamid al hamid). Not quite sure what percentages yet.”

Negotiations with the KRG and MOL continued. On 26 September 2007 Mr Kozel travelled from Erbil to Budapest to continue discussions. Agreement was reached in principle that Gulf and MOL would take a 20% participation in blocks 5 (Shaikan) and 10 (Akri-Bijeel). On 27 September 2007, Mr Patrick sent to MOL the latest drafts for the Shaikan PSC that included MOL as a party, and proposed a confidentiality agreement so that Gulf could review the Akri-Bijeel data. On 28 September 2007, Mr Patrick emailed Mr Kozel a draft bidding agreement between MOL and Gulf. This provided for Gulf to have an 80% interest and MOL a 20% interest in the Shaikan bid and for MOL to have an 80% and Gulf a 20% interest in the Akri-Bijeel bid. Clause 3 expressly provided for Gulf to be able to assign its consortium interests to Excalibur. This shows that Excalibur had, as Mr Kozel recalled, been mentioned to MOL at this stage.

On 2 October 2007, Mr Patrick emailed to Mr Cooper, Gulf’s financial director, copying in a number of documents, but noting that “We have still nothing from Texas Keystone or Excalibur”. One of the documents was a draft Dabin agreement with Gulf International. Mr Patrick also sent Mr Kozel the latest version of the model PSC for Kurdistan and a document with the main commercial terms for the Shaikan block and suggested that he pass these to Excalibur.

It is convenient now to consider Excalibur’s case on assignment. Excalibur contends that at some stage in the early part of September 2007 and in advance of the Texas Board meeting on 14 September 2007 there was an oral agreement pursuant to which Texas agreed to assign to Gulf as much of its interest under the Collaboration Agreement as the KRG would permit (“the assignment contract”).

The first question to determine is which law should decide the issue (and what exactly is the issue).

The Collaboration Agreement is governed by the law of New York and the transferability of rights and obligations from Texas to Gulf under that Agreement and the conditions (if any) required to be met to entitle Gulf to assert any rights against Excalibur are matters for the law of New York. So much is common ground.

Excalibur seeks to rely on the assignment contract, to which it does not claim to be a party, in order to enforce obligations against Gulf. Gulf submits that, in those circumstances, it is claiming the benefit of the assignment by reference to the New York law third party beneficiary principle. The extent to which an assignment occurred and the extent to which it confers rights on Excalibur is a matter for the proper law of the putative assignment contract. For contracts concluded prior to 17 December 2009 the choice of law governing contractual obligations is determined by the Rome Convention, implemented by the Contracts (Applicable Law) Act 1990. By the application of Article 4 of the Convention the applicable law of the alleged oral contract is that of Pennsylvania (where Texas had its principal place of business). Since there is no evidence that the law of Pennsylvania differs from English law, the latter is to be applied.

This is because, unless there has been a choice of law within Article 3 (which there has not), Article 4 provides that the applicable law is the law of the country with which the contract is most closely connected (article 4(1)). Under article 4(2) that country is presumed to be the place where the party who is to effect the performance which is characteristic of the contract (in this case Texas as the party who is to transfer rights and obligations under the Collaboration Agreement) has its principal place of business, i.e. Pennsylvania. The article 4(2) presumption can be disapplied under article 4(5), if the characteristic performance cannot be determined, or if it appears from the circumstances as a whole that the contract is more closely connected with another country. Neither of these conditions applies. In particular, the fact that the draft assignment contract, in circulation since November 2006 provided for New York law, is immaterial. Excalibur is not alleging that this contract ever became legally binding. Nor can it be said that the assignment contract is more closely connected with New York. The fact that the Collaboration Agreement which is the subject of the assignment contract is governed by New York law is irrelevant: the test is one of connection of the alleged assignment contract with a country, not a system of law.

Excalibur contends that this is the wrong approach. Excalibur does not need to rely upon the third party beneficiary principle. Excalibur is suing under the Collaboration Agreement because there has been a completed assignment of a Consortium Interest. Even if the obligations of Texas and Gulf as between each other are governed by the law of Pennsylvania, the question whether an interest under the Collaboration Agreement was assigned so as to confer rights upon Excalibur must be one of New York law because that law governs the interest allegedly assigned.

In any case, the assignment contract was governed by New York law, either because (i) the circumstances of the case demonstrate a choice of New York law with reasonable certainty for the purposes of Article 3(1) of the Rome Convention, or because (ii) the agreement is most closely connected to New York and so would be governed by New York law under Article 4(5) of the Convention. That this is so appears from the fact that the assignment agreement was wholly directed to a New York law contract and that the draft assignment agreement chose New York law.

As a matter of English law, if A has a contract with B and A assigns the benefit of that contract to C, C may, generally speaking, take the benefit of the contract and enforce the obligations of B. If C is also to become liable to B, there needs to be a novation (if C is to replace A) or an agreement between C, A and B, or at least between C and B, that C will shoulder A’s obligations to B, in whole or in part. The law of New York is similar save that it recognises that C’s contractual assumption of liability can be by way of contract with A, the assignor, if entered into for the benefit of B, or directly with B.

That this is so appears from the 1928 decision of the New York Court of Appeals in Langel v Betz 250 N.Y. 159, 164 N.E. 890 (N.Y. 1928):

The assumption of liability by the assignee may be express or implied from affirmative conduct – see Amalgamated Transit Union v. City of New York, 846 N.Y.S.2d 336, 338 (2d Dept 2007) – but it must, as Judge Bellacosa confirmed, be a contractual assumption. If the assumption is said to be implied from conduct, the conduct must be only consistent with the assumption alleged. If there is such a contractual assumption by C of A’s obligations, the person in the position of B may be able to rely on the third party beneficiary principle – classically expounded in Lawrence v. Fox 20 N.Y. 268 (N.Y. 1859) – to claim against C. That principle is based on contractual intention. The New York Court of Appeals has held that a party asserting third party beneficiary rights has the burden of establishing:

It is, therefore, necessary in New York law for Excalibur (B) to show an express or implied contract under which Gulf (C) assumed the obligations of Texas (A) under the Collaboration Agreement. That contract could be between Gulf and Excalibur or between Gulf and Texas for the benefit of Excalibur. It is the law of that contract, not the law of the Collaboration Agreement, which determines whether Excalibur has rights against Gulf. Here there is said to be the assignment contract between Texas and Gulf and an assumption of burdens by Gulf entering into an indemnity agreement with Texas (“the First Indemnity Agreement”), proceeding with the Consortium Bid alongside Texas and undertaking to be bound by the rights and obligation arising from the acreage acquired in that Consortium Bid.

If there was such a contract it had no express choice of law and neither the supposed terms nor the circumstances are, in my judgment, such as to demonstrate any choice with reasonable certainty. The contract is, therefore, governed by the law of the country with which it is most closely connected, and it is presumed to be most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has its principal place of business.

It seems to me that that party was Texas, which, as the assignor, was to effect the performance characteristic of the contract. The assumption by Gulf of liability on which Excalibur need to rely is an assumption of liability to Texas to perform the obligations of the Collaboration Agreement for the benefit of Excalibur. That assumption of liability was part and parcel of the contract of assignment. Accordingly the relevant law is that of Pennsylvania.

Alternatively, if the relevant contract is to be regarded as a stand-alone contract between Gulf and Texas for Gulf to assume liabilities for the benefit of Excalibur, or if the performance characteristic of the assignment contract is to be regarded, for present purposes, as that of the liability bearing assignee, the relevant law is the law of the country where Gulf has its principal place of business. Accordingly the relevant law is that of Bermuda and not, in any event, that of New York.

The fact that the contract putatively assigned was subject to New York law does not mean that the parties to the assignment contract must be taken to have chosen the same law for their contract. Nor does it mean that the country with which that contract has a closer connection is New York. I do not regard the choice of law in the Collaboration Agreement or in the draft assignment agreement between Texas and Gulf (neither of whom are New York parties – nor is Excalibur) as indicating that the assignment contract is more closely connected with New York as a country (Footnote: ⁶²).

For these reasons I hold that the applicable law as to whether (a) the assignment contract was made; and (b) whether it confers rights on Excalibur as against Gulf is that of Pennsylvania and, thus, for present purposes, the same as English law. Alternatively it is English law.

If that is so, then Excalibur’s claim fails. English law does not, absent novation, recognise the right of a third party to sue an assignee on an assignment contract.

I shall, none the less, consider the claim on the basis that New York law is applicable.

It is not wholly clear whether there is said to have been an agreement to assign or an actual assignment (Excalibur’s written closing uses both expressions), and what the exact nature of the agreement/assignment was. In opening it was described as a partial assignment. In closing the agreement was said to be an agreement to a total assignment if Texas could drop out altogether (which would, in practice, require KRG consent) but a partial assignment if some minimal participation was needed i.e. an assignment of such a proportion as the KRG would allow. I shall proceed on the basis that that is the agreement relied on. In his final oral submissions Mr Picken QC said that there was an assignment because there was an agreement to assign that was acted on by Texas and Gulf. Given that the quantum of interest to be assigned was dependent on the attitude of the KRG, I do not see how there can have been an actual assignment and, in any event, it is unlikely that the parties regarded themselves as having effected one. A 100% assignment would also have required Excalibur’s consent, which might well have been forthcoming, but was never sought in or after early September 2007.

The assignment contract is not said to have included an express assumption of any liability on the part of Gulf. Gulf is said to have affirmatively assumed liabilities under the Collaboration Agreement by virtue of the First Indemnity Agreement, by proceeding with the bid alongside Texas, and by signing the Shaikan and Akri-Bijeel PSCs and undertaking the obligations arising in respect of the acreage covered by those agreements.

As appears from paras 424-5 above on 24 November 2006 Mr Patrick sent Mr Kozel a draft assignment agreement in respect of the whole of Texas’ 70% interest and on 28 November 2006 said that, if Mr Kozel was happy, Gulf would pick up the costs from now on and reimburse Texas’ past costs. The draft provided for a payment of $ 230,972.78 on completion. Mr Kozel, who was under pressure from the Gulf Board to procure an assignment to Gulf, was prepared to forward the proposal to the Texas Board. But he was not in favour of an arrangement by which, in return only for past costs, Texas assigned the whole project to Gulf, with whose board he was in conflict, and whose business approach he found insufficiently entrepreneurial. He was also interested in working on the project after he left Gulf.

He forwarded the draft to Robert Kozel on 15 January 2007 (para 436). Robert Kozel and Mr Kozel had discussions about the transfer on the telephone. At this stage Texas was losing interest in Kurdistan, which was no more to it than a potential interest in a project, and was focusing on the Marcellus Shale formation which, according to oil industry reports, might be the second largest gas reserve in the world. On 1 March 2007 Mr Patrick forwarded to Mr Kozel his previous email of 24 November 2006. Between 6 and 9 March 2007 Robert Kozel, having consulted with his brother David and his father Frank, executed a copy of the assignment agreement and signed a Deed of Adherence in the form prescribed, acknowledging delivery: see para 449 above. On or around 9 March 2007 Mr Goda sent copies of the agreement to Mr Wempen for execution on behalf of Excalibur but Excalibur refused to consent: para 450. The effect was that, so far as the Texas Board was concerned, it had agreed to relinquish any interest in Kurdistan. But Excalibur had not consented and Gulf had not signed.

In its final submissions Excalibur drew particular attention to a passage in the cross examination of Robert Kozel which it said merited citation in full. As cited by Excalibur the passage reads as follows:

The passage omitted at [xxxxxxxxxxxxxxxxxxxxx] in the citation reads :

When that passage is included it is apparent that Robert Kozel, who is not a lawyer, was treating the execution by him of the assignment contract in March 2007 as making Gulf a party to the Collaboration Agreement. In that he was, in my judgment, mistaken.

The assignment issue arose again in September 2007. On 10 September 2007 Mr Patrick sent Mr Kozel the email of 24 November 2006 with the draft assignment agreement: see para 647. The draft recited (as it always had) that Texas and Excalibur were parties to the Collaboration Agreement, and that Texas now wished to assign its interest, which it was stated as being entitled to do under the Collaboration Agreement. Clause 2.1 envisaged Gulf becoming party to the Collaboration Agreement (a) by notice to Excalibur and (b) execution of the Deed of Adherence, and making the completion payment of $ 230,000. The new consortium interests were identified as follows: Gulf 70% and Excalibur 30% i.e. what was contemplated was a 100% transfer. This would require, but did not receive, Excalibur’s consent. Mr Patrick asked Mr Kozel to send the assignment documents to Texas. Mr Patrick’s email suggested that only minor changes were necessary to the draft.

The Gulf Board met on 11 September 2007. The minutes contain the passage set out at para 643 above referring to a contract proposal in respect of block 5, being a contract between Texas and Kurdistan, which Mr Patrick was to rework by omitting Texas. This must have been a reference to the draft PSC for the Shaikan block (with Texas still a party) which Ms Berry forwarded to Mr Patrick on the same day. On 12 September 2007 Mr Kozel circulated to Robert Kozel and Mr Wempen Mr Patrick’s email of 10 September 2007 forwarding the email of 24 November 2006 with the draft assignment agreement, and referred to the fact that “life has evolved in Kurdistan”: see para 647 above. I do not regard this as an acknowledgement that an assignment from Texas to Gulf had already taken place.

Excalibur also relies on a further passage in Robert Kozel’s cross examination as showing an agreement for Texas to assign to Gulf as much of Texas’ Consortium Interest as the KRG would permit and that this had been agreed upon in the run up to the Texas Board meeting of 14 September 2007:

I do not regard this evidence as indicating that some new binding agreement had been reached between Texas and Gulf in the early part of September 2007 for the assignment of an interest under the Collaboration Agreement to Gulf. Texas had made the decision to transfer 100% – in March 2007 – and Robert Kozel had signed an assignment agreement on behalf of Texas. A decision that Texas would transfer its interest (or all save the minimum required by the KRG) had been made (although different percentages had been under consideration thereafter). It did not need to be readdressed. Further any agreement between the Kozel brothers would not have been, or been regarded by them, as an agreement between Texas and Gulf.

There was, however, a draft assignment contract in circulation. On 27 September 2007, Texas (Footnote: ⁶³), having filled in certain details in the draft agreement, sent it to Mr Kozel for his review and comments. The draft agreement, dated 27 September 2007, provided, as before, for Texas to introduce Gulf as a party to the Collaboration Agreement by notice to Excalibur and for it to assign and transfer to Gulf the Gulf Consortium Interest (defined as Texas’ 70% Consortium Interest) by acknowledgments of the executed Deed of Adherence. Gulf was to accept that assignment and pay to Texas a Completion Payment of $ 258,878.31 (a slightly different figure from the original Completion Payment amount, and one which, itself, was out of date – the covering email indicated the need to add a further
$ 239,081.13). At Completion Gulf was to execute the Deed and Texas was, unless it had already done so, to notify Excalibur of its assignment of the Gulf Consortium Interest and execute its acknowledgment of the Deed.

This is obviously not the same as an agreement, not dependent on a Deed of Adherence, to enter into whatever interest the KRG might agree. Further the draft 27 September agreement could not proceed to contract without (i) the KRG agreeing that there was no need for Texas (in the event it did not so agree); (ii) finalisation of the costs to be included in the Completion Payment; and (iii) Excalibur’s consent.

There are several difficulties in the way of concluding that a contract of the type now relied on was made, let alone an actual assignment: (a) it is unlikely that Texas and Gulf would have made a contract of this type orally, and without written confirmation; (b) Excalibur was never told of it so that it would not appear to be binding on Excalibur or give Gulf rights against Excalibur; (c) the Texas Board Minutes of 14 September 2007 make no reference to it; (d) the alleged agreement is barren of terms in relation to costs, particularly past costs; (e) the alleged agreement is not in the same terms as the drafts of 10 and 27 September 2007 and it is implausible to suppose that Texas and Gulf made a binding agreement or assignment in one form and then started negotiating a different one; and (f) Gulf had no need of such an assignment.

As to (e) the 10 and 27 September emails show that the parties were still in negotiation in respect of a 100% transfer and were contemplating that any assignment would be by the method stipulated in the contract (albeit for a partial transfer) i.e. with Gulf executing a Deed of Adherence and Texas notifying Excalibur of its assignment and acknowledging execution of the Deed.

As to (f), by September 2007 it was apparent that Excalibur was not going to bid for the PSC. Gulf was not a party to the Collaboration Agreement, and, not being a party, was entirely free to go ahead as it wished. It also had it in mind to bid for Block K 38 or K 10 (Akri-Bijeel), for which Excalibur would not be bidding, and which the Collaboration Agreement would preclude it from pursuing independently of Excalibur: clause 2.2 (a). In those circumstances there was no advantage in it becoming a party to the Collaboration Agreement. It is apparent from Mr Kozel’s evidence that he realised that Gulf had now no need to become party to the Collaboration Agreement, and that Texas and Gulf could proceed, as he put it, “straight to the PSC stage”.

In my judgment there was no oral contract of assignment in early September 2007 of the type alleged. Nor was there an actual assignment. Texas and Gulf did not intend to contract to assign until the draft was executed or to assign until the Deed of Adherence stipulated in the Collaboration Agreement was executed. It would have been odd of them to do so when the amount that could be assigned was unclear.

I also cannot accept that Gulf by conduct assumed a liability to Excalibur, either directly, or to Texas for the benefit of Excalibur. The parties had prescribed a method for Gulf to assume obligations under the Collaboration Agreement in the event of a partial transfer to Gulf, namely by the execution by Gulf of a Deed of Adherence. If they wished they could, no doubt, have agreed to adopt another method. But they showed no sign of doing so. On the contrary, mindful no doubt of the contractual provisions, the parties circulated and referred to drafts which envisaged, inter alia, execution by Gulf of the Deed.

The fact that Gulf (a) proceeded with a bid; (b) entered into the First Indemnity Agreement with Texas; and (c) entered into the PSCs with the KRG was not an assumption by Gulf of any obligation under the Collaboration Agreement to Excalibur or to Texas for the benefit of Excalibur. As to (a) if Gulf was not a party to the Collaboration Agreement it was entitled to proceed to bid without regard to that agreement. The fact that it did so does not signify that it was, unnecessarily for it, assuming an obligation to Excalibur. As to (b) and (c), Gulf’s agreements with Texas and the KRG did not provide for any undertaking of liability to Excalibur and were agreements which Gulf could enter into without undertaking any such liability. Further para 12 (a) of the First Indemnity Agreement provides that:

Excalibur places some reliance on the recitals in the original draft of the First Indemnity Agreement and the terms of the draft JOA sent to MOL on 15 November 2007. The recital to the draft of the First Indemnity Agreement provides that:

Lastly, clause 3.2.3 of the Collaboration Agreement provides that no transfer of all or part of a Consortium Interest shall “in any circumstances be effective” unless and until the transferee undertakes in writing to the Parties (here Texas and Excalibur) to be bound by and adhere to its terms. The Deed of Adherence would have satisfied that clause. But that Deed was not executed by Gulf. In those circumstances no assignment could be effective. Clause 3.3.1, which applies to a partial assignment to Gulf, provides that such an assignment shall become effective upon the execution by Gulf of a Deed of Adherence. The necessary implication of that, especially in the light of clause 3.2.3, is that it shall not become effective without the execution of a Deed of Adherence.

New York law distinguishes between (a) a personal promise by the purported assignor not to assign the contract either at all or without consent (which merely renders the assignor liable for breach of promise if he does so); and (b) a clause that relates to the validity or effectiveness of the assignment itself. New York law has a general policy of favouring freedom of assignability. But a New York Court will give effect to a clause that renders an assignment invalid or ineffective if it uses “clear, definite and appropriate language”: Macklowe v. 42nd St Dev. Corp., 170 A.D. 2d 388 (N.Y. App. Div. 1st Dep’t 1991) (citing Allhusen v. Caristo Const. Corp., 303 N.Y. 446 (N.Y. 1952). There is no need for the words “void” or “invalid” to appear. If the contract says (as in clause 3.2.3) that unless X or Y occurs, the assignment will not take effect, then that is sufficient.

Excalibur claims (i) that clause 3.2.3 is inoperative because it is only clause 3.3.1 which is relevant to the case of a partial assignment by Texas to Gulf (“a relevant assignment”) and (ii) that clause 3.3.1 only provides a way, but not the exclusive way, in which Gulf could elect to be treated as if it were a party.

I disagree. clause 3.2.3 is in the most absolute and general terms “No transfer of all or part ... shall in any circumstances be effective”. The execution of a Deed of Adherence would satisfy clause 3.2.3, which achieves the same effect as that clause. But that is no reason to regard clause 3.2.3 as inapplicable to a relevant assignment. The provision in clause 3.3.1 that an assignment shall become effective upon the execution of a deed prima facie implies that it shall not become effective until then. Insofar as there is any doubt on the question, clause 3.2.3 makes the position clear. The parties who agreed clause 3, which must be read as a whole, cannot have intended that a relevant assignment should take effect without a written undertaking by Gulf to Texas and Excalibur to adhere to the Collaboration Agreement. There was no variation of this provision.

Excalibur claims that it waived the requirement of a Deed of Adherence. Under New York law a party can waive a contractual right if it is designed solely for its benefit: W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162 (N.Y. 1990). It is not apparent to me that it ever purported to do so. In any event the requirement is not solely for its benefit. Execution of a Deed of Adherence would benefit Texas because it would mean that Texas was not left in the position of someone who had given up rights under the Collaboration Agreement but without Gulf having – beyond any argument – assumed its obligations thereunder.

Lastly, Excalibur claims that there was, at least, an assignment in equity. Judge Bellacosa, in a passage in his evidence which I found somewhat general in character, contemplated that, in a suitably exceptional case, where there had been some kind of “implied representations and acceptance of burdens as between the parties” the court might uphold an assignment in equity, even if one was not sustainable as a matter of law under the contractual documentation.

I do not regard this as of assistance to Excalibur. First, it does not seem to me that obligations on the part of Gulf would arise otherwise than by an express or implied assumption of liability i.e. as a result of an implied contract. Judge Bellacosa was unaware of any New York authority which showed that there could be an equitable imposition of liabilities. Secondly, I see no basis for holding that there was an assignment in equity where no Deed of Adherence was executed and there was no agreement that it was not needed. Thirdly, there were no representations and acceptance of burdens which might give rise to such an equity. It may be that, if Gulf had acted as if it had rights and obligations under the Collaboration Agreement and Excalibur and Texas had proceeded on a basis that made clear that they treated Gulf as a party to the Collaboration Agreement (notwithstanding the absence of a Deed of Adherence), that Gulf could be treated as such a party. That would, in essence, amount to the parties agreeing to vary the contractual scheme. But they did not do so.

Mr Kozel sent the draft PSC and commercial terms as received from Mr Patrick to Mr Goda of Texas on 9 October 2007. Mr Goda then circulated them to Mr Wempen at Mr Robert Kozel’s request. Mr Goda’s email read:

On the same day Mr Wempen replied to Mr Goda that he would not be able to attend the meeting, but that he would “review and revert with comments as appropriate”. He never did so. Nor did he go to London for the meeting (he could have done but chose not to) which did not, in the event take place (although there were extensive discussions between Mr Kozel and Robert Kozel).

Mr Wempen forwarded Mr Goda’s email to his brother, who had been unwell, asking him to review the draft. Eric Wempen replied on 12 October 2007:

The draft attached to Mr Goda’s email was a version on which the changes could readily be identified. These included, as Eric Wempen spotted, the Third Party Interest clauses (4.1 ff) which entitled the Government to nominate a public company to have up to a 25% interest in the contract subject to payment of its share of the costs up to the date of payment, not including any bonuses payable.

The Third Party Interest clause alone appears to me to have constituted a material change within the meaning of clause 8.6.2. bis of the Collaboration Agreement. Excalibur gave no notice of a wish to continue to participate. This is scarcely surprising since it had already decided not to participate in the bid (“No skin off your back of course”). The defendants submit that the fact that it did not do so means that it is conclusively deemed to have disapproved such change (as Eric Wempen plainly did) and to have withdrawn from the Consortium Bid. On this ground alone it was disentitled to any Participating Interest in the Shaikan PSC and Texas and Gulf were free to proceed without it.

Mr Wempen says that he understood that he was being asked to agree to the KRG’s new requirement for a local partner interest. He characterised the proposed meeting as a “technical meeting” or a “partner meeting of the experts for the bid”; and that he did not see any need to go; and that it was Mr Kozel’s function to consider the commercial terms of the PSC. He, Mr Wempen, had brought the deal to Mr Kozel “on a silver platter” and it was “up to him…as the expert and the leader of our consortium to... carry the ball across the finish line so to speak”. This evidence reflects, again, his approach to Kurdistan. He had found the deal and, having done so, others could be expected to do the negotiations.

Mr Picken QC submits that this point, advanced late in the day, bears all the hallmarks of a lawyer’s afterthought; that it might have been tenable if there had been a formal application process or bidding round in train; but that, in circumstances where the parties were in a process of negotiation with the KRG and working towards a satisfactory conclusion, the court should be slow to conclude that a failure to comply with the formalities of the Collaboration Agreement, to which formalities the parties paid scant regard, should have the consequence of depriving Excalibur of an interest to which it would otherwise be entitled.

Since I have concluded that Excalibur had already withdrawn, or is deemed to have withdrawn from the Bid, the question of a deemed withdrawal at this stage does not arise. If it does, I do not accept that there was a deemed withdrawal because I do not regard Mr Goda’s email of 9 October 2007 as a notice of a proposed change for the purposes of clause 8.6.2 bis of the Collaboration Agreement. The email makes no reference to that clause; it does not ask whether or not Excalibur wishes to continue to participate; what it does do is to ask for comments within rather less than 6 full days, as opposed to the 7 days specified in the clause. If a communication is to have the draconian consequences stipulated by the clause it must, in my judgment, be quite clear, particularly where the parties have not shown themselves sticklers for the formalities of the Collaboration Agreement, that it is a notice for the purpose of that clause. Mr Goda’s email does not fulfil that requirement.

On 19 October 2007, Mr Kinnear emailed Mr Wempen to report on a meeting which he had had with Mr Kozel and Mr Al-Qabandi the day before. Mr Kinnear understood that the deal would have been signed but for the local partner requirement, as part of which the local partner did not need to put up any upfront cash but only share operating costs. He explained that as a result:

This email repeated Eric Wempen’s warning about the worsening of the PSC terms, and the increasing costs. Mr Kinnear had evidently been led by Mr Wempen to believe that there were investors ready to invest. There were none; and the idea that Excalibur should increase its stake, with an accompanying increase in expenditure, parted company with reality. Mr Wempen’s reply did not correct Mr Kinnear’s understanding. Mr Wempen said he had had “some good meetings in Washington about sorting the very issues you describe. I think we shouldn’t rock the boat until we are signing, then we will be in a stronger position”. This was, Mr Wempen said, a reference to a meeting with Mr Maguire.

Mr Patrick sent Mr Kozel a revised draft agreement between Gulf and Dabin. This followed the wording of the Excalibur – Dabin agreement and contained in clause 2 a new provision that Dabin should not provide any of the Services “to any company in the oil and gas exploration and production business except GKP and, in particular will not assist any other company to compete with GKP in the oil and gas business in any part of Kurdistan, provided that Company will provide similar Services to the other companies comprising the Contractor Entity in respect (only) of block 5.” If Excalibur became party to the PSC it could still enjoy Dabin’s services. But the effect of the Agreement would be to preclude Dabin from providing services to Excalibur until then. Mr Kozel said that the purpose of the clause, drafted by Mr Patrick, was to prevent Dabin acting for potential competitors and that, as far as he was concerned, whatever it said, Dabin and Excalibur were still partners and could still act as such. I accept that evidence. There is no indication that Gulf sought to prevent Dabin from working for Excalibur, who were potential PSC participants.

Negotiations between Gulf and the KRG continued throughout October, principally between Mr Patrick and Mr Morrow to finalise the terms of the Shaikan PSC.

The Gulf Board met in Zurich on 25 October 2007. Mr Cooper gave a financial update which included the fact that, if a Kurdistan PSC was signed with Gulf’s share of the $ 25 million bonus due within 30 days of signature, Gulf needed to start securing additional funding immediately. He expressed the belief that Gulf would need to farm out part of its share in the Kurdistan Blocks for a “promote” (Footnote: ⁶⁵)and consider another secondary placing. The minutes record:

These minutes (a) show that Gulf, far from being aware of Excalibur’s true financial position, understood that Excalibur would have the money to pay its share of the costs as they fell due; and (b) are wholly inconsistent with the idea that Gulf and Mr Kozel were trying to cut Excalibur out of the deal and had no interest in its participation. Gulf, which was facing huge expenditure, would have welcomed Excalibur if it could contribute its 30%. A number of papers were prepared for the meeting which assumed Excalibur’s participation. The budget recorded an assumption that Gulf had a 50% interest in Shaikan (K 5), with 20% for MOL and 30% for Excalibur, and that Dabin and Excalibur were not involved in the Akri-Bijeel (K 10) licence. Its Executive Summary noted the need for Gulf to raise funds in 2008 and that the most likely option would be a “farm out/sale of Kurdistan in event of success...”. Mr Mackertich’s technical paper assumed that Excalibur would have a 30% interest in K 5 but that its interest had “yet to be finalised” and that it had no interest in Block K 10. Mr Compton produced a paper on “Kurdistan economics” which contemplated Excalibur as a partner.

On 26 October 2007 Mr Compton emailed within Gulf further calculations of Net Present Value (NPV) which assumed that Excalibur would have a 30% share of Gulf’s 80% interest in Shaikan. (This appears to be after allowing for a KRG share of 20% and a local partner interest of 15%). He concluded:

On 26 October 2007, MOL informed Mr Patrick that it would participate on the Shaikan PSC through its subsidiary Kalegran. Both Gulf and MOL were required to give parent company guarantees in respect of their subsidiaries that were going to sign the PSC.

The upshot of Dr Hawrami’s changes of mind on US participation was that it became clear that Texas would have to take at least 5%. On 27 October 2007, Mr Patrick emailed Mr Kozel to say that he had spoken to Mr Morrow and that Dr Hawrami “now wants Texas to have a working interest in the PSC”. He emailed Mr Morrow the same day to confirm that Texas would accept a 5% interest.

Texas did not really want to participate in the Shaikan deal. But Robert Kozel “did not want to be the person to kill the deal.” Texas was, therefore, prepared to sign up but only against an indemnity from Gulf. The Texas Board agreed to the Shaikan PSC and related agreements by a written resolution of all four directors dated 29 October 2007. The indemnity agreement was dated as of 30 October 2007. Its second recital recorded:

Under the agreement, Texas was to receive its interest in the PSC for no charge. Any expenses or contributions with respect to such interest would be paid by Gulf International, which would be entitled to any income and benefits from Texas’ interest. Texas was given the option, upon receipt of the Authorisation for Expenditure (AFE) for the initial exploratory well, to pay for its share of the authorised expenses and thereafter to receive any benefits with respect to its interest under the PSC. If Texas did not exercise its option, it was to hold its interest on trust for Gulf until the KRG approved a formal assignment. The option gave Texas flexibility at no cost. If it changed its mind about participating it could do so. Gulf gave Texas a wide ranging indemnity in respect of any losses related to the PSC.

Excalibur suggests that this is an example of an indirect beneficial interest and shows how simply such arrangements can be effected. In fact Texas was a 5% direct participant. The agreement gave Texas a right to be carried until the AFE for the first exploratory well at which time it had to choose whether to maintain its interest (and pay the costs) or not. In the latter event its interest would be held on trust for Gulf pending KRG approval of an assignment. At that stage the interest would be beneficially owned by Gulf. That could be described as an indirect interest but its terms would require no amplification. Gulf would be entitled to all the revenues and liable for all the costs attributable to the interest. Any arrangement with Excalibur would not be as simple as that.

The authorisation for expenditure for the initial exploratory well to be spud at Shaikan (the Initial AFE) was received on 5 December 2008, following the successful completion of seismic studies earlier in the year. Texas’ opinion of the relative merits of pursuing opportunities in the Marcellus Shale and Kurdistan remained the same. Texas did not, therefore, exercise its option and consequently no longer holds any beneficial interest in the Shaikan PSC, although, pending the approval of the KRG, it retains the legal interest.

As appears from para 650 above MOL had agreed in principle to take a 20% interest in Shaikan and to transfer to Gulf in exchange a 20% interest in its application for the K10 (Akri-Bijeel) block.

On 30 October 2007 a number of events happened:

Mr Morrow informed Mr Patrick that Dr Hawrami was prepared, simultaneously with the execution of the Akri-Bijeel PSC, to approve an assignment to Gulf of a 20% interest in Block K 10 (Akri-Bijeel).

The PSC for the Akri-Bijeel block between Kalegran and the KRG was signed.

MOL and Gulf International entered into a side-letter agreement whereby in consideration for the 20% interest in Shaikan, Kalegran undertook to assign by way of a farm out agreement a 20% interest in Akri-Bijeel. The letter agreement provided MOL with a put option and Gulf International with a call option to reassign the Shaikan interest if the farm out agreement was not entered into and completed within a certain timeframe.

In a letter to the KRG MOL said:

The first draft of the farm out agreement in respect of the Akri-Bijeel block was sent by MOL to Mr Patrick on 5 November 2007. The negotiations were somewhat drawn out. Gulf International only finally concluded the Akri-Bijeel JOA and farm out agreement on 21 December 2007. The KRG had approved the assignment on 6 November 2007.

Also on 30 October 2007 Mr Cooper sent Mr Kozel and Mr Al-Qabandi an email about the “financial implications of the latest working assumptions of Kurdistan and production licences”. His email said:

On the same day Mr Mackertich circulated to Gulf a document setting out the “Kurdistan paying percentages”. It explored the economics of various percentages, and assumed a work programme of $ 60 million for Shaikan and again assumed that Excalibur would take up a 24% interest. His email noted that he had previously assumed that “GKP would have 50% and Excalibur 30% on signature” but now understood that “this should be 30% of GKP’s ‘available interest’ – hence 24% as opposed to 30%...” The document attached showed Excalibur having 0% on the K 5 licence, but being a 24% participant in Shaikan at cost. Its past costs were estimated to be $ 360,000; signature phase costs $ 6.24 million (Footnote: ⁶⁶); exploration phase
$ 7.14 million; development phase $ 81.6 million. Excalibur was shown as having no interest in block K 10.

On 30 October 2007 the Shaikan PSC was signed and initialled in London by Gulf International, Texas and Kalegran. Mr Kozel sent a text message to Mr Wempen “Contract erbil finished”. Mr Wempen’s recollection is that he spoke with Mr Kozel on the telephone and was invited to come to a big party with MOL in Budapest. Mr Kozel said there would be a formal signing ceremony in Erbil and he would send an itinerary. On the same day Gulf wrote a letter to Dr Hawrami confirming that the interests of the parties were: Gulf International 75%; Kalegran 20%; Texas 5%.

Excalibur now had a big problem. It had no money, no available finance, and nothing in the way of commitments, conditional or otherwise, statements of intent or indications of support. Since the spring of 2007 Mr Wempen had made no significant attempts at fundraising. It was only at this point that Excalibur turned to capital raising preparation. Mr Wempen said that his entire plan was to fundraise against an asset and that investment bankers had told him “you need a deal to raise a dollar”. Even if they had, that does not mean that advance preparation cannot begin until it is signed. There was a deal in the offing in the form of the PSC; but Excalibur was not to be on it. That itself would put many potential financiers off. Participation in the deal would require raising finance to pay its $ 6 million share of the signature bonus [24% of $ 25 million] in short order.

Excalibur also lacked any satisfactory team for finance raising purposes. There was Mr Wempen, his brother, Mr Behrends, and Mr Franchi. Mr Wempen had a number of contacts; but he was not a finance man, and had never successfully raised any funds before. His brother was a tax lawyer at UBS. Mr Behrends was a partner at Crowell & Moring but not a fundraiser. Mr Franchi’s history is at para 363 above. In the event Eric Wempen sounded out UBS; Mr Behrends sounded out China Petroleum; and Mr Franchi sounded out Lazard; and, in the case of each of them, no one else. All came to nothing. There were several other approaches but they got nowhere at all.

Excalibur contends that all its efforts to raise finance were stymied because Gulf failed to acknowledge its interest in Shaikan.

On 30 October 2007 Mr Wempen emailed his contact Mr Amir Makov to say the Kurdistan deal had closed and that he was “looking for funding” and asked him to call back. Mr Wempen spoke with, and went to visit, him but this approach went nowhere.

On 31 October 2007 Mr Wempen emailed Mr Shayne Nelson of Standard Chartered Bank: “We signed our deal in Kurdistan. Are you interested?”. He replied to say that they were not bullish on the KRG or Iraq. Mr Wempen did not try to get them involved again. This, as Mr Wempen acknowledged, had nothing to do with Gulf or any lack of acknowledgment of title. This did not stop Excalibur pleading and Mr Wempen’s third statement asserting that Excalibur’s want of success was because of Gulf’s refusal to acknowledge Excalibur’s rights. Mr Wempen emailed Mr Nelson again in December 2007 saying “I have Kurdistan”.

On the same day Eric Wempen sent his brother a long email offering advice. He told his brother that his trip to Hungary was critical (in the end he did not go) and that he should “think about what you’ll say to get Tod to be a backstop if all else fails (it’s essentially Plan D)”. Mr Wempen said that Plans A to C were to go through an investment bank to raise funds and then turn to his personal network, whereas Plan D was to lean on Gulf for short-term funding. Eric Wempen said:

The “$ 35” was a reference to what Excalibur estimated would be its share of costs to first oil (the figure fluctuated between $ 30 and $ 40 million). This email shows the rudimentary nature of Excalibur’s approach. It needed to get hold of a raft of information held by others; it proposed to put together a pitch book for the
$ 35 million; but it had no idea what investors would be looking for in a pitch book; and envisaged, if all else failed, short term funding from Gulf.

Over the next month and beyond Mr Wempen did his best to raise investment interest. He approached at least six investment banks. On 1 November 2007 he emailed Mr Kinnear to say that he was sending off information to “investors” on Monday (i.e. 5 November). Once again there were, as yet, none. Mr Wempen’s response, on this and other occasions, to the suggestion that he was giving Mr Kinnear a false impression, was that Mr Kinnear understood what Excalibur’s fund raising plan was. I do not accept that Mr Kinnear realised that Excalibur had no investors who had given any indication of support of any kind.

On Friday 2 November 2007 Mr Kozel asked Mr Patrick to send him a copy of the final PSC and JOA for Shaikan so that he could pass them to Excalibur. He did so having been asked by Mr Kinnear, at Mr Wempen’s prompting, to provide a copy. Mr Patrick replied attaching the final Shaikan (K 5) PSC in Word. On 4 November 2007 Mr Kozel sent it to himself at his Texas email address and went off to Erbil for the signing ceremony. A copy was, for some reason, not sent to Mr Wempen until 10 November 2007, after Mr Kozel’s return.

On the same day Eric Wempen emailed his brother with some thoughts on fundraising. Eric Wempen’s boss at UBS was another tax lawyer called Christopher Pinho. His email recorded “Pinho’s little brother (Mark) suggested the Riverstone Group run by Carlisle … and First Reserve”. Mark Pinho was probably with the Soros Fund. Riverstone was a private equity fund run by the Carlisle Group. First Reserve was also a private equity fund. The email went on:

Mr Wempen contacted Mr Talal Al Ghalib, the executive director of Gulf Finance House in Bahrain. On 3 November 2007, he sent him the Thames Chesapeake term sheet and an Excalibur Upstream Exploration Opportunity pitch sheet (“the teaser”). He wanted to interest Mr Al Ghalib in investing in the “specific opportunity in Kurdistan” or, if that was too small an investment, in raising an oil exploration fund, in which Kurdistan would be the “anchor investment fund”. The teaser said:

This email assumed that an oil field could be valued by multiplying reserves by the price – an elementary error since the calculation takes no account, inter alia, of costs, variable price, or irrecoverability of reserves. Nothing came of the approach to Mr Al Ghalib.

Over the weekend of 3 and 4 November 2007 Mr Wempen met with Rodman & Renshaw, an investment bank. He was not put off by any want of evidence of title. There are no surviving documents relating to that meeting. Nothing came of it. This was, as Mr Wempen accepted, no fault of Gulf or the want of any letter of acknowledgement.

Mr Wempen did not at this time approach Mr Halpert, who, he said, had always said to him “Come to me when you have a deal”. Mr Wempen’s evidence was that it would be “embarrassing” for him to go to Mr Halpert when Excalibur lacked proof of title. I do not accept that that was his reasoning for not approaching his old friend, although why he did not do so is unclear (at one stage in his evidence Mr Wempen did not recall the reason before reverting to his original stance). Mr Wempen had been perfectly prepared to approach others at this stage without any acknowledgment.

On 5 November 2007, Mr Patrick sent the text of the final Shaikan PSC as signed by Gulf International, Texas and Kalegran and the form of JOA tabled by Gulf as operator to Robert Kozel and said that he could pass them on to Excalibur on a confidential basis at his discretion. He does not appear to have done so.

Mr Kozel travelled to Erbil with MOL representatives. At a barbecue at Mr Berwari’s house on 5 November 2007 Dr Hawrami suggested that as an alternative to payment to it of the signature bonuses in cash the KRG could subscribe for shares in Gulf. Mr Patrick produced a draft share subscription agreement, but, although there were some further discussions in late November and early December between Dr Hawrami and Mr Kozel, this idea went no further. Gulf paid the bonuses in cash.