Introduction

As discussed in Chapter 8, there may be language in the provisions of national measures designed to insulate Iraqi oil and gas assets from claims by creditors that could be susceptible to the interpretation of providing protection only from court action and not from administrative, arbitral, or other nonjudicial action. To illustrate this point, recall that U.S. Executive Orders 13303 and 13364, as confirmed and extended by the presidential Notice of May 20, 2009, provide only for insulation from “judicial process.” As also indicated, however, even in situations in which the language of the relevant national measures is limited to court proceedings, determinations or decisions emerging from administrative, arbitral, or other nonjudicial proceedings are typically not self-enforcing and therefore require subsequent court action seeking recognition and enforcement to give them any real impact. A clear distinction exists between national measures insulating Iraqi oil and gas assets from any proceeding or process aimed at determining legal rights, and those written in such a way that they protect only against court proceedings. However, to the extent that the latter measure is involved, Iraqi assets are exposed to substantial inconvenience and problems by possibly having to be defended against nonjudicial proceedings. Ultimately, given the need for determinations from administrative or arbitral proceedings to be buttressed by recognition and enforcement in the judicial arena, the difference between both sorts of measures is minimal.