KUWAIT AIRWAYS: SETTLEMENT OF JUDGMENT AGAINST

C O N F I D E N T I A L SECTION 01 OF 03 KUWAIT 000217 SIPDIS SIPDIS STATE FOR NEA/ARP AND NEA/I; EB FOR COLEMAN E.O. 12958: DECL: 02/21/2018 TAGS: PGOV EAIR ECON KU IZ SUBJECT: KUWAIT AIRWAYS: SETTLEMENT OF JUDGMENT AGAINST IRAQ AIRWAYS MUST BE BETWEEN GOK AND GOI Classified By: CDA Timothy A. Lenderking reasons 1.4 (b) and (d) ¶1. (C) Summary: In a February 21 meeting with the CDA and Embassy Baghdad Transportation Attache McCormick, Kuwait Airways Corporation (KAC) Chairman explained that the decision to settle the USD one billion judgment against Iraq Airways Company (IAC) is not within the authority of KAC, and instead needs to be settled at the Government and Parliamentary level. The Chairman expressed willingness to settle this matter expeditiously but explained that the goal and duty of KAC is to ensure that KAC retrieves as much of the judgment as possible. He cited KAC obligation to repay its underwriters as one of the primary reasons for pursuing this claim. He added that it would be in IAC's best interest to settle this matter before the KAC privatization process is complete, which could be as early as November 2008. Speaking on labor issues related to privatization, the Chairman said that KAC employees would retain the same salary and benefits under the new private company as they currently enjoy. KAC Chairman Hamad Abdullatif Al-Falah was accompanied in the meeting by KAC legal advisor Sattar Setareh. End Summary. Judgment against IAC -------------- ¶2. (C) CDA and visiting Embassy Baghdad Transportation Attache McCormick met with Kuwait Airwyas Chairman Hamad Abdullatif Al-Falah on February 21 to discuss a possible resolution of Kuwait Airways' USD one billion claim against Iraq Airways. In response to Transportation Attache McCormick's recognition of the useful and productive role that Kuwait is playing in strengthening Iraqi civil aviation, Chairman Al-Falah acknowledged the importance of friendly relations with Iraq and added that settling the judgment against IAC would go a long way in strengthening ties between the two countries. He emphasized that the USD one billion judgment was obtained through a reputable and recognized legal system, namely the courts in the United Kingdom. Iraq Airways does not, at this point, have any excuse to ignore this judgment. It is KAC's responsibility to find ways to enforce the judgment and retrieve as much money as possible to compensate for losses sustained during the Iraqi invasion. The decision to negotiate and settle this judgment is outside the purview of KAC and would need the approval of both the GOK and the Parliament, he said. As long as KAC is a government-owned airline, this judgment is considered public funding and is therefore under the stewardship of the GOK. ¶3. (C) Mr. Al-Falah added that if the GOK meets with GOI officials and decides to reach a settlement or forgive it altogether, then KAC will abide by that decision. KAC legal advisor Setareh added that this suit was initiated upon the request of KAC's underwriters. In 1991, KAC's underwriters paid KAC 450 million dollars for the loss in aircraft and spare parts suffered by KAC. At that time, the underwriters insisted on this lawsuit to ensure that this money will finally be repaid by the GOI. In addition, the United Nations Compensation Commission did not pay any money to KAC because the underwriters had paid KAC for the loss. Repaying the underwriters, therefore, is a KAC priority to maintain its reputation and its credit rating. "We have to repay our obligations; we have to do all we can to get these public funds back," Al-Falah stressed. Any decision to forego the judgment can only be made by Cabinet Council and the Parliament. ¶4. (C) In addition, Al-Falah said KAC has incurred 77 million British pounds in legal fees over the 16 years of this lawsuit. Mr. Setareh said KAC and the GOK sympathize with the difficult situation faced by GOI and IAC, but KAC does not have any choice but to seek enforcement of this judgment. The GOK can seek to enforce this judgment as early as possible, he argued. This judgment set a precedent in UK courts, he said. As a result of this case, a company can bring a suit against a government for losses incurred due to legal fees based on the delay in proceedings caused by the government, he claimed. This historic case is now being studied in British law schools, he added. GOK-GOI Agreement the Way Forward -------------- ¶5. (C) When asked if further meetings between KAC and IAC would be useful, the legal advisor commented that KAC has already met with IAC officials, including the Chairman, twice KUWAIT 00000217 002 OF 003 in the last several years. In 2003, six months after the fall of Saddam, the IAC Chairman met with KAC and agreed to pay the claim. He even got the approval of his board of directors. Unfortunately, upon his return, the Coalition Provisional Authority overrode his decision and decided not to honor this agreement, he contended. KAC has repeatedly told IAC officials that settling this dispute at the government-to-government level would be the most expeditious way to settle this case. Two years ago, KAC approached IAC again but got very little response. IAC does not even acknowledge this outstanding judgment on its balance sheets. There are now reports in the press that IAC is looking to partially privatize the airline. "It is incomprehensible how IAC can move forward with any such action without acknowledging this debt," Al-Falah said. Chairman Al-Falah added that at this point KAC is not confident that any agreement reached with the IAC Chairman would be upheld by the Iraqi government. GOK-GOI agreement is the ideal solution. Iraqis have the money to pay because they have substantial oil revenues, he added. He urged the USG to push the Iraqis to settle this judgment expeditiously. ¶6. (C) Explaining the extent of GOK losses during the invasion, the Chairman said the Iraqis took everything from Kuwait including the smallest spare parts and papers associated with the airline. KAC employees worked tirelessly following the invasion to catalogue their losses. In 2004, a KAC official visited IAC in Baghdad and found large quantities of KAC spare parts neatly housed in IAC buildings. He was able to confirm that they were Kuwaiti parts by the serial numbers. Kuwaitis also found some KAC spare parts in Tunis on a Tunisian airplane. GOK's judgment does not include all the losses of spare parts, man hours, etc. that were lost during the invasion. "We are only trying to enforce a judgment that is reasonable for everyone", he claimed. ¶7. (C) Speaking on next steps for settling this dispute, Chairman Al-Falah explained that the window of opportunity to reach an agreement at the government-to-government level will close as soon as Kuwait Airways completes its privatization process. The privatization law allows KAC until December 2009 to finish the process; however, the Chairman expressed confidence that KAC will become a private company by November ¶2008. KAC is waiting for the decision from the Council of Ministers on the auditing company that will evaluate KAC's assets prior to privatization. Once a company is approved, it will have three to six months to finish its assessment. ¶8. (C) KAC is now working to register the judgment in all jurisdictions where it believes IAC will send its flights. KAC expects to be able to hold the IAC aircraft in foreign countries in lieu of payment on the judgment. When asked about other steps KAC or GOK is taking to get its hands on Iraqi money, the legal advisor said that he could not comment on such issues. The solution now would be for the senior Iraqi officials such as the Minister of Foreign Affairs and Minister of Transportation to meet with the Kuwaiti Minister of Foreign Affairs to discuss a settlement. The GOK may be amenable to payments on an installment basis or a reduced payment. The Cabinet Council of Ministers and the Parliament would have to approve any final settlement. Kuwait Airways privatization -------------- ¶9. (C) According to the new privatization law, KAC is open to Kuwaiti or foreign investors. There are no restrictions on who can purchase the airline, the Chairman explained. Until the company is privatized, the Cabinet Council has decided that no new airplanes will be purchased. In the meantime, KAC will lease aircraft as needed. The Chairman said that KAC will lease two airplanes this summer and five more later this year. This will allow KAC to continue its regional and long-distance flights without cutting back on its schedule, he added. ¶10. (C) The Chairman explained that KAC employees who are Kuwaiti will not experience significant differences in pay or benefits under the new private company. Under the privatization law, those who are eligible for retirement will be allowed to retire at the time of privatization. They will receive three years' full salary and all benefits. Those who are not eligible for retirement will be given the option of working in the new company or transferring to another government ministry or office. Even if they transfer, they KUWAIT 00000217 003 OF 003 will retain the same salary and benefits as they did at KAC and will get an additional three years of pension benefits. ¶11. (C) The primary challenge for KAC now, he said, is trying to increase the value of KAC before it privatizes. KAC needs to improve its reputation and restore normal operations. Enforcement of this judgment will help to support those efforts, he argued. When asked if KAC sees the local private airlines - Jazeera Airways and the soon to launch Wataniya - as a threat, he said that Jazeera is a low cost carrier that does not offer any services and does not fly long distance. Jazeera currently has six airplanes and is looking to acquire 30 more. These are all short-haul planes. Wataniya, which will launch its flights in January 2009 with two airplanes, will also only compete in the short-haul, regional market. Kuwait Airways will face stiff competition from both these airlines on short-distance, regional flights but not in the long-haul market, he said. Comment -------------- ¶12. (C) At this stage, further discussions at the KAC-IAC level do not appear to be fruitful since KAC does not have the authority to negotiate a settlement with IAC. KAC and the GOK are also skeptical of IAC's ability to follow through on any agreements. As a next step, a meeting between the Iraqi Minister of Transportation or Foreign Affairs with their Kuwaiti counterpars might be useful, something we will encourage from this end. While the Chairman's November 2008 timeline for KAC privatization may prove to be wishful thinking, we do believe there is merit in the IAC and GOI moving expeditiously to begin a dialogue with the GOK on a possible settlement prior to KAC privatization. On the Kuwait side, any agreement at the Ministers' level will need Cabinet Council and Parliamentary approval. ¶13. (U) Transportation Attache McCormick cleared this cable. ********************************************* * For more reporting from Embassy Kuwait, visit: http://www.state.sgov.gov/p/nea/kuwait/?cable s Visit Kuwait's Classified Website: http://www.state.sgov.gov/p/nea/kuwait/ ********************************************* * LENDERKING