Judge Harold Baer
In 2006 Grenada defaulted on four loans from China's Export-Import Bank (Ex-Im Bank). In 2007 Ex-Im Bank was awarded $21.6 million in its first suit, which did not seek to enforce Grenada's promise to rank its obligations to Ex-Im Bank proportionally to its other external debts denominated in currency other than Grenada's and payable to a nonresident of Grenada. Ex-Im Bank's 2013 second lawsuit alleged breach of the proportionality clause in each of the four agreements. Denying both Grenada and Ex-Im Bank judgment on the pleadings, the court permitted intervention by investments funds holding interests in bonds issued by Grenada in its 2005 debt restructuring. Given key factual differences between its two suits, Ex-Im Bank's second case was not barred by res judicata or merger. Also, contrary to the situation in NML Capital Ltd. v. Republic of Argentina—on which it relied—Ex-Im Bank's pleadings showed only that Grenada may have made payments to other external bondholders between 2008 and 2012 and that there was an Official Memorandum stating that Grenada will not pay "any non-tendered Eligible Claims unless resources become available to do so." The parties dispute whether Ex-Im Bank's bonds constitute "Eligible Claims."
