BuildLaw Issue 37 October 2019 | Page 19

could quickly find out whether (and to what extent) the underlying claim relating to the amounts demanded was admitted or disputed by Kegot.
Further, the Commercial Court was “prepared to assume without deciding” that Krisenergy also reasonably required documents “sufficient to allow Krisenergy to form a provisional view as to whether or not the claims which give rise to the demands are bona fide and not fraudulent claims”.
By providing 270 pages of supporting documents, including third party invoices, the Commercial Court decided that Rubicon had satisfied the requirements of clause 3 and issued a valid demand.
Comment
Parent company guarantees are a common feature in the oil and gas industry.
When drafting a guarantee, parties should carefully consider whether the guarantee is intended to operate as a true ‘see-to-it’ guarantee, an on-demand instrument, or, as was unusually agreed in this case, both.
The key difference being:
i. A guarantee usually creates a secondary obligation, under which the guarantor guarantees the performance of a primary obligation under the underlying contract (this is sometimes referred to as a “see to it” guarantee). The liability of the guarantor is therefore dependent on the performance of the primary obligation. Whilst “primary obligor” wording, and the inclusion of a “conversion to indemnity” (which is a very common feature of properly drafted