The two signatures at the heart of the dispute

1. Addendum #01: turning SWIFT delivery into hard-copy delivery

The addendum recites that Barclays failed to perform procedural and communication obligations and says Kopa itself formally requested a hard-copy guarantee. It provides that the hard copy would have the same legal effect as an MT760. The accompanying joint instructions redirected the final escrow release to physical receipt.

That drafting is now central to Balkan’s defence: Kopa requested the change. But the communications show how the document was obtained. On 31 October Nahaboo told Kopa to check email and “send us the document.” On 5 November he wrote: “To speed up, please confirm the execution of the documents to Oscar,” identifying the formal request, instructions and addendum. Kopa asked whether it should confirm the contents; Nahaboo answered, “Confirm the signature.” Kopa did so. On 6 November he then said, “We’ll proceed with the authorization for the Issuing Bank to issue the Demand Guarantee.”

Kopa’s position is therefore that signature was not a freely selected alternative after neutral advice. It was presented as the procedural gate to further performance after the SWIFT route had failed. Whether that amounts legally to misrepresentation, economic pressure, waiver or estoppel is for lawyers and, if necessary, a court.

2. Collateral Receipt and Acceptance: “fully performed”

On 12 November Balkan compliance emailed a one-sided acknowledgement “to be executed and certified tomorrow.” It required Kopa to confirm that Balkan had “fully, duly, and successfully performed” all obligations and that the guarantee had been delivered in accordance with Kopa’s formal request.

The timing matters. One day earlier Kopa had told Nahaboo that Barclays’ SWIFT team said the supplied document was not genuine. Rather than pause for independent authentication, Balkan proceeded to require a sweeping performance acknowledgement. Kopa had also been working to a near-term drawdown timetable and understood the signed document was needed to send the package to Millennium.

Kopa signed and certified it. Balkan is entitled to rely on that fact. Kopa’s response is that the acknowledgement was procured within a process whose previous fee trigger depended on disputed SWIFT evidence, and was made a condition of reaching the very funding outcome for which the guarantee was acquired.