Arbitration-related Court Decisions

共 25 条（含演示条目与 scripts/output/arbitration-court-ingested.json 合并结果）。

• DSQ v DSR [2026] SGHC 67

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Listed on Singapore Law Watch under topic «Arbitration — Award». Decision date 31 Mar 2026. Full reasons in the official PDF.

  sg_high_courtarbitration_supervisionsingapore_international_arbitration_act
• DTM v DTN [2026] SGHC 68

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Listed on Singapore Law Watch under topic «Arbitration — Award». Decision date 30 Mar 2026. Full reasons in the official PDF.

  sg_high_courtarbitration_supervision
• Hyatt Terminal and Industrial Corp v Filipinas Third Millenium Realty Corp [2026] SGHC(I) 3

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Listed on Singapore Law Watch under topic «Arbitration — Award». Decision date 26 Mar 2026. Full reasons in the official PDF.

  sg_high_courtarbitration_supervision
• UK Commercial Court — supervision: enforcement of an arbitral award (illustrative demo)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024 · demo

  演示摘要：申请人依《1996 年仲裁法》及《纽约公约》请求承认与执行仲裁裁决；被申请人以公共政策或程序瑕疵抗辩。

  uk_ewhc_commset_aside_applicationaward_enforcementarbitration_supervisionnew_york_conventionenglish_arbitration_act_1996
• UK Commercial Court — setting aside / remission (illustrative demo)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024 · demo

  演示摘要：当事人请求法院撤销或发回仲裁裁决，争议围绕仲裁庭组成、违反自然正义或越权。

  uk_ewhc_commset_aside_applicationarbitration_supervisionenglish_arbitration_act_1996
• UK Commercial Court — anti-suit / injunction in support of arbitration (illustrative demo)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2023 · demo

  演示摘要：一方在境外法院并行诉讼，他方请求商事法院签发反诉禁令或禁诉令以支持仲裁协议。

  uk_ewhc_commarbitration_supervisionenglish_arbitration_act_1996
• UK Commercial Court — jurisdictional challenge to tribunal (illustrative demo)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2023 · demo

  演示摘要：对仲裁庭管辖权的法院复核申请（视程序可能先于或在裁决后提出）。

  uk_ewhc_commarbitration_supervisionenglish_arbitration_act_1996
• Hong Kong — enforcement of arbitral award (illustrative demo)

  Hong Kong — Court of First Instance · Hong Kong SAR · 2024 · demo

  演示摘要：依据《仲裁条例》及《纽约公约》框架，法院审查执行仲裁裁决的申请。香港正文抓取：请在可访问 legalref.judiciary.hk 的环境将检索结果另存为 HTML，设置 HK_ARBITRATION_LIST_HTML 后运行抓取脚本。

  hk_hcfiaward_enforcementarbitration_supervisionnew_york_convention
• Hong Kong — set-aside or remission of award (illustrative demo)

  Hong Kong — Court of First Instance · Hong Kong SAR · 2024 · demo

  演示摘要：当事人向原讼法庭申请撤销或发回仲裁裁决，争议可能涉及仲裁程序公正性或仲裁庭越权。

  hk_hcfiset_aside_applicationarbitration_supervision
• Hong Kong — interim measures in aid of arbitration (illustrative demo)

  Hong Kong — Court of First Instance · Hong Kong SAR · 2023 · demo

  演示摘要：法院是否就仲裁程序采取临时措施或保全。

  hk_hcfiarbitration_supervision
• （演示）申请承认与执行贸仲（CIETAC）仲裁裁决 — 中级人民法院审查案

  中国大陆 — 中国裁判文书网（另存 HTML 管线） · Mainland China · 2023 · demo

  教学占位：申请执行人持中国国际经济贸易仲裁委员会作出的仲裁裁决，向法院申请承认与执行；被申请人可能提出公共政策或程序抗辩。

  CIETAC：执行/承认（倾向） · 协议有效（倾向）

  china_wenshucietac
• （演示）对贸仲裁决申请不予执行 / 仲裁协议效力争议 — 高级人民法院复议或监督案

  中国大陆 — 中国裁判文书网（另存 HTML 管线） · Mainland China · 2022 · demo

  教学占位：一方主张仲裁协议无效或裁决存在依法应不予执行的事由；法院审查仲裁协议成立与效力及程序合法性。

  CIETAC：拒绝/撤销（倾向） · 协议无效/不存在（倾向）

  china_wenshucietac
• （演示）香港法院 — 涉及 CIETAC 裁决承认与执行的监督案

  Hong Kong — Court of First Instance · Hong Kong SAR · 2024 · demo

  教学占位：当事人向香港法院就贸仲裁决申请强制执行或提出异议，涉及《仲裁条例》与公共政策边界。

  CIETAC：待核 · 待核

  hk_hcficietacaward_enforcementarbitration_supervisionnew_york_convention
• （演示）新加坡高等法院 — 与 CIETAC / 内地仲裁裁决相关的执行或管辖争议

  Singapore — High Court (Singapore Law Watch) · Singapore · 2025 · demo

  教学占位：列表或全文若出现 CIETAC、贸仲或内地仲裁机构裁决在新加坡执行问题，归入本模块。

  CIETAC：待核 · 待核

  sg_high_courtcietacaward_enforcementarbitration_supervisionsingapore_international_arbitration_act
• ABFA Commodities Trading Ltd v Petraco Oil Company SA [2024] EWHC 147 (Comm) (30 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10.30am on 30 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. The Honourable Mr Justice Foxton: INTRODUCTION These proceedings first came before the court on 15 May 2019 when the Claimant (who I shall refer to in this judgment as "VTB Commodities", its name at the time of the underlying events) applied for injunctions under s.44 of the Arbitration Act 1996 against its contractual counterparty, JSC Antipinsky Refinery ("Antipinsky"): a worldwide freezing order, and a mandatory injunction requiring Antipinsky to deliver a cargo of 60,608.95 mt of High Sulphur Vacuum Gasoil ("VGO") then on board a floating storage facility called the "POLAR ROCK" ("the Disputed Parcel") to VTB Commodities ("the Cargo Injunction"). The injunctions were granted by Mr Justice Waksman on 29 April 2019. The nature of the proceedings has evolved significantly in the intervening four years, an evolution which can be traced through reported judgments of this court ([2019] EWHC 3292 (Comm), [2020] EWHC 72 (Comm) and [2021] EWHC 1758 (Comm)), but in brief: i) On 8 May 2019, Petraco Oil Company SA ("Petraco") applied to intervene in the action, contending that it was entitled to delivery of the Disputed Parcel, which application to intervene was granted, and it also sought an inquiry as to damages pursuant to the undertaking in damages offered by VTB Commodities as a condition for obtaining the injunctions ("the Undertaking"), alleging that the Cargo Injunction should not have been granted and that the injunction had caused Petraco loss. ii) On 15 May 2019, on the return date for the injunctions, Sir William Blair ordered VTB Commodities to pay US$30m into court by way of fortification of the Undertaking; ordered the sale of the Disputed Parcel, with the proceeds to be paid into court; and directed an expedited trial of the rights and obligations of VTB Commodities, Antipinsky and Petraco in respect of the Disputed Parcel. iii) On 12 December 2019, Phillips LJ discharged the Cargo Injunction granted in respect of the Disputed Parcel, on the basis that it amounted to an impermissible interim mandatory order for specific performance of an obligation to deliver unascertained goods. iv) On 30 December 2019, Antipinsky was declared insolvent, and it has not played any active part in the proceedings since then. v) VTB Commodities served a Part 20 claim in response to Petraco's claim under the Undertaking, seeking damages by reference to Russian law from Petraco in relation to the Disputed Parcel and two other cargoes of VGO which were delivered to Petraco ("the Other Cargoes"). VTB Commodities' attempt to bring similar claims against other entities failed on jurisdictional grounds. vi) Sanctions imposed following the Russian invasion of Ukraine left VTB Commodities without legal representation for lengthy periods and necessitated a second adjournment of the trial from May to November 2023. VTB Commodities' legal team are to be commended on the manner in which they have overcome the considerable difficulties they have faced, and put themselves in a position to advance a formidable case at trial. In strictly chronological terms, the issues which arise are as follows. First, is Petraco liable to VTB Commodities in damages for the tort of abuse of rights under Articles 10 and 1064 of the Russian Civil Code ("the RCC") for contracting to acquire the Other Cargoes and/or the Disputed Parcel and if so, in what amount? That depends: i) on Petraco's state of mind when acquiring the right to the Other Cargoes and the Disputed Parcel; ii) the content of Russian law; and iii) the causation and quantification of any loss; but raises no issue as to whether and when property in the Other Cargoes or the Disputed Parcel passed to Petraco. Second, should the court award Petraco damages pursuant to the Undertaking in respect of the Disputed Parcel and, if so, in what amount? That raises the following issues: i) Both parties have been content to proceed on the basis that Petraco can only claim under the Undertaking in damages if Petraco would have acquired title to the Disputed Parcel but for the Cargo Injunction requiring Antipinsky to deliver the Disputed Parcel to VTB Commodities. While there was a late attempt by Petraco to depart from that shared assumption at the end of closing submissions, I was satisfied that it would not be fair to permit it to do so at that stage. ii) The resolution of this issue requires the court to determine the following questions: a) Did JSC VO MachinoImport ("MachinoImport") � the Russian company from whom Petraco claims to have acquired the Disputed Parcel � acquire title to the Disputed Parcel from Antipinsky? VTB Commodities contends that it did not because Antipinsky and MachinoImport acted contrary to Articles 10 and 168(2) of the RCC by contracting for the sale and purchase of cargo knowing or being reckless as to the fact that delivery under that contract would necessarily have the effect that Antipinsky would breach its contractual obligations to VTB Commodities. Petraco denies that the Article 10 claim arises in law or is made out on the facts, but contends that even if it does, MachinoImport nonetheless acquired title to the Disputed Parcel. b) By way of a fall-back argument, VTB Commodities initially contended that the contracts between Antipinsky and MachinoImport were a sham, MachinoImport's true role being to act as Antipinsky's agent, such that Petraco has to show it acquired property in the Disputed Parcel from Antipinsky. That argument (sensibly in my view) was not pursed by the end of closing. c) If MachinoImport did acquire title to the Disputed Parcel from Antipinsky, would Petraco have acquired title to the Disputed Parcel from MachinoImport? This raises the same issue as to Article 10 of the RCC, albeit on this occasion as between MachinoImport and Petraco. d) If MachinoImport did not acquire title to the Disputed Parcel from Antipinsky, would Petraco nonetheless have acquired title to the Disputed Parcel if MachinoImport had delivered the Disputed Parcel to it, as a good faith purchaser? iii) If Petraco would, by one means or another, have acquired title to the Disputed Parcel, should the court nonetheless refuse to make an award in Petraco's favour pursuant to the Undertaking? iv) If an award is to be made in Petraco's favour pursuant to the Undertaking, in what amount should it be made? THE EVIDENCE Factual witness evidence Petraco called four witnesses who work for Petraco and had contemporaneous involvement in the events: i) Ms Ingeborg Srenger, a director and the CEO of Petraco, whose father founded the company and who has worked for Petraco for over 40 years; ii) Mr Enrico Morello, a VGO trader who has worked for Petraco since 2014, iii) Mr Josip Vukman, who is the head of Petraco's representative office in Moscow; and iv) Mr David South, a senior crude oil trader with Petraco (whose role in events was limited). The broad thrust of Ms Srenger, Mr Morello and Mr Vukman's evidence was that they were confident that Petraco's contractual counterparty, MachinoImport, would able to supply the VGO which Petraco had contracted to purchase; they did not have cause to consider the issue of whether Antipinsky had the capacity to supply the product; they had no knowledge that VTB Commodities had contractual rights to cargo of such a nature that it would have taken all or substantially all of the capacity of the Antipinsky refinery's production to meet them; and that they did not and had no reason to believe that delivery of VGO under its contracts would obstruct performance of VTB Commodities' contracts. The statements also offered explanations for a number of communications which might, on one reading, have suggested the contrary. For reasons I explain below, the evidence given by Ms Srenger and Mr Morello as to their dealings in relation to Antipinsky VGO was materially incomplete, with evidence as to important events only being offered (and then on an incomplete and inaccurate basis) once disclosure alerted VTB Commodities to them. Their evidence involved a conscious and concerted attempt to downplay their contemporaneous knowledge and understanding of VTB Commodities' entitlements and the impact which deliveries to Petraco would have on satisfaction of those entitlements. Mr Vukman's statement contained a number of assertions which he was not in a position to support, and in cross-examination he professed to have little, if any, recollection of many of the contemporaneous events. Save where undisputed or corroborated by contemporaneous documents or the inherent probabilities, I am unable to place weight on the evidence of any of these witnesses. I make further detailed findings on the evidence of Ms Srenger and Mr Morello below. I do not make the same criticism of Mr South, who had a more marginal role in events. He found himself in a difficult position: he was a close personal friend of the key VTB Commodities trader, Mr Mohsin ("Moh") Kabir, but as an employee of Petraco, he must have felt under some pressure to support the "party line". In the main, he navigated those tensions honestly and adroitly. An attempt was made to use Mr South as a vehicle to introduce opinion evidence as to what would and would not have been known about Antipinsky's refinery. However, it was not open to Petraco to adduce opinion evidence on this topic other than through the expert witness they were given permission to call, and, in any event, Mr South was at pains to make it clear that he did not have any involvement in the VGO side of Petraco's business and that in relation to his role in crude oil trading, he did not follow the Russian market. VTB Commodities called two witnesses � Mr Graham Cane, who was an Executive Director at the relevant time, and Mr Deepak Rastogi, who was Head of Commodities Structuring. They had only a marginal involvement in the events. Their evidence was given honestly but was of limited assistance. Once again, I was not willing to place reliance on the opinion evidence which VTB Commodities sought to introduce through Mr Cane's evidence. Not only was there no permission to rely upon such evidence, but Mr Cane had no experience as a VGO trader and was principally concerned with chartering matters. In addition, both parties relied upon evidence which had been adduced in the course of the injunction proceedings in 2019, from witnesses who were not called to give oral evidence. In determining what weight to give to that evidence, I have had regard to the factors identified in JSC BM Bank v Kekhman [2018] EWHC 791 (Comm), [82]- [86]. Clearly, all other things being equal, such evidence is entitled to less weight than evidence tested by cross-examination, but where the court is able to test the evidence by reference to the contemporaneous documents and inherent probabilities, it is not without value. Petraco seeks to rely upon three witness statements from Mr Andrey Ivanov, the Deputy Director General of MachinoImport, from whom Petraco claims it acquired the Other Cargoes and the Disputed Parcel. This evidence was principally addressed to establishing Petraco's chain of title and it does not address the key meetings of December 2018 and January 2019 (see [49] and [60] below). Its language is carefully phrased (as Mr Kabir pointed out in his second witness statement of 13 May 2019). Having signed contracts of sale with Petraco, it was inevitably in MachinoImport's interest to seek to uphold the validity of those contracts and its role generally. I do not draw an adverse inference from Petraco's failure to call Mr Ivanov. He does not work for Petraco, is based outside the jurisdiction, and, MachinoImport having successfully resisted VTB Commodities' attempt to

  uk_ewhc_commset_aside_applicationaward_enforcementarbitration_supervisionenglish_arbitration_act_1996
• Abraaj Investment Management Ltd & Anor v Kes Power Ltd [2024] EWHC 41 (Comm) (16 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10.30am on 16 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Sean O'Sullivan KC (sitting as a Deputy High Court Judge): Mr Shan-E-Abbas Ashary (who I will call "the Applicant") applies for a stay of these English proceedings whilst a dispute as to who is entitled to represent the Defendant ("D") is determined in the Cayman Islands. The Claimants ("the Cs") oppose that application. D has not taken any position, and has not been represented, for reasons I will explain. However, there is no objection by the Cs to the Applicant's request to be joined to the action as a party, so that there is no dispute as to his standing to make this application. I therefore make that order pursuant to CPR 19.2(2), with the effect that the Applicant becomes the Second Defendant in these English proceedings. I will, however, continue to call him "the Applicant" and to refer to the First Defendant as "D". The parties The relationships between the different parties involved, or having an interest, in these proceedings are complicated. I am going to focus on the aspects which seem to me to matter for the purposes of the present application, which inevitably means that what follows is not a complete picture. The Cs' substantive claim in these English proceedings concerns an alleged debt of US$41,446,114 plus interest ("the Debt") said to be owed by D to the Cs. The Debt relates to fees for services that the First Claimant (which I will call "AIML") provided to D, and expenses that AIML incurred on D's behalf, from 2009 onwards. AIML was part of the Abraaj Group of companies, a private equity group which focused on investment in emerging markets. AIML was the principal investment management entity within the Abraaj Group. AIML was wound up by order of the Grand Court of the Cayman Islands on 11 September 2019. The Second Claimant ("Sage") is said to have acquired the Debt in 2022. I understand Sage to form part of a group which is seeking to take control of an investment vehicle called IGCF SPV 21 Limited ("SPV21"). Specifically, on 3 August 2022, it is said that: 7.1. AIML sold its rights and interest in the Debt (less an amount of US$1,139,526, which AIML is liable to pay to another entity) to Sage; 7.2. AIML transferred its equitable interest in the sole voting share in SPV21 to Sage; and 7.3. AIML received back an assignment of the Debt from Sage, as security for the consideration which will be payable by Sage for the Debt. D is a Cayman Islands company which serves as a special purpose vehicle for various parties' investments in the Karachi Electric Supply Corporation Limited ("K-Electric"), an energy supply company in Pakistan. It is said that D's only substantial asset is an illiquid 66.4% stake in the ordinary shares of K-Electric. There are three shareholders in D: 9.1. SPV21. The sole voting share in SPV21 is legally held by AIML, but (as I have indicated) it is said that the equitable interest in the voting share was transferred to Sage in August 2022; and 9.2. Al Jomaih Power Limited ("AJP") and Denham Investments Ltd ("Denham"), who the parties together call the "Original Shareholders", because they held investments in K-Electric through D before SPV21 acquired its interest in D in October 2008. I am told that SPV21 owns 53.8% of the shares of D. AJP holds 27.7% and Denham 18.5%. Each of the shareholders is entitled to appoint representative directors to the board of D pursuant to the terms of a Shareholders Agreement dated 15 October 2008. SPV21 is entitled to appoint five directors, referred to by the parties as "the Abraaj Nominees", although I am told that the right to appoint one of these was transferred to the receivers of certain Abraaj Group companies (and is, or was, controlled by Mashreqbank PSC � see further below). AJP appoints three directors and Denham appoints two directors. There is no provision for a casting vote. The Applicant is one of the three AJP appointed directors. The Debt The Cs' position is that the Debt had long been treated as undisputed. The Debt is said to arise from a Consultancy Services Agreement entered into between AIML and D on 18 May 2009 ("the CSA"). The CSA has an English governing law and exclusive jurisdiction clause. Pursuant to the CSA, D had a contractual obligation to pay AIML a fee of US$10 million per annum for services provided under the CSA. The CSA had an initial term of 5 years and covered the period from 2008 to 2012, ending on 31 December 2012. The CSA was then extended from 1 January 2013 until 31 December 2016 by way of a Side Letter dated 15 July 2015, which also contained an English governing law and exclusive jurisdiction clause. It amended the annual fee to be paid by D to US$4 million per annum. I am told that, on 28 May 2012, US$20 million worth of fees owed to AIML was settled by a debt-to-equity conversion. Then, in 2015, a further US$13 million worth of those fees were settled by D using the proceeds of an accelerated equity offering. It is alleged that there is a balance of US$33 million in fees which is outstanding (i.e. 5y x $10m + 4y x $4m = $66m, less $20m and $13m). In addition, it is alleged that AIML incurred expenses on D's behalf and for its benefit. The outstanding expenses are said to total US$8,446,114. The Cs point out that the Debt was acknowledged in D's accounts for several years, including between 2014 and 2021, and that it featured in at least three sets of accounts which appear to have been signed by the Applicant himself. For example, D's accounts for the year ended 31 December 2021 (which were signed by the Applicant) acknowledge sums of US$25 million and US$8 million to be due as management fees. They also record another payable to AIML in the sum of US$8,446,114, which I take to be the expenses. After Sage became involved, however, the Original Shareholders took the position that the Debt should be challenged. The Cs say that half of D's board of directors does not accept that the Debt should be disputed and does not accept that there is any proper basis for the present claim to be defended. I will say a little more about this in due course. In any event, when it became apparent that there was a disagreement about the Debt, the Cs say it was necessary for AIML to take steps to preserve its security interest, and Sage's interest, in the Debt. On 30 November 2022, a statutory demand was served by AIML on D's registered office in the Cayman Islands. The 21-day period for the statutory demand expired on 21 December 2022, without any payment being made by D. The Cs say that they did not progress the winding up of D for non-payment of the Debt, because D's ability to pay the Debt was dependent upon a sale by D of its interest in K-Electric. The Cs suggest that a winding up of D might jeopardise D's attempts to realise its interest in the K-Electric shares, which are D's sole asset. For his part, the Applicant invites me to infer that the Cs did not progress the winding up because they recognised that there was a bona fide dispute about the Debt. The current proceedings and the dispute about the representation of D The Claim Form in the present action was issued on 21 March 2023. On 9 June 2023, the Cs served the Claim Form and Particulars of Claim on D. The Claim Form and PoC were served out of the jurisdiction pursuant to CPR 6.34, on the basis that the claim was made pursuant to or in respect of a contract which contains a term to the effect that the Court has jurisdiction to determine the claim. I do not understand there to be any dispute about the validity of service. On 12 June 2023, there was a meeting of D's board which was adjourned because it was inquorate. The Applicant's case is that the board meeting was automatically adjourned until 19 June 2023 and that there was a valid meeting of D's board on that date. He says that the board voted in favour of a resolution that Fieldfisher should represent D in these proceedings. The Cs say that this was not a valid meeting at all and further that, if it was, the vote was deadlocked (5 vs 5). To some degree, this outcome of the vote depends on whether a Mr Keiran Hutchison was entitled to cast a vote at that meeting in favour of Fieldfisher's instruction. Mr Hutchison is a partner in EY Cayman Ltd and a director of KP Corporate, which was in turn a corporate director of D. He makes various complaints about KP Corporate Director Ltd ("KP Corporate") (purported) removal from the D's board immediately before the 19 June meeting. His removal is being challenged in the Grand Court of the Cayman Islands. The Applicant also argues that the directors who voted (by proxy) against the appointment of Fieldfisher were acting in breach of their fiduciary duties owed to the D when doing so, because they were (it is alleged) doing so on the instructions of the Cs, notwithstanding that it would be in the best interests of D to dispute the Debt. On 30 June 2023, an Acknowledgement of Service was served on Cs, indicating an intention both to defend the claim and to contest jurisdiction. The AoS was served by Fieldfisher, apparently on behalf of D. No application to contest jurisdiction followed. On 6 July 2023, Fieldfisher wrote to Simmons & Simmons (solicitors for the Cs), requesting an extension to the deadline for filing the Defence, and asking for copies of documents allegedly referred to in the PoC. On 11 July 2023, Simmons & Simmons asked whether Fieldfisher considered that that firm was properly authorised to act for D, given the wider dispute between the shareholders. The same day, Charles Russell, solicitors for SPV21, wrote to Fieldfisher to suggest that the Original Shareholders did not have the authority to instruct Fieldfisher to act on behalf of D. On 13 July 2023, Fieldfisher responded to say that they considered themselves to have been properly instructed on behalf of D. However, they accepted there was now a dispute as to whether the board meeting on 19 June 2023 had authorised them to act on behalf of D. Until that dispute had been resolved, Fieldfisher indicated that they would be acting on behalf of directors of D appointed by the Original Shareholders only. They invited the Cs to apply for a stay of the proceedings until determination of that dispute as to the representation of D. After further correspondence between the parties, the Stay Application was issued by the Applicant on 31 July 2023. The various Cayman Proceedings Meanwhile, on 7 July 2023, SPV21 filed a petition in the Grand Court of the Cayman Islands seeking an order that D be wound up on just and equitable grounds, including on the basis that D's board is now deadlocked. I am told that the Original Shareholders unsuccessfully applied to strike out that petition, and intend to appeal that decision not to strike it out. There are also proceedings in the Caymanian Court against SPV21, seeking a declaration that the (purported) removal of KP Corporate from D's board was void or voidable and should be set aside. On 31 August 2023, the Applicant and the Original Shareholders issued proceedings in the Cayman Islands against D, SPV21 and all of the directors nominated by SPV21, seeking declaratory relief: (a) confirming the validity of the 19 June meeting; (b) confirming the validity of the instruction of Fieldfisher and (c) seeking the establishment of a sub-committee of the board of D to instruct Fieldfisher to defend the English claim. The last is the set of proceedings in the Cayman Islands which the Applicant originally said should be determined before the current litigation could proceed. However, there is said to be significant overlap in the factual matters in the various Caymanian actions and petitions. I understand the Applicant's position now to be that, in practice,

  uk_ewhc_commset_aside_application
• Border Timbers Ltd & Anor v Republic of Zimbabwe [2024] EWHC 58 (Comm) (19 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] England and Wales High Court (Commercial Court) Decisions You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Border Timbers Ltd & Anor v Republic of Zimbabwe [2024] EWHC 58 (Comm) (19 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/58.html Cite as: [2024] WLR(D) 122, [2024] 2 All ER (Comm) 360, [2024] 1 WLR 3417, [2024] EWHC 58 (Comm), [2024] WLR 3417, [2024] 1 Lloyd's Rep 427 [New search] [Printable PDF version] [View ICLR summary: [2024] WLR(D) 122] [Buy ICLR report: [2024] 1 WLR 3417] [Help] Neutral Citation Number: [2024] EWHC 58 (Comm) Case No: CL-2021-000541 IN THE HIGH COURT OF JUSTICEKING'S BENCH DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCOMMERCIAL COURT Royal Courts of Justice, Rolls BuildingFetter Lane, London, WC4A 1NL 19 January 2024 B e f o r e : MRS JUSTICE DIAS DBE ____________________ Between: (1) Border Timbers Limited (2) Hangani Development Co. (Private) Limited Claimants - and - Republic of Zimbabwe Defendant ____________________ Christopher Harris KC and Rumen Cholakov (instructed by Baker & McKenzie LLP) for the Claimants Salim Moollan KC, Benedict Tompkins and Andris Rudzitis (instructed by Gresham Legal) for the Defendant Hearing dates: 31 October, 1 November 2023 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mrs Justice Dias DBE: INTRODUCTION The matter before me arises out of an arbitration award dated 28 July 2015 made under the auspices of the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention"). The arbitration in question was brought by the Claimants against the Defendant, the Republic of Zimbabwe ("Zimbabwe") and related to the alleged expropriation of the Claimants' land in Zimbabwe. By the award, Zimbabwe was ordered to pay to the Claimants some US$124 million plus interest, together with a further US$1 million in moral damages and costs. Zimbabwe applied to have the award annulled by means of a process provided for in the ICSID Convention itself. That application was dismissed by the ICSID annulment committee on 21 November 2018 with further costs ordered to be paid by Zimbabwe. The award was not satisfied and on 15 September 2021, the Claimants applied to the English court without notice under CPR Part 62.21 for registration and entry of judgment on the award in England pursuant to section 2 of the Arbitration (International Investment Disputes) Act 1966 (the "1966 Act"). That application was granted by Mrs Justice Cockerill on 8 October 2021, who ordered that the award be recognised and entered as a judgment by the High Court in the same manner and with the same force and effect as if it were a final judgment of this court. Cockerill J's order was served on Zimbabwe on 27 May 2022. On 25 July 2022, Zimbabwe applied to set it aside on the grounds that Zimbabwe was immune from the jurisdiction of the UK courts by virtue of section 1(1) of the State Immunity Act 1978. In response, the Claimants argued that Zimbabwe fell within one or both of the exceptions to immunity set out in sections 2 and 9 of the 1978 Act on the basis that it had submitted to the jurisdiction by virtue of its agreement to the ICSID Convention and/or had agreed to submit the underlying dispute to ICSID arbitration and so was not immune in respect of proceedings in the United Kingdom relating to that arbitration. In these circumstances, it was directed by Jacobs J on 27 January 2023 that the following preliminary issues (in essence) be determined in advance: (a) Whether Zimbabwe was entitled to claim state immunity in relation to these proceedings; (b) Whether Zimbabwe had waived such immunity under section 2 of the State Immunity Act by operation of the ICSID Convention; (c) Whether the English court was bound for the purposes of section 9 of the State Immunity Act by the determination of the ICSID tribunal and the annulment committee as to the jurisdiction of the tribunal; (d) Whether Cockerill J's order should in any event be set aside for breach of the Claimants' duty of full and frank disclosure in failing to draw the attention of the judge in the without notice application to potential arguments on state immunity and/or in failing to establish any legal basis for an exception to immunity. This is the hearing of those issues. I mention one point at the outset in order to dispose of it. On behalf of the Claimants, Mr Christopher Harris KC made much of the fact that Zimbabwe had participated fully in the ICSID arbitration but had failed in its defence before a vastly experienced tribunal. Its attempt to have the award annulled had likewise failed on all points, yet it was now resisting enforcement of the award on substantially the same grounds as had been advanced and rejected previously (albeit with the addition of one further ground). He observed that it was now 10 years since the original award was issued and the Claimants were still no closer to receiving the damages awarded to them. I have no doubt that this protracted chronology is a source of immense frustration to the Claimants and that in their eyes the present application is no more than a further attempt by Zimbabwe to frustrate and obstruct the enforcement of the award so as to avoid having to meet its obligations. Whether true or not, however, it is irrelevant to the question I have to decide, which is whether Zimbabwe is entitled to have Cockerill J's order set aside on the grounds asserted or not. THE LEGISLATIVE FRAMEWORK State Immunity Act 1978 The starting point is the State Immunity Act 1978. Prior to 1978, England was almost alone in continuing to adopt a pure, absolute doctrine of state immunity in all cases: I Congreso del Partido, [1983] AC 244 at 261. Any waiver had to be declared in the face of the court, for example by pleading a defence to a claim: Mighell v Sultan of Johore, [1894] 1 QB 149. Moreover, an agreement to arbitrate did not amount to a submission to the jurisdiction: Duff Development Co. Ltd v Government of Kelantan, [1924] AC 797. The common law rules were, however, replaced and restated in the 1978 Act which provides in material part as follows: "1. General immunity from jurisdiction (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question. 2. Submission to jurisdiction (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom. (2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission. (3) A State is deemed to have submitted � (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings. (4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of: (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it. (5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. (6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim. � 9. Arbitrations (1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration. (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States. � 13. Other procedural privileges � (2) Subject to subsections (3) and (4) below � (a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. � (3) Subsections (2) and (2A) above do not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection. � 17. Interpretation of Part I � (2) In sections 2(2) and 13(3) above references to an agreement include references to a treaty, convention or other international agreement. �" The following were common ground before me: (a) The default position under the 1978 Act is that a foreign state is entitled to blanket immunity from the jurisdiction of the UK courts except as provided in Part I of the Act. (b) The Act is a complete code, and a state is therefore immune unless one of the exceptions applies: Benkharbouche v Embassy of the Republic of Sudan, [2017] UKSC 62; [2019] AC 777 at [39]. (c) The applicant bears the burden of proving the application of an exception on the balance of probabilities: Al Masarir v Saudi Arabia, [2022] EWHC 2199 (QB); [2022] PIQR P3 at [8]. (d) The court is bound to give effect to any sovereign immunity of its own motion; the point cannot escape scrutiny sub silentio. The ICSID Convention The Preamble to the ICSID Convention provides as follows: "Preamble The Contracting States Considering the need for international cooperation for economic development, and the role of private international investment therein; Bearing in mind the possibility that from time to time disputes may arise in connection with such investment between Contracting States and nationals of other Contracting States Recognizing that while such disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases; Attaching particular importance to the availability of facilities for international conciliation or arbitration to which Contracting States and nationals of other Contracting States may submit such disputes if they so desire; Desiring to establish such facilities under the auspices of the International Bank for Reconstruction and Development; Recognizing that mutual consent by the parties to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with; and Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration, Have agreed as follows�" Chapter I of the Convention establishes the structures and organs of ICSID, while Chapter II defines its jurisdiction. It is clear from these provisions that the Convention does not itself constitute an agreement to arbitrate but merely provides a framework for the resolution of such disputes as the parties may agree in writing to submit to ICSID.

  uk_ewhc_commset_aside_applicationaward_enforcementarbitration_supervisionnew_york_conventionenglish_arbitration_act_1996
• Eurobank SA v Momentum Maritime SA & Ors [2024] EWHC 210 (Comm) (29 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] England and Wales High Court (Commercial Court) Decisions You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Eurobank SA v Momentum Maritime SA & Ors [2024] EWHC 210 (Comm) (29 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/210.html Cite as: [2024] EWHC 210 (Comm) [New search] [Printable PDF version] [Help] Neutral Citation Number: [2024] EWHC 210 (Comm) No.CL-2021-000638 IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCOMMERCIAL COURT (KBD) Rolls BuildingFetter LaneLondon, EC4A 1NL 29 January 2024 B e f o r e : HIS HONOUR JUDGE PELLING KC(Siting as a High Court Judge) ____________________ EUROBANK S.A. Claimant - and - (1) MOMENTUM MARITIME S.A.(2) TITAN MARITME LTD(3) MAXIMUM MARINE LTD(4) ALEXANDROS E. TSAKOS(5) PANGIOTIS I. MERAMVELIOTAKIS(6) IOANNIS P. MERAMVELIOTAKIS Defendants ____________________ Transcribed by Opus 2 International LimitedOfficial Court Reporters and Audio Transcribers5 New Street Square, London, EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737civil@opus2.digital ____________________ MR J ROBINSON (instructed by Watson Farley & Williams LLP) appeared on behalf of the Claimant. MR T STEWARD (instructed by Preston Turnbull LLP) appeared on behalf of the Defendants. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © JUDGE PELLING : This is an application for summary judgment by the claimant bank against the borrowers and the guarantors of the obligations of the borrowers. The first to third defendant borrowers are each one-ship companies. The fourth to sixth defendants are each guarantors of the loans. The fourth and sixth defendants are respectively the 51 per cent and 49 per cent shareholders in the first to third defendants. The loan agreement provided for a facility of just over $12 million to the borrowers, and for which the first to third defendants were jointly and severally liable. The loan was secured by the personal guarantees of the fourth to sixth defendants, as I have said, by mortgages over vessels owned respectively by the first to third defendants. It is common ground that, in breach of contract under the loan agreement, the borrowers failed to make two payments, and various insurance policies that the borrowers had covenanted to maintain were terminated for non-payment of premiums. These were events of default under the loan agreement that entitled the claimant to accelerate the repayment of the sums lent, which is what it did on 18 October 2019 when it demanded repayment of the sums then outstanding of about $4.7 million, plus interest and expenses. It made demand of the fifth and sixth defendants under the guarantees. None of the sums outstanding have been paid by the borrowers and, aside from a payment made by a corporate guarantor, nothing has been paid generally. In the result, I am told (and it does not appear to be in dispute) that there is currently due and owing to the claimant $4,233,780.90, �186,327.50, and �59,373.54. None of this, as I say, is in dispute. There was a concern expressed in the course of the hearing that the lender's interest was held in several shares by the by the claimant and one of its associated companies. However, that ceased to be a problem because of an undertaking offered by the claimant, the effect of which would be to account to all those entitled to recover the sums lent, in the event it succeeds in obtaining judgment. A concern that credit would not be given for all sums received from third parties in respect of the debts (to the extent that was required) ceased to be a problem as well because of an undertaking offered by the claimant to give credit as appropriate and inform the defendants of all sums received. Two of the vessels the subject of the mortgages were, from June 2019, arrested in Djibouti by various third-party creditors. One of the vessels was the subject of ten different arrests from various trade creditors, and the other was subject to eight different trade creditor arrests. The vessels were abandoned by their owners on or about 15 September 2019 and then, or thereafter, the ships were arrested by or on behalf of the Djibouti Port Authority. In February 2020, the claimant arrested the vessels at a time when the vessels were each subject to multiple prior arrests. The Djibouti Port Authority applied to the courts in Djibouti for an order requiring the forced sale of the vessels out of court by the Port Authority. On 5 March 2020 that application was granted, and on 28 April 2020 the Djibouti Port Authority announced an auction of the vessels pursuant to the first instance court's order. Concerned at the effect that such a sale might have on its security, the claimant appealed that order, and on 1 June 2020 the Djibouti Court of Appeal set aside the order for sale for want of jurisdiction; ordered the Djibouti Port Authority to pay the costs of the appeal, but authorised the sale of the vessels by a court-supervised process, as is more conventional following the arrest of vessels. Thereafter the Djibouti Port Authority attempted to organise auctions of the vessels at various stages down to October 2020. It is suggested that this was contrary to the requirements of the Djibouti Court of Appeal, but whether that is so or not does not matter for present purposes. On a date unknown, the Djibouti Port Authority arranged a private sale of the vessels. The claimant maintains it first discovered that this was so on 11 November 2020. The sale was at a price of $3.2 million-odd to an intermediary based in Dubai, who thereafter sold the vessels for scrap to a ship scrapping operation based in Pakistan. The claimant maintains it had no prior notice of the sale, and details of when and how the sale was brought about is said by the claimant to be unknown to it. The claimant says it has received nothing from the sale. These proceedings were commenced in November 2021, with the defendants defending the claim by pleading at para.18 of their defence that the claimant borrowers had an equitable duty (1) to act reasonably in the realisation of any mortgage property, and/or (2) to obtain a true market price for the mortgaged property, namely the vessels. Their pleaded case as to the breach of these alleged duties involves them alleging that the claimant arrested the vessels, and then asserting that the sale to which I have referred was "... conducted at its behest ...", and that as a result the claimant failed to obtain the vessels' true market value, as it was obliged to do. The test to be applied on the summary judgment application is well known, and is that set out in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). If permission to defend the claim is to be given, I must be satisfied that the defendants have a real, as opposed to a fanciful, prospect of success, and whilst a court should not carry out a mini-trial in deciding applications for summary judgment, that does not mean that a judge must accept at face value everything a defendant says, but at the same time should refuse summary judgment if there are reasonable grounds for believing that at a trial other evidence may be available which might alter the outcome and the perception as it is at the time the summary judgment application is being determined. The critical first point to make is that the only step that the claimant took in relation to the vessels � at any rate on the evidence that is available � was to arrest them, and they did so after a number of other trade creditors had taken the same steps. Although it is alleged in the defence that the claimant was responsible for the sale that eventually took place, ultimately resulting in the vessels being scrapped, that is fanciful on the factual material that is available. That material includes not merely the court orders from the Djibouti first instance and Court of Appeal to which I referred earlier in this judgment, but to third party narrative documents as well, being principally the ILO documentation, but there are others that are material. Where all that a marine mortgagee does is to exercise a power of arrest, the sole duty of the party effecting arrest is to do so in good faith for the purpose of obtaining repayment under the loan agreement secured by the mortgage. The contrary is not, and could not be, suggested. That this was the claimant's purpose of the exercise is consistent with (a) the claimant's appeal against the first instance decision permitting the Djibouti Port Authority to sell the vessels otherwise than under the supervision of the Djibouti court, and (b) the attempts made to stop the vessels being broken up once it became apparent to the claimant that they had been sold for that purpose. It is only if a mortgagee either takes possession of the mortgaged property or exercises a power of sale in respect of it that more complex duties arise. A mortgagee has, however, no duty to take possession or sell. If a mortgagee takes possession, then it assumes a duty to take reasonable care of the property: see Silven Properties v RBS [2004] 1 WLR 997, per Lightman J at [13]. However, there is no basis, on the evidence that is available to me, that the claimant took any form of possession of the vessels. Arresting a vessel is not to take possession of it. It is only when a mortgagee decides to exercise a power of sale that a mortgagee comes under any equitable duties concerning how that sale is to be conducted, and the duty is confined to a duty to obtain the true market price at the date of the sale. There are numerous authorities to this effect which were adopted and applied in respect of a marine mortgage in The Tropical Reefer [2004] 1 All ER (Comm) 904 at [19]. Returning to the facts of this case, there is no evidence whatsoever that the sale about which complaint is made by the defendants was a sale by or behalf of the claimant. The sale was a private sale by the DPA. The claimant did not have any prior notice of the sale and did not discover that it had occurred until after it had taken place. There is no evidence to contrary effect, and no reason for supposing that evidence to contrary effect will emerge if only the claim is allowed to proceed to trial. There is no reasonable or indeed any ground for thinking the evidence on this critical point will alter. As I have said, and repeat, the suggestion is inconsistent with both the claimant's appeal to the Djibouti Court of Appeal and its attempts to prevents the ships being broken up once it became aware of the sale of the vessels. It was submitted on behalf of the defendants that it was more than fanciful that the equitable duties that arise when effecting an arrest should be viewed as sufficiently flexible so that the scope of any duty, beyond a duty to act in good faith, should be viewed as ultimately depending on the facts and therefore that there should be atrial at which the allegedly relevant facts can be found. The defendants relied for this proposition on Medforth v Blake [2000] Ch 87 at [102]. In my judgment, that authority has no application in the circumstances of this case. It was precisely the argument advanced by the defendants in this case that was rejected at first instance in The Tropical Reefer (ibid) per Nigel Teare QC (as he then was) at paras.33 to 34, where it was pointed out that the context in which the statement relied on made was wholly different to that which applied in that case (and this), being an allegation that receivers had negligently conducted the business of which they had been appointed receivers. It has no impact either on the duty which arises when a marine mortgagee effects arrest, nor has it any impact on the duties that can arise only if and when a mortgagee exercises a power of sale. It was suggested that there was arguably a duty to force a sale where offers had been r

  uk_ewhc_commset_aside_application
• GLAS SAS (London Branch) v European Topsoho SarL & Ors [2024] EWHC 83 (Comm) (26 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10:00am on 26/01/2024 by circulation to the parties' representatives by e-mail and by release to the National Archives. ............................. Mr Justice Bright: On 17 November 2023, there was a hearing in this matter to deal with the application of the Claimant ("GLAS") for summary judgment against the Defendants. GLAS's application notice had been issued on 29 August 2023, and the hearing date had been fixed on 6 September 2023, with an estimate of 2.5 hours. It was not possible to deal with the Claimant's application, because: (1) On 13 November 2023, the Third Defendant ("Ms Qiu") issued an application seeking an extension of time to file and serve a Defence. Ms Qiu had not previously taken any part in the action, save that she had filed an acknowledgment of service on 3 January 2022. (2) On 16 November 2023, the Second Defendant ("Dynamic") issued an application seeking an extension of time to file and serve an acknowledgment of service indicating that it intended to challenge the jurisdiction of the Court. Dynamic had not previously taken any part in the action whatsoever. I made directions intended to enable all the outstanding applications to be dealt with on an expedited basis, on 18 January 2024, with an estimate of 1 day. This judgment follows the hearing which duly took place on 18 January 2024, when I heard oral submissions on the various applications from Ms Sue Prevezer KC and Mr Alex Barden on behalf of the Claimant, from Ms Leonora Sagan on behalf of the First Defendant ("ETS"), from Mr Niall McCulloch on behalf of Dynamic and from Mr Hugo Page KC on behalf of Ms Qiu. I am very grateful to all of them for their assistance. The parties, and other relevant entities/individuals GLAS is a corporate trustee, providing trustee and loan administration services. It is incorporated in France, but also has an office in London, which is the emanation involved in this case and in the underlying business. ETS is a company incorporated in Luxembourg. It is indirectly owned by Shandong Ruyi Technology Group Co. Ltd. ("Shandong Ruyi"), which is incorporated in the PRC and owns interests in a number of group companies, mainly in the textile/clothing industry. ETS was incorporated for the purpose of holding a majority stake in SMCP S.A. ("SMCP"), a company incorporated in France that carries on business in the fashion industry. By 2018, it held a 53% stake in SMCP. On 28 February 2023, ETS was declared bankrupt in insolvency proceedings in Luxembourg, and a Curator was appointed, Ms Val�rie Kop�ra. Prior to February 2023, the person running ETS (in effect its CEO) appears to have been Ms Qiu. She signed the statements of truth that supported ETS's statements of case, as "Manager". In more formal terms and under ETS's constitution, its "A" managers included Mr Kelvin Ho (until 9 September 2021) and, until the appointment of the Curator, Ms Qiu and Mr Tan Huang. Its "B" managers included Mr Hans de Zwart and Mr Joost Mees (from incorporation until September/October 2021) and Mr Giovanni Incardona (until October 2021). Ms Qiu is the daughter of Mr Yafu Qiu, who has at all material times been the Chair of Shandong Ruyi. She is resident in Jining, in Shandong Province in the PRC. This is where Shandong Ruyi has its headquarters. I do not know what, if any, role she has in other companies with the Shandong Ruyi group, in addition to ETS. Wuhu Ruyi Xinbo Investment Partnership (Limited Partnership) ("Xinbo") is a PRC limited partnership in which the principal interests are of Shandong Ruyi and China Cinda Asset Management Co., Ltd ("Cinda"), a Chinese financial institution. Cinda is a major creditor of Shandong Ruyi and/or of companies within the group. Xinbo appears to have its headquarters in Wuhu, in the PRC. Dynamic is a company incorporated in the BVI. (1) It was founded by Ms Qiu in April 2017. Until 30 July 2021, it was owned by Ms Qiu, who was also its sole director. (2) On that date, its ownership was transferred to a Precious Pearl Candy Holding Ltd ("Precious Pearl"), another BVI company which was itself owned by Ms Qiu and which owned Dynamic subject to a trust for Ms Qiu's children, administered by Intertrust (Singapore) Ltd ("Intertrust"). On the same date, Ms Qiu was replaced as director by Grandall International Holding Ltd ("Grandall"), a BVI company which acted via two professional service providers in Singapore who appear to be associated with Intertrust, Ms Kanchana Boopalan and Mr Yongtao Song. (3) In about March 2022, the trust arrangement ended. On 16 March 2022, a further BVI company owned by Ms Qiu, Dynamic Day Enterprises Ltd ("Dynamic Day") was appointed as director of Precious Pearl. On 12 April 2022, Dynamic Day was appointed as sole director of Dynamic, replacing Grandall. (4) On 5 May 2023, Precious Pearl transferred its shareholding in Dynamic to a subsidiary of Xinbo. Xinbo appears to have had ultimate control over Dynamic since that date, with the result that Dynamic's evidence in support of its application was provided by Ms Zhang Yu, the Deputy General Manager of Xinbo. The sole director remains Ms Qiu's company, Dynamic Day. Ms Zhang's evidence suggests that, until 5 May 2023, Dynamic was, in practice, effectively managed by Ms Qiu. Ms Qiu does not accept this, but it is not clear who the person in charge of Dynamic was, prior to 5 May 2023, if not Ms Qiu. It seems unlikely that Grandall (i.e., Ms Boopalan and Mr Song) had significant practical involvement in any decisions. The Trust Deed and the Bonds On 21 September 2018 and pursuant to documentation including a Trust Deed of that date, ETS issued �250,000,000 of Secured Exchange Bonds ("the Bonds") bearing a coupon of 4% per annum, due September 2021. They were secured by the pledge of some of the ETS's shares in SMCP. The original Trustee under the Trust Deed was BNP Paribas Trust Corporation UK Limited ("BNP Trust"). GLAS took over the relevant trust duties on 24 December 2020. A dispute arose between GLAS and ETS in 2021, which was compromised on 17 June 2021. In the context of the settlement of that dispute, Ms Qiu (as "A" manager of ETS) and Mr Joost Mees (as "B" manager of ETS) certified that, other than GLAS's pledge over the Pledged Shares, there was no security over any shares held by ETS in SMCP ("the Managers' Certificate"). ETS failed to pay any sum to GLAS when the Bonds matured on 21 September 2021. On 22 September 2021 GLAS issued a Notification of Breach. On 4 October 2021 it issued a Default Notice, which ETS failed to pay. On 5 October 2021, GLAS sent a demand for payment of a Deferred Fee, payable by ETS. The Pledged Shares in SMCP Security under the Trust Deed was provided by a requirement for ETS to pledge some of its shares in SMCP, to be held in an identified security account with BNP Paribas Securities Services (London Branch) ("BNPPSS London"). On 21 September 2021, 28,028,163 shares were pledged ("the Pledged Shares"). The Pledged Shares are still held by or for GLAS. The Unpledged Shares The value of the Pledged Shares was below the total sum due under the Bonds. ETS's only substantial asset was its shareholding in SMCP. This hearing has mainly concentrated not on the Pledged Shares, but on the balance of 12,106,939 shares ("the Unpledged Shares"). Until October 2021, they were held by ETS in an account with BNP Paribas Securities Services Paris ("BNPPSS Paris"), in France. The Disposal of the Unpledged Shares The following transactions are referred to in the statements of case and evidence as "the Disposal": (1) On 27 October 2021, ETS transferred the Unpledged Shares from its own account with BNPPSS Paris to that of Dynamic. Dynamic's account with BNPPSS Paris had been opened on 18 October 2021 and the account number was communicated to Dynamic on 21 October 2021. Ms Qiu's evidence is that Dynamic's account was opened specifically for it to receive the Unpledged Shares, as transferee from ETS. (2) On 3 November 2021, Dynamic instructed BNPPSS Paris to transfer the Unpledged Shares into bearer form (from pure registered form) and to transfer the bearer shares to an account held by Dynamic with JP Morgan Chase Bank N.A. Singapore ("JPM Singapore"), where they are still held. On 4 November 2021, SMCP issued a press release announcing that ETS had disposed of the Unpledged Shares but gave no details. On 5 November 2021, GLAS obtained an order from the Paris Commercial Court against BNPPSS Paris, requiring it to provide information in relation to the transfer of the Unpledged Shares. On 12 November 2021, BNPPSS Paris disclosed to GLAS that the Unpledged Shares were now held by JPM Singapore. Pursuant to the order of the Paris Commercial Court dated 16 November 2021, BNPPSS Paris disclosed a copy of what appears to be a Share Sale Agreement dated 22 October 2021, by which ETS appears to have agreed to sell the Unpledged Shares to Dynamic for �1 (the "SSA"). BNPPSS Paris's understanding from ETS was this was the instrument by which the Disposal took place. That was for some time ETS's case. It is still the case of Dynamic and of Ms Qiu. The course of these proceedings, up to October 2022 GLAS commenced these proceedings on 15 November 2021. From the outset, GLAS's claims included claims against ETS in debt, but there were also claims against all three defendants in unlawful means conspiracy, as well as claims against ETS and Dynamo under s. 423 Insolvency Act 1986 ("the s. 423 claim"). The pleaded case has from the outset included the following elements: (1) As regards the s. 423 claim, GLAS says that the Disposal was at an undervalue and its purpose was to put the Unpledged Shares beyond the reach of GLAS. (2) As regards the unlawful means conspiracy claim, GLAS says that the Defendants acted in combination to defeat or prejudice GLAS's entitlement to recover the sums due to it, by the Disposal. On 17 November 2021, HHJ Pelling KC gave permission for service out of the jurisdiction on Dynamic. He also made worldwide freezing orders against ETS and Dynamic. Permission to serve out of the jurisdiction was not required as against ETS, because the Trust Deed was subject to English law and jurisdiction, but HHJ Pelling KC made an order for substituted service (which has not been challenged). As against Ms Qiu, permission to serve out of the jurisdiction was not required because she could be and was served in England. ETS acknowledged service within time and has participated fully in the proceedings. Dynamic did not acknowledge service and did not comply with the freezing order. It has taken no part in the proceedings until very recently. Ms Qiu filed an acknowledgment of service on 3 January 2022 (a few days out of time) but thereafter took no part in the proceedings until very recently, in her role as Third Defendant. However, in her role as Manager of ETS, she participated by making witness statements and signing statements of truth on behalf of ETS. Initially, ETS denied that GLAS had been validly appointed under the Trust Deed (even notwithstanding that this had been agreed by the compromise of 17 June 2021), and so denied the validity of the notices and demands served by GLAS and further denied GLAS's claim in debt and GLAS's rights in and entitlement to the Pledged Shares. It also denied GLAS's other claims, notably the s. 423 claim and the unlawful means conspiracy claim. The defence to those claims was, throughout, to the effect that the Disposal was a genuine, arm's length transaction, conducted for proper reasons rather than merely to put the Unpledged Shares beyond the reach of GLAS or to defeat or prejudice GLAS's entitlement to recover the sums due to it. However, the detailed explanation given for the Disposal evolved over time, with additional materials being produced and relied on by ETS, and considered and responded to by GLAS. On 27

  uk_ewhc_commset_aside_applicationaward_enforcementarbitration_supervision
• GovData Ltd v Indeed UK Operations Ltd [2024] EWHC 39 (Comm) (12 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] England and Wales High Court (Commercial Court) Decisions You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> GovData Ltd v Indeed UK Operations Ltd [2024] EWHC 39 (Comm) (12 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/39.html Cite as: [2024] EWHC 39 (Comm) [New search] [Printable PDF version] [Help] Neutral Citation Number: [2024] EWHC 39 (Comm) Claim No: CC-2023-MAN-000069 IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN MANCHESTERCIRCUIT COMMERCIAL COURT (KBD) 12 January 2024 B e f o r e : His Honour Judge Pearce sitting as a Judge of the High Court ____________________ GOVDATA LIMITED Claimant - and - INDEED UK OPERATIONS LIMITED Defendant ____________________ Mr IAN SKEATE instructed by way of direct access for the Claimant MS CLAIRE OVERMAN instructed by Lewis Silkin LLP for the Defendant Hearing date: 1 November 2023 Judgment handed down: 12 January 2024 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © INTRODUCTION The Claimant is a company that (according to its website) is a market leader in Public Sector business and provides specialist advice to assist companies that are looking to gain access to government business. The Defendant operates an employment website, that lists jobs and also provides a facility for the anonymous posting of information about employers. From the material in the hearing bundle, it would appear that those posts are typically from ex-employees speaking of their experience of working for the particular company - certainly the four reviews identified by the Claimant in this case are said to come from its former employees. The Claimant contends that certain anonymous reviewers have posted reviews that are critical of the Claimant and its management on the Defendant's website. It alleges that those reviewers are (or at least may be) guilty of wrongdoing vis-a-vis the Claimant (or certain employees of the Claimant). It brings this claim in an attempt to identify putative wrongdoers on the basis that it has no other way of identifying them. The order sought is broadly speaking of a kind that has been developed by the court in a line of cases, generally known as Norwich Pharmacal orders. In accordance with other courts that have dealt with applications similar to this, I shall call the anonymous reviewers the "targets." This is in the sense that their identity is the target of this application. At the beginning of this hearing, I ruled that, notwithstanding the parties' names had been anonymised in the court list, there was no good basis for anonymising them in the judgment. I gave my reasons for that ruling at the time. Accordingly, the parties may be identified by name. THE CLAIM AS PLEADED This claim is brought pursuant to CPR Part 8. The Claim Form, issued on 8 September 2023, pleads the Claimant's case as follows: "The Defendant, via its operation on the website www.indeed.com has facilitated the wrongdoing of others in that forum on dates between 01/01/2018 to 28/02/2023. The wrongdoing comprised of statements about the Claimant published on the website by the forum users whose identities are currently unknown to the Claimant. The statements contain seriously defamatory allegations about the Claimant. The Claimant is entitled to seek redress in relation to the statements which contain seriously defamatory allegations. The Claimant wishes to inspect the information requested so as to be able to take legal action or seek other redress. The Defendant is able to provide the information from which the individuals identities can be ascertained. The Claimant is not able to identify the persons responsible for the postings unless the Defendant provides the requested information ." The order sought by the Claimant is put in these terms in its Draft Order: "The Respondent must by 4.00pm on 18th August 2023 carry out a reasonable search to locate the information sought below and make and serve on the Applicant a witness statement stating whether that Information is now in its control, and to the extent that such information was once but is no longer in its control and what has happened to that information. 1.1 We require all personal identifiers of the publishers of the posts on Indeed of the reviews detailed at pages 2 to 5 of the bundle containing the comments we wish to take further legal action on. These include but are not exclusive to the registrants name, age, location, IP address, telephone and mobile numbers and email addresses. We additionally require information on whether they have logged into or created an identity via a 3rd party identity verification such as Facebook or google in order to create an account. (the Information). 2 The Applicant has permission to use the information provided pursuant to this Order for the purposes of bringing proceedings for Defamation, libel and any other such actions we are so advised to pursue in respect of untrue and malicious information posted against the company and its employees/shareholders/directors." The Claimant relies in support of the application on statements from its Chief Executive Officer, Mr Christian Victor Hugo, dated 21 March 2023 and 26 October 2023 and from its Chief Operating Officer, Ms Kelly Ann Hugo, dated 5 May 2023 and 26 October 2023. The Defendant relies on statements from Mr Thomas Dowling of Indeed Ireland Operations Ltd dated 25 October 2023 and Ms Anne Mannion of its solicitors of the same date. AMENDMENT By Application Notice dated 23 October 2023, the Claimant applied to add Mr Christian Victor Hugo and Ms Kelly Ann Hugo as Claimants. Mr Hugo is identified in some of the reviews by job title, though Ms Hugo is not. Nevertheless it might be arguable that they are people to whom the reviews are referring and therefore might be relevant Claimants. If, as the Claimant contends, this claim is good without the addition of Mr Hugo and Ms Hugo, their addition as Claimants would not be necessary because GovData itself would be able to achieve the remedy it seeks. If, as the Defendant contends, the claim is doomed to failure for reasons unrelated to the fact that Mr and Ms Hugo are not parties, their addition to the claim would add nothing. It is only if the underlying claim is otherwise good but fails for want of joinder of one or both of Mr and Ms Hugo that their addition to the claim would be necessary to achieve the Claimant's purposes. Accordingly, I propose to consider the claim to determine whether this is so before determining the amendment application. There is a second manner in which the Claimant seeks to change the way it puts this application, albeit that in this respect there is no formal application before the court. The Claim Form does not identify which reviews the Claimant says should be the subject of the order sought. The Draft Order provided on the application seeks the disclosure of "all personal identifiers of the publishers of the posts on Indeed of the reviews detailed at pages 2 to 5 of the bundle containing the comments we wish to take further legal action on." This is a reference to the four reviews which appear at pages 17 to 21 of the Hearing Bundle (Reviews 1, 2, 3 and 4 respectively). Those Reviews are dealt with individually below. However, in his oral submissions, Mr Skeate for the Claimant invited the court to make a broader order, identifying other anonymous reviewers who had used the Defendant's website. The existence of other reviews that have been removed from the website is referred to in paragraph 9 of Mr Hugo's witness statement of 21 March 2023, and indeed in that statement he refers to obtaining relief in respect of other reviews. I deal further below with the lack of detail of other reviews in respect of which the Claimant seeks an order. There is of course nothing to prevent a party seeking an order on different terms than the draft that it produces in its application, but the failure to produce a draft order encompassing the other reviews creates considerable difficulty in making such an order. There can be no doubt that a Norwich Pharmacal Order in respect of anonymous reviews which could no longer be shown to the court would require careful drafting to ensure that the Defendant was clear as to what it was obliged to disclose. THE LAW � NORWICH PHARMACAL ORDERS The requirements for Norwich Pharmacal orders are not in issue. They are summarised in Mitsui & Co Ltd v Nexen Petroleum Ltd [2005] EWHC 625 (Ch) at [21]: "(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; (ii) there must be a need for an order to enable action to be brought against the ultimate wrongdoer; (iii) the person against whom the order is sought must be (a) mixed up in so as to have facilitated the wording; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued." If these requirements are met, the Court has a discretion whether to make the order sought. The court should only make an order if it is necessary and proportionate in all the circumstances (see Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29). In Rugby Football Union v Viagogo Ltd [2012] UKSC 55, the Supreme Court identified ten non-exhaustive factors to which the court should have regard in determining the grant of relief: a. the strength of the possible cause of action contemplated by the applicant for the order; b. the strong public interest in allowing an applicant to vindicate their legal rights; c. whether the making of the order will deter similar wrongdoing in the future; d. whether the information could be obtained from another source; e. whether the respondent to the application knew or ought to have known that they were facilitating arguable wrongdoing; f. whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result; g. the degree of confidentiality of the information sought; h. the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed; i. the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed; j. the public interest in maintaining the confidentiality of journalistic sources. The decision in Viagogo involved consideration of the privacy of potential wrongdoers who were allegedly selling rugby tickets at more than their face value. Whilst it clearly involved issues of privacy, it did not, unlike the instant case, involve any issue of freedom of expression. The particular factors in play in cases that do involve arguments about freedom of expression were considered by Nicklin J in Davidoff v Google [2023] EWHC 1958. Like this case, the claimants in Davidoff were seeking to identify targets who had posted anonymous reviews (in that case, reviews of a firm of estate agents). Again as in this case, the claimants stated an intention to commence proceedings in defamation and/or malicious falsehood (though as we shall note later, certain other causes of action may be in play here). Having noted that the order sought raised issues under both Article 8 (respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights, Nicklin J stated at [30]: "Article 10 protects both speech by an identified individual and anonymous speech. Whilst anonymity on the Internet can be used as a cloak behind which to harm others by unlawful acts, not all anonymous speech is of this character. Such speech, particularly in a political context, as a dimension of freedom of expression, can have a real value and importance. It also has a long pedigree both in the United Kingdom and the United States... " Nickl

  uk_ewhc_comm
• Lowry Trading Ltd v Musicalize Ltd & Ors [2024] EWHC 142 (Comm) (29 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10.00am on 29 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. HIS HONOUR JUDGE PEARCE SITTING AS A JUDGE OF THE HIGH COURT His Honour Judge Pearce: INTRODUCTION By this application, the Claimants seek summary judgment as follows: a. The First Claimant, for the sum of �500,000 plus interest as against the First to Third and Fifth Defendants in respect of the First Claimant's claim in deceit as set out in paragraphs 72 to 75 of the Particulars of Claim and paragraph (a) of the Prayer, insofar as it relates to the Third Lowry Payment, as defined in paragraph 33 of the Particulars of Claim. b. The Second Claimant for the sum of �5,151,259, alternatively �2,864,064, as against the Second to Fifth Defendants in respect of the Second Claimant's claim in deceit as pleaded in the Particulars of Claim, insofar as it relates to sums advanced from October 2019, alternatively 6 July 2021. They rely on statements from Mr Robert Nugent, director of the First Claimant, dated 24 August 2023, and Mr Stephen McConnell, director of the Second Claimant, dated 25 August 2023. The Defendants each oppose the application. They seek to rely on statements from the Second and Third Defendants, each dated 10 November 2023. The application was heard before me on 20 November 2023, following which I reserved judgment. At the beginning of the hearing on that day I granted permission to the Defendants to rely on the evidence contained in statements of the Second and Third Defendants, notwithstanding their non-compliance with orders for the service of evidence made by HHJ Pelling KC on 10 August 2023 and 30 October 2023. I gave reasons for that decision orally at the time. BACKGROUND The Claimants are companies that operate investment business. The Second and Third Defendants purport to be music promoters. (Whether they are genuinely so is a matter of hot dispute in this case.) They are the sole directors of the First Defendant, purportedly a concert and events promotions company, and have been directors of a number of other companies said to operate in the same sphere, including the Fourth and Fifth Defendants and a company now dissolved called Musicalize Entertainment Limited. Following the style of the Claimants' skeleton argument, I shall refer to the various Defendants as follows: a. The First Defendant, Musicalize Limited - Musicalize b. The Second Defendant, Benjamin Delano Anderson � Mr Anderson c. The Third Defendant, Sophie Kate Anderson � Mrs Anderson d. The Fourth Defendant, Musicalize Touring Limited - MTL e. The Fifth Defendant, Musicalize Touring Events Limited - MTEL f. Musicalize Entertainment Limited � MEL Where reference is made in this judgment to "the Defendants," this includes MEL as well as all five named Defendants. It is the Claimants' case that Mr and Mrs Anderson have, through the vehicle of various limited companies, falsely portrayed themselves as concert promoters to potential investors, including the Claimants. The Claimants say that all of the monies that they have advanced to the Defendants by way of loan (�1,591,200 in the case of the First Claimant and �6,699,659 in the case of the Second Defendant) together with additional contractual liabilities in the case of the First Claimant and interest in respect of both Claimants is recoverable on various bases including deceit; unlawful means conspiracy; a contractual liability to repay the loans; inducement of breach of contract; a Quistclose type trust of the monies; and/or pursuant to guarantees of the loans. For the purpose of this application, the Claimants limit themselves to the monies that they say can be shown to have been paid in respect of claims where the Defendants are unable to show any real prospect of successfully defending the claim: in the First Claimant's case, that is the sum of �500,000 said to have been paid as a result of what are called the "First 2021 Lowry Representations". In the Second Claimant's case, this is the sum of �5,151,259, said to have been paid as a result of what are called the "Snoop Dogg Projection Representations" and the "Snoop Dogg Sales Representations". In the case of each Claimant, the difference between the gross amount of the claim referred to in the previous paragraph and the amount in which summary judgment is sought, is that the Claimant seeks summary judgment only on the payments made after the representations referred to in this paragraph. Of course, a payment made before any particular representation was made could not have been induced by that representation. On the other hand, it is each Claimants' case that all payments made after the representations referred to in this paragraph were induced by those representations, even if the payments related to a different putative event than that to which the representation related. THE NATURE OF THE DEFENDANTS' BUSINESS The Defence makes several important points about the Defendants' business generally and the particular issues in play at the time of their dealings with the Claimants. As to their business model generally, paragraph 18 of the Defence pleads: "(8) In line with industry practice, Musicalize events are organised as follows: (a) The Andersons identify an artist that is of interest (based on their fanbase, reputation, whether they have been in the relevant jurisdiction recently, whether they released new music recently, have an anniversary for a previous project coming up etc). Alternatively, half of the time, artist agents or managers will approach the Andersons to inform them that they are in the market for a tour/live show and ask if they would like to discuss this further or make an offer. (b) The Andersons will do some background checks on previous shows, venues, and sales. If possible, they will look at the online following of the artist and will request details of their production and hospitality riders. Then they will put together a predicted profit and loss sheet based on costing up the information on their rider (if that is available) and adding a reasonable estimate of other costs, such as staffing, security, any production elements not quoted by the production team and marketing. The profit and loss sheet will indicate the amounts that could be offered to the artist for Musicalize to generate profit. (c) If a project needs external funding, the Andersons will approach their contacts/investors and, after signing non-disclosure agreements, share the information about the events and schedule a meeting/conversation. If an investor were interested in working together, then a loan/investor agreement would be put together confirming the terms. (d) The Andersons would request deposits from investors before making any formal offers to artists to save jeopardising the relationships with the artists and agents if an investor pulled out. (e) If the artist is happy with the offer, they will negotiate a contract, with redlined versions going back and forth until agreement is reached. Payment terms would be agreed, usually with 50% payable to the artist on a signing. After signing the agreement with the artist, the Andersons would confirm the venue and complete the venue paperwork. (f) The ticket prices are calculated by working alongside ticket companies such as Ticketmaster to look at previous price data and also using dynamic pricing based on the venue layouts. (g) Artwork will then be created to start the marketing rollout plan, including adding support acts to be announced. The artist will agree on a social media/online rollout plan in line with our marketing so that the maximum impact can be made on announcement. On the announcement day, the artist, venue, corresponding ticket companies, and Musicalize will announce at a scheduled time across all platforms and mailing lists. (h) While a show/tour is on sale, the logistics are being planned in the background, including flights, hotels, ground transport, running order, soundcheck times, and schedules. The production manager will liaise with all parties to confirm all production needs. On show day, the Musicalize team will look after the artists and ensure a smooth running of the event alongside the production and venue teams. (i) If/where the previously discussed artist is not available, or terms cannot be agreed, or they decide not to do a tour, all of which commonly happen in the industry, the Andersons would review what other opportunities have been presented to them by the relevant agent (who would usually offer alternatives) and/or look to identify similar artists/returns and use the investment monies accordingly. This is an accepted and established business practice with the investors in the industry. (9) The above is the basis on which the Lowry and SAS contracts were negotiated and agreed and were going to be performed. Both Lowry and SAS had been explained the process by the Andersons and had, expressly or impliedly, agreed with it." The Defendants' case, that this reflected their usual practice, is qualified in the case of their dealings with both Claimants by a combination of restrictions consequent upon COVID-19 and family events, including the premature birth by Mrs Anderson of twins in April 2019 who tragically died and complications in a later pregnancy, which caused specific difficulties in progressing the organising of events and led to considerable delays in projects coming to fruition. The Claimants do not accept that this is a genuine business at all (and therefore they do not accept this description of the business model), but, for the purpose of this application, they do not seek to persuade me that the Defendants have no real prospect of success in showing that there was a genuine underlying business; that simply seek to persuade me that the specific representations relied on were fraudulent. I accept for the purpose of the Claimants' applications that the Defendants have a real prospect of success in showing that the underlying business is genuine and that their usual practice was to follow the model described in paragraph 18 of the Defence. THE DEALINGS BETWEEN THE FIRST CLAIMANT AND THE DEFENDANTS IN SUMMARY It is common ground that, in late 2018 or mid 2019 (the date being in dispute between the parties but not relevant to the issues on this application), Mr and Mrs Anderson had contact with representatives of the First Claimant. This contact led to more detailed discussions about the First Claimant investing in a proposed concert tour by a well known American rapper, Andre Romell Young, better known as Dr Dre. As a result of the First Claimant's interest in this proposal, Mr Anderson sent to the First Claimant profit and loss forecasts for proposed concerts involving Dr Dre in January and February 2020 at the O2 Arena in London, the Manchester Arena, the Birmingham Arena and the SSE Hydro Glasgow. On 30 October 2019, the First Claimant and MEL entered into a facility agreement for the provision of a loan for the purpose of funding Dr Dre concerts and on 31 October 2019, the First Claimant paid over �766,200 by way of loan pursuant to that agreement. The First Claimant contends in the Particulars of Claim that representations made by the Defendants prior to it entering into this agreement and advancing this loan were false and that it was induced into entering the agreement and making the advance by such misrepresentations. It does not pursue that allegation in the instant application. In early 2020, Mr and Mrs Anderson stated that the Dr Dre concerts would have to be rescheduled because of the spread of COVID-19. There was some discussion of another American musician, Marshall Bruce Mathers (better known as Eminem), appearing as a special guest at the re-arranged events. On 6 February 2020, the First Claimant advanced a further

  uk_ewhc_comm
• Macquarie Bank Ltd v Banque Cantonale Vaudoise [2024] EWHC 114 (Comm) (26 January 2024)

  UK — EWHC Commercial Court (BAILII) · England & Wales · 2024

  HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10.30am on 26 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. The Honourable Mr Justice Foxton: This is the Defendant's ("BCV's") application challenging the jurisdiction of the court in respect of proceedings commenced by the Claimant ("MBL") asking the court to make declarations as to MBL's entitlement to enforce two Standby Letters of Credit ("the SBLCs") issued by BCV. The English proceedings were commenced on 1 August 2022, in circumstances in which MBL had previously commenced proceedings against BCV in Switzerland for the same relief on 24 November 2020 ("the Swiss Civil Proceedings"). The Swiss Civil Proceedings were stayed on BCV's application on 3 September 2021 pending an ongoing criminal investigation in Switzerland relating to the transaction, and they remain stayed. By the time of this hearing, the only live issue between the parties was whether MBL could satisfy the court that England and Wales is clearly the most appropriate forum for the determination of the dispute. I informed the parties at the end of the argument that I was so satisfied and dismissed BCV's jurisdiction challenge. This judgment sets out my reasons for doing so. The background 4. MBL is an international bank, incorporated and existing under the laws of Australia. BCV is a bank, incorporated and existing under the laws of Switzerland, with its registered office in Switzerland. By an "Advance Payment and Supply Agreement" dated 22 November 2019 (with reference number MP19-25-500-IDME-018) ("the November Agreement"), MBL agreed to purchase, and a UAE company called Phoenix Global DMCC ("Phoenix") agreed to sell, 75,000mt (+/-10%) of coal. By clause 2 of the November Agreement, MBL was obliged to make payment in advance, in the amount of US$4,537,500. That payment was made to Phoenix on 22 November 2019 ("the November Payment"), to be secured by an SBLC. MBL entered into two further "Advance Payment and Supply Agreements" with Phoenix (again, as supplier), dated 15 January 2020 and 28 January 2020 (together "the 2020Agreements"), in relation to the purchase by MBL of 70,000mt (+/-10%) of coal ("theCargo"). The 2020 Agreements also provided for payment to be made by MBL in advance, to be secured by SBLCs. 9. BCV issued two SBLCs on 9 and 23 January 2020: i) SBLC No. IX01117010308925 dated 15 January 2020 in the amount of US$4,340,000. ii) SBLC No. IX01117010309522 dated 28 January 2020 in the amount of US$4,410,000. The SBLCs were stated to be subject to the "VERSION OF THE ICC UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS IN EFFECT ON THE DATE OF ISSUE �" (which was UCP 600). The SBLCs were "SUBJECT TO � THE LAWS OF ENGLAND". MBL contends that Phoenix failed to deliver the Cargo and was therefore in default under the November Agreement, and that this constituted an event of default of "any other agreement between the Parties" within the meaning of Clause 1.1 of the 2020 Agreements. On 17 March 2020, MBL issued default notices to Phoenix and called for repayment of the Advance Payments in full within 5 business days. No payments were made, and Phoenix has since gone into liquidation. On 26 March 2020, MBL demanded payment under the SBLCs in the amounts of US$4,340,000 and US$4,410,000. Under Article 14(b) of UCP 600, BCV was entitled to 5 business days to consider whether, on their face, the payment requests constituted compliant presentations, and under Article 16(d) of UCP 600, if rejecting the requests, BCV was required to give notice to MBL no later than the fifth banking day following the day of presentation. BCV sent two SWIFT messages, dated 2 and 3 April 2020, requesting additional information relating to the shipment of goods under the underlying sale contract between MBL and Phoenix which MBL provided by SWIFT message of 8 April 2020. BCV did not identify any discrepancies in the payment requests, whether within 5 business days or at all, nor did BCV give notice that it was refusing to honour the SBLCs. On 23 April 2020, MBL started the process for its claim for relief in the Swiss Civil Proceedings. On 24 November 2020, after obtaining authorisation to proceed, MBL formally filed a claim against BCV in the Chambre Patrimoniale Cantonale, in Lausanne, Switzerland ("the CPC"). On 11 December 2020, BCV filed a criminal complaint with the Minist�re Public Central (the Central Public Prosecutor's Office) in the Canton of Vaud against "an unknown person" for fraud and forgery, alleging that Phoenix presented documents to obtain the SBLCs which suggested that Phoenix was buying the Cargo from MBL, rather than the other way around. BCV alleges that these contracts were fictitious / falsified and that, if Phoenix had made it clear that it was actually selling the Cargo to MBL, BCV would not have provided the SBLCs in the form which was used. I shall refer to the resultant criminal investigation as the Swiss Criminal Proceedings. MBL denies any involvement in any dishonest actions, and BCV currently advances no allegation that MBL was involved. Nor has MBL been named in any criminal proceedings. On 12 March 2021, BCV sought a stay of the Swiss Civil Proceedings, pending the outcome of the Swiss Criminal Proceedings. On 3 September 2021, the CPC granted BCV's application for a stay. MBL appealed against the stay to the Chambre des Recours Civile du Tribunal Cantonal Vaudois ("the Vaud Court of Appeal"), requesting that the stay be lifted. On 9 December 2021, the Vaud Court of Appeal declined to lift the stay, which was to remain in place "until the criminal proceedings PE20.022757FDA currently pending before the Central Public Prosecutor's Office of the Canton of Vaud are remitted or abandoned". On 11 February 2022, C appealed to the Tribunal F�d�ral ("the Swiss Supreme Court"). On 25 March 2022, the Swiss Supreme Court dismissed MBL's appeal. While expert evidence from Sir William Blair as to the applicable principles of English law relating to payment under letters of credit was placed before the Swiss Courts, it does not feature in the explanations given for the decisions reached by the Swiss Courts, which are reasoned exclusively by reference to Swiss law. By letter of 9 May 2023, the CPC requested that the parties provide an update as to the Swiss Criminal Proceedings. On 25 May 2023, Mr Fabien Hohenauer of HDC law, on behalf of MBL wrote to M Guex, on behalf of BCV, inviting BCV to participate in a joint request to the CPC to lift the stay of proceedings. On 30 May 2023, Mr Guex wrote separately to the CPC making clear that BCV would oppose any request to lift the stay of the Swiss Civil Proceedings. By letter of the same date, Mr Guex separately responded to Mr Hohenauer referring to his letter to the CPC and refusing the latter's request jointly to request the lifting of the stay. On 6 June 2023, Mr Hohenauer wrote to the CPC unilaterally requesting the lifting of the stay. The CPC responded by letter dated 7 June 2023 refusing that request. Two letters rogatory have been sent as part of the criminal proceedings for the purpose of securing evidence (one to the prosecutor in Australia on 22 April 2022, and one to the United Arab Emirates on 27 May 2022). On the evidence before the Court, no responses have yet been received. The time estimate originally put forward by M Guex for a likely response to those requests has, on any view, been exceeded, and any estimate as to when a response will come is necessarily highly speculative. These proceedings were issued on 11 August 2022, and MBL was given permission to serve BCV out of the jurisdiction on 18 August 2022. The parities placed Swiss law evidence before the court as to how long the stay of the Swiss Civil and Criminal Proceedings could reasonably be expected to continue. The experts agree that the stay of the Swiss Civil Proceedings that has been granted is of "indeterminate duration" which would fall to be lifted once a decision has been made by the Public Prosecutor that the Swiss Criminal Proceedings have been "remitted or abandoned". BCV's expert, M Guex, suggests that the CPC might resume the Swiss Civil Proceedings after the requests for international assistance have been answered, or if there is no response. MBL's expert, M Michod, disagrees and points out that the Vaud Court of Appeal has held that the stay will be lifted only on a decision to refer or close the Swiss Criminal Proceedings. The experts agree that it is "currently difficult to estimate the length of the criminal proceeding, and therefore the length of the civil proceeding between MBL and BCV". Even if and when answers to these requests are obtained, the progress of the Swiss Criminal Proceedings remains unclear. As M Michod points out, if the Public Prosecutor proceeded with an indictment or classification against persons other than MBL, without reaching any decision about MBL, the stay of the Swiss Civil Proceedings would continue. M Michod anticipates that the resolution of the Swiss Civil Proceedings could take several years. On the evidence before me, I am satisfied that there is a very real risk of the Swiss Civil Proceedings remaining stymied for a period of several years, although I accept more favourable outcomes (measured in many months) are also possible. The consequences of the parties' choice of English law as the governing law of the SBLCs The legal effects of a letter of credit governed by English law are clear. As noted in Edward Owen Engineering Ltd v Barclays Bank International Ltd [1979] QB 159, 169: "It has been long established that when a letter of credit is issued and confirmed by a bank, the bank must pay it if the documents are in order and the terms of the credit are satisfied. Any dispute between buyer and seller must be settled between themselves. The bank must honour the credit. That was clearly stated in Hamzeh Malas & Sons v British Imex Industries Ltd [1958] 2 QB 127, Jenkins L.J. giving the judgment of this court, said, at p. 129: '� it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this court in the present case to interfere with the established practice.' To this general principle there is an exception in the case of what is called established or obvious fraud to the knowledge of the bank." Even where the courts of the bank's domicile have granted an injunction seeking to prevent a bank from paying out under a letter of credit, that will not provide it with a basis for refusing to do so. As Lord Denning MR noted in Power Curber International Ltd v National Bank of Kuwait Sak [1981] 1 WLR 1233, 1241-42: "If the court of any of the countries should interfere with the obligations of one of its banks (by ordering it not to pay under a letter of credit) it would strike at the very heart of that country's international trade. No foreign seller would supply goods to that country on letters of credit � because he could no longer be confident of being paid. No trader would accept a letter of credit issued by a bank of that country if it might be ordered by its courts not to pay. So it is part of the law of international trade that letters of credit should be honoured � and not nullified by an attachment order at the suit of the buyer. Added to this, it seems to me that the buyer himself by his conduct has precluded himself from asking for an attachment order. By opening the letter of credit in

  uk_ewhc_comm
• DSQ v DSR [2026] SGHC 67

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Singapore Law Watch topic: Arbitration — Award. Decision date: 31 Mar 2026. Full judgment text is in the linked PDF.

  sg_high_courtarbitration_supervision
• DTM v DTN [2026] SGHC 68

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Singapore Law Watch topic: Arbitration — Award. Decision date: 30 Mar 2026. Full judgment text is in the linked PDF.

  sg_high_courtarbitration_supervision
• Hyatt Terminal and Industrial Corp v Filipinas Third Millenium Realty Corp [2026] SGHC(I) 3

  Singapore — High Court (Singapore Law Watch) · Singapore · 2026

  Singapore Law Watch topic: Arbitration — Award. Decision date: 26 Mar 2026. Full judgment text is in the linked PDF.

  sg_high_courtarbitration_supervision