Readers will be familiar with the phenomenon of the Commercial Court sitting in London (a specialist division of the Queen’s Bench Division) and playing host to a good deal of litigation involving Russian oligarchs and others among the central and eastern European super-rich. But just how much may come as a surprise: an astonishing 60% of the court’s work is currently thought to involve Russian and other eastern European parties, even though these disputes and the parties involved often have no connection with England.
Moreover, there is no bilateral enforcement treaty between England and Russia which would allow the judgment of an English court to be enforced in Russia. This is good news for London’s litigation market and practitioners involved in big-ticket disputes. However, Russian authorities have started to flex their muscles and asserted that more of these disputes should be heard in Russia.
Russia’s Supreme Arbitrazh Court recently ruled a particular forum-selection clause in a contract subject to English law to be unlawful, according to a Russian law principle of equality of arms. This clause would allow one party to choose between arbitration, or commencement of a claim before a court of competent jurisdiction, while the other party could only resort to arbitration.
The reasoned decision is unavailable, but it is understood that the Arbitrazh court, in a dispute between a Russian subsidiary of Sony Ericsson and ZAO Russkaya Telefonnaya Kompaniia (RTK), concluded that the bringing of a claim by RTK in the local courts would place it on an equal footing. It is not yet known whether the outcome will give both parties the option of litigating before local courts and international arbitration, or whether the entire dispute resolution clause (in Russia) will be invalidated. Meanwhile, the case of Yukos v Rosneft was heard in the UK’s Court of Appeal.
The appellant, a state-owned Russian company, won an appeal against a decision determining preliminary issues in the claim of a Luxembourg company seeking to enforce four arbitration awards for the repayment of loans and interest, which had been set aside by the Arbitrazh court on Rosneft’s application, claiming that the loans formed part of an illegal tax evasion scheme. Yukos had already successfully enforced the arbitration awards in the Netherlands, arguing that the Arbitrazh court was corrupt. At first instance, the Commercial Court found that the Dutch decision created an issue estoppel. The appeal court concluded that there would have to be a trial here on the corruption issues.
Some commentators are describing a link between these latest developments in the Supreme Arbitrazh court and pronouncements this May by Russia’s Supreme Commercial Court chairman Anton Ivanov. At the St Petersburg International Legal Forum, Ivanov said: ‘Russia should guarantee its citizens and entities protection from the unfair competition of foreign judicial systems.’ His comments were endorsed by prime minister Dmitry Medvedev.
Could this be the beginning of the end of ex-Soviet oligarchs fighting their court battles in London? Could the Russian authorities stem the tide of litigation coming to London? What would be the impact on the London litigation market? First, let us recap on the reasons why so much oligarch litigation and other foreign cases are taking place in London.
Business magnates Mukhtar Ablyazov, Boris Berezovsky and Oleg Deripaska have all become familiar to us, as we read press reports of their comings and goings in London courts. Roman Abramovich, of course, also hogs the headlines. The sums involved are enormous and the facts often colourful, so it is little surprise these stories grab the headlines and our attention: Ablyazov stands accused of alleged misappropriation of some $5 billion during his time as chairman of Kazakhstan’s bank BTA which defaulted on £12bn of debt. He allegedly used a complex web of companies to syphon off money.
This February, he was sentenced to 22 months in a UK jail for breaching a freezing order on his assets and lying under oath. But he did not attend the committal hearing and is understood to have fled the UK and gone into hiding. Despite this he has been allowed to appeal the sentence. An attempt to make his lawyers reveal his contact details was not permitted as it was considered to breach his right to privileged legal advice. In July, the Commercial Court decided that his exercise of rights under loan agreements to have lenders pay monies to his solicitors was not disposing of assets within the meaning of the freezing order made against him.
Assange-style, Ablyazov maintains that the actions against him (there are nine in total) are politically motivated, which is why he is doing what he can to evade the authorities. In his case, he alleges that Kazakhstan president Nursultan Nazarbayev is trying to eliminate him as a credible political opponent and further alleges that the charges against him are part of this conspiracy.
Last autumn, the Commercial Court sitting in the Rolls Building was used as a stage for the drama between Berezovsky and Chelsea FC owner Abramovich, involving a claim for $6.5bn. The case centres on Berezovsky’s claim that Abramovich encouraged him to sell his shares in Sibneft, the Russian oil firm, for a sum that fell far short of the market price. We now know that Abramovich won, although Berezovsky has publicly indicated an intention to appeal what appears to have been a largely fact-based judgment.
Quite what legal advice Berezovsky may receive as to the prospects of an appeal is another matter. The Commercial Court is now again providing a stage for another oligarch drama – this time the breach of contract dispute between Michael Cherney and Oleg Deripaska, one of the world’s richest men.
Undoubtedly, one of the main reasons the oligarch disputes are being heard here is the reputation of the English legal system on the international stage. The calibre and integrity of English courts are respected around the world, the consistency of legal decisions affording more legal certainty than can be expected in some other jurisdictions. Judges and legal practitioners are reputed to be, if not the best, then certainly among the best in the world. The structure and stability of the English legal system, its reputation for impartiality and justice, and its freedom from corruption, are second to none.
Parties who start with a disadvantage, who perhaps have far less in the way of financial resources, will find that the English legal system does much to rebalance the parties’ positions. Our system is comparatively transparent, which means that it is easier for an outsider to navigate and understand, than, for example, would be the case for an English business person taking their case to many other courts around the world. And the fact that our hearings are held in public means they can be used as something of a PR tool, so a party can let the world know that they believe their own innocence enough to fight the case; or to send a message to other would-be opponents, that if they are taken on, they are not afraid to fight.
Another attractive aspect is our merged equitable and common law system, believed to provide the versatility and flexibility necessary to hear cases involving all manner of business issues in dispute. It is not just that our courts are well developed, but the fact that London has been a centre for business for centuries. We lead the world as a financial centre and as a centre for capital markets, so our courts have a history of having heard disputes involving all manner of complex commercial issues. They are arguably better equipped than other courts in the world to hear any issue that the business world can throw at them.
The English court system contrasts starkly with that in Russia where, after years of communism, the authorities are far less used to the nuances of the business world, the principles of freedom to contract, and the anatomy of commercial transactions generally.
This special position that English law enjoys on the world stage means that an English judgment is more likely to be recognised in other jurisdictions, so follow-on claims can be made confidently, if assets need to be pursued elsewhere. A high-profile court battle fought in the Commercial Court in London will be watched closely by the world at large. The Commercial Court is proud of its reputation as the world’s preferred forum for complex cross-border litigation and for attracting big-ticket cases from overseas. The design and concept behind the new Rolls Building is all about underpinning the reputation of the London courts in this regard, and making sure they continue to be fit for purpose for hearing these sorts of disputes and staying ahead of the pack.
While it is the multi-billion disputes that steal the headlines, the Rolls Building in facts houses three different types of commercial court, all with a significant role to play: in addition to the Commercial Court, we have the Chancery Division and the London Mercantile Court, as well as the Technology and Construction Court. Some commentators have suggested that these high-profile oligarch and other big-ticket disputes are distorting the view of what our commercial courts are and should be about. There is a danger, they say, that attention is focused away from where resources or reform are needed in other parts of the legal system handling commercial issues.
With waiting times for court hearings increasing in the Chancery Division, the spectre of a return to two-year and more waiting times for trial is ever present, unless adequate resources are put into the court system by government. This, of course, is only in the High Court as delays in the county court, for example the Central London County Court, as well as in the regions, are well known to be very serious.
The London Mercantile Court (part of a web of regional business-orientated courts under the Queen’s Bench Division) is almost the little brother of the Commercial Court, as cases can easily be transferred from one to the other. But it is far less high-profile and usually deals with matters involving smaller sums of money, although still substantial in real terms, for example a £11m dispute would not be out of place in this forum. This court is coming to be appreciated by the practitioners who use it.
Currently, it provides a much speedier process than the Chancery Division. Legal commentators will often talk about the need to make court proceedings faster and cheaper, particularly to obtain decisions for business people quickly while a legal point is still relevant commercially, rather than judgment coming long after a commercial opportunity has passed. A summary judgment in the London Mercantile court can be achieved in a reasonably short space of time. It is fleet of foot and an excellent option for bread-and-butter commercial disputes and the judges, although circuit judges, have all of the powers of a High Court judge and are themselves usually highly experienced in commercial litigation.
We have yet to see whether the oligarchs and other super-rich Russian businessmen are going to fight back against the Russian authorities and find ways to get round the recent decisions of the Arbitrazh court so that their cases continue to be heard in London. Obviously amendment to contracts to create equality of rights in dispute resolution will be one way forward. Clearly it is in our interests to see this trend for mega-ticket overseas litigation in London continue, not just for the revenue it brings in to City lawyers, but also because it reminds the world of our lead position in dispute resolution.
Not just in actual litigation but also in international arbitration and mediation. If thinking in Russia places some doubt on this trend continuing, perhaps it will serve a positive purpose if it reminds us that there are other commercial courts of which we should think just as highly – and which certainly we should resource and look after just as much.
A world-class dispute resolution centre should be capable of looking after its own citizens’ business disputes at least as well as serving the world at the big-ticket end. At the moment, London is doing both reasonably well. Long may it continue. But our new justice secretary may like to consider that without adequate resources the county court, already suffering from poor morale among its staff and unacceptable delays, will only get worse and worse; and this will have a severe effect in the regions where dual High Court (District Registry) and county court centres are the norm.
David Christie is a barrister at 7 Bedford Row, London