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The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
As a matter of principle, Mr Coldrick submitted that the Court can and should assess the objective reasonableness of the decision in light of all the evidence before it. That included evidence post-dating the Claimant’s decision and which therefore was unknown to the Claimant at the time that it made its decision. In the present case that included the UK government guidance referred to in paragraphs 25 and 26 of Mr Emilianou’s first witness statement, the UK Statement of Reasons dated 16 December 2022 which stated that
“Gutseriev has himself, or via his companies through controlling directly or indirectly FLLC Slavkali, Russneft and Neftisa, carried on business in a sector of strategic significance to the Government of Belarus” [emphasis added],
the EU Regulations dated 24 February 2023, which refers to Mr Gutseriev as “a “Member of the board of directors and shareholder of JSC NKNeftisa” and the decision of the General Court of the EU (the “ECJ Decision”) in Case T-526/21 Gutseriev v. Council. The Claimant submitted that this judgment falls within an exception to the evidential exclusionary rule, which would ordinarily make judgments between third parties inadmissible as evidence of facts found in them, in respect of public or general rights: see Petrie v. Nuttall (1855) 11 Ex 569, Phipson on Evidence 20th Ed., 43-83 and Spencer Bower, 6th Edn, 11.02-11.08.
I now turn to the Defendant’s submissions on these matters.
- Heading
- Mr ANDREW HOCHHAUSER KC
- The Hearing, representation and the evidence
- The Expert Evidence
- The Relevant Factual Background
- The Issues
- The EPS Sanctions Clause
- The Claimant’s submissions on the proper construction of the EPS Sanctions Clause
- The Claimant’s submissions on “reasonable judgment” and the burden of proof
- The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- The Defendant’s submissions on the proper construction of the EPS Sanctions Clause
- The Defendant’s submissions on sub-clause (C) of the EPS Sanctions Clause
- The Defendant’s submissions on “reasonable judgment” and the burden of proof
- The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- Discussion and conclusion in relation to the proper construction of the EPS Sanctions Clause and burden of proof
- Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- On the facts did the Claimant satisfy the provisions of sub-clause (C) of the EPS Sanctions Clause i.e. did the Claimant make an objectively reasonable judgment that there was an exposure to sanctions
- EU Sanctions Laws
- The EU Regulations
- The EU Best Practices Guidance
- The UK Sanctions Laws
- The UK provisions in relation to control
- The case law on control
- The Evidence
- The letter on Neftisa headed paper dated 16 November 2021
- The Kommersant Newspaper article dated 22 July 2021
- The Three Legal Opinions drafted by Herbert Smith and Baker and McKenzie which the Defendant provided to the Claimant in November 2021 (the “Legal Opinions”)
- Discussion and conclusion in relation to whether the Claimant made an objectively reasonable judgment that there was an exposure to sanctions, in that the listed persons were subject to the risk of sa
- The ECJ Decision
- Conclusion on the Claimant’s Claim
- Is the Claimant’s Claim time barred?
- The Claimants’ submissions on the Time Bar Clause
- The Defendant’s submissions on the Time Bar Clause
- Conclusions