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The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
Mr Shirley submitted that the Claimant has to establish that Mr Gutseriev controlled Neftisa in November 2021 and that it must be more than just “pure speculation”: see [64] of the decision of Foxton J in Litasco v. Der Mond Oil [2023] EWHC 2866 (Comm); [2024] 1 All ER (Comm) 1044.
In examining the evidence, the Court must be careful to consider whether evidence concerns the position before the summer of 2021 or after. Any evidence concerning the former is irrelevant to the position after because, on any view, things changed.
The version of the UK Statement of Reasons current in November 2021 makes no reference to Neftisa. The current version for Mr Gutseriev on the EU’s equivalent list is also not evidence of material available to the Claimant in November 2021, and in any event the reference to Mr Gutseriev as a “Member of the board of directors and shareholder of JSC NKNeftisa” can only be a reference to his status prior to his sanctioning. The EU listing in force from 25 June 2012-2 December 2021 made no reference to Neftisa.
In relation to the ECJ decision in Gutseriev v. Council, Mr Shirley submitted that the on a proper consideration of the materials relied upon by the Claimant, referred to at paragraph [47] above, there is nothing to suggest that that judgment should be treated as some form of judgment in rem, and an exception to the exclusionary rule. In any event, it does not address the position in November 2021, and its findings are not relevant.
- 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