Rupert D’Cruz KC

Corporate Shareholder and Joint Venture disputes form a substantial part of Rupert’s practice. His cases have involved complex issues relating to:

• breaches of directors’ duties (including fiduciary and disclosure duties and conflicts of interest);
• challenges by minority shareholders to decisions of boards of directors;
• disputes over share issues and transfers (including the enforcement of put and call options and the enforcement of pre-emption rights) and the validity of a purchase by a company of its own shares;
• challenging share dilutions;
• breaches of management and related obligations under shareholder/joint venture agreements;
• breaches of warranties and representations in M&A contracts;
• waiver of statutory formalities;
• unfair prejudice petitions; and
• insolvency (winding-up petitions and related claims and applications).

Many of Rupert’s commercial contract cases involve the defence that the contracts sued on were not properly authorised under the corporate law of the Defendant’s place of incorporation. These issues have frequently arisen in his cases from the CIS-region. As a result, Rupert has acquired an extensive understanding of ‘the major transaction regime’ under the corporate and bankruptcy laws of Ukraine, Russia, Belarus and Kazakhstan; procedural and limitation issues applicable to this regime; and the powers of a CEO and Bankruptcy Manager under the Civil Codes and corporate and bankruptcy laws of these jurisdictions to transact on behalf of local companies.

Examples of Rupert’s corporate, shareholder and joint venture experience include:

SCC Arbitration [2023]

A multi-billion USD claim (under UNCITRAL Rules) for an alleged breach of a shareholder agreement (SPA) relating to the operating of an oil pipeline. The dispute relates to the distribution of dividends between shareholders in a joint venture company that operated the pipeline. Issues involved include: the jurisdiction of the Tribunal to consider the reference, taking into account SPA’s the pre-arbitration procedure; whether the Claimant’s claims are statute-barred and/or brought in breach of its duty of good faith; interpretation of the clauses relating to the distribution of dividends; whether those terms gave rise to binding obligations or amounted to an unenforceable agreement to agree.

Tyurina v Bissembayev AIFC-C/SCC/2022/0027

Represented the Claimant in $300 million shareholder dispute before the Astana International Centre Court. This dispute involved in the diversion by a director and major shareholder of a joint venture oil company of an opportunity to purchase two oil fields in Kazakhstan. The issues involved included: the Court’s freezing injunction powers; breaches of directors’ duties; and unfair prejudice petition relief under the AIFC Companies Regulations (2017).

LCIA Arbitration [2022]

A $60 million claim relating to the dilution of the assets of a CIS joint venture through the unauthorised transfer of shares in an intermediate holding company. Issues: the jurisdiction of the Tribunal to bring a claim against a co-Respondent (UBO) who had procured the dilution; the governing law of the joint venture agreement (taking into account linked finance agreements); and the scope of good faith obligations in the joint venture agreement.

Harbour Fund III v Kazakhstan Kagazy Plc [2021] EWHC 1128 (Comm)

An £80 million claim relating to the validity of variations to a litigation funding agreement entered into by the CEO of a Kazakh-registered company in Rehabilitation (administration). Issues included whether the variations required the approval of the company’s creditors and whether the CEO was authorised under the Kazakhstan Laws on Joint Stock Companies and on Rehabilitation and Bankruptcy to enter those variations. The case involved liaising closely with the client’s expert evidence in the preparation of expert reports on these issues and cross-examining the opposing party’s expert on them.

Advisory work/Settlement Negotiations [2020]

Advised a shareholder in a Kazakh/Russian Joint Venture (in the media sector) on: breaches of a share purchase and shareholder agreement arising from the failure of the JV board to implement an agreed business plan for the global development of the company; and the legal remedies available to the shareholder in terms of damages, loss of profit and other forms of compensation.

Bestolov v Povarenkin [2019] EWHC 1992 (Comm)

A claim for payment of US$10 million due under a joint-venture agreement. Issues: allegations of fraudulent misrepresentation; governing law issues; Russian law on limitation (including the circumstances in which the usual contractual limitation period may be suspended) and contractual interpretation under the Russian Civil Code. The case involved liaising closely with the client’s expert evidence in the preparation of  reports on these issues and cross-examining the opposing party’s expert on them.

LCIA Arbitration [2019]

A US$20 million claim under an M&A contract for the payment of the purchase price of shares in the owner of 4 uranium mine. The issues involved included allegations of negligent and fraudulent misrepresentation on the part of the seller; deceit; reliance; and quantum.

LCIA Arbitration [2018]

A claim for US$80 million project management fees in relation to a substantial residential construction in Russia. Issues: validity of supplementary agreements executed by the developer’s CEO; authority of a CEO under the Russian Law on Joint Stock Companies to enter into ‘a major transaction’ on behalf of the company (including issues of limitation and whether the supplementary agreements were entered into in the course of the developer’s ordinary business operations). The case involved working with the client’s expert evidence on the preparation of reports on these issues and cross-examining the opposing party’s expert on them.

Maximov v NLMK [2017]

Claim to enforce a RUB 8 billion ICAC award relating to payment due under a Share Purchase Agreement for shares in OJSC Maxi-Group. Issue: The award was set aside by the Moscow Arbitrazh Court and the Claimant sought to enforce it, nevertheless, by arguing that the judgment of Moscow Court should not be recognised on the grounds of bias.

LCIA Arbitration [2016]

A claim for the return of a deposit paid under a share purchase agreement for shares valued at c.USD 75 million in a Russian oil and gas exploration company. Issues: contractual interpretation of the SPA (and whether it required the seller to return advances on the purchases price); whether a term providing for the forfeiture of those advances in particular circumstances amounted to a penalty and, therefore, was unenforceable; relief against forfeiture; restitution; waiver; and forbearance/estoppel.

New Media Holdings Ltd v Kuznetsov [2016] EWHC 360 (QB)

A claim for the enforcement of a put option relating to shares in a Latvian company. The principal dispute concerned the validity of the option agreement, specifically whether the parties intended to contract when they signed it; or whether it was merely a preliminary agreement which was not intended to be legally binding until certain corporate approvals had been obtained. The case involved the application of Latvian corporate law on shareholder rights.

Yugraneft v Abramovich, Millhouse Capital (UK) Ltd and Berezovsky [2008] All ER (D) 299 (Oct).

A $2 billion claim against a Russian citizen and his English holding company relating to an alleged fraudulent dilution of shares in a joint venture (Russian) company. The issues involved the application of Russian Joint Stock Company Law on the corporate approval procedure for the issue of additional shares in a joint stock company; the limitation period and procedure setting aside a decision approving the issue of additional shares and when that limitation period is deemed to commence. The case involved liaising closely with the client’s Russian law expert in the preparation of a report on these issues.

Rupert regularly represents banks/lenders, banking regulators, borrowers and guarantors in international finance disputes and disputes arising from the collapse/insolvency of banks. Many of these cases involve allegations of fraud on the part of the borrower and/or the management of insolvent banks.

Examples of Rupert’s recent banking and finance experience include:

LCIA Arbitration [2023]

Representing an insolvent Respondent CIS-Bank (now managed by its regulator) in a series of arbitrations for claims relating to the validity of agreements entered by the bank by which it purported to discharge the liabilities of various debtors in return for assignments by those debtors of debts owed to them (“the Discharge Agreements”). The  issues are: whether the Claimant is estopped from pursuing its arbitral claims as a result of findings made by the State court in the Bank’s insolvency proceedings relating to the debts sue to the Bank under the Discharge Agreements; whether, alternatively, it is an abuse for the Claimant to pursue those claims, given the issues in dispute in the insolvency proceedings; alternatively, whether the Discharge Agreements were entered into as a result of fraud on the part of the previous management of the bank, and, therefore, are invalid, including under s.423 of the Insolvency Act 1986.

Aurum Ltd v National Bank Trust [2022]

Representing the Defendant in a Commercial Court claim under a guarantee issued by an insolvent bank whose rights and obligations have been acquired by the Defendant. The principal issue is whether the conditions under which the guarantee became payable arose, taking into account the proper interpretation of those conditions.

National Bank Trust v Valimohamed [2022]

Representing the Claimant in a Commercial Court claim against guarantors of an insolvent company for the repayment of loans provided by an insolvent bank (now being managed by its regulator). The issues include whether the loan agreements were entered into as a result of fraudulent misrepresentation and/or duress on the part of the previous management of the insolvent bank.

LCIA Arbitration [2022]

Representing the Claimant in A $60 million claim relating to the financing of an insolvent CIS bank in return for the issue of shares in the bank. The issues involved include the dilution of the assets of a joint venture company through which the ownership of the bank was held and whether that in breach of an obligation of good faith on the part of the joint-venture partner to protect the investor’s indirect interest in the bank by ensuring that it was not diluted.

X v Y Bank [2018]

Represented the Respondent (CIS) bank in a Commercial Court claim challenging an arbitral award for the repayment by the Claimant (guarantor) of loans made to his company.

JSC Mezhdunarodniy Bank v Pugachev [2017]

Represented a third party asserting an interest in real property said to be owned by the debtor (the previous Chairman of the insolvent Claimant-bank against whom a Russian court judgment was being enforced in the Commercial Court). The principal issue in was whether the third party had acquired a beneficial interest the property.

LCIA Arbitration [2014]

Represented a CIS-Bank in a USD 200 million claim against its former Chairman for the discharge of an undertaking to repay the loans made by the bank to various companies as part of an SPA under which that Chairman has sold his interest in the Bank to its current owner. The principal issue was whether conditions precedent in the agreement under which that undertaking was provided had been complied with so as to bring that agreement into force.

A significant proportion of Rupert’s cases are fraud-related and involve allegations of misrepresentation; breach of fiduciary duty; duress; dishonest assistance; conspiracy and tracing claims.

Typically, they give rise to complex interim relief applications, such as freezing injunctions (including against Chabra Defendants located in numerous jurisdictions), Norwich Pharmacal orders and security for costs applications, and jurisdictional disputes.

These cases are often governed by a foreign law and require Rupert to work closely with foreign law experts to develop foreign law arguments and reports and also to cross examine the foreign law experts of opposing parties.

Examples of Rupert’s recent fraud and asset tracing cases include:

Tyurina v Bissembayev AIFC-C/SCC/2022/0027

Represented the Claimant in $300 million shareholder dispute before the Astana International Centre. This dispute involved in the (alleged) fraudulent diversion by a director and major shareholder of a joint venture oil company of an opportunity to purchase two oil fields in Kazakhstan. The issues involved included: the Court’s freezing injunction powers; breaches of directors’ duties; and unfair prejudice petition relief under the AIFC Companies Regulations (2017).

LCIA Arbitration [2023]

Representing an insolvent CIS Bank (now managed by its regulator) in a series of arbitrations for claims relating to the validity of agreements entered into by the bank by which it purported to discharge the liabilities of various debtors in return for assignments by those debtors of debts owed to them. The issues involved include whether those discharge agreements were entered into as a result of fraud on the part of the previous management of the bank, and, therefore, are invalid, including under s.423 of the Insolvency Act 1986.

National Bank Trust v Valimohamed [2022]

Representing the Claimant in a Commercial Court claim against guarantors of an insolvent company for the repayment of loans provided by an insolvent bank (now being managed by its regulator). The issues include whether the loan agreements were entered into as a result of fraudulent misrepresentation and/or duress on the part of the previous management of the insolvent bank.

LCIA Arbitration [2022]

A $60 million claim relating to the dilution of the assets of a CIS joint venture through the unauthorised transfer of shares in an intermediate holding company. Issues: the jurisdiction of the Tribunal to bring a claim against a co-Respondent (UBO) who had procured the fraudulent dilution; the governing law of the joint venture agreement (taking into account linked finance agreements); and the scope of good faith obligations in the joint venture agreement.

Al-Subaihi & Al-Muzein v Al-Sanea [2021] EWHC 2609 (Comm)

A US$ 20 million claim for unpaid legal fees. The Defendant’s relied on defences of undue influence; duress; breach of fiduciary duty/conflict of interest; and unconscionability. This case also involved the successful application for a post-judgment freezing injunction [2022].

Bestolov v Povarenkin [2019] EWHC 1992 (Comm)

A claim for payment of US$10 million due under a joint-venture agreement. Issues: allegations of fraudulent misrepresentation; governing law issues; Russian law on limitation (including the circumstances in which the usual contractual limitation period may be suspended) and contractual interpretation under the Russian Civil Code. This case also involved a successful defence to a jurisdiction jurisdiction and is the leading case on what constitutes domicile/residence under English law.

LCIA Arbitration [2019]

A US$20 million claim under an M&A contract for the payment of the purchase price of shares in the owner of 4 uranium mine. The issues involved included allegations of negligent and fraudulent misrepresentation on the part of the seller; deceit; reliance; and quantum.

X v Y Bank [2018]

Represented the Respondent (CIS) bank in a Commercial Court claim challenging an arbitral award for the repayment by the Claimant (guarantor) of loans made to his company, in which the principal defence was a fraudulent misrepresentation. This case involved a successful security for costs application which resulted in the dismissal of the challenge.

JSC Mezhdunarodniy Bank v Pugachev [2017]

Represented a third party asserting an interest in real property said to be owned by the debtor (the previous Chairman of the insolvent Claimant-bank against whom a fraud-based Russian court judgment was being enforced in the Commercial Court). The principal issue in was whether the third party had acquired a beneficial interest the property.

LCIA Arbitration [2014]

Represented a CIS Bank in a USD 200 million claim against its former Chairman for the discharge of an undertaking to repay the loans made by the bank to various companies as part of an SPA under which that Chairman has sold his interest in the Bank to its current owner. The principal issue was whether conditions precedent in the agreement under which that undertaking was provided had been complied with so as to bring that agreement into force. This case also involved an application for a freezing injunction in support of the arbitral proceedings and contempt of court proceedings for breach of that injunction. It is a leading case on the scope of the Chabra jurisdiction.

Yugraneft v Abramovich, Millhouse Capital (UK) Ltd and Berezovsky [2008] All ER (D) 299 (Oct).

A $2 billion claim against a Russian citizen and his English holding company relating to an alleged fraudulent dilution of shares in a joint venture (Russian) company. The issues involved the application of Russian Joint Stock Company Law on the corporate approval procedure for the issue of additional shares in a joint stock company; the limitation period and procedure setting aside a decision approving the issue of additional shares and when that limitation period is deemed to commence. The case involved liaising closely with the client’s Russian law expert in the preparation of a report on these issues.

Rupert’s extensive international arbitration experience includes disputes under the auspices of the LCIA, ICC and ad hoc. He is frequently instructed in cases that involve:

• challenging, and defending challenges to, the Tribunal’s jurisdiction within the arbitration;
• defending challenges to, and appeals against, arbitral awards; and
• applications for interim relief in support of arbitral proceedings, including freezing injunctions and security for costs applications.

Rupert also sits as an arbitrator (including in a presiding role).

His recent arbitration cases include:

SCC Arbitration [2023]

A multi-billion USD claim (under UNCITRAL Rules) for an alleged breach of a shareholder agreement (SPA) relating to the operation of an oil pipeline. The dispute relates to the distribution of dividends between shareholders in a joint venture company that operated the pipeline. Issues involved include: the jurisdiction of the Tribunal to consider the reference, taking into account SPA’s the pre-arbitration procedure; whether the Claimant’s claims are statute-barred and/or brought in breach of its duty of good faith; interpretation of the clauses relating to the distribution of dividends; whether those terms gave rise to binding obligations or amounted to an unenforceable agreement to agree.

LCIA Arbitration [2023]

Representing an insolvent Respondent CIS-Bank (now managed by its regulator) in a series of arbitrations for claims relating to the validity of agreements entered by the bank by which it purported to discharge the liabilities of various debtors in return for assignments by those debtors of debts owed to them (“the Discharge Agreements”). The  issues are: whether the Claimant is estopped from pursuing its arbitral claims as a result of findings made by the State court in the Bank’s insolvency proceedings relating to the debts sue to the Bank under the Discharge Agreements; whether, alternatively, it is an abuse for the Claimant to pursue those claims, given the issues in dispute in the insolvency proceedings; alternatively, whether the Discharge Agreements were entered into as a result of fraud on the part of the previous management of the bank, and, therefore, are invalid, including under s.423 of the Insolvency Act 1986.

LCIA Arbitration [2023]

Representing the Claimant in a USD 16 million claim for breach of sale and purchase agreement (SPA) in relation to a yacht. The issues involved include: the damages that the Buyer is entitled to claim from the Builder as a result of delays in delivering the yacht; whether the Buyer repudiated the SPA by alleged failures to pay instalment payment on the required dates; whether the Builder was entitled to terminate the SPA at common law or under the terms of the SPA; whether title to the yacht to the Buyer occurred, taking into account the provisions of the Sale of Goods Act 1979; a range of quantum issues; and whether the Claimant should be entitled to vary the terms of a security for costs order, taking into account difficulties in complying with the original security for costs order.

ICC Arbitration [2022]

Advising the developer of a USD multi-billion nuclear project on its termination rights under an EPA contract. The issues involved include: whether the notices of default were validly served on the constructor; whether the constructor has breached the EPA as asserted in those notices; and whether any such breaches entitle the employer to terminate the EPA.

LCIA Arbitration [2022]

A $60 million claim relating to the dilution of the assets of a CIS joint venture through the unauthorised transfer of shares in an intermediate holding company. Issues: the jurisdiction of the Tribunal to bring a claim against a co-Respondent (UBO) who had procured the dilution; the governing law of the joint venture agreement (taking into account linked finance agreements); and the scope of good faith obligations in the joint venture agreement.

LCIA Arbitration [2019]

A US$20 million claim under an M&A contract for the payment of the purchase price of shares in the owner of 4 uranium mine. The issues involved included allegations of negligent and fraudulent misrepresentation on the part of the seller; deceit; reliance; and quantum.

LCIA Arbitration [2018]

A claim for US$80 million project management fees in relation to a substantial residential construction in Russia. Issues: validity of supplementary agreements executed by the developer’s CEO; authority of a CEO under the Russian Law on Joint Stock Companies to enter into ‘a major transaction’ on behalf of the company (including issues of limitation and whether the supplementary agreements were entered into in the course of the developer’s ordinary business operations). The case involved working with the client’s expert evidence on the preparation of expert reports on these issues and cross-examining the opposing party’s expert on them.

X v Y Bank [2018]

Represented the Respondent (CIS) bank in a Commercial Court claim challenging an arbitral award for the repayment by the Claimant (guarantor) of loans made to his company.

PCA Arbitration [2017]

Challenge to a USD 250 million PCA award in an investment treaty claim. Issue: whether a procedural irregularity arose from the Tribunal’s refusal to allow the (CIS State) Respondent time to produced evidence that the capital controls it imposed (and on which the treaty claim was based) were justified under public law principle of necessity.

Maximov v NLMK [2017]

Claim to enforce a RUB 8 billion ICAC award relating to payment due under a Share Purchase Agreement for shares in OJSC Maxi-Group. Issue: The award was set aside by the Moscow Arbitrazh Court but the Claimant sought to enforce it, nevertheless, by arguing that the judgment of Moscow Court should not be recognised on the grounds of bias.

LCIA Arbitration [2017]

Application in support of an LCIA arbitration for an injunction to prevent the drawdown by a Ukrainian state company under a performance bond issued by a contractor in relation to a USD 200 million FIDIC contract. Issues: whether the terms of the contract entitled the employer to draw down under the bond, in the light of decisions by the Dispute Board about the alleged breaches on which the proposed draw down was based.

LCIA Arbitration [2016]

A claim for the return of a deposit paid under a share purchase agreement for shares valued at c.USD 75 million in a CIS oil and gas exploration company. Issues: contractual interpretation of the SPA (and whether it required the seller to return advances on the purchases price); whether a term providing for the forfeiture of those advances in particular circumstances amounted to a penalty and, therefore, was unenforceable; relief against forfeiture; restitution; waiver; and forbearance/estoppel.

LCIA Arbitration [2014]

Represented a CIS Bank in a USD 200 million claim against its former Chairman for the discharge of an undertaking to repay the loans made by the bank to various companies as part of an SPA under which that Chairman has sold his interest in the Bank to its current owner. The principal issue was whether conditions precedent in the agreement under which that undertaking was provided had been complied with so as to bring that agreement into force. This case also involved an application for a freezing injunction in support of the arbitral proceedings and contempt of court proceedings for breach of that injunction.

Rupert is also regularly instructed on construction disputes involving complex expert evidence in relation to both engineering and quantum issues.

Examples include:

SCC Arbitration [2023]

A multi-billion USD claim (under UNCITRAL Rules) for an alleged breach of a shareholder agreement (SPA) relating to the operation of an oil pipeline. The dispute relates to the distribution of dividends between shareholders in a joint venture company that operated the pipeline. Issues involved include: the jurisdiction of the Tribunal to consider the reference, taking into account SPA’s the pre-arbitration procedure; whether the Claimant’s claims are statute-barred and/or brought in breach of its duty of good faith; interpretation of the clauses relating to the distribution of dividends; whether those terms gave rise to binding obligations or amounted to an unenforceable agreement to agree.

LCIA Arbitration [2023]

Advising the supplier of crude oil in relation to a dispute involving non-delivery of monthly supplies. The issues involved include whether the purchaser’s claims are time-barred, taking into account contractual limitations; whether the purchaser has complied with notice provisions under the contract; limitation of liabilities provisions under the contract; the damages that the supplier is entitled to claim, taking into account the provisions of the Sale of Goods Act 1979.

ICC Arbitration [2022]

Advising the developer of a USD multi-billion energy project on its termination rights under an EPA contract. The issues involved include: whether the notices of default were validly served on the constructor; whether the constructor has breached the EPA as asserted in those notices; and whether any such breaches entitle the employer to terminate the EPA.

LCIA Arbitration [2019]

A US$20 million claim under an M&A contract for the payment of the purchase price of shares in the owner of 4 uranium mine. The issues involved included allegations of negligent and fraudulent misrepresentation on the part of the seller; deceit; reliance; and quantum. This claim involved complex disputes about the status of the development of the two mines at the date of the M&A contract, and substantial engineering and quantum evidence in this regard.

LCIA Arbitration [2018]

A claim for US$80 million project management fees in relation to a substantial residential construction in Russia. Issues: validity of supplementary agreements executed by the developer’s CEO; authority of a CEO under the Russian Law on Joint Stock Companies to enter into ‘a major transaction’ on behalf of the company (including issues of limitation and whether the supplementary agreements were entered into in the course of the developer’s ordinary business operations). The case involved working with the client’s expert evidence on the preparation of expert reports on these issues and cross-examining the opposing party’s expert on them.

LCIA Arbitration [2017]

Application in support of an LCIA arbitration for an injunction to prevent the drawdown by a Ukrainian state company under a performance bond issued by a contractor in relation to a USD 200 million FIDIC contract. Issues: whether the terms of the contract entitled the employer to draw down under the bond, in the light of decisions by the Dispute Board about the alleged breaches on which the proposed draw down was based.