Arbitration
The core strength of Erskine Chambers is expertise in corporate law. Members of Chambers deploy this expertise in contentious and non-contentious corporate, insolvency, restructuring and financial services work. In addition to their advocacy and advisory work, members of Chambers conduct expert determinations, give expert evidence and sit on judicial and extra judicial tribunals.
Arbitration work has always been an important part of Erskine Chambers’ skill set. Following the English Court of Appeal’s decision in Fulham v Richards in 2011 (in which James Potts KC appeared), doubt as to the extent to which mainstream corporate disputes, such as claims under section 994 Companies Act 2006, were capable of being submitted to arbitration were largely resolved in the domestic sphere. Since then common law jurisdictions all over the world have held that such disputes are generally arbitrable. The latest step in this trend is the Privy Council’s recent decision in FamilyMart (FamilyMart China Holding Co Ltd (Respondent) v Ting Chuan (Cayman Islands) Holding Corporation (Appellant) (Cayman Islands) – Judicial Committee of the Privy Council.
This continuing trend has led to members of Erskine Chambers increasingly being instructed to appear in arbitrations of corporate disputes, and indeed being appointed as arbitrators, where their expertise can be pivotal. The rationale for such instructions and appointments is the same as for instructing members of Erskine Chambers in corporate litigation – we provide a crucial combination of corporate law expertise, advocacy skills and experience in dispute resolution at all levels.
Whether the dispute arises out of an arbitration clause in a company’s constitution, in a shareholders agreement or joint venture agreement, or in an offering memorandum for debt or equity, members of Erskine Chambers are ideally placed to assist. Ad hoc arbitrations are also ideal for ensuring that a dispute is resolved by an expert tribunal with a deep knowledge of the law and broad experience of the issues. Arbitrations which involve accounting issues or company valuations are especially suitable to be determined with the assistance of barristers who are familiar with and regularly litigate over accounting standards, valuation techniques and expert valuation reports.
Ad hoc arbitration concerning a LLP Dispute between private equity partners.
Ad hoc Arbitration leading Philip Gillyon shareholder dispute and international real property dispute with Middle Eastern parties.
LCIA joint venture dispute leading James Potts of 3 Verulam Buildings exclusion of JV Partner.
HKIAC Arb: in HK leading Philip Gillyon: concerning obligations under a Share Purchase Agreement and Share Subscription Agreement.
LCIA Arbitration sitting as an Arbitrator with Andrew Hochauser and Sir Jack Beatson concerning claims under s 994 CA 2006 in respect of a retail business in London and France.
LCIA Arbitration sitting with Jonathan Crow KC and Gary Born concerning a potential acquisition and the obligations of the parties under an SPA.
ICC Arbitration Vienna seat dispute arising out of a shareholders agreement.
Member LCIA European Users Council, BVI Arbitration Group.
Party appointed arbitrator in UNCITRAL and LCIA arbitrations seated in Singapore, BVI and London.
Cross-border stay and enforcement applications including Lichtenstein/London, California/London, Switzerland/BVI, Hong Kong/Jersey
Particular experience in international joint ventures and corporate disputes,
David has sat as an additional Judge of the BVI Commercial Court and has extensive experience in determining disputes.
Confidential arbitration of partnership dispute
LCIA arbitration of members’ dispute in highly valuable long only fund management business conducted via an LLP. The issues included the construction of the LLP agreement. London seat.
Confidential arbitration of private equity dispute
Dispute in 2021 between members of LLPs managing very high profile private equity funds, involving multiple allegations of breach of duty, deadlock, the operation of provisions in the fund documentation for the replacement of the managers and applications for the urgent appointment of arbitrators and for urgent interim and final injunctive relief – all successfully defeated, acting for the respondent. LCIA arbitration. London seat.
Confidential arbitration of unfair prejudice claim
For the claimant in a very high value unfair prejudice claim re DIFC company under DIFC legislation similar to s994 Companies Act 2006, in Dubai arbitration. Wide ranging allegations of breach of fiduciary duty and fraud and valuation issues.
Confidential fund management arbitration
London seated LCIA arbitration of multi-jurisdiction dispute in foreign holding company in fund management structure, including derivative claims and fraud. The issues included jurisdictional issues, the arbitrability of derivative claims and the procedure for the determination of derivative claims in an arbitration in the context of the statutory provisions governing such claims, as well as the underlying substantive breach of duty and breach of contract issues.
Confidential shareholders’ dispute arbitration
LCIA arbitration in Singapore relating to the construction and application of drag provisions in a shareholders’ agreement governing a private equity investment, including issues relating to the related private equity structures.
Counsel in Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 85, leading case on arbitrability of shareholder disputes.
Examples of cases as lead advocate:
Acted for successful minority shareholder in DIFC-LCIA arbitration in claims for breaches of a shareholders’ agreement, articles of association and the DIFC Companies Law, and for relief from unfair prejudice, in connection with management of a MENA-based technology company.
LCIA arbitration (Dubai Seat) shareholder dispute (unfair prejudice) in relation to very high value tech company.
Arbitrations of partnership (including LLP) disputes (ad hoc and LCIA) in respect of various firms of solicitors.
LCIA arbitration (Singapore Seat) in relation to validity of drag rights.
UNCITRAL arbitration (London Seat) joint venture Caribbean oil company dispute.
LCIA (London Seat) investor dispute relating to Cayman registered fund including application for emergency formation.
ICC (London Seat): Multi-party investor dispute relating to share rights, including application for emergency formation and urgent interim relief.
Experienced in advising and acting in arbitrations, including under the auspices of the LCIA and the HKIAC and ad hoc. Recent work includes acting for a NYSE-listed company in an arbitration in a dispute over the proceeds of an invalid $170m placement of shares, and representing an oil company in a dispute concerning a joint venture in respect of aviation fuel supplies.
(2023) Acted for a NYSE-listed company in an arbitration under HKIAC Rules concerning a dispute over the proceeds of an invalid $170m placement of shares.
(2018) Acting in an UNCITRAL arbitration in relation to a joint venture dispute between two oil companies.
Also acted for the appellant law firm on an application to appeal an award on the grounds of serious irregularity and error of law under s.68/69 Arbitration Act 1996: Michael Wilson & Partners v. Emmott [2011] EWHC 1441 (Comm); [2011] Arb. LR 55
Nick was previously a partner at Freshfields Bruckhaus Deringer and is a leading practitioner with over 30 years’ experience in restructuring, insolvency, corporate and banking law, both non-contentious and contentious. Since 2015 he has also been a judge of the Grand Court in Cayman, assigned to the Financial Services Division.
He is a IPOS accredited Civil and Commercial Mediator.
Nick’s practice has covered a wide range of matters in recent years from bank resolution and insolvencies and global corporate restructurings to litigation in London and abroad. His judicial work has also involved a wide range of disputes in corporate, funds, financial and insolvency law.
His expertise and his Judicial role make him ideal for sitting as an Arbitrator and determining disputes.
Nigel’s arbitration expertise builds on his heavy litigation experience, particularly with shareholder disputes and directors’ duties. Nigel has substantial experience, as lead counsel or co-counsel, in arbitrations that will routinely involve cross-jurisdictional issues of company and insolvency law as well as wider commercial issues. His experience has included LCIA, ICC, SIAC and HKIAC arbitrations and has included the handling of ad hoc arbitrations.
Recent examples of Nigel’s arbitration work include:
- A very substantial LCIA arbitration (London seat) of a shareholders dispute and of unfair prejudice/oppression claims involving issues of Russian, English, Cypriot and Maltese company and insolvency law.
- A substantial LCIA arbitration (London seat) over validity of exercise and enforceability of commercial option agreements and involving issues of Russian, Cypriot and English law.
- A LCIA arbitration (Moscow seat) over the enforcement of a supply of goods and services’ contract against Russian counterparty and issues of Belgian and Russian law.
- A substantial LCIA arbitration (London seat) concerning the enforcement of a shareholders’ agreement over a Mauritian company and involving issues of Delaware and Mauritian law.
- A substantial SIAC arbitration (Singapore seat) involving a contractual joint venture dispute under Singaporean law.
- Acting for successful defendants to LCIA arbitration (London seat) in resisting application under s.44 Arbitration Act 1996 for interim injunctive relief to restrain a corporate refinancing pending an arbitration (MI Squared Ltd v King & Ors [2022] EWHC 331 (Comm)).
- A LCIA arbitration (London seat) involving issues of Spanish and English law and the assertion of claims for unfair prejudice in an English company arising from the conduct of the affairs of Spanish subsidiary companies.
Recent Cases include:
An unfair prejudice arbitration (Michael Todd KC was the arbitrator). Other arbitration work has involved large Russian and Middle Eastern clients.
Recent cases include:
A HKIAC arbitration, this is a claim in restitution, which the defendant (for whom I act) is defending with allegations of dishonest assistance and unlawful means conspiracy, in respect of which the defendant is also counterclaiming for substantial damages. The amount in dispute is c. US$125 million.
Acting for the respondents to the arbitration. The claimant and the respondents are all shareholders in a company. The claimant alleges that its nominee was wrongly removed as a director of the company and that it has been excluded from the management of the company and its subsidiary. It claims that such conduct amounts to an event of default under a shareholders’ agreement, such that it is entitled to purchase my clients’ shares in the company. In the alternative, it alleges that such conduct amounts to unfair prejudice, for which the appropriate relief is an order directing the claimant to purchase my clients’ shares in the company.
Recent cases include:
Arbitration of an international joint venture dispute under the ICA Rules;
Arbitration of a partnership dispute in respect of a firm of solicitors;
Arbitration of an unfair prejudice claim.
Recent cases include:
- (Led by Andrew Thompson KC) Successfully defending urgent LCIA arbitration of disputes between the founders within a high-profile private equity business, with allegations of breaches of fiduciary and contractual duties in relation to LLPs, and applications for urgent injunctive relief, as part of a general falling out. London seat.
- Defending unfair prejudice proceedings brought in an LCIA arbitration involving allegations of breach of directors’ duty. London seat.
