Disputes Issue 19: Year In Review

ISSUE 19 - NOV 2025

MAGAZINE Year in Review: International Disputes Highlights 2025

Thought Leadership for and by the Disputes Community

ThoughtLeaders4 Disputes Magazine • ISSUE 19

INTRODUCTION

“A good year leaves you with lessons, not just results.”

- Unknown

We are thrilled to present Issue 19 of the Disputes magazine, our Year in Review edition. This edition dives into the themes of: Corporate & Commercial Disputes, ESG, International Arbitration, Class Actions, Geopolitics & Risk Management.

Each theme offers an insight into the current trends and hot topics in the ever-changing nature of legal conflicts. As always, we extend our sincere thanks to our Corporate Partners, contributors, and readers for their support in bringing this issue to you. Do keep an eye out as we continue to offer various engaging events in the Disputes Community.

We’d also like to take the opportunity to thank our event attendees, speakers, and partners for another fantastic year within the Disputes community.

As ever, thank you to our valued Corporate Partners for all their support - we wish readers a very happy festive season, and look forward to welcoming you all back in the New Year.

The ThoughtLeaders4 Disputes Team Paul Barford Founder/ Managing Director 020 3398 8510

Chris Leese Founder/Chief Commercial Officer 020 3398 8554

email Paul

email Chris

Danushka De Alwis Founder/Chief Operating Officer 020 3580 5891

Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545

email Danushka

email Maddi

Amelia Gittins Senior Strategic Partnership Executive 020 3059 9797 email Amelia

Yelda Ismail Senior Marketing Manager 020 3398 8551 email Yelda

CONTRIBUTORS Dina Hudson - Byfield Consultancy Nicola Sharp - Rahman Ravelli Viktor Koleda - DRD Partnership John Hays - Ankura Claire Irwin - Norton Rose Fulbright Joseph Bentley - Norton Rose Fulbright Leone Astolfi - Norton Rose Fulbright Dominik Huebler - Nera Lucas Skrabal - Nera Professor Sarah Green Newmans Row Batsalya Mishra - TrialView Usman Roohani - 4 New Square Moya Clifford - Hill Dickinson Kate Steele - Hill Dickinson

Jack Lewis - Hill Dickinson Scott Goldstein - Payne Hicks Beach Andrew Wanambwa - Lewis Silkin Nigel Enticknap - Lewis Silkin Georgina Fernando - Lewis Silkin Alexander Heylin - No5 Chambers Alex Houston - Crowe Jonathan Smart - Shoosmiths Michael Mulligan - Haynes & Boone Charlotte Doherty - Haynes & Boone Michael Barber - Grant Thornton Fred Brown - Grant Thornton Tom Middleton - Grant Thornton Noor Hogerzeil - Lindenbaum

CONTENTS

Resource Nationalisation and the New Battleground of Investor–State Disputes: Lessons From Orano and Beyond ......................... 8 UK Faces Its First ICSID Claim: What Does it Mean for Climate Policy in the UK? ....................... 13 60-Seconds with: Viktor Koleda ............................. 15 Ai’s New Frontier: From Reactive Defence to Proactive Digital Readiness for In-House Counsel..................................................... 17 Walking The Tightrope: English Courts’ Approach to State Immunity.................................... 20 Compensation Disputes Under The Data Act – How to Prepare for Terra Incognita...... 24 The Distinctiveness of Digital Assets Disputes.... 27 The Silent Co-Counsel: How Ai is Fundamentally Reshaping Litigation...................... 29 Evaluating The ‘Fair Value’ of Shares: Maso Capital Investments Ltd V Trina Solar Ltd [2025] UKPC 48............................... 32 Push Payment Fraud – Derivative Claim as a Means of Recovery................................ 35 Renters Rights Act................................................... 37 Certification Success: Practical Lessons From the Bulk Mail Claim......................................... 40 Court of Appeal Clarify Approach to Interpreting Articles of Association: Syspal Capital Limited V Truman and Another [2025] EWCA CIV 469........... 44 2025: The Year of The M&A Transaction Dispute.. 46 Litigation Risk 2025: A Year in Review................... 48 Substance Over Form: The Modern Approach to Transactions At An Undervalue.......................... 51 Shining A Light on the Value of Shadow Experts in the Resolution of Complex Disputes... 55 Representativeness Requirement: Positive Developments For Public Interest Actions in The Netherlands................................................... 58 2

ThoughtLeaders4 Disputes Magazine • ISSUE 19

SANCTIONS IN DISPUTES CIRCLE The Sanctions in Disputes Circle 2025, held over two days at the Royal Berkshire Hotel in Ascot, brought together 40 senior‑level specialists from across the globe for in‑depth, Chatham House‑style discussions focused exclusively on sanctions disputes.

The Circle provided a truly collaborative space for tackling this evolving area of law, guided by the expertise of our Advisory Board: Sue Millar, Tim O’Toole, Audrey Byrne, Syed Rahman, Britt Mosman, and Till Steinvorth, who expertly shaped the agenda and steered the conversations.

SOVEREIGN & STATES LITIGATION SUMMIT USA Following on from FIRE Americas, the Sovereign & States Litigation Summit USA took place in Washington D.C., bringing together leading experts for a full day of high‑level discussions on sovereign litigation and cross‑border dispute resolution.

A special thank you goes to all our speakers for their rigor and expertise, to our advisory board, and to our event partners — Archipel, Blank Rome LLP, DEVSEC, Monfrini Bitton Klein, Sigma7 Alaco, and Sequor Law — for their invaluable support in bringing this summit to life.

THE FAMILY BUSINESS DISPUTES FORUM 2025 The Family Business Disputes Forum 2025, held at One Whitehall Place, officially welcomed the Disputes community for a full day of engaging discussion on the unique challenges facing family‑run enterprises.

The Forum provided a valuable platform for debate, collaboration, and practical guidance, with contributions from leading practitioners and experts across the sector.

A special thank you goes to our chair Juliet Schalker, our Knowledge Partner BDO, and all speakers and participants for making the day such a success.

2ND ANNUAL INTERNATIONAL ARBITRATION AND ENFORCEMENT FORUM 2025 The 2nd Annual International Arbitration and Enforcement Forum 2025, held at Carpenters’ Hall, brought together leading practitioners and experts for a full day of lively and thoughtful discussion on the evolving arbitration and enforcement landscape.

The Forum provided a valuable platform for debate, collaboration, and forward‑looking insights, with contributions from distinguished speakers across the international arbitration community.

A special thank you goes to our chairs, Emiko Singh and Alejandro I Garcia, our Event Partner Deminor, and all attendees for making the day such a success.

3

ThoughtLeaders4 Disputes Magazine • ISSUE 19

5TH ANNUAL UK CLASS ACTIONS FORUM The 5th Annual UK Class Actions Forum brought together leading practitioners, experts, and stakeholders for two dynamic days of discussion on the evolving UK group litigation and class actions landscape.

A huge thank you to all attendees and to our Event Partners — The Brattle Group, BRG, Cornerstone Research, CT Group, Economic Insight, Epiq, Finch Dispute Resolution, Morgan & Morgan, P.A., and Verita — for their support in making this year’s Forum such a success.

THE EUROPEAN ESG LITIGATION FORUM The European ESG Litigation Forum, hosted at the Hôtel Mövenpick in Amsterdam, brought together leading practitioners and experts for a full day of insightful debate on the fast‑changing ESG disputes landscape across Europe.

Special thanks go to our panellists and chairs — Julia Grothaus, Frank Peters, Iria Calviño, and Tom Van Dyck — for guiding the conversations with balance and clarity, and to our Event Partner, Cornerstone Research, for their support.

TL4 X DRD WHEN FRAUD STRIKES: NAVIGATING INVESTIGATIONS, SCRUTINY & REPUTATION RISK We had a fantastic turnout at 7BR for our “TL4 x DRD When Fraud Strikes: Navigating Investigations, Scrutiny & Reputation Risk” breakfast briefing.

The session brought together a full room of practitioners for a lively and insightful discussion over coffee and croissants. Our thanks go to Steve Holt, Lawrence Dore, Kathryn Karssiens, Barry Coffey, and Vittoria Trigilio for sharing their expertise, as well as to everyone who joined us and contributed to the conversation.

4

Upcoming Events Corporate Disputes 2025 - 5th Annual Forum 2 December 2025 | Hyatt Regency, London, UK European Litigation Funding Circle 21 - 23 January 2026 | Auberge du Jeu de Paume, Chantilly, France Sovereign & States Disputes and Enforcement Summit 2026 5 - 6 February 2026 | Plaisterers' Hall, London, UK The ESG Litigation Summit 2026 - The 4th Annual 12 March 2026 | One Great George Street, London, UK The Anti-Bribery & Corruption Forum 2026 - 3rd Annual 21 April 2026 | The Dilly, Central London Middle East Disputes Forum 2026 22 April 2026 | Venue TBC, Dubai UK Class Actions Circle 23 - 24 April 2026 | Venue TBC, UK Shareholder & Securities Disputes 2026 - The 2nd Annual Forum 28 April 2026 | Central London Sovereign & States Disputes & Enforcement Circle 11 - 12 June 2026 | Venue TBC, UK Corporate Disputes Circle 26 - 26 June 2026 | Venue TBC, UK European Collective Redress Circle 2 - 4 September 2026 | Grande Real Villa Itália Hotel & Spa, Lisbon, Portugal Shareholder Disputes Circle 24 - 25 September 2026 | Venue TBC, UK

For Partnership enquiries please contact Ben Jobson on +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

RESOURCE NATIONALISATION AND THE NEW BATTLEGROUND OF INVESTOR–STATE DISPUTES:

LESSONS FROM ORANO AND BEYOND Authored by: Dina Hudson (Lead Consultant) - Byfield Consultancy Investor-state arbitration has long been the forum for disputes arising from state measures against foreign investors.

Yet in today’s geopolitical landscape, disputes over natural resources are no longer confined to tribunals in Paris, London, Washington, or The Hague.

They unfold simultaneously in the public sphere: in media narratives, political discourse, and capital markets.

Nowhere is this currently clearer than in Niger, where French nuclear energy group Orano faces the nationalisation of SOMAIR, a uranium mine it has operated for decades. The legal issues are familiar: questions of unlawful expropriation, breaches of bilateral investment treaties, and compensation attached to upholding the international Rule of Law. But the reputational and geopolitical dynamics are equally important. For Orano, as for many investors in politically sensitive jurisdictions, the outcome will be determined by more than the arbitral award. It will also be determined by how effectively it communicates its position to multiple audiences.

The Orano–Niger Dispute In June 2025, Niger’s military government announced it would nationalise SOMAIR, one of the country’s most important uranium mines and a cornerstone of Orano’s global supply chain. The decision came less than two years after Niger’s July 2023 coup, which toppled a pro-Western government and aligned the country more closely with Russia and other nonWestern partners.

Orano’s response was swift. The company characterised the move as unlawful and in breach of established agreements. It framed the dispute as a test of the international Rule of Law and the sanctity of investment protections – significantly more than a corporate grievance. With France still deriving around 70% of its electricity from nuclear power, and Niger historically a key supplier, the stakes actually extend beyond corporate profit to questions of European energy security.

Orano must therefore mobilise political and institutional support in a context of increased tensions with Niger. The arbitration procedure is not limited to a legal dispute: it is part of a broader debate on French energy sovereignty and France’s place in Africa.

The case has already attracted significant media attention. Coverage has of course examined the legalities but has also set the dispute against a wider narrative of African sovereignty, resource nationalism, and geopolitical realignment. For Orano, controlling the narrative - presenting itself as a reliable partner unfairly targeted, rather than as a relic of colonial exploitation - is as critical as its legal filings.

The company must anticipate the reactions of elected officials, particularly those involved in issues of decolonisation or energy transition, who may criticise its handling of the crisis. Finally, in a sector as strategic as nuclear power, Orano cannot afford to lose the trust of regulators or industrial partners (such as EDF), who depend on its uranium supply.

6

ThoughtLeaders4 Disputes Magazine • ISSUE 19 found themselves needing to manage both the tribunal process and their reputation as investors in the country.

In each case, legal filings were only part of the battle. Media coverage and political alliances that influenced public sentiment shaped outcomes long before arbitral awards were delivered.

A Broader Trend of Resource Nationalisation While Niger’s case is headline-grabbing, it is far from isolated. A broader trend of resource nationalism has been reshaping the investment landscape for years: • Venezuela (2000s–2010s): Dozens of oil companies faced expropriation under Hugo Chávez’s government.

While many secured arbitral awards, enforcement has been slow and politically fraught. Some companies, such as ConocoPhillips, have spent years chasing compensation through enforcement actions in third countries.

Reputationally, companies were often cast in hostile domestic narratives as exploitative outsiders.

• Tanzania (2017 onwards): The government imposed sweeping new laws increasing royalties and giving it the power to renegotiate existing contracts. Acacia Mining, a subsidiary of Barrick Gold, faced an export ban and tax claims running into the billions. The company’s reputation was battered locally, accused of tax evasion and environmental harm, before eventually reaching a settlement that included a large payout and ceding a stake to the state.

• Zambia (2019–2021): The government placed Konkola Copper Mines, owned by Vedanta Resources, into provisional liquidation, citing environmental and operational concerns. The dispute quickly escalated into arbitration. Meanwhile, public messaging from the Zambian government portrayed Vedanta as failing to deliver benefits to Zambians, fuelling a reputational crisis that ultimately shaped negotiations.

• Kazakhstan (2009 onwards): Disputes over oil projects such as Kashagan saw the government leverage environmental fines and contractual claims to extract concessions. Western oil majors

Legal vs Reputational Stakes From a strictly legal perspective, arbitration provides answers to narrow questions: Was there unlawful expropriation? Was fair and equitable treatment breached? Is compensation owed, and how much?

But from a practical perspective, these awards often arrive years later and may face enforcement challenges.

In the meantime, reputational and political outcomes harden. Investors may withdraw. Financial markets may downgrade sovereign credit ratings.

Policymakers in Washington, Brussels, or Beijing may re-evaluate their engagement with a jurisdiction.

For Orano, by way of example, this means the dispute is about more than whether an arbitral tribunal in a few years’ time finds that Niger acted unlawfully. It is about whether, during those years, Orano can maintain investor confidence, preserve political support in Europe, and resist being cast as an emblem of exploitative foreign influence.

Stakeholder Reassurance Investors, employees, and partners need to hear that the company has a plan. Transparent, disciplined messaging provides reassurance and avoids speculation that can drive financial or operational instability.

Geopolitical Alignment Legal arguments about expropriation or treaty breaches do not easily translate into political talking points.

Communications advisers help render them in terms that resonate with policymakers: contractual stability, fairness, energy security, or climate transition. For Orano, the link to Europe’s decarbonisation agenda could be particularly important.

Countering Misinformation Disputes in fragile states often attract disinformation campaigns. In Niger, narratives painting Orano as a neocolonial exploiter are already circulating. Anticipating and rebutting these narratives with factual, accessible communications in in the markers that matter to their business continuity is critical.

Local Sensitivities Global consistency must be balanced with local nuance. Messaging that plays well in Paris or Brussels may come across as paternalistic or inflammatory in Niamey. Tailoring communications to local audiences - while maintaining the core narrative - is essential. That is where it is critical to have a centrally coordinated “global” strategy with both, critically, language and cultural nuance at its core.

Why Communications Strategy Is Critical Narrative Control Governments have a structural advantage: they can present their actions as exercises of sovereignty, or national development and subsequent justice. Companies must proactively counter this by framing disputes as breaches of legal commitments that undermine predictability and fairness in parallel advocacy, reinforcing the legal case in the court of public opinion.

Practical Advice for Legal Teams For lawyers advising clients in resource nationalisation disputes, several lessons emerge. The first is the importance of integrating communications from the outset. Too often, communications are treated as an afterthought, bolted on once proceedings are already

7

ThoughtLeaders4 Disputes Magazine • ISSUE 19 underway. In reality, stakeholder perceptions begin forming the moment an issue arises or the dispute becomes public, and if left unaddressed they can harden into damaging narratives long before the first procedural hearing.

Equally vital is audience mapping.

Disputes of this type span multiple jurisdictions and constituencies: what is said in Paris, Brussels or Washington will land differently from how it is received in Niamey, Lusaka or Caracas.

Each requires a tailored strategy, but coherence of message across these audiences is essential to preserve credibility.

Litigation milestones provide another anchor for communications. The filing of claims, jurisdictional challenges, interim orders and hearings all create moments of heightened interest. If handled carefully, these procedural steps can be used to reinforce a company’s narrative externally and demonstrate that it is both confident in its legal position and sensitive to the broader political context.

Alongside this, it is important to work with communications advisors who are fully aware of the legal sensitivities of publicity around proceedings, including privilege. External messaging must always be aligned with legal strategy to ensure that communications do not inadvertently prejudice the case or waive confidentiality. A disciplined process for coordinating between lawyers and communications advisers is critical.

A legal victory years from now could prove Pyrrhic if reputational damage has already undermined the company’s position.

This is the broader lesson of Venezuela, Tanzania, Zambia, and now Niger: litigation without communications is a half-built strategy.

Conclusion Resource nationalisation disputes are at the frontier of international arbitration. They are also at the frontier of reputational risk. For companies like Orano, legal strategy and communications strategy must be integrated from the outset. For lawyers advising in this space, recognising that advocacy extends beyond the tribunal is essential.

As governments continue to test the limits of sovereignty over natural resources, those who can combine legal rigour with strategic communications will be best placed to prevail both in law and in preserving reputation, investor confidence, and long-term viability.

Finally, lawyers must encourage clients to think long-term. Arbitrations take years, sometimes decades, to reach final resolution. Communications strategies must therefore be sustainable and adaptable to shifting geopolitical dynamics.

Beyond The Courtroom The tribunal will eventually decide Orano’s claims. But reputational outcomes will be shaped much earlier, largely by media narratives that will influence investor perceptions, and diplomatic positioning.

8

Byfield – Protecting your Reputation in the Court of Public Opinion When a client is involved in a dispute or investigation, managing public and stakeholder interest is critical.

We are specialists in Disputes & Investigations communications. Our team is instructed by claimants and defendants in high profile domestic and international cases across a wide range of business sectors. Clients call on Byfield’s specialist expertise to support their legal strategy, or to provide alternative solutions that help them achieve their objectives.

byfieldconsultancy.com T: +44 (0)20 7092 3999 info@byfieldconsultancy.com

The ESG Litigation Summit - The 4th Annual 12 March 2026 One Great Ge³r e Street

The Only Litigation Forum in the UK Dedicated to ESG Issues.

For partnership enquiries, please contact Ben Jobson on +44 (0) 20 3059 9525 or email Ben.Jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

UK FACES ITS FIRST ICSID CLAIM WHAT DOES IT MEAN FOR CLIMATE POLICY IN THE UK? Authored by: Nicola Sharp (Legal Director) - Rahman Ravelli

Nicola Sharp explores the shift in investor-state arbitrations in developed economies. As climate policy clashes with preagreed projects, what does this mean for the UK’s energy transition?

The UK is facing its first investor-state claim under the International Centre for the Settlement of Investment Disputes (ICSID).

It is significant because it highlights a conflict between the UK’s policy to transition towards greener climate policies, and upholding previouslyagreed contracts with investors.

On one hand, if the UK government is serious about pursuing its net zero targets, it may have to renege on contracts that support energy from fossil fuels. On the other hand, the consequence of those recissions

could be significant time and cost in taxpayers’ money spent on investorstate arbitrations.

The Dispute The claim was filed in August 2025 under the 1976 UK-Singapore Bilateral Investment Treaty, which contains a Investor-State Dispute Settlement clause.

granted planning permission for the project to go ahead. However, in 2024, the High Court quashed the approval, due to deficiencies in the government’s assessment of the scope 3 emissions from the project. After that, planning approval was revoked.

The claimants are: (i) Woodhouse Investment Pte Ltd, a Singaporean company and the major investor, and (ii) West Cumbria Mining (Holdings) Ltd. They say that the revocation of planning approval breaches the UK’s obligations under the Bilateral Investment Treaty.

At the centre of the dispute is a proposed coking mine near Whitehaven, called the Woodhouse Colliery. In 2022, the government

11

ThoughtLeaders4 Disputes Magazine • ISSUE 19

Climate Considerations The Woodhouse Colliery was controversial and climate activists had spoken out against it when planning approval was first granted. The project planned to extract coking coal from under the Irish Sea for 25 years.

Many people deemed this approval to be in direct conflict with the UK’s policy to move towards greener energy.

Further, the UK has legally binding targets for Net Zero which are enshrined in the Climate Change Act 2008, and it has international commitments under the Paris Agreement.

It was said that the Woodhouse Colliery project would be incompatible with these targets.

Rise In ICSID Claims Against Developed Economies

While countries move towards greener energy, there may be a rise in these sorts of claims against advanced economies. The main problem with these disputes is the financial burden on states. Investor-state arbitration is notoriously expensive in terms of legal fees, arbitrator fees, and in the level of damages that could be payable. That’s tax-payer money going towards funding these arbitrations.

The ICSID has been in existence since 1960, so it is significant that this is the first claim against the UK. The reason the UK and other developed economies have previously avoided claims against them is that there is generally a robust legal system and rule of law to protect investors in these countries.

The ICSID was set up to encourage investment into less developed nations.

It acts as a safety net to give investors confidence that there is legal recourse if their investment projects are revoked by changes or instability within the state.

However, developed nations are under increasing pressure to move towards greener sources of energy and comply with Net Zero targets. That means that investments, especially in energy infrastructure, could be vulnerable to policy changes.

There have been a number of disputes like this, which centre around the energy transition. For example, Spain, Italy, and the Netherland have all faced claims under the Energy Charter Treaty.

Is There An Option For Reform?

With this dispute in mind, the government may face pressure to remove investorstate dispute settlement clauses from its Bilateral Investment Treaties. However, this may be difficult to do retrospectively.

It may require renegotiation of the Bilateral Investment Treaty, or withdrawing from multinational treaties like the Energy Charter Treaty.

The EU has considered reforming its investor-state dispute settlement clauses for a number of years. Many of the EU’s trade and investment agreements with international partners now seek to establish Investment Court Systems, rather than the traditional investor-state dispute settlement clauses.

To deal with climate concerns specifically, the EU has pushed to modernise the Energy Charter Treaty to make it compatible with commitments under the Paris Agreement. There is now a flexibility mechanism under the ECT which means that protections for existing investments in fossil fuels would be phased out after 10 years from the entry into force of the updated ECT. Future investments in fossil fuels would no longer be protected.

These amendments were approved in December 2024 and are expected to come into force in 2025.

12

ThoughtLeaders4 Disputes Magazine • ISSUE 19

60 SECONDS WITH...

VIKTOR KOLEDA SENIOR ASSOCIATE

DRD PARTNERSHIP

hat was your biggest professional W highlight of 2025? pending more time on what we’ve S started calling “frontier risk” mandates where misinformation and sophisticated malicious campaigns collide with high-value disputes. There are no precedents or neat playbooks in those situations, you are designing the response live and testing assumptions as you go. Under such external pressures, strategic communications are placed right at the centre of the client’s approach and often have to take a lead when things move at extreme pace.

Helping clients through novel problems alongside stellar legal teams who are willing to blend the best of traditional practice with genuinely forward-thinking strategies has been immensely satisfying. hich development in cross-border W disputes this year stood out to you the most? rom a communications perspective, it F has been the way narratives are engineered and exported across borders to serve the strategy of a dispute. We are used to seeing proceedings in a relatively non-core jurisdiction suddenly destabilise an entire business portfolio, but this year that practice has clearly intensified and professionalised. The encouraging development is that more clients and their advisers now treat the risk of migrating synthetic narratives as a core strategic factor, thinking much harder about how positions taken in one forum will be re-told, reframed and occasionally weaponised elsewhere. hat was the most challenging issue W you faced in 2025, and how did you tackle it? he toughest matters have involved T entrenched echo chambers - tightly knit online communities using a live dispute as fresh fuel for long-standing grievances. Inside those spaces, any engagement is really about fuelling the fire of existing narratives rather than discovering facts, so a standard corporate rebuttal naturally falls on deaf ears. Whereas in the past these dynamics were mostly confined to

explicitly political topics, today purely commercial disputes are routinely dragged into activist conversations.

The instinct is to chase every rumour and every thread, but instead we encourage clients to map the ecosystem properly, accept that some audiences are effectively closed, and concentrate on stakeholders that matter and whose minds you can still change. Picking your battles and pursuing calm, factual, narrowly targeted communication is usually far more effective than charging into hostile territory. ooking back, which case, deal, or L project gave you the greatest sense of achievement? shareholder activism campaign I ran A with my colleague Kate Miller - in a very compressed timeframe, we persuaded three leading proxy advisers to change their recommendations ahead of an EGM. We had to operate with real precision, in a highly regulated environment and amid a contentious proxy fight. Seeing large and often slow-moving institutions revise their guidance on the eve of a major vote felt like the best possible public endorsement of the client’s arguments. hat trend in international disputes W are you glad to see emerge this year?

I n March, I had the privilege of attending Nairobi Arbitration Week alongside my colleague Claire Davidson, where we presented our thesis on viewing arbitration and enforcement as part of a client’s wider strategic ecosystem, not as a sealed legal process. It was encouraging how strongly this resonated with practitioners across the African continent and beyond, who recognise that supposedly “confidential” arbitrations regularly spill into public crises, political narratives and operational disruption. I’m glad to see a growing consensus that major arbitrations are strategic events with reputational, financial and organisational consequences - and that they need to be led, sequenced and communicated with that in mind, not just argued brilliantly on the law behind closed doors.

hich lesson from 2025 do you think W will be most valuable going into 2026? hat our communications environment is T fragmented and decentralised in ways that directly influence how disputes unfold. You can’t rely on legacy media as your principal message carrier, or assume you’ll be offered a right to reply, or that legal privilege and confidentiality will hold in practice. Advising clients this year in relation to Substack essays that gained real traction, YouTube commentators with millions of followers and interventions from a certain social media platform owner have underlined how quickly those channels can set the frame for regulators, investors and traditional media. hat are you most looking forward to W professionally in 2026? eing brought in earlier on the difficult B international matters. The most rewarding work is when good advice genuinely changes what happens next, so the ideal place for an adviser is when clients are still choosing their course helping them make decisions that are defensible on the facts, true to their values and resilient in the information environment. Beyond that, one of the real pleasures of this sector is the exposure to brilliant people across different industries and disciplines, so I’m very much looking forward to more collaborations where I get to learn from the best. ny personal or professional A resolutions for 2026? o retain the curiosity and headspace to T think creatively even when the stakes are high.

I f you could sum up 2025 in one word, what would it be and why?

Endurance (I did my first triathlon).

13

Regulatory investigations, large-scale commercial disputes involving corporate wrongdoing, reputational issues, corporate liability and multi-jurisdictional enforcement. Asset recovery, internal investigations and compliance.

Discreet, bespoke and expert legal representation for corporates, senior business individuals and professionals in London, the UK and worldwide.

+44 (0)203 947 1539 www.rahmanravelli.co.uk “Fresh and fearless in their thinking.

They know their cases inside out.”

The Chambers UK Guide

"A genuine powerhouse in the field of crime and fraud."

The Legal 500

ThoughtLeaders4 Disputes Magazine • ISSUE 19

FROM REACTIVE DEFENCE TO PROACTIVE DIGITAL READINESS FOR IN-HOUSE COUNSEL

AI’S NEW FRONTIER:

Authored by: John Hays (Managing Director) - Ankura

Navigating Corporate Risk and Mass Claims Events The modern enterprise operates under a constant and growing threat of mass claims, class actions, and group litigation events. For corporate counsel, the traditional battleground of the courtroom is increasingly shifting to the data room, demanding not just legal acumen but unprecedented speed and accuracy in data management. This article is the third in a series exploring the practical application of artificial intelligence (AI) within the class action and mass claims context, focusing now on the unique mandate of the in-house legal function.

Corporate counsel’s primary role is protecting the enterprise, maintaining business continuity, and preserving shareholder value. This necessitates moving beyond simply supporting external defence counsel to establishing proactive risk management and implementing a rapid, intelligent

incident response plan. AI, particularly large language models (LLMs), is the essential internal operating system for legal and compliance teams to identify, contain, and quantify risk before a claim is filed or a regulator steps in.

Proactive AI: Monitoring Compliance and Anticipating the Event The most valuable application of AI is in prevention. Global regulatory landscapes are complex, dynamic, and non-static. Reliance on traditional auditing—periodic sampling of data and

manual policy checks—is insufficient for the massive, real-time data flows generated by a modern enterprise.

Continuous Compliance Monitoring AI offers the first viable solution for continuous compliance monitoring.

LLMs can be trained on proprietary policy guidelines, regulatory circulars, and historical risk events. Once trained, they can be deployed to constantly review colossal volumes of internal unstructured data—emails, Slack and Teams chats, contract drafts, and internal reports.

15

ThoughtLeaders4 Disputes Magazine • ISSUE 19 This process enables the AI to identify conversational anomalies and potential risk indicators that a human might miss.

For example, AI can spot patterns suggesting systemic failure, such as widespread internal discussions about data handling errors, consistent failure to follow a product quality control step, or potential anti-competitive practices.

This creates an “always-on” diligence system, uncovering systemic issues or “red flags” long before they escalate into public breaches or regulatory actions.

E-Disclosure Readiness Proactive AI also simplifies a defensive posture. AI builds e-disclosure readiness by ensuring that internal data is consistently classified, tagged, and stored with future litigation or regulatory hold needs in mind. This foundational data hygiene dramatically reduces the time and cost associated with collecting and reviewing documents once a formal legal matter begins.

AI-Powered Incident Triage and Response When an issue is discovered— whether it is a cyber incident, a critical product defect report, or an internal whistleblower complaint—the speed and accuracy of the initial 72-hour response window often determine the outcome of the ensuing litigation or regulatory action. This critical window, widely recognized in crisis management, is paramount for regulatory notification and containment.

Rapid RCA and Triage Traditional incident response relies on manually piecing together events from fragmented systems, a process that can take weeks. AI accelerates the Root Cause Analysis (RCA) and triage phase.

For a data breach, AI can be immediately deployed to scan millions of log files, network traffic data, and structured records. It can quickly pinpoint the exact scope of the incident: which systems were compromised, what specific data

fields (e.g., names, addresses, financial details) were accessed, and who, specifically, was impacted.

Similarly, for product liability or consumer protection issues, AIpowered e-discovery tools can instantly search, filter, and prioritise documents based on contextual relevance, establishing a clear timeline of events and initial liability facts. By automating the data synthesis and analysis, AI can significantly shorten the initial investigative phase, enabling counsel to advise leadership and regulators with confidence and agility.

Quantifying the Scale of Liability and Customer Impact Once an event is confirmed, corporate counsel must answer two critical, immediate questions for the C-Suite: “Who is affected?” and “What is the financial exposure?”

Identifying the Affected Population To manage a potential mass claims event, counsel must precisely define the universe of affected customers or parties. AI provides a defensible, auditable method for making this determination. Artificial Intelligence (AI) models can cross-reference, reconcile, and validate data across disparate internal systems, including customer relationship management (CRM) databases, transaction histories, customer service logs, and warranty records. This results in an accurate list of those affected, which is essential for proper victim notification, remediation efforts, and managing the intake of claimants should a class action ensue.

modeling scenarios. It can ingest data points ranging from historical regulatory penalties for similar incidents to past litigation settlement values and the company’s own transaction volumes.

These predictive models can assist counsel in providing a data-driven range for potential regulatory fines, legal damages, and remediation costs. Crucially, this AI-assisted early quantification gives the company greater control over the narrative, informs negotiations with insurers, and allows counsel to enter discussions with regulators or potential litigation funders with a clear, defensible understanding of their maximum exposure.

Conclusion: Building the Resilient Legal Function AI shifts the in-house legal function from being viewed as a reactive cost centre to a proactive risk guardian. The true value of this technology lies in creating digital readiness—the capability to identify, contain, and scope enterprise risk faster and more accurately than ever before.

In a global environment where legal and regulatory pressures are accelerating, this agility is non-negotiable. Corporate counsel must recognise that AI is not an auxiliary tool; it is a core competency.

By developing AI-enabled workflows with their internal teams and integrating AI into every stage of the risk-lifecycle, they ensure the entire organisation is well defended and digitally prepared for a mass claim event. Investing in this capability now is the only way to meet the speed and scale of the modern mass claims and litigation environment.

Preliminary Liability Quantification For financial provisioning and disclosure purposes, the C-Suite needs a rapid, defensible estimate of financial exposure. AI is ideally suited for

16

Sovereign & States Disputes and Enforcement Summit 2026 5-6 February 2026 Plaisterers' Hall

Uniquely bringing the Sovereign Disputes and FIRE communities together to address the latest in Sovereign & States Disputes and Enforcement.

For Partnership enquiries please contact Ben Jobson on +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

WALKING THE TIGHTROPE: ENGLISH COURTS’ APPROACH TO STATE IMMUNITY

Authored by: Claire Irwin (Partner), Joseph Bentley (Counsel), Leone Astolfi (Associate) – Norton Rose Fulbright State immunity is a doctrine of public international law that limits a party’s ability to sue or enforce against a State in a foreign forum. It can be a key obstacle to the enforcement of arbitral awards against States. The UK enshrines this doctrine in the State Immunity Act 1978 (SIA) and adopts a ‘restrictive approach’ in which States and their property enjoy immunity from suit and enforcement1 unless one of the exceptions in the SIA applies. State immunity is an increasingly topical issue for courts around the world: as States become more active in commerce and scepticism about investor-state arbitration grows, efforts to resist enforcement are more commonplace.

In this article, we examine three very recent English Court decisions which highlight the tightrope that courts must walk when balancing national laws and a pro-enforcement attitude with principles of comity and the doctrine of State immunity.

lifted so the English Court of Appeal could determine whether Russia had immunity from suit under the SIA.

Hulley Enterprises Ltd & Ors v The Russian Federation [2025] EWCA Civ 108 This case concerns Russia’s challenge to enforcement of the infamous “Yukos” award in England. A stay, in place pending the outcome of equivalent action before the Dutch courts, was

The key question was whether the arbitration exception in s.9 SIA applied and, in circumstances where the Dutch court had already found that an arbitration agreement did exist, whether Russia was estopped from re-litigating the issue in England.

The English Court of Appeal held that, where questions of State immunity arise, the English courts must give effect to the SIA by applying substantive rules of English law, which includes issue estoppel.2 Therefore, because the

1 There are two broad categories of immunity: (1) immunity from suit; and (2) immunity from enforcement. Immunity from suit concerns whether the court or arbitral tribunal has the power to adjudicate the dispute whereas immunity from enforcement concerns whether the court has power to enforce a judgment or arbitral award and to execute against assets of the State.

2 Issue estoppel is the doctrine preventing a party from disputing an issue that forms a necessary ingredient in a cause of action and has already been determined in prior proceedings, where the issue is common to both sets of proceedings and subject to final determination in the previous proceedings

18

ThoughtLeaders4 Disputes Magazine • ISSUE 19 Dutch court had already determined that there was a valid arbitration agreement, s. 9 SIA applied and Russia had effectively waived immunity from suit.

respect owed to the courts exercising jurisdiction in the country of the venue chosen by the parties for their arbitration.

JSC DTEK Krymenergo v The Russian Federation [2025] EWHC 1060 (Comm)

General Dynamics United Kingdom Ltd v State of Libya [2025] EWCA Civ 134

In this case, JSC DTEK Krymenergo (JSC) obtained permission to enforce an award in England following an arbitration concerning alleged breaches of the Russia-Ukraine BIT. Russia applied to the Dutch courts (the court of the seat) to annul the award on the basis that the tribunal did not have jurisdiction and concurrently also challenged enforcement in the English courts on the grounds of State immunity.

This case relates to General Dynamics’ attempt to enforce an ICC arbitral award against Libya. Libya applied to discharge a High Court charging order over real estate it owned on the grounds of immunity from execution under s.

13 SIA. The High Court dismissed the application because Libya had waived immunity from execution as a result of the language in the arbitration agreement: “Both parties agree that the decision of the arbitration panel shall be final, binding and wholly enforceable”.

The English Court granted a stay of proceedings pending the outcome of the Dutch proceedings because: 1. if not granted, it would allow “two horses to be running” leading to a risk of inconsistent Dutch and English court judgments. JSC had chosen to start the arbitration and the Court favoured allowing that process to run its course prior to determination by the English courts.

2. Russia’s arguments that the award was invalid had some prospects of success.

3. Whilst potential delay due to the Dutch proceedings was a “very significant factor”, the Court did not consider the commencement of parallel Dutch proceedings to be merely a strategy to maximise delay because the issues before the courts were different (albeit with some overlap). This would only be the case if Russia’s arguments before the Dutch courts had no merit.

4. Relying on IPCO (Nigeria) Ltd v Nigerian National Petroleum Corp, the Court clarified that proenforcement assumptions can sometimes be outweighed by the

agreement but came to the same conclusion. LJ Phillips held that the wording of the arbitration agreement was to be read in conjunction with the ICC Arbitration Rules, incorporated by the arbitration agreement, which provide that the parties agreed to “carry out any award without delay”. This amounted to a waiver of execution by immunity. LJ Lewison instead noted that the parties had agreed to arbitrate their proceedings under a Swiss law contract so English principles of contractual interpretation did not apply. LJ Lewison found that on a “straightforward reading” of the arbitration agreement, the parties had agreed that any award could be enforced and therefore Libya had provided written consent to execution against its assets.

Libya appealed the High Court’s decision on waiver of immunity from execution on the grounds that (1) “clear” or “express” words are required for a State to give valid written consent to execute against its property under s. 13(3) SIA, and (2) the phrase “wholly enforceable” in the arbitration agreement was insufficient to waive immunity from execution and only applied to waive immunity from suit.

The Court of Appeal dismissed the appeal: 1. There is no requirement in the SIA for the State to have provided consent with “clear words”. The Court will consider the extent to which the State expressed its written consent by the words it used (construing the words according to the applicable law). As the Court would not imply consent without a clear and unequivocal expression of intent, there was no need to impose a requirement of “clear words”.

2. Libya provided written consent to execution. The Lord Justices took different approaches to the construction of the arbitration

19

Lawyers at the cutting edge of creative litigation, acting on high value claims, trained to resolve disputes innovatively and efficiently

For more information please contact: NOEL CAMPBELL Partner, Hong Kong T +852 3983 7757 E noel.campbell@hfw.com

BRIAN PERROTT Partner, London T +44 (0)20 7264 8184 E brian.perrott@hfw.com

ANDREW WILLIAMS Partner, London T +44 (0)20 7264 8364 E andrew.williams@hfw.com

NICOLA GARE Professional Support Lawyer, London T +44 (0)20 7264 8158 E nicola.gare@hfw.com

hfw.com Americas | Europe | Middle East | Asia Pacific

CORPORATE DISPUTES TH - 5 ANNUAL FORUM 2 December 2 2 Hyatt Regency London The Churchill

The Only Forum Dedicated to Corporate Disputes.

For partnership enquiries, please reach out to Ben Jobson at +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

COMPENSATION DISPUTES UNDER THE DATA ACT – HOW TO PREPARE FOR TERRA INCOGNITA Authored by: Dominik Huebler (Director) & Lucas Skrabal (Research Officer) - NERA

Background In 2023, the European Commission (EC) introduced the Data Act, effective since September 2025, to improve the access that users of connected products and related services as well as third parties enjoy to the data generated by such devices.1 This move turns data into an access-regulated product not dissimilar to e.g. power grids and certain essential patents. The EC expects the implementation of the Data Act to create additional GDP in the vicinity of EUR 270 billion by 2028.2 Delivering the estimated GDP boost requires data to become available to access seekers without undermining

incentives by device producers to continue to invest in the development of their products. Our 20-year experience working on access regulation in “traditional” regulated sectors (power, gas and telecoms) and more recent (vehicle) data access cases under EU Regulation 2018/858 has shown a fine balance between removing barriers to access while not undermining incentives to invest in the necessary infrastructure. Unsurprisingly, the “price” (compensation in Data Act parlance) at which access is granted is a critical component of whether access regulation succeeds at unlocking its benefits.3

The Data Act states that “any compensation […] for making data available shall be non-discriminatory and reasonable” (Art 9.1). Reasonable compensation is envisioned to consist of:4 i) costs incurred in making data available, e.g. technical costs for data reproduction, dissemination and storage but not costs for data collection or production; and ii) a margin which may vary depending on factors related to the data itself (e.g. volume, format or nature of data).5 Below, we look at some of the available methods and some of the challenges associated with applying these methods to the nascent data market.

1 A „data holder“ is referred to as a natural or legal person that has the right to use and make available data that fall under the Data Act. A „user“ is referred to as a natural or legal person that owns a connected product or has rights to use it, or that receives related services. A „data recipient“ is referred to as a natural or legal person other than the user to whom the data holder makes data available. For the full definitions under the Data Act please refer to Regulation (EU) 2023/2854, Article 2. We refer to “data recipients” as “recipients” in this article.

2 See European Commission (23 February 2022), Data Act: Commission proposes measures for a fair and innovative data economy. URL: https://ec.europa.eu/commission/ presscorner/detail/en/ip_22_1113. Visited on 9 October 2025.

3 Note that a compensation for data access is only foreseen when sharing data with a third party recipient, the user has access rights without having to pay any compensation. See Regulation (EU) 2023/2854, Article 4 (1).

4 See Regulation (EU) 2023/2854, Recital 47.

5 A margin may not be included in the compensation when charging SMEs or not-for-profit research organisations. See Regulation (EU) 2023/2854, Article 9 (4).

22

ThoughtLeaders4 Disputes Magazine • ISSUE 19 regular application across damages / compensation cases e.g. in IP and cartel disputes.

Approaches To Determining Compensation From an economic perspective, costs incurred in making the data available represent the (short-run) marginal cost to data holders. Compensation of marginal costs is the minimum requirement for the data holder to be able to cover its short-run costs but is not sufficient to uphold incentives to invest in any data generating infrastructure that would not be built up for the manufacturer’s own needs anyway. While there will inevitably be disputes about the exact calculation of these costs, the concept of recovery of these should generally be uncontroversial.

The calculation of the margin therefore presents the crucial and most likely more controversial component of reasonable compensation. Guidelines from the EC on the calculation of reasonable compensation including the margin element are foreseen in Art. 9 (5) but have yet to be published as of 10 October 2025.

Access seekers weighing what data to seek and data holders required under Art. 9 (7) to provide transparent explanations of their access charges in response to requests will therefore be required to rely on methodologies to estimate reasonable margin established in other sectors that can generally be divided into three main approaches: • Market-based approaches • Income-based approaches • Asset-based approaches Market-based approaches revolve around the premise that reasonable compensation for a product can be deducted from prices observed for “sufficiently similar” products sold on a “sufficiently competitive” market. While no two products are the same, methods like averaging across comparators or regression-based analyses that isolate individual data attributes (also known as hedonic pricing) can improve comparability. These methods find

There are two issues that limit the applicability of market-based approaches in the realm of the Data Act. First, the idea of the Data Act is to make data available to third parties that is not currently available and hence for which there is no market price by definition. Second, even if one were to find sufficiently similar transactions, these originated from a time of significant barriers to data access and generally asymmetric bargaining power, which likely causes currently observed prices to be skewed relative to a competitive market.

Income-based approaches consider the (net) revenue that will be generated by the (to be developed) product that uses the data to determine reasonable compensation and then determines compensation that “fairly” allocates such net income between the access seeker and the access provider.

Applying income-based approaches risks undermining key aims of the Data Act and is therefore not suited to identifying reasonable compensation: The application of income-based approaches requires that the data holder obtains detailed knowledge about the intended use of the requested data and the associated expected income streams generated from that use. For new ideas / products, such income is likely to be highly uncertain given that the access seeker is inevitably at an early stage of development at the time access to input data is sought. Worse still, requiring access seekers to share their use plans runs the risk of sharing an innovative idea with someone who already has access / more detailed knowledge of the data. Using the income approach would therefore likely stall any access requests by asking the data recipient to share commercially sensitive information and by putting the data holder into a privileged position to outcompete the access seeker’s commercialisation efforts on that basis.

This leaves asset-based approaches, the workhorse of classic utilities access regulation. They generally derive reasonable compensation as follows: i) evaluating the (capital) investments

necessary for the generation of the good sought (i.e. data), ii) defining an appropriate return on investment and iii) allocating the cost of the investment to different recipients (internal / external; current / future).

A study for the European Commission (2022) suggests that the margin element should take into account e.g. i) the level of processing of the data, ii) the amount of data requested, iii) the nature of the data generation (e.g. co-generated data, data as by-products of the holder’s business activity) and iv) commercial risks of sharing data in a B2B context, and v) the complementarity or substitutability of the use of the data with the data holder’s business activity.6 Most of these factors can be integrated within the asset-based approach’s three-step procedure. Specifically, the level of processing and nature of the data generation can be accounted for by recognising the necessary investments for the generation of the data (step 1).

Concerns regarding the commercial risks of sharing data in a B2B context can be addressed in the appropriate return on investment, to the extent that the data sharing contract offers risk mitigation to the data provider, e.g. longterm commitments to purchase data for several years vs. ad hoc requests (step 2). The amount of data can be accounted for by varying the share of the investments allocated to recipients (step 3). Only the use case does not determine the level of compensation under an asset-based approach applied in other industries, a feature that is consistent with the concern about the incentive incompatibility of the incomebased approach (see above).

Summary The Data Act challenges data holders to determine fair, reasonable and nondiscriminatory access terms for data they are being asked to make available. In the absence of guidance from the European Commission, data holders and access seekers looking to evaluate the economic viability of a data request can rely on methods developed elsewhere to develop terms that will eventually stand up in court. Doing so is not trivial but the bulk of experience available from other regulated sectors provides parties with tried and tested guidance on how to determine transparent access charges that can be tailored to the specific use cases under the Data Act.

6 Monti, Tombal & Graef (November 2022), Study for developing criteria for assessing “reasonable compensation” in the case of statutory data access right, section 4.2.2. URL: Study for developing criteria for assessing “reasonable compensation” in the case of statutory data access right - Publications Office of the EU.

23

“A pre-eminent set with an excellent reputation in the City” Chambers & Partners UK Bar

3VB is a leading barristers’ chambers providing specialist advocacy and advisory services worldwide in all areas of Commercial and Financial Litigation, Dispute Resolution, International Arbitration and Public International Law. – – – – – –

Banking & Finance Chancery Commercial Civil Fraud Commercial Dispute Resolution Cyber Fraud & Cryptocurrency ESG Litigation

3 Verulam Buildings Gray’s Inn, London WC1R 5NT United Kingdom

– – – – – –

Energy & Natural Resources Financial Services Group Litigation Insolvency Insurance & Reinsurance International Arbitration

T. 020 7831 8441 W. chambers@3vb.com

Please follow us on LinkedIn and Twitter

– – – –

Media & Entertainment Proceeds of Crime Professional Negligence Public International Law

ThoughtLeaders4 Disputes Magazine • ISSUE 19

THE DISTINCTIVENESS OF DIGITAL ASSETS DISPUTES Authored by: Professor Sarah Green - Newmans Row Disputes concerning digital assets are on the rise. This is inevitable, given that transactions and arrangements involving digital assets are now both commonplace and mainstream. What started as an anti-establishment concept is now powering legitimate commerce. This has a number of implications for dispute resolution.

First, and perhaps most obviously, the law in this area is not yet settled.

Whilst it has advanced considerably, and in some ways dramatically, in the last five years or so, there are still several issues that remain untested and

susceptible therefore to unpredictable outcomes. This means that those involved in dispute resolution must have an understanding of these nascent and fast-evolving rules. The effective resolution of digital assets disputes also requires a sound knowledge of, and familiarity with, the relevant technologies and their implications.

These skills, or at least the combination of them, are going to be in increasing demand in the years to come. There is currently much being said about AI and its implications for the legal profession.

The law relating to digital transactions is a far more pressing issue – at least in substantive terms.

It is not only the subject matter of tech-related disputes that differs from what has gone before. The parties to those disputes are also, in many ways, a new breed. For instance, they are often start-ups rather than established commercial players and repeat litigators. This means that not only are their resources limited, but so is their patience with traditional forms of dispute resolution. Parties whose activity occurs mainly on-chain are more likely to want their disputes to be resolved by on-chain means, and perhaps also autonomously according to coded conditions to which they have agreed in advance. Parties can, for example, incorporate into their agreements a set of resolution rules that will govern any future dispute, such as the UK Jurisdiction Taskforce’s Digital Dispute Resolution Rules - available here, or the London Chamber of Arbitration and Mediation’s Expedited Blockchain Arbitration Rules - available here. Not only is this form of dispute resolution far quicker and more efficient than traditional litigation, but it is also more in keeping with the peer-to-peer ethos

25

ThoughtLeaders4 Disputes Magazine • ISSUE 19 of the cyber commercial world, where party autonomy appears to be accorded more significance, and perhaps trust, than established and public institutions and rules. There are even resources such as Kleros - Kleros – that provide

“a decentralized online arbitration service for the new economy”.

This has important implications for alternative forms of dispute resolution, which are likely to be in greater demand as tech disputes increase in volume, in value and in global reach. Arbitration in particular offers such parties a distinct advantage in that it is possible for them to remain pseudonymous during the process; a status that many of them are used to enjoying for the purposes of their activity on-chain. Those accustomed to transacting in this way are likely to feel particularly indisposed by having to reveal their identities; a major change to their modus operandi that will obviously outlive the dispute in question.

Dispute resolution therefore requires some significant re-evaluation if it is to function effectively in the new tech economy.

Since it seems as if arbitration may well be the most popular format for this, it makes sense to give serious thought to how it can best adapt to the new issues, new rules and new party preferences and expectations. What is clear is that arbitrators will need increasingly to understand the technologies involved, the emerging legal frameworks that are applicable to them, and the particular issues to which they give rise. In disputes involving digital assets for instance, there are three questions that present particular conceptual difficulties that differ from those that arise in relation to conventional assets. These are: • What are they?

The first of these is not something that would normally give a panel much pause for thought, but digital assets are not an established category of thing in most legal systems. In fact, they are not even always regarded as a thing at all. One of the major questions that digital assets pose for legal analysis is whether they can be the object of proprietary rights; obviously a very important issue when possession of the has been interfered with, or in situations of insolvency. This question in turn affects the next; in order to establish title to digital assets, it is necessary to understand factually how they might be transferred, or appropriated, and what the legal effects of that might be. Both of these issues require a familiarity with both the factual and legal aspects of such transactions – there is here an interdependence of understanding that can make the difference between a successful and effective dispute resolution and one that is mired in difficulty and susceptible to future challenges.

There are clear practical enforcement advantages, as well as understandable sovereignty concerns in locating tangible conventional assets in a particular jurisdiction for dispute resolution purposes, but these do not obviously apply to digital assets that do not exist in such a discrete, singular and local form.

Digital asset disputes are likely to be almost as distinctive in form as the subject matter with which they are concerned. This has significant implications for all of those involved in the resolution of those disputes. It is likely to lead to new service models and institutional approaches. It is certain to make specialist arbitrators essential.

Above all, though, perhaps the most difficult challenge likely to present itself in digital asset disputes, and therefore test the mettle of an arbitrator or panel, lies in the third question identified above: Where are they? This is a relevant consideration for a number of reasons, not least for establishing the law applicable to the dispute. For the purposes of dealing with proprietary questions, reference is often made to the lex situs; the law of the place in which the relevant object of property rights is located. Where digital assets are concerned, this is potentially a very difficult question to answer: where, for example, is something that exists on a decentralized and distributed ledger located?

What is more, however, it is not even clear that this is the question that should be asked of digital assets.

• Whose are they?

• Where are they? (Shaded box)

26

ThoughtLeaders4 Disputes Magazine • ISSUE 19

THE SILENT CO-COUNSEL:

HOW AI IS FUNDAMENTALLY RESHAPING LITIGATION Authored by: Batsalya Mishra (Intern) - TrialView For years, the conversation around Artificial Intelligence (AI) in law was speculative, a future-gazing exercise about what might be. That future has arrived. Today, AI is not a distant concept but an operational reality, quietly integrating into the fabric of litigation and fundamentally altering how cases are prepared, managed, and argued. The transformation is profound, moving beyond simple automation to a new era of data-driven strategy and insight.

The legal industry, once a cautious adopter, has reached a tipping point.

This cuts across the dispute resolution world with judiciaries across the globe experimenting with technology; in Shenzhen, China, the Court of International Arbitration is exploring AI’s potential to help arbitrators analyse cases and review documents.

But the real shift is moving from experimentation to genuine, end-to-end workflow transformation. The question is no longer if AI will change legal practice, but how litigators can build the necessary foundation to harness

it responsibly and gain a decisive advantage.

From Resistance to Strategic Embrace The journey to this point has been accelerated by a confluence of factors.

The pandemic served as a forced crucible, demonstrating that remote and hybrid hearings were not just possible, but in many cases, preferable. This seismic shift in the legal world has broken down cultural resistance and accelerated the acceptance of digital tools. The legal industry moved from a posture of scepticism to a milder acceptance that manual, paper-based workflows prove unsustainable.

Simultaneously, the exponential growth of data in modern disputes has showcased the inefficiencies of traditional methods of the dispute lifecycle. Having fragmented workflows, relying on tracked changes in Word, endless email chains, and siloed documents, creates significant

operational drag. AI has emerged as the essential tool to cut through this chaos, offering a path to efficiency, clarity, and strategic depth that was previously unimaginable.

The Trifecta of AI Value: Efficiency, Insight, and Mitigation The benefits of integrating AI into litigation are now undeniable, delivering a powerful trifecta of value: 1. U nprecedented Efficiency: AI automates the high-volume, repetitive tasks that have long consumed

27

ThoughtLeaders4 Disputes Magazine • ISSUE 19 billable hours. Machine learning tools can pre-sort vast datasets for document review, finding patterns and contextually similar documents, while deprioritising irrelevant material.

In e-bundling, AI powers features like automatic date recognition, smart pagination, and de-duplication, creating court-compliant bundles in a fraction of the time and eliminating a major source of administrative error.

2. Deep Strategic Insight: This is where AI transitions from a productivity tool to a strategic partner. Through predictive analytics, firms can now move beyond guesswork. Newgeneration AI toolkits analyse historical data on case outcomes, judicial tendencies, and costs to generate evidence-based probabilities for success. This allows for earlier risk mitigation and more effective resource allocation.

F urthermore, generative AI and cognitive search are revolutionising evidence analysis. Lawyers can now interrogate their entire case database using natural language, asking complex questions and receiving specific, cited answers in seconds.

This capability enables teams to rapidly identify inconsistencies, uncover hidden connections, and build a more compelling narrative— shifting the focus from simply finding documents to understanding the story they tell.

3. Enhanced Risk Mitigation: By providing a data-driven foundation for strategy, AI reduces uncertainty.

It also mitigates operational risks.

Centralised, AI-ready platforms act as a “single source of truth”, preserving institutional knowledge and ensuring that valuable work product isn’t lost amid staff turnover or chaotic file management.

Hearing Preparation: Tools like TrialView’s AI litigation software allows for the analysis of huge data sets to sift out vital information, identify complex patterns, summarise lengthy documents, and highlight things that don’t quite match up in witness statements. These insights are instrumental in cutting down time spent on developing litigation strategies at the earliest stages. By centralising these capabilities, legal team can streamline their workflows enhancing efficiency and generating greater insights.

Legal Research: Legal research is being transformed from a foundational task into a strategic powerhouse by generative AI. This technology moves far beyond simple retrieval, capable of synthesising vast datasets of case law, court rulings, and internal case files to generate sophisticated legal briefings and conduct deep analytical reviews.

It can identify hidden patterns across thousands of past decisions, evaluate the strength of legal arguments against a specific judge’s recorded tendencies, and even forecast potential judicial questions. This provides litigators with a comprehensive, data-informed perspective at unprecedented speed, fundamentally informing case strategy from its earliest stages. The judiciary itself is harnessing this power as exhibited in VP Evans & Ors v The Commissioners for HMRC, where the Tribunal Judge utilised AI to aid the drafting process of the summary.

Though there is still a long way to go before such tools are used in the decision making process, if it ever does happen, tools that do exist are being used to rapidly digest complex case files and lengthy legal precedents, distilling them into their core elements to accelerate the administration of justice.

The Courtroom itself: The rise of the “self-serve courtroom” is here.

Evidence presentation is becoming digital, leveraging laptops and iPads in remote and hybrid settings. Platforms designed for this purpose are becoming the technological infrastructure that supports this new, flexible model of justice.

The HumanAI Partnership: Augmentation, Not Replacement A common fear is that AI will replace lawyers. The reality is more nuanced: AI is poised to augment legal expertise, acting as a force multiplier.

By automating routine tasks, AI frees highly qualified solicitors and barristers to focus on high-value strategic work, complex argumentation, and client counselling. The future may see a shift in team structures, with a smaller, more specialised cohort of legal tech consultants acting as “translators” between the software and the law.

The Inevitable Future The use of AI in litigation is quickly becoming inevitable. Clients are not only using smart tools in their own businesses but are increasingly demanding that their external counsel demonstrate how they are leveraging technology to improve services and control costs. With courts beginning to issue guidance on the use of AI, it may only be a matter of time before its use becomes a mandated standard for efficiency and compliance.

The ultimate takeaway is that the most significant advantage lies in integration.

A unified, AI-powered litigation workspace consolidates these disparate capabilities, from cognitive discovery and hearing services to intelligent e-bundling and predictive analytics, into a single, seamless environment.

This eliminates the inefficiencies of a fragmented tech stack and provides the robust foundation required for the future of law.

The game has changed. The litigators who will thrive are those who recognise that AI is no longer a silent partner in the wings, but a co-counsel at the table, empowering them to work with greater speed, collaboration, and insight than ever before.

AI in Action: The New Litigation Lifecycle The integration of AI is no longer confined to one stage of a dispute. It is permeating the entire matter lifecycle:

28

SHAREHOLDER & SECURITIES DISPUTES ND THE 2 ANNUAL FORUM 28 April 2 2 Central London

The only forum going in depth on new dynamics, effective litigation strategies, and upcoming developments for Shareholder and Securities Disputes.

For partnership enquiries, please reach out to Ben Jobson at +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

EVALUATING THE ‘FAIR VALUE’ OF SHARES: MASO CAPITAL INVESTMENTS LTD V TRINA SOLAR LTD [2025] UKPC 48 Authored by: Usman Roohani (Barrister) - 4 New Square In a unanimous judgment with implications for all share valuation disputes, the Privy Council has finally concluded a lengthy dispute over the ‘fair value’ of shares which stood to be determined by the court under the Companies Act (2016 revision) of the Cayman Islands.

The Privy Council overturned the Cayman Islands Court of Appeal’s decision, which had itself interfered with the judgment of the trial judge (Segal J), thereby restoring Segal J’s assessment of fair value. The decision is significant at two levels: first, as regards the proper approach to share valuation, which is an exercise required in many contexts and, second, as regards the principles to be applied by an appellate court to evaluative assessments undertaken by a lower court, and when (and how) an appellate court may interfere with such first-instance assessments.

Background The case arose out of the 2017 merger relating to a Chinese solar power

business. The respondents were two dissenting shareholders, forming part of a tiny minority who did not support the merger, and who held between them approximately 1.75% of the shares in Trina Solar Ltd (the “Dissenters”). Under s. 238 of the Companies Act (2016 revision) of the Cayman Islands, the Dissenters were entitled to be paid the ‘fair value’ of their shares, which was to be determined by the Grand Court in the absence of agreement.

A trial took place before Segal J on the question of fair value, involving detailed expert evidence and the crossexamination of those expert witnesses.

In his judgment, Segal J considered three valuation methodologies, being based on the merger price, the market price and a discounted cash-flow (“DCF”) approach. Segal J (i) determined the value per share on each of the methodologies and (ii) applied a weighting to each respective methodology, based on his assessment of their relative reliability, which he determined to be 45:30:25 (%), respectively.

The Court of Appeal deemed Segal J wrong to have regard to the merger price at all by reason of factors, identified by Segal J, which undermined its reliability as a valuation methodology in this case.

In consequence, the Court of Appeal directed that the 45% weighting given to the merger price be reallocated to the (much higher) DCF valuation.

30

ThoughtLeaders4 Disputes Magazine • ISSUE 19

The Privy Council’s Judgment

that Trina Solar Ltd succeeded on every ground that was decided.

In allowing the first (and principal) ground of appeal, the Privy Council held that the Court of Appeal was wrong to interfere and, moreover, wrong to criticise the approach of Segal J. When it comes to share valuation:

“Each methodology must be assessed individually to identify strengths and weaknesses which may affect its reliability as a guide to fair value.

Reliability is not in this context a binary concept in which the court must conclude that the measure in question is or is not reliable; rather it is a qualitative concept in which the court may conclude that it is more or less reliable on a sliding scale.” (At [15]).

Implications The decision will be of importance to other petitions under s. 238 of the Cayman Islands Companies Act and similar share appraisal issues in other jurisdictions. Beyond that, the issue of share valuation is one that the English courts and the courts of various offshore jurisdictions frequently grapple with across a number of contexts. The judgment in Maso Capital v Trina Solar emphasises the broad and contextdependent evaluative exercise that must be undertaken, and the proper deference that must be given to such evaluative assessments by appellate courts.

Accordingly, as “the exercise is not one simply of assessing the reliability of each methodology individually, but one of assessing comparative reliability between all of them” (at [16]), there was no basis to criticise Segal J’s approach, which was to reduce the relative weight placed on each methodology by reason of the extent to which it was deemed to be less reliable than other methodologies.

As regards the approach to be taken by an appellate court, the Privy Council emphasised that the task before Segal J was “highly case specific and highly fact dependent”, requiring not only findings of primary fact but also being “peculiarly dependent on nuanced evaluative assessments” (at [17]). Applying (and restating) the settled principles which govern how an appellate court is to approach such assessments, the Privy Council concluded that “the Court of Appeal lost sight of the advantages enjoyed by the Judge who was immersed in the sea of evidence”, finding that the Court of Appeal could not have surmounted the “high threshold” of concluding permissibly that Segal J was “plainly wrong” (at [49]).

Counsel Graham Chapman KC appeared on behalf of the successful appellant, Trina Solar Ltd, (in the Privy Council only) alongside Nick Hoffman and Luke Fraser of Harney Westwood & Riegels (Cayman) LLP as part of a larger team including Vicky Lord, Shanghai Managing Partner.

Shail Patel KC advised in relation to the grounds of appeal and the drafting of the application to appeal to the Privy Council.

The Privy Council allowed two subsidiary grounds of appeal too, on the basis of the same reasoning, meaning

31

The Witness Familiarisation Specialists Witness evidence can make or break a case. Give your clients the support they need to mitigate the risk of a poor performance at court.

Bond Solon’s team of specialists are experts in understanding the specific requirements of a case. Over the last 30 years, our essential pre-hearing service has helped over 250,000 witnesses achieve a positive outcome at the hearing stage.

Working with our clients, we create bespoke training and interactive workshops that will build witness confidence - allowing them to perform at their very best, taking chance out of the equation.

Find out how we can help you to secure a positive outcome. bondsolon.com/witness-familiarisation +44 (0)20 7549 2549

info@bondsolon.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

PUSH PAYMENT FRAUD – DERIVATIVE CLAIM AS A MEANS OF RECOVERY

Authored by: Moya Clifford (Legal Director), Kate Steele (Partner) and Jack Lewis (Associate) – Hill Dickinson As part of October’s Cybersecurity Awareness month, we look at a recent innovative case where victims of an APP Push Payment Fraud were able to recover against the payment service provider (PSP) which paid away the proceeds of the fraud.

Facts In Hamblin v Moorwand [2025] EWHC 817 (Ch), Mr & Mrs Hamblin (Claimants) were induced, by fraud, to pay almost £160,000, thinking it an investment, to a fraudster’s company, RND Global Ltd (RND) (Second Defendant). A director of RND had been the victim of identity fraud. The fraudsters had used his identity to open accounts with Moorwand Ltd (First Defendant) (Moorwand), a PSP and electronic money institution regulated by the FCA. These accounts permitted RND to operate an electronic wallet enabling it to make and receive payments in sterling, euros and bitcoin.

RND held the funds transferred by the Hamblins in an electronic wallet with Moorwand. The fraudster in control of RND then instructed Moorwand to pay RND’s monies away. The fraud on the Hamblins is commonly termed a “push” fraud, where the Hamblins’ consent to the payment had been extorted by a fraud against them. The consequence of this was that the Hamblins’ bank, in making the payment pursuant to their instructions, acted properly and within the terms of its mandate, so no claim could be brought there. RND was insolvent so, the only option for a recovery was the derivative claim on behalf of RND against the PSP, Moorwand.

The Hamblins commenced a claim against Moorwand and RND (in administration) seeking to recover the money, arguing among other things that Moorwand owed a duty of care, in contract and/or tort and/or agency, to take reasonable skill and care not to execute a payment instruction in circumstances when it was put on inquiry that the payments were not duly

authorised by RND. The claim brought by the Hamblins was a derivative claim (i.e. where a claim vesting in a company is brought by a claimant other than the company whose claim it is), on behalf of RND, standing in RND’s shoes, as RND was now insolvent, suing Moorwand.

The case involved consideration of the Quincecare Duty, which prevents a bank/financial institution from executing a payment instruction given by an agent of its customer where it has reasonable grounds to believe that the instruction is an attempt by the agent to defraud the customer.

The judge at first instance permitted the Hamblins to pursue the derivative claim against Moorwand but concluded that Moorwand had not been put on inquiry for the purposes of the Quincecare Duty, so the claim failed. The Hamblins sought permission to appeal this decision.

33

ThoughtLeaders4 Disputes Magazine • ISSUE 19 process that suggested that the person purporting to act for RND was not the real director. Among other things, the date of birth given for the director was incorrect and there were obvious concerns about the credibility of documentation provided concerning the company’s address.

High Court Decision On appeal, the court held that Moorwand had in fact been “on inquiry” for the purposes of the Quincecare Duty and consequently it should not have debited RND’s account without satisfying itself that the payment instructions it had received from the fraudster purporting to be RND’s director were not fraudulent.

These factors were sufficient to put the PSP on notice that something was amiss and that further questions should have been asked. Accordingly, the Court held that Moorwand should restore the monies (just under £160,000) improperly paid away from the RND account to the Fraudsters for the use of RND, enabling Mr & MRs Hamblin to claim against RND.

The court clarified that a PSP (although not a “bank”) is within the scope of the Quincecare duty and the Quincecare Duties apply to PSPs as well as banks.

The judge held that where there are circumstances suggestive of dishonesty apparent to the PSP that would cause a reasonable person before executing an instruction to make inquiries to verify the agent’s authority, the PSP’s duty to exercise reasonable skill and care in and about executing the customer’s instructions requires the PSP to make inquiries to ascertain whether the instruction given is one actually authorised by the customer. If the PSP executes the payment instruction without making such inquiries, the PSP will be acting in breach of duty. So, in summary, the duty of care requires the PSP, if put on inquiry, not to act without checking that the order is indeed a valid order of the customer to transfer money. Where the PSP, without taking steps to clarify the customer’s intention, executes the order, the PSP will be acting in breach of its duty of care and will also be acting outside the scope of its mandate.

The court highlighted the following factors that, in its view, had put Moorwand “on inquiry”: • The discrepancy between the description of RND’s business, as stated by the fraudster to Moorwand, and the uses to which money in the account was put, including transactions in bitcoin and the purchase of a watch.

Comment Without doubt, this case involved an innovative legal approach to seeking recovery. One of the main obstacles for APP fraud victims is that they require permission from the court to bring a derivative claim on behalf of the fraudster’s company. This case illustrates that permission will in certain circumstances be granted.

The case is a significant development in providing a potential route to recovery for APP Push Payment Fraud victims via the derivative action. It highlights the need for PSPs and other financial institutions to exercise reasonable skill and care when processing agent led payment instructions and reinforces the application of the Quincecare Duty in protecting corporate customers from fraudulent activities. Necessarily, this heightened accountability requires additional due diligence will be necessary when handling payment instructions which look to be outside the norm.

• The material provided by the fraudsters in the account opening

34

ThoughtLeaders4 Disputes Magazine • ISSUE 19

RENTERS RIGHTS ACT

Authored by: Scott Goldstein (Partner) - Payne Hicks Beach

Introduction The Renters’ Rights Act 2025 (“RRA”) is a landmark piece of legislation in England that represents the most significant reform of the private rental sector in decades. This article examines the main changes in detail, before briefly assessing the likely impact of these reforms.

Conversion of all assured tenancies to periodic tenancies With some limited exceptions, since 1997 all new private rented sector (“PRS”) tenancies have been ASTs by default. The Government has estimated that 86% of English PRS tenancies in existence in 2021-2 were ASTs.1 The RRA converts all ASTs into periodic tenancies, and gives tenants the right to terminate at any point, on two months’

1 2

written notice. Landlords will not enjoy a similar right.

Abolition of “No-Fault” Evictions

Under the new law, a tenant may give notice to quit using any written means it wishes, but it does not state where the notice is served. That makes it critical that tenancy agreements list all email addresses and mobile numbers to which notices may be sent, texted, or WhatsApped.

This is the centrepiece of the RRA. While the debate is over, it is interesting to note that according to Government’s statistics, in 2021-2, only 4% of all tenancies ended through.2 Now that they can no longer rely on section 21 notices, landlords will need to use the section 8 procedure to recover possession. That entails serving a notice asserting that one or more statutory ground(s) of possession is made out. Some of these grounds have been expanded and new grounds introduced. However, others have been restricted, most notably ground 8 (rent arrears). Currently, a landlord

https://www.gov.uk/government/statistics/english-housing-survey-2021-to-2022-private-rented-sector/english-housing-survey-2021-to-2022-private-rented-sector ibid

35

ThoughtLeaders4 Disputes Magazine • ISSUE 19 can serve a section 8 notice where eight weeks’ arrears have accrued.

That will increase to 13 weeks, and any unpaid universal credit will not count towards the arrears. Taken with the new anti-discrimination provisions, this could impose a significant additional burden on landlords. Evidence to a parliamentary committee shows that in 2017 one in five claimants are not receiving a full payment within five weeks of making their claim.3 Mirroring part of the current section 21 regime, in order to serve a section 8 notice landlords will need to have protected their deposits, or registered their property on the PRS database (see below).

Rent Regulation and Bidding Wars The First Tier Tribunal will continue to hear tenants’ challenges against their landlords’ proposed rent increases, but it will no longer be able to fix rent above the level the landlord proposes. This could become counter-productive as it could prompt landlords to propose higher rent than they would do under the current rules.

Similarly, before the tenancy, landlords and agents will have to publish the proposed rent, they will be unable to accept or encourage any bids above that price. Landlords may seek to circumvent these rules by increasing their initial asking price.

Pets The Act also provides that landlords cannot unreasonably refuse to permit tenants to keep a pet. The Government was criticised for removing the landlord’s right in an earlier draft of the Act to require tenants to fund pet damage insurance. Will landlords be able to refuse to allow tenants to keep pets which pose a significant risk of causing damage if they can show that the likely cost of remedying that damage cannot be met through the deposit?

Decent Homes Standard / Awaab’s law The Decent Homes Standard has been extant in the social housing sector for more than twenty years. With the passage of the RRA, a version of the Standard will apply to PRS as well. The details will need to be worked out by the Government, so this change is likely to happen after the introduction of the main sections of the Act. Awaab’s law is also extended into PRS, requiring landlords swiftly to address certain immediate hazards such as damp and mould.

Anti-Discrimination Protections The Act prohibits landlords and letting agents from discriminating against prospective tenants who have children or who are on benefits. However, indirect discrimination against these groups may in some circumstances be justified. Landlords and agents may need to be aware of the defence offered to claims of indirect discrimination for measures that are a proportionate means of achieving a legitimate aim.

Any decision to refuse to grant a tenancy to someone falling in these categories must be accompanied by a comprehensive audit trail to ensure the decision can be defended if later challenged. Importantly, this applies to the entire rental process, from advertising and viewings to tenancy agreements.

court considering such complaints may query why the tenant did not raise them earlier through the ombudsman.

The PRS database and the ombudsman service will both be funded through fees levied on landlords. The need for secondary legislation to enact these changes mean we should not expect to see them until late 2026 at the earliest.

Conclusion Given the increase in PRS tenancies from 2.1 million households in 1996-74 to 4.7 million in 2023-45, it is clear why the Government has acted to safeguard tenants’ rights.

However it is disappointing that the additional regulatory burdens the RRA places on landlords are not matched by rights enabling them to deal more effectively with tenant misconduct. The county court process for evicting tenants takes many months, during which time landlords are likely to be receiving no rent. It seems likely that these reforms will squeeze many non-institutional landlords out from the market, leaving behind those with the financial clout to comply with the new regulations and shoulder the increased risk of tenant non-compliance. Aside from that, it is reasonable to expect rents to rise, both as a result of the additional costs levied on PRS landlords, and the greater uncertainty for landlords flowing from the new rights the RRA grants tenants.

PRS Database and Ombudsman The RRA establishes a PRS database, which will contain details of PRS landlords and their properties, and any penalties entered against such landlords.

Additionally, an ombudsman service will be set up to deal solely with tenants’ complaints against landlords. While it is disappointing that the ombudsman cannot address landlords’ complaints, this move should be welcomed. It should make courts more alert to tenants’ opportunistic complaints made in response to possession claims. A

3 https://committees.parliament.uk/writtenevidence/92616/html/#_ftn3 4 https://www.gov.uk/government/statistics/chapters-for-english-housing-survey-2023-to-2024-headline-findings-on-demographics-and-household-resilience/chapter-1-profile-ofhouseholds-and-dwellings 5 Cited in the English Housing Survey for the PRS 2016-7

36

CYK, a leading conflict-free City disputes boutique firm of commercial disputes lawyers.

“Extremely bright, creative, tenacious, thorough and committed to clients” Chambers & Partners

"More of a powerhouse than a boutique these days" Legal 500

“An outstanding conflict-free firm with quality partners who can take on the market-leading firms” Chambers & Partners

21 Lombard Street, London EC3V 9AH +44 (0) 20 7148 7800 info@cyklaw.com www.cyklaw.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

CERTIFICATION SUCCESS:

PRACTICAL LESSONS FROM THE BULK MAIL CLAIM Authored by: Andrew Wanambwa (Partner), Nigel Enticknap (Managing Associate) and Georgina Fernando (Associate) Lewis Silkin

Introduction Since 2015, the UK has had a statutory regime permitting opt‑out collective actions for breaches of competition law.

The regime for such actions requires a form of judicial authorisation, a collective proceedings order (CPO), to be granted before a claim proceeds.

In this article we briefly consider the legal thresholds that must be overcome in order to obtain a CPO and then identify practical points to consider when preparing a CPO application.

The practical guidance below is derived from the recent case of Bulk Mail Claim Limited v International Distribution Services Plc (formerly Royal Mail Plc) (Case Number 1639/7/7/24) (the Bulk Mail Claim).

Background For a CPO to be made, the proposed class representative must be “authorised” and the relevant claims must be “eligible” for inclusion in

the collective proceedings. The CPO, if granted, will permit the class representative to act as such in the collective proceedings.

For the class representative to be “authorised” it must be just and reasonable for that person to act as a representative. In practice, the main questions that have been raised concern whether the proposed representative would be able to fairly and adequately act in the interests of the class members (Rule 78(3)) and whether the representative will be able to pay the defendant’s recoverable costs if ordered to do so (Rule 78(2) (d)). The PCR’s funding arrangements will also be considered as part of the authorisation condition.

For proposed claims to be “eligible” for inclusion in collective proceedings they must be brought on behalf of an identifiable class, raise the same, similar or related issues of fact or law and be suitable to be brought in collective proceedings (Rule 79(1)).

The Bulk Mail Claim The Bulk Mail Claim arises out of Ofcom’s 14 August 2018 decision titled “Discriminatory pricing in relation to the supply of bulk mail delivery services in the UK”.

The Ofcom decision concluded that Royal Mail abused its dominant position in the market for bulk mail delivery services in the UK by attempting to introduce discriminatory prices, contrary to both EU and UK competition law.

The discriminatory prices penalised any party that sought to roll out bulk mail delivery services that were in competition with Royal Mail.

The Bulk Mail Claim alleges that Royal Mail’s infringement of competition law: 1. p revented competition for bulk mail delivery services; and 2. l ed to higher prices (an “overcharge”) for end-customers of relevant bulk mail services.

38

ThoughtLeaders4 Disputes Magazine • ISSUE 19 The purpose of the claim is to secure compensation for losses suffered by class members who were overcharged for bulk mail delivery services as a result of the infringement.

The class is estimated to consist of 290,477 entities, and the value of the claim is estimated to be in the region of £1 billion.

The Bulk Mail Claim CPO application was heard on 3-4 March 2025. The Competition Appeal Tribunal (the CAT) handed down judgment on 12 March 2025, granting the CPO and certifying Bulk Mail Claim Limited to act as Class Representative.

Practical Lessons On “Authorisation” The main practical lessons from the Bulk Mail CPO hearing concern the “authorisation” condition mentioned above. The key point is that a proposed class representative (PCR) cannot be merely a figurehead for a set of proceedings. The role of the PCR comes with a “heavy responsibility”, so it is imperative for the PRC to demonstrate (at the CPO stage) its ability act as an independent advocate and engage robustly with the advice it receives.

PCR suitability In order to demonstrate its suitability to act as a class representative, the PCR in the Bulk Mail Claim took a number of practical steps. Some of the key practical lessons from the Bulk Mail Claim, as they relate to the “authorisation condition”, are set out below.

1. Source of funding. In the Bulk Mail Claim, funding was obtained through an independent broker.

The use of an independent broker was highlighted in the PCR’s CPO application and helped to demonstrate that proper efforts had been taken to secure the best possible funding terms for the class.

2. Independent advice. In addition to sourcing funds through a broker, the PCR in the Bulk Mail Claim obtained a range of independent advice on the legal and commercial terms of the proposed funding for the claim. This advice consisted of (a) independent advice on the proposed litigation funding agreement (the LFA) from a costs KC (b) advice from a separate funding broker confirming that the LFA was in line with market norms and (c) an independently prepared “scenarios” table showing worked examples of how damages would be split between the funder and the class in different outcomes. This comprehensive approach to seeking and obtaining independent advice ensured that the PCR was able to properly conclude that the funding deal for the claim was in the best interests of class members.

3. Consultative panel. Whilst there was no requirement that a consultative panel be put in place, the PCR in the Bulk Mail Claim engaged senior personnel to provide it with independent advice and support.

The PCR’s consultative panel in the Bulk Mail Claim, which includes the former Chairman of the Competition Commission, attended the CPO hearing and agreed to meet regularly to support the PCR. In this regard, it is noted that in Professor Barry Rodger v (1) Alphabet Inc. & Ors [2025] CAT 45 (paragraph 81), the Tribunal expressed concern at the frequency of proposed panel meetings, at only twice per year, and approved the CPO application in that case on the basis that the panel should meet at least on a quarterly basis.

4. Customer Group. Class members in the Bulk Mail Claim include large corporate and other entities with claims for significant sums of money, a feature not usually found in other collective proceedings before the CAT. The PCR in the Bulk Mail Claim therefore agreed to form a “Customer Group” so that members of the class can participate in decisions about the claim. The group does not determine the direction of travel in the proceedings but can offer advice and respond to questions from the Class Representative. The existence of the Customer Group provided the CAT with a further layer of assurance that the Class Representative will act fairly and adequately in the interests of the class. In future claims involving a mixed group of class members (some with claims for very significant sums of money), it might be therefore

prudent to consider establishing a similar group in advance of issuing the CPO application.

5. B udget. The PCR’s plan for proceedings should include an estimate of and details of arrangements as to costs, fees or disbursements (Rule 78(3)(c)(iii)). In order to help meet this requirement, the PCR in the Bulk Mail Claim provided the Tribunal with details of its fully-funded cost budget for the claim. The budget did not include the amount of ATE premium (see below) but it did provide details of the hourly rates for Counsel and solicitors as well as a detailed breakdown of budgeted costs for each stage of the claim. The budget also included cost details for the PCR and its consultative panel. The Tribunal carefully considered the LFA and the accompanying budget for the claim and noted the following: “ The amounts claimed under [the LFA] at any distribution stage will of course be carefully reviewed.

The parties and the funder should not assume that because a particular level of return has been agreed by way of LFA, that will be the amount the Tribunal ultimately permits to come out of any settlement or judgment sums.

That will depend on a number of factors, including the level of success and the sums recovered.”

6. I ndependent costs advice. During the course of the CPO hearing in Bulk Mail Claim, it was noted that PCRs may need assistance if they are to effectively review and challenge bills for legal costs. The ability of the PCR to subject ongoing costs to proper scrutiny is important because the funder’s interests are not identical to those of the class. In particular, if the action results in recovery for the class, the funder’s expenditure on costs will be reimbursed out of the sum recovered. In order to obtain certification, the PCR in the Bulk Mail Claim agreed to engage a costs specialist and this was recorded in the Bulk Mail CPO judgment in the following terms: “ As regards the PCR, it is the client and hence any bill must be approved by the PCR, which in practice means Mr Aaronson.

We considered that it would be desirable if Mr Aaronson were to retain a costs specialist independent of both the funders and Lewis Silkin to assist him in reviewing and approving any

39

ThoughtLeaders4 Disputes Magazine • ISSUE 19 bills. We stated that we expected something more than what would be carried out by the court on a summary assessment of costs, but not as detailed as a full taxation of costs. The PCR agreed to this cross-check and proposal.”

Since the CPO judgment in the Bulk Mail Claim, the Tribunal has indicated that it should be the standard approach in collective proceedings for the PCR to retain an independent costs specialist, who may provide ongoing advice on cost arrangements and fees (Robert Hammond v (1) Amazon.com, Inc. & Ors; Professor Andreas Stephan v (1) Amazon.com, Inc. & Ors [2025] CAT 42 at paragraph 45).

7. Confidentiality. In the Bulk Mail Claim, the PCR published a redacted form of LFA on its claim website in advance of the CPO hearing.

The LFA published on the website was, however, redacted to exclude information showing the level of ATE insurance premium for the claim and the extent of the solicitor’s deferred fees. Such information was redacted on the basis that it was covered by litigation privilege since it gave an indication of the risk allocated to the case. At the Bulk Mail CPO hearing, the Tribunal raised a question as to whether the PCR could assert privilege or confidentiality against the entities it is representing in the proceedings. In order to address this issue, and following the grant of a CPO in its favour, the CPO added wording to its website making it clear that any class member may, upon request, inspect the following documents at the offices of its solicitors: the unredacted LFA, the budget for the claim and a document setting out estimates of the success fee payable to the funder under different outcomes (ie the “scenarios” document referred to above). This was accepted by the Tribunal as a proper approach and is in line with the trend towards reducing confidentiality protection for LFAs in collective action proceedings.

8. PCR’s experience and remuneration: As part of the CPO application, the PCR in the Bulk

Mail Claim provided the Tribunal with detailed evidence of his relevant experience as well as his remuneration for taking on the role of the PCR. Evidence of the PCR’s relevant experience included, for example, reports from cases in which the PCR had provided expert evidence concerning competition economics. This helped to establish the PCR’s credibility and suitability for the proposed role.

In addition to the above matters, the CAT might want to know how the claim originated. At the CPO hearing of the Bulk Mail Claim, the Tribunal Chairman raised the issued in the following way: “I want to know who selected who... you’ve got the PCR, you’ve got the lawyers and you’ve got the funders. So who instructed who? Who approached who originally? Where has [the claim] come from? Is this the lawyers who said, we think this is a good claim and hence we go and find funders? Or is it funders saying we think it’s a good claim, we find lawyers?.” In the Bulk Mail Claim, the proposed Defendant raised particular queries about whether the PCR’s expert witness had originated or marketed the idea for the claim (with the aim of calling into question the expert’s independence). In order to address these queries, the PCR’s solicitors provided the Tribunal with confirmation that they had originated the claim. Given that this issue was raised in the Bulk Mail Claim, it can fairly be anticipated that it might be raised again.

It would therefore be prudent for the PCR to consider addressing the issue of origination when preparing its CPO application.

part of its CPO application the PCR provided the Tribunal with (a) copies of its ATE policy and the relevant anti-avoidance endorsement and (b) evidence from rating agencies confirming the creditworthiness of the relevant insurers. Independent advice was also obtained from a costs KC concerning the insurance policy wording before the relevant documents were signed.

10. F under due diligence. In order to demonstrate the adequacy of the PCR’s funding, the PCR’s solicitors reviewed documents relating to the funder’s financing arrangements.

This ultimately resulted in the PCR’s solicitors sending the Tribunal a letter confirming the funder’s ability to fund the claim. This was an unusual aspect of the CPO hearing in the Bulk Mail Claim, but it is nevertheless prudent for PCRs to independently assure themselves of a funder’s ability to fund a claim before they sign an LFA. 11. Undertakings: During the Bulk Mail CPO hearing the Tribunal requested, and the PCR provided, an undertaking to update the Tribunal as to its expenditure against the budget and to notify the Tribunal if there are any concerns about the funder’s ability to pay.

This provided the Tribunal with a further assurance as to the adequacy of the PCR’s funding and ensures ongoing transparency and accountability. PCRs might wish to consider offering, as part of future CPO applications, similar such undertakings.

Conclusion

Adequacy of funding The PCR must also demonstrate the adequacy of its funding for the claim. In order to address queries about funding for the claim and its ability to meet the proposed defendant’s costs, the PCR in the Bulk Mail Claim took the steps set out below.

9. ATE insurance. The PCR in the Bulk Mail Claim obtained a generous ATE policy, sourced through an independent ATE broker, to cover the proposed Defendant’s costs. As

The landscape surrounding the certification of competition opt-out claims continues to develop as more claims proceed through the CAT. No doubt further CPO hearings will generate additional guidance, but for the time being the Bulk Mail Claim provides useful examples of the type of issues that a PCR might wish to consider before issuing its claim.

For more information about the Bulk Mail Claim please see: www. bulkmailclaim.co.uk The Lewis Silkin team acting for Bulk Mail Claim Limited are Andrew Wanambwa, Nigel Enticknap and Georgina Fernando.

40

MIDDLE EAST DISPUTES FORUM 2026 22 April 2 2 Dubai UAE

,

Bringing Experts from Across the GCC Together to Discuss Disputes Dynamics.

For partnership enquiries, contact Ben Sullivan at +44 (0) 20 3965 4386 or email ben@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

COURT OF APPEAL CLARIFY APPROACH TO INTERPRETING ARTICLES OF ASSOCIATION

SYSPAL CAPITAL LIMITED V TRUMAN AND ANOTHER [2025] EWCA CIV 469 Authored by: Alexander Heylin (Barrister) - No5 Chambers

Key Takeaways: 1) The Court of Appeal clarified the relevant considerations in interpreting Articles relating to the valuation of shares, and the emphasis to be placed on each.

2) The decision sets a clear precedent for how similar provisions should be construed going forward.

3) The case highlights not only the importance of using precise language when drafting Company Articles, but also the need for interpretations that align with commercial realities and fairness.

Introduction Earlier this year I acted for the 1st Respondent in the Court of Appeal in Syspal Capital Limited v Truman and Another [2025] EWCA Civ 469.

The case concerned construction of Articles of Association belonging to Syspal Holdings Limited (“SHL”),

the holding company of a group of manufacturing companies and the unrepresented Second Respondent.

The appeal was brought by Syspal Capital Limited (“SCL”) and I appeared on behalf of the First Respondent, Mr Christopher Truman, a former director of SHL and director of one of its subsidiaries, Syspal Limited (“SL”).

What was remarkable about this case was that, not only was one particular article at the centre of the dispute, but one word within that article – the word “that”. The significance of a single word within extensive articles, and in the context of a business relationship spanning 45 years, speaks volumes about the intricacy of the interpretative exercise undertaken by advocates and judges alike in the courts of England and Wales.

Background SHL was owned 24% by the First Respondent and 76% by SCL, controlled by a Mr Anthony Roberjot, from the time that the then current

version of the Articles were adopted in December 2015. The First Respondent also served as director of SHL until May 2023, when he resigned upon reaching his 65th birthday; an employee of SL until he was dismissed in October 2022; and a director of SL, until he was removed in November 2022.

The issue to be determined was twofold: (1) whether the termination of the First Respondent’s employment by SL, whilst he retained his position as a director of SL, triggered a deemed Transfer Notice under the Articles; and (2) the appropriate value of his shares, whether at “Fair Value” or “Market Value”.

The significance of these issues was as follows. If a Transfer Notice was deemed to be triggered upon his dismissal as an employee of SL in October 2022, then his shares would be sold at “Market Value”. If a deemed Transfer Notice was not triggered upon that dismissal, but rather triggered upon his resignation as a director of SHL in May 2023, then his shares would be sold at the significantly greater “Fair

42

ThoughtLeaders4 Disputes Magazine • ISSUE 19 Value”.

work for a Group Company. As a result, the First Respondent submitted that the sale price for his shares would be the greater “Fair Value”.

This was a possibility unlikely to accord with the intention of the shareholders when adopting the Articles, especially given that the surrounding circumstances publicly ascertainable at that time show that the Articles were clearly drafted to protect the position of Mr Truman and his family as regards the valuation of his shares.

“Otiose” Provisions Provisions The key provision in this dispute was Article 11.3 of SHL’s Articles of Association: “If any Employee Member shall cease for any reason (including but not limited to death or termination of employment by the Employee Member or Company) to be employed as an employee, director or consultant of a Group Company (and does not continue in that capacity in relation to any Group Company) then a Transfer Notice shall be deemed to have been served in accordance with Article 10 1 on the date of such cessation.” (emphasis added) “Employee Member” was defined in Article 1.1 as: “a Member who is also an employee, consultant or director of a Group Company (with the exception of Mr A Roberjot)” This definition is of particular import as it meant that the First Respondent was, at all times since the adoption of the Articles, the sole Employee Member.

Interpretations The Appellant advanced the case that Article 11.3 was engaged and a Transfer Notice was deemed to be served when the First Respondent was dismissed from SL employment. Therefore, they submitted that the sale price of the shares would be the lesser “Market Value”. They supported this submission by suggesting that the wording “in that capacity” in Article 11.3 referred to the singular capacity in which the Employee member ceased to be “employed”, in the broader sense of the word within the Articles.

The First Respondent’s position was that a Transfer Notice was not deemed to be served when his employment with SL ceased as he continued to be a director of SHL. This argument was supported by a construction of the Articles where the wording “in that capacity” referred back to any of the three alternative ways in which an Employee Member might be engaged to

Judgments In the High Court J. Roth ruled in favour of the interpretation that I presented on behalf of the First Respondent, concluding that the relevant provision was not triggered by his dismissal as an employee of SL. The Court of Appeal, in a judgment given by L.J Zacaroli (with whom Lady Justice Asplin and L.J Birss agreed), judged that J. Roth reached the right conclusion and dismissed SCL’s appeal.

“In That Capacity” The Court of Appeal agreed with J. Roth that the phrase “in that capacity” related back to the three capacities set out immediately beforehand. L.J Zacaroli found that the singular nature of the phrase “that capacity” was more naturally read as referring back to the single capacity of being “employed” rather than just one of the three listed capacities.

L.J Zacaroli also drew attention to a further significant fact that Mr Truman was the only shareholder who could have potentially fulfilled the role of Employee Member when the Articles were adopted. Article 11.3 envisaged service of a deemed Transfer Notice upon an Employee Member ceasing to be employed as a “consultant”.

The only circumstances in which this consultant limb could ever apply to the First Respondent was if he changed his status from employee to consultant.

On SCL’s case, in those circumstances a deemed Transfer Notice would be triggered. On that basis, there could never be a circumstance in which a deemed Transfer Notice could be triggered by Mr Truman ceasing to be a consultant, thereby rendering the consultant limb of Article 11.3 “otiose”.

For these reasons, amongst others, the Court of Appeal found the First Respondent’s interpretation of the Articles was a more natural reading of the words and aligned with commercial common sense.

Commercial Common Sense The fact that it is not uncommon for a senior employee to retire from full-employment but continue as a consultant was held to support the First Respondent’s interpretation of Article 11.3. J.Roth recognised that commercial common sense contradicted SCL’s suggestion that in such circumstances an individual would be required to sell their shares at the lower valuation. L.J Zacaroli agreed and opined that the ability to sell the shares at Fair Value was best viewed as a positive benefit to the outgoing Employee Member.

This was reinforced by the fact that Fair Value was the default basis of valuation in the Articles for the shares of one not involved in the conduct of any Group Company.

Intention When Drafting

Conclusion Syspal holds significance, not only in clarifying the relevant considerations in interpreting Articles relating to the valuation of shares, but also in highlighting the importance of using precise language when drafting them.

The Court’s findings underscored the protection of minority shareholders and, ultimately, demonstrated the need for interpretations that align with commercial realities and fairness.

It was recognised that SCL’s interpretation created the potential for an employee to be dismissed for no good reason in order to trigger a forced sale of their shares at the lower price.

43

ThoughtLeaders4 Disputes Magazine • ISSUE 19

2025: THE YEAR OF THE M&A TRANSACTION DISPUTE

Authored by: Alex Houston (Partner) - Crowe

The Need To Sell At Speed In the lead up to the UK Government’s autumn budget announcement on 30 October 2024, the rumour mill was in overdrive as to what taxation measures would be introduced, to plug what Chancellor Rachel Reeves described as a “£22 billion black hole” in the public finances. It was clear that tax rises were coming and a significant rate increase in capital gains tax (“CGT”) was highly tipped to be an ‘easy win’ for the UK Government.

Owing to the impending likely rate increase, shareholders were accelerating plans to dispose of business interests, to ensure they could realise their capital gains and crystallise their tax liabilities at the lower rates applicable prior to 30 October 2024. This resulted in a huge increase in deal volumes ahead of this deadline.

“In October 2024, our National Corporate Finance Team set a new benchmark with a record number

1

https://marktomarket.io/insights/

of transactions. This encompassed a diverse range of activities, including buy-side and sell-side capital markets, private company due diligence, and M&A advisory services. We successfully completed 32 transactions, a significant increase compared to the 42 transactions completed throughout the entire calendar year of 2023.

While 2023 was a robust year, this volume of deals in October 2024 alone highlights the levels of deal activity seen in the market and our team’s exceptional responsiveness.”

Dan Nixon, Partner, Corporate Finance

Crowe’s experience is mirrored by that of the wider economy, as shown by the deal volumes in Mark to Market’s Valuation Barometer1:

The Risks Of Rushing “Like many advisers during the months of September and October 2024, we were asked to assist in sell side processes with a firm pre-budget completion backstop. In some instances, the transactions were at suitably advanced stages, or had been presented as being free of significant complexity, such that we engaged on the work, successfully in all cases. However, there were a number which in our view required substantial input, negotiation and rework which meant that a close on or before 29 October 2024 would have been, at the very least, a challenge.

On the understanding that no extension to the desired timeframe would have been entertained, I suspect a number of these possible transactions may have completed

44

ThoughtLeaders4 Disputes Magazine • ISSUE 19 without any, or minimal, M&A adviser input.”

Andy Kay, Partner, Corporate Finance Take a typical small and medium enterprise (“SME”) M&A transaction in the £10m to £100m bracket. Under ordinary circumstances, one would expect the whole process to take anywhere from approximately three to four months in the most straightforward of deals, up to as long as eighteen months if negotiations are complex and protracted.

Given that there were only three months between Chancellor Rachel Reeves’ announcement of an upcoming budget on 29 July 2024 and its delivery on 30 October 2024, a lot of the October 2024 M&A transactions will have likely been undertaken at an accelerated rate.

“It has been quite some time since the UK market, and the M&A environment within it, was anywhere near a position that could be described as “normal”. In between Brexit, a global pandemic and significant global conflict, UK industry has traversed some rather significant challenges in recent years. Therefore, whilst there remains an awful lot of investor cash available for deployment, capital is rather more cautious. As a result due diligence, and high quality due diligence, is now more important than ever before. Investors are scrutinising performance, historical trends, pipeline, commercial and political risks in more and more detail in order to gain comfort that they understand the business they are investing in. Poorly prepared vendors or insufficient due diligence can cause deal delays and deal failure at worst. If a deal proceeds in the absence of proper diligence the chances of dispute over value further down the line, whether when considering completion accounts or earnouts, is greatly increased.

Proper diligence should provide comfort for buyers and sellers with regards to deal certainty.”

• The buyer not understanding the true underlying trading potential of the business, and overvaluing it.

• The seller dealing with a buyer that subsequently mismanages the business in an unprofitable or unethical manner (which can be particularly problematic if the deal has significant earn-out consideration or the seller is to remain in the business post-transaction).

• The seller agreeing to too much of a discount to the consideration, to get the deal done faster, which could more than wipe out the benefit of the lower CGT tax charges applicable.

• Unfavourable clauses, warranties or errors ‘slipping through the net’ into the share purchase agreement (“SPA”).

• Inappropriate deferred consideration mechanisms inserted in the SPA, which will either result in the buyer overpaying for the business, or being so unachievable that the mechanism may as well not exist.

• Inadequate buyer / seller provisions and protections to resolve post transaction disputes.

“The uncertainty of the looming budget and the ability to seemingly negotiate a good deal from buyers that were motivated to avoid potential CGT liabilities, may have been enough to entice buyers to rush through due diligence when time was of the essence. Of course, other protections such as warranties in the SPA could provide a level of comfort but in catastrophic deals, the time limits and restrictions to claim may not be sufficient. Throughout 2025 we have noticed an upturn in claims seeking to recover losses beyond the warranty provisions such as fraudulent misrepresentation claims.”

Alex Houston, Partner, Forensic Services

Matteo Timpani, Partner, Corporate Finance Rushing an M&A transaction brings with it a number of risks for both seller and buyer. Inadequate time spent on planning, due diligence or negotiations could potentially result in a plethora of problems for buyers and sellers, such as: • The buyer not identifying underlying problems with the business.

The Inevitable Increase In Post Transaction Disputes If an M&A transaction has been rushed, this increases the likelihood of there

being post-transaction disputes stemming from a hurried preparation of the SPA. “In the 18 months prior to October 2024, I had already noticed a marked increase in transaction disputes. The challenging economic circumstances appeared to have created a wave of buyer regret and an appetite to recoup as much as possible from less successful acquisitions. Or at the most sinister level a buyer ’turning the screw’ and not wanting to pay the full purchase price knowing a seller’s financial position.

Rushed M&A transactions in October 2024 appear to have exacerbated this dispute climate further, whether it be the buyer realising all is not well after they have gotten their feet under the table and pursuing a warranty claim, or stemming from an inability to agree a set of completion or earn¬-out accounts.”

Martin Chapman, Partner and National Head of Forensic Services In our experience, the likely culprits that can cause a problem in an SPA are: • Ambiguous and / or un-defined terms: Financial information being warranted as “carefully” or “appropriately” prepared for example, often leads to a disagreement about the level of precision attached to such terms.

• Unrealistic warranties: If a warranty such as “the management accounts have been prepared in accordance with Generally Accepted Accounting Principles (“GAAP”)” is included, it can cause problems, as most management accounts will have areas that are not strictly 100% under GAAP. • Lack of clarity on precedence hierarchies: If the order in which accounting rules take precedence in the preparation of completion or earnout accounts is not clear, then this can lead to different interpretations and thus disagreements, when attempting to agree such accounts.

• Incorrect internal referencing: SPAs go through numerous different versions during the drafting process which can lead to cross referencing errors. In worst-case scenarios, this can make clauses have completely different, unintended meanings, resulting in disputes.

45

ThoughtLeaders4 Disputes Magazine • ISSUE 19

LITIGATION RISK 2025: A YEAR IN REVIEW Authored by: Jonathan Smart (Partner) - Shoosmiths

Introduction As we reflect on the past year in the world of litigation, it’s clear that the landscape for large businesses has become more complex, contentious, and costly. The latest annual Litigation Risk 2025 report from Shoosmiths offers a comprehensive look at the evolving risks and challenges facing general counsel and senior in-house lawyers across the UK. Drawing on the experiences of over 360 legal professionals from sectors including financial services, automotive, real estate, and technology, the survey paints a picture of escalating disputes, rising costs, and the growing influence of technology, particularly artificial intelligence (AI), on both the risks and the management of litigation.

While the volume and complexity of disputes continue to increase, so too does the pressure on legal teams to balance financial and reputational considerations with the merits of each case. The good news is that innovation is being embraced, with AI

tools increasingly seen as essential for identifying, mitigating, and responding to dispute risks. Yet, as the survey makes clear, there remains much to be done to ensure businesses are truly prepared for the challenges ahead.

Key Findings

Disputes on the Rise The proportion of large businesses engaged in disputes in England and Wales jumped from 62% in 2023 to 76% in 2024, with similar increases seen in Scotland and Northern Ireland. This upward trend is expected to continue, with 75% of respondents anticipating involvement in disputes over the next 12 months. Economic conditions such as

interest rate hikes and rising costs have rendered many commercial contracts untenable, driving a surge in disputes, particularly in real estate.

Regulatory and Competition Disputes Regulatory interventions and competition cases are major drivers of dispute growth.

Half of surveyed organisations were involved in at least one regulatory dispute in the past year, up from 36% in 2023, while competition disputes rose from 24% to 42%.

The financial services sector has been particularly affected, with the introduction of the Financial Conduct Authority’s Consumer Duty initiative giving customers greater scope to bring claims. The pace of regulatory

46

ThoughtLeaders4 Disputes Magazine • ISSUE 19 • Focus on Day-to-Day Claims: While emerging risks like AI and class actions are important, the majority of claims still involve breach of contract disputes.

change itself is now seen as a risk, with boards and legal teams aligned in their concern.

• Build Understanding Across the Business: Invest in training to build awareness of specific litigation risks and vulnerabilities, ensuring teams understand contract details and compliance threats.

Embracing AI in Litigation Management Technology, IP, and AI Risks Nearly six out of ten respondents expect intellectual property (IP) disputes to increase in the next three years, more than any other area. The rapid evolution of technology, 5G, IoT, AI, and more, is driving this risk. AI is also a growing source of disputes, with 54% expecting related risks to rise. Employment disputes stemming from AI’s impact on jobs are seen as the greatest immediate risk, while the EU AI Act’s requirements around training data are expected to fuel further IP claims.

Group litigation and class actions are also on the rise, with 55% of senior in-house lawyers viewing them as a growing risk.

These cases are complex, costly, and often involve large-scale data subject access requests, creating significant logistical challenges for organisations.

Costs and Reputation The average cost of a major dispute now exceeds £600,000, with nearly a fifth of businesses spending more than £1 million on claims valued over £1 million. Cost, reputation, and expected duration are now more important factors in deciding whether to pursue litigation than the legal merits of a case. Reputational impact is a particular concern for consumer-facing businesses, and many organisations conduct cost-benefit analyses for every dispute, considering alternative dispute resolution methods to mitigate costs.

Strategies for Managing Costs In response to rising costs, nearly half of senior in-house lawyers say they are likely to pursue fewer disputes, and many are considering thirdparty litigation funding. Arbitration and mediation are increasingly seen as effective alternatives to court proceedings, with 52% ranking arbitration among the top three methods for successful outcomes, up from 34% last year.

There has been a sharp uptick in the use of AI to manage litigation, particularly for document discovery and e-disclosure. More than 70% of respondents have adopted AI for these tasks, with 41% doing so in the past year. AI is also being used for horizon scanning, risk identification, and claim assessment. However, the adoption of other risk management measures such as preparedness reviews and internal training has barely moved, suggesting there is still much room for improvement.

• Invest in Technology: Continue to adopt AI and other litigation management technologies to drive efficiencies and enhance outcomes.

• Seek Opportunities: Look for ways to join claims that can generate revenue, and use AI to identify opportunities for claims against other parties.

As the litigation environment evolves, those who are best prepared, embracing innovation, prioritising reputation, and investing in their teams, will be best placed to navigate the risks and seize the opportunities that lie ahead.

Sector Perspectives Regulatory disputes have most affected the finance and technology/ telecoms sectors, while automotive businesses are most likely to expect AI risks to grow. Employment disputes are a particular concern in the technology sector, and financial services respondents fear more IP cases in the coming years. Boards are most concerned about AI, regulation, employment, and competition, but are reminded not to lose sight of the ongoing prevalence of commercial contract disputes.

What Next?

The Litigation Risk 2025 report makes it clear that the litigation landscape will remain challenging in the year ahead.

With disputes continuing to grow in number and complexity, legal teams must be proactive in their approach to risk management. The following actions are recommended: • Embrace Proactive Preparedness: Conduct compliance preparedness reviews to identify potential weaknesses and inform comprehensive litigation response plans.

• Prioritise Reputation: Ensure litigation response plans include media strategies that engage stakeholders and protect brand value.

47

3rd Ann l

The Anti-Bribery & Corruption Forum 21 April 2 2 The Dilly London ,

Driving stronger and smarter anti-corruption compliance through real-world strategies, peer benchmarking, and actionable tools.

For partnership enquiries, please reach out to Ben Jobson at +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

SUBSTANCE OVER FORM: THE MODERN APPROACH TO TRANSACTIONS AT AN UNDERVALUE Authored by: Michael Mulligan (Partner) & Charlotte Doherty (Associate) - Haynes & Boone

Introduction The past eighteen months have seen a significant shift in the English courts’ approach to transactions at an undervalue (TUV) claims in insolvency and enforcement proceedings. Once governed by a relatively settled framework, the law has been reshaped by a series of important decisions: El-Husseiny v Invest Bank PSC [2025] UKSC 4 (“El-Husseiny”), Commercial Bank of Dubai PSC v Abdalla Juma Majid Al Sari & Ors [2025] EWHC 1810 (Comm) (“Al Sari”), Malik v Messalti [2024] EWHC 2713 (Ch) (“Malik”), and Purkiss v Kennedy [2025] EWCA Civ 268 (“Purkiss”). Together, these cases signal a decisive movement away from formalism and towards an emphasis on substance, with courts increasingly willing to scrutinise the real-world effect and purpose of transactions.

• Section 238 applies to companies in formal insolvency.

• Section 339 applies to individuals in bankruptcy.

• Section 423 is broader, enabling any victim to challenge a transaction if it was entered into for the purpose of putting assets beyond the reach of creditors or prejudicing their interests.

The Legal and Policy Framework English insolvency law allows the courts to set aside transactions at an undervalue—where assets are transferred for significantly less than their true worth—under sections 238, 339, and 423 of the Insolvency Act 1986.

The policy objective is clear: to prevent debtors from undermining the collective interests of creditors by dissipating value prior to insolvency. An important part of a section 423 claim is the “purpose test,” which requires the court to be satisfied that the debtor’s intention was to prejudice creditors, rather than acting for a legitimate commercial or tax reason. The test has proved to be a recurring point in litigation, and recent case law has sharpened its application.

49

ThoughtLeaders4 Disputes Magazine • ISSUE 19 face of sophisticated and dishonest arrangements.

El-Husseiny – Section 423 Extends to Company-Owned Assets The Supreme Court’s decision in El-Husseiny marks a pivotal moment in TUV litigation. The debtor, facing enforcement of a multi-million dollar judgment, arranged for companies under his control to transfer valuable London properties to family members for no consideration. The key issue was whether section 423 could apply when the assets in question were not beneficially owned by the debtor but by companies he controlled.

The Supreme Court held that it could. It determined that the statutory language is deliberately wide, covering any “transaction” or “arrangement” designed to prejudice creditors. To confine the provision to assets directly owned by the debtor would invite abuse: debtors could avoid scrutiny simply by interposing corporate or nominee structures.

By focusing on the debtor’s orchestration of the transfer, rather than the technical ownership of the asset, the Court confirmed that section 423 has a substantive reach that reflects its policy purpose.

The judgment is particularly notable for the way it distinguishes undervalue claims from the doctrine of corporate veil-piercing. The Court did not disregard corporate personality, but instead interpreted section 423 purposively to capture transactions “through” companies. This enables creditor protection without disturbing fundamentals of company law.

Al Sari – Sham Transactions and CrossBorder Evasion Whilst El-Husseiny considered statutory scope, the focus of the Court in Al Sari was evidential robustness. The case involved a sophisticated scheme designed to frustrate enforcement of a substantial debt judgment. The Al Sari family created backdated and sham documents purporting to evidence debts and tenancies, seeking to keep valuable London properties beyond the reach of creditors.

Calver J found that the documents were fabricated, the transactions were shams, and the arrangements were deliberately orchestrated to defeat creditors. The Court drew adverse inferences from the defendants’ failure to provide proper disclosure and from the deliberate creation of “documentary black holes.” Importantly, the court also refused to allow foreign judgments, obtained on the basis of fraudulent documents, to shield the scheme from scrutiny.

The decision illustrates several points of principle: • Substance prevails. The court will not be distracted by complex or cross-border structuring where the commercial reality is obvious.

• Evidential gaps matter. Failure to provide disclosure will be held against the debtor; missing documentation may itself point to an improper purpose. This case makes clear that that disclosure failings are not just procedural problems, but can be central to the outcome. A pattern of missing or inconsistent records was itself evidence of dishonest purpose.

• International dimension. Fraudulent foreign judgments will not be recognised or allowed to insulate a scheme from challenge in England.

Al Sari therefore provides a powerful reminder that the courts are prepared to deploy every available tool to protect creditors, particularly in the

Malik & Purkiss - The Purpose Test in Practice At the heart of section 423 lies the purpose test. The debtor’s subjective intention is critical. It is not enough that the effect of the transaction was to disadvantage creditors; the claimant must show that this was at least one of the debtor’s purposes in structuring the deal.

Two recent cases illustrate how this test is being applied in practice: Malik v Messalti: The debtor settled the family home into a trust with a general aim of asset protection. The court held that it was not necessary to identify a specific creditor: a broad, non-specific intention to shield assets from potential future claims was sufficient. Malik confirms that a generalised purpose to defeat creditors can satisfy the statutory test, widening the availability of relief.

Purkiss v Kennedy: The issue before the Court was whether a tax avoidance scheme fell within section 423. The Court of Appeal emphasised that merely avoiding a tax liability does not equate to prejudicing creditors, unless the transaction is aimed at existing or prospective claims, it falls outside the statute. The case draws a line between legitimate tax planning and arrangements designed to undermine creditor recovery.

Together, these authorities sharpen the evidential battleground. Courts may be willing to infer purpose from surrounding circumstances, but they will also police the limits to avoid capturing bona fide commercial or tax activity.

50

ThoughtLeaders4 Disputes Magazine • ISSUE 19 together with fair value assessments of transferred assets. Weak or speculative reports can be fatal to a claim.

Practical Guidance for Practitioners The recent authorities carry several lessons for insolvency office-holders, judgment creditors, and their advisers.

1. Structuring claims across statutory routes: El-Husseiny confirms the breadth of section 423, but practitioners should consider carefully when to deploy it alongside, or instead of, section 238 or section 339. For example, a liquidator may prefer section 238 where insolvency at the “relevant time” is provable, but judgment creditors may turn to section 423 as a standalone remedy.

Strategic mapping of statutory routes at the outset can avoid wasted costs or jurisdictional hurdles later 2. The importance of evidencing purpose: Both Malik and Al Sari show that purpose rarely emerges from a single “smoking gun.” Courts will draw inferences from a pattern of behaviour — e.g. a trust settled days before judgment, or a suite of backdated tenancy agreements.

Practitioners should anticipate the need to assemble circumstantial evidence (timing, counterparties, internal communications, gaps in disclosure) into a persuasive mosaic.

3. Disclosure as both sword and shield: Al Sari illustrates the dangers of “documentary black holes.” Where disclosure is partial or inconsistent, the court may infer dishonesty or improper purpose.

Conversely, directors facing undervalue allegations should ensure board minutes and working papers contemporaneously record the commercial rationale for transactions — absence of such records will be held against them.

4. Valuation and expert evidence: Although valuation evidence was not central to the cases discussed in this article, undervalue litigation in practice often rises or falls on valuation evidence so should always be front of mind for practitioners. Courts typically expect rigorous expert analysis of both balance-sheet and cash-flow solvency,

5. Distinguishing legitimate planning from prejudice: Purkiss demonstrates the importance of evidentially separating legitimate tax or commercial structuring from arrangements intended to defeat creditors. For example, documenting that a distribution was driven by a tax efficiency programme, rather than a reaction to looming liabilities, may be decisive.

Conclusion The past year has reinforced and expanded the reach of TUV proceedings.

The Supreme Court in El-Husseiny confirmed that section 423 cannot be circumvented by interposing corporate structures. The Commercial Court in Al Sari demonstrated a robust approach to sham arrangements, disclosure failings, and cross-border evasion. Malik and Purkiss have refined the “purpose test,” showing both how broadly it can be inferred and where the limits lie.

Across these cases, three themes emerge. First, the courts are emphasising substance over form, unwilling to let complex structures or artificial documentation obscure reality.

Second, the debtor’s purpose remains the decisive factor under section 423, with courts prepared to infer intention from context but careful not to capture legitimate planning. Third, evidence is paramount: from expert valuation in corporate cases to disclosure and inference in fraud claims, outcomes turn on the strength of the evidential record.

The tools available to protect creditors are becoming broader and more robust than before, but success depends on careful pleading and rigorous evidence.

For insolvency practitioners, this means closer scrutiny of the substance and purpose of transactions. For debtors and directors, it underlines the risks of asset transfers in the shadow of insolvency: whatever the form, if the effect and purpose is to prejudice creditors, the courts are likely to intervene.

51

CORPORATE DISPUTES TH - 5 ANNUAL FORUM 2 December 2 2 Hyatt Regency London The Churchill

The Only Forum Dedicated to Corporate Disputes.

For partnership enquiries, please reach out to Ben Jobson at +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com

ThoughtLeaders4 Disputes Magazine • ISSUE 19

SHINING A LIGHT ON THE VALUE OF SHADOW EXPERTS IN THE RESOLUTION OF COMPLEX DISPUTES

Authored by: Michael Barber (Forensic Accounting Expert), Fred Brown (Forensic Accounting Expert) & Tom Middleton (Economic Expert) - Grant Thornton UK Advisory & Tax

Introduction Shadow experts can provide an important supporting role in resolving commercial disputes. However, probably due to necessarily being ‘behind-the-scenes’, their value as a ‘secret weapon’ in dispute resolution is not often discussed, and hence they are arguably underused.

This article shines a light on the benefits that focused and strategic support from shadow experts, in particular forensic accounting, valuation and economic experts, can have throughout the lifecycle of a case: from initial investigations during claim formulation, through disclosure and settlement support, to assisting with trial preparation.

Shadow Expert vs.

Expert Witness The terminology “shadow expert” may engender in our minds an unduly negative impression of the role. Rather, the term simply recognises that such experts do not have a visible role in the litigation process, as they are not a formal expert witness under Part 35 of the Civil Procedure Rules1 (CPR 35).

As such, unlike a CPR 35 expert, they do not have an overriding duty to the court,2 and their involvement is typically not disclosed to the other party.

Sometimes used interchangeably with the term “expert advisor”, the shadow expert’s role is not to testify or produce reports for the court or tribunal, but to provide confidential advice that helps the legal team and client understand and respond to technical and financial issues. Shadow experts’ advice must still be honest and realistic, and they must adhere to the applicable ethical standards, although they are somewhat freer to play a more significant role in informing case strategy and direction than a formal CPR 35 expert witness.

1 https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35 2 Per CPR 35.3: “(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

53

ThoughtLeaders4 Disputes Magazine • ISSUE 19

Pre-action Advice and Strategy

Pleadings and Disclosure

Shadow or advisory experts are usefully appointed in the investigatory stages of a case, to help the client and legal team understand the key issues as the claims are emerging, to help inform litigation strategy considerations.

Once the causes of action have started to take shape and the pleadings are being drafted, shadow/advisory experts can help the legal team to perform further exploratory analysis, accurately frame the key technical arguments, identify key supporting evidence, clarify technical terminology and help further quantify and articulate the claimed damages. They can review the other party’s Defence to identify areas requiring further investigation and help articulate responses to technical issues to be included in Reply submissions.

A shadow expert can prepare early analyses and give the legal team a steer on the potential claim value. Their advice could impact on whether the claim is brought at all, or whether the strategy may be to try to settle early.

They can opine on the strengths and weaknesses of key liability or causation arguments by reference to the technical evidence.

e.g. in a negligence case whether or not the work appears to meet the standard of a reasonably competent professional.

In major cases, the shadow/advisory expert’s early investigatory work can sometimes be substantial. For example, in a large and complex civil fraud matter, a thorough pre-litigation investigation can be necessary prior to launching a claim, and especially where ‘full and frank’ disclosure obligations apply to accompanying without-notice freezing applications.3 The expert’s early advice can be critical in helping to secure third-party funding, by helping remove some of the uncertainties about quantum of damages, including through scenario modelling. Their work can also support strategy considerations, such as which defendants to target based on the evidence against each.

During the disclosure phase, shadow/ advisory experts can help identify relevant documents, review for completeness, support the client extract and process key financial data, and formulate disclosure requests.

From a defendant’s perspective, a shadow expert can support their legal team in challenging technical points made in the Particulars of Claim, or in responding to pre-action correspondence, which could even help to nip the dispute in the bud before it gets going.

Settlement and Mediation

Appointment of an Independent Expert Witness In certain circumstances, an expert providing early-stage input may go on to be appointed as the CPR 35 expert witness, but only if they are satisfied that their independence is unaffected by their prior work. If progression into the CPR 35 expert role is considered possible or likely, the expert should conduct themselves and their work with this in mind from the outset.

Where a new expert is to be appointed into the CPR 35 expert role, a shadow expert can help identify the scope of expert evidence required, identify potential candidates, and quickly bring the expert witness up to speed. Care is needed here so that the CPR 35 expert witness is not unduly influenced by preexisting hypotheses, and they must be given access to all relevant documents so they can reach their independent opinion.

Once the expert witness has prepared their draft report, the shadow expert may be asked by the legal team to identify gaps, potential weaknesses, flawed assumptions or alternative methodologies for consideration. They can also critique the other side’s expert report (in the background).

When settlement opportunities arise, shadow/advisory experts can run different damages quantum scenarios to assist the legal team and client in making and assessing potential offers.

They can also prepare ‘mediation papers’ to succinctly articulate key technical issues, and attend a mediation. If a formal expert witness has been appointed by this stage, the shadow expert’s involvement can help keep them at a safe distance from such negotiations to preserve their independence and limit distractions from their core function.

3 See for example: https://www.eversheds-sutherland.com/en/global/insights/incorrectly-obtained-or-inadvertently-lost, “Litigants that fall foul of the duty to give full and frank disclosure run the risk of their injunctive relief, protecting against the dissipation of assets, being set aside or a request to continue an order being refused. “

54

ThoughtLeaders4 Disputes Magazine • ISSUE 19

Single Joint Expert Cases and Expert Determinations Where a single joint expert (SJE) is appointed, e.g. matrimonial/divorce cases, the parties sometimes each appoint their own shadow experts to provide background support. The shadow expert can prepare their own assessments or valuations, review the SJE’s report and advise the client and legal team on the strengths and weaknesses of the SJE’s opinions. They can also help devise questions to be put to the SJE, which could alert them to issues to potentially address or amend for in their subsequent expert reports.

In expert determinations, parties may appoint forensic accountants to help prepare their submissions to the expert determiner, a role akin to a shadow expert. In such cases, most commonly post-acquisition disputes, timely engagement of a shadow expert can be critical. They can advise on actions that need to be taken urgently to maximise chances of success, such as preserving and collating evidence of post-deal actions, such as communications with debtors - to demonstrate that reasonable collection efforts were made.

Trial and Hearing Preparation Leading up to a trial or hearing, the shadow expert can contribute by helping to brainstorm potential crossexamination challenge areas for the party’s independent expert witness to consider in their preparation. Witness coaching must be avoided, however.

The shadow expert can also help brief counsel and suggest topics for cross-examination of the other party’s witnesses and experts.

Top Tips for Working With Shadow Experts • Engage early: Whilst shadow experts can be appointed at any stage, involving them early permits their input into case strategy during the formative period. It is important that quantum of damages assessment is not left too late, by which point costs may have spiralled out of proportion to the potential damages achievable.

Identification of key issues, and candid advice on them, is particularly impactful if performed at an early stage.

Conclusion Forensic accountants and economists acting as shadow/advisory experts can be an invaluable and flexible strategic partner in complex commercial litigation.

They can provide early, candid advice, give timely input into case strategy, provide healthy critique to CPR 35 expert reports, assist with disclosure and settlement negotiations, and support counsel with trial preparation. In other words, shadow/advisory experts can help strengthen a case at every stage and materially improve outcomes for clients.

• Clear roles: If different shadow and independent experts are to be appointed, ensure the roles and responsibilities are clearly defined.

The shadow expert must avoid preparing their work in CPR 35 expert witness format, as there is a risk this could perceived as ‘opinion shopping’ if a different expert is formally appointed later.

• Consider the benefits of a range of skills: Unlike a CPR 35 expert witness, shadow experts need not be any one single individual, but a multidisciplinary firm can be appointed into such a role, allowing advice to be obtained on various complementary areas of expertise, such as forensic accounting, economics, valuation, tax, insolvency, corporate finance, restructuring and audit - as well as sector expertise. Here, they can be most effective as a strategic partner to the litigation team.

Although some may wonder if the engagement of a shadow expert represents a ‘doubling up’ of expert costs, their costs are controllable, since their tasks can be focused and they can be instructed to stop/start discrete pieces of analysis as needed. This contrasts with a formal expert witness who must consider all the relevant evidence to address their formal instructions. The shadow expert may well also save costs in the long run by helping to sensibly shape the case strategy to proceed proportionately based on the issues that matter most.

55

ThoughtLeaders4 Disputes Magazine • ISSUE 19

REPRESENTATIVENESS REQUIREMENT:

POSITIVE DEVELOPMENTS FOR PUBLIC INTEREST ACTIONS IN THE NETHERLANDS Authored by: Noor Hogerzeil (Counsel) - Lindenbaum In a public interest action, an interest group files a claim to protect certain public interests. Well-known examples are the Urgenda case1 and the Shell case2. In order for a public interest group to be admissible in the proceedings, the interest group has to establish, among other things, that it is representative. This requirement is currently under scrutiny.

Following several public interest actions against the Dutch State, the House of Representatives requested an investigation into whether the representativeness requirement should be amended – i.e. tightened – for public interest actions.3 This investigation has been incorporated as a separate part of the already planned evaluation of the

Dutch collective action act (“WAMCA”) in 2025.

The report of that investigation into the legal representativeness requirement for public interest actions (“Report”), published in May 2025, seems to be good news for public interest actions.

The Representativeness Requirement To bring a collective action, an interest group must be sufficiently representative, taking into account its constituency and the size of the claims represented.

The legislative history gives little guidance on how the courts should apply this to public interest claims.

In literature and case law a distinction is made between broadly speaking two criteria to assess the representativeness of an organisation: the quantitative (or formal) criterion and the qualitative (or material) criterion.4 The quantitative test is, briefly put, whether the interest group represents a sufficiently large proportion of the group of victims affected. This can be assessed for example on the basis of the number of members affiliated with an interest group or the number of victims who have actively registered for the claim.5 The qualitative test is whether the interest group is suitable to represent the interests that are the subject of

1 In the Urgenda case, which was initiated by a Dutch public interest group, the Dutch state was ordered to comply with its obligations under the Paris Agreement (Supreme Court 20 December 2019, ECLI:NL:HR:2019:2006 (Dutch State/Urgenda)).

2 In the Shell-judgment, which is currently under review by the Supreme Court, the Court of Appeal of The Hague ruled that the duty of care of companies like Shell to take action against dangerous climate change by limiting CO2 emissions, doesn’t entail an obligation for Shell to reduce its CO2 emissions with a specific reduction percentage (Court of Appeal of The Hague, 12 November 2024, ECLI:NL:GHDHA:2024:2099 (Shell/Milieudefensie)).

3 Parliamentary Papers 2022/23, 36169, nr. 37 and 2023/24, 36169, nr. 41.

4 See more extensively: R. Stolk (2024), ‘Representativiteitsvereiste bij belangenorganisaties: onnodige drempel of onmisbare waarborg? Over het civielrechtelijke representativiteitsvereiste en het ontbreken daarvan in het bestuursrecht’, Overheid & Aansprakelijkheid, 2024 (3), p. 72-87.

5 Parliamentary Papers II 2016/17, 34608, nr. 3, p. 19.

56

ThoughtLeaders4 Disputes Magazine • ISSUE 19 the proceedings. A broad range of circumstances and factors can be taken into account for the suitability assessment, including the other activities of the interest group, whether the interest group has acted as a mouthpiece in the media and the extent to which the parties involved accept the interest group as representative.6 In recent years courts have been applying the representativeness requirement more and more in a practical and flexible manner in public interest actions, because they find the quantitative approach to be less suitable in public interest actions. The question of whether a claimant is sufficiently representative is now often answered on the basis of the nature of the case and the specific circumstances of the case, whereby the court may also attach importance to qualitative factors.7

military products/technology from the Netherlands to Egypt,11 and nitrogen measures.12 The investigation request was met with considerable criticism in literature and from non-profit organisations, which stated that the representativeness requirement already made access to the courts more difficult for public interest actions.

The responsible Minister (on behalf of the government) advised against tightening the representativeness requirement for public interest actions. He pointed out that access to the courts is important and that courts already rigorously assess the representativeness.13 Public interest groups also play an important role in representing voiceless interests.

The Minister in this regard referred to the Aarhus Convention, which gives citizens the right of access to justice in environmental matters.14 The study into tightening the representativeness requirement for public interest actions was nevertheless commissioned. This study has been incorporated as a separate component in the already planned evaluation of the WAMCA in 2025.

(i) L aw is unclear: the Dutch representativeness requirement is currently not formulated sufficiently clearly in the WAMCA for public interest actions;15 (ii) Current interpretation by courts may already be too strict: the current interpretation of the representativeness requirement in environmental cases may already be at odds with article 9 Aarhus Convention. A further tightening of the requirement for public interest actions would push this further;16 and (iii) Quality over quantity: a comparative law analysis showed that in all countries examined, representativeness plays a role in assessing an organisation’s admissibility in court; in the majority of those countries more weight is given to the suitability of the organisation to represent the interests at issue in the proceedings (qualitative test) than the amount of affiliated or registered persons (the quantitative test).17

A Positive Outlook for Public Interest Litigation?

In view of the Report it seems unlikely that the statutory representativeness requirement will be tightened.

Investigation Into Possible Tightening of the Representativeness Requirement In 2023, the majority of the House of Representatives requested the government to investigate whether the statutory representativeness requirement for public interest actions should be tightened.8

The 2025 Report on the Representativeness Requirement for Public Interest Actions

Although not explicitly stated, this request seemed to follow from several public interest actions against the Dutch State, such as cases regarding ethnic profiling by the Dutch border police,9 the ban on assisting suicide,10 the export of

The report on the representativeness requirement for public interest actions was published in May 2025. The conclusions of the researchers are briefly summarized as follows:

Rather, it is to be expected that the course already set in Dutch case law will continue: a practical and flexible manner approach of the representativeness requirement in public interest actions, whereby the court takes into account the nature and the specific circumstances of the case, and where appropriate also attaches importance to qualitative factors.

The second part of the evaluation of the WAMCA will be published ultimately on 19 November 2025.

6 See for example T.M. Sweerts & J.F. Hackeng, ‘Eén voor allen en allen door één: over representativiteit in het collectieve actierecht’, Nederlands Tijdschrift voor Burgerlijk Recht 2022/33.

7 See for example: District Court of The Hague 12 March 2025, ECLI:NL:RBDHA:2025:3488, par. 5.21; District Court of The Hague 25 September 2024, ECLI:NL:RBDHA:2024:14834 (Greenpeace/Dutch State), par. 3.11.; District Court of Mid-Netherlands 17 July 2024, ECLI:NL:RBMNE:2024:4106, par. 4.17-21. See also: R. Stolk (2024), ‘Representativiteitsvereiste bij belangenorganisaties: onnodige drempel of onmisbare waarborg? Over het civielrechtelijke representativiteitsvereiste en het ontbreken daarvan in het bestuursrecht’, Overheid & Aansprakelijkheid, 2024 (3), p. 72-87.

8 Parliamentary Papers 36169, nr. 37.

9 The Hague Court of Appeal 14 February 2023, ECLI:NL:GHDHA:2023:173.

10 District Court of The Hague 14 December 2022, ECLI:NL:RBDHA:2022:13394.

11 District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12810.

12 District Court of The Hague 22 January 2024, ECLI:NL:RBDHA:2025:578.

13 Parliamentary Papers 36169, nr. 39, pp. 1-2, 14 Parliamentary Papers 36169, nr. 39, footnote 2; Convention on access to information, public participation in decision-making and access to justice in environmental matters.

15 Report, p. 20-30.

16 Report, p. 36-39.

17 Report, p. 55-56.

57

ThoughtLeaders4 Disputes Magazine • ISSUE 19

DISPUTES EDITION

1

WHICH TL4 DISPUTES EVENT IN 2025 EXPLORED THE INTERSECTION OF LEGAL STRATEGY AND MEDIA NARRATIVES IN INVESTOR-STATE ARBITRATION?

2

WHICH TL4 DISPUTES EVENT IS SPECIFICALLY FOCUSED ON ESG-RELATED LITIGATION?

3

WHAT IS ONE KEY BENEFIT OF BECOMING A TL4 NETWORKER+ MEMBER?

4 5

WHICH TL4 DISPUTES EVENT IN 2026 IS SET TO EXPLORE SHAREHOLDER AND SECURITIES LITIGATION?

WHAT IS THE NAME OF THE TL4 DISPUTES FEATURE THAT OFFERS QUICKFIRE INTERVIEWS WITH LEADING PRACTITIONERS?

INSTRUCTIONS: Write down your answers on Adobe or email us the answers directly Complete to redeem a 15% discount to one of our Disputes events.

Once complete, please take a screenshot and send over to amelia@thoughtleaders4.com *This offer expires on Friday 2nd January 2026, this discount code is not eligible for use with other codes.

58

Meet

Paul Barford Founder/ Managing Director 020 3398 8510 email Paul

Chris Leese Founder/Chief Commercial Officer 020 3398 8554 email Chris

Danushka De Alwis Founder/Chief Operating Officer 020 3580 5891 email Danushka

Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545 email Maddi

Our Corporate Partners:

Amelia Gittins Senior Strategic Partnership Executive 020 3059 9797 email Amelia

Yelda Ismail Senior Marketing Manager 020 3398 8551 email Yelda