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ISSUE 20 - MARCH 2026

MAGAZINE Bridging Conflicts. Building Solutions.

Thought Leadership for and by the Disputes Community

ThoughtLeaders4 Disputes Magazine • ISSUE 20

INTRODUCTION “In the middle of difficulty lies opportunity.”

- Albert Einstein

We are thrilled to present Issue 20 of the Disputes magazine. This edition dives into the themes of: Financial Institutions, Sanctions, Sovereign & States and Corporate Crime. 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. The ThoughtLeaders4 Disputes Team Paul Barford Founder/ Managing Director 020 3398 8510

Chris Leese Founder/Chief Commercial Officer 020 3398 8554

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Owen Dilworth Conference Producer Associate 020 3998 9971 email Owen

CONTRIBUTORS

CONTENTS | Financial Institutions | Sexism in The City - The Fall of the NDA and What it Means for Handling Misconduct .............................................

What is Decision Tree Analysis? ..........................

60 seconds with... Alex Marine .............................. 10 Significant Quincecare Claims Survive Strike Out/Summary

Judgment Applications .......................................... 12

| Sanctions | New OTSI Freight and Shipping Guidance .......... 15 When the Oil Sanctions Hit Home ......................... 17

| Sovereign & States | Arbitration by Numbers Observations on the Latest

Institutional Statistics ............................................ 21 Registration and Enforcement of

ICSID Awards in Singapore ................................... 24 The EU and the Changing

Landscape of International Trade ......................... 27

Anna Cacciaguerra Ranghieri - DRD Partnership

Emily Wyse Jackson Deminor Litigation Funding

60 seconds with... Anna Cacciaguerra Ranghieri ... 31

Namita Moorjani - Deminor Litigation Funding

Porntida Thitaparun Deminor Litigation Funding

| Corporate Crime |

Alex Marine - Deminor Litigation Funding

Matthew Koh - Rajah & Tann

Catherine Hammerson-Jones - Lewis Silkin Nicola Thompson - Lewis Silkin Syedur Rahman - Rahman Ravelli Waleed Tahirkheli - Eldwick Law Rashid Gaissin - Eldwick Law

Christian Lau - Dentons Simon Schropp - BRG Anoushka Warlow - BCL Solicitors Amelia Clegg - BCL Solicitors Chloe-Jane Belton - Howard Kennedy Philip Gardner - Peters & Peters

Private Prosecutions A Mechanism of Upholding Justice,

or an ‘Alternative’ to Civil Litigation? ................... 33 When Internal Investigations Go Wrong -

Common Pitfalls and How to Avoid Them ........... 35 Cutting to the (Star Wars) Chase Unjust Enrichment, Strike Out and

AI Beyond the Grave .............................................. 38 2

Upcoming Events The Anti-Bribery & Corruption Forum 2026 - 3rd Annual 21 April 2026 | The Dilly, London, UK Shareholder & Securities Disputes - The 2nd Annual Forum 28 April 2026 | The Dilly, London, UK UK Class Actions Circle 14-15 May 2026 | Down Hall, UK The European Class Actions Forum - 3rd Annual 16-17 June 2026 | Venue Collective - The Conference, Amsterdam Corporate Disputes Circle 18-19 June 2026 | Ashdown Park, Hertfordshire, UK European Collective Redress Circle 10-11 September 2026 | EU Venue TBC Sanctions in Disputes Circle 17-18 September 2026 | UK Venue TBC Shareholder Disputes Circle 24-25 September 2026 | UK Venue TBC The UK Class Actions Forum - 6th Annual 14-15 October 2026 | London

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

DRD is a strategic communications consultancy focused on building value for our clients and protecting their reputations at moments of challenge and change. DRD Partnership combines the level of client attention and commitment of a boutique consultancy with the experience and seniority of a national-level advisory firm. Chambers and Partners

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| Financial Institutions |

ThoughtLeaders4 Disputes Magazine • ISSUE 20

SEXISM IN THE CITY THE FALL OF THE NDA AND WHAT IT MEANS FOR HANDLING MISCONDUCT

Authored by: Anna Cacciaguerra Ranghieri (Senior Associate) - DRD Partnership

The Employment Rights Act reforms will make some confidentiality clauses unenforceable in harassment and discrimination contexts. Organisations that still default to silence may find the secrecy becomes the story. Here, DRD’s Anna Cacciaguerra Ranghieri and Claire Davidson give key advice to employers wishing to maintain credibility in highly sensitive scenarios. For years, confidentiality clauses and NDAs have been treated as routine plumbing in employment disputes: a way to reduce noise, limit exposure, and draw a line under challenging situations. That practice is now colliding with a new baseline expectation: when allegations involve harassment or discrimination, “managed silence” as part of the handling of such allegations or any settlement, can look like managed impunity - even if the organisation is acting lawfully and responsibly. The tide has been turning against NDAs for a number of years, with The Times among other media titles a key advocate against their use in many contexts. A number of very high profile and era-defining stories over the last decade have been made possible by the use of allegedly broken NDAs – not least Zelda Perkins’ FT interview

regarding Harvey Weinstein, and the Stormy Daniels “hush agreement” dispute. The Employment Rights Act 2025, which received Royal Assent in December 2025, is introducing reforms that will void NDAs and confidentiality clauses, to the extent they would prevent workers from making allegations or disclosures about work-related harassment, sexual harassment and abuse or discrimination - or the employer’s response to such allegations. These provisions are expected to come into force from 2026, with precise commencement dates still to be confirmed. The Act demonstrates a clear legislative understanding of cultural expectations around transparency and credibility. It is now for employers to demonstrate they are in lockstep with this shift.

Financial Services and the Reign of Secrecy In 2024, the Treasury Committee launched an inquiry, “Sexism in the City”, to examine how far (or not) UK financial services has progressed on gender equality and workplace culture, and what government, regulators and firms should do to improve it. The financial services industry did not fare well, particularly with regards to how

ThoughtLeaders4 Disputes Magazine • ISSUE 20 sexual misconduct matters were treated or covered up by the firms. Dame Amanda Blanc, Group CEO of Aviva, told the inquiry that physical and verbal harassment of women in financial services was worse than other industries. Not-for-profit group Can’t Buy My Silence (CBMS) pointed to the misuse of NDAs in enabling discrimination to go unchecked in the City. The group said that NDAs force victims to lie to family and future employers and prevent bosses from rooting out poor culture. The inquiry heard of increasing evidence of the widespread use of NDAs to cover up abuse, harassment and discrimination in the City. The case of Odey Asset Management, which recently uncovered at least 46 allegations of inappropriate conduct against the financier, was cited a key example of this, flagging that “NDAs were used to cover up abuse of women by Crispen Odey over five decades”. So poor was the industry’s perceived approach to such issues that the Financial Conduct Authority has been pushing firms to take non-financial misconduct seriously, including through informationgathering and scrutiny of how firms handle cases of sexism, bullying and harassment. Its final guidance on this was published in December.

Why Containing the Damage is no longer an Option While legislators have removed the ability of organisations to use NDAs in sexual misconduct matters, containing the damage remains a strong instinct for many firms – to protect their reputation and maintain value. However, as in the Odey case, when stakeholders believe an organisation is using confidentiality, governance manoeuvres, or procedural tactics to avoid scrutiny rather than protect people and due process, the “cover-up” narrative can eclipse everything else. Taking steps to withhold information is, of course, justified in numerous scenarios - particularly where the legal privacy protections of victims or whistleblowers are at risk. Nonetheless, institutions should be alive to the potential unintended reputational consequences of doing so: loss of internal trust; increased public speculation; missed opportunities for learning; or the emergence of inaccurate narratives. A strategy focused solely on

| Financial Institutions |

containing scrutiny often backfires, which is why solicitors we work with often advise against NDAs.

In a crisis, those values must be visible and form the cornerstone of your response.

So, what should organisations consider when navigating complex and sensitive misconduct matters?

3. Agree What Parties Will Say Settlement negotiations are a key window for employers to come to agreements on what sides will and will not say. In a post-NDA world, this should be an open and constructive process with little if any legal positioning, built on trust and discussion. This will not always be possible, but transparency and finding common ground on what will and will not be said will be a helpful exercise on all sides. This is an area we have worked on alongside employment teams and clients

What Organisations Must do Now: Credibility Under Constraint

4. Media Isn’t Everything Staff are perhaps the most critical ambassadors for any organisation and must be central to crisis communications planning.

The reputational goal here is not radical openness around live employment disputes. It’s credibility under constraint: being transparent about principles, process and support while protecting individuals and complying with the law.

Secrecy is unlikely to protect against a rumour mill among internal stakeholders. A complete absence of information may instead fuel speculation, allowing inaccurate or more damaging narratives to take hold.

1. Strengthen SpeakUp Routes and AntiRetaliation Enforcement

Worse still, misinformation may circulate in ways that compromise the legal rights of those involved - particularly the anonymity of victims.

Multiple channels, independent options, and visible consequences for retaliation are what turn policy into trust. But channels alone don’t build credibility - what matters is whether people believe (a) they’ll be protected, and (b) something meaningful will happen. In practice, that means offering more than one safe route to raise concerns, making sure an option feels independent where power dynamics are acute, and explaining in plain English what happens after someone reports timelines, support available, and how confidentiality will be handled.

2. Communicate Culture Stakeholders should already be familiar with - and confident in - your values around safety, respect and accountability. The most credible organisations translate values into concrete signals: clear codes of conduct, visible senior sponsorship, regular reminders of support and reporting options, and evidence that complaints are handled consistently and fairly.

It is sensible therefore to arm managers with the ability to answer questions from staff within legal parameters. In some circumstances, it may also be prudent to consider informing employees of any issues to the extent you can. The new NDA provisions won’t force employers to litigate in public. But they do accelerate a shift already underway: the “silence as settlement” model is weakening, and the reputational cost of being seen to prioritise secrecy is rising. In 2026, the safer reputational posture is simple: protect people, demonstrate fairness, and communicate your principles and process, balancing legal caution with accountability.

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| Financial Institutions |

ThoughtLeaders4 Disputes Magazine • ISSUE 20

WHAT IS DECISION TREE ANALYSIS?

Authored by: Namita Moorjani (Financial Planning & Investment Manager) - Deminor Litigation Funding Decision tree analysis is a graphical and analytical tool used to evaluate potential outcomes, decisions, and risks in legal disputes. It simplifies complex legal scenarios into structured, manageable components, allowing attorneys and investment professionals to assess each decision path in a systematic manner. By mapping out alternative scenarios, decision tree analysis provides a clear visual representation of possible outcomes together with their associated probabilities and financial implications. This approach is particularly valuable in the context of legal disputes, where predicting outcomes and quantifying risk is inherently uncertain. It facilitates the consideration of key parameters and arguments while integrating both legal and financial perspectives. Overall, decision tree analysis provides a structured framework that complements qualitative legal assessments by introducing quantitative rigour into strategic decision-making.

How Decision Tree Analysis Works The following example illustrates the principal stages involved in applying decision tree analysis to a dispute. This simplified model focuses on overarching outcomes rather than individual legal issues or arguments.

Arbitration Outcome

Win - EUR 10m

Enforcement Outcome

Final Outcome

Full Recovery

Full Recovery - EUR 10m

70% Probability

42% Probability

60% Probability No Recovery

No Recovery

30% Probability

18% Probability

Settle - EUR 5m

20% Probability

Lose - EUR 0m

Lose

20% Probability

ThoughtLeaders4 Disputes Magazine • ISSUE 20

Step 1: Identify Key Decisions and Uncertainties The first stage involves identifying the pivotal decisions to be made during the dispute, such as whether to pursue a settlement or proceed to an arbitral award, which could ultimately be favourable or unfavourable. Consideration should also be given to post-award enforcement, as the ability to enforce a decision can significantly influence the expected recovery. In this example, the potential award amount is €10 million, while a possible settlement might yield €5 million.

Step 2: Assign Probabilities to Outcomes Probabilities are then assigned to each event, based on legal expertise, precedents, and available data. This allows for the estimation of financial impacts across possible outcomes.

Based on the decision tree, the probability of success is 60%, the probability of settlement 20%, and the probability of loss 20%. In addition, there is a 70% probability of successfully enforcing the award. Step 3: Calculate Pathway Probabilities By following the branches of the decision tree, it is possible to calculate the overall probability of each pathway by multiplying the probabilities associated with each decision node. Using the example above, a 60% chance of success combined with a 70% chance of enforcement yields an overall probability of 42% for recovering the full award of €10 million.

value of damages can be calculated by multiplying each probability by the corresponding recovery and summing the results. Using the illustrative example above, this would equate to 42% of €10 million, 20% of €5 million, and a 38% chance of no recovery due to either losing the arbitration or being unable to enforce the award. The resulting expected value is approximately €5.2 million. The expected value represents a useful metric for in-house counsel, legal teams, and litigation funders, as it consolidates all potential outcomes into a single average figure. It highlights the balance between potential risk and reward: even where the potential recovery is high, a low probability of success will reduce the expected value, signalling a higher risk position. While the expected value provides an indication of the average potential payoff, the actual result may vary substantially. In practice, recovery could fall anywhere between €0 and €10 million. Costs can also be integrated into the model by assigning expected costs to each decision pathway, thereby enabling calculation of the expected cost and net value of different strategic options. Comparing expected recovery with expected cost provides insight into the relative attractiveness and risk level of each approach. For example, if spending €5 million could lead to a €7 million recovery from a successful award, the analysis helps assess whether that approach makes business sense. When several disputes are being handled at the same time, expected values can also guide how resources are allocated by highlighting the cases with the best balance of risk and potential return.

| Financial Institutions | Stress testing involves adjusting probabilities, assumptions, and critical variables to observe the effect on predicted outcomes under less favourable conditions. This process helps identify sensitivities within the model and mitigates the risk of overconfidence by revealing where assumptions may be overly optimistic or uncertain. For example, if prior analysis suggests a 75% probability of success, stress testing could assess the impact on costs and recovery should that probability decrease to 60%. This exercise encourages legal teams to plan for a wider range of potential outcomes and to prepare for unexpected developments. By engaging in such testing, legal teams can develop contingency plans and maintain strategic flexibility. This adaptability is particularly important in the context of legal disputes, which are inherently dynamic and subject to change as proceedings evolve.

Conclusion Decision tree analysis offers significant advantages by introducing quantitative discipline into the assessment of legal risks and strategies. It enables legal professionals to deconstruct complex disputes into discrete, measurable components and to evaluate the potential financial consequences of each strategic choice. While it provides a valuable framework for understanding and managing uncertainty, decision tree analysis should be used in conjunction with other qualitative and strategic assessment tools. It is not a substitute for professional judgment but rather a complementary method that enhances decision-making by integrating legal reasoning with financial analysis.

Stress Testing Expected Value Calculation Once the overall probabilities and damage amounts for each decision path are determined, the expected

The accuracy and reliability of a decision tree analysis are dependent on the quality of the input data and assumptions. Therefore, it is essential to conduct stress testing to examine how changes in key assumptions affect the expected value and overall conclusions.

ThoughtLeaders4 Disputes Magazine • ISSUE 20

60 SECONDS WITH... ALEX MARINE SENIOR ENFORCEMENT MANAGER

DEMINOR LITIGATION FUNDING hat is one work related goal W you would like to achieve in the next five years? To build a team that is second to none when it comes to funded enforcement and asset recovery.

What does the perfect weekend look like? I t would be one of two things. Either going away to a new destination with my wife for a couple of nights or just being at home, going to the gym in the morning, doing some DIY during the day at my own pace and grilling lamb chops on the Big Green Egg in the evening, with a glass of whisky in my hand.

What do you see as the most important thing about your job? Staying human regardless of the stress, the toil and the sweat.

What motivates you most about your work? The thrill of finding a solution to a client’s complex problem.

What songs are included on the soundtrack to your life? he music I like includes, T Metallica’s “The Unforgiven” and “Until it Sleeps”, Tchaikovsky’s 5th symphony and “Save Tonight” by Eagle-Eye Cherry.

What is the most significant trend in your practice today?

hat’s the most important W quote you’ve heard that you have adopted to your personal or professional life? I really like Steve Jobs’ “The only way to do great work is to love what you do”. I happen to love what I do, and I have always believed that there is no point doing something, unless you strive to do it well.

Dead or alive, which famous person would you most like to have dinner with, and why? ne of my favourite movies of all O time is the “Big Short”, so I’d love to have dinner with Steve Carell, who I generally like as an actor.

I n the UK this has been the chilling effect of the “Paccar” decision by the Supreme Court, coupled with the higher cost of capital for funders following interest rate rises. Globally, the rise of Asia as a market for litigation funding and funded asset recovery / enforcement work, which is the corollary of the rise of Asian economies, especially compared to the cooling down of European economies.

If you could learn to do anything, what would it be? It would be really cool to learn to fly a plane!

What advice would you give to your younger self? o eat less junk food – it’s not T good for you! Sadly, I know my younger self wouldn’t listen to that advice…

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| Financial Institutions |

ThoughtLeaders4 Disputes Magazine • ISSUE 20

SIGNIFICANT QUINCECARE CLAIMS SURVIVE STRIKE OUT/ SUMMARY JUDGMENT APPLICATIONS Authored by: Catherine Hammerson-Jones (Partner, Dispute Resolution) & Nicola Thompson (Managing Knowledge Lawyer, Dispute Resolution) - Lewis Silkin The Commercial Court has recently considered summary judgment and strike out applications in two Quincecare claims brought by two Arena companies and Sentinel Broadcast against Bank of Scotland (BoS) and Lloyds Bank. Although some aspects of each parties’ case were disposed of summarily, key issues now remain to be determined at trial.

Who’s Who and What Happened?

However, most of the equipment did not in fact exist or was subject to prior lending. Over £1.2 billion of ABL is said to have been obtained for 8,196 pieces of equipment, but only 66 actually existed. The claimants say the monies were not used in the Arena companies’ businesses but were misapplied for personal benefit and to conceal and perpetuate the scheme in a Ponzi like fashion.

The banks made applications for summary judgment or strike out.

The Claims at a Glance

The Arena proceedings were brought by Arena Television Limited and Arena Holdings Limited (both in liquidation) against BoS and Lloyds. Arena TV was an outside television broadcaster; Arena Holdings was its parent company. The banks provided Arena’s GBP and USD current accounts. The Sentinel proceedings were brought by Sentinel Broadcast Limited (in administration) against Lloyds in relation to Sentinel’s account.

The Arena companies allege that BoS and Lloyds breached their banking mandates by executing instructions that lacked Arena’s actual authority. They also argue that the banks could not rely on the former directors’ apparent authority as authorised signatories, as they had notice of facts which would cause a reasonably skilful and careful banker to make enquiries (and they failed to do so). They seek reconstitution of Arena’s accounts or damages in the alternative.

Both cases arise from a large-scale asset backed lending (ABL) fraud. Arena’s former directors and Sentinel’s sole director allegedly ran a scheme under which Arena “sold” non existent broadcast equipment to intermediaries (often Sentinel), which then sold it on to lenders. The intermediary would receive the purchase price, take a commission and pass the proceeds to Arena. Arena would then enter into a hire-purchase agreement with the lender, so it could purportedly use the equipment in return for monthly payments.

Similarly, Sentinel alleges that payment instructions made by its director to Lloyds in respect of the payments of proceeds of ‘sales’ made to Arena were given without Sentinel’s actual authority. It is also argued that Lloyds cannot rely on the director’s apparent authority because it ought to have been apparent to Lloyds that the payments to Arena indicated or involved wrongdoing. Sentinel seeks reconstitution of Sentinel’s bank account (up to £1.078 billion) or damages for breach of duty.

The Applications Before the Court Three applications were heard together: 1. By the Banks in Arena: strike out/ summary judgment in respect of certain parts of the Particulars of Claim to confine Arena’s claims to payments to or for the directors’ direct personal benefit. 2. By Lloyds in Sentinel: strike out/ summary judgment of Sentinel’s entire claim. 3. Cross-Application by Arena: strike out/summary judgment in respect of, (i) the banks’ pleas that the directors had actual authority by reason of their control of the companies and/or the mandates and terms applicable to the accounts; and (ii) the banks’ counterclaims in deceit and unlawful means conspiracy.

ThoughtLeaders4 Disputes Magazine • ISSUE 20 One of the key arguments by the banks was that where a company’s directors fraudulently transact with third parties as part of the company’s business (a fraud by the company), their instructions are given with the company’s actual authority, save where monies are diverted for their own benefit (a fraud on the company).

How the Court Approached “Actual Authority” The court noted the importance to the applications of the Supreme Court decision in Philipp v Barclays Bank UK Plc [2024] AC 346, which concerned an authorised push payment fraud. The court summarised key concepts from this case including, importantly, the fact that the court in Philipp approved the principle stated in Article 23 of Bowstead & Reynolds on Agency (23rd ed), which was relied upon by Arena:

‘Authority to act as agent includes only authority to act honestly in pursuit of the interests of the principal.’ An agent who does not have actual authority in accordance with the above principle may nevertheless have apparent authority unless the bank is put on inquiry – in other words, it has reason to believe that the agent is acting without authority and fails to make inquiries that a reasonable person would have made in the circumstances. Within that context, the judge held that whether or not the directors had “actual authority” is not a short point that could be decided summarily and is a matter for trial.

He considered it arguable with a realistic prospect of success that Bowstead Article 23 accurately states the law and therefore that “at least in the absence of express agreement of the principal otherwise, an agent only has actual authority to act honestly in pursuit of the interests of the principal”.

It was also arguable with a realistic prospect of success that there is no realistic or workable distinction which can be drawn, as proposed by the banks, between frauds by and frauds on the principal (and that the authorities relied on did not support this proposition). As submitted by Arena, the ABL scheme both deceived lenders and inflicted serious liabilities on the companies and it is arguable that there was an overarching purpose of the dishonest extraction of funds for the benefit of the former directors, with all payments being a necessary or ancillary part. The court also considered there to be a realistic argument that actual authority of a company director derived from the articles of association which comprise Table A is not extended to acts done in breach of the directors’ duty under section 172(1) of the Companies Act 2006 (duty to promote the success of the company).

What the Court Decided on the Applications Accordingly, the banks’ attempts to summarily defeat Arena’s and Sentinel’s claims based on “actual authority” failed. The court also dismissed part of Arena’s cross application on this basis, finding that the issue of control was closely bound together with the wider issues of actual authority. The banks did succeed in trimming Arena’s “continuation loss” claim. Arena had pleaded damages for further liabilities it says it incurred to lenders after dates in 2008/2009, on the footing that the banks’ inquiries (which should have been made at that time had there not been a breach of duty) would have stopped the scheme. The court found that (unless a contract or the nature of their relationship takes the case ‘out of the norm’), the scope of the duty owed by a bank to a customer with a current account is limited to protecting the customer from unauthorised payments and might extend to consequential losses arising from those payments such as interest, overdraft fees or currency losses. However, the court concluded that the scope of the bank’s duty does not extend to authorised payments out of the account or transactions with others, even if those payments/transactions would not have

| Financial Institutions | been made due to the account being frozen pending the bank’s inquiries into a suspected unauthorised payment. Arena’s cross application succeeded in part on the mandates issue. The court found it unarguable by the banks that the account mandates and terms agreed with Arena had the effect of conferring actual authority on Arena’s former directors to conduct fraudulent transactions which did not amount to fraud on the companies themselves. The clauses identified gave the banks authority to act on instructions without inquiring into purpose or circumstances; they did not confer, or recognise, any actual authority in the directors to run fraudulent schemes. However, Arena’s attempt to knock out the banks’ counterclaims in deceit and unlawful means conspiracy failed. The judge accepted that if the counterclaims had relied only on the same payment instructions which, on Arena’s case, the banks should not have acted upon, the counterclaims would have been susceptible to being struck out. However, the banks pleaded reliance on other representations, not just the payment instructions, causing the court to conclude that the issues must be resolved at trial. It is also worth noting that the banks have applied for permission to appeal.

Commentary Catherine Hammerson-Jones, Partner in our Dispute Resolution team with a leading practice in banking litigation, specialising in Quincecare claims, comments: “The judgment underscores how difficult it remains to dispose of Quincecare disputes at a summary stage, with the court declining to determine “actual authority” issues without a trial and questioning any workable distinction between frauds by and frauds on the company in this context. Although the banks succeeded in trimming Arena’s claimed “continuation losses” by confirming the bank’s duty focuses on protecting against unauthorised payments (and only consequential losses flowing from those), they failed in efforts to rely on mandates or articles to establish actual authority for the alleged fraudulent scheme. The survival of the banks’ deceit and conspiracy counterclaims, premised on representations beyond the payment instructions, further highlights the factintensive nature of these disputes and the court’s inclination to resolve them at trial.”

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| Sanctions |

ThoughtLeaders4 Disputes Magazine • ISSUE 20

NEW OTSI FREIGHT AND SHIPPING GUIDANCE

Authored by: Syedur Rahman (Partner) - Rahman Ravelli Syed Rahman outlines the latest advice from the Office of Trade Sanctions Implementation. New guidance has been issued for shipping and freight companies in an attempt to tackle Russia’s efforts to transport banned goods. The Office of Trade Sanctions Implementation (OTSI) has published best practices and advice to help transportation and logistics companies reduce the risk of them ending up transporting products covered by sanctions on Russia. OTSI, which was created in 2024 to help combat Russia’s attempts to fund its war in Ukraine, has produced a 17-page list of goods that are at heightened risk of being diverted to Russia. It has also detailed potential red flags that the transport sector needs to be able to recognise and tactics that can be used to overcome these. These tactics include scrutinising paperwork for inconsistencies regarding names and languages used and carrying out visual inspections of items that may be wrongly classified to disguise their ultimate destination or purpose. OTSI also suggests placing clauses in contracts that stipulate that parties to them will not trade with Russia. It emphasises the need to be particularly careful regarding certain goods - such as advanced computer technology,

military hardware and heavy machinery – that are at increased risk of being diverted because of their importance to the Russian war effort. The guidance includes reminders for conducting checks on the backgrounds of goods and parties involved in a transaction; including screening the names of individuals and entities against sanctions lists. In a statement, OTSI said:

“Reducing Russia’s capacity to prolong the war in Ukraine is a key strategic UK objective. Enhanced compliance and due diligence can help prevent Russia’s ability to circumvent UK sanctions and access the goods it needs to conduct its war against the people of Ukraine.”

be argued that this latest guidance could have come earlier, it is a result of industry and sectoral concerns. As such, it is providing advice on many issues that industry has raised. While some of this could possibly have been anticipated, not all of it could have been immediately clear to OTSI. It should also be remembered that guidance on combating sanctions evasion must, by definition, come as a response to the sanctions evasion tactics that Russia has undertaken. The longer the war continues, the more refined sanctions circumvention practices will become, as will the resulting guidance. Guidance from the authorities will always be reactive, although there are some areas that OTSI has yet to fully tackle. For example, there are some aspects of digital transformation and cyber security that could be more fully addressed. A broader integration with global standards would greatly assist companies within the sector who have to deal with many different national and international regulations at a time.

Supplement This new guidance is a supplement to OTSI’s general guidance. A lot of guidance has, therefore, been put out prior to this. But while it could still

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| Sanctions |

ThoughtLeaders4 Disputes Magazine • ISSUE 20

WHEN THE OIL SANCTIONS HIT HOME

Authored by: Waleed Tahirkheli (Senior Partner) & Rashid Gaissin (Partner) - Eldwick Law On 10 October 2025, the United Kingdom’s Office of Financial Sanctions Implementation published a notice that rippled through boardrooms from Mumbai to Istanbul. Lukoil, Russia’s second-largest oil company and a producer of 1.7 million barrels per day, was designated under the UK sanctions regime. Within hours, the United States Treasury followed suit. Together with Tatneft and Rosneft, sanctioned in October and December, respectively, these three companies account for a significant portion of the global oil supply. For dispute resolution practitioners, the designations resulted in immediate instructions, including contract performance disputes, force majeure claims, and arbitration clause triggers. By adding Tatneft, Russneft, and Lukoil to the sanctions list, the UK and other nations sent a clear message: the architecture of Russian oil trade was being systematically dismantled.

Yet the October and December designations represented only the opening salvo. In January 2026, the EU and UK implemented what analysts call the “refining loophole ban,” prohibiting imports of refined petroleum products from any refinery that processes Russian crude oil. The measure forces refineries in India, Türkiye, and elsewhere to choose between Russian supply and access to European markets. For lawyers navigating this terrain, the question is no longer whether sanctions will generate disputes; rather, it is

“what form those disputes take, where will they be heard, and whether awards can be enforced?”

How Sanctions Work in Three Moves The coordinated sanctions offensive operates across three dimensions, each carrying distinct legal implications.

ThoughtLeaders4 Disputes Magazine • ISSUE 20 The first move is the direct designation of oil producers. When Lukoil was designated on 15 October 2025, any UK person or entity became prohibited from dealing with frozen Lukoil assets without specific authorisation from OFSI. The US followed on 22 October with OFAC blocking sanctions, whilst the EU imposed transaction bans. Wind-down general licences provided breathing room, but these have now expired (although some specific, tailored general licenses have been issued or extended for certain operations (e.g., specific oil projects, non-Russian retail stations, and certain EU-based subsidiaries) and these remain active into 2026 and, in some cases, beyond). December’s designation of Tatneft and other mid-tier producers extended the sanctions net further, signalling systematic targeting of Russia’s entire oil export infrastructure. The second move weaponises market access. The January 2026 refining loophole ban prohibits the import of refined petroleum products from any refinery that processes Russian crude oil. Indian refiners have become major buyers of Russian crude since 2022, purchasing at steep discounts and exporting refined products to Europe. The ban presents these refiners with a binary choice: continue processing Russian crude and lose European markets or abandon Russian supply chains to preserve EU and UK access.

| Sanctions |

The third move targets logistics. Over six months, the UK has sanctioned 133 oil tankers that form Russia’s shadow fleet, the largest such action in Europe. Without access to insurance, port services, and mainstream maritime infrastructure, Russia’s export capacity is constrained by physical limitations.

The court rejected this reasoning. Mere ownership by a designated person does not, by itself, render a subsidiary designated by extension. There must be evidence that the designated person exercises routine control over the use of funds. This became known as the “control test.”

Together, these measures create what one analyst described as a “strategic vice.” Direct company sanctions cut demand. The refining ban closes third-country workarounds. Maritime sanctions restrict physical transport. For Russian oil producers, the result is seaborne storage of stranded crude, discounts of $25 or more per barrel against the Brent benchmark, and potential shut-ins of 1.6 to 2.8 million barrels per day.

Now that Lukoil itself is designated, the calculus shifts. Subsidiaries fall squarely within the asset freeze provisions unless covered by a specific general licence. OFSI has issued such licences for certain Lukoil entities: one covering Lukoil’s Bulgarian subsidiaries (valid for three months and renewable), and another for Lukoil International GmbH and its subsidiaries. These licences permit “continuation of business as normal” regarding UK financial sanctions, providing temporary relief whilst sales negotiations proceed.

When Contracts Collide with Sanctions The High Court’s decision in Litasco SA v Der Mond Oil and Gas Ltd [2023] EWHC 2866 (Comm) provides a starting point in relation to contractual disputes, though the case predates Lukoil’s own designation. Litasco, a Swiss oil trading company wholly owned by Lukoil, sued Der Mond for nonpayment under an oil supply contract. Der Mond invoked sanctions and force majeure defences, arguing that Litasco should be treated as an extension of its designated parent.

Yet the licences create their own complications. The three-month validity period introduces uncertainty. Parties negotiating long-term supply contracts face the risk that licences will expire mid-transaction. Renewal is not automatic. Each OFSI quarterly renewal decision becomes a pressure point. Wind-down licences have expired. Transactions initiated under those licences but not completed before expiry dates now require specific OFSI authorisation. This has left “stranded contracts,” agreements caught midperformance when licences lapsed. Force majeure clauses face immediate pressure. Suppliers refuse delivery, citing illegality or sanctions-related impossibility. Buyers refuse payment, claiming sanctions prohibit processing payments to designated entities. The legal analysis turns on the precise wording of the clause and whether sanctions render performance illegal or merely more difficult and expensive. Price adjustment provisions are being tested with equal intensity. Many long-term oil supply contracts link pricing to benchmark rates, typically Brent crude. With Russian Urals crude trading at discounts of more than $25 per barrel to Brent, existing contracts are under severe pressure. Material adverse change clauses, renegotiation provisions, and hardship doctrines are all invoked.

ThoughtLeaders4 Disputes Magazine • ISSUE 20

Arbitration Becomes the Terrain of Conflict Dubai Arbitration Week 2025 featured extensive discussion of how major oil company designations reshape arbitration strategy. Tribunals seated in Dubai can hear both sides, maintain procedural integrity, and preserve potential enforceability whilst dealing with sanctions restrictions that might complicate access to London or Paris seats. Yet UK practitioners must recognise that a Dubai seat does not eliminate UK sanctions risks. If a UK national serves as an Arbitrator or if a UK law firm represents a party, a UK nexus arises. The Arbitration Costs General Licence permits payments up to £500,000 per arbitration for Arbitrator and institution fees involving designated persons, but it does not cover legal services costs. These are governed by a separate “Legal Services” cap (often £1 million or a percentage of the dispute value), beyond which a specific OFSI licence is mandatory. The £500,000 cap creates planning challenges. Complex energy disputes routinely exceed this threshold in terms of costs. Once reached, parties require specific OFSI licences for additional payments. Barclays Bank plc v VEB.RF [2024] EWHC 2981 (Comm) illustrates how enforcement can be challenged. Barclays obtained an LCIA arbitration award against VEB.RF, a Russian state development bank, for $147.7 million. However, VEB.RF was designated under UK sanctions, so Barclays could not collect. VEB.RF subsequently breached the Arbitration Agreement by pursuing parallel Russian court proceedings. Sanctioned Russian entities, facing arbitration awards they cannot satisfy due to frozen assets, increasingly resort to Russian court proceedings in defiance of Arbitration Agreements. Russia’s Article 248.1 of the Arbitration Procedural Code claims exclusive jurisdiction over disputes involving Russian entities subject to “unfriendly state” sanctions.

In Linde GmbH v RusChemAlliance LLC [2023] HKCFI 2409 and Renaissance Securities (Cyprus) Ltd v PJSC Prominvestbank [2023] EWHC 2816 (Comm), the courts upheld the Arbitration agreements and granted anti-suit injunctions restraining Russian court proceedings. For practitioners, when a sanctioned counterparty threatens or initiates Russian court proceedings in breach of an arbitration clause, the best route is to seek antisuit injunctions promptly in arbitrationfriendly jurisdictions.

The Refining Ban and Cascade Disputes The January 2026 refining loophole ban introduces disputes rooted not in direct designation but in market exclusion. Indian refiners like Bharat Petroleum, Indian Oil Corporation, and Reliance Industries became significant buyers of Russian crude after 2022. The refining ban disrupts this equilibrium. Refiners importing refined products into the EU or UK must certify that the products were not derived from Russian crude oil. Supply contracts with Russian oil exporters are at risk of termination or renegotiation. Force majeure provisions are invoked, with refiners claiming that EU and UK bans constitute supervening events preventing performance. Russian exporters counter that the bans target refinery operations, not crude oil purchases. Buyers of refined products may pursue claims based on misrepresentation or breach of origin warranties. Trade finance disputes will follow: letters of credit involving misrepresented cargo origins, insurance claims, and documentary credit discrepancies will all lead to arbitration and/or litigation. Sanctions analysts predict that Russian oil exporters will attempt to disguise the origin of their oil through ship-toship transfers, forged documentation, and complex trading chains. Disputes over certificates of origin, cargo inspection reports, and chain-of-custody documentation will proliferate. Pricing disputes add another layer. With Russian Urals crude trading at discounts of more than $25 per barrel to Brent, existing long-term contracts are under pressure. Sellers receiving Uralslinked prices argue that the spread represents market reality. Buyers resist price adjustments, pointing to contractual terms.

| Sanctions |

What Practitioners Must Do Now • Due diligence now extends beyond direct counterparties to entire supply chains. Lawyers must screen against the OFAC Specially Designated Nationals List, the EU Consolidated List, and the UK OFSI Consolidated List. For energy transactions, it is vital to examine shippers, insurers, refiners, and storage providers. • F or existing contracts, sanctions clauses must address the designation of counterparties themselves, not merely underlying transactions. Build in payment alternatives, recognising that traditional USD-denominated, SWIFT-routed payments may become unavailable. • A rbitration clauses demand fresh analysis. Seat selection carries sanctions implications. Dubai offers procedural accessibility but may complicate enforcement in Western jurisdictions. London provides robust enforcement mechanisms but introduces UK sanctions compliance obligations. • F or existing disputes, verify whether wind-down licences have been applied and confirm their expiry dates. If a counterparty is Lukoil or Tatneft, check whether specific general licences exist. These provide temporary safe harbours but introduce quarterly uncertainty. The October and December 2025 designations, combined with the January 2026 refining ban, mark a shift in enforcement strategy. Previous sanctions targeted specific transactions or individuals. Current measures dismantle the infrastructure of the Russian oil trade itself. For dispute resolution practitioners, this is not a future risk. The instructions are arriving now, reflecting contract breakdowns, arbitration triggers, and enforcement challenges across jurisdictions. Understanding the interplay between asset freezes, general licences, arbitration frameworks, and enforcement strategies has become an essential practice.

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

| Sovereign & States |

ARBITRATION BY NUMBERS

OBSERVATIONS ON THE LATEST INSTITUTIONAL STATISTICS Authored by: Emily Wyse Jackson (Senior Legal Counsel & Head of Arbitration) & Porntida Thitaparun (Paralegal & IP Case Review Associate) - Deminor Litigation Funding With that caveat in mind, the data suggest that ICC proceedings typically take longer than LCIA, SIAC or HKIAC proceedings,2 while LCIA proceedings tend to be cheaper in terms of arbitrator fees and administrative services.3

Parties usually choose arbitral rules before any dispute arises, meaning they have to make educated guesses about what will serve them best down the line. While many factors are uncertain at that stage, three are almost always relevant in the event arbitration becomes necessary: how long the proceedings will take, how much they will cost and who might sit as arbitrator. This article examines the latest statistics on these factors released by four leading global arbitral institutions, namely the International Chamber of Commerce (“ICC”), Hong Kong International Arbitration Centre (“HKIAC”), Singapore International Arbitration Centre (“SIAC”) and London Court of International Arbitration (“LCIA”). The arbitral rules of these institutions were recently identified in a study by Queen Mary University of London1 as the top four most preferred choices globally.

Efficiency Data: Apples and Oranges In terms of the time and cost of proceedings, an “apples with apples” comparison between institutions is, unfortunately, impossible, as not all institutions routinely publish their data and those that do use a variety of parameters and metrics.

This may in part be a function of differences in caseload (ICC cases typically being of significantly higher value, for example),4 as well as differences in approach taken to particular issues. For example, the LCIA attributes its cost-effectiveness to its hourly rates model (as opposed to the ad valorem approach typically used by other institutions).5 Similarly, the ICC’s mandatory scrutiny of awards naturally adds some time to the procedure but, while this perceived delay troubles some, others view the scrutiny mechanism as a valuable step to ensuring a higher quality (and more reliably enforceable) award.

1 2025 International Arbitration Survey, The path forward: Realities and opportunities in arbitration, White & Case / Queen Mary University of London 2 The ICC published duration data for cases concluded by final award in 2024 (average 26 months; median 22 months). The LCIA’s latest duration data covers cases concluded by final award between January 2017 and May 2024 (median 20 months). Neither SIAC nor HKIAC published duration data for 2024, with the most recent available for SIAC covering the period from 1 April 2013 to 31 July 2016 (average duration of 13.8 months) and for HKIAC covering 1 November 2013 to 30 April 2023 (average duration of 17.7 months). 3 As noted in the LCIA’s “Costs and Duration: 2017-2024” publication (pp 4-5), in the absence of published cost data by the other institutions this can only be tested by comparing the LCIA’s published cost data against estimates reached using a set of hypothetical claim values and durations. 4 The average quantum in dispute in ICC claims filed during 2024 and pending as at the end of the year was USD 130 million, compared to USD 48.1 million in HKIAC-administered claims in the same year and USD 31.55 million in new 2024 case filings with SIAC. The LCIA has not published an average quantum in dispute but of the LCIA cases seeking quantified monetary relief in 2024, approx. 85% were claims for USD 50 million or less. 5 LCIA Annual Casework Report 2024, p 1.

ThoughtLeaders4 Disputes Magazine • ISSUE 20 Although a reliable data comparison remains difficult, useful insight can also be gained by considering the procedural rules and tools promulgated by the various institutions to promote efficiency. For example, the introduction of deadlines by which tribunals must render their awards or submit them for scrutiny is a welcome step in terms of encouraging efficiency on the part of the tribunal, while the introduction of more robust case management tools such as summary disposal powers in various institutional rules has better empowered tribunals to regulate the parties’ (and their lawyers’) conduct of the proceedings.

Arbitrator Diversity: Institutions Leading the Way Another positive development in recent years has been the increased attention paid to arbitrator diversity, in terms of gender and other characteristics. The year 2024 saw the inclusion in the latest edition of the HKIAC Administered Arbitration Rules of an express requirement that HKIAC “shall take into account considerations of diversity” when appointing arbitrators, as well as the launch by the LCIA of its Equality, Diversity, and Inclusion (“EDI”) Guidelines, setting out recommendations for integrating EDI principles throughout an arbitration. Each of the ICC, LCIA, SIAC and HKIAC is a signatory to the Equal Representation in Arbitration Pledge and has accordingly committed to addressing the under-representation of women on international arbitration tribunals, including by making publicly available statistics around appointee genders. The figures duly reported by each of them indicate a gradual increase in the overall proportion of female arbitrators appointed over recent years.

ICC Dispute Resolution 2024 Statistics, p 10.

The data indicate that arbitral institutions appoint female arbitrators more frequently than parties or coarbitrators (at the ICC, for example, female candidates accounted for 46% of ICC Court appointments, as compared to 33% of co-arbitrator nominations and 19% of party nominations; at the LCIA, female candidates represented 45% of LCIA Court appointments, 40% of co-arbitrator appointments and 21% of party appointments). This marks the institutions out as active drivers of progress in this respect, an encouraging sign for the future. The LCIA’s 2024 report also includes data on the number of appointments of arbitrators who had not previously been appointed by the LCIA: 14% of the LCIA Court’s appointments, 17% of appointments by co-arbitrators and 16% of appointments by the parties. This metric is indicative of the extent to which the pool of arbitrator candidates has been widened (an important step towards improving diversity across all characteristics).

| Sovereign & States | In cases where arbitrator appointments are made by the parties, the institutions obviously have less direct influence. However, the important efforts being made in terms of institutional appointments allows less established candidates to gain experience and build a reputation, which in turn makes it easier for parties to select the most suitable arbitrator for their dispute from a wider pool than has traditionally been the case. Overall, the most recent statistics paint an encouraging picture, highlighting the strides made by these leading institutions to streamline procedures and to broaden representation among arbitrators. With strong foundations and global reach, each of them is well positioned to continue expanding their appeal, attracting an increasingly international user base and reinforcing their reputations for leadership in the field.

Although not explicitly confirming the number of first time appointees (rather reporting on the percentage of repeat versus single appointments within the year), the ICC emphasises in its report, alongside its policy of appointing the “best available candidates”, that it “encourages the proposal/appointment of candidates with less arbitrator experience and/or young arbitrators for less complex cases or cases involving relatively low amounts in dispute”.6 It reports that, against a global average age of arbitrators confirmed or appointed generally of approximately 55 years, arbitrators appointed by the ICC Court were five years younger. In terms of geographical diversity of arbitrators, the institutions closely linked with a particular jurisdiction (and unsurprisingly therefore registering a high proportion of cases with the governing law of that jurisdiction) tend to have higher proportions of arbitrators with the nationality of the institution’s “home State”. That said, each of the LCIA and SIAC has reported an increase year-on-year in the percentage of nonhome State nationals appointed in 2024 (representing 45% of LCIA appointments and 72% of SIAC appointments). The ICC, sitting in a somewhat different position, reported appointees in 2024 from 91 different jurisdictions, with the highest represented regions being North and West Europe (49.9%), Latin America and the Caribbean (17.3%) and North America (10%).

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

| Sovereign & States |

REGISTRATION AND ENFORCEMENT OF ICSID AWARDS IN SINGAPORE

Authored by: Matthew Koh (Partner) - Rajah & Tann Singapore

This article will consider briefly the process for registering and enforcing in Singapore arbitration awards made under the auspices of the International Centre for the Settlement of Investment Disputes (“ICSID”). It will also consider some potential procedural hurdles that award creditors ought to bear in mind

Introduction I n recent years, Singapore has grown in importance as a seat for international arbitrations, exceeded in popularity as a seat only by London.1 In addition, Singapore is also a financial centre of significance.2 In this context, and with Singapore being a party to the ICSID Convention,3 recent years have seen an increasing number of applications to register and enforce ICSID arbitration awards in Singapore.

Summary of Procedure for Enforcing ICSID Awards he process for recognising and T enforcing ICSID awards in Singapore is

set out in the Arbitration (International Investment Disputes) Act 19684 and its subsidiary legislation, the Arbitration (International Investment Disputes) Rules.5 The process is commenced by filing in the Singapore High Court an originating application with a supporting affidavit.6 The originating application must state the pecuniary obligations imposed by the award and also reasonable costs of and incidental to the registration application.7 The affidavit has to, amongst others, exhibit a copy of the certified award, with a translation if the award is not in English; state to the best of the information or belief of the applicant: (i) that the award creditor is entitled to enforce the award; and (ii) at the date of the application the extent to which the award has not been

satisfied by the award debtor;8 and (iii) whether at the date of the application the enforcement of the award has been stayed (provisionally or otherwise) pursuant to the Convention or if any application to stay enforcement of the award has been made.9 fter the award is registered, the A award creditor must serve a notice of registration on the award debtor.10 Until the notice of registration is served, the award creditor may not apply to enforce the award;11 an application for an enforcement order requires proof that the notice of registration has been served on the award debtor.12

1 White & Case and Queen Mary University of London, 2025 International Arbitration Survey “The path forward: Realities and opportunities in arbitration”. <https://www.qmul.ac.uk/ arbitration/media/arbitration/docs/White-Case-QMUL-2025-International-Arbitration-Survey-report.pdf>. 2 Singapore ranked 4th in the Global Financial Centres Index 2025 (GFCI 38), see: LongFinance <https://www.longfinance.net/programmes/financial-centre-futures/global-financialcentres-index/gfci-38-explore-the-data/gfci-38-rank/> and Singapore Business Review “Singapore jumps to fourth in global fintech rankings” <https://sbr.com.sg/financial-services/ news/singapore-jumps-fourth-in-global-fintech-rankings>. 3 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“Convention”), which Singapore ratified on 14 October 1968, with the Convention entering into force for Singapore on 13 November 1968. 4 Arbitration (International Investment Disputes) Act 1968 (“AIIDA”). 5 Arbitration (International Investment Disputes) Rules (“AIIDR”). 6 AIIDR, Rules 3 and 4. 7 AIIDA, section 4(2). 8 Order 60, Rule 3(1)(c) of the Rules of Court 2021 read with AIIDR, Rule 2(2). 9 AIIDR, Rule 4(b). 10 Rules of Court 2021, Order 60, Rule 7, read with AIIDR, Rule 2(2). 11 Rules of Court 2021, Order 60, Rule 8, read with AIIDR, Rule 2(2). 24 12 Rules of Court 2021, Order 60, Rule 10(3), read with AIIDR, Rule 2(2).

ThoughtLeaders4 Disputes Magazine • ISSUE 20 expect to see if registration applications were intended to be made inter partes. For example, these provisions do not provide for the application to be served on the award debtor to give the award debtor an opportunity to resist registration of the award.

Observations and Potential Pitfalls One question concerning the process for enforcing ICSID awards is whether an originating application can be made without notice, i.e., to be heard on an ex parte basis. This question arises because it is not expressly provided that the originating application may be filed without notice. However, it is expressly stated in the AIIDR, Rule 2, that some of the procedures for enforcing foreign judgments under the Reciprocal Enforcement of Foreign Judgments Act 1959 are to apply to the enforcement of Convention awards.13 In addition, the Convention provides that a state party must “recognise an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State”.14 I t is expressly stated in the Rules of Court 2021, Order 60, Rule 2 that originating applications for the registration of foreign court judgments are to be made “without notice” or ex parte. However, Order 60, Rule 2 is not one of the provisions in Order 60, which are expressly stated in the AIIDR, Rule 2(2), to apply to the enforcement of ICSID awards.15 Therefore, it could be argued that applications for the enforcement of ICSID are to be filed inter partes. That said, the better view is that the absence of any mention of Order 60, Rule 2 in the AIIDR, Rule 2(2), is a legislative oversight and that applications to register ICSID awards are to be made on an ex parte basis. First, the AIIDA, AIIDR and relevant provisions of Order 60 of the Rules of Court 2021 that are incorporated pursuant to the AIIDR, Rule 2(2), do not contain provisions that one would

Second, that applications are to be made ex parte is consistent with the intent behind the Convention which provides that ICSID awards are binding as if they were final judgments of national courts without any possibility of further challenge. The main concern with applications being made ex parte is that the respondent in the application is denied the opportunity to respond to the application and is thereby prejudiced. However, this concern is significantly ameliorated in the context of the registration of an ICSID award, since ICSID awards are not supposed to be challenged in national courts. hird, that applications to register ICSID T awards are to be made ex parte is also consistent with the United Kingdom Arbitration (International Investment Disputes) Act 1966, which, from similarities in language, it appears that the AIIDA was adapted from at least in part. Under the United Kingdom statute, applications for registration of ICSID awards are made ex parte.16 In this regard, applications to enforce arbitral awards made under the New York Convention17 under Singapore law and to which the International Arbitration Act 1994 applies may be made without notice at the first instance.18 s such, in totality, there is a credible A argument to be made that ICSID awards are to be registered through ex parte applications rather than inter partes applications.19 That said, to allow for more clarity and certainty in the process, legislative amendments to expressly provide that Order 60, Rule 2 applies to enforcement of ICSID awards would be welcome.

| Sovereign & States | in accordance with (a) section 14 of the State Immunity Act 1979, through the Singapore Ministry of Foreign Affairs to the equivalent ministry in the foreign state;20 and (b) the procedures stipulated in the Rules of Court 2021 for service of process on a foreign state.21 Service is only deemed to have been effected when the document being served is received at that ministry in the foreign state.22 The requirement that a document must be received at the foreign state’s ministry of foreign affairs in order to be deemed to be served, means that state may potentially stymie the commencement of proceedings by its ministry of foreign affairs refusing to accept service. Depending on the situation and the state in question, an award creditor may have to engage the Singapore Ministry of Foreign Affairs on what can be done to nonetheless effect service on an obstructive award debtor.

Conclusion I n light of the statutory regime laid down in the AIIDA and AIIDR, the process in Singapore for the registration of ICSID awards is relatively straightforward and clear. That said, it is still important to bear in mind the considerations mentioned above. The number of ICSID awards that have been registered and enforced in Singapore remains, as would be expected, far less than the number of New York Convention awards. Hence, the amount of Singapore jurisprudence on registration and enforcement of ICSID awards is not large. However, as more award creditors seek enforcement of ICSID awards in Singapore, the Singapore courts will likely have more opportunities to consider and eventually provide guidance on the matters mentioned above.

Another potential hurdle in the recognition and enforcement process is effecting service of the notice of registration and other relevant papers on the award debtor. The award debtor would usually be a sovereign state. Thus, service must be effected

13 Reciprocal Enforcement of Foreign Judgments Act 1959 (“REFJA”). 14 Convention, Article 54(1). 15 The rules in Order 60 that do apply are stated in the AIIDR, Rule 2(2), to be Rules 1, 3(1) (except sub-paragraphs (c)(iv) and (d) thereof), 7 (except paragraph (3)(c) and (d) thereof), 8 and 10(3). In this regard, it should be borne in mind that whilst the Rules of Court 2021 were amended to reflect relatively recent changes in the Singapore statutes for enforcement of foreign judgments, not all other related subsidiary legislation has yet been updated accordingly. Hence, the reference in AIIDR, Rule 2(2), to Order 60, Rule 3(1)(c)(iv) is to a provision that has been deleted since 1 March 2023 after the Reciprocal Enforcement of Commonwealth Judgments Act (Chapter 264 of the 1985 Revised Edition) was repealed. 16 See, for example, AIG Capital Partners Inc and another v Republic of Kazakhstan (National Bank of Kazakhstan intervening) [2006] 1 WLR 1420. 17 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 18 Rules of Court 2021, Order 34, Rule 14(1) and Order 48, Rule 6(1). 19 In this author’s experience and in any event, the Singapore courts appear prepared to accept ex parte applications to register ICSID awards. In the three applications to register ICSID awards which this author has been involved in, the Court did not raise any issues or objections to these being filed as ex parte applications. 20 See Josias Van Zyl and others v Kingdom of Lesotho [2017] 4 SLR 849 (see in particular [33] to [49]) where the Singapore High Court confirmed that section 14 of the State Immunity Act 1979 applies to service of an order giving leave to enforce an arbitral award in Singapore against a foreign state. 25 21 Rules of Court 2021, Order 8, Rule 6. 22 State Immunity Act 1979, section 14.

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

THE EU AND THE CHANGING LANDSCAPE OF INTERNATIONAL TRADE

Authored by: Christian Lau (Partner) - Dentons Europe & Simon Schropp (Director) - BRG In the current geopolitical landscape, trade policy functions less as a traditional market-access mechanism than as a primary lever of economic statecraft. Global powers are aligning economic activity with national security considerations, redefining how markets, supply chains and regulatory tools are used. In a world where “everything can be weaponised”, as EU Commissioner Maroš Šefčovič wryly observed, instruments such as import duties, standards, investment controls and supply‑chain dependencies are no longer technical policy levers: they are active tools of power used to build resilience or expose the vulnerabilities of rivals. The EU is adapting to this shift with a suite of policies focused on economic resilience and strategic autonomy. With its 2025 Economic Security Doctrine, the EU is expanding its trade policies beyond trade balances and classical efficiencies to better manage risk, enhance resilience and respond to external pressures. This contribution provides brief summaries of the external geopolitical shocks that shaped EU trade policy in 2025, highlights of the EU’s own trade strategy and challenges and priorities we expect in 2026.

2. Collateral Effects of US–China Tensions

External Pressures Shaping EU Trade Policy in 2025 If we ask “what outside factors shaped EU trade policy in 2025”, at least four geopolitical challenges stand out.

1. Impact of the War in Ukraine and Sanctions on Russia The conflict in Ukraine remained a defining external influence on EU trade and economic activity. In October 2025, the EU adopted its 19th sanctions package against Russia, tightening existing measures and adding a phased ban on liquefied natural gas (LNG). This created fresh volatility in European energy markets and intensified cost pressures in energy-intensive sectors, such as chemicals, steel, fertilisers, and ceramics.

Although not a direct participant in the trade tensions between US and China, the EU experienced collateral damage. Chinese goods, displaced from the US market, flowed into Europe, increasing the volume of low-priced imports and exacerbating overcapacity concerns. Supply-chain disruptions caused by either the US or China affected the EU, created further uncertainty for European manufacturers, and exposed vulnerabilities in European sourcing. An example here is China’s temporary exportcontrols on rare earth elements, high-performance magnets, windturbine generators and other greentech products, which were primarily targeted at the US but wreaked havoc on Europe’s automotive, renewable energy and defence sectors. US-China tensions also caused investment diversion and reduced planned EUbased foreign investment. The EU attempted to contain the impact of these disruptions through targeted trade measures, seeking to avoid open escalation while maintaining protective tools to stabilise sensitive supply chains.

ThoughtLeaders4 Disputes Magazine • ISSUE 20

3. EU–China Economic Frictions The EU felt the reverberations of its own China-related actions and those of its member states. China’s retaliation against EU de-risking served as a sharp reminder of both the costs of regulatory tightening and the limits of EU trade policy autonomy. Beijing’s responses remained calibrated and proportional, rather than explosive— targeted countermeasures rather than shock therapy. These included procedural delays in export licences for semiconductors, trade remedy investigations into EU goods such as brandy and pork, and exclusion from certain government procurement tenders. While China’s measures caused interruptions in European value chains, diplomatic channels remained open, and late 2025 saw renewed engagement via technical working groups on customs and export facilitation.

4. The New US Administration’s Transactional Policy Approach The Trump administration adopted a more transactional and less predictable approach to economic relations. The central development was the August 2025 “US–EU Framework Agreement on Reciprocal, Fair, and Balanced Trade”, which stabilised economic relations after months of tariff threats but required considerable concessions from the EU. These included commitments to expand market access for US goods and ambitious US-focused investment and energy-purchase commitments. In return, the US agreed to set a single tariff rate (15 percent) for most EU exports. Certain sectors—such as pharmaceuticals and aircraft—received exemptions. Steel and aluminium are currently excluded from the framework and remain subject to higher duties. Despite the lopsided nature of the agreement, the EU avoided further escalation—for now. It preserved cooperation with the US on important issues such as critical minerals and export controls but retained the option to activate its Anti-Coercion Instrument (the so-called “trade bazooka”).

The EU’s 2025 Trade Agenda in Review: Promote, Protect, Partner The EU’s own trade and security policy in 2025 focused on implementing and operationalising the Economic Security Strategy’s three pillars: “Promote, Protect, Partner”.

“Promote”: Industrial Policy and Supply-Chain Resilience The EU advanced key industrial-policy initiatives aimed at strengthening strategic sectors and reducing excessive dependence on third-country suppliers. • Critical Raw Materials Act (CRMA): This de-risking framework shifted from concept to delivery in 2025. Notable developments included the expansion of the pipeline of strategic projects and launch of platforms for stakeholder coordination. • NetZero Industry Act (NZIA): Secondary legislation was adopted to support cleantech manufacturing capacity within the EU. Work also advanced on rules to accelerate investment and direct demand towards EU-based production. • Clean Industrial Deal State Aid Framework (CISAF): Established clearer, more predictable conditions under which EU governments may provide support and match thirdcountry subsidies. • Corporate Sustainability Directives (CS3D and CSRD): Efforts were made to simplify reporting obligations and reduce administrative burdens while maintaining commitments to responsible supply-chain management.

“Protect”: Strengthening Defences Against National Security Risks The EU expanded several defensive and enforcement tools. • Foreign Subsidies Regulation (FSR): Continued maturing through practice, including in-depth investigations into subsidised foreign firms operating in the EU. On 9 January 2026, the Commission published updated guidelines on the application of the FSR, based on recent experience. • Trade-defence instruments: High levels of activity, including antidumping measures on biodiesel, and a proposal to extend safeguards for steel via tariff

| Sovereign & States | renegotiation procedures spelled out in the General Agreement on Tariffs and Trade (GATT). • Export controls: The November 2025 update added restrictions on quantum and high-performance computing and semiconductor technologies. Notably, the EU opted to include controls where multilateral consensus lagged. • Investment screening: A proposed revision of the Foreign Direct Investment (FDI) Screening Regulation in June 2025 seeks to harmonise national mechanisms, establish a more coherent EU-wide baseline and extend coverage to EU-incorporated acquirers that are ultimately controlled by nonEU entities

“Partner”: International Engagement and Cooperation Negotiating new market-access agreements proved challenging, but the EU advanced on several fronts: • C ontinued support and expanded market access for Ukraine. • P rogress in partner dialogues with India, Canada, Australia and South Africa, particularly on critical minerals. • T he EU–Chile Interim Trade Agreement was the only free trade agreement (FTA) that became fully operational in 2025. EU–Australia FTA negotiations stalled. Substantive negotiations for the EU–Indonesia Comprehensive Economic Partnership Agreement (CEPA), EU–Mexico modernised agreement, EU-India FTA and the EU–Mercosur agreement concluded in 2025, but none of these texts had been fully ratified by year’s end. A somewhat unexpected development was the European Parliament’s referral of the Mercosur agreement to the Court of Justice in January 2026, seeking an opinion on the legality of the trade deal. This is likely to delay ratification by close to two years, although the agreement may be applied provisionally. • L imited progress at the World Trade Organisation (WTO) amid systemic gridlock, though the EU worked to preserve the functioning of dispute resolution through the Multi-Party Interim Appeal Arbitration Arrangement. To sum up the past year: On the geopolitical stage, the EU took blows without being knocked off course. It absorbed external shocks, managed vulnerabilities and prevented escalation.

ThoughtLeaders4 Disputes Magazine • ISSUE 20 Internally, 2025 was a year of steady implementation, consolidation and the quiet building of institutional resilience. Under the circumstances, this is no small achievement.

Looking Ahead to 2026: A Year of Stress-Testing With legislative foundations largely in place, 2026 will test the EU’s ability to apply its new economic-security framework. Uncertain geopolitical events will likely also shape the trajectory of the EU’s trade and economic security policy in 2026.

Transatlantic Relations and the US–EU Framework A major determinant of the year ahead will be the state of international relations between the US and EU. 2026 saw a rocky start, with US threats of punitive tariffs over Greenland. Much will hinge on the political will to implement and ratify the US–EU Framework. The entire deal—tariff reductions, regulatory coordination, investment and energypurchase commitments—depend on formal approval on both sides of the Atlantic. Simultaneously, a US Supreme Court ruling on presidential tariff authority may reshape negotiating dynamics.

Continued EU-Chinese Tensions China may continue to respond to EU measures with targeted actions affecting sectors such as green technology, advanced machinery and food products. This poses ongoing challenges for EU diversification and risk-mitigation strategies.

Trade Negotiations and Agreement Implementation Key developments expected in 2026 may include: • entry into force of a streamlined trade agreement with India • revival of EU–Australia negotiations

• national-level ratifications for the mixed components of the EU– Mexico modernised agreements. level ratifications for the mixed components of the EU–Mercosur and EU–Mexico modernised agreements Domestic resistance to trade agreements may complicate progress, especially in member states where public opinion is wary of deep market integration.

WTO Outlook Large-scale reform remains unlikely ahead of the March 2026 ministerial conference. Limited progress on fisheries subsidies and continuation of the moratorium on customs duties on e-commerce would constitute success under current circumstances.

The EU’s Internal Economic-Security Agenda Internally in 2026, the EU will focus on demonstrating that its new tools can work together coherently. We will be watching the following developments: • The EU’s Economic-Security “Doctrine”, published on 3 December 2025, directs the Commission, and sets a workplan, to prioritise economic-security risks and coordinate the use of tools such as export controls, FDI screening and FSR. The doctrine is intended to guide legislative and financing initiatives, including resource allocation to priority sectors and reinforcement of monitoring capacity. For the EU this may prove to be a shift from ad hoc, reactive deployment of isolated instruments towards a more predictable, integrated and strategic model of economic-security policymaking. • CBAM (Carbon Border Adjustment Mechanism): From 1 January 2026, only authorised declarants may import CBAM-covered goods. Enforcement, emissions-reporting accuracy and anticircumvention measures will determine CBAM’s credibility.

| Sovereign & States | • Customs Reform: The EU’s customs overhaul—including removal of the €150 de minimis threshold and expanded platform liability—will test the system’s processing capacity and the ability of member states to manage significantly increased data flows. • Investment Screening and Outbound Investment: The revised FDI Screening Regulation could create a more coordinated and consistent baseline across member states. In parallel, the Commission is assessing outbound-investment risks with the possibility of proposing EU legislation similar to the US’s 2025 COINS Act. • Trade-defence Capacity Constraints: High case volumes have strained the Commission’s trade-defence resources. Without increased staffing, complex cases risk delays and certain investigations may be deprioritised. If market pressure rises and global overcapacity intensifies, the EU may enact safeguards for products beyond steel and ferroalloys. This would harm downstream industries and could result in calls for extended protection of downstream industries.

Conclusion The EU entered 2026 amidst a challenging trade and economic-security context. While legislative progress has been substantial, the real test lies in effective implementation: managing geopolitical uncertainty, enforcing complex new rules, supporting industry through transition, and maintaining an open yet secure trade environment. 2026 will determine whether the EU can translate its many instruments into a coherent, resilient economic security system capable of responding to global pressures – without undermining its own competitiveness and without succumbing to the very protectionism it aims to defend against.

• Critical Raw Materials Act: The CRMA will enter a decisive phase as the first strategic projects reach financial close. Questions remain about permitting timelines, diversification success and the viability of proposed EU-level financing instruments.

The European Class Actions rd Forum - 3 Annual 16-17 June 2026

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

60 SECONDS WITH... ANNA CACCIAGUERRA RANGHIERI SENIOR ASSOCIATE

DRD PARTNERSHIP

ooking back to the start of L your career, what’s one insight you wish you’d had from the beginning? I t’s great to say yes, showing willingness and enthusiasm, but there is no need to be a jack of all trades - and to stay up until 5am trying to be so. Channelling effort into the aspects of your job you do really well and enjoy doesn’t make you less marketable – in fact, a degree of specialism is an asset for firms. I n your view, what is the most significant shift the communications industry is likely to experience over the next five years? ith the risk of repeating what the W rest of the world already knows, AI is a watershed moment for us all, and has completely transformed the way we work. Much of this is positive – the challenge will be tackling the misinformation it generates. As a crisis and litigation firm, we and our clients see AI-written legal letters, social media posts and advice almost daily, often peppered with inaccuracies, but convincing enough to cause real reputational damage. What has been the most memorable or defining moment of your career so far? arly in my career I was E embedded full time in the embassy of a major Middle Eastern country in Brussels to act as crisis and public diplomacy adviser for several months. Balancing the

cultural interests and expectations of two very different cultures neither of which was my own – at a critical moment for both of them was a formative experience. It’s a great credit to my firm at the time that they trusted me to do that.

heightened expectations regarding the conduct of senior figures, stakeholders increasingly and rightly expect openness and integrity, particularly around safeguarding and misconduct issues.

What activities help you unwind and reset after a demanding workday?

What key piece of reputational advice do you have for clients and comms professionals?

laying with my one-year-old P daughter is what I look forward to most. When I’m not with her, I am constantly looking at photos of her. I’m afraid I am the dreadfully embarrassing person who will bring their children into any work conversation. What aspect of your work inspires or motivates you the most? uch of my work involves M assisting clients navigate complex and sensitive issues relating to sexual misconduct or harassment in the workplace, or matters involving historic abuse. In these cases especially, we are not only advising organisations to say the right thing, but enabling them to do the right things, often making key changes that will protect future individuals. Its this I am most proud of in my work.

I n moments of intense scrutiny, a strategy focused solely on solely containing a crisis almost always backfires, often generating inaccurate and deeply damaging alternative narratives. Credibility always derives from trust, transparency (to a degree) and a willingness to put right what has gone wrong. What’s your go to coffee order when working to meet a tight deadline? I ’m pregnant and can’t bring myself to even look at a coffee, but as a firm with our priorities in order, we do have a plentiful stock of diet coke in the fridge.

What will be your key focus over the next five years? y attention is very much focused M on developing our work with schools and universities alongside matters of employment and misconduct. In a world of

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

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

| Corporate Crime |

PRIVATE PROSECUTIONS

A MECHANISM OF UPHOLDING JUSTICE, OR AN ‘ALTERNATIVE’ TO CIVIL LITIGATION? Authored by: Anoushka Warlow (Partner) & Amelia Clegg (Associate) - BCL Solicitors A private prosecution is a criminal prosecution brought by a private individual or entity who is not acting on behalf of the police or other state prosecuting authority. The right to bring a private prosecution is a historical one, initially put in place to act as a

Civil Proceedings Vs Criminal Proceedings

“constitutional safeguard against inertia or partiality on the part of authority”.

Criminal law essentially deals with offences or breaches of what Acts of Parliament deem to be unacceptable conduct. The primary purpose of the criminal system is to achieve justice and protect society through punishing offenders and reducing crime through deterrence and rehabilitation.

Whilst for many years rarely used, the Courts have recently seen a significant increase in private prosecutions. This is in part due to the inability of underfunded State investigatory and prosecuting bodies to meet the growing needs of the justice system. It is also potentially due to the (misplaced?) idea that private prosecutions offer a more attractive avenue to financial recovery for victims of wrongdoing.

Generally speaking, the English courts operate two distinct legal systems: civil and criminal.

Civil law, on the other hand, is concerned with the private rights of individuals or companies. The primary purpose of the civil system is to resolve disputes and impose remedies which put the claimant back in the position they would have been in but for any wrongdoing. Often that means financial compensation. The main goal of civil proceedings is not to punish, but rather to hold a party accountable for the breach of another’s rights and to compensate injured parties. Whilst civil proceedings would, if successful, result in compensation for those who have lost funds as a consequence of another’s

wrongdoing, pursuing a civil claim can be prohibitively expensive. Civil proceedings require a claimant to pay initial filing fees, to pay its own lawyers, to pay security for costs into a court account (if so ordered), and also give rise to default liability to pay the other side’s costs if the case is not successful. Private prosecutions do not carry the same financial risk. An individual/entity can commence a private prosecution in the criminal courts without any filing fees, with no requirement to pay security for costs, with no default liability to pay the other side’s fees, and the ability to recover its own costs from the State (regardless of the outcome of the case). At the end of a private prosecution, if a conviction is achieved, the private prosecutor can apply for an order to be made against the Defendant for compensation of its original losses. In other words, a private prosecution can achieve the same aims as civil proceedings, but without the same risk. Against that background, it is not surprising that private prosecutions are sometimes regarded to be an attractive ‘alternative’ to civil proceedings. But are they really an alternative option? And what are the consequences of treating them this way?

ThoughtLeaders4 Disputes Magazine • ISSUE 20

A Private Prosecutor’s Motive and Conduct Unlike in civil proceedings, a private prosecutor, when bringing a prosecution, is required to be motivated by achieving justice and serving the public interest. It is a requirement that those bringing and conducting a private prosecution must act as a “Minister for Justice” and observe the highest standards of integrity, of regard for the public interest. As such, a private prosecutor’s motive and conduct in commencing a private prosecution is carefully scrutinised at the outset (and throughout). A Magistrates’ Court should not issue a summons at the request of a private prosecutor where there exists

“the presence of an improper ulterior purpose”.1 The law recognises that a private prosecutor may “mixed motives” for bringing a prosecution2, however, the primary or dominant motive cannot be an improper one.3

“…as a device or lever to achieve monetary restitution from the defendants and with a view to evading the use of civil proceedings for that purpose. It is an affront to the process of the Crown Court and to the court’s sense of justice that it should be used for such a purpose” In refusing permission to appeal, Davis LJ accepted that whilst mixed motives were not of themselves a bar to a private prosecution, the criminal proceedings were “being used entirely to achieve financial recovery from the defendants.” In refusing Mr Asif’s appeal, the Court of Appeal further noted that civil proceedings would have been the more appropriate forum the case. The court has taken a similarly dim view where private prosecutors commence proceedings as leverage to persuade a swift settlement in related civil litigation. In Morjaria (2023)5, the court found that the prosecutor had brought the private prosecution to try and force a favourable outcome in related civil proceedings, rendering the private prosecution an abuse of process.

Potential Penalties for Improper Private Prosecutions

Is Financial Recovery a Proper Motive? The courts have warned against private prosecutors who bring prosecutions with financial motives. In Asif v Dita (2021)4, criminal proceedings commenced by Mr Asif were stayed as an abuse of process on the basis that they had been brought with the dominant motive of financial recovery. Specifically, the trial judge ruled that the private prosecution was being pursued: 1 2 3 4 5 6 7

It has long been established that private prosecutors who bring improper proceedings may be liable under section 19 of the Prosecution of Offences Act 1985 to pay the costs of the defendant in dealing with those improper proceedings. Those costs may be significant. However, more interestingly, even where the private prosecutor’s conduct is not so improper as to give rise to a liability to pay the defendant’s costs, recent caselaw suggests a desire on the Court’s part to limit a private prosecutor’s ability to recover its own costs from the State (i.e., from ‘central funds’).

R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin). Asif v Ditta [2021] EWCA Crim 1091 [11]. R v Bow Street Metropolitan Stipendiary Magistrate, ex p South Coast Shipping [1993] QB 645 [2021] EWCA Crim 1091 [11]. Morjaria v Westminster Magistrates’ Court [2023] EWHC 1338 (Admin). R v BDI & Ors [2025] EWCA Crim 1289. Taktouk v The King (Benherst Finance Limited and Chestone Industry Holding [2025] EWCA Crim 1473.

| Corporate Crime | In the cases of BDI (2025)6 and Taktouk (2025)7, the Court of Appeal gave guidance on when private prosecutors are likely to succeed in recovering costs from central funds. The court made clear that, amongst other factors, the court will consider whether a private prosecutor made proper efforts to give public bodies the opportunity to take over conduct of the prosecution, and whether the prosecutor made a tender to the legal market to find the most competitive rates for lawyers. Where that is not the case, the court will consider whether costs recovery should be reduced. In BDI, recovery was reduced to the rates that the CPS would have charged for bringing the proceedings. These recent authorities should ring as a cautionary tale for private prosecutors who chose to pursue prosecutions for their own purposes.

Choose your Battlefield Ultimately, jurisprudence suggests that treating private prosecutions as an alternative to civil proceedings is likely to end badly. Indeed, the Court of Appeal’s decision in Taktouk indicates that private prosecutions should only be treated as an alternative to State prosecutions when the State has been invited to act but has chosen not to do so. Further, potential private prosecutors must take care that their prosecution does not have “all the hallmark[s] of a party in the civil courts continuing the battle in the criminal courts” .Those that do may be rejected, or stayed as an abuse of process, with potentially significant costs consequences for the private prosecutor. In short, rather than picking your battles, it seems that the better advice would be,

“pick your battlefield”.

ThoughtLeaders4 Disputes Magazine • ISSUE 20

| Corporate Crime |

WHEN INTERNAL INVESTIGATIONS GO WRONG

COMMON PITFALLS AND HOW TO AVOID THEM Authored by: Chloe-Jane Belton (Legal Director) - Howard Kennedy Internal investigations have become a standard component of corporate governance. Allegations of misconduct, regulatory breaches, data misuse or ethical failings now trigger rapid internal reviews, often under scrutiny from regulators, employees, shareholders and the public. When executed well, investigations identify issues early, demonstrate organisational integrity and mitigate legal or reputational damage. When mishandled, they can worsen exposure, undermine credibility and attract unwanted regulatory attention. This article highlights four recurring pitfalls that cause internal investigations to fail and outlines practical ways to avoid them.

1. Scope Creep and Lack of Independence A poorly defined scope is one of the most common causes of investigative failure. Early in an investigation, organisations often feel pressure either to “look into everything” or to confine the issues too narrowly to contain perceived risk. Both approaches create problems.

Scope creep usually develops gradually. A targeted inquiry expands without proper decision making or documentation, leading to rising costs, delays and diluted focus. An unclear scope can also lead to inconsistent handling of issues or individuals, exposing the organisation to claims of unfairness or selective investigation, risks that are magnified if the process is later examined by regulators or tribunals.

Independence should be treated as essential. External counsel or forensic specialists who report directly to the board or a dedicated committee can reduce real or perceived conflicts. Where internal resources are used, reporting lines and potential conflicts must be assessed and documented.

Equally damaging is a lack of independence. Investigations led by individuals too close to the subject matter, such as internal teams reporting into implicated executives or external advisers with longstanding commercial ties, risk being seen as compromised. Even if the findings are sound, perceived bias can undermine credibility.

How to Avoid It: Organisations should set a clear written scope at the outset, identifying the specific allegations, relevant time periods, jurisdictions and legal or regulatory issues. Early governance structures, including escalation mechanisms for scope changes, help maintain discipline. Any amendments should be deliberate, documented and justified.

2. Inadequate Reporting and Record Keeping Weak documentation is a frequent and avoidable source of risk. If an investigation is later examined in litigation, regulatory action or disciplinary proceedings, incomplete or inconsistent records can be damaging.

| Corporate Crime |

ThoughtLeaders4 Disputes Magazine • ISSUE 20 Common failings include poor interview notes, inconsistent document management and confusion about what material attracts legal privilege. Some organisations also fail to record key decisions, such as why certain allegations were deprioritised or why particular witnesses were not interviewed. This can lead to allegations of selective or biased investigation. Final reports can also create risk. Informal or poorly structured reports, especially those that mix factual findings with legal conclusions, can be difficult to defend. Conversely, overly detailed reports may increase exposure, particularly where commentary goes beyond what the evidence supports.

How to Avoid It:

Clear protocols for receiving and triaging whistleblower complaints should be in place and aligned with legal requirements. These policies should be well communicated to staff.

Independent legal advisers remain essential to credible investigations. Lawyers without entrenched client relationships can offer greater objectivity and fewer perceived conflicts, strengthening the process and its defensibility.

Interviews should be conducted by trained investigators who understand both legal obligations and the human dynamics of the process. Interviewees should have the purpose of the interview explained, be told how confidentiality will be handled and be made aware of available support. Organisations should actively monitor for retaliation and take steps to protect whistleblowers where necessary.

How to Avoid It: Investigation teams should adopt consistent record keeping protocols from the outset, covering document collection, interview notes and evidence management. Key investigative decisions, especially those involving scope or methodology, should be recorded contemporaneously. When drafting the final report, its purpose and audience should be carefully considered. Many organisations adopt a two tier approach: a detailed privileged report for internal use and a shorter factual summary for external stakeholders. Reports should clearly separate facts, witness accounts and legal or risk assessments.

3. Mishandling Witnesses or Whistleblowers The way organisations treat witnesses and whistleblowers is a critical component of investigative integrity. Poor handling can lead to legal claims, regulatory scrutiny and reputational harm. Common errors include failing to protect the confidentiality of whistleblowers, conducting interviews in ways perceived as intimidating and neglecting to address the risk of retaliation. Sometimes organisations focus narrowly on fact finding while overlooking their duty of care to those involved. Regulators globally are placing growing emphasis on whistleblower protections. They increasingly scrutinise whether organisations responded promptly, took allegations seriously and ensured no detrimental treatment followed.

4. Reputational Fallout and Regulator Criticism A poorly handled investigation can create a crisis of its own. Recent high profile enforcement actions show regulators are increasingly willing to scrutinise not only the underlying misconduct but also the adequacy, independence and fairness of the investigative response. The Coutts review following the Nigel Farage debanking controversy, for example, was criticised as a “whitewash,” with concerns that the law firm’s findings lacked independence and failed to interrogate key decision making. Similar criticisms arose in investigations at Endeavour Mining and Red Bull’s Formula One team, where longstanding relationships between organisations and their external lawyers raised concerns about structural conflicts and the breadth of inquiries.

Reputation management must be integrated into the investigative strategy. Organisations should think early about how the process will be viewed externally and how findings will be communicated if disclosure becomes necessary. Constructive engagement with regulators, where appropriate, can demonstrate transparency and good faith. This may include early notice of the investigation, clear explanations of investigative steps and timely remediation. Internally, consistent messaging and strong governance help ensure public statements align with investigative findings.

Conclusion Internal investigations are high stakes exercises requiring careful planning, disciplined execution and genuine independence. Scope creep, poor documentation, mishandled witnesses, structural conflicts and reputational missteps are common pitfalls that can turn a manageable issue into a crisis. By investing in robust governance, clear processes and principled independence, organisations can conduct investigations that withstand scrutiny and reinforce trust when it matters most.

Regulators may focus on delays, lack of transparency, weak remediation or inconsistencies between internal findings and public statements. Media scrutiny can intensify the problem, especially where outcomes are leaked or poorly communicated. Perception is key: reputational damage often escalates when stakeholders believe an investigation was designed to protect the organisation rather than uncover the truth.

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ThoughtLeaders4 Disputes Magazine • ISSUE 20

| Corporate Crime |

CUTTING TO THE (STAR WARS) CHASE

UNJUST ENRICHMENT, STRIKE OUT AND AI BEYOND THE GRAVE Authored by: Philip Gardner (Senior Associate) - Peters & Peters Star Wars: Rogue One was the second highest grossing film of 2016, which was fortunate for its producers given that it remains one of the most expensive films ever made. Doubtless part of this expense was attributable to the AI recreation of Peter Cushing, who reappeared on the big screen over two decades after his death. Apart from being a technological innovation, the return of the famedvillain has also given rise to an intriguing legal dispute. In December 2025, the Court of Appeal resolved that dispute ‘early’ by striking out a claim in unjust enrichment brought by those who claimed to have the right digitally to deploy Mr Cushing’s likeness in following his death.

The Dispute in Outline In 1993, Mr Cushing was gravely ill. Nonetheless, Tyburn Film Productions Limited engaged him to appear in a film. The contract reflected his poor health, granting Tyburn the right to use various techniques (including computer generated imagery) to

‘supplement, complement, facilitate, complete, exploit’

Tyburn abandoned the film for which Mr Cushing was originally contracted. Upon learning of Mr Cushing’s imminent AI/CGI-backed Star Wars appearance, Tyburn brought a claim, including against the makers of Rogue One (Lunak Heavy Industries and Lucasfilm). Amongst other things, Tyburn alleged that Lunak and Lucasfilm had been unjustly enriched because they had obtained the purported right/license to reproduce Mr Cushing’s likeness and exploited the same at Tyburn’s expense.

Mr Cushing’s role. If the film was not completed, Tyburn and Mr Cushing agreed that Mr Cushing would not appear in any other film by use of such techniques, unless Tyburn consented.

Unjust Enrichment and Strike Out: An Unlikely Combination Unjust enrichment is an area of law in flux. The core elements are accepted, being: (1) an enrichment by the defendant; (2) at the expense of the

| Corporate Crime |

ThoughtLeaders4 Disputes Magazine • ISSUE 20 claimant; (3) which is unjust. However, the Supreme Court recently noted that there is ‘uncertainty as to the approach which should be adopted’ when determining whether the enrichment was at the expense of the claimant.1 Where an area of law is uncertain and/ or developing, there is authority that it is

‘not normally appropriate to strike out’.2 The reason for this is because, usually on a strike out application, the relevant facts are assumed. However, given the common law’s evolution, based on judicial determinations relying on particular facts, it is strongly desirable that uncertain areas of law should proceed on the basis of findings, not hypotheticals. That note of judicial caution led the Master and High Court judge below to refuse Lunak and Lucasfilm’s invitation to strike out the claim against them. Notwithstanding that they were the respondent to the appeal, Tyburn was compelled to fight a rear-guard action in defence of the refusal to strike out their case. Tyburn put its case in two ways, both purporting to arise out of Lord Reed’s decision in the Supreme Court emphasising the uncertainty of this area of law. The first argument was that the appellants had been directly enriched by taking Tyburn’s rights under their agreement with Mr Cushing. Central to those rights, it was said, was being ‘first’ to reproduce Mr Cushing’s likeness in a film.

1 2

This argument failed because, in the view of the Court of Appeal, it was clear that nothing had been transferred from the respondent to the appellants. The rights were those of Mr Cushing’s estate, and the fact that the estate may have breached the contractual licensing agreement with Tyburn did not mean that something of value belonging to it had been transferred to the appellants. Tyburn’s right was to complete the film it had contracted with Mr Cushing, which it retained. The blocking provision was similarly not a right or interest that had been transferred from the respondent to the appellants, but a way of retaining a commercial edge for the unmade film. Tyburn advanced a second argument that there had been an indirect enrichment, whether by closely connected transactions for the benefit of the appellants or by a usurpation of Tyburn’s rights under its original agreement. Tyburn’s initial formulation of this second argument was that Mr Cushing’s estate had exercised its right to prevent other films using the likeness first (or rather not exercised it) and that the appellants had then used the likeness first. The Court of Appeal categorically rejected this: the argument proceeded on the false premise that, by the original agreement, Tyburn had lost something of value, when in fact it had gained the right it was now saying had been usurped. In circumstances where the first transaction in the chain gave Tyburn a right (rather than alienating one), the second transaction could hardly be said to transfer that right or benefit.

Undaunted, Tyburn advanced a further version of the indirect enrichment argument, drawing on cases where the defendant takes the office or position of the claimant and thereby unjustly receives what is due to the claimant. However, these facts were sufficiently far removed as to fall comfortably outside such a formulation of unjust enrichment. The appeal was thus allowed and the claim struck out.

Conclusion The decision is an important one for three reasons. First, because it shows that the expansive concept of unjust enrichment does have limits. Second, the Court will not always defer to legal uncertainty and let matters proceed to trial: the risk of an early determination is a real one where the claim faces such challenges. Third, while the 1993 agreement with Mr Cushing may have been ahead of the technology of the time, that is far from true nowadays. This case may, then, represent only the start of the development of digital (unjust) enrichment. Finally, this judgment is a reminder that, whilst pursuing a party with deep pockets can be very tempting, sometimes, the most straightforward claim is the limit of what is possible.

Investment Trust Companies -v- HMRC [2017] UKSC 29. Barrett -v- Enfield LBC [2001] 2 AC 550.

ThoughtLeaders4 Disputes Magazine • ISSUE 20

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