ISSUE 21 - JUNE 2026
MAGAZINE Piecing Together the Modern Disputes Landscape.
Thought Leadership for and by the Disputes Community
ThoughtLeaders4 Disputes Magazine • ISSUE 21
INTRODUCTION “Each one of us fulfills a piece of a larger puzzle.”
- Eric McCormack
We are thrilled to present Issue 21 of the Disputes magazine. This edition dives into the themes of: International Arbitration, Class actions, Securities litigation, Financial Institutions, Shareholder Disputes. 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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CONTRIBUTORS Nicola Gare - HFW Brian Perrott - HFW Anna Fomina - HFW Syedur Rahman - Rahman Ravelli Viktor Koleda - DRD Partnership Jemimah Watkins - DRD Partnership Stuart Cullen - Collas Crill Joshua Hamlet - Collas Crill Louise Boswell - CMS David Bridge - CMS Anuj Moudgil - CMS Maxie Chopard - CMS
Rashid Gaissin - Eldwick Law Hassan El Zein - Eldwick Law Matthew Koh - Rajah & Tann Gus Sellitto - Byfield Amy Tabraham - Lucio AI Deepthi Bavirisetty - Lucio AI Paloma Castro Hernandez Deminor Litigation Funding Joeri Klein - Deminor Litigation Funding Syedur Rahman - Rahman Ravelli Daniel Martin - HFW Millie Jordan - Byfield
CONTENTS | International Arbitration | London Commercial Court Confirms Legal Advice Privilege May Extend to Intra-Client Communications ................................
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Court Refuses to Grant an Anti-Suit Injunction to Restrain Proceedings in Russia........................
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The Room Outside The Room: Arbitration and The Audiences Beyond The Tribunal.................... 11 60 seconds with.. Jemimah Watkins........................ 13 The Interaction Between Arbitration Clauses and Applications Under Companies Acts and Related Legislation Offshore.................................. 15 Confidentiality: Arbitrationand Practical Considerations........................................................ 18 Can You Enforce a DIAC Award Through The DIFC Courts?.................................................... 20 Accountability and Accommodation: The Singapore Courts and Intra-Eu Investor-State Arbitration....................................... 23 60 seconds with.. Sean Yates................................... 27
| Class Actions | Class Actions at the Intersection of Brand, Behaviour And Public Policy ................................. 29 From Apple To Ai: Rewriting The Playbook For Class Actions.................................................... 32
| Securities Litigation | Brazil After Petrobras: Are Securities Arbitrations Still Investable? ................................. 35 Dutch Opt-Out Securities Actions Under Pressure: What Airbus and Stellantis Tell Us About The Future Of Dutch Opt-Out Securities Litigation..... 37
| Financial Institutions | The Impact Of Sanctions Legislation on Payment Obligations .............................................. 40
| Shareholder Dis putes | The Weaponisation of Due Diligence Clauses: How Parties are Transforming a Compliance Tool Into An Emergency Exit.................................. 43 Inheritance Disputes: a Growing Reputational Challenge ................................................................ 47 2
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
LONDON COMMERCIAL COURT CONFIRMS LEGAL ADVICE PRIVILEGE MAY EXTEND TO INTRA-CLIENT COMMUNICATIONS
Authored by: Nicola Gare (Knowledge Counsel), Brian Perrott (Partner) & Anna Fomina (Partner) - HFW
In a judgment handed down in the case of Aabar Holdings SARL anors v Glencore PLC anors on 16 April 2026, Mr Justice Picken in the Commercial Court held that Legal Advice Privilege (LAP) applies to intra-client documents and communications sent between, or created by, members of the “client group” for the dominant purpose of seeking legal advice. This represents a potentially significant expansion of the previously accepted position that privileged communications needed to be between the client and its lawyer (for the dominant purpose of seeking legal advice) or certain limited category of communications that would reveal the nature and content of the legal advice. The decision is a first instance judgment and may yet be appealed, therefore, it should be considered with caution.
Overview In a judgment handed down in the case of Aabar Holdings SARL anors v Glencore PLC anors1 on 16 April 2026, Mr Justice Picken in the Commercial Court held that Legal Advice Privilege (LAP) applies to intra-client documents and communications sent between, or created by, members of the “client group” for the dominant purpose of seeking legal advice. This represents a potentially significant expansion of the previously accepted position that privileged communications needed to be between the client and its lawyer (for
the dominant purpose of seeking legal advice) or certain limited category of communications that would reveal the nature and content of the legal advice.
The decision is a first instance judgment and may yet be appealed, therefore, it should be considered with caution.
Background: How the Issue Arose The privilege dispute arose during the process of extended disclosure. On 17 November 2025, Glencore informed the
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 claimants that it had been approaching its disclosure obligations since April 2025 on the basis that Three Rivers (No 5) was wrongly decided, treating LAP as applying to all communications made for the dominant purpose of seeking or receiving legal advice. Following objections from the claimants, Glencore abandoned the contention that every employee should be treated as “the client” and produced 885 previously withheld documents and reproduced 290 others. However, it maintained that privilege applied to communications between members of the “client group” – even where no lawyer was party to those communications.
The claimants sought an order requiring Glencore to disclose those documents, save for those evidencing the substance of privileged communications.
The Established Framework The Court of Appeal’s 2003 decision in Three Rivers District Council v Bank of England (No 5)2 has long been understood as establishing that LAP attaches only to communications passing between a lawyer and the client. The “client” in a corporate context is defined narrowly as those employees specifically tasked with seeking and receiving legal advice. On that basis, purely internal communications – even between members of the client group – fell outside LAP unless they evidenced the substance of a privileged communication or were intended (though not sent) for the lawyer. This reading had been endorsed in subsequent authorities including SFO v ENRC [2019] 1 WLR 791, Jet2.com [2020] QB 1027, Rabobank [2006] EWHC 2332, and RBS Rights Issue Litigation [2017] 1 WLR 1991.
The Court’s Analysis Three Rivers (No 5) Recharacterised Picken J declined to make the order sought. His central finding was that Three Rivers (No 5) had never in fact been concerned with intra-client documents. The appeal concerned documents prepared by Bank of England employees outside the Bingham Inquiry Unit (BIU) – the narrow group treated as the client. All four categories of disputed document were therefore “non-client” documents. While some documents internal to the BIU may technically have fallen within the order made at first instance, no argument addressing intra-client documents was advanced before Tomlinson J or the Court of Appeal. It would therefore be wrong to treat Three Rivers (No 5) as authority on the point. In each case relied upon by the claimants, Picken J concluded that the decision was concerned only with nonclient documents and had no bearing on intra-client communications.
The Position on Principle Approaching the matter as one of principle, Picken J considered the position to be clear, namely that there is no principled basis for denying LAP to intra-client documents whose dominant purpose is to identify issues for legal advice or to communicate relevant facts to lawyers. The examples given are telling: a client writing a memorandum with notes for the next day’s meeting with their lawyer; or one member of the client group emailing another with thoughts in preparation for that meeting. In both cases, the document should attract privilege regardless of whether it was itself sent or intended to be sent to the lawyer. The court drew a compelling analogy with lawyers’ working papers, describing their privileged status as “obviously the case” and “not in dispute”. If a lawyer’s working papers attract LAP, it is difficult to see why, what are in effect a client’s working papers, should not equally do so. This lends support to a broader reading of the working papers principle at a time when some uncertainty had arisen following RBS Rights Issue Litigation3.
| International Arbitration | taken by Picken J to address intra-client communications and to confirm that LAP can apply to such documents where the dominant purpose threshold is satisfied.
The Decision and its Limits LAP can be asserted over intra-client documents created for the dominant purpose of seeking legal advice, notwithstanding that no lawyer (whether internal or external counsel) was a party to the communication itself. It is important, however, to note what the decision does not do: • The narrow client definition survives. The Three Rivers (No 5) restriction that the “client” comprises only those employees specifically tasked with seeking and receiving legal advice remains unaffected. • The dominant purpose test remains the controlling filter. The extension of LAP to intra-client documents is not unconditional. • First instance only. The decision is not binding on other courts and there is some tension with various appellate statements, albeit Picken J’s answer is that those statements were directed at third-party communications rather than intra-client documents.
Looking Ahead Whether the LAP point in Aabar will be tested before the Court of Appeal or the Supreme Court remains to be seen. Only the Supreme Court can definitively resolve the broader Three Rivers (No 5) question concerning the definition of the “client”. With thanks to Paddy Wheeler for his assistance in producing this article.
Further support was found in Jet2.com4, where Hickinbottom LJ’s reference to documents exchanged between “an employee and a co employee” was
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
COURT REFUSES TO GRANT AN ANTI-SUIT INJUNCTION TO RESTRAIN PROCEEDINGS IN RUSSIA
Authored by: Syedur Rahman (Partner) – Rahman Ravelli Recently, several anti-suit injunctions have been granted by the courts of England and Wales to restrain proceedings brought in Russia in breach of an arbitration agreement. However, where the arbitration agreement is not governed by English law, the application faces an uphill battle. In FH Holding Moscow Limited v AO Unicredit Bank & Anor [2026] EWCA Civ 468 the application was dismissed at first instance, and the decision to dismiss was upheld by the Court of Appeal. One of the reasons to refuse the ASI was that the arbitration agreement provided for arbitration in Vienna. While the underlying agreement was governed by English law, the effect of section 6A of the Arbitration Act 1996, inserted into the 1996 Act by the Arbitration Act 2025, is that this arbitration clause is governed by Austrian law, the law of the seat.
Background facts UniCredit Bank provided FH Holding Moscow Limited (FHM) with a loan facility. FHM used various fashion retail outlets in or near Moscow as security for the loans under a mortgage agreement. UniCredit alleged that FHM defaulted on the loan, and so it brought proceedings in Russia to take possession of properties used as security. FHM denied that they had defaulted on the loan, arguing that its payment obligations were suspended due to Russian law and Russian countersanctions which rendered repayment of the euro loan unlawful. FHM applied to the courts of England and Wales for an anti-suit injunction to obstruct the Russian proceedings. The application was refused at first instance, and the Court of Appeal upheld that decision.
Mortgage Agreement and the Facilities Agreement The Mortgage Agreement was subject to Russian law and jurisdiction. The Facility Agreement was governed by English law, but it contained an arbitration clause, which provided for arbitration in Vienna. As such, the court held that the arbitration agreement is governed by Austrian and not English law.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 Given that the arbitration clause with which the proceedings were concerned was not governed by English law, it was “a shaky foundation” for the grant of a remedy as serious as an anti-suit injunction.
Obligation To Obtain an Arbitral Award FHM said that UniCredit was obliged to obtain an award from an arbitral tribunal in Vienna declaring that an Event of Default had occurred. They said that failure to do this was a breach of the arbitration clause in the Facility Agreement. The banks argued that the Mortgage Agreement allowed for immediate enforcement through the Russian courts, including resolving any dispute about default. The dispute about the “Event of Default” fell within the ambit of both the Facility Agreement and the Mortgage Agreement. But when there are
competing clauses, both clauses can apply and the court rejected the idea that the arbitration clause had exclusive priority. In any event, the proposal of a twostage process would be counter to commercial sense. Commercial parties seek swift enforcement, and requiring a prior arbitration to determine the Event of Default would undermine the commercial purpose of efficient resolution of disputes. The Moscow proceedings were therefore not brought in breach of the arbitration clause in the Facility Agreement. If there was no breach, the claim for an anti-suit injunction had to fail.
Analysis The court repeatedly stressed that the dispute had minimal connection to England. AO UniCredit is a Russian company, pursuing proceedings against a Russian property owner FHM, a Cypriot company tax resident that operates only in Russia.
| International Arbitration | Males J commented that
“it is not easy to see why this issue has anything to do with English law or the English court.” Clearly the courts of England and Wales are reluctant to intervene when there is insufficient connection to the jurisdiction. The case also highlights a drafting gap which can easily slip through the net of commercial agreements. If the parties intend for disputes to be referred to arbitration, that must be clearly stated in the underlying agreement. Ideally all commercial agreements (as between the same parties at least) should contain consistent dispute resolution clauses to avoid confusion, or the potential for parallel proceedings.
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| International Arbitration |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
THE ROOM OUTSIDE THE ROOM ARBITRATION AND THE AUDIENCES BEYOND THE TRIBUNAL
Authored by: Viktor Koleda (Director) - DRD Partnership When a company files for arbitration, it expects the dispute to move into a forum governed by rules and procedural discipline. What often follows instead is a period of enforced quiet, during which reporting obligations, investor scrutiny, lender concerns, regulatory interest and commercial relationships all continue to develop without reference to the procedural timetable. The counterparty may face no equivalent constraint. An operator in day-to-day control of a disputed asset can carry on briefing the off-taker, reassuring the regulator, explaining its position to commercial partners and giving the market a version of events that sounds calm because it is delivered with authority. The claimant, meanwhile, may have little choice beyond restraint, leaving a damaging quiet around the company at the very moment when confidence matters most. This is arbitration’s audience problem. The tribunal receives the pleadings, evidence and submissions. Outside the proceedings, an alternative record is being assembled from market commentary, stakeholder conversations, court filings and the conduct of the
parties themselves. And while the award will come from the arbitral record, reputation and commercial confidence may be shaped by the account being constructed beyond the company’s reach.
Each external audience reads the dispute through its own lens: investors through valuation and management credibility, lenders through liquidity and covenant risk, regulators through governance, commercial partners through reliability. These audiences do not see the full legal record, and few will wait years before reaching a view. They
read visible behaviour: who controls the asset, who holds the relationships, who remains present in the market and who has receded from view. In joint venture disputes, the asymmetry is particularly acute. The operator retains the regulatory interface, the local relationships and practical authority over the asset. A minority partner that commences proceedings can find that formalising the dispute has reduced its influence over the very thing it is trying to protect. The legal process may bring order to the argument, while the external environment continues to reward presence, confidence and control. The answer is rarely to fight the arbitration in public. There will be good reasons for restraint. The more demanding task is to project confidence within those constraints: to show that management has control of the issue, that the business remains stable, and that the company’s position rests on facts it is prepared to defend. That requires a factual architecture around the dispute, built with counsel, that separates what belongs before the tribunal from what can properly
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
be said to the audiences whose confidence matters. The company may be able to explain why the asset remains strategically important, why its position is consistent with previous disclosures, why it has confidence in its contractual rights, or why the conduct at issue raises wider questions about governance or market practice. Properly handled, those points offer stakeholders a framework through which to understand the dispute without asking them to adjudicate the claim or displace the legal process. That structure matters because counterparties rarely need to win the external argument outright; it is often enough to introduce uncertainty. A suggestion that the claimant has failed to meet its obligations, a sovereign appeal to fiscal necessity or an attempt to portray enforcement as opportunism can all give investors, lenders or regulators a reason to hesitate. In that hesitation, commercial value can be lost. The same dynamic continues after an award. A favourable decision may settle the legal question, but if the losing party refuses to pay, delays enforcement or frames compliance as politically unreasonable, the successful party faces a new version of the same audience problem.
Spain’s renewable energy disputes illustrate the point well. The state has accumulated 24 unpaid investment treaty awards worth at least US$1.5 billion following its reversal of renewable energy incentives. In a March 2026 judgment involving Spain and Zimbabwe, the UK Supreme Court held that states could not rely on immunity to resist registration of ICSID awards in England and Wales. Registration is distinct from execution against state assets, but it is a public step in the enforcement campaign, and one that adds to a record which investors, counterparties and credit markets can read. The communications significance
lies in making non-payment visible as a pattern of conduct rather than allowing it to remain a series of disconnected legal skirmishes.
has a plan, or a governance argument that raises the right questions without making assertions that belong in the arbitration.
The period before proceedings are formally commenced is often where the most ground is gained or lost. Confidentiality obligations may not yet apply, and the first account of a dispute can harden quickly. A counterparty can brief journalists, write to regulators, approach commercial partners and establish a version of events that becomes familiar before the first submission has been filed. Companies that prepare for this phase understand which audiences are commercially critical, have identified the factual material that can safely be used if the matter becomes public, and have anticipated the counterparty’s likely account. They also have a clear view of the moments when communication may become necessary: a leak, a market update, a procedural milestone, or a counterparty briefing that risks distorting the position.
None of this means abandoning the privacy of arbitration. The starting point is recognising that the commercial audience exists from the beginning, and that leaving it unattended means leaving it to the other side. Legal advisers focus, properly, on the room where the award will be decided. The commercial life of the dispute develops elsewhere: in investor conversations, lender assumptions, regulatory perceptions and the judgements of counterparties whose decisions may matter long before the tribunal reaches a view. The award will come from the tribunal. By then, some of the commercial judgements that matter most may already have been made elsewhere.
During proceedings, the communications task becomes narrower. It must be aligned with the legal strategy and guided by counsel. But judgement is still required. Quiet engagement with a small number of critical audiences may be enough to preserve confidence, whether through a carefully worded market line that prevents speculation from taking hold, a factual background note that helps investors understand management
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
60 SECONDS WITH... JEMIMAH WATKINS SENIOR ASSOCIATE
DRD PARTNERSHIP
hat’s a trend people W underestimate right now? he rise of coordinated collective T action: class actions and collective actions. The infrastructure for groups to aggregate grievances and move quickly has never been more sophisticated. A lot of organisations don’t fully understand what that exposure looks like until they’re already in it. Your guilty-pleasure productivity hack? n important/urgent matrix A - importance on one axis, urgency on the other, actions plotted accordingly. It’s a bit nerdy but it cuts through day-today overwhelm. I also think much better out loud, so I’ll often grab someone and ask them to be a sounding board. hat’s the best advice you’ve W ever received? “ Be interested, not just interesting.” It completely changes how you listen and interact; you ask questions you wouldn’t have thought to and discover things you would otherwise miss when you’re just waiting for someone to finish talking so you can reply.
I f you weren’t in your current career, what would you be doing? ikely something in marine or L wildlife conservation, ideally a role that put me in different ecosystems and forced me to keep learning. I’m drawn to work where the context is varied and no two days are the same. In a different way, that’s what drew me to this career too. hat is one of your greatest W work-related achievements? One situation stands out: a large-scale, multi-jurisdictional crisis requiring close coordination across legal, communications, regulatory and government affairs workstreams simultaneously. The sequencing mattered as much as the strategy; certain moves could only happen once others were in place, and getting that wrong would have unravelled everything. It required a big team working in close collaboration under real pressure, and watching it land was incredibly rewarding. ou’ve been granted a ticket to Y another country of your choice. Where are you going and why? ustralia or the Galápagos - I can’t A choose. Australia because it’s vast and you could spend months and still feel like you’d barely started. The Galápagos because the wildlife is unlike anywhere else on earth. Both have been on the list a long time, and I’m hoping that I get to both eventually.
hat is the easiest/hardest W aspect of your job? Clients often come to us with problems that have no obvious path forward. Developing creative solutions in that context is the most demanding part of the job. It’s also the most engaging. hat is the biggest life lesson W you have learned? eing comfortable with uncertainty B is something I’m working on – so a lesson in action! hat motivated you to pursue W a career in reputation management? I was working in communications and had a legal background, and I found myself most energised when those two worlds came together. When the opportunity arose to work at that intersection, it felt like a natural fit. hat motivates you most W about your work? he people and the variety. T Every situation is different, and so are the stakes. There is something deeply satisfying about bringing clarity to a situation that once felt chaotic.
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M&A Disputes Report 2026 M&A disputes are on the rise as global deal activity regains momentum. While dealmakers have renewed confidence in the strength of the mergers and acquisitions (M&A) market following years of disruption, the disputes emerging from this period point to a more complex and high-stakes environment. Transaction complexity, heightened geopolitical risk and increased scrutiny of post-closing performance are driving more frequent M&A disputes as rising deal stakes push dispute values higher. Now in its seventh year, BRG’s M&A Disputes Report 2026 draws on insights from BRG experts, in-depth interviews with leading dispute and corporate lawyers, and a global survey of more than 200 attorneys, private equity professionals and corporate finance advisors. Covering AsiaPacific (APAC), Europe, the Middle East and Africa (EMEA), Latin America and North America, the report examines key M&A dispute trends and risk drivers—including how macroeconomic, geopolitical and regulatory forces are shaping the landscape—as well as how dealmakers are approaching dispute resolution and mitigation across industries and regions. DOWNLOAD THE FULL REPORT
Key takeaways from this year’s report include: M&A dispute volume increased in 2025, with growth concentrated in small and middlemarket transactions. – Respondents expect M&A dispute volume to increase alongside growth in the average value of disputes. – The geopolitical environment is expected to play a more prominent role in M&A disputes, ranking among the leading anticipated catalysts and as the top expected driver in Latin America. – Financial services experienced the highest level of M&A dispute activity in 2025,
while respondents expect energy and climate–related transactions to emerge as prominent areas of dispute activity in 2026. – Earnouts and representations and warranties (R&W) featured prominently in M&A disputes in 2025, with earnouts expected to be the most prevalent contractual element in disputes in 2026. The report also examines how M&A disputes are resolved in practice, including settlement trends, dispute resolution venues and the influence of private equity involvement on dispute outcomes.
T H I N K B R G.C O M
ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
THE INTERACTION BETWEEN ARBITRATION CLAUSES AND APPLICATIONS UNDER COMPANIES ACTS AND RELATED LEGISLATION OFFSHORE
Authored by: Stuart Cullen (Partner) & Joshua Hamlet (Senior Associate) - Collas Crill Corporate applications (‘CAs’) are formal proceedings (such as winding-up petitions and unfair prejudice claims) filed pursuant to specific legislation in order to resolve corporate disputes or compel action involving or relating to a company. A respondent may apply to stay or strike out such CAs on the grounds that the action has been brought in a matter that is the subject of an arbitration agreement. 1 The increased use of arbitration clauses, coupled with pro-arbitration public policy,2 have broadened the circumstances in which CAs may be stayed in favour of arbitration. Where a potentially relevant arbitration agreement exists, in order to avoid the unnecessary expenditure of resources, an applicant intending to file a CA will need to consider the risk of the CA being stayed and the parties compelled to arbitrate.
With respect to the first part of the test, in the case of Sian Participation Corp (in liquidation) v Halimeda International Ltd [2024] UKPC 16, the Privy Council (on an appeal from BVI) emphasised that arbitration exists to resolve disputes over rights and obligations.3
With any CA, the initial assessment of risk requires an applicant to undertake a two-stage test: • First, a determination as to whether the CA constitutes an ‘action’ or raises ‘matters’ that fall within the scope of the arbitration clause; and • Secondly, a determination whether the matters raised or reliefs sought are precluded from arbitration either by statute or public policy.
The terms ‘actions’ or ‘legal proceedings’ tend to cover processes that determine disputes. For that reason, because a creditor’s petition for the winding-up of a company on the grounds of insolvency decides no rights nor obligation, but rather initiates a class remedy to distribute assets amongst creditors,4 the Board concluded that it was not an ‘action’.5 This contrasts with a petition for the winding-up of a company on ‘just and equitable’ grounds, which would usually require determination of parties’ rights and which can, therefore, trigger a stay in favour of arbitration.
1 Arbitration Act 2014, s.18 (BVI); Arbitration Act 2012, s.9 (Cayman Islands); Arbitration Act 1996, s.9 (England & Wales); Bermuda has incorporated the UNCITRAL Model Law (and Article 8 thereof governing stays in favour of arbitration) in respect of international arbitration in the Bermuda International Conciliation and Arbitration Act 1993, s.23. 2 G Born International Commercial Arbitration (2nd ed, 2014) 1403, as cited with approval in Enka Insaat ve Sanayi AS v OOO ‘Insurance Co Chubb [2020] UKSC 38; FamilyMart China Holding Co Ltd v Ting Chuan [2023] UKPC 33; and Sian Participation Corp (in liquidation) v Halimeda International Ltd [2024] UKPC 16. 3 Sian at [57]-[60]. 4 Ibid at [32]-[35]. 5 As with any petition for the winding up of a company on the grounds of insolvency, the question for the Court is whether the debt is genuinely disputed on substantial grounds: if it is so disputed, then the winding-up petition will be dismissed, and the dispute over the debt will have to be determined in accordance with the relevant dispute resolution provisions which govern the debt.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 consequences for all who have dealt with it and go beyond private disputes.13 Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855 and subsequent cases show, however, that even if the arbitration tribunal cannot grant the relief, parties can be compelled to arbitrate the underlying disputes. In a recent decision of the BVI Commercial Court6 it has also been suggested that a neutral CA, which avoids deciding any rights (eg an application for a declaration as to the interpretation of a company’s M&As7), may not constitute an action. As most CAs are filed to establish a right, however, it is unlikely that they can escape being classed as an action on these grounds. Similarly, the broad scope of what can qualify as a ‘matter’ favours CAs being stayed in favour of arbitration. A ‘matter’8 is not limited to a cause of action but includes any essential element of the claim or of a relevant defence that is susceptible to be determined by a tribunal as a discrete dispute.9 This is a practical, rather than formalistic or academic, task that involves looking at the overall nature of the CA.10 Consequently, where a potentially relevant arbitration agreement exists, there will be few CAs that do not constitute an action or require determination of a matter and which therefore fail to meet the first part of the test. The second part of the test is whether the matter and/or the relief sought is arbitrable. Issues which affect the rights of non-parties11 or which are reserved for a regulatory body are usually not arbitrable. An applicant for a CA should comprehensively review the legislative provisions to decide if arbitration is expressly prohibited or precluded by public policy.12 Applications for the winding up or restoration of companies are not arbitrable because they affect the status of the company with 6 7 8 9 10 11 12 13 14 15 16 17
The Privy Council in FamilyMart China Holding Co Ltd v Ting Chuan [2023] UKPC 33 held that the question of whether it was just and equitable for the company to be wound up (or alternatively whether there should be a buy out of the applicant’s shares) was not arbitrable, being relief that only the Court could grant.
The underlying dispute as to whether there was a breakdown in trust and confidence between the parties was, however, arbitrable. This led the Board to grant a mandatory stay in favour of arbitration of the underlying dispute, and a discretionary stay in respect of the relief being sought, pending determination of the arbitration. FamilyMart demonstrates that, if the underlying dispute is determined in the CA applicant’s favour by the arbitration tribunal, the applicant will then be required to ensure the stay is lifted so that the Court can consider whether the relief, such as a winding-up or buy-out order,14 should be granted under its statutory jurisdiction.15
| International Arbitration | should be granted, the Court cannot be bound by the findings of the arbitration tribunal. Therefore, even after the CA applicant submits to arbitration and obtains a favourable award, the Court may not grant the relief sought, at least without further enquiry. The Courts have retained the discretion to carry out a wide ranging enquiry and evaluation of the evidence including such rights to decide whether to grant the relief sought.16 Greater clarity on the above question may soon be provided by the Privy Council when it hears the appeal in the BVI case of Siong Beng Seng and ors v Caldicott Worldwide Ltd BVIHCMAP 2023/0009 and BVIHCMAP 2021/0007. This case involves an unfair prejudice claim by a member against both the company and other shareholders for withholding dividends. As disputes between the company and its members appeared to be governed by an arbitration clause in the company’s constitutional documents, the Court of Appeal granted a stay of that aspect of the claim in favour of arbitration. The Privy Council has been asked to determine the follow-on question of whether the factual basis of the shareholder-shareholder unfair prejudice claim is also required to be stayed pending determination of the company-shareholder arbitration.17 As can be seen from the above, the interplay between CAs and arbitration has been a common topic in offshore cases over recent years. Recent authorities confirm that, where a potentially relevant arbitration agreement exists, a stay of a CA in favour of arbitration is likely, but not inevitable in all circumstances.
It should be noted that, in certain circumstances (for example where the rights of non-parties to the arbitration would be affected by the Court granting relief on the basis of the arbitration award), in determining what relief
Welltech Group Limited v Techmix Limited BVIHCM 2025/0209, 05/12/25 at [57]-[61]. Pursuant to s.246, BVI Business Companies Act, 2003. FamilyMart and Republic of Mozambique v Prinvest Shipbuilding SAL (Holding) [2023] UKPC 32. FamilyMart at [61]. Ibid at [42]. See also Mustill & Boyd Commercial and Investor State Arbitration (3rd ed, 2024) at 3.194. Riverrock Securities Ltd v International Bank of St Petersburg (Joint Stock Co) [2021] 2 All ER (Comm) 1121 at [87]. Mustill & Boyd at 3.174-176. Ibid at 3.188-189. NDK Ltd v HUO Holding Ltd and another [2023] 1 All ER (Comm) 603 at [61] and [69]-[73]. Mustill & Boyd at 3.192. FamilyMart at [81]. Siong Beng Seng and ors v Caldicott Worldwide Ltd BVIHCMAP 2023/0009, 17/10/25 at [43]-[47].
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| International Arbitration |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
CONFIDENTIALITY ARBITRATION AND PRACTICAL CONSIDERATIONS
Authored by: Louise Boswell (Partner, Solicitor Advocate), David Bridge (Partner), Anuj Moudgil (Senior Associate) & Maxie Chopard - CMS Cameron McKenna Nabarro Olswang Commercial parties often choose arbitration because it is a private and confidential process, unlike litigation where hearings are usually public and documents are generally publicly accessible. The case for arbitration is stronger if the dispute concerns information of a particularly sensitive nature, and commercial parties can take practical steps to further protect further their confidential information in arbitration proceedings.
of disputes in good faith and through cooperative engagement, favours amicable settlement, and is more likely to help preserve the parties’ commercial relationship. It also reduces the risk of wide-ranging disclosure being used as a means to obtain commercially sensitive information which may then be exposed to competitors, clients and the public. This is particularly so given disclosure in arbitration is often less onerous than in litigation. Arbitration is private in that non-parties to the proceedings cannot attend hearings or access materials without the parties’ consent. The confidential nature of arbitration is generally recognised under English law. For arbitrations seated in England, the parties and the Tribunal are under an implied duty to maintain the confidentiality of the following:
Arbitration: Privacy and Confidentiality
• documents disclosed or generated in the arbitration proceedings;
The private and confidential nature of arbitration supports the resolution
• evidence including witness statements and expert reports;
• transcripts and records of oral hearings; • pleadings and submissions; and • the award.1 The Arbitration Act 1996 does not impose express duties of confidentiality on the parties and the Tribunal.2 However, parties often include confidentiality provisions in their arbitration agreements or through institutional rules. For example, the London Court of International Arbitration (LCIA) Rules and Singapore International Arbitration Centre (SIAC) Rules contain provisions preserving the confidentiality of arbitration proceedings.3 The International Chamber of Commerce (ICC) Rules provide that a Tribunal may make orders concerning the confidentiality of the proceedings and take measures to protect trade secrets and confidential information.4
1 Dolling-Baker v Merrett [1990] 1 WLR 1205; Hassneh Insurance Co v Mew [1993] 1 Lloyd’s Rep 243; Ali Shipping Corporation v Shipyard Trogir [1997] EWCA Civ 3054 2 Following a review of the Arbitration Act 1996, the Law Commission of England and Wales decided that statutory provision for confidentiality was not appropriate and this was excluded from the Arbitration Act 2025. 3 Article 30, LCIA Rules 2020 and Article 59, SIAC Rules 2025. 4 Article 22.3, ICC Rules 2021.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
Implications for Parties The greater accessibility to court documents will come with more public scrutiny of parties engaged in English litigation. Examples include:
Practice Direction 51ZH: A Comparison with the English Courts In contrast with arbitration, court proceedings are generally open to the public, judgments are on the public record and non-parties may access certain documents relating to the litigation, in line with the principle of open justice. To further promote transparency in the English justice system, a pilot scheme ‘Practice Direction 51ZH – Access to Public Domain Documents’5 (PD 51ZH) was introduced on 1 January 2026.6 PD 51ZH makes documents placed before a judge and referred to by a party during trial publicly accessible by default, marking a shift in the previous position where non-parties needed to make applications to the court. The categories of documents in the public domain (Public Domain Documents) are: • skeleton arguments; • written openings; • witness statements/affidavits (but not exhibits); • expert reports (including exhibits); and • agreed documents. In addition to the above Public Domain Documents, documents “critical to understanding the case” will also automatically be available. The scope of this category of documents is currently untested but it is designed to apply where it is “artificial to regard a document as not being public”, for instance, where it has been read out in open court (in full or nearly in full), or where it is referred to so extensively that it is impossible to understand argument without it.7
5 6 7 8
• Inadvertent disclosure of confidential information. Although parties may seek to protect sensitive commercial information by applying redactions or obtaining orders from the court restricting access to certain documents,8 such information may inadvertently enter the public domain. • Collateral use. While there are rules prohibiting parties to litigation from using documents obtained during the course of that litigation for unrelated purposes, the ease with which nonparties can access court documents increases the likelihood that sensitive commercial information may end up in the hands of unintended recipients such as competitors, the media and regulators. • Increased exposure of witnesses. Factual and expert witnesses may come under increased public scrutiny and be more circumspect in their evidence. • Uncertainty around “Critical Documents“. The scope of documents deemed “critical to understanding the case” is not yet defined and leaves room for judicial interpretation, which means greater uncertainty for parties. • Greater cost and complexity. Complying with the new filing and redaction requirements is expected to increase legal costs and the administrative burdens on parties. There is also a risk of disputes between the parties as to whether certain documents should be made public. In view of the increased transparency PD 51ZH introduces, arbitration may become a more attractive route for parties who seek to maintain confidentiality and greater control over the dissemination of their information.
Practical Tips English law recognises a few exceptions where disclosure may be permitted or required in relation to arbitration proceedings. For instance, the parties may agree to waive confidentiality, disclosure may be required by law, regulation, or court order, or in limited circumstances, a wider public interest may override the duty. Nonetheless, if privacy and confidentiality are a key concern, and particularly where the dispute involves sensitive commercial information, arbitration offers advantages in achieving a final, binding outcome that is readily enforceable in many jurisdictions. To protect the confidentiality of arbitration proceedings, commercial parties may consider taking these steps: • Make maintaining the confidentiality of proceedings an express term of the arbitration agreement. • Select an arbitral institution that expressly provides for confidentiality in its rules. • Choose a seat that supports the confidentiality of arbitration, whether through statutory provisions or custom and practice. • Brief witnesses and experts on their confidentiality obligations. • Ensure that the tribunal specifically requires the witnesses to maintain the privacy of the hearing and the confidentiality of any documents that they are shown or information given. This can usually be addressed at the preliminary meeting, or in the first procedural order or order for directions.
‘Practice Direction 51ZH – Access to Public Domain Documents’ The pilot will run for two years from 1 January 2026 to 31 December 2027 in the Commercial Court (including the London Circuit Commercial Court) and the Financial List. Guidance Note on CPR Practice Direction 51ZH Paragraphs 13-19, PD 51ZH.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
CAN YOU ENFORCE A DIAC AWARD THROUGH THE DIFC COURTS?
Authored by: Rashid Gaissin (Partner) & Hassan El Zein (Paralegal) - Eldwick Law
Key Points • The DIFC Courts offer a fast, Englishlanguage, common law route to recognise and enforce DIAC arbitral awards, operating independently from the onshore UAE court system under a distinct legal framework. • Enforcement is governed by three overlapping regimes: the UAE Federal Arbitration Law (Federal Law No. 6 of 2018), the DIFC Arbitration Law (DIFC Law No. 1 of 2008), and the New York Convention. The DIFC Courts apply these with a consistently pro-enforcement approach. • The September 2025 decision of the Conflicts of Jurisdiction Tribunal (CJT) in Serene Resources DMCC v Energen DMCC has introduced practical limits. In particular, parallel annulment proceedings in the Dubai Courts can now disrupt DIFC enforcement, making early procedural strategy more important. You can enforce a DIAC arbitral award through the DIFC Courts, and for many creditors this is an increasingly attractive route. An award that cannot
be realised against assets has little commercial value. The DIFC Courts have positioned themselves as a preferred forum for international enforcement: proceedings are conducted in English, procedures are familiar to common law practitioners, and the judiciary is experienced in complex cross-border disputes. DIAC itself has expanded rapidly. In 2023, it registered 355 cases, including 323 arbitrations, spanning construction, real estate, and a wide range of commercial disputes involving parties from across multiple jurisdictions. The framework has, however, become more nuanced. Dubai Decree No. 29 of 2024 established the CJT to resolve jurisdictional conflicts between the DIFC Courts and the Dubai Courts, and Dubai Law No. 2 of 2025 expanded the DIFC Courts’ jurisdiction. Against that backdrop, understanding both the advantages of the DIFC route and its emerging limits is essential.
Why Award Creditors Use the DIFC Courts A DIAC award can be enforced through the DIFC Courts, and the route is often built into enforcement strategy from the outset of high-value transactions. Its key feature is the “conduit” function. Dubai Law No. 2 of 2025 expressly preserves this conduit function in Article 32, allowing DIFC-recognised judgments to be enforced onshore even where the debtor holds no DIFC assets. For creditors familiar with English or Singaporean court practice, the procedural feel is recognisable. That familiarity matters when speed is a commercial priority. A creditor can seek recognition in the DIFC even where neither party has any
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 connection to it and even where the arbitration was seated elsewhere. Once recognised, the award becomes a DIFC judgment, which can then be transferred to the Dubai Courts for enforcement against onshore assets under Article 7 of the Judicial Authority Law. At that stage, the Dubai Execution Judge does not revisit the merits. Enforcement becomes procedural, which is precisely what makes the route efficient. Dubai Law No. 2 of 2025 confirms that DIFC-recognised judgments can be enforced onshore even without DIFC assets. For international parties, the procedural familiarity of the DIFC Courts, often compared to English or Singaporean courts, adds further appeal, particularly where speed is critical.
Preparation is critical. Translation errors, incomplete bundles, and inconsistent documentation are common sources of delay and are readily avoidable. The DIFC Courts do not reconsider the merits. Their role is limited to assessing whether any refusal grounds under Article 44 of the DIFC Arbitration Law apply. Once recognised, the award becomes a DIFC judgment. The creditor then proceeds to Dubai Courts for execution, submitting the DIFC judgment, a certified Arabic translation, and an enforcement letter from the DIFC Registry. Execution measures include bank account attachment, property seizure, garnishment, and travel bans. The Execution Judge does not search for assets, making prior asset identification essential.
The CJT Risk After Serene v Energen
How the Three Legal Regimes Fit Together Three regimes govern enforcement, each performing a distinct role. UAE Federal Arbitration Law (2018) governs onshore enforcement. Its refusal grounds mirror the New York Convention and are interpreted narrowly, although application can vary in practice. DIFC Arbitration Law (2008) governs recognition within the DIFC. Articles 42 and 43 allow enforcement of arbitral awards, including certain interim or partial awards. In Neal v Nadir, the DIFC Court of Appeal confirmed that “finality” is interpreted flexibly, allowing enforcement of awards that are substantively decisive even if not formally final. The New York Convention underpins both regimes and reinforces the proenforcement approach. In Obert v Ondray, the DIFC Courts confirmed that public policy challenges cannot be used to revisit the merits and are construed narrowly.
The Enforcement Process Enforcement begins with a recognition application in the DIFC Courts, typically by Part 8 claim for support by the arbitral award, the arbitration agreement, and certified translations where required.
The CJT, established in 2024, resolves jurisdictional conflicts between the DIFC and Dubai Courts. Its 2025 decision in Serene v Energen has introduced a significant constraint on the conduit route. In that case, the creditor sought DIFC recognition of an arbitral award. The debtor responded by filing annulment proceedings in the Dubai Courts and applying to the CJT. The CJT held that: (i) neither party had a DIFC connection, (ii) there was no opt-in to DIFC jurisdiction, (iii) no assets were located in the DIFC, and (iv) the proceedings were closely linked. It therefore directed the DIFC Courts to suspend enforcement and designated the Dubai Courts as the proper forum. The practical consequence is clear: where a debtor initiates onshore annulment proceedings and there is no DIFC nexus, DIFC enforcement may be halted. This creates unresolved tension with the New York Convention, which generally allows enforcement to proceed despite pending annulment actions.
Recurring Defences and How to Handle Them Jurisdictional objections, arguing that the DIFC Courts lack sufficient nexus to hear the claim, are regularly raised.
| International Arbitration | They are often unsuccessful, but they delay proceedings when not addressed at the outset. Post-Serene v Energen, respondents with no DIFC connection who are willing to file onshore annulment proceedings have a more credible basis for those challenges than they did before September 2025. Parallel proceedings should be used tactically. A respondent who files an annulment application onshore before DIFC enforcement is sought can, on the current CJT analysis, create a genuine jurisdictional contest. Timing matters: where the CJT risk is real, moving before the respondent can establish competing onshore proceedings is a material tactical consideration. As to the merits, Obert v Ondray confirms that public policy objections will not be allowed to function as a back-door appeal. Administrative failures, meaning incomplete bundles, uncertified copies, and inconsistent translations, generate delays out of all proportion to the actual difficulty. They are preparation problems that should not arise.
Practical Guidance for Award Creditors Asset mapping is essential. The Dubai Execution Court does not identify assets, so creditors must locate bank accounts, property, shareholdings, or receivables in advance. Seat selection matters. A DIFC seat places the arbitration within the DIFC Courts’ supervisory jurisdiction and reduces the risk of jurisdictional conflict. Arbitration clauses should be clearly drafted and up to date. Institutional changes, including the consolidation of DIFC-LCIA cases into DIAC, should be reflected in new agreements. Early engagement of counsel improves outcomes. Enforcement requires coordinated preparation, including documentation, translations, and risk assessment.
Final Words Used effectively, the DIFC route is one of the most effective enforcement mechanisms available to international creditors across the region. The process is fast, the framework is creditor-friendly, and the onshore tools give you genuine leverage over a debtor’s assets. Getting there smoothly is not a legal problem. It is a preparation problem, and preparation is entirely within your control.
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13 October 2026 Saddlers Hall London '
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Understanding the evolving international arbitration landscape through the lens of strategy, risk, and enforcement
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| International Arbitration |
ACCOUNTABILITY AND ACCOMMODATION: THE SINGAPORE COURTS AND INTRA-EU INVESTOR-STATE ARBITRATION
Authored by: Matthew Koh (Partner) - Rajah & Tann Singapore
Abstract: Singapore is one of the world’s most popular seats of arbitration, and the Singapore courts have had the opportunity to consider many different areas of arbitration law. Recently, this has extended to the issue of the validity or permissibility of intra-EU investor-state arbitration. The decisions of the Singapore courts on this issue are worth a closer look.
Introduction The Singapore courts have, in a couple of recent decisions, had the opportunity to consider the interplay between the enforcement of arbitral awards in Singapore, and European Union (“EU”) law. On the contentious and difficult issue of whether there can be a valid arbitration agreement between an EU member state, and the national of another EU member state, or whether investor-state arbitration is valid or applicable as between EU member states, the Singapore courts have not considered intra-EU investor-state arbitration as necessarily prohibited. At first glance, this may appear at odds with some decisions of the EU courts,
but at closer look reflects the Singapore courts taking pains to read the decisions of the EU courts in their context, while carefully applying international law including that on the interpretation of treaties.
the issue of intra-EU investor-state arbitration in two recent decisions. These relate to awards arising from the Energy Charter Treaty (“ECT”), and have important implications for the global system of investor-state dispute settlement (“ISDS”).
DNZ v DOA1
This note briefly examines how the Singapore courts have analysed
This anonymised decision of the Singapore International Commercial Court (“SICC”)2 concerned an investorstate arbitration award, administered by the Permanent Court of Arbitration, obtained by nationals of the United Kingdom against the State in question, which was an EU member state.
1 DNZ v DOA [2026] SGHC(I) 1 (“DNZ”). 2 The coram of the SICC comprised Justice Andre Maniam of the Singapore High Court, International Judge Justice Dominique Hascher, and International Judge Justice Vivian Ramsey.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 The State argued that Article 26 of the ECT is incompatible with EU law, specifically, with the principle of autonomy in the relevant treaties of the European Union, broadly because the Court of Justice of the European Union (“CJEU”) alone has the jurisdiction to rule on matters of EU law and the validity of acts of institutions and bodies of the EU.3
The SICC noted the CJEU’s decision in Slovak Republic v Achmea BV,4 which held that the TFEU precludes the arbitration provision in a bilateral investment treaty (“BIT”) concluded by two member states for the settlement of disputes between an investor from one of those states and the other state which hosts the investment.5 The tribunal had held that this decision only applied to BITs and not multilateral treaties such as the ECT.6 The SICC recounted that the CJEU ruled in Republic of Moldova v Komstroy7 that Article 26(2)(c) of the ECT must be interpreted as not being applicable to disputes between a member state and an investor of another member state concerning investments made by the latter in the former, albeit this was in the context of an investor from a non-EU state and a non-EU host state.8 However, the SICC noted that if the law applicable to interpreting the ECT was not EU law to begin with then Komstroy would
not even be relevant.9 As such, the SICC proceeded to first consider this preliminary question. The SICC observed that the ECT does not have any express choice of law for the arbitration agreement.10 As for whether there is any implied choice of law, and what the law would be, both parties agreed that international law governed any arbitration agreement, but disagreed whether EU law ought to form part of the content of international law.11
The Singapore court emphasized that under the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), read with the Singapore International Arbitration Act 1994 (2020 Rev Ed) (“IAA”), the courts could review the relevance of EU law to determining whether an arbitration agreement exists.12 However, a Singapore court, unlike those of the EU, does not have the responsibility to maintain the functioning of the EU legal order. Accordingly, the Singapore courts ought to interpret the ECT as governed by international law,13 and EU acts giving effect to an act of international law are still susceptible to judicial review.14 In summary, the SICC rejected the notion that it was required to accord primacy to EU law. The SICC also rejected the alternative argument that EU rules were the relevant rules of international law to be
| International Arbitration | applied,15 because rules protecting the integrity of the EU legal system are not in and of themselves relevant rules of international law within the meaning of the rule of interpretation of Art 31(3) (c) of the VCLT, which provides that “any relevant rules of international law applicable in the relations between the parties” may be taken into account, together with context, in the interpretation of a treaty.16 Crucially, the SICC then held that Article 26 of the ECT is
“a multilateral obligation which each Contracting Party owes to all other Contracting Parties, with each Contracting Party agreeing to arbitrate investment disputes involving nationals of the other Contracting Parties”.17 This holding was crucial as it informed the SICC’s decision on subsequent issues. In relation to Article 16 of the ECT,18 the SICC held that the option of arbitrating disputes with a state, as contrasted with the prohibition against arbitration within the EU legal system, may be regarded as an additional and therefore more favourable protection under international law, even if it means that an investor, by opting for arbitration, would be renouncing the advantage of the right to challenge before the courts the legality of any decision relating to an EU.19 The State also argued, on the basis of Articles 31(3)(a) and (b) of the VCLT,20 that certain subsequent declarations by
3 DNZ, [13]. 4 Slovak Republic v Achmea BV, CJEU Case C-284/16, ECLI:EU:C:2018:158, Judgment (6 March 2018). 5 DNZ, [19]. 6 DNZ, [21]. 7 Republic of Moldova v Komstroy, CJEU Case C-741/19 ECLI:EU:C:2021:655, Judgment (2 September 2021) 8 DNZ, [19]. 9 DNZ, [24]. 10 DNZ, [26]. 11 DNZ, [29]. 12 DNZ, [31]. 13 DNZ, [35]. 14 DNZ, [34]. 15 DNZ, [37]. 16 DNZ, [37]. 17 DNZ, [41]. 18 Article 16 provides that: “[w]here two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty, (1) nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and (2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favourable to the Investor or Investment.” 19 DNZ, [47]. 20 Article 31.3 provides:
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EU states in 2019 and 2024 ought to be taken into account.21 However, the SICC pointed out that these declarations had not been accepted by all EU member states and, in fact, Hungary in particular had issued separate declarations.22 The State then argued, based on Article 41 of the VCLT, that there could be modification between only certain parties to a multilateral treaty in circumstances. However, the investors countered that the ECT did not provide for this and there was no evidence that any modification would not affect the interests or rights of third parties or execution of the object and purpose of the ECT. In any case, no notification of such intention to modify had been provided.23 The SICC appeared to accept the investors’ arguments in this regard.
jurisdiction is not perfected at the time of filing of the proceedings, such defect may still be cured if, by the time the court renders its decision on jurisdiction, the defect no longer exists.27
The State’s arguments from Article 30 of the VCLT proceeded on the basis that there was identity of subject matter between the EU treaties and the ECT.24 However, the Court noted that a previous International Center for the Settlement of Investment Disputes (“ICSID”) tribunal had held otherwise,25 and thus the issue of incompatibility between the two treaty regimes did not arise.26 As for the State’s argument that there was a jurisdictional defect because the investors commenced the arbitration on 9 September 2020, before EU law ceased to apply in the UK on 30 December 2020, the tribunal held that this could be cured by application of the Mavrommatis doctrine, based on an earlier decision of the Permanent Court of Arbitration which stands for the proposition that even if consent to
21 22 23 24 25 26 27 28 29 30
On the facts of the case, the SICC also proceeded to dismiss the State’s challenges based on arguments that there was no qualifying investment, that the investors had lost the right to arbitration under the ECT because their parent company had commenced a separate BIT arbitration against the State, and challenges based on breach of natural justice and public policy, thus upholding the registration of the award in Singapore.
NextEra Energy Global Holdings BV v Kingdom of Spain28 In NextEra, Justice Andre Maniam in the General Division of the Singapore High Court 29 (“GDHC”) considered Spain’s challenge to an arbitral award, rendered under the auspices of the ICSID, that certain Dutch investors had successfully
obtained against Spain, and whether registration of the award
(which had already been granted by the Singapore courts) ought to be set aside. Aside from the argument that it was entitled to rely on immunity under Singapore’s State Immunity Act 1979 (“SIA”), Spain argued that: (1) E U law prohibits a valid arbitration agreement for intra-EU disputes, i.e., that under EU law no valid arbitration agreement can arise; and (2) o n the terms of the ECT it had never offered to arbitrate intra-EU disputes in the first place. Spain argued that there was a preexisting overlap between EU law and the ECT which both the Netherlands and Spain ratified in 1997, and which came into force for them on 16 April 1998.30 This differed from Spain’s arguments unsuccessfully run before the ICSID tribunal, which were that
“3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.” DNZ, [51]. DNZ, [52]. DNZ, [54]. DNZ, [55]. DNZ, [59]. DNZ, [60]. DNZ, [61] to [63]. The Mavrommatis doctrine is based on the decision in Mavrommatis Palestine Concessions (Greece v. Great Britain) (Jurisdiction) PCIJ Rep Series A. No 2. NextEra Energy Global Holdings BV v Kingdom of Spain [2026] SGHC 43 (“NextEra”). It should be noted that Justice Andre Maniam was also a member of the coram in DNZ. NextEra, [112].
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 the ECT was pre-existing at the time of the Treaty of Lisbon which came into force on 1 December 2009, and subsequently overlapped with the ECT. Spain had then argued that Article 30(4) (a) of the Vienna Convention on the Law of Treaties31 on the application of successive treaties relating to the same subject matter applied.32 The GDHC rejected the argument premised on overlap, whether preexisting or subsequent, as the ICSID tribunal had already found that the ECT and the EU treaties did not relate to the same subject matter in the sense of Article 30 of the VCLT.33 The GDHC observed that even if the treaties related to the same subject matter, this did not assist Spain because under the VCLT, the earlier treaty would apply only to the extent that its provisions are compatible with those of the later treaty, which on Spain’s analysis before the Court was the ECT.
Therefore, the ECT would tend to prevail over the EU treaties.34 The GDHC went on to hold that there were other reasons to reject Spain’s intra-EU objection. It followed DNZ amongst others in holding that:35 (1) the principle of EU law primacy only operates within the EU system, and not on the broader international plane, and the Singapore court is not obligated to apply this principle; (2) Art 26 of the ECT is a multilateral, and not bilateral, obligation which cannot be disapplied as between certain parties only; (3) there was no express disconnection clause to carve-out intra-EU disputes from the ambit of Art 26; and (4) Art 16 of the ECT, in the event of conflict between the ECT and other international agreements gave priority to the provision that is more favourable to investors, and the possibility of pursuing investor-state arbitration under Art 26 of the ECT, as contrasted with the prohibition 31 32 33 34 35 36 37 38 39 40
against such arbitration under EU law, was an additional and therefore more favourable protection to investors. The GDHC also rejected the argument that EU member states did not, in entering into Article 26 of the ECT, offer to arbitrate intra-EU disputes.36 The GDHC observed that the Court in DNZ had already rejected these arguments.37 Further, Spain had entered into the ECT itself and not through the EU, and had the rights and obligations of a contracting party to the ECT; the GDHC held that there was no basis to say that Spain only offered to arbitrate disputes with investors from third nations but not investors of EU member states.38
| International Arbitration | of the VCLT. The groundwork that has been laid in these decisions places the Singapore courts in good stead to address similar cases, more of which are likely to arise in the future given Singapore’s role as both a financial hub and a popular seat of arbitration.
In the premises, the GDHC rejected Spain’s arguments that it had sovereign immunity such that the award ought not to be enforced against it.39 The GDHC also rejected arguments that it would be in the interests of justice to set aside the registration of the award in Singapore.40
IV. Conclusion These two decisions ought to be studied by anyone interested in either ISDS or EU law, as examples of how the courts of third countries may approach the matter of how the global system of ISDS interacts with intra-EU investorstate disputes. These decisions reflect a conscious choice to strike a balance between respecting the jurisdiction and authority of the EU courts to rule on intra-EU disputes and yet maintaining sufficient protection for investors. Hence, on one hand, the Singapore courts have been careful to record that the EU courts have their rightful sphere of jurisdiction which must be respected. On the other hand, the Singapore courts have not blindly assumed that all intraEU investor-state arbitration ought to be prohibited. In navigating this balance, the Singapore courts have scrutinized the text and background of the relevant treaties and applied international law, including the law on the interpretation of treaties. This can be seen through the courts’ frequent references to and close examination of arguments that parties have run on the basis of the provisions
Vienna Convention on the Law of Treaties (“VCLT”). NextEra, [114]. NextEra, [116]. NextEra, [116]. NextEra, [117]. NextEra, [119]. NextEra, [120]. NextEra, [121]. NextEra, [123]. NextEra, [124] to [134].
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60 SECONDS WITH... SEAN YATES BARRISTER
OUTER TEMPLE CHAMBERS
hat is the most significant trend W in your practice today? he use of artificial intelligence in T legal practice is increasing, not merely as a research aid but as a tool shaping strategy, drafting, and client expectations. The real issue is no longer whether AI should be used, but how it should be used responsibly. We must now assess reliability, confidentiality risks, and the extent to which outputs can be trusted or require independent verification. The competitive advantage lies in understanding where AI adds value and where professional judgement must prevail. What is one important skill that you think everyone should have? ctive listening. Many practitioners A listen only to respond, rather than to understand. Effective advocacy and advisory work depend on absorbing not only what is said, but also what is implied, omitted, or misunderstood. Listening first enables a more precise and persuasive response, whether addressing a client, a witness, a tribunal, or opposing counsel. What songs are included on the soundtrack to your life? I prefer distinctive music to mainstream, particularly from the 1980s, but my foundations are orchestral. Playing timpani in the county youth orchestra meant living with certain works through repeated rehearsal and performance, which left a lasting impression, notably Tchaikovsky’s Fifth, Mahler’s Second, Rimsky-Korsakov’s Scheherazade, and Bizet’s Carmen. That same preference for character and originality carries through to artists such as A-ha, The Waterboys, and The Pixies.
I f you could give one piece of advice to aspiring practitioners in your field, what would it be?
What has been the best piece of advice you have been given in your career?
rioritise experience over immediate P financial reward or promotion. Early roles should expose you to real responsibility, varied work, and strong mentors. Technical ability develops through doing, not by observing. Positions that accelerate learning, even if less lucrative at first, tend to yield greater long-term returns. Also, be open to practising in areas of law you never expected to.
y pupil master told me to rely on M memory rather than on notes. Mastery of the material, rather than dependence on written prompts, enhances confidence, flexibility, and responsiveness. In advocacy, the ability to engage without constant reference to documents is often decisive.
Where has been your favourite holiday destination and why? ancouver stands out for its blend of V natural beauty and accessibility. The proximity of mountains, forests, and the coastline creates a setting that feels unspoilt yet practical. It offers both tranquillity and activity, without the sense of overdevelopment that affects many comparable destinations. What was the last book you read? I tend to have more than one book on the go. Having read English at university, I have a continuing appetite for literature that I need to satisfy. I regularly dip into À la recherche du temps perdu by Marcel Proust, a long-standing ambition, and have recently explored Hungarian writers, including Satantango by László Krasznahorkai. Alongside that, I read more contemporary work such as Flesh by David Szalay, and poetry, particularly Three Poems by Hannah Sullivan.
What personality trait do you most attribute to your success? willingness to understand A opposing perspectives. Seeing the other side clearly is essential in both advocacy and negotiation. It enables one to anticipate arguments, identify weaknesses, and find points of resolution that might otherwise be missed. What does your perfect holiday look like? he ideal holiday combines novelty T with adventure. A destination should offer opportunities to explore, learn, and engage with a different environment, whether through culture, cuisine, or landscape. Passive relaxation has its place, but a memorable holiday for me usually involves active discovery. What has been your most memorable experience during your career so far? uilding and developing an in-house B team and watching its members grow in skill and confidence. Contributing to others’ progress provides a different, often more lasting, form of satisfaction than individual achievement alone.
27
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For Partnership enquiries please contact Ben Jobson on +44 (0) 20 3059 9525 or email ben.jobson@thoughtleaders4.com For partnership enquiries, please contact Helen Berwick on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com
| Class Actions |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
CLASS ACTIONS AT THE INTERSECTION OF BRAND, BEHAVIOUR AND PUBLIC POLICY
Authored by: Gus Sellitto (CEO & Founder) - Byfield
As the scope of collective actions expands, the way they are understood becomes just as important as how they are argued. Cases of this kind rarely remain confined to legal process. They engage customers, regulators, policymakers, investors, often at the same time. NGOs and campaign groups can become involved, media attention can be sustained, and in some instances the issues begin to influence the policy debate itself.
A Moment To Take Stock Proposals announced by the Law Commission last week could significantly extend the scope of opt-out class actions in the UK beyond their current footing in competition law, if a broader regime is ultimately introduced. Collective actions already exist across a range of areas, often on an opt-in basis. The significance of these proposals lies in the potential expansion of opt-out mechanisms - and therefore the scale and reach of claims - across a broader set of issues.
This is a significant moment, and it is worth looking at it through a wider lens including the reputational dynamics that now sit alongside the legal framework. If that scope expands, the nature of the claims - and the way they are experienced - begins to change.
The implications extend beyond legal procedure. They affect how these cases are understood by consumers, by companies and increasingly by policymakers.
Competition claims can feel abstract at an individual level. Where collective actions move into areas such as product liability, environmental harm and other areas of consumer harm, the underlying issues become more immediate and more personal. The impact is easier to grasp, and with that comes a greater likelihood of engagement and scrutiny.
As the scope of collective actions widens, the range of issues capable of being brought into that framework is likely to expand. That, in turn, increases the likelihood that a broader set of consumer-facing concerns enters the collective action space - and, with it, the public domain.
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| Class Actions |
ThoughtLeaders4 Disputes Magazine • ISSUE 21 draws people towards a claim, and what holds them back, is influenced by the issue itself, the way it is framed, and the company’s response.
The Claimant Perspective For claimants, awareness still tends to begin with the existence of a claim. Understanding of who is acting for them, how funding works, how decisions are taken, how long cases run, and how outcomes are ultimately delivered, still needs work. And as these cases become more visible, that gap takes on greater significance. For claimants, the decision to engage is not driven by economics alone. It is shaped by perceived fairness, ease of participation and the way the issue is presented, with more tangible forms of harm tending to draw individuals more readily into the process.
The Defendant Perspective For defendants, the shift is more pronounced. The task is no longer limited to defending a claim. It involves managing litigation and reputational risk simultaneously, across multiple audiences, over what can be a prolonged period. The type of claim remains important. In some competition cases, the impact on the individual consumer may feel relatively abstract, even though they form part of the class. In product liability, environmental and other consumerfacing disputes, the alleged harm is often easier to understand at a personal level, and that can change the degree of engagement.
In more consumer-facing claims, individuals are not simply assessing the merits of the case. They are reassessing their relationship with the brand. Concerns raised in the context of the litigation can begin to influence that relationship, particularly where the issues sit uneasily alongside expectations created by the company itself. The connection between consumer psychology, brand positioning and legal strategy becomes increasingly apparent as these dynamics unfold.
Brand Promises Under Pressure That leads to a further layer. Many companies facing these claims will have spent years investing in brand building and consumer engagement campaigns around trust, responsibility and customer focus. When a class action emerges, those brand messages are read alongside the claim. Where the alleged harm sits uneasily with the company’s commercial positioning, that tension can shape how the issue is perceived, how stakeholders respond, and how pressure develops around the case. In some circumstances, the relationship between what has been promised and what is being alleged may also influence how the claim is framed within the legal arguments themselves. Brand and advertising are therefore not peripheral considerations. They form part of the broader context in which the claim is interpreted.
Thinking About Communications Early This brings the focus back to strategy. There is the communication strategy for the claim itself - awareness, engagement, updates, hearings, funding, settlement and distribution. There is also the communication strategy for the underlying issue - not simply the claim itself, but the conduct and context that sit behind it, and how those are understood more broadly by customers, regulators and the wider market. That includes how the issue is framed in the context of the company’s past behaviour, its wider brand positioning and the expectations it has created, as well as how it is being interpreted by regulators, representative groups and others speaking to the interests of consumers. In that environment, the task is not simply to explain the claim. It is to recognise that how the issue is defined will shape how it develops whether that involves seeking to contain it as an isolated matter, or engaging more directly with the broader context in which it is being interpreted.
Conclusion In summary, as the scope of collective actions widens, the way these cases are understood becomes just as important as how they are argued. Legal process, consumer behaviour, brand positioning, stakeholder response and public policy considerations interact, and increasingly need to be reflected in the strategic considerations of bringing and defending claims as the regime continues to develop. Because in large-scale, high-profile collective actions, how a case is understood can shape how it develops. And, ultimately, how it resolves.
The psychological dimension becomes more pronounced where the alleged harm feels closer to the individual. What
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| Class Actions |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
FROM APPLE TO AI:
REWRITING THE PLAYBOOK FOR CLASS ACTIONS Authored by: Amy Tabraham (Head of UK And EU) & Deepthi Bavirisetty (Content, Narrative & Research) - Lucio AI In October 2025, in a class action suit led by Dr Rachael Kent, the Competition Appeal Tribunal ruled that Apple Inc. has abused its dominant position by “imposing exclusionary practices” and charging “excessive and unfair” fees on purchases of apps, app subscriptions and in-app purchases made by UK iPhone and iPad users. This resulted in Apple being forced to pay up to £1.5bn in damages to nearly 36 million
to reach a successful conclusion at trial. For years, collective proceedings were discussed in largely procedural terms: could they be certified, could they survive early challenges, and could they provide a meaningful route for mass claims? The Apple ruling shifts that conversation decisively. This marks a shift from procedural theory to proven mechanism. With platform claims accelerating, the question now is how legal AI tools can help lawyers achieve both legal and operational excellence in class action suits.
UK consumers and businesses. This case is not only significant for the quantum of compensation but also because it is the first case brought under the UK’s collective action regime
Platform Claims Are Accelerating The UK is seeing a rise in class action claims against platforms. Sony is currently preparing to defend a £2 billion collective claim in London over alleged anti-competitive practices in its PlayStation ecosystem. Whether or not that claim succeeds on its facts, its significance is clear: platform-based claims are gaining traction in the UK. App stores, gaming systems, digital marketplaces, and subscription environments all create the conditions for wide-scale, repeat transactions across large user bases. Where anti-competitive conduct is alleged in those systems, collective actions are becoming an increasingly natural enforcement tool. The Apple decision, together with the growing number of claims being prepared, is likely to influence how both claimants and defendants approach strategy and case planning going forward.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
Execution at Scale: The Decisive Challenge The real pressure point in these cases is changing. In earlier years, success often turned on procedural gateways: certification, class definition, common issues, and funding. Those remain crucial. But in a maturing regime, another dimension becomes decisive: operational execution. Running a large-scale class action comes with a unique set of operational challenges. Cases of this kind require legal teams to manage millions of potential claimants, fragmented purchasing data, and expert economic evidence. They also require the ability to translate technical platform behaviour into a coherent litigation narrative that tribunals can test and understand. In addition to this, the winners in this environment will be the teams that can build disciplined, repeatable processes around enormous volumes of information. That has important implications for claimant firms, defendants, barristers, and chambers alike. Collective actions are becoming operational businesses as well. They require coordinated workflows between several parties including litigators, economists, and data specialists. One part of the challenge is preparing submissions for trial. Another part is structuring the case so that evidence can be gathered, analysed, and deployed efficiently over several years, often with multiple expert workstreams running in parallel.
Large-scale disputes generate sprawling records: pleadings, expert reports, transaction-level data, correspondence, and regulatory materials. AI-enabled tools can help organise, classify, and surface patterns across that material in ways that reduce friction and improve consistency. Used properly, they can support issue mapping, document analysis, and chronology building, across very large teams. It is important to emphasise that this does not mean AI replaces legal judgment, nor does it eliminate the need for careful advocacy or rigorous expert evidence. But it does help answer a more pressing question for modern class actions: how can a case involving millions of people and years of digital conduct be run without becoming administratively unmanageable? This matters because collective actions are expensive, lengthy, and high-risk. Their economics depend not only on legal merit but also on whether the case can be prosecuted efficiently enough to justify the investment of time, capital, and specialist expertise. Operational drag can kill strong cases.
| Class Actions | changes the calculus of compensation claims. For claimants, it creates a roadmap. For courts and tribunals, it raises the stakes of case management in disputes that are more expansive and complex compared to traditional competition claims. And for the legal market, it reinforces a simple point: class actions are no longer niche. Apple has said it strongly disagrees with the ruling and intends to appeal, so the litigation story is not over. But the case has already done something significant. It has demonstrated that the future of class actions will be defined by execution. AI and other structured legal technologies point to how that execution will be sustained. As more claims emerge against digital platforms, the decisive advantage lies in the ability to manage scale: to handle millions of class members, make sense of fragmented datasets, coordinate expert evidence, and keep complex litigation moving with discipline. The playbook for class actions is being rewritten. The next chapter will belong to those who can litigate at industrial scale without losing analytical precision.
If class actions are entering a scale era, then the firms best positioned to lead will be those that combine litigation strategy with process design and technological capability.
The New Playbook
Legal AI: A Panacea for Precision This is where technology, including legal AI, begins to move from peripheral support to core infrastructure. In collective proceedings, people are assuming AI only assists with speed. More importantly, AI assists in bringing greater precision, control, and clarity.
The Apple decision carries a broader institutional message. It signals that the UK’s collective action regime is capable of producing substantive outcomes against the largest technology companies in the world. A successful judgment of this magnitude gives the regime credibility. It shows that collective proceedings will not simply end in settlement discussions; they can reach trial, survive scrutiny, and produce meaningful relief. What does this mean for the legal ecosystem? For defendants, that
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| Securities Litigation |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
BRAZIL AFTER PETROBRAS:
ARE SECURITIES ARBITRATIONS STILL INVESTABLE? Authored by: Paloma Castro Hernández (Senior Legal Counsel) - Deminor Litigation Funding
Brazil’s post-Petrobras securities landscape is evolving. In particular, the Americanas accounting scandal, where minority shareholders are pursuing approximately BRL 32 billion in damages through arbitration, has emerged as a landmark test case for whether arbitration can serve as a viable mechanism for large-scale investor recovery. While the scale of wrongdoing and strength of the factual record present significant recovery potential, litigation funders and the institutional investors they represent must weigh structural risks including enforcement uncertainties, respondent solvency, and the nascent nature of collective securities arbitration in Brazil. The Petróleo Brasileiro S.A. (“Petrobras”) corruption scandal remains one of the defining cases in international securities litigation. A massive bribery scheme involving officers of Petrobras, illegal inflation of assets, and other corporate irregularities led to a stock price decline of over 40% and prompted investor claims across multiple jurisdictions. In the United States, a class action resulted in a landmark class settlement of USD 2.95 billion for investors who held shares on US exchanges. In parallel, the Dutch claim foundation ‘Stichting Petrobras Compensation Foundation’ initiated civil proceedings in the Netherlands against Petrobras and others for securities traded on non-US exchanges
before 28 July 2015. In July 2023, the Dutch district court rendered an interim judgment holding, in principle, that Petrobras’ conduct towards its investors had been unlawful, as the company had not met its duty of care to prevent the fraud and had provided investors with incorrect information. Critically, however, in October 2024, the Dutch district court dismissed the shareholder claims asserted by the Stichting Petrobras Compensation Foundation against Petrobras, while upholding claims of bondholders whose claims are governed by Luxembourg law. That decision has likely been appealed.
seeking recovery in Brazil-linked corporate scandals: although the underlying wrongdoing may be clear, the legal pathways available to international investors are complex, multi-jurisdictional, and uncertain. The question for litigation funders and institutional investors alike is whether the post-Petrobras landscape in Brazil offers viable routes for future securities claims, and specifically whether arbitration is emerging as a credible alternative to traditional court proceedings.
The Petrobras litigation thus illustrates a broader challenge for investors
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| Securities Litigation |
The Americanas scandal: a test case for Brazilian securities arbitration The most significant test of this proposition is the Americanas S.A. case. In January 2023, the newly appointed CEO of Americanas resigned after only days in office, citing the discovery of “accounting inconsistencies” in the company’s financials totalling BRL 20 billion (approximately USD 3.9 billion). Subsequent investigations revealed that the scheme involved improper entries in suppliers’ accounts, fictitious advertising budgets, and financial operations incorrectly reflected on the company’s balance sheet. Americanas’ stock has fallen around 85% since the scandal was exposed. Brazil’s securities regulator, the CVM, accused eight former executives of insider trading involving the company’s securities ahead of the disclosure of the scandal, stating that it had gathered “robust, compelling, and convergent elements” to support the accusations. Former CEO Miguel Gutierrez and former director Anna Christina Ramos Saicali were placed on Interpol’s most-wanted list. Minority shareholders, who saw their investments lose 99.52% in value, are now pursuing approximately BRL 32 billion (USD 6.4 billion) in damages through arbitration. This is a remarkable development. The use of arbitration as the primary mechanism for securities claims of this scale is still relatively unusual in the global landscape, and the outcome of the Americanas arbitration will likely shape investor expectations and funder appetite for Brazilian securities disputes for years to come.
The investability question From a litigation funding perspective, several factors bear on whether Brazilian securities arbitrations are “investable”, that is, whether they present an acceptable risk-return profile for third-party funders and the institutional investors they serve. On the positive side, the Brazilian legislative response to the Americanas scandal has been notable. Federal lawmakers have proposed measures to boost accountability in the financial markets, including reforms to the laws governing the responsibility of company shareholders and managers, improvements to the access of independent audit firms to financial information, reform of the law regarding “patrimonial infidelity,” and enhanced protections for whistleblowers. These reforms, if enacted, would strengthen the overall enforcement environment and signal a maturing of Brazil’s capital markets governance framework. Additionally, the facts underlying both the Petrobras and Americanas cases are exceptionally strong from a merits perspective. In Petrobras, a Dutch court has already held that the company’s conduct was unlawful. In Americanas, the company itself has admitted to the involvement of former executives in including fraudulent statements in its financial accounts, and the CVM enforcement action adds further support to the factual basis for investor claims.
recovery can be protracted and uncertain. The Americanas arbitration, while promising in scale, must still navigate the complexities of Brazilian arbitral procedure, enforcement, and the
financial position of the respondents. Americanas itself underwent bankruptcy protection in January 2023, declaring debts of BRL 41 billion (USD 8 billion). Although the company has since been implementing a recovery plan and projecting positive financial results, including an EBITDA target exceeding BRL 2.2 billion by 2025, the ability of minority shareholders to recover the full extent of their losses remains subject to considerable uncertainty.
Conclusion The post-Petrobras era in Brazil presents both promise and caution for litigation funders and institutional investors. The scale of wrongdoing, the strength of the factual record, and the emergence of arbitration as a claims vehicle in the Americanas case all point to a market with significant recovery potential. At the same time, structural risks, including enforcement uncertainties, respondent solvency, and the nascent nature of collective securities arbitration in Brazil, require careful diligence and a realistic assessment of timelines and outcomes.
On the other hand, significant challenges remain. The Petrobras Dutch proceedings demonstrate that even where liability is established in principle,
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| Securities Litigation |
ThoughtLeaders4 Disputes Magazine • ISSUE 21
DUTCH OPT-OUT SECURITIES ACTIONS UNDER PRESSURE: WHAT AIRBUS AND STELLANTIS TELL US ABOUT THE FUTURE OF DUTCH OPT-OUT SECURITIES LITIGATION
Authored by: Joeri Klein (Head of Investment Recovery & General Counsel Netherlands) - Deminor Litigation Funding
Recent Dutch case law has sent a clear signal to the market. Collective securities actions under the WAMCA regime face a high procedural threshold before courts will consider the merits. The Airbus litigation in first instance in August 2023 exposed this reality. The Stellantis decision of July 2025 confirmed that this was not an isolated outcome but part of a broader judicial approach. Following the Airbus appeal judgment of December 2025, that signal has only become clearer. Taken together, these cases call for a more sober assessment of the viability of opt-out securities actions in the Netherlands. In Airbus, the Hague District Court in August 2023 found the WAMCA foundations inadmissible due to shortcomings in representativeness, governance and independence. In Stellantis, in July 2025, the court did not reach the merits at all, dismissing the case entirely at the admissibility stage because the foundation failed to meet the required standards.
A consistent judicial message Across the Airbus and Stellantis opt-out proceedings under the WAMCA, Dutch courts have taken a strict gatekeeping role at the admissibility stage.
representative claims proceed. At the same time, this strict gatekeeping raises the question whether the admissibility threshold is now set so high that it may also exclude otherwise meritorious claims.
This approach was subsequently confirmed on appeal in Airbus in December 2025. Dutch courts are clearly enforcing the WAMCA filters as intended, ensuring that only well-prepared and genuinely
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
The Three Pressure Points: Where The Cases Failed Looking across both cases, three recurring weaknesses stand out.
1. Representativeness remains a hard threshold Courts expect claim foundations to demonstrate that they represent a meaningful portion of the affected investor base. In Airbus, one foundation failed because its support base was negligible. In Stellantis, the court was not convinced by vague and unverified claims about investor participation. The lesson is clear. Numbers matter, but credible evidence matters more. A foundation must show who it represents, what losses are involved, and how this compares to the broader investor base. Anything less will not pass. However, it must be said that in practice, building such a representative base at an early stage can be both challenging and costly, particularly in cross-border cases where investor outreach takes time.
2. Governance and independence are under scrutiny Dutch courts are highly alert to the risk that claim foundations are effectively controlled by funders or law firms. The Airbus judgment made this explicit. A structure perceived as an “empty shell” driven by commercial actors will not be accepted. Stellantis followed the same line, pointing to limited transparency, weak internal organisation and significant funder influence.
At the same time, a careful balance will need to be maintained between safeguarding independence and ensuring robust governance on the one hand, and allowing for practical and workable funding structures on the other.
3. Preparation and credibility cannot be fixed later A notable aspect of the Stellantis decision was the court’s scepticism toward last-minute adjustments. Measures introduced shortly before the hearing were viewed as reactive rather than structural. A similar message emerges from Airbus. Courts expect claim foundations to meet the required standards from the outset. This leaves little room for a “file first, fix later” approach. While this is understandable, it may reduce flexibility in complex cross-border cases, particularly where parallel or competing actions are being pursued in other jurisdictions. The broader implication: a structural challenge for opt-out models
| Securities Litigation |
What Would a Successful WAMCA Securities Case Require? If opt-out securities actions are to succeed under WAMCA, the bar is clearly high. A successful case will likely require: • A solid and verifiable investor base representing a meaningful share of total losses • A genuinely independent governance structure with real decision-making autonomy • Full transparency on funding arrangements and internal organisation • Demonstrable expertise and operational capacity within the foundation itself • A case prepared in depth before filing, rather than developed during the proceedings Anything less risks early dismissal.
Final Reflection
These decisions raise a more fundamental question. Is the current WAMCA framework well-suited for complex securities litigation on an optout basis?
Airbus at first instance served as the warning shot. Stellantis confirmed the direction with the Airbus appeal in December 2025 firmly consolidating that approach.
In theory, WAMCA offers powerful tools. In practice, the admissibility stage has become a significant hurdle. This raises the broader question of whether procedural admissibility is starting to outweigh substantive access to justice.
Dutch courts are not closing the door to collective securities actions, but they are making clear that only wellstructured cases with sufficient support will be allowed through. While this approach is justified in preventing abuse and unsupported claims, it remains important to strike the right balance so that access to justice is not unduly restricted.
For institutional investors, this creates real uncertainty. Even a potentially strong case can fail before reaching the merits if the procedural setup is not sufficiently robust. As a result, opt-in structures may remain more attractive in many situations. They offer clearer control over participation, stronger alignment of interests and greater predictability at the admissibility stage.
For investors, the implication is practical rather than theoretical. The choice of litigation structure is no longer just about legal theory or jurisdiction. It is about execution, credibility and risk management from day one.
The standard, therefore, goes beyond formal compliance. Courts assess whether a foundation genuinely operates in the interests of the investors it represents.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
| Financial Institutions |
THE IMPACT OF SANCTIONS LEGISLATION ON PAYMENT OBLIGATIONS
Authored by: Syedur Rahman (Partner) - Rahman Ravelli Syed Rahman and Ulrich Schmidt of Rahman Ravelli assess the significance of UniCredit Bank GmbH, London Branch (Respondent) v Constitution Aircraft Leasing (Ireland) 3 Ltd and another (Appellants), and UniCredit Bank GmbH, London Branch (Respondent) v Celestial Aviation Services Ltd (Appellant) [2026] USKC 10. Following a hearing on 8 and 9 of December 2025, the UK Supreme Court has handed down a long-awaited judgment in the so-called “Celestial” case.[1]1 The case concerned the impact of sanctions legislation on UniCredit Bank GmbH’s (UniCredit’s) payment obligations to the appellants under letters of credit. The Supreme Court unanimously dismissed the appellants’ appeals and allowed UniCredit’s crossappeal - affirming that the scope of sanctions prohibitions and legislation is very broad, and that unintended consequences of the regulations should be addressed via the licensing regime in place. 1 2
Case Background UniCredit, acting through its London branch, had confirmed (i.e. guaranteed, promised payment if the issuing bank failed to pay) 12 letters of credit issued by Sberbank of Russia, in connection with leases of civilian aircraft to two Russian airlines. The beneficiaries of the airlines were multiple Irishincorporated entities, including Celestial Aviation Services Ltd, one of the appellants. Following the Russian invasion of Ukraine, the Russia (Sanctions) (EU Exit) Regulations 2019 (the “Russia Regulations”) were amended to make it unlawful for a person directly or indirectly to provide financial services or funds in pursuance of or in connection with an arrangement whose object or effect is making available restricted goods or restricted technology – including civilian aircraft – to a person connected with Russia.2 Shortly after the Regulations were amended, the Irish lessors (i.e. the
UniCredit Bank GmbH, London Branch (Respondent) v Celestial Aviation Services Ltd (Appellant) - UK Supreme Court The Russia (Sanctions) (EU Exit) Regulations 2019
claimants) terminated the aircraft leases and made demands on UniCredit for payment under the letters of credit. UniCredit refused, stating that it was prohibited from paying under reg. 28(3) (c) of the Russia Regulations.
Grounds of Appeal Whilst the High Court had initially ruled against UniCredit, the Court of Appeal’s judgment, handed down almost two years ago on 11 June 2024, disagreed with this stance, stating that UniCredit’s belief that payment under the letters of credit would breach sanctions regulations was reasonable on the basis of s.44 of SAMLA; which provides that a person is not liable to any civil proceedings in respect of an
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| Financial Institutions |
ThoughtLeaders4 Disputes Magazine • ISSUE 21 act (or omission) done in the reasonable belief that it is in compliance with the applicable sanctions legislation – given the circumstances, a practical and realistic approach. The claimants appealed against these decisions. Crucially, the Court of Appeal also held that UniCredit’s belief, whilst reasonable, could not protect it from liability for recovery of a debt that is lawfully due but unpaid because of sanctions imposed on the credit, after the debtor’s default. This meant that UniCredit would be liable to pay interest and cost relating to the unpaid amount under the letters of credit. It was this decision that was subject to the crossappeal by UniCredit.
Findings of the Supreme Court
of Appeal’s decision on regulation 28(3) (c) but reversing the decision reached regarding s.44 SAMLA. The Supreme Court rejected the appellants’ submission that regulation 28(3)(c) required a causal connection between the provision of financial services or funds and the prohibited supply of aircrafts – a plain reading of the regulation simply did not reflect this stance. The Supreme Court stated that a connection was required between the financial services or funds and an arrangement.3 The Supreme Court also reiterated, as it had stated in its judgment in the case of Shvidler, that the “net” of the Russia Regulations was purposefully cast very wide to put pressure on Russia, and that the unintended consequences could be adequately addressed through the “safety valve” of the licensing regime in place.4 The Supreme Court also accepted UniCredit’s cross-appeal on s.44. It held (although notably only in obiter) that whilst s.44 did not prohibit civil proceedings, it provided a defence to them. Again, it stated that the sanctions regime had been cast wide – a necessity given its purpose. As such, someone with the reasonable belief of complying with this decision should have protection under the statutes.
By the time the claim reached the Supreme Court, the circumstances had (as can happen) largely changed. UniCredit had obtained a special licence from the Office of Financial Sanctions Implementation (“OFSI”). Following this, UniCredit made payment of the principal amount under the letters of credit. This meant that the dispute was now limited to the (quite substantial) interest on the principal amount and costs. The Supreme Court therefore decided on two crucial issues: i. W hether the bank’s obligation to make payments under the letters of credit was prohibited under regulation 28(3) (c) until a licence was granted; and ii. Does the protection under section 44(2) of SAMLA include protection against an action to recover a debt, an award of interest on the amount of the debt, and an award of associated costs? The Supreme Court, unanimously accepted UniCredit’s position on both issues – therefore upholding the Court 3 4
Implications of this Decision
adequacy of the licensing regime has been contested, as seen in the case of Khan, it is now clear that the courts have placed utmost importance on it. Companies, whether financial institutions or otherwise, must ensure that they undertake detailed and up-to-date due diligence to limit their sanctions exposure. Preventing sanctions issues from arising will always be the best course of action. This decision raises a number of practical points for lawyers, whether they are in-house or at law firms. Those advising financial institutions and companies issuing and/or relying on letters of credit (once seen as independent payment obligations – to be paid “no matter what”) must ensure that their clients are aware of and protected against any downstream sanctions exposure that could arise from their arrangements. If they are exposed, there could be extreme negative consequences financially. This judgment is a timely reminder that sanctions amendments can apply retroactively. Whether a lease is signed in 2005 or 2025
(i.e. before or after the Regulations) does not affect the Regulations’ applicability. It should also be noted that the Supreme Court’s emphasis on the licensing regime may have practical commercial consequences for companies. Lawyers should consider, and make their clients aware, that heavier reliance on the licensing system could lead to delays in obtaining licences via a system that has already been criticised for being slow. Companies will have to consider whether licenses could be required in their transactions well ahead of time, which may have an impact on their commercial planning.
The Supreme Court has endorsed its own approach to the sanctions regime - Parliament has used wide language within the statute and the Supreme Court will not restrict this. Instead, the licensing regime will have to be relied on by those affected by sanctions – whether those directly affected or those further along the chain, like the claimants in this case. Whilst the
UniCredit Bank GmbH, London Branch (Respondent) v Celestial Aviation Services Ltd (Appellant) - UK Supreme Court, Para. 75 Ibid, para.76
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
THE WEAPONISATION OF DUE DILIGENCE CLAUSES: HOW PARTIES ARE TRANSFORMING A COMPLIANCE TOOL INTO AN EMERGENCY EXIT
Authored by: Daniel Martin (Partner) - HFW
Introduction
on both the drafting and enforcement of commercial agreements.
Due diligence clauses are now routinely included in commercial contracts, and may be glossed over by all but the most vigilant compliance lawyer. On their face, they are a straightforward response to an ever-expanding web of regulatory obligations from sanctions regimes to environmental legislation which creates onerous obligations on one party in circumstances where their counterparty has at least some control over the relevant behaviour. These provisions were designed to protect contracting parties from exposure to legal and reputational harm arising from the conduct of their counterparties. But wording which starts life as a protective shield can be repurposed into something much sharper when markets move and a contract becomes commercially unattractive. A party may find that the due diligence provisions it agreed to in good faith are deployed by a counterparty looking for the exit. Understanding how this happens and how to guard against it is increasingly important for lawyers advising clients
Why Parties Include Due Diligence Clauses Risks associated with supply chains have grown significantly as regulators have increased the compliance burden in the context of international trade. With commercial parties increasingly finding that they face potential liability for circumstances which may be beyond their control, they turn to due diligence clauses, as a way to mitigate some of the supply chain risks. Three prominent examples illustrate the point.
Sanctions risk. The expansion of sanctions regimes, particularly those imposed by the US, EU and UK, and the increasing use of sanctions designations against commercial parties, including banks, insurers and trading parties, mean that a party can face severe penalties if it transacts, even indirectly, with a sanctioned entity. That can lead to a buyer of goods finding itself in breach of sanctions because the supplier is selling goods acquired from a sanctioned party, and a seller is exposed if the ultimate end user in the commercial chain is sanctioned. Equally, because entities may be treated as sanctioned if they are owned or controlled by a sanctioned person, a commercial party faces risks because of the corporate structure behind their counterparty, even though their counterparty does not itself appear on a sanctions list. Forced labour. Legislative developments, including the UK Modern Slavery Act 2015, the US Uyghur Forced Labor Prevention Act 2021 and the EU Forced Labour Regulation, have placed the spotlight on supply chain practices. A business
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 that sources goods manufactured using forced labour faces the prospect of import bans, reputational damage and increasingly, civil or criminal liability. While it must of course conduct its own due diligence on the supply chain, welldrafted clauses can help to manage some of the risks. Environmental and materials compliance. The sourcing of materials can breach international and domestic environmental legislation in ways that are not immediately apparent. CITES (the Convention on International Trade in Endangered Species) restricts trade in products derived from protected species; the EU Deforestation Regulation prohibits the placing of certain commodities on the EU market where they are associated with deforestation. Again, due diligence clauses serve as a mechanism for parties to guard against inadvertent non-compliance.
How Due Diligence Clauses Work While their precise terms will of course vary, a well-crafted due diligence clause needs to include three critical aspects, as set out below. The party which expects that it may need to rely on the clause (which we will call the Relying Party for brevity) should check that all three elements are included and are sufficient, in the event that they have concerns about the other party (which we will call the Warranting Party).
Information and documentation obligations. Because of the importance of being able to demonstrate to regulators and stakeholders that there has been full compliance with the relevant regulations, the Relying Party should insist that the clause imposes an obligation on the Warranting Party to provide supporting information and documentation demonstrating compliance on request. The Relying Party should consider whether to refer specifically to particular documents which it knows will be important (for example, supplier lists, audit reports, certifications and import records). This may extend to providing information about other parties in the chain, outlining compliance processes from source to destination and disclosing relevant policies and procedures. Rights to refuse performance. A breach of the warranties or a failure to provide documents on request, will of course be a breach of the due diligence clause and will entitle the Relying Party to damages (and potentially specific performance). However, the Relying Party should ensure that the clause goes further and gives the Relying Party the right to suspend or refuse to proceed with performance - including refusing to accept delivery of goods or declining to make payment - where they have compliance concerns. There will likely be negotiations about whether that right only arises in the event of a proven breach of regulations, or whether a suspicion or belief of a risk of a breach is enough. The Relying Party will also want the right to terminate the Agreement in certain circumstances.
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The Weaponisation Problem While the original intention is that the clause should be protective, a change in market conditions might prompt the Relying Party to look more closely at the clause to see whether it can be put to a more commercial use. For example, if the Relying Party is the buyer of goods, and the market price falls below the contract price, the Relying Party has a strong incentive to find a way to obtain the goods at a lower price. Likewise, if a seller has agreed to supply at a price that has since become unprofitable, it may look for a way to secure a better price. Due diligence clauses can present an attractive route, in certain circumstances. The grounds on which performance can be suspended or a right to terminate can be asserted are often broadly drafted and it may be difficult for the Warranty Party to establish quickly that there is no basis for the Relying Party’s position. For example, if the Relying Party alleges that it has reasonable grounds to believe that there is a risk of sanctions non-compliance high up in the supply chain, the Warranting Party may be several steps removed from the facts. It may struggle to refute the allegation without spending significant time and effort and putting pressure on its own counterparties. In those circumstances, it may feel that it has no other option but to agree to an adjustment of the price, due to pressure
Warranties. The Relying Party needs the Warranting Party to warrant (at the date of the Agreement and on a continuing basis) that it is, and will remain, in compliance with the relevant regulatory requirements. The Relying Party should consider expanding this beyond general compliance with laws wording to refer specifically to regulations relating to sanctions, supply chain practices, materials sourcing, etc. The Relying Party should also consider which jurisdictions are applicable and/ or relevant to them and seek to require the Warranting Party to comply with the regulations of all of those jurisdictions.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 from elsewhere in the supply chain. The Relying Party may similarly use information obligations to put pressure on its counterparty, insisting on extensive disclosure, raising objections to the adequacy of documentation provided and asserting that the Warranting Party has failed to satisfy its disclosure requirements, even where the documentation is substantively adequate. The Relying Party does not necessarily need to be confident that the arguments would succeed if litigated: the mere threat of litigation may be sufficiently disruptive to achieve the desired commercial outcome.
Guarding Against the Risk The Warranting Party, faced with an onerous clause, should consider the following safeguards at the drafting stage. Define thresholds precisely. The Warranty Party should argue against vague formulations such as
“any risk of a breach of regulations” or “concerns regarding compliance”, or other wording which gives the Relying Party wide discretion as to whether there has actually been a compliance issue. Thresholds for triggering suspension or termination rights should be tied to objective, verifiable criteria rather than subjective assessments. Require good faith and proper process. Any right to suspend performance or terminate should be made conditional on the exercising party having acted in good faith, having raised its concerns promptly, and having followed a prescribed process (including notifying the counterparty and particularising and evidencing the specific compliance issue).
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the clause should provide a reasonable period for the Warranting Party to cure the breach (for example, by finding alternative sourcing for goods), with termination available only where the breach is not remedied within that period. Limit information obligations to what is necessary. Overly broad disclosure obligations create opportunities for manufactured non-compliance. Requirements should be proportionate, clearly defined, and linked to specific regulatory regimes rather than openended. Include anti-abuse provisions. Consideration should be given to including an express provision preventing a party from relying on due diligence provisions where its primary motivation for doing so is commercial rather than regulatory - though in practice such clauses can be difficult to enforce, they send a clear signal of intent. Agree independent expert determination. Where disputes arise as to whether due diligence requirements have been met, an expert determination mechanism - rather than (or in addition to) arbitration or litigation – may provide a faster and more cost-effective resolution, reducing the practical utility of weaponisation as a strategy.
Conclusion Due diligence clauses serve a legitimate and important function in modern commercial contracts as part of parties’ toolboxes to manage supply chain risk. The regulatory environment demands that businesses take responsibility for the conduct of those they transact with, and contractual provisions that support that goal should be welcomed. However, commercial parties (and their lawyers) need to be alive to the potential for these provisions to be misused. Careful drafting, clear thresholds, and robust procedural safeguards are the best defence against a compliance mechanism being turned into a commercial weapon.
Build in cure mechanisms. Rather than agreeing to an immediate right to terminate following an alleged breach,
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Byfield Consultancy launches in the Netherlands, marking first continental European office Byfield Consultancy has launched Byfield Netherlands, led by legal and litigation communications specialist Elizabeth James Tingen. Based in Amsterdam, the move reflects rising demand driven by collective actions and cross-border disputes, with the new team advising clients on the communications aspects of: Litigation Regulatory investigations International arbitration Crisis management Class action campaigns. To discuss how we can help, get in touch. +31 (0)654 202 905 elizabeth@byfieldconsultancy.com
byfieldconsultancy.com T: +44 (0)20 7092 3999 info@byfieldconsultancy.com
ThoughtLeaders4 Disputes Magazine • ISSUE 21
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INHERITANCE DISPUTES: A GROWING REPUTATIONAL CHALLENGE Authored by: Millie Jordan (Senior Account Executive) - Byfield Inheritance disputes are as old as inheritance itself. But in the modern age, their scale and their stakes are changing. Probate claims in England and Wales have reached record levels, according to litigation intelligence provider Solomonic’s Year in Review 2025. More than 1,200 claims were filed in the High Court last year alone, with quarterly volumes at their highest level in a decade. Behind these figures sits a broader shift. Rising property values and the intergenerational transfer of significant wealth have increased the financial stakes of inheritance. At the same time, family dynamics have become more complex – with second marriages, blended families, and informal partnerships all creating greater scope for competing expectations. Alongside this, there is a growing willingness to challenge wills, as access to legal avenues has become more widely understood and socially accepted. Taken together, these factors are driving not only more disputes, but more entrenched and hard-fought ones – disputes that are increasingly likely to move beyond the private sphere. For
those involved, inheritance disputes are rarely just legal matters. They are deeply personal, emotionally charged, and increasingly reputationally sensitive.
accusations, rather than legal arguments, with implications that extend far beyond the proceedings.
More than a Legal Dispute
These narratives often centre on questions of fairness, entitlement, and personal conduct. Different parties may seek to position themselves – implicitly or explicitly – as acting reasonably, while casting others in a less favourable light.
Inheritance disputes unfold around loss, often when families are at their most vulnerable. Grief, longstanding tensions, and unresolved relationships can quickly resurface, shaping not only the dispute itself but how it is experienced by those involved. The issues in contention are rarely neutral. Allegations of undue influence, lack of capacity, or the manipulation of a vulnerable individual call into question trust, character, and intent. They can take the form of personal
Compounding this is the absence of the one person who might have provided clarity. With the testator no longer able to explain their decisions, parties are left to reconstruct the reasoning from partial evidence, differing recollections, and competing interpretations of the past. What emerges is not simply a disagreement over assets, but a contest over narrative, which rarely remains contained within the legal process.
When Private Disputes Become Public Individuals often approach inheritance disputes on the assumption that they will remain private. In reality, the threshold for publicity can be surprisingly low. Court proceedings are a matter of public
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ThoughtLeaders4 Disputes Magazine • ISSUE 21 record: judgments are published and, where there is sufficient interest, reported on. Where disputes involve significant wealth, recognisable family names, or compelling personal dynamics, they can present a particularly attractive proposition for the media. Tabloid outlets, in particular, are drawn to stories that combine money, family conflict, and allegations of unfairness or exclusion. Once picked up, such coverage can quickly move beyond factual reporting into more interpretive or sensational framing – amplifying reputational risk for all involved, regardless of the underlying merits of the case. Even where proceedings are subject to confidentiality or privacy protections, or do not reach trial, the risk of information entering the public domain cannot be entirely eliminated. In some cases, a disgruntled party may actively seek publicity, through the media, social media, or selective disclosures – as a means of shaping the narrative or exerting pressure on others involved. Social media has significantly lowered the threshold for exposure and made confidentiality harder to control in practice. Commentary, screenshots, or fragments of information can quickly circulate beyond their original audience, creating momentum around a particular version of events before the legal process has concluded. Once established, these narratives can be difficult to correct and often reduce complex legal arguments to more accessible, emotive storylines: the disinherited child, the manipulative spouse, the opportunistic relative.
Points of Heightened Exposure While reputational risk develops throughout an inheritance dispute, it often peaks at specific moments in the lifecycle of proceedings. The first point of heightened exposure typically arises when proceedings are issued. Court filings are now being routinely monitored by journalists – through platforms such as CE-File and other case tracking services – and can attract attention even at an early stage. At this point, however, information is often limited. This creates a vacuum in which initial reporting may be based on incomplete details, increasing the risk of speculation and unbalanced narratives taking hold. If a matter proceeds, the next point of escalation is during any public hearing. Evidence is tested in open court,
arguments are set out in full, and the dispute becomes more visible. Court reporters and other journalists are more likely to engage at this stage, translating complex legal arguments into more accessible accounts for their readership. The final point of peak exposure is the handing down of judgment. Here, the court’s reasoning is set out in detail, providing the most complete and authoritative account of the dispute. While this can reduce speculation, it also places the facts and findings firmly in the public domain, often in a way that is readily reportable. By this stage, however, the reputational damage is often already entrenched, driven by earlier narratives. A judgment may set the record straight, but it rarely rewrites the story. Separately, media interest can also intensify where a dispute settles, particularly if that resolution becomes known externally. Settlements – even where the terms remain confidential – can be misinterpreted as an admission of wrongdoing, creating further reputational risk despite the absence of a judicial finding.
Integrating Legal and Communications Strategy
| Shareholder Dis putes | early stage. This includes agreeing core messaging, anticipating how the dispute may be framed externally, and proactively preparing for the points at which scrutiny is likely to increase. Understanding which aspects of a case are most likely to attract attention – and how they might be perceived – allows clients and advisers to prepare accordingly, rather than reacting under pressure. Restraint is often critical. In inheritance disputes, allegations are frequently personal and emotive, and attempts to respond reactively can risk reinforcing or amplifying those narratives. A measured, legally aligned approach, particularly where proceedings are ongoing, is typically more effective in protecting reputation over time. Consideration should also be given to internal audiences. Inheritance disputes rarely remain confined to those directly involved; they can have implications for wider family members, future relationships, business interests, and professional networks. Managing how the dispute is understood within these circles can be as important as managing any external exposure. Finally, it is important to take a longterm view. While legal proceedings may conclude, the reputational effects of an inheritance dispute can endure – particularly where narratives have taken hold or details remain publicly accessible. In a family context, those effects may also shape relationships for years to come. Protecting reputation in this setting is not about short-term positioning, but about ensuring that the dispute, and those involved, are ultimately understood in a fair and balanced way.
Despite these risks, communications is often only considered once an inheritance dispute has escalated – by which point narratives around fairness, intent, and family dynamics, are already forming. For private clients and their advisers, a more effective approach is to recognise from the outset that inheritance disputes operate on two parallel tracks: legal and reputational. Decisions taken in one sphere will almost inevitably shape outcomes in the other, particularly where the legal arguments intersect with deeply personal issues such as provision, responsibility, and expectations of fairness within family. In practice, this requires careful coordination between legal and communications strategies from an
A Growing Challenge As the volume of inheritance disputes continues to rise, so too will the number of individuals facing these challenges. For private clients and their advisers, the implication is clear. Success in these matters is defined not solely by the outcome of the case, but by how the dispute is communicated.
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ThoughtLeaders4 Disputes Magazine • ISSUE 21
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