Our Insights

“Practitioners can turn to this book confident that few, if any, of the questions which may perplex them are not discussed and that all relevant authorities in the common law world have been mentioned.”

Lord Hoffmann

Commercial Injunctions by Steven Gee, QC needs no introduction as the definitive text for those engaged in commercial pre-emptive remedies. For many years it has been regarded as the bible for legal professionals advising clients on injunctions. This eagerly awaited 6th Edition maintains and extends that sterling reputation. It has been fully updated in light of the Civil Procedure Rules changes and all other developments in this area of the law over the last ten years since the previous edition was published.

The comprehensive coverage includes all aspects of the law relating to commercial injunctions, including freezing injunctions, search orders, contempt proceedings, undertakings and damages, enforcement of a judgment, and much more. The new edition takes in the many key judgments made since the previous edition appeared and a wealth of other new content. For example the very important section on contempt of court has been expanded and divided into two distinct chapters.

Despite the title’s unparalleled in-depth coverage of the subject, it provides a highly practical and invaluable tool for practitioners, offering clear analysis and guidance. The author’s renowned understanding of the subject renders difficult concepts easily understandable and answers to key questions clear and accessible. Beyond this, Steven Gee discusses topical developments in a critical way, stimulating further thought, discussion and debate.

This new edition also includes an appendix providing a unique comparative look at similar practice and procedure in US federal and New York state courts by three practitioners from the leading US firm Shearman & Sterling and a Foreword by Lord Neuberger.

Commercial Injunctions 6th Edition, 9781847036131, Hardback, £249.00

The new 6th edition of Commercial Injunctions:
Full contents include:
About the author:

• Provides unparalleled in-depth coverage of the subject
• Has been cited in numerous cases with approval
• Gives practical advice on how and when to obtain injunctions, how to defend against such orders and the options available
• Provides key insight into the continuing evolution of the Mareva injunction
• Provides a one-stop source of answers
• Is written in a clear and authoritative style – providing answers and guidance on key issues

1. Introduction: Injunctions and the evolution of the Mareva injunction and Anton Piller relief
2. General principles and enforcement of contracts
3. Common types of commercial injunctions – Mareva relief
4. Forms of order
5. Other types of order
6. The jurisdiction to grant injunctions and Anton Piller relief
7. Preservation of assets: other types of relief
8. The without notice application
9. The duty to make full and frank disclosure and fair presentation
10. The “without prejudice” rule
11. The undertaking in damages
12. Risk of Dissipation
13. Injunctions against third parties
14. Anti-suit injunctions
15. Injunctions affecting letters of credit, performance bonds and bank guarantees payable on demand or their proceeds
16. Appointment of a receiver
17. Anton Piller
18. Privilege – Injunctions to preserve privileged information or to prevent lawyers or other professionals from acting
19. Contempt – Part 1: The legal principles
20. Contempt – Part 2: Proceedings for contempt
21. Freezing injunctions: the effects on non-parties, “maximum sum” orders, variations to permit payments to nonparties, including legal costs
22. The writ ne exeat regno and s.6 of the Debtors Act 1869
23. Ancillary orders
24. Expiry of an injunction, discharge, variations and appeals
25. Restrictions on the use which may be made of documents or information

Steven Gee, QC is a commercial litigator with nearly 40 years’ experience and appears as counsel arguing cases and has done so from the beginning of the Mareva jurisdiction. He appears as counsel in international and commercial arbitrations, sits as an arbitrator and has also acted in numerous arbitrations in England, and abroad. He has appeared as counsel in the Supreme Court of the Republic of Ireland, Bermuda, the Cayman Islands, Hong Kong, the Turks and Caicos Islands, and Antigua. He is a member of the New York Bar and admitted to practice in the State and Federal Courts in New York. He is in independent practice as a commercial QC, and with the specialist litigation and arbitration firm Joseph Hage Aaronson LLP, which has a number of other QCs.

PLACE YOUR ORDER TODAY:

sweetandmaxwell.co.uk
TRLUKI.orders@thomsonreuters.com (UK)
0345 600 9355 (UK) +44 (0)1264 388560 (Int’l)
Quoting reference: 3081902A

On 19 July, the High Court held a directions hearing in a number of cases which have been brought relating to the triggering of Article 50 in light of the EU Referendum result.

The argument of the claimants is that the TEU provides that the withdrawal notification to the Council of the European Union is valid only if it is issued in accordance with UK’s constitutional requirements and that the Prime Minister cannot trigger Article 50 by using the prerogative powers of the Government as this would go against the European Communities Act 1972. Consequently, the only way in which the Article 50 notification can be issued is if it is authorised by an Act of Parliament.

The hearing will be in mid-October. The High Court judgment is expected in early November. It has been proposed by the Court that the Court of Appeal stage be leapfrogged so that the Supreme Court might hear the case towards the end of November and deliver their judgment by the end of December.

This article appears in the JHA July 2016 Tax Newsletter, which also features:
You can download the complete newsletter as a PDF here: July 2016 – Tax Newsletter.

1. Case C-18/15 Brisal SA, KBC Finance Ireland v Portuguese State Treasury by Moritz Richter

To read the news article, please click here.

To view the news article, please click here. (Article is in Russian)

To view the news article, please click here. (Article is in French)

To view the news article, please click here. (Article is in Russian)

This press release can be downloaded as a PDF here.

President Yanukovych is no longer listed as a “wanted person” by Interpol, as can be easily checked by a search of the Interpol website identifying people who are “wanted” (http://www.interpol.int/notice/search/wanted). The Interpol Red Notice (an international request made by Interpol seeking the location and arrest of “wanted persons”) concerning President Yanukovych, which was published around 12 January 2015, has ceased to be in force. Further, Interpol member countries have been blocked by Interpol from access to data concerning President Yanukovych held by Interpol.

This action by Interpol follows an application to Interpol by Joseph Hage Aaronson LLP on behalf of President Yanukovych seeking his removal from the Interpol list of “wanted persons”, including on the basis that criminal charges brought by the new regime in Ukraine against President Yanukovych were part of a pattern of political persecution of him.

Interpol has found that elements available to Interpol of Ukraine’s case against President Yanukovych, upon which the Red Notice concerning President Yanukovych was based, raised concerns which necessitated a further in depth study by Interpol of that case.

In the light of those findings, around 16 July 2015, Interpol, amongst other things:

1. suspended the Red Notice;
2. removed the extract of the Red Notice, showing President Yanukovych as a “wanted person”, from the Interpol website; and
3. blocked access of Interpol member countries to Interpol data concerning President Yanukovych.

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

This press release is also available in Russian. You can download it as a PDF in English and Russian.

President Yanukovych has lodged a claim with the European Court of Human Rights on the grounds that Ukraine has repeatedly breached his human rights.

His application asks the Court to declare violations of his rights under the European Convention on Human Rights, including the right to a fair trial (Article 6), the right to an effective investigation of attempts made upon his life and the right to protection (Article 2), and the right not to be discriminated against because of his political status and opinions (Article 14).
Joe Hage of Joseph Hage Aaronson LLP, President Yanukovych’s UK lawyer, who has issued the claim, says: “President Yanukovych has brought this action now because it is clear that the Ukrainian authorities are determined to bring prosecutions against him. They have allowed unfair trials to proceed which infringe his basic human right to be present and to defend himself against allegations which President Yanukovych vigorously denies.

1. President Yanukovych’s rights to an independent and impartial tribunal, to a fair hearing and to reasoned judgments have been breached. The Ukrainian courts are not independent from, or free from the influence of senior state officials, cannot be relied on to act impartially, and do not ensure fair hearings.A vivid example, among many, of a highly politicized court decision against President Yanukovych is the Pechersk Court decision allowing the special pre-trial investigation stage of a case against the President to be completed in his absence, and refusing to permit him even to participate by video link. This decision ignored the fact that there was no legal basis under the Ukraine law (which had been specially amended to pursue President Yanukovych), for allowing trial in the absence of the accused. No reasoned judgment was provided, and the Court completely ignored the fact that President Yanukovych was then and is currently not on an interstate wanted list or an international wanted list, since the Interpol Red Notice against President Yanukovych had been suspended. Ukrainian law does not permit an appeal against this decision.
2. President Yanukovych’s right to a presumption of innocence has been violated by the numerous public and condemnatory statements made by senior state officials and prosecutors. The statements are so broad and frequent as to undermine his presumption of innocence in relation to any criminal proceedings.
3. Ukraine has violated its duty to protect President Yanukovych, and its investigative and procedural duty under Article 2 ECHR because of the failure to carry out a proper investigation into the attempts on President Yanukovych’s life in February 2014. These breaches and the continuing threats against President Yanukovych mean that it is unsafe for President Yanukovych to return to Ukraine, and that he cannot attend the criminal proceedings in Ukraine properly to defend himself.
4. President Yanukovych has suffered discriminatory treatment due to his political status and opinions, including by the multiple unfounded criminal cases said to be being brought against him in Ukraine, the baseless decisions being made against him by the Ukraine authorities and the Ukraine Courts, and the repeated public condemnation by Ukraine’s public officials.

There is no doubt the Ukrainian prosecution authorities are under huge political pressure to secure convictions in relation to false criminal allegations, including those constructed to provide a basis for the EU sanctions listing against President Yanukovych.”

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

This press release is also available in Russian. It can be downloaded as a PDF in English or Russian.

Oleksandr Yanukovych has lodged a claim with the European Court of Human Rights on the grounds that Ukraine has repeatedly breached his human rights.

His application asks the Court to declare violations of his rights under the European Convention of Human Rights including the right to peaceful enjoyment of property (Article 1, Protocol 1), his right to a fair trial (Article 6), and his right not to be discriminated against because of his status as the son of President Yanukovych (Article 14).
Joe Hage of Joseph Hage Aaronson LLP, Mr Yanukovych’s UK lawyer, who has issued the claim, said: “Oleksandr Yanukovych has brought this action now because it is clear that the Ukrainian authorities are intent on unlawfully depriving him of his shareholding in VBR on the basis of his sanctions listing without compensation.

1. 1. Oleksandr Yanukovych’s right to property has been violated by Ukraine’s de facto expropriation of his 100% shareholding in Vseurkainskyy Bank Rozvytku. In November 2014 the National Bank of Ukraine classified VBR as insolvent despite independent reports of its financial stability, with the result that it was taken out of his control and put into provisional administration. The NBU used the imposition of EU sanctions on Oleksandr Yanukovych as the justification for its actions, but without establishing that those sanctions adversely affected VBR’s solvency. Indeed the Head of the NBU told the Ukraine Parliament that there was no such risk of insolvency. NBU’s move was wholly political with no economic or legal basis. VBR is now to be sold to Ecosipan LLC, an independent third party, under a contract recognised by the Ukrainian courts. No compensation has been paid to Oleksandr Yanukovych, and there is no realistic prospect that any compensation will ever be voluntarily paid by Ukraine.
   2. Oleksandr Yanukovych’s right to an independent and impartial tribunal, to a fair hearing and to reasoned judgments has been breached. The Ukrainian courts are not independent from, or free from the influence of senior state officials and cannot be relied on to act impartially, and do not ensure fair hearings.
   3. Oleksandr Yanukovych’s right to a presumption of innocence has been violated by the numerous public and condemnatory statements made by state officials and prosecutors. Such statements are so broad as to undermine his presumption of innocence in relation to any criminal proceedings.
   4. Oleksandr Yanukovych has been discriminated against because of his status as the son of President Yanukovych, a political opponent of the current Ukrainian government. This is evident from, in particular, the NBU’s decision to expropriate his shareholding in VBR on the false grounds of risk of insolvency, the unfounded criminal proceedings brought against him and the repeated condemnatory statements that have been made by Ukraine’s public officials.

There is also no doubt that Ukrainian prosecution authorities are under huge political pressure to secure convictions and to confiscate the property of Oleksandr Yanukovych without regard to basic human rights, such as the right to a fair trial or even the need to obtain criminal convictions, as is proposed in the current draft special confiscation law being considered by the Ukraine Parliament.”

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

You can download this press release as a PDF in English or Russian.

On 5 June 2015, the European Union took the long overdue step of removing sanctions on our client Viktor Viktorovych Yanukovych, younger son of Ukrainian president, Viktor Fedorovych Yanukovych. No reason was given by the Council for his delisting.*

Despite a lack of any credible evidence against him, Viktor Viktorovych Yanukovych (“Mr Yanukovych”) was originally targeted during the imposition of far-reaching sanctions by the EU in March 2014. Since that time, the EU has repeatedly failed to justify his inclusion. Independent observers have speculated that the sanctions were imposed in haste and that they had remained in place so long because European Union officials had been reluctant to admit error.**

It might look like backing away from the unjust imposition of sanctions has been made easier by the tragic death of Mr Yanukovych in March this year although very often sanctions remain in place against the estate of a deceased target for years after their death.***

This would appear to be particularly relevant in the case of Ukraine given that a primary asserted purpose of these EU sanctions is the freezing and recovery of assets allegedly misappropriated. Any genuine need for such freezing and recovery would remain whether the targeted individual was alive or not.

An in-depth analysis of the conduct of the EU Council underlines its own lack of confidence in any justification for the sanctions against Mr Yanukovych. For example, the Council twice amended the reasoning for his listing, first on 29 January 2015 and again on 5 March 2015. However, even under the amended reasoning, the Council was then prepared to renew its sanctions against Mr Yanukovych for only three months, and not the normal period of one year. As observers have noted,**** this short extension was granted in an unsuccessful effort to get the regime in Ukraine to provide evidence and justification for Mr Yanukovych’s listing.

Prior to his death Mr Yanukovych had applied to the European Courts to challenge the Council’s decision to impose sanctions against him. His estate intends to continue that claim, even after his delisting, in order to establish that he should never have been included. Mr Yanukovych’s estate also intends to bring a claim for damages against the Council in respect of the serious breach by the Council of the rule of law in the wrongful imposition of sanctions against him.

Mr Yanukovych’s estate wants all documents relating to the imposition of sanctions against Mr Yanukovych, and to Mr Yanukovych’s challenges before the European Courts, to be made public, so that the public can come to its own conclusions about the reasons for his listing and delisting, and the unfair process to which he was subjected. Action on behalf of Mr Yanukovych’s estate seeking such public access will be started shortly.

* The Council of the European Union adopted Council Decision (CFSP) 2015/876 and Council Implementing Regulation (EU) 2015/869. These instruments removed our client Viktor Viktorovych Yanukovych from the list of Ukrainians made subject to EU sanctions since March 2014. The exact wording of the Regulation delisting Viktor Viktorovych Yanukovych is:

“The person listed below is deleted from the list set out in Annex I to Regulation (EU) No 208/2014 as of 6 June 2015:

Entry No 8 — Viktor Viktorovych Yanukovych (Віктор Вікторович Янукович) (son of former President)”.

** e.g. http://www.wsj.com/articles/eu-set-to-scale-back-sanctions-against-former-ukraine-presidents-inner-circle-1424174482; http://www.wsj.com/articles/eu-faces-legal-worries-over-ukraine-corruption-sanctions-1418305869

*** For example, three sons of Muammar Qadhafi then subject to the EU’s Libyan sanctions regime, Mutassim Qadhafi, Khamis Muammar Qadhafi and Saif al-Arab Qadhafi, lost their lives during the course of 2011. Not only has the Council nonetheless renewed sanctions against these deceased individuals in May 2015, it has even recognised their deaths on the face of the instruments that did so.

**** See footnote 2 above.

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888