Maxim Kulkov

Representing the client in a dispute in ICC arbitration over the client’s claim against its counterparty, one of the world’s largest manufacturers of wind turbines. The client won tenders for the production of “green” electricity and started the construction of wind farms. The wind turbines were to be produced, supplied and maintained by the opponent. However, due to the sanctions, the respondent terminated its contracts with the client, that resulted in substantial losses for the client. Thanks to the efforts of the team, the parties settled the dispute on terms which were favourable for the client.

Representing a claimant in a dispute involving two oilfield services companies in arbitration under ICAC Rules. The client claimed compensation for restoring the hermetic seal of an ultradeep oil well after defective cementing works by the defendant. The firm won over 90% of the claim and attained a revolutionary breakthrough for the sector by overcoming contractual provisions strictly limiting the contractor’s liability. To date, no comparable outcomes have ever been achieved in Russia.

Defending Metallimpress (a general contractor) in the ICAC against a claim worth over US$65 million filed by Zhoukovsky (a customer) in connection with complaints regarding the quality of work on the construction of a shopping centre. During the arbitration proceedings, 11 hearings were held, 14 expert opinions were submitted, and 7 experts were examined. The firm successfully defended the client from 75% of the claim.
The parties subsequently entered into a settlement agreement reducing the amount recovered from our client by 89% of the original claim.

Maxim Kulkov was Tribunal Chair in an SCC arbitration between a major Russian EPCI contractor in oil and gas industry and a European largest energy and engineering company, concerning the recovery of US$12 million under a services agreement in connection with gas turbine generators supplied for the development of an oil field in the Caspian Sea.

Representing a major European construction company in ICC arbitration proceedings. Our client was involved in the construction of an elite residential complex in Moscow. After the commissioning of the building, the general contractor (an Italian company) refused to return the client the retention guarantee and set it off against a penalty for the violation of the terms of work, which reduced the client’s claim to zero. The tribunal agreed with the arguments of Maxim Kulkov’s team and decreased the amount of penalty by 60% and partly satisfied client’s claim for retention guarantee.

Representing a co-owner of a supermarket chain in the process of applying for interim measures (seizure of real estate) in support of an LCIA arbitration initiated in England and a dispute in Cyprus in connection with the violation of a shareholders’ agreement (SHA) regarding management of large shopping centres in Moscow and the Moscow Region. The client entered into a settlement agreement with the opponent on favourable terms.

Defending a client – a major railcar leasing operator – in a dispute with two transportation companies to which our client had leased railcars under a long-term relationship. Due to the fact that the transferred railcars were actually and legally arrested in Ukraine due to sanctions, the lessees refused to pay the rent, including by referring to the force majeure circumstance confirmed by a certificate of the Chamber of Commerce and Industry of the Russian Federation.

Representing a major Russian private company in the power and heat supply industry in a dispute against a major international company offering engineering solutions for various equipment, including turbines for heat power plants. Turbines of two of the client’s thermal power plants serviced by the opponent stopped working. This resulted in more than four months of the client’s plants being idle, causing enormous losses and creating systemic and political risks associated with the need to service settlements in the autumn and winter periods.

Preparing and implementing a dispute strategy in relation to a claim brought by a Russian industrial equipment manufacturer against a foreign counterparty that unilaterally terminated a contract. Our work includes analysis of the client’s ability to invoke legal provisions protecting Russian persons from the consequences of sanctions imposed by foreign states, as well as taking provisional measures against the foreign counterparty’s assets due to the risk of termination of operations in Russia.

Defending Goldman Sachs in a number of disputes over the claims brought by a major bank and a Russian state corporation seeking recognition of the competence of Russian courts to hear the disputes (Article 248.1 of the Russian Commercial Procedure Code) arising out of the agreements on financial transactions and a cross-currency interest rate swap concluded between the parties. The claimants were sanctioned, the parties terminated the agreements on condition that the client would provide the termination amount to the claimants but, due to the prohibition on transactions with sanctioned parties, the client was unable to fulfil the obligations. Despite the arbitration clause, the opponents asked the Russian court to change the jurisdiction.

Defending a major foreign bank's subsidiary in a dispute against a sanctioned Russian bank (top-3 in terms of assets). The client’s UK affiliate and the opponent entered into agreements under which the opponent was owed RUB 1.4bn. The funds were transferred to a blocked account. The agreements contain arbitration clauses and are governed by English law, but the claimant is seeking to recognise the exclusive jurisdiction of Russian courts as well as apply Russian law due to sanctions. The project is complicated by the fact that the opponent intends to recover the debt not only from the client’s UK affiliate, as a counterparty to the agreements, but also from a Russian bank that is part of the client’s conglomerate.

Defending Citibank in a dispute with a sanctioned Russian bank. Due to the sanctions imposed by the US and the UK, our client transferred the opponent’s assets – totalling US$25m – to a special blocked account.

Defending Commerzbank, Landesbank Baden-Württemberg, Bayerische Landesbank (major German banks) in disputes against a Gazprom subsidiary relating to the refusal of clients to make payments to the opponent under bank guarantees due to sanctions restrictions. The claimant is currently attempting to recover funds from the clients through a Russian court despite the fact that the guarantees are subject to English law and contain an arbitration clause.

Defending a major US bank in a dispute with a Russian bank which is subject to sanctions. The dispute is connected with a client’s transfer of US$7m from the opponent’s correspondent account to a special blocked account. Despite the fact that the dispute is under the jurisdiction of US courts, the claimant filed a claim in a Russian court under Article 248.1 of the RF CPC.

Defending an investment company before the Limassol District Court in relation to the claims brought against the client by its customers. The dispute arose out of the client’s inability to conduct securities transactions due to its being included in sanctions lists.
The team is defending the client against the claims by developing a comprehensive legal position on the issue of recognising sanctions as a force majeure circumstance.

Advising an international Swiss investment bank on interaction with counterparties in the context of sanctions and restrictive measures imposed on the territory of Russia by decrees of the RF President in February–March 2022. We also developed a strategy for negotiations with an opponent – an investment company, and a leader in the futures and options market according to the value of its clients’ operations in Russia – which refused to fulfil its obligations to the client on derivative financial instruments due to counter-sanctions restrictions.

Developing a defence strategy for a one of Russia’s largest distributors of telecommunications equipment. Due to the imposition of sanctions on the import of high-tech equipment into Russia, the client’s Taiwanese counterparty could not supply the equipment directly to the client. To overcome the problem, the client entered into an agreement with a Turkish intermediary who was to purchase the equipment in Taiwan and resell it to the client. The client made an advance payment of US$1.6m, but the intermediary had problems making payments to the manufacturer because of export restrictions imposed by Turkish law.

Defending ATAC (Auchan Group) in a dispute over a property owner’s claim against a client as an allegedly dishonest tenant seeking compensation for use of the premises for the entire rental period. We have proved that charging exorbitant inspection standards can disrupt the rental market. Anyone in the market would have to conduct a full investigation to see if the owner of the leased item has any problems that could lead to a future challenge to its title to the item. Having lost in the first and second rounds of the case in the courts of the first and appeal instances, we nevertheless twice proved the inconsistency of the claimant’s arguments in the court of cassation, which returned the case for a new round. After six court hearings and almost a year of consideration of the case in the third round in the first instance, the Commercial Court of the City of Moscow refused to satisfy the opponent’s claim in full.

Representing Ukraine in the case of Tatneft’s application for recognition and enforcement of an investment arbitral award worth approximately US$150 million (the first case to be heard in Russia on the recognition and enforcement of decisions of an international investment arbitration against a foreign state).

Successfully defending T Plus, a major Russian company operating in the field of electricity and heat generation, in connection with Volga Paper Company’s claim for damages of US$11.5m arising out of the sale and purchase contract for a thermal power plant.

Representing Orion – a defendant in a corporate dispute (worth over US$13m) relating to the invalidation of an issue of shares in a Russian IT company and the challenging of the SPA. The claimant alleged that she was a beneficiary of the company and that the shares were disposed of without her consent. The claim was dropped.

Successfully defending a client in a dispute over a claim brought by the opponent, who declared that audit reports prepared by the client were misleading. The complexity of the dispute is due to the fact that such cases are extremely rare in Russia, and there is no relevant detailed regulation or settled court practice. The claimant’s actions posed a serious threat to the client’s reputation as they casted doubt on the quality of the client’s services and may lead to the cancellation of the auditor’s qualification certificate.

Successfully defending the client’s business reputation due to the fact that inaccurate, defamatory information was disseminated regarding alleged wrongdoing during the conduct of business by the client, its participants and management. In order to defend the client, we proved that the Telegram channel where the inaccurate information was published belongs to the defendant, a media outlet that had previously disseminated inaccurate information about the client. Thanks to the team’s efforts, the disseminated information was recognised as inaccurate and defamatory, and was refuted and removed.

Preparing a legal opinion on the prospects for a dispute with a major Russian bank arising out of a futures transaction agreement (forward agreement). As a result of the bank’s actions, the client was unable to convert foreign currency into roubles at a favourable exchange rate and incurred more than US$18m in losses. Despite the lack of court practice on the issue, the team offered the client a number of options for defending its interests.

Representing a client in a dispute over the recognition and enforcement of an ICAC award before the Commercial Court of Belgrade (Serbia). The ICAC ruled in favour of the client recovering tens of millions of euros in unpaid advances and accrued interest. The defendant, a Turkish subcontractor, refused to execute the award voluntarily and made unsuccessful attempts to have the ruling annulled by the Russian court. We defended the client by convincing the Russian court to uphold the ICAC award, and now we are in the process of having the arbitral award recognised and, simultaneously, having interim measures imposed on the award debtor’s property in Serbia.

Providing legal support in a dispute in the courts of appeal and cassation in Turkey, in which our client is one of the defendants. The claimant, a Turkish subcontractor, is seeking to invalidate bank guarantees issued by a Turkish bank (the second defendant in the case) to secure the opponent’s obligations to the client. The opponent, referring to the UN Resolutions and letters of the Turkish Banking Regulation and Supervision Agency, claims that the bank guarantees are unenforceable and demands their invalidation. The client’s position is that the claim should be dismissed because the arbitration clause between the client and the opponent prevents the case from being heard in Turkey.

Successfully defending a client in a series of proceedings challenging interim measures imposed by an Italian court. The client is constructing one of the largest gas processing plants in the world. The client’s Italian subcontractors, in breach of contract, failed to extend their performance bank guarantees, so the client filed claims under the guarantees. The opponents appealed to a Turin court, which, by way of interim measures, prohibited the banks from making payments in favour of the client. We achieved settlements of the disputes.

Advising a major global leasing company on Russian sanctions and insurance regulations in a litigation in an English court. The dispute arose between the client and insurance companies, which refused to treat the failure to return more than one hundred aircraft leased to Russian airlines due to Russian export restrictions as an insured event.

Defending an investment company before the Limassol District Court in relation to the claims brought against the client by its customers. The dispute arose out of the client’s inability to conduct securities transactions due to its being included in sanctions lists.
The team is defending the client against the claims by developing a comprehensive legal position on the issue of recognising sanctions as a force majeure circumstance.

Preparing an expert report for Autostore Technology AS v Ocado Group PLC & ors case (Top 20 Cases of 2020 according to The Lawyer). The client (Ocado) was sued by rival company Autostore in connection with an alleged patent infringement. The claim was aimed at blocking the import, manufacture, sale, and use of the client’s invention, which Autostore claims infringes its patents. Our client’s defence strategy was built on the absence of patentability criteria (i.e., “novelty”) of the invention under dispute, which can be established if the claimant had previously, before the patent priority date, disclosed information about the invention to any third parties who are not bound by a duty of confidence – thus, the previous disclosure point is of paramount importance. Following the hearing, the English court found the report and testimony of Maxim Kulkov convincing and, in 2023, ruled in favour of the client.

Preparing an expert report for the High Court of England in PJSC Tatneft v Bogolyubov & Ors on over a hundred issues of Russian law, including the possibility of bringing a tort claim against a company’s controlling persons in response to the company failing to perform contractual obligations and thereby ignoring the ‘competition of claims’ principle and insolvency rules on subsidiary liability, as well as issues of pure economic loss and interference with contractual rights.
After a 12-week trial, the High Court agreed with the testimony of Maxim Kulkov. As a result, the firm’s efforts helped the defendants defeat a US$300m claim.

Preparing an expert report and giving evidence before the High Court of England on a number of Russian law issues, including recovering damages in connection with the alleged rigging of an auction in the Yukos bankruptcy case (Yukos Finance B.V. & Ors v Stephen Lynch & Ors). Maxim Kulkov’s expert evidence helped to defeat a US$40m claim by the former management of YUKOS Oil Company against the defendants. Having reviewed over 400 pages of expert opinions and cross-examined experts over four days, the English Court agreed with the testimony of Maxim Kulkov.

Preparing an expert report on Russian law issues for LCIA proceedings in relation to a dispute concerning the recovery of US$1.3bn of debt under a loan agreement. The case was complicated by the Respondent’s extraordinary argument that the Board of Directors of the client’s parent company lacked authority to approve arbitration proceedings. Thanks to the expert report and persuasive testimony of Maxim Kulkov, the Tribunal issued a preliminary ruling in favour of the client.

Preparing an expert report in an SCC case with regard to the statute of limitations for a contractor agreement. The client was a contractor for a leading Russian producer of nickel under an agreement governed by Russian law. The Tribunal agreed with Maxim Kulkov’s opinion, and the client defeated a US$15m claim.

Preparing an expert report for an LCIA arbitration arising out of a credit line agreement. The report covers complex issues of invalidity of foreclosure of an LLC share by leaving it with the pledgee; fiduciary duties of the pledgee towards the company whose shares are pledged to it and unjust enrichment allegedly arising on its side; interpretation of an arbitration clause and applicable law clause in a situation where a pledge agreement and a financing agreement contain diametrically opposed clauses.

Preparing expert reports for the High Court of England in ABFA Commodities v Petraco dispute. Our client – Petraco Oil Company SA (one of the oldest independent oil trading companies in Europe) – filed a claim for damages caused by unlawful interim measures for petroleum products that were never delivered to it. The opponent filed a counterclaim for recovery of damages, insisting that our client had “intercepted” previous oil deliveries from the Antipinsky Oil Refinery, which were allegedly intended for the opponent, and also demanded recognition of its ownership of the petroleum products subject to the interim measures.
Maxim Kulkov’s reports included analysis of highly controversial issues of Russian law, such as interference in another’s contractual relations expressed in the form of a double sale of a generic thing. Guided by Maxim’s expert reports and oral testimony given during two days of cross-examination, the court preferred his conclusions to those of the opponent’s expert.

Preparing an expert report on Russian law issues in a dispute related to a borrower’s provision of false accounting statements and misrepresentation regarding the financial parameters of a transaction when obtaining a bank loan. Funds originally intended to finance a coal mining company were eventually withdrawn through complex ‘round-tripping’ transactions.
The dispute is complicated by issues of causal connection between the actions of the joint defendant and the claimant’s losses in a situation where the defendant was not the organiser of the unlawful scheme but only participated in an individual stage thereof, and by the fact that it was actually a technical company whose will was carried out by third parties.
The case is important for the whole legal system because it raises issues such as ‘harm’, ‘causation’, ‘wrongfulness’ and ‘joint infliction of harm’ in the context of joint liability for auxiliary and occasional participation of an offender in unlawful schemes.

Preparing expert reports by Maxim Kulkov for an English court in a dispute initiated by Gazpromneft against Mr Drelle, who was accused of embezzlement. The reports included issues of corporate law and bankruptcy proceedings, in-depth analysis of Russian court judgments against the client for violations of fundamental principles of fair trial, and analysis of the grounds and possible violations in the criminal prosecution against the client.

Preparing an expert report on the concept of "trust" in Russian law in a dispute between top manager of one of the world’s leading producers of phosphate-based fertilizers and an opponent who filed a claim against our client demanding the transfer of the client’s shares (or their value), which it allegedly holds in a trust in favour of the claimant, and lost profits.