Nikita Chernyshenko

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.

Developing a defence strategy for a major international bank in four legal proceedings initiated by Moscow City Hall demanding demolition of a business centre complex located on a land plot owned by the city and securing loans extended by our client to borrowers in the amount of US$120m. In three of the four cases, the defendant (borrower) and the client successfully used the defence proposed by the firm's team, achieving a rejection of the claim.

Advising AerCap on Russian law and sanctions regulation in litigation in an English court that is unprecedented in its scale and the number of participants. The dispute arose between the client and insurance companies, which refused to treat the failure to return more than one hundred aircraft leased to major Russian airlines due to Russian export restrictions as an insured event.

Representing a French financial conglomerate in a dispute with one of Russia’s largest dairy plants caused by the client’s refusal to pay under guarantees due to EU sanctions. Claiming that the client’s refusal was unlawful, the Russian party filed the claim with a Russian court asking it to recover approximately EUR 5m from the client. The team’s task is made difficult by the dominant approach of the Russian courts that sanctions are not a valid ground for not performing obligations to Russian parties.

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 our arguments and decreased the amount of penalty by 60% and partly satisfied client’s claim for retention guarantee.

Participation in preparing an expert report for a Cypriot court on the minority shareholders’ prospects of recovering multimillion-dollar losses. The dispute arose out of alleged violations committed by a majority shareholder during the squeeze-out of shares of one of the world’s largest potash fertiliser producers. The team assisted Maxim Kulkov in preparing the report on the squeeze-out procedure of minority shareholders, which, inter alia, addressed controversial issues such as the body of proof of losses caused by the squeeze-out and the possibility of claiming in tort against the majority shareholder who had not complied with the squeeze-out procedure.

Participation in preparing an expert report for the English court on the application of Articles 248.1–248.2 of the Russian Commercial Procedural Code and court service in a dispute between a Russian company and a Canadian branch of a leading international aircraft manufacturer (the client). The dispute was caused by the client’s refusal to pay back the advance payment, since the Russian counterparty had breached the payment schedule under the contract. The Russian company argued that the breach of the schedule had been caused by sanctions and appealed to the Russian court (despite the LCIA arbitration clause in the contract), asking it to establish its exclusive jurisdiction over the dispute and recover the disputed advance payment from the client. Thanks to the well-coordinated work of the team, the client obtained an anti-suit injunction in the English court in an extremely short time, which increased the likelihood that the dispute will be considered in a proper forum and will help the client to avoid losses of US$25m.

Participation in preparing an expert report for 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. The Tribunal agreed with Maxim Kulkov’s opinion, and the client defeated a US$15m claim.

Participation in preparing an expert report for the High Court of England in PJSC Tatneft v Bogolyubov and 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.

Successfully defending one of the richest Russian businessmen in a dispute initiated by a major state-owned bank to bring him to subsidiary liability. The bank wanted to recover more than RUB 3.5bn from the client in a development company insolvency case. The case was complex due to the bank having a debtor’s disclosure statement in which the client is named as beneficiary. The bank also held the client responsible for a significant number of episodes that covered an extended period of time, which further complicated the client’s defence.

Participation in the Metrostroy insolvency case. The project is critical, both for the continuation of the construction of the metro in St Petersburg and for the satisfaction of lenders’ claims by way of the return and sale of assets worth more than US$200m and the subsidiary liability of the debtor’s shareholders. The team ensured that the client’s claims of almost US$50m were included in Metrostroy’s register, despite the actions of opponents in three instances. In addition, the team prevented the inclusion of unjustified claims for US$45m in the register, which will contribute to a fair distribution of the insolvency estate.