Expert Report by Maxim Kulkov Leads the High Court of England and Wales to Order Vladimir Potanin to Disclose Norilsk Nickel Corporate Documents in a Dispute with UC Rusal

The High Court of England and Wales has ruled in a dispute between UC Rusal and Vladimir Potanin, ordering the latter to disclose corporate documents related to the activities of the Norilsk Nickel Group.

Background

The dispute arose out of a corporate conflict concerning the governance of PJSC MMC Norilsk Nickel. The disagreements began in 2008, when UC Rusal acquired a stake in Norilsk Nickel. In 2012, the parties entered into a 10-year shareholders’ agreement, which allocated governance roles among the co-owners.

Shortly before the expiration of the shareholders’ agreement, the Client filed a suit with the High Court of England against Mr Potanin and other defendants, alleging that Mr Potanin had failed to comply with his duties as managing partner. As a result, Norilsk Nickel allegedly lost a number of assets, and its shareholders suffered losses.

To substantiate its claims, the Client sought access to corporate documents held by Mr Potanin in his capacity as President of Norilsk Nickel.

Role of the Russian Law Expert

Maxim Kulkov, KK&P Trial Lawyers Managing Partner, was instructed to substantiate Mr Potanin’s ability to provide the requested documents of Norilsk Nickel and its subsidiaries.

A key feature of the case was that neither Norilsk Nickel nor its subsidiaries were parties to the proceedings. Mr Potanin therefore argued that:

  1. he did not have access to the relevant documents because he was acting in the proceedings in his personal capacity as an individual rather than as a company executive;
  2. Russian civil and corporate law, as well as Norilsk Nickel’s internal policies, prohibited him from using corporate documents in personal litigation;
  3. certain provisions of Russian law prohibit the disclosure of documents containing confidential information to a foreign court.

Position of Maxim Kulkov and the Court’s Judgment

With the support of the firm’s team – Oleg Kolotilov (Partner), Alexandr Karlovskiy (Senior Associate) and Ksenia Korchagina (Paralegal) – Maxim Kulkov persuaded the High Court that:

  1. a company executive has access to all company documents;
  2. Russian law does not prohibit a CEO from using company documents to protect their interests in personal legal proceedings.

The court paid special attention to the disagreement among Russian legal experts regarding whether special rules on disclosing confidential information allow the court to provide it to a foreign court. The court tentatively agreed with Maxim Kulkov’s position that the term “court” encompasses both Russian and foreign courts and, therefore, the ability to disclose confidential information to a court includes disclosure to a foreign court.