Day 41

Bank St Petersburg v Vitaly Arkhangelsky [Master]

Day 41

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Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

1 :1 Wednesday, 4 May 2016

2 (10.30 am)

3 MR BIRT: May it please your Lordship.

4 MR JUSTICE HILDYARD: Yes, Mr Birt.

5 MR BIRT: I am going to call Professor Maggs.

6 PROFESSOR PETER B MAGGS (Sworn)

7 MR JUSTICE HILDYARD: Professor Maggs, do sit down. I hope

8 you have some water. If you need a break, you must let

9 me know.

10 Examination-in-chief by MR BIRT

11 MR BIRT: I think in front of you you have some bundles. If

12 you could turn in the bundle which is called E2 and E3

13 behind tab 12 to page 1, please. {E2-E3/12/1}.

14 A. Yes.

15 Q. That is your consolidated expert report, because it

16 consolidates a number of reports you had given earlier.

17 Could you turn on to {E2-E3/12/76}. Is that your

18 signature there dated 16 October 2015?

19 A. Yes.

20 MR BIRT: My Lord, I don’t know if in your hard copy bundle

21 page 76 bears a signature or not.

22 MR JUSTICE HILDYARD: It does not.

23 MR BIRT: Can I hand up a replacement document. I

24 understand there was an issue when the page was put onto

25 Magnum, it seems to have wiped some of the data. The

2 :1 data that it wiped in this instance was the signature,

2 for technical reasons I can’t explain. (Handed).

3 MR JUSTICE HILDYARD: Thank you.

4 MR BIRT: Could you also please turn in bundle E4,

5 Professor Maggs, behind tab 13 to page 1.

6 A. Yes {E4/13/1}.

7 Q. That is your supplemental report, is it?

8 A. Yes, it is.

9 Q. Could you turn onto {E4/13/23} of that bundle, please?

10 Is that your signature with the date of

11 20 November 2015?

12 A. Yes, it is.

13 Q. Is that your supplemental report?

14 A. Yes, it is.

15 Q. Could you turn, also in {E4/15/1}, please.

16 A. Yes.

17 Q. You should have there your joint memorandum with

18 Dr Gladyshev?

19 A. Yes, it is.

20 Q. And if you could turn on to page 21, please, you can see

21 that is dated 6 November 2015, and is that your

22 signature again?

23 A. Yes, it is.

24 Q. Taken together, are the opinions you express in those

25 reports, along with your contribution to the joint

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

3 :1 memorandum, your true professional opinion and evidence

2 for this trial?

3 A. Yes, they are.

4 MR BIRT: Thank you very much. If you would wait there.

5 Cross-examination by MR MILNER

6 MR MILNER: Good morning, Professor Maggs.

7 A. Good morning.

8 Q. I want to start by asking you about claims in tort under

9 Article 1064 of the Civil Code. Now, Article 1064 is

10 the general tort law provision in Russian Law; is that

11 right?

12 A. That’s right.

13 Q. Can we just look at it first of all. It is

14 {E2-E3/12/37}.

15 A. Yes.

16 Q. And we see Article 1064.1 says that:

17 «Harm caused to the person or property of a citizen

18 and also harm caused to the property of a legal person

19 shall be subject to compensation in full by the person

20 who has caused the harm.»

21 So, pausing there, there are four requirements,

22 aren’t there? First of all, harm to the person or

23 property of the claimant; secondly, unlawful conduct by

24 the defendant; thirdly, fault on the part of

25 the defendant, and; fourth, a causative link between the

4 :1 defendant’s action and the harm to the claimant; do you

2 agree with that?

3 A. Yes.

4 Q. And I didn’t read the full article, but we can see that

5 the requirements of fault derives from Article 1064.2

6 and the requirement of unlawfulness derives from

7 Article 1064.3 in effect; is that right?

8 A. Yes.

9 Q. Now, as regards the first requirement, harm, I don’t

10 think you dispute, do you, that if a person loses money

11 as a result of the defendant’s actions, that counts as

12 harm for these purposes?

13 A. Yes.

14 Q. In relation to the third requirement, fault, I think you

15 agree that in principle the intentional causing of harm

16 satisfies the requirement of fault; is that right?

17 A. Yes.

18 Q. And that would include, wouldn’t it, a situation where

19 it may not be the defendant’s sole purpose to cause harm

20 to the claimant, but where harm is the inevitable result

21 of the defendant’s actions and is intended in that

22 sense?

23 A. And where he knows it is the inevitable result.

24 Q. Yes. You would agree that that counts as intentional

25 harm?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

5 :1 A. Yes.

2 Q. Yes. And in a Russian context, at least, it is for the

3 defendant to prove that it is not at fault in that

4 sense; is that right?

5 A. That’s right.

6 Q. Now, going back to the second requirement, unlawfulness.

7 Again, that is presumed under Russian law, isn’t it? It

8 is for the defendant to show that he caused harm

9 lawfully, if he is to escape liability?

10 A. Yes.

11 Q. And you give some examples in your consolidated report

12 of lawful justifications for harm. At paragraph 147 you

13 say that a lawful justification might be self-defence,

14 fair competition or the good faith enforcement of

15 property rights.

16 A. Yes.

17 Q. So I assume that we can take it that where you refer to

18 good faith enforcement of property rights you would —

19 A. I said «contract or property rights».

20 Q. Quite right, yes, «contract and property rights», thank

21 you.

22 But where you refer to the good faith enforcement of

23 rights, you would agree that it is not open to

24 a defendant to plead a lack of fault if he has enforced

25 his rights in bad faith?

6 :1 A. It is unlawful under Article 10 of the Code to enforce

2 your rights in bad faith.

3 Q. So if you enforce rights but in bad faith or

4 dishonestly, that wouldn’t amount to lawful causing of

5 harm for these purposes; is that right?

6 A. That’s correct.

7 Q. And then finally on the subject of causation, it is

8 correct, isn’t it, that whether there is a sufficient

9 causative link between the defendant’s actions and the

10 harm, ultimately is a question of fact for the court?

11 A. It is treated as a question of fact by the Russian

12 courts.

13 Q. Now, you make the point that causation has to be

14 specific and direct —

15 A. Yes.

16 Q. — under Russian law. I just want to explore that

17 briefly just to see if there is any real difference

18 between us on this.

19 Can we go to {E2-E3/12/39}. You set out an extract

20 here from Professor Sukhanov’s textbook talking about

21 causation. He explains what the concept of causation

22 means, and in the middle paragraph we see his analysis.

23 He says:

24 «As is correctly noted in the literature, of primary

25 significance is the development of approaches to

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

7 :1 the elucidation of ‘legally significant causal

2 connection, necessary and sufficient for bringing the

3 violator to responsibility’.»

4 And he says that in any given situation, in effect,

5 there will be a number of causes that lead to the harm

6 and the court’s task is to pick out what he calls the

7 main decisive basic circumstance which is a cause,

8 whereas secondly and incidental and insignificant

9 factors are not to be regarded as a cause.

10 So it’s a value judgment, essentially, that the

11 court has to perform, isn’t it, based on common sense

12 and intuitive reasoning as to whether a given fact

13 amounts to a legally sufficient cause.

14 A. Yes.

15 Q. And if the harm is something that the defendant

16 specifically intends to cause, then in practice, it is

17 unlikely to be problematic, the requirement of

18 causation, isn’t it?

19 A. The causation issue. There may be other defences,

20 but …

21 Q. Of course. Good. Can I move on, then, to Article 1080,

22 which is the provision that provides that where several

23 people cause harm to the claimant, they are jointly and

24 severally liable for the harm caused. Again, I don’t

25 think there is much dispute between the parties on this,

8 :1 but just to clarify the effect of that article.

2 Where you have a number of people who jointly cause

3 harm to the claimant, is it, again, a question of fact

4 for the court as to whether each person’s participation

5 is sufficiently significant to make it appropriate that

6 they should be held liable?

7 A. Well, it’s not a question of appropriateness. Again,

8 it’s a question of causation. Did each person in some

9 way contribute to causing the harm? If a person didn’t

10 contribute at all to causing the harm then he would not

11 be covered by 1080.

12 Q. Yes, I see. So you have to look at what acts each

13 defendant committed and whether they played

14 a sufficiently important role in the causal chain that

15 led to the harm; is that right?

16 A. Whether the act — you look at it the same way as you do

17 under 1064: was it an act that violated 1064?

18 Q. Yes. But if the defendant’s actions in and of

19 themselves have not caused harm, but the defendant acts

20 in concert with other people with the intention that

21 jointly they will all cause harm, that would be

22 sufficient, wouldn’t it?

23 A. Well, the intent is not sufficient; it has to be that

24 the two actions together in some way jointly caused

25 harm.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

9 :1 Q. Yes, I suppose to give a simple example, if I drive

2 someone to a bank and they rob the bank and I drive them

3 away again, I would be liable in that situation for

4 jointly causing harm, wouldn’t I, even though driving

5 a car in itself is not illegal.

6 The point I am making is you have to look at whether

7 their actions further the purpose of the overall

8 arrangement —

9 A. Yes.

10 Q. — rather than just looking at them in isolation; you

11 would accept that?

12 A. Assuming it is a getaway driver, not a taxi driver.

13 Q. Yes, exactly, well knowledge is what is critical, and

14 intention.

15 Can I then ask you about causing harm specifically

16 in connection with auctions. Can we look at

17 {E2-E3/12/60}. At paragraph 248 of your report you say

18 in the last sentence:

19 «If auction rules were not violated but there was

20 bid-rigging not connected with the pledgee, the pledgee

21 not only would bear no liability, but if it could not

22 undo the auction, could recover in tort under

23 Article 1064 against the bid-riggers.»

24 Do you see that?

25 A. Yes.

10 :1 Q. Could you just explain what you mean by «bid-rigging» in

2 that paragraph?

3 A. If you look again at Article 10, it has something very

4 general like anti-monopoly policy, and so a conspiracy

5 among bidders not to outbid each other would be

6 bid-rigging.

7 Q. I see. So an agreement between the bidders as to who

8 will buy an asset or at what price?

9 A. Who will buy, and the other will not compete.

10 Q. I see. It follows from what you say in paragraph 248

11 that bid-rigging in that sense is unlawful; is that

12 right?

13 A. It’s unlawful under Article 10 of the code and unlawful

14 under the anti-monopoly law.

15 Q. It follows, then, also, that if there is bid-rigging

16 that is connected with the pledgee, then the pledgee

17 would be liable; is that right?

18 A. It depends if there were other people who bid high bids

19 and they are bid-rigging — you still need to show

20 causation from the bid-rigging.

21 Q. Let’s assume there is successful bid-rigging so you have

22 an agreement —

23 A. If there is successful bid-rigging, then those who

24 caused the bid-rigging would be liable.

25 Q. And that would include the pledgee, if the pledgee was

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

11 :1 party to that agreement?

2 A. Yes, but if the pledgee was not part, the pledgee would

3 in fact have a cause of action.

4 Q. Yes, because it would then be a victim of

5 the bid-rigging.

6 A. Yes.

7 Q. Would the liability of the pledgee in that situation be

8 under 1064?

9 A. The liability would be under 1064, however, there is

10 a duty to mitigate damages and the victim could have the

11 auction annulled.

12 Q. Yes. Now, again on the subject of auctions, imagine

13 that the seller of an asset, or the owner of an asset

14 which is going to be sold at auction enters into

15 a dishonest arrangement with a third party bidder to

16 create some sort of encumbrance over the asset, so the

17 value of the asset is reduced immediately before the

18 auction and the pool of potential buyers is reduced

19 because the asset is made less attractive. So in formal

20 terms the auction rules are followed: the auction is

21 publicised, two bidders show up and the asset is sold,

22 but inevitably the starting point is artificially low,

23 and there are not many interested bidders. So there is

24 no technical violation of the auction rules there, but

25 nevertheless, it would be wrongful to do that, wouldn’t

12 :1 it?

2 A. Well, if the harm to the asset was wrongful under the

3 pledge contract, then it would be wrongful. If it was

4 something that the person was authorised to do under the

5 pledge contract, then it wouldn’t be wrongful.

6 Q. What if the pledge contract is silent about that as it

7 normally would be, and the pledgee and one of

8 the bidders enter into an arrangement whereby they

9 create an additional encumbrance over the asset for no

10 purpose other than to reduce the selling price?

11 A. I don’t see how the pledgee can create an encumbrance

12 unless he has some right to do so. If the pledgee

13 negligently or intentionally physically damaged

14 an asset, certainly then your conclusion would follow.

15 Q. Can we go back to abuse of rights, because it seems to

16 be that even if there was a lawful right to create

17 an encumbrance over the asset, it would be a right that

18 the pledgee wouldn’t be entitled to abuse.

19 A. And that would be an essentially factual issue for the

20 court depending on such things as business custom.

21 Q. Yes. Can we just pin down the doctrine of abuse of

22 rights, so we know how it operates. Can we look at

23 {E2-E3/12/31}. Yes, so it is paragraph 119 that you

24 quote Article 10.1. It says:

25 «Actions of citizens and legal persons taken

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

13 :1 exclusively with the intention to cause harm to another

2 person are not allowed, nor is abuse of a legal right

3 allowed in other forms.»

4 You go on to make the point that a legal defence is

5 considered to be a right that is capable of being

6 abused; is that right?

7 A. Yes. I cite several cases.

8 Q. In other words, a defence in law which is technically

9 available to the defendant might nevertheless be

10 dismissed if it is abusive in all the circumstances for

11 the defendant to rely on it; and whether it is abusive,

12 as you have said, is a question of fact ultimately; is

13 that right?

14 A. Yes.

15 Q. In addition to that defensive use of Article 10, is it

16 right that Article 10 can also be used, as it were,

17 offensively, as a way to invalidate a transaction that

18 is concluded for an abusive purpose?

19 A. Yes, and I think I mentioned the typical case is some

20 transaction giving a preference to a creditor done on

21 the eve of bankruptcy. There are numerous such cases.

22 Q. Yes. So even though — I don’t know, maybe there is now

23 a specific rule of Russian law that prohibits

24 preferences, but if there isn’t or if there wasn’t then,

25 although in principle it would be lawful to enter into

14 :1 a transaction, because the purpose is to defraud

2 someone, it is considered abusive; is that right?

3 A. This principle started to be used extensively before the

4 bankruptcy law was amended to more directly attack

5 preferences.

6 Q. Right, and you make this point, we don’t need to look at

7 it, but it is paragraph 217 and 218 {E2-E3/12/55}.

8 So far we have been discussing the principles in

9 general terms relating to tort and abuse of right. You,

10 I think, were not asked in your report to directly apply

11 those principles to the facts that are alleged in this

12 case, were you?

13 A. No.

14 Q. But in general terms — you have read the pleadings in

15 this case, haven’t you?

16 A. I have read it, but the case has been going on for

17 a very long time.

18 Q. Yes, they are not the most user-friendly documents to

19 read, I grant you, but I think you have studied the

20 pleadings at least at one point when you were preparing

21 your reports; is that right?

22 A. Yes.

23 Q. Are you aware in general terms of what Mr Arkhangelsky

24 alleges happened in this case? In particular, putting

25 it in very broad and simple terms, what he alleges is

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

15 :1 that certain senior officials of a bank, together with

2 certain other people, entered into a dishonest scheme to

3 deprive him and his companies of certain assets that

4 belonged to them; are you aware of that —

5 A. I am aware of that very general —

6 Q. — very high level outline?

7 A. — high level.

8 Q. Now, would you agree that, based on that very high level

9 outline, and perhaps depending on a number of subsidiary

10 factors, but in principle, there would be a claim, or

11 there could be a claim under Article 1064 if those facts

12 were proved?

13 A. Well, I think we would have to look at the individual

14 elements, because different principles of Russian law

15 apply to different types of things you can do. I am not

16 sure at that general level one can say anything one way

17 or another.

18 Q. Okay, well, that’s fair. Let’s just look at the

19 elements of Article 1064. If there was a dishonest

20 scheme between the Bank and certain third parties to

21 misappropriate assets, the misappropriation of

22 the assets would constitute harm in principle, wouldn’t

23 it? Is that a yes?

24 A. It would constitute — misappropriation, taking assets

25 without a proper legal basis, is harm.

16 :1 Q. Yes, and there would be fault as well, wouldn’t there,

2 because it would be intentional?

3 A. There would be fault if one dishonestly took assets.

4 Q. Yes, and there would be unlawfulness as well because the

5 whole essence of the scheme would have been dishonest.

6 A. It would be unlawful, but again, we can’t just look at

7 1064 because there are different rules concerning

8 dishonest taking by contract and dishonest taking by

9 tortious action. There are different rules concerning

10 remedies, different rules concerning periods of

11 limitation, so you would have to look at the details of

12 the dishonest scheme to determine whether it fell under

13 1064 at all, and whether the remedies under 1064 were

14 appropriate.

15 Q. Yes, we will come back to contract, because I am aware

16 that’s a separate area that we need to explore, but if

17 one leaves aside contractual issues, in principle

18 dishonest taking of assets would be unlawful?

19 A. Again, «dishonest» is a very vague phrase. There was

20 some issue, for instance, in this case of forgery.

21 Taking assets through a forged contract is a tort, for

22 instance, but taking advantage of someone’s

23 misapprehension may be a purely contractual issue

24 subject to the law on contracts.

25 Q. Well, take the example I gave earlier of creating bogus

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

17 :1 encumbrances over assets for no purpose other than to

2 lower their value artificially. You would have no

3 difficulty describing that as dishonest?

4 A. Well, creating a bogus encumbrance would be like

5 creating a forged contract.

6 Q. Yes, and that would be unlawful?

7 A. That would be unlawful, assuming the encumbrance was

8 unlawful.

9 Q. Yes. Now, you have said that it would depend, or it

10 might depend, on terms of contracts and so on, but if

11 the contracts by which the assets were transferred were

12 entered into for dishonest purposes or for the purpose

13 of causing harm to the defendants as part of a dishonest

14 scheme, the Bank wouldn’t then be able to rely on those

15 contracts, would it, because it would be an abuse of

16 right?

17 A. It might be possible to have the contract declared

18 invalid, but still, even where a contract is somehow

19 obtained dishonestly, there are specific rules of

20 the Civil Code dealing with what you do with such

21 contracts, and they are different from the rules of

22 1064.

23 Q. Yes, indeed, but I think you said that one of

24 the effects of the abuse of right principle is that

25 a defendant can be denied the ability to rely on

18 :1 a defence that might otherwise be available. So if the

2 defence is that I acted in accordance with a contract,

3 then the court could simply refuse to allow the

4 defendant to raise that defence. It is not a question

5 of annulling the contract, as such; it is just denying

6 the defence.

7 A. Well, this is not a defence; it is a question of

8 applying the specific article of the Civil Code that

9 deals with contracts negotiated in an abusive manner,

10 such as under duress, and there’s a very specific

11 provision that deals with that, therefore we never get

12 to abuse of right, we look at the specific provision

13 which deals with that.

14 Q. Right, but imagine that you have a chain of events that

15 involves certainly some contracts, and it might help to

16 bring it more closely to the facts of our case. There

17 is no dispute that the initial transfers of assets were

18 made under contracts, but certain things then happened

19 to the assets and they were then disposed of in ways

20 which are said to be wrongful, not pursuant to

21 contracts, or at least, not contracts with the original

22 owners of the assets.

23 So it’s a scheme that is implemented in a number of

24 stages. Certainly contracts are involved at the

25 beginning, but they are not the whole story.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

19 :1 Now, it wouldn’t be a defence, would it, if the

2 whole scheme is found to be dishonest and conceived for

3 the purpose of extracting assets and extracting value

4 from assets to cause harm to the defendants, it wouldn’t

5 be a defence, would it, to say that the assets were

6 transferred under contracts?

7 A. Well, I think those contracts remain valid until

8 declared invalid, and if they were somehow improperly

9 obtained, the other party to the contract would have

10 every right to have them declared invalid and interested

11 persons would have a right to have them declared

12 invalid.

13 Q. But do you have to go so far as to have them declared

14 invalid? Why can you not say, as I thought you did say

15 earlier, that the contract would just not be recognised

16 as a defence, if it is abusive?

17 A. Well, we are not talking about recognising it as

18 a defence, we are talking about applying the articles of

19 the Civil Code which apply to contracts obtained and so

20 forth in an abusive manner. There are specific articles

21 of the Civil Code dealing with that.

22 Q. Right. Can we move on to contractual issues more

23 generally. You have considered in your reports

24 the December 2008 agreement —

25 A. Yes.

20 :1 Q. — that Mr Arkhangelsky says was made with the Bank, and

2 whether it amounts to a binding contract under Russian

3 law.

4 A. Yes.

5 Q. It might be useful to have the memorandum on the screen

6 when we discuss it, it is {D107/1537/1}. The Russian

7 version is at {D107/1537/3}.

8 Now, the December 2008 agreement, which

9 Mr Arkhangelsky says was made, is essentially this

10 document plus an additional term that is said to have

11 been agreed orally whereby the Bank would not demand the

12 repayment of loans for a certain period of time; are you

13 familiar with that?

14 A. Yes, before we get to that point, you say «which

15 Mr Arkhangelsky made». There was some problem in

16 the documents, as I remember, whether a seal was on the

17 documents or not in the photocopies.

18 Q. We are going to come to that. I am content to accept

19 for present purposes that there is a seal on the

20 document, if that’s …

21 A. Well, then I don’t think he made the contract. He

22 really signed it on behalf of the party with the seal.

23 Q. With respect, I said he says it was made. I haven’t yet

24 come to the question of who it was made between, but

25 certainly he says it was made.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

21 :1 A. He says a contract was made.

2 Q. He says a contract was made. I agree with you, there

3 are separate questions as to whether there was

4 a contract at all and if there was, who were the parties

5 to it, and we will discuss both of those points.

6 Just to be clear, what I mean by the agreement,

7 I think you understand, the agreement is this document

8 plus the orally agreed moratorium on payments; okay?

9 A. Yes.

10 Q. Now, before we consider whether this is a valid

11 agreement or not, can we just look at Article 179 of

12 the Civil Code which is at {E4/14/54}. This is from

13 Dr Gladyshev’s report, but I think it is common ground

14 that this is what Article 179 says. It says:

15 «A transaction concluded under the influence of

16 fraud, coercion, threat, bad-faith agreement … as well

17 as a transaction which a person was forced to conclude

18 as a result of a concurrence of grave circumstances

19 under conditions which are extremely unfavourable to

20 him, which the other party took advantage of

21 (unconscionable transaction) may, by petition of

22 the victim, be declared invalid by a court.»

23 So if there was a binding agreement and it was

24 procured by fraud or threats, or it was

25 an unconscionable agreement, then the contract could be

22 :1 avoided.

2 A. It could be avoided, yes.

3 Q. And under Article 179.2, where a contract is avoided,

4 there has to be mutual restitution of whatever each

5 party has received under the contract; is that right?

6 A. Well, not mutual restitution, because it provides for

7 forfeiture, and the courts have ruled that forfeiture

8 will occur only if the Russian public prosecutor has

9 intervened in the case on behalf of the Russian

10 Federation —

11 Q. You are absolutely right —

12 A. — to ask for the forfeiture.

13 Q. You are absolutely right. I don’t mean mutual

14 restitution. There has to be restitution by the

15 wrongdoer to the victim, but whatever the wrongdoer has

16 received may be forfeited?

17 A. Yes.

18 Q. And it also says, doesn’t it, in the last sentence of

19 Article 179.2:

20 «… the other party shall compensate the victim for

21 the actual harm inflicted upon him.»

22 A. Yes.

23 Q. Would that be assessed under Article 15, the measure of

24 harm?

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

23 :1 Q. Right, so that’s the legal framework. Can we now

2 consider whether the agreement was a contract or not,

3 and again, it might be helpful to put it back on the

4 screen {D107/1537/1}.

5 A. I would need to look at the Russian on that «actual

6 harm» to see whether it covers the out-of-pocket part of

7 Article 15 or also the lost profits. {D107/1537/3}.

8 Q. Right. I think the opinion that you and Dr Gladyshev

9 agreed on was that it doesn’t include lost profits?

10 A. Yes, I just wanted to clarify that point on Article 15.

11 Q. You say in paragraph 163 of your first report that there

12 are essentially three reasons why this can’t be

13 a binding contract. I will just make sure I have

14 understood your reasoning and then we will discuss each

15 reason.

16 Firstly, part of the agreement was made orally and

17 you say therefore can’t be proved.

18 Secondly, the document is more in the nature of

19 a non-binding statement of intent than a binding

20 contract?

21 A. Yes.

22 Q. And, thirdly, you say if it was a contract, it was

23 a preliminary contract and it doesn’t fulfil the

24 requirements for a preliminary contract under

25 Article 429 of the Civil Code.

24 :1 A. Yes.

2 Q. Have I understood correctly what you are saying about

3 this?

4 A. Yes.

5 Q. Let’s explore each of those points. First of all, the

6 question of the oral form of the agreement, or part of

7 the agreement.

8 A. Well, going from the other end, if it is a preliminary

9 contract, it is void if it is not in writing.

10 Q. Absolutely.

11 A. So we don’t get to the oral question. We only get to

12 that if it is not a preliminary contract.

13 Q. That is perfectly true, so I am going to ask you to

14 assume for now that it is not a preliminary contract,

15 let’s just isolate each of the reasons.

16 Can we look at {E2-E3/12/6}. In paragraph 24 you

17 have set out Article 161 of the Civil Code which says

18 that:

19 «The following must be made in simple written

20 form …»

21 First of all:

22 «Transactions of legal persons with one another and

23 with citizens.»

24 Secondly:

25 «Transactions of citizens … for a sum over ten

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

25 :1 times the minimum monthly wage …

2 And then paragraph 2 says that:

3 » … simple written form is not required for

4 transactions that … may be made orally.»

5 But that doesn’t apply here.

6 A. Yes.

7 Q. So we can take it that there is in principle a

8 requirement for contracts to be in simple written form.

9 Then can we look at page 8 in the same volume

10 {E2-E3/12/8}. At the top of that page we see

11 Article 162 which sets out the consequences of not

12 observing the simple written form. Article 162.1 says:

13 «Non-observance of the simple written form of

14 a transaction shall deprive the parties of the right, in

15 case of a dispute, to rely for confirmation of the

16 transaction and its terms upon the testimony of

17 witnesses, but shall not deprive them of the right to

18 adduce written and other evidence.»

19 So if we assume the agreement is not a preliminary

20 contract, so it is not mandatory to use written form,

21 the consequence of part of the agreement being oral is

22 not that the agreement is invalid, but that

23 Mr Arkhangelsky is not entitled to rely on witness

24 evidence to prove the agreement; is that right?

25 A. Right.

26 :1 Q. Now, before I go on with this, I just want to make clear

2 for you, but also for his Lordship, that our case is

3 that Russian law on this point, the need for written

4 form and the consequences of not having written form, is

5 completely irrelevant, because we will be submitting in

6 due course that it is a matter of English law that the

7 proof of an agreement and the evidence required to prove

8 an agreement is a matter of English law to be determined

9 in accordance with the ordinary English rules of

10 evidence, so I just make that point now. I don’t want

11 it to be inferred from the questions I am about to ask

12 you that I actually regard it as significant, but since

13 you have raised the point, I will ask you about it.

14 Because your view is that as a matter of Russian

15 law —

16 A. Well, I have been asked to comment on Russian law.

17 I don’t pretend to have any knowledge of English

18 conflict of law rules. So my whole report is written on

19 the assumption that Russian law applies, and it’s up to

20 the court, of course, to decide what law to apply.

21 Q. Of course. It is going to be the claimant’s case that

22 these are substantive rules which do apply in an English

23 court. We are going to say that they are procedural

24 rules that don’t apply in an English court. As you say,

25 it is not for you to comment on that, but let’s assume

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

27 :1 that the claimants are right and that these are Russian

2 rules, substantive rules that apply.

3 Article 162 expressly provides that a party is not

4 prevented from relying on other evidence, other than

5 witness evidence; that’s right, isn’t it?

6 A. Yes.

7 Q. So, for example, if you have an alleged agreement and

8 there was correspondence that referred to the agreement,

9 you could refer to that to prove the agreement.

10 A. Yes.

11 Q. And if there were documents showing that the agreement

12 had been performed or partly performed, you could rely

13 on that to prove the agreement, for what it was worth?

14 A. Yes.

15 Q. And, in fact, the very term «witness evidence» in

16 Russian law is a term of art, isn’t it? It is narrower

17 than we might understand the term «witness evidence» in

18 our Anglo-American system, because it specifically

19 applies to evidence of non-parties, doesn’t it?

20 A. Yes.

21 Q. It doesn’t include explanations given by the parties

22 themselves?

23 A. That’s true.

24 Q. So, in fact, even in a Russian court, Mr Arkhangelsky

25 would be entitled to go along and give an explanation of

28 :1 how he made the agreement?

2 A. Yes.

3 Q. Now, you say in your report that parties’ explanations

4 in practice carry little weight with Russian courts.

5 A. Yes.

6 Q. Would you accept that, ultimately, they are just part of

7 the evidence and the court has to weigh up all of

8 the evidence and come to an overall conclusion about

9 whose case is more likely to be correct? There is no

10 rule that says you can’t give weight to the parties’

11 explanations, is there?

12 A. Well, I think I cite a High Court letter essentially

13 saying a case was rightly decided when it — that

14 a particular case involved no evidence other than

15 explanations, and that was since officialed. So those

16 letters are essentially treated as stating rules of law.

17 Q. Shall we go to {E4/13/17} and see if this is what you

18 are referring to. This is from your first report; is

19 that the — there’s a commentary, actually.

20 A. I was not talking about a commentary, I was talking

21 about — I don’t remember whether it was in my first

22 report or my supplemental report — an actual

23 information letter from one of the High Courts. This is

24 just the opinion of a particular highly respected

25 scholar.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

29 :1 Q. Let me see if I can find that. (Pause).

2 Yes, if we look at the next page, paragraph 69

3 {E4/13/18}, this is the case, or in fact, three cases

4 that you refer to; is that right?

5 A. I think there may be something further in my

6 supplemental opinion.

7 Q. This is your supplemental report.

8 A. Oh, I’m sorry.

9 Q. So they are examples of cases where claimants’ oral

10 evidence was rejected. But if we go back to

11 the previous page I think the commentary that you cite,

12 I’m going to suggest, is an accurate summary of

13 the principles. Paragraph 7 says:

14 «The explanations of parties and third persons are

15 to be evaluated along with other evidence in the case.

16 In the evaluation of the explanations of parties and

17 third persons it is necessary to consider that they are

18 given by legally interested persons. In connection with

19 this the question of their reliability arises. The

20 court must compare explanations of the parties with

21 other evidence. A judicial decision may not meet the

22 requirement of being well-grounded if it is based only

23 on explanations of the parties.»

24 So what the commentary is saying, which is, I am

25 sure, basically common sense, isn’t it; that

30 :1 explanations of the parties are likely to be

2 self-serving and they should be treated with caution,

3 and not given the same weight as you would give

4 objective evidence, like documentary evidence.

5 A. I think there is also a principle they must be

6 corroborated by some objective evidence, that pure

7 explanations are not enough.

8 Q. Well, the last sentence says:

9 «A judicial decision may not meet the requirement of

10 being well grounded if it is based only on

11 explanations…»

12 A. I think it is those other cases I cited that deal with

13 that point. Now it is a question of fact for the court

14 in Russia whether there is other corroborating evidence.

15 But I haven’t been able to find, and I don’t think

16 Professor Gladyshev has been able to find a case where

17 somebody has won purely on his explanations.

18 Q. No. Well, just so I have your opinion, is it your

19 opinion that there is a principle of the law on evidence

20 in Russia that a case cannot succeed if it is based only

21 on the evidence of —

22 A. That seems to be judicial practice. There is

23 a principle of the law of evidence that they can be

24 given some weight.

25 Q. What if there is no evidence — imagine a case where we

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

31 :1 have a contractual relationship but all the documents

2 relating to the relationship are stored in a warehouse

3 that burns down. So the terms of the contract can only

4 be proved by either my oral evidence or your oral

5 evidence. One of us is bound to succeed in that

6 situation, isn’t that right? Wouldn’t the court —

7 A. Well, the court may just find no contract. Russians are

8 much stronger believers in paper than many other people.

9 Q. What if we agreed there was a contract but we disagreed

10 as to the terms of the contract?

11 A. Well, as this commentary says, where you admit a fact,

12 an admission of a party is fully binding, so if we look

13 at the bottom paragraph of the main text there, if the

14 parties agree that is essentially conclusory on the

15 point, or if one party admits something.

16 Q. What if we agree there was a contract and the only

17 dispute is whether you are going to pay me $1,000

18 a month or $10,000 a month for my services?

19 A. Well, the admission evidence might serve as

20 a corroborative basis for the other statements, because

21 you would then have 100 per cent effective evidence for

22 what was submitted, and that can serve as

23 a corroborating basis for the explanation of a party.

24 Q. Because in this case there’s no dispute that the

25 memorandum was made, and the only question is whether

32 :1 there was an additional oral agreement in relation to

2 the moratorium. So the agreement as such is not in

3 dispute, but there is a question about what were the

4 full terms of the agreement?

5 A. Well, there is one case cited in this passage in which

6 the court didn’t allow you to add a new term just with

7 an explanation or just with witness testimony. I think

8 where you go adding new terms, that’s a different

9 matter.

10 Q. Well, you say it’s a different matter, but ultimately

11 it’s all a question for the court, isn’t it, in terms of

12 what evidence it finds credible and sufficient to

13 support the case?

14 A. Ultimately it is a question for the court, but guided by

15 the judicial practice, particularly that of the Supreme

16 Court.

17 Q. Let’s move on to your second reason for saying there is

18 no contract, which is that the document is more in

19 the nature of a non-binding statement of intent.

20 Presumably you would say the same thing: if it is

21 found that there was an oral agreement in addition to

22 the written document, you would say that was also

23 non-binding and informal?

24 A. Depending on what the content was.

25 Q. Yes. But you give a number of reasons for saying that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

33 :1 it’s only informal. That’s at paragraph 166 of your

2 first report, {E2-E3/12/44}. So you seem to say there

3 three things in that paragraph. First, that the

4 document is headed «Memorandum», rather than «Contract»

5 or «Agreement»; secondly, it’s described as being

6 entered into by the Oslo Marine Group, Holding Oslo

7 Marine Group, which is not a legal entity, but

8 an informal way of referring to various companies;

9 thirdly, it refers to various steps being taken by

10 companies who are not party to the agreement and in some

11 cases, not specifically identified.

12 A. Yes.

13 Q. Are those the three reasons why you say that it is

14 informal?

15 A. These are the, I think, clear reasons. Maybe if one

16 went through more one would find some other factors, but

17 these are what I consider particularly important factors

18 at paragraph 166.

19 Q. Right.

20 Now, again, I need to make clear that my position is

21 that Russian law is not relevant to the issue of whether

22 the parties intended to make a binding agreement or not,

23 because whether they intended it to be binding is

24 a question of fact, ultimately, to be decided by the

25 court in accordance with the ordinary English rules of

34 :1 evidence.

2 But having put down that marker, let’s imagine,

3 again, that Russian law is completely applicable, and

4 deal with your points in turn.

5 So starting with the point that it’s called

6 «Memorandum» rather than «Agreement», would you accept

7 that the names that people give to documents, especially

8 people who are not lawyers, are not determinative of

9 their legal effects?

10 A. They are not — no, they are not determinative. They

11 have some weight, but they are not determinative.

12 Q. You have to look at the substance, don’t you, not the

13 form, and certainly not just the title; isn’t that

14 right?

15 A. You certainly can’t just look at the title, but I think

16 it is one factor that a Russian court would consider.

17 Q. So if two non-lawyers wrote out a contract which looked

18 exactly as you would expect a contract to look with all

19 the bells and whistles that Russian contracts typically

20 have, but they described it in the subject line as

21 a memorandum, it would be perfectly open to a Russian

22 court to find that it was, nevertheless, a contract,

23 wouldn’t it?

24 A. Yes.

25 Q. Now, as to the identity of the parties, I agree with you

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

35 :1 that there is some ambiguity as to who were the

2 contracting parties, and I will come back to that

3 question, but the question for present purposes is

4 whether that lack of clarity as to who the parties were

5 is fatal to it being a contract at all. You don’t

6 suggest, do you, that the ambiguity about who was the

7 contracting party makes it fatally uncertain so as to be

8 unenforceable?

9 A. Well, a contract between two parties is something that

10 shows their intent to create a binding relation with one

11 another. If it is a document showing the intent to have

12 completely other people do other things, it tends not to

13 show an intent to create a binding relation.

14 Q. I think you are jumping ahead to my third point, or your

15 third point.

16 A. Yes, but I think this also affects the question of

17 whether there is a contract or not.

18 Q. All right, but the question as to whether the

19 contracting party was Mr Arkhangelsky or Group Oslo

20 Marine or some other company, I agree with you that

21 there is a lack of clarity about that, but that doesn’t

22 prevent the agreement from being binding, does it?

23 A. Well, if a document talks about all sorts of people

24 doing things who are not parties to the document, it

25 makes it hard to see how that is a promise between any

36 :1 particular parties.

2 Q. Well, we come back to the question of third parties —

3 A. In other words, I don’t think you can separate these.

4 There is a legal question of if this is a contract, who

5 is bound, but the fact that it doesn’t clarify who is

6 bound also makes it look not like a contract.

7 Q. Can we just look at what you say in 166? Three lines

8 down you say {E2-E3/12/44}:

9 «The first line of the Memorandum indicates that it

10 includes the ‘Holding Group Oslo Marine’. This appears

11 to be an informal way to refer to various companies that

12 Mr Arkhangelsky controlled.»

13 So it looks from that that you are saying that the

14 informal description of the contracting party or the

15 failure to identify the contracting party precisely is

16 a factor showing a lack of intention to create

17 a contract; is that right? Is that what you are saying?

18 A. Yes.

19 Q. So my question is simply that that lack of specificity,

20 not as regards third parties, the purchaser companies —

21 we will come to those in a minute — but just as regards

22 the naming of Holding Group Oslo Marine, it gives rise

23 to a difficulty of interpretation, but it doesn’t make

24 the contract fatally uncertain, does it? In other

25 words, it is a question that is capable of being

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

37 :1 answered and, in fact, you have done an analysis and

2 come up with an answer as to who the contracting party

3 is?

4 A. Yes, I don’t think you can treat each of these

5 separately. They are all factors relative to

6 the question of intent to contract and they are

7 cumulative. You can’t sort of deal with each one

8 separately.

9 Q. I am trying — with respect, Professor, I need to deal

10 with each one separately because I need to identify just

11 how potent a factor each one really is. I quite accept

12 that ultimately the answer depends on weighing up all of

13 the factors for and against, but you have identified

14 three and I just want to test each one of them and just

15 see how compelling a reason each one really is.

16 Let me try putting the question a different way:

17 it’s possible, isn’t it, that businessmen who are not

18 lawyers might — who control a number of companies might

19 make an agreement and simply not be aware or not take

20 care of the need to specify precisely which companies

21 they are talking about; you accept that that could

22 easily happen?

23 A. Well, it’s quite possible that people who aren’t lawyers

24 will draw up agreements which a lawyer would never have

25 drafted.

38 :1 Q. So the fact that they haven’t specified which companies

2 they intend to be parties to the agreement, because

3 conceptually they don’t necessarily draw any firm

4 distinction between the various companies they control,

5 that doesn’t mean they don’t intend to create

6 an agreement at all, does it?

7 A. It may mean they have failed to make it definite enough

8 to constitute an agreement.

9 Q. Well, there are two separate questions, aren’t there:

10 first of all, is it certain enough to be a binding

11 agreement, but; secondly, does the lack of certainty or

12 ambiguity evince an intention not to be bound at all?

13 A. Those are separate questions.

14 Q. Yes, and it is the latter question that I am focusing

15 on.

16 A. Either a lack of intention or an excessive vagueness

17 will defeat it being a contract, but there are different

18 grounds.

19 Q. Absolutely, and if we can stay focused on the lack of

20 intention, the fact that two businessmen make

21 an agreement without being very careful to specify which

22 of their various companies they are talking about

23 doesn’t mean, or doesn’t strongly confirm, at any rate,

24 that they don’t intend to make an agreement at all, does

25 it?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

39 :1 A. Well, again, it’s one factor.

2 Q. Now, your third reason for saying that the agreement

3 isn’t intended to be binding is that it recites various

4 actions to be taken by companies that are not party to

5 the contract at all. Are you referring there to

6 the purchaser companies, or special companies, as they

7 are referred to?

8 A. Yes.

9 Q. Now, if those third parties are effectively represented

10 by the Bank for these purposes, then your objection

11 would fall away, wouldn’t it? They would, for all

12 practical purposes, be bound by the Bank’s agreement?

13 A. Well, if the third parties were signatories to

14 the agreement, they would be bound by it.

15 Q. If they were signatories, yes. We know they are not

16 signatories, but on the other hand, if we go back to

17 the memorandum again at {D107/1537/1}.

18 A. Yes.

19 Q. And if we look at the next page {D107/1537/2},

20 paragraph 3 says:

21 «The Purchasers undertake not to interfere in

22 everyday commercial activities …»

23 And so on. So the purchasers are purporting to

24 assume obligations under this agreement.

25 A. Mm hmm.

40 :1 Q. And one reason why they may have been in a position to

2 do that is that the Bank was effectively representing

3 them.

4 A. Who are the purchasers?

5 Q. If we go back to the top of the document. Paragraph 1

6 says:

7 «Special companies —»

8 A. These are the unidentified companies that may or may not

9 be in existence at this time.

10 Q. Correct.

11 A. Well, there you get into a question of the power of

12 Mr Arkhangelsky to bind these unidentified companies.

13 Q. I’m just going to stop you there because I don’t want

14 you to go off on a false basis. The special companies

15 are not Arkhangelsky companies. The special companies

16 are the companies that the Bank in due course proposes

17 to take the shares. So what happens is that they agree

18 this arrangement in principle. The Bank then proposes

19 a number of companies, to which the Arkhangelsky

20 companies transfer the shares in Western Terminal and

21 Scandinavia. So they are on the Bank’s side of

22 the line, to put it in as neutral a way as I can.

23 A. That pushes over into the preliminary contract issue.

24 Q. It does, and we will come back to that.

25 But in terms of the position of these third party

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

41 :1 companies, you say that it recites various actions to be

2 taken by these third party companies who are not parties

3 to the contract. Strictly, of course, that’s true, but

4 I was putting to you that one answer to that may be

5 that, in fact, they are to all intents and purposes

6 parties because they are bound or represented by the

7 Bank. The Bank is assuming obligations on their behalf,

8 otherwise —

9 A. Do we know that they exist at this time?

10 Q. We do, as a matter of fact, know that they did exist,

11 but it is obvious, isn’t it, from the fact that they are

12 assuming obligations that they exist, because it is hard

13 to see how they could sensibly assume obligations to do

14 things if they don’t exist?

15 A. Well, that’s a factual question whether they have been

16 registered in the Corporate Registry or not.

17 Q. But, anyway, let’s assume that they are completely

18 independent third parties. If the agreement provides

19 for actions to be taken by those third parties, clearly

20 it’s not binding on those third parties because they are

21 not signatories to the agreement.

22 But that doesn’t prevent it from having legal

23 effects as between the people who are parties to

24 the agreement, does it?

25 A. Well, if this is seen as a promise that I will cause

42 :1 somebody to do something, you might have a point, but it

2 just says «they will do it», it doesn’t say «the Bank

3 promises they will do it».

4 Q. True, but even if it is an independent obligation and

5 there is no obligation on the Bank to procure anything,

6 to the extent that it imposes obligations and creates

7 rights as between the signatories, so the Bank and the

8 Oslo Marine entity, there’s no reason it can’t be

9 binding between those parties, is there?

10 A. Well, you can make a binding agreement promising you

11 will cause a third party to do something. That would

12 not be binding on the third party, but it might be

13 binding on the person who promised that.

14 Q. Yes. And to the extent that it is not talking about

15 third parties at all but the Bank, for example, if the

16 Bank agreed to extend a loan, that doesn’t involve third

17 parties; it is just the Bank assuming an obligation to

18 the Oslo entity, that could be binding, couldn’t it,

19 without the need to consider the position of the third

20 parties?

21 A. Well, we get into another principle that if various

22 parts of a contract are not binding, various parts of

23 an agreement are not binding, it may cause the whole

24 agreement to fall down.

25 Q. It might, though it might not, and that depends on —

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

43 :1 A. Or it may show the whole agreement really has not ever

2 been accepted as a contract if there are big holes in

3 it.

4 Q. Yes. And I think you address that point, and you say

5 that whether or not an agreement can survive without

6 certain provisions depends on whether — it is

7 Article 180, isn’t it —

8 A. 180 says if the parties would have wanted it to survive

9 anyway.

10 Q. Yes. So it’s a question of fact, ultimately?

11 A. A question of fact and banking practice.

12 Q. Yes.

13 So of the three reasons for saying that the

14 agreement wasn’t intended to be binding, would you agree

15 that none of those reasons in isolation is sufficient to

16 lead to the conclusion that it’s not intended to be

17 binding?

18 A. Well, the memorandum title in isolation is not enough,

19 but the other points could be taken by themselves to

20 show a lack of agreement that was binding because of

21 failure to identify a lot of details and reference —

22 vague references like the holding group, so one would

23 have to look at all the facts, but I certainly agree on

24 the memorandum title, that that is not enough by itself.

25 Q. And as regards the other points, you say they could be

44 :1 sufficient by themselves, but —

2 A. Well, we are going to have to look — again, you don’t

3 look at them in isolation, you look at them as a whole.

4 Q. Yes, and they could be or they could not be, depending

5 on —

6 A. Well, ultimately it’s a question for the court, looking

7 at them as a whole, not for me to decide.

8 Q. Yes. It’s a point, isn’t it, on which different fact

9 finders could reach different conclusions, depending,

10 possibly, on a broader range of facts and circumstances

11 than we have been discussing?

12 A. Yes, these are just factors I believe would be

13 considered.

14 Q. Now, can we go on to the question of whether this is

15 a preliminary contract?

16 A. Yes.

17 Q. This is your main reason, really, for saying the

18 agreement had no legal force. You say it was

19 a preliminary contract and that had two consequences, as

20 I understand it: first, it was required to be in written

21 form, and so any oral element would not just be

22 unprovable, but actually invalid.

23 A. Invalid, yes.

24 Q. And, secondly, that as a preliminary contract it would

25 have had to comply with the other requirements of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

45 :1 Article 429, and it didn’t comply with those

2 requirements, so it would fail as a preliminary

3 contract.

4 A. Yes.

5 Q. Is that a fair summary?

6 A. Yes.

7 Q. Right. Could we look at Article 429, which is

8 {E2-E3/12/45}. Article 429.1 says:

9 «Under a preliminary contract, the parties have the

10 duty to conclude in the future a contract on the

11 transfer of property, doing work, or the rendering of

12 services (the basic contract) on the terms provided by

13 the preliminary contract.»

14 You say, at paragraph 172 on the same page, that

15 this contract was actually a contract to make four

16 contracts.

17 A. Yes.

18 Q. That’s to say the sales of the shares in

19 Western Terminal and Scandinavia, and the repurchase of

20 the shares in Western Terminal and Scandinavia. So in

21 total, four contracts, or actually four groups of

22 contracts, because the shares were split between

23 different companies?

24 A. Yes.

25 Q. Now, the Bank was not going to be a party to any of

46 :1 those further contracts, was it?

2 A. Yes, that’s true.

3 Q. You are aware of that. They were all going to be

4 contracts between Oslo Marine companies and the

5 purchaser companies; weren’t they?

6 A. Yes.

7 Q. Now, can we look, again, at Article 429. It says, under

8 Article 429.1:

9 «Under a preliminary contract, the parties have the

10 duty to conclude in the future a contract …»

11 Doesn’t it?

12 A. Yes.

13 Q. It doesn’t say: one party to the contract has a duty to

14 conclude a contract with somebody else, does it?

15 A. No, but if we read this contract, in order for it to be

16 a contract, the Bank has to be undertaking to have the

17 other people make a contract, and we need to know what

18 the contract is it’s undertaking to have people make.

19 Q. Well, that may be right, and we will come back to that.

20 A. Because if the Bank is not making any undertaking, then,

21 again, it’s just a declaration of intent that other

22 people do something.

23 Q. Right. But Article 429 is concerned with future

24 contracts between the same parties to the preliminary

25 contract, isn’t it?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

47 :1 A. Yes.

2 Q. And that’s why it says, for example in paragraph 6 on

3 the next page {E2-E3/12/46}:

4 «The obligations provided by the preliminary

5 contract shall be terminated if by the end of the time

6 period in which the parties must conclude the basic

7 contract it is not concluded or one of the parties does

8 not send the other party a proposal to conclude this

9 contract.»

10 So it is clearly talking about future contracts

11 between the same parties, isn’t it?

12 A. There are two ways you can look at it: one way is the

13 Bank has a promise in here that certain contractual

14 provisions will be made; the other is the general vision

15 of the Civil Code on analogy. If we are this strict in

16 requirements on a preliminary contract between parties,

17 one would be even more strict on a contract that

18 somebody else would make a contract.

19 Q. Well, with respect, Professor Maggs, I am not sure that

20 follows at all, does it? There is not really any

21 analogy between an agreement that two parties are going

22 to conclude another agreement in the future and

23 an agreement that one of the parties is going to

24 conclude a contract with somebody else?

25 A. Well, to be valid, a contract must have all the terms

48 :1 that are declared essential by the code, and 429 is

2 an application of that more general principle, and we

3 don’t know the essential terms of these contracts that

4 are promised to be made.

5 Q. Well, I will come back to the question of whether they

6 contain the essential terms, but it’s fair to say,

7 Article 429 on a natural reading doesn’t cover this

8 situation, does it?

9 A. Well, I think it covers the situation that the Bank is

10 going to undertake an obligation to have certain

11 contractual arrangements made, and we have to — it

12 covers it because it doesn’t say what the Bank’s

13 obligation is with respect to those contracts.

14 Q. When you say: it doesn’t say what the Bank’s obligation

15 is; what do you mean by that?

16 A. We don’t know what the content is of those contracts

17 that you seem to be assuming the Bank agreed to have

18 made.

19 Q. Well, I am not sure I am assuming that, but in any

20 event, we know that it is contemplated that they will

21 involve the transfer of the shares to the purchaser

22 companies, and that the purchaser companies will agree

23 to do the things that they have agreed to do in

24 paragraph 3.

25 A. But that doesn’t define all the essential terms of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

49 :1 the contract. We would have to know exactly what was

2 being transferred under what price, under what

3 conditions, and so forth.

4 Q. Well, perhaps we would, and we will come back to that.

5 But the machinery that is set out in Article 429

6 cannot literally apply, can it, where the further

7 contract is between, not the parties to the main

8 contract but one of the parties and somebody else?

9 A. Well, in that sense this is even further away from being

10 enforceable than a direct promise by the Bank.

11 Q. It’s not within Article 429, is it?

12 A. I think it’s within the general intent of 429 which we

13 can apply by analogy, and if we are seeing this as the

14 Bank agreeing to cause certain contractual arrangements

15 to be made, I think it is within 429, because we need to

16 know what those contractual arrangements are that the

17 Bank is promising to be made.

18 Q. Well, let’s go on to this question of essential terms.

19 If we look at your first report, paragraph 177, which is

20 already on the screen, you say that:

21 «Because … [Article 429.2] requires that a

22 preliminary contract must be in simple written form and

23 that failure to observe the form makes the contract

24 invalid, all the essential terms must be included in

25 a written contractual document.»

50 :1 So your point about the failure to agree essential

2 terms depends, does it, on the agreement being

3 classified as a preliminary contract?

4 A. Well, in every contract the essential terms must be

5 agreed.

6 Q. I understand that.

7 A. For a preliminary contract or an ordinary contract,

8 that’s my paragraph 176.

9 Q. Well, indeed, but if we read that in context, you say

10 Article 429.2 means that it is void. Then you set out

11 Article 432. Then you say in 177:

12 «Because … [Article 429.2] requires that … [the]

13 contract must be in simple written form … all the

14 essential terms must be included in a written

15 contractual document. The … written contractual

16 document … is the Memorandum. However, the Memorandum

17 fails to include all the essential terms.»

18 So I am asking you, is your point about the failure

19 to include essential terms made in the context of your

20 argument on Article 429 or is it a separate and

21 independent basis for saying that the agreement is

22 unenforceable?

23 A. Well, I think it is both.

24 Q. Right. Okay. So even if the agreement is not

25 a preliminary contract, Article 429 doesn’t apply,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

51 :1 nevertheless you would say it is ineffective because it

2 doesn’t include agreement on all the essential terms?

3 A. Yes, and I mention that in 178.

4 Q. Well, then you go on to develop your point, but

5 I genuinely wasn’t clear as to whether that was in

6 the context of Article 429 or a separate argument you

7 were making, but since you have clarified it is

8 a separate argument, I will ask you about essential

9 terms.

10 Let’s, first of all, look at what essential terms

11 are. You can see that in Article 432:

12 «The essential terms are those on the subject of

13 the contract, terms that are named in a statute or other

14 legal acts as essential or necessary … and also …

15 those terms with respect to which by declaration of one

16 of the parties an agreement must be reached.»

17 Then you say at 178 that:

18 «While under Russian law a contract for sale of

19 goods (and by analogy a contract for the sale of …

20 shares) may be made without agreement on the price,

21 since the law will supply ‘market price’ as a default

22 term, the language of the Memorandum indicates that

23 a contractual agreement will be reached on the price of

24 the ‘repo’ sale. Thus the sales terms of these

25 contracts are ‘terms with respect to which …

52 :1 an agreement must be reached’.»

2 Now, the first issue with this reasoning, I suggest,

3 is that where Article 432 refers to terms which, by

4 declaration of one of the parties agreement must be

5 reached, isn’t it right that that’s referring to

6 a situation where although a term is not identified

7 within the law as being a mandatory essential term, one

8 of the parties has expressly stipulated that there will

9 not be an agreement unless agreement is reached on that

10 term. It doesn’t say, and it doesn’t mean, does it,

11 that wherever a contract leaves something to be agreed

12 in the future it is void for failure to include an

13 essential term; that can’t be right, can it?

14 A. Well, where it leaves something to be agreed in

15 the future, it starts to look like an attempt to make

16 a preliminary contract, and that future agreement on

17 terms. There may be a future agreement on details such

18 as the parties will agree on time of delivery of

19 the goods, details of implementation, but here you have

20 a missing price term and we can’t apply the default rule

21 of the code because the parties have said they need to

22 agree on it, and so they haven’t covered an essential

23 term.

24 Q. Well, if the parties leave something trivial to be

25 agreed in the future and they don’t stipulate that they

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

53 :1 must reach an agreement on that trivial detail before

2 they have a contract at all, the fact that they have

3 left something trivial to be agreed doesn’t prevent the

4 agreement from being binding, does it? It doesn’t mean

5 that there is a failure to agree an essential term?

6 Because a trivial term is not an essential term, by

7 definition, is it?

8 A. Well, here a price term is an essential term. We can’t

9 supply it from the law because the parties have said

10 they are going to agree on it, so we are left with no

11 price.

12 Q. Well, why is it an essential term? You say in 178 that

13 they are terms with respect to which agreement must be

14 reached, but what I am putting to you is that the mere

15 fact that agreement has to be reached on it does not

16 make it an essential term.

17 A. Well, if you look at the material I have on Article 429

18 and the discussion of judicial practice saying if the

19 parties leave anything to be agreed it can’t be

20 a preliminary contract, they are really treating

21 a bilateral statement by the parties that something is

22 yet to be agreed as creating an essential term that

23 prevents the creation of a preliminary contract.

24 Q. Let’s assume it is not a preliminary contract, because

25 I think we agreed that this was an argument that you

54 :1 wanted to make, irrespective of whether it was

2 a preliminary contract or not?

3 A. But the preliminary contract depends on agreement on

4 essential terms, and the reason this original article

5 failed of its intent, I think, and had to be amended,

6 was that the courts took the position that unless you

7 had a document containing everything and ready for

8 signature, you had an essential term missing.

9 So that is a situation where 432 is incorporated

10 into the jurisprudence on 429, and it is

11 an interpretation of 432 that’s applied by the courts to

12 429.

13 Q. Can we forget about 429 and assume that this is not

14 a preliminary contract?

15 A. Well, we can assume it is not a preliminary contract but

16 the judicial practice on preliminary contracts gives us

17 guidance as to when an essential term is missing.

18 Q. Well, that’s what I don’t accept, Professor Maggs, I am

19 afraid. I just want to be very specific about this:

20 under Article 432 there are three categories of

21 essential term: there is the subject of a contract,

22 statutory essential terms, and terms which one of

23 the parties stipulates are essential; do you agree with

24 that?

25 A. There are three categories, but in applying the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

55 :1 definition of essential terms, the courts have said: you

2 have not specified the essential terms for the purposes

3 of 429 if you leave anything for the parties to agree

4 on, and that is an interpretation of 432 by the courts,

5 even though it is in cases involving 429.

6 Q. Right. But do we agree that on the actual wording of

7 432 there are those three categories of essential —

8 A. That’s the literal language of 432. I am talking about

9 the court interpretation.

10 Q. And do we agree that the mere fact that something is

11 left to be agreed in the future does not mean that that

12 is an essential term?

13 A. If it is the kind of term that is not listed in

14 the statute, it’s essential. If it is one which by

15 business custom are normally agreed in good faith as one

16 goes on, then it’s not an essential term.

17 Q. Now, the term that you focused on primarily is the term

18 about the price of the shares, which was left to be

19 agreed.

20 Now, if it was the case that the price was always

21 going to be a purely nominal price; in other words, it’s

22 not a real purchase, it’s a kind of security arrangement

23 where the shares are just transferred for no real

24 consideration, just for safekeeping —

25 A. Yes.

56 :1 Q. — then it wouldn’t then be an essential term, would it?

2 A. Well, if they had agreed it would be a nominal sum to be

3 denominated, no, but there are other things they agreed

4 on — did not agree on, such as what would be the

5 special companies.

6 Q. Sure, but that’s a different term, and I will come back

7 to that.

8 The identity of the special companies, are you

9 treating that as another term with respect to which

10 an agreement must be reached?

11 A. Well, Article 432 assumes we know who parties are to

12 a contract. Here we have a very basic term left out.

13 We don’t even know who the parties are.

14 Q. Well, it wasn’t something which anyone stipulated had to

15 be agreed in the sense of it being an essential term,

16 was it? It was just something that wasn’t agreed?

17 A. Well, terms that are named as a statute as essential or

18 necessary for contracts, one of those terms is: who are

19 the parties to the contract?

20 Q. Yes, but we are not talking about this contract; we are

21 talking about a different contract?

22 A. Well, a statute for any contract, an essential term is

23 who the parties are.

24 Q. And if it is clear on the evidence that the identity of

25 the specific companies was of no real consequence to

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

57 :1 anyone because the Bank would simply propose some

2 companies and Mr Arkhangelsky would transfer the shares

3 to them whoever they were, then it can hardly be said to

4 be essential, can it?

5 A. If it was clear that it didn’t matter at all, but from

6 the face of this all we know is there are some

7 companies.

8 MR MILNER: Thank you.

9 My Lord, if we are going to have a short break, this

10 would be a convenient moment.

11 (11.58 am)

12 (A short break)

13 (12.10 pm)

14 MR MILNER: Now, Professor Maggs, I would like you to assume

15 that the agreement is a binding agreement.

16 A. Yes.

17 Q. And let’s consider, on that basis, who were the parties

18 to the agreement.

19 A. Yes.

20 Q. There is no dispute that the Bank was one party, and the

21 other party is said to be Holding Group Oslo Marine,

22 which, as you point out, is not a legal entity so can’t

23 be a party. That’s at {E2-E3/12/44}. At paragraph 168

24 you make that point.

25 Then at paragraph 169 you say that leaves three

58 :1 options: Oslo Marine Group Ports, Mr Arkhangelsky and

2 Group Oslo Marine. Which of those three options is

3 correct raises a question of interpretation, doesn’t it?

4 Your interpretation is that essentially because the

5 agreement bears the seal of Group Oslo Marine, it’s

6 clearly Group Oslo Marine that is the party; is that

7 right?

8 A. Yes.

9 Q. And that is convenient, of course, for the Bank, because

10 Group Oslo Marine is the only one of the three options

11 which is not a party to these proceedings because it has

12 been liquidated or is about to be liquidated.

13 Can we consider whether that is actually correct

14 as a matter of interpretation. The rules on

15 interpretation are in Article 431 of the Civil Code,

16 aren’t they?

17 A. Mm hmm.

18 Q. We can see that at {E4/14/27}. Essentially it is a two

19 or three-stage process, depending on how one looks at

20 it:

21 «In interpreting the conditions of a contract, the

22 court shall take into consideration the literal meaning

23 of the words and expressions contained in it.»

24 Then some guidance on what the «literal meaning»

25 means:

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

59 :1 «The literal meaning … shall be established by

2 means of comparison with other conditions and with the

3 sense of the contract as a whole.

4 «If the rules contained in paragraph one … do not

5 make it possible to determine the content of the

6 contract, the real common will of the parties shall be

7 ascertained by taking into consideration the purpose of

8 the contract. In this case, all surrounding

9 circumstances shall be taken into consideration …»

10 Now, I think you accept that a seal is not necessary

11 for a party to enter into a contract?

12 A. Yes.

13 Q. And I think you also accept that Mr Arkhangelsky, as the

14 general director of OMG Ports had authority to bind that

15 company without any formality.

16 A. Yes.

17 Q. One of the main purposes of this agreement, if it was

18 an agreement, was to lay down terms for the transfer of

19 the shares in Western Terminal, wasn’t it? Are you

20 aware of that? We can see it from the face of

21 the memorandum.

22 A. Yes.

23 Q. Now, the shareholder in Western Terminal at this time

24 was OMG Ports, wasn’t it; are you aware of that? Again,

25 we can see that from …

60 :1 A. At one point I was aware of that, yes.

2 Q. So if anyone was going to undertake an obligation to

3 transfer the shares in Western Terminal, it would have

4 to be OMG Ports, wouldn’t it? If you nod it doesn’t get

5 on the transcript, so is that a yes?

6 A. Yes.

7 Q. So taking all of that into account, wouldn’t you accept

8 that a court could properly conclude that

9 Mr Arkhangelsky actually signed the agreement not only

10 on behalf of Group Oslo Marine but also on behalf of

11 OMG Ports?

12 A. That would seem to be contrary to the literal language,

13 and I have never seen a case where a Russian court found

14 where someone had signed with a seal that the contract

15 was really with somebody else.

16 Q. Well, you say the literal language, but the literal

17 language of the contract doesn’t actually make clear who

18 the party is, does it, because the language of

19 the contract is «Holding Group Oslo Marine». So when

20 you say the literal language, you mean the fact of

21 the seal?

22 A. I mean the literal wording of the seal.

23 Q. Yes, well, obviously the literal wording of the seal

24 refers to Group Oslo Marine, but if we’re interpreting

25 the contract as a whole, it doesn’t make any logical

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

61 :1 sense for Group Oslo Marine to agree to transfer shares

2 in a company that it doesn’t own, does it? It would

3 make much more logical sense for the party to be the

4 shareholder that actually owns those shares and is going

5 to transfer those shares?

6 A. Well, under Article 431, you don’t get to the second

7 sentence of looking at it as a whole unless there is

8 some ambiguity in the literal meaning, and I think there

9 is no ambiguity when there is a seal.

10 Q. Do you accept that what you are proposing as the literal

11 meaning makes less logical and commercial sense than the

12 interpretation that I am suggesting?

13 A. It may make less logical sense, but Russian courts are

14 highly formalistic and they are not going to put someone

15 in as a party when it is signed in the name of someone

16 else.

17 Q. Well, what I suggest to you is that there is a perfectly

18 acceptable and orthodox way in which a Russian court

19 could reach what is logically the right conclusion, as

20 I think we agree, which is to say that the term of

21 the contracts, properly understood, is the term that

22 identifies the party as Holding Group Oslo Marine. That

23 is ambiguous and it is therefore necessary to look at

24 the circumstances to see what entity or entities that

25 refers to, and once one embarks on that exercise, then

62 :1 the answer is obvious: that it is both Group Oslo Marine

2 and Oslo Marine Group Ports, even though, for whatever

3 reason, only one seal has been used.

4 A. Well, the language of the seal is unambiguous.

5 Q. Is the language of a seal a condition of the contract?

6 I would suggest it is not.

7 A. I think a Russian court would find that where someone

8 signs with a seal, that indicates that the only possible

9 party under that signature is the one that the seal is

10 mentioning.

11 Q. Is the language that appears on the seal a condition of

12 the contract?

13 A. It is an identification, an unambiguous identification

14 of the party.

15 MR JUSTICE HILDYARD: One party? When you say «the party»,

16 do you mean it is an identification of one party? Does

17 it exclude another?

18 A. Identification of the party for whom the signer is

19 signing. I’m not sure it is a condition, because

20 conditions are what the parties have to do under the

21 contract.

22 MR MILNER: If it’s not a condition then the court is not

23 restricted to the literal meaning, is it? It is free to

24 undertake a wider enquiry?

25 A. Again, I’ve never seen a case where someone signed with

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

63 :1 a corporate seal and any other person was said to be

2 bound by that signature.

3 Q. There are many unusual features of this case,

4 Professor Maggs.

5 A. Yes.

6 Q. Now, I want to ask you about Article 179, which is

7 largely common ground, and of course, we touched on it

8 before, but you agreed that Article 179 enables a party

9 to set aside an agreement on the ground of duress.

10 A. Yes.

11 Q. And also on the ground of fraud.

12 A. Yes.

13 Q. And also what is translated as an «oppressive

14 transaction» or an «unconscionable transaction»; is that

15 right?

16 A. Yes.

17 Q. Just on the last of those points, whether or not the

18 transaction is oppressive or unconscionable is

19 a question of fact, isn’t it?

20 A. It’s a question of fact and the Civil Code allows you to

21 use commercial custom.

22 Q. Although since you have ventured some comments on the

23 facts in paragraph 208, let me ask you briefly about the

24 fact. You give as an example of an oppressive or

25 unconscionable transaction, one where a seller charges

64 :1 an excessively high price, now what I want to ask you is

2 this: if the main terms of the contract are reasonable,

3 so the price is acceptable and can’t be said to be

4 unfairly high, but the contract contains a term which

5 provides that the consequences of breach in

6 the particular case are extremely serious, so, for

7 example, there might be a penalty to pay of

8 1,000 per cent of the price, or something, if payment is

9 not made on time, that would be capable in principle of

10 being oppressive, wouldn’t it?

11 A. Well, there is a provision in the Civil Code that the

12 court may reduce excessive penalties, so that particular

13 example maybe isn’t the best example, because that would

14 be fixed by a provision of the Code allowing excessive

15 penalties to be reduced.

16 Q. All right, but do you accept the principle that if the

17 contract provides for a very severe sanction in

18 the event of breach, it may not be a financial penalty,

19 but something that’s extremely unattractive, that could

20 be capable —

21 A. I accept the principle that a single term may render the

22 whole contract unconscionable.

23 Q. Good. So where you say that in relation to

24 the December 2008 agreement it’s — you say in effect it

25 doesn’t look too bad on the face of things because it

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

65 :1 enabled the defendants to get an extension for their

2 loans without paying any additional interest. That’s

3 basically what you say at paragraph 208.

4 A. Yes.

5 Q. If, however, the effect of the agreement was that the

6 companies would be completely forfeited in the event of

7 any breach of the loan arrangements, even a trivial

8 breach, that would be an extremely serious consequence

9 and that could make the agreement one-sided, couldn’t

10 it?

11 A. Well, that might make a term invalid, but, again, that’s

12 a question of applying business custom and the judgment

13 of the court.

14 Q. Would that just make a term invalid or would it actually

15 make the agreement invalid, because Article 179 —

16 A. Well, the term of —

17 Q. Sorry, just let me finish the question.

18 A. Okay.

19 Q. Because Article 179 talks about an unconscionable

20 agreement, so it’s not an analysis that one applies to

21 individual terms; you have to look at the agreement as

22 a whole.

23 A. Well, I think we might apply 180 on bringing down

24 an agreement with the invalid term, but, again, I think

25 a single term could in many cases bring down a whole

66 :1 agreement under 179.

2 Q. Well, as I understand it, Article 180 deals with

3 a situation where you have an individual term or a part

4 of an agreement which is not valid, for whatever reason,

5 but if the agreement as a whole is unconscionable

6 because it is so one-sided and unfair to one party, then

7 the whole agreement would be invalid.

8 A. Then the whole agreement could be declared void at the

9 request of the party. It could be invalidated at the

10 request of the party. It would not make the agreement

11 void, it would make it avoidable by court action by the

12 party.

13 Q. Yes. Now I want to move on to the topic of competition

14 between claims. You say at paragraph 267 {E2-E3/12/64}

15 of your first report that competition between claims is

16 a doctrine that applies if the claimant has made

17 a contract with the defendant.

18 A. Yes.

19 Q. And in that case, then, any claim against the defendant

20 connected with the contract must be brought in

21 proceedings to enforce or avoid the contract.

22 A. Yes.

23 Q. And not as a separate claim in tort; is that right?

24 A. Mm hmm.

25 Q. Now, I don’t think there’s actually very much between

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

67 :1 yourself and Dr Gladyshev on this point, but just so

2 I can understand exactly what your position is, if you

3 are right that there is no contract in this case, no

4 binding contract, then the supposed rule against

5 competition between claims doesn’t bar a tort claim,

6 does it?

7 A. If the parties never reached a contractual agreement,

8 the rule doesn’t apply.

9 However, if they have reached an agreement which is

10 either invalid or avoidable, the rule does apply, and

11 I think that is perhaps the difference between us, and

12 he seems to say even if they have reached a valid

13 agreement it applies, but I think if there is any

14 agreement dealt with in the section of the code on

15 avoiding or invalidating transactions, then you have to

16 go through those sections of the code.

17 Q. And if there was a contract but the contract was

18 between, say, Group Oslo Marine and the Bank, as you say

19 it would have been, then the supposed rule against

20 competition between claims would not bar a tort claim by

21 Mr Arkhangelsky or OMG Ports, would it?

22 A. Okay, a tort claim is barred as between parties to

23 the contract, whoever the parties are.

24 Q. Yes. And nobody suggests there was any contract with

25 Mr Savelyev, so insofar as he is a defendant, the rule

68 :1 against competition between claims doesn’t apply to him,

2 does it?

3 A. Well, if he was acting on behalf of the company, it’s

4 treated as an action of the company, and —

5 Q. I think that’s a separate point, though.

6 A. Under 1068 it is not treated as his action.

7 Q. No, but I think that’s a separate point.

8 A. So in that sense, it is an act of a party to

9 the contract.

10 Q. But in that case, I think you are raising a separate

11 point, that there be an additional defence based on

12 Article 1068, it’s not as a result of the principle of

13 competition between claims, as such.

14 A. Any action by an officer of the Bank furthering the

15 Bank’s interest is an action of the Bank as far as

16 contractual liability is concerned.

17 Q. I accept that for present purposes, but I don’t think

18 you are disputing that if there was a claim against

19 Mr Savelyev, for whatever reason, then the rule against

20 competition between claims wouldn’t bar it?

21 A. It wouldn’t bar it if there were a claim.

22 Q. I know you don’t think there is a claim, I understand

23 that.

24 Now, you also, I think — but correct me if this is

25 wrong — you don’t suggest that the rule applies to bar

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

69 :1 claims which are based on conduct independent of

2 the contracts, do you? So, for example, if the contract

3 was made in December 2008 and the Bank engaged in

4 something fraudulent in 2009 or 2012, say, which was

5 outside of the terms of the contract, there wouldn’t be

6 any bar to a tort claim in respect of that fraudulent

7 conduct, would there?

8 A. If it was unrelated to the subject matter of

9 the contract.

10 Q. Yes.

11 A. If you agree to buy my car and then you burn down my

12 house, there is a tort.

13 Q. Yes. Now, the issue, then, is quite a narrow one, isn’t

14 it, which is that if there was a contract between either

15 Mr Arkhangelsky or OMG Ports on the one hand and the

16 Bank on the other hand, is it open to them to bring

17 claims in tort at the same time as a claim for breach of

18 contract or a claim to invalidate the contract based on

19 the same wrongdoing?

20 A. Well, the court has to decide whether the claims are

21 related or unrelated to the contract. That’s somewhat

22 of a factual issue. There are some Russian pleading

23 rules, but I think those are probably irrelevant in

24 an English court, to what extent you can plead in

25 the alternative, but basically, if the claim concerns

70 :1 the way the contract was negotiated or the contract

2 being oppressive, then it has to be brought not under

3 1064, but under the sections of the Code dealing with

4 void and avoidable agreements.

5 Q. Yes. Having identified the ambit of the principle,

6 which as far as this case is concerned seems to be very

7 narrow, can we just identify whether it actually exists

8 at all? I mean, you say the principle exists as

9 an example of a broader principle of lex specialis, in

10 other words, that a more specific law takes priority

11 over a more general law; is that right?

12 A. Yes.

13 Q. You refer to a number of authorities that illustrate

14 that general principle.

15 A. Yes.

16 Q. So is it fair to say that your logic really depends on

17 showing that the relationship between tort and contract

18 is one of general versus specific?

19 A. Yes.

20 Q. If contract law is not, in fact, a specific subset of

21 tort law, then the lex specialis principle doesn’t

22 apply, does it?

23 A. Well, it is different.

24 Q. Sorry, I didn’t hear that.

25 A. Contract law is based on a whole separate set of rules

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

71 :1 from tort law in Russia.

2 Q. It is based on them?

3 A. Yes.

4 Q. Right. So is it fair to say that contract and tort law

5 are independent or separate branches of a general law of

6 obligations?

7 A. The general law of obligations includes torts, contracts

8 and restitution, or unjust enrichment.

9 Q. And they are each separate areas of the law of

10 obligations, aren’t they?

11 A. Yes.

12 Q. One is not a specific subset of the other?

13 A. Yes.

14 Q. It is not obvious, therefore, why the lex specialis rule

15 should apply, is it, because contract is not a special

16 case of tort?

17 A. Well, there are three quite separate branches of the law

18 of obligations, and it is because they are separate

19 branches of the law of obligations that the rule

20 applies.

21 Q. Right. Can we go to {E4/14.1/245}. This is a case

22 that’s referred to by Dr Gladyshev in his first report.

23 I don’t know if you have read it. But if I just

24 summarise the facts, it is a claim brought by

25 a construction company which had entered into a contract

72 :1 with a security firm and the security firm had allowed

2 some property belonging to the construction company,

3 I think it was a trailer, to burn down, so a very simple

4 set of facts.

5 The construction company brought a claim for damages

6 relying on Articles 15 and 1064, and we can see that in

7 the fourth substantive paragraph. It says the lower

8 court — well, actually the findings of the lower court

9 don’t really matter, but it refers to the claim having

10 been brought on the basis of Articles 15 and 1064, and

11 the lower court had granted the claim, as we see in

12 the penultimate paragraph of that page. The lower court

13 granted the claim:

14 » … in reliance on Articles 15, 393, 401, 1064,

15 and 1068.»

16 Sorry, the bit I meant to refer to previously was

17 the last sentence of the preceding paragraph which says:

18 «The Claimant received no recovery of damages and

19 filed this claim with the Arbitrazh court seeking the

20 recovery of losses on the basis of Articles 15 and

21 1064… »

22 Then the court granted the claim on the basis of

23 those articles and some others.

24 So this was a case, wasn’t it, where the …

25 A. Just a moment, let me get the Russian text. (Pause).

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

73 :1 I will look at the Russian text for a moment.

2 Q. Do you have the Russian text now?

3 A. Yes.

4 Q. All right. (Pause).

5 A. Okay, go ahead.

6 Q. So that’s the lower court and the defendant sought

7 permission to appeal to the Supreme Arbitrazh Court, and

8 this is a judgment refusing permission to appeal.

9 On the top of the next page, 246 in the English

10 {E4/14.1/246}, we can see the reasoning of the Supreme

11 Arbitrazh Court. It says:

12 «Having examined the Applicant’s case and the

13 available materials, the court finds no grounds … for

14 discretionary review of the judicial acts…»

15 So in other words it is refusing permission:

16 «The Applicant’s allegations that the courts

17 wrongfully applied the principles of substantive law …

18 are unfounded …

19 «The courts dealt with the issue of recovery of

20 losses on various grounds: on the basis of a tort, as

21 sought by the claimant, and as a result of a breach of

22 the agreement.

23 «By recognising that the Defendant improperly

24 performed its obligations under the agreement, the court

25 granted the claim for recovery of losses on that

74 :1 ground.»

2 So it is a case, isn’t it, where the court allowed

3 a claim that was brought on the basis of Article 1064

4 even though there was a contract between the parties?

5 A. I don’t think that’s what it said:

6 «The court considered the question of awarding

7 damages on various grounds from causing harm [that would

8 be tort] as was requested by the plaintiff, and as

9 a result of violation of the terms of the contract.

10 Having found the performance by the defendant of

11 the obligations of the contract to be improper, the

12 court satisfied the claim on damages on this ground.»

13 So I think this is a case where someone essentially

14 pleaded tort in contract in the alternative, or

15 successively, and the court examined both but it awarded

16 it on the basis of contract.

17 Q. Well, it appears that it awarded it on the basis of 1064

18 as well, because that’s what’s listed on the —

19 A. Well, that is not what the reviewing court has said. It

20 says that it ordered it on the basis of contract.

21 Q. All right. Well, in any case, it doesn’t appear to have

22 had any fundamental difficulty with the fact that the

23 case was brought on the basis of Article 1064?

24 A. Well, the damages are going to be the same. I think the

25 plaintiff brought it on the wrong grounds, but the court

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

75 :1 kindly allowed him to recover on contractual grounds

2 where the contract specifically required the defendant

3 to comply with fire safety measures.

4 Q. Now, can we look at a decision that you rely on, which

5 is at {E4/13/137}: this is an information letter of

6 the Supreme Arbitrazh Court from 2008. Do you recall

7 this information memorandum?

8 A. Yes, I recall this, yes.

9 Q. And it discusses a case where the parties had entered

10 into an invalid contract; is that right? You can see in

11 the first paragraph it says:

12 «If a party which had transferred its property for

13 the purposes of an invalid transaction makes a claim for

14 its recovery from illegal possession of the other party

15 to the transaction under Article 301 … the court shall

16 deny such claim.»

17 Do you see that?

18 A. Yes.

19 Q. Now, Article 301 is the provision on vindication; is

20 that right?

21 A. Yes.

22 Q. That provides for recovery of property from someone

23 else’s possession; is that right?

24 A. That’s right.

25 Q. Where you have an invalid contract, Article 167 creates

76 :1 a special regime, doesn’t it, that provides for mutual

2 restitution of what each party has received under the

3 contract?

4 A. Yes.

5 Q. And in this case, rather than the mutual restitution

6 envisaged by Article 167, the claimant brought

7 a vindication claim just to recover his own property

8 from the defendant; is that right, under Article 301?

9 Unsurprisingly, the court said: you can’t bring

10 a vindication claim in those circumstances because it

11 would defeat the rule in Article 167 which provides for

12 mutual restitution; is that accurate?

13 A. Yes, but I think what this is cited for is the next to

14 last paragraph on the next page after the one on the

15 screen, where it says:

16 «Since the law provides for provides for special

17 consequences of invalidity of transactions, the rules on

18 recovery of property from illegal possession … do not

19 apply to the relations between the parties.»

20 Q. Precisely, yes, because there is a special regime for

21 returning properties under invalid transactions you

22 can’t then resort to the general provisions on

23 recovering property in someone else’s possession because

24 it has been transferred under a contract and it is the

25 contractual regime that operates.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

77 :1 A. Yes.

2 Q. Now, in contrast to that scenario, the remedial

3 consequences of a contractual claim and a tort claim, in

4 many cases, at least, will be the same, won’t they?

5 A. Often — the real consequences are very often the same,

6 however, the statute of limitation is often very

7 different and the burden of proof may be different.

8 Q. Well, by bringing a tort claim, therefore, you are not

9 necessarily getting around any special contractual

10 rules, are you?

11 A. Well, you are getting around the shorter — typically

12 shorter period of limitation of the contract claim.

13 Q. Yes.

14 A. If you are allowed to bring the tort claim, it would

15 make those contract claim shorter limitation periods

16 a nullity.

17 Q. I can see that, and it may be, although we haven’t seen

18 any decisions on it, it may be a court in those

19 circumstances would say: you are limited to

20 the contractual claim. You can’t take advantage of

21 the longer limitation period that would apply in a tort

22 claim. I don’t know, because we don’t have any

23 decisions on it.

24 What I want to suggest to you is, having looked at

25 these examples, insofar as there is a rule against

78 :1 competition between claims the true principle is not

2 that you can’t bring a tort claim if you have

3 a contract. The true principle is that you can’t

4 subvert the terms of the contract or, perhaps, subvert

5 the law on contracts by bringing a tort claim. So you

6 can’t, in other words, bring a tort claim and thereby

7 avoid all of the incidents of the contract that you have

8 entered into, but if you are not trying to do that,

9 there is no reason in principle why you can’t bring

10 a tort claim as well as a contract claim?

11 A. Well, I disagree. I think the cases are clear that

12 where there is a contract, you must go under the

13 contract rules, and I haven’t seen any case to

14 the contrary.

15 Q. You also rely in support of your opinion on competition

16 between claims on Article 1095 of the Civil Code, and

17 that’s at {E2-E3/12/65}. Can we have the next page as

18 well? {E2-E3/12/66}. Is it possible to have both side

19 by side, because it runs over?

20 A. Now, this makes an exception to the rule against

21 competition of claims in favour of consumers.

22 Q. Yes. Well, that’s what you say. Let’s just see what it

23 says. It says:

24 «Harm caused to the life, health, or property of

25 a citizen or to the property of a legal person as the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

79 :1 result of design, formula, or other defects in goods …

2 shall be subject to compensation by the seller or

3 manufacturer of the goods … regardless of their fault

4 and regardless of whether or not the victim was in

5 contractual relations with them.»

6 You say that this rule was necessary because

7 otherwise the usual rule that you could only bring

8 contractual claims would apply?

9 A. Well, it wasn’t necessary to make it. It was

10 necessary — if you wanted to allow a tort claim it was

11 necessary to put a special article in the Code.

12 Q. I have to say, I find that difficult to understand and

13 I will explain why: the effect of this rule is to create

14 a rule of strict liability for defective products and

15 services, isn’t it?

16 A. Yes.

17 Q. That’s why it says that compensation is payable

18 regardless of fault.

19 A. Yes.

20 Q. So if it wasn’t for this article, a victim who had

21 a contract with the defendant would have to rely on the

22 terms of the contract, and a victim who didn’t have

23 a contract would have to bring a claim in tort which

24 would involve proving fault, among other things?

25 A. Yes.

80 :1 Q. This article, therefore, enables both victims, victims

2 with contracts and victims without contracts, to bring

3 a claim regardless of what any contract might say and

4 regardless of whether the defendant is at fault. That’s

5 its effect, isn’t it?

6 A. Well, it allows — even though the victim had a contract

7 which would normally mean that the goods must satisfy

8 the specifications in the contract, the victim could

9 nevertheless bring a tort claim stating that the goods

10 were defective.

11 Q. Yes, but it doesn’t say anything about allowing victims

12 who have contracts with the defendant to bring tort

13 claims, does it?

14 A. That is how scholars have interpreted it.

15 Q. If you are right, and there is no competition between

16 claims allowed, then victims who have contracts with the

17 manufacturer can either bring contractual claims or they

18 can bring the special strict liability claim under

19 Article 1095.

20 A. Yes.

21 Q. And if I am right and there is no competition between

22 claims, then those victims can also bring a tort claim,

23 provided, of course, it is not inconsistent with the

24 contract?

25 A. Yes, but then they wouldn’t have needed this statute.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

81 :1 They wouldn’t have needed 1095 if you are right because

2 it wouldn’t have changed the law.

3 Q. I disagree, I am afraid, Professor Maggs. It changes

4 the law for people with contracts because they are not

5 limited by any terms in their contracts. If there is an

6 exclusion clause in the contract, for example, it

7 doesn’t apply because they can just bring a claim

8 directly, and it changes the law for people without

9 contracts because they don’t have to prove fault. So it

10 performs a very useful and obvious function which we

11 have in many jurisdictions to protect consumers but

12 without really saying anything about the normal position

13 as regards competition between claims.

14 A. It certainly changes the law for people without

15 contracts, but the key thing is no longer are people

16 with contracts limited to contractual remedies under

17 this provision.

18 Q. And it doesn’t say — no, you are right, they are not,

19 but the additional remedy that’s opened up is not a tort

20 remedy: it is a sui generis strict liability statutory

21 claim, isn’t it?

22 A. Well, tort claims include, if we look back at 1064, both

23 those based on fault and liability without fault, and

24 this is one of the articles of the tort section of

25 the Code that imposes liability without fault. There

82 :1 are other sections also, for instance, on ultra

2 hazardous activity.

3 Q. Now, I want to move on to a different topic, reflective

4 loss. So that we are clear about terminology, when

5 I refer to reflective loss, I mean loss suffered by

6 a shareholder —

7 A. Yes.

8 Q. — as a result of a diminution in value or a loss of

9 value in his shareholding; okay?

10 The main relevance of that in this case, so that you

11 can orient yourself, is that the immediate shareholder

12 of Scandinavia Insurance, Group Oslo Marine, which we’ve

13 discussed, is not a party to the claim.

14 A. Yes.

15 Q. But Mr Arkhangelsky, who is the ultimate owner, is

16 a party to the claim, so the main relevance of this

17 question is whether it’s open to a shareholder in

18 a company that’s not a party to the claim to recover the

19 lost value of that company, in effect. And you say not.

20 A. No.

21 Q. But it’s fair to say, isn’t it, you haven’t identified

22 any cases where a Russian court has explicitly said that

23 reflective loss in this sense is not recoverable?

24 A. Well, you would think there would be a lot of cases

25 where shareholders had recovered for reflective loss,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

83 :1 there would be a large number of them. But we don’t see

2 those cases.

3 Q. Maybe they would, maybe they wouldn’t, but you haven’t

4 identified a case where a court has positively said that

5 there is a rule prohibiting recovery for reflective

6 loss.

7 A. Well, some types of claims are so obviously bad that

8 they are not brought, and I think this is one of them.

9 Q. So the answer is no.

10 A. You don’t see widespread cases. If shareholders really

11 could recover, I think you would see a lot of cases,

12 just as if you could get around the shorter statute of

13 limitations on contracts you would see a lot of people

14 bringing tort cases.

15 Q. I think the answer, therefore, is no, and you have

16 therefore approached the issue more at the level of

17 principle; is that right?

18 A. Yes. But …

19 Q. And you identified various reasons why you say

20 reflective loss claims shouldn’t be allowed at the level

21 of principle?

22 A. Yes.

23 Q. Tell me if I am summarising these correctly: first, it

24 could lead to a huge proliferation of claims if any

25 instance of wrongdoing against a company could lead to

84 :1 a claim by thousands of shareholders, that would

2 obviously be undesirable. That’s paragraph 292.

3 Secondly, you say there’s a problem with causation;

4 that reflective loss in principle is too remote to be

5 deemed to be caused by the defendant’s wrongdoing. And

6 you also make the point, paragraph 313, that if the

7 company is insolvent, then to allow a reflective loss

8 claim could prejudice the company’s creditors?

9 A. Yes.

10 Q. Those are the main reasons you give, I think; do you

11 agree with that?

12 A. Yes. And the law on insolvency has a special rule

13 allowing creditors who are unsatisfied at the end of

14 bankruptcy to sue, and that special rule does not allow

15 shareholders to sue, it only allows creditors to sue

16 someone who has committed a tort against the company.

17 Q. Yes. Now, again, I need to make clear that the issue

18 between you and Dr Gladyshev is actually a narrow one

19 because he doesn’t suggest that reflective loss claims

20 are allowed as a matter of routine, or even very often

21 at all, but the issue is really where whether there are

22 any circumstances at all where a reflective loss claim

23 can be brought; do you follow?

24 So you say, as I said, there are simply no

25 circumstances where it is recoverable, and I just wanted

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

85 :1 to find out whether that is really the case.

2 A. I am saying there are no claims where a shareholder of

3 a company personally recovers for reflective loss.

4 Q. Right. Well, you have said there are no cases where it

5 has happened, but I think it’s —

6 A. I think in my statement I said there are no claims where

7 a shareholder recovers for reflective loss. He quite

8 properly cites the Doroga case where the shareholder

9 brought a derivative suit for mismanagement by a company

10 manager on behalf of the company, and the company

11 recovered for the mismanagement of the subsidiary.

12 Q. Yes. But is it your position that there are absolutely

13 no circumstances where a shareholder could properly

14 recover reflective loss?

15 A. Well, my position is that, other than that case, which

16 is not a tort case, but was a failure of a manager to

17 exercise his responsibilities to subsidiaries, that

18 marked a change in Russian law, that there’s no general

19 rule that you can recover for reflective loss.

20 Q. Is it your position that it is inconceivable that

21 a shareholder could ever recover reflective loss?

22 A. Well, I think Professor Gladyshev is a wonderful lawyer

23 and I think if there were such cases he would have found

24 them.

25 Q. Well, I am drawing a distinction between what the case

86 :1 law to date shows, and I think we all agree there are no

2 cases where the court has said: you absolutely can’t

3 recover reflective loss. Your position, at least, is

4 that there are no cases where the court has allowed

5 recovery for reflective loss?

6 A. Well, except this special situation in the Doroga case.

7 Q. Right. But of course the cases that have occurred to

8 date don’t necessarily cover all the circumstances that

9 could arise in theory, or in the future. So at the

10 level of principle and analysis rather than experience,

11 is it your position that as a matter of law, reflective

12 loss is not recoverable full stop.

13 A. My principle is in a tort suit where someone commits

14 a tort against a company, an ordinary shareholder of

15 a company has no cause of action. The company has

16 a very valid cause of action, and if the company fails

17 to assert its cause of action, the shareholder could

18 bring a shareholder’s derivative suit for the benefit of

19 the company.

20 Q. What about a situation where the company doesn’t have

21 a cause of action? For example, imagine that I am the

22 100 per cent owner of a company. I buy some equipment

23 from a manufacturer for my company to use. The

24 equipment is defective, the company suffers badly, and

25 eventually has to stop trading.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

87 :1 Now, the company may not have a claim. I certainly

2 have a claim under my contract, but the company may not

3 have a claim, particularly if the seller never knew

4 anything about the company and had no idea its property

5 was going to be used for this company.

6 If the company doesn’t have a claim but I do have

7 a claim, it would be wrong, wouldn’t it, for me not to

8 be able to recover the value of the company?

9 A. It’s an interesting hypothetical, but I haven’t seen

10 this done in practice.

11 Q. Well, what do you think? Do you think there would be

12 a claim for reflective loss in that situation?

13 A. I haven’t seen it done. Of course, the proper way would

14 have been for the shareholder to contribute to the

15 capital of the company and have it buy the machinery,

16 then there would have been no question about the …

17 Q. I mean, there wouldn’t be any risk of proliferation of

18 claims because I am the 100 per cent owner.

19 A. Well if it is a 100 per cent shareholder there would be

20 no risk. There is no risk of — you know, risk of

21 proliferation of claims by shareholders, derivative

22 suits is limited because you have to have a certain

23 minimum shareholding to bring one.

24 Q. There wouldn’t be any risk of prejudice to creditors

25 because the company doesn’t have a claim to bring, and

88 :1 in a simple case, at least, there wouldn’t be any

2 problems with causation either, would there? So none of

3 your principal objections really hold water in that

4 admittedly simplified analysis?

5 A. None of the principles would apply, but this is a — if

6 it was a foreseeable result of the bad machinery, the

7 shareholder may have a breach of contract because he is

8 losing profits under Article 15. He may have a breach

9 of contract suit, which is not a tort suit.

10 Q. They are not his profits, are they, they are the

11 company’s profits, so that would be reflected, wouldn’t

12 it?

13 A. Well, in this case we are dealing with a contract suit

14 by the shareholder, not with a tort suit, which is quite

15 different. We have to find out what was promised to

16 the shareholder, what the person who promised it

17 reasonably expected would be the use of the machinery,

18 and I think you have quite a different case, which is

19 not really relevant to a general tort claim, because we

20 are dealing with a specific contract claim.

21 Q. It’s not really a question of the cause of action

22 though, is it? The question is what is the nature of

23 the loss? Is it an actual loss that’s personal to

24 the shareholder or is it reflective of a loss that’s

25 been suffered by the company? Any loss on my example,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

89 :1 would be suffered by the company, whether it is lost

2 profit or lost value, and so it would be a reflective

3 loss claim. I agree with you, certainly I would have

4 a cause of action under my contract, but the question is

5 whether there is any loss I can recover?

6 A. That goes to the court deciding what the losses would be

7 under the contract, and that would be a case where the

8 other party to the contract had made certain promises,

9 and if it promised it to the shareholder that it would

10 be usable in the company, then maybe the shareholder

11 isn’t getting what he bargained for.

12 MR MILNER: My Lord, I probably have about 10 more minutes

13 on this topic so it might be convenient to stop now.

14 MR JUSTICE HILDYARD: Yes, thank you. 2.00 pm.

15 (1.00 pm)

16 (The Luncheon Adjournment)

17 (2.00 pm)

18 MR JUSTICE HILDYARD: Yes, good afternoon.

19 MR MILNER: Professor Maggs, before the adjournment I put to

20 you one example of a situation where it would make sense

21 to allow a claim to be brought for reflective loss,

22 which was where the company itself doesn’t have a claim

23 against the wrongdoer.

24 Now, I want to suggest another situation where that

25 might be the case, a little closer to the facts of our

90 :1 case, namely where the company does have a claim against

2 the wrongdoer in principle but it is unable to bring the

3 claim because of the very wrongdoing which the claimant

4 is complaining about, so it either has no funds to

5 pursue a claim or it is being liquidated and is the

6 control of the defendant, who obviously is not going to

7 cause a claim to be brought against itself.

8 There is, in that situation, no risk of duplicative

9 claims or of prejudice to creditors, is there, because

10 the company is not going to bring a claim. So there is

11 no principled objection in that situation, is there, to

12 the shareholder being allowed to bring the claim?

13 A. Well, if the company goes bankrupt, then the bankruptcy

14 administrator could bring the claim.

15 Q. The bankruptcy administrator is effectively answerable

16 to the majority creditor, isn’t he?

17 A. Well, there is a whole series of priority, but his

18 creditors cannot give him instructions. There is

19 a creditors’ committee and it has a number of rights it

20 can complain if he acts wrongly, but his duty is to

21 maximise the assets of the debtor.

22 Q. The bankruptcy administrator is unlikely, in practice,

23 to bring a claim against the largest creditor which

24 controls the creditors’ committee, isn’t he?

25 A. Well, I’m not sure that is true, because the bankruptcy

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

91 :1 administrator is personally liable if anyone is injured

2 by his failure to bring a claim, and he could be sued on

3 that ground.

4 Q. It is the creditors’ committee, isn’t it, that controls

5 which claims the bankruptcy administrator brings and

6 which claims he doesn’t bring?

7 A. That’s not true because in bankruptcy there are always

8 other creditors, such as unpaid employees and so forth.

9 It cannot direct the bankruptcy administrator by votes.

10 It can recommend things, it can appeal to the court

11 supervising the bankruptcy, but only the bankruptcy

12 administrator is required by the bankruptcy law to

13 maximise the assets of the bankrupt company.

14 Q. What if the company has already been liquidated so it

15 can’t bring a claim?

16 A. Well, I believe a shareholder or other interested party

17 could have complained to the court about the inaction of

18 a bankruptcy administrator. I have seen cases where

19 interested parties have asked the court to remove

20 a bankruptcy administrator.

21 Q. There could be circumstances, couldn’t there, where

22 a company had a claim in principle but it was in

23 practical terms impossible for it to bring it, and

24 impossible for the claimant to cause the company to

25 bring it.

92 :1 A. There might be such situations.

2 Q. And in that situation it would be very unfair, wouldn’t

3 it, if nobody had any remedy for the loss which the

4 company, and through the company its shareholders, had

5 suffered; it would be a raider’s charter, wouldn’t it?

6 A. That would be a very unfortunate situation.

7 Q. And it would be contrary to the general principle of

8 Russian law that harm should be compensated?

9 A. Yes.

10 Q. So it is possible, isn’t it, that if you had that

11 factual scenario that a Russian court would allow

12 a shareholder to recover damages?

13 A. Well, that was the scenario in the Doroga case and

14 assets, because the director of a company obviously

15 should have sued himself for looting the subsidiary, and

16 he obviously wasn’t going to, so the Russian courts

17 allowed a shareholder in that case to sue the director

18 for looting the subsidiary.

19 Q. Yes, now can I put to you two further points that

20 Dr Gladyshev makes on the question of reflective loss.

21 Can you go to {E4/14.1/288}.

22 This is an article by Professor Yarkov. I don’t

23 know if you are familiar with Professor Yarkov; are you

24 familiar with him?

25 A. Yes, he is a very well known expert on civil procedure.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

93 :1 One of the leading Russian experts on civil procedure.

2 Q. Right. Well he is discussing here the question of

3 whether shareholders of a subsidiary company can sue

4 a parent company to recover reflective loss arising from

5 wrongdoing done by the parent to the subsidiary; do you

6 follow?

7 A. Yes.

8 Q. And as you point out in your report, there is actually

9 ordinarily a specific statutory provision that allows

10 those claims to be brought, isn’t there? I think it is

11 Article 105?

12 A. It allows creditors to bring claims, if they are

13 unsatisfied in —

14 Q. It allows creditors to bring claims?

15 A. Yes.

16 Q. So not shareholders as such?

17 A. There is no such provision for shareholders.

18 Q. Right, thank you for clarifying that. That’s the

19 question Professor Yarkov is considering, whether

20 a shareholder can bring a claim, and he concludes that

21 it can, and if you read the first paragraph he says

22 that:

23 «The legal (non-published) practice raised

24 a question on whether it is possible that shareholders

25 of a subsidiary make a claim against the parent after

94 :1 that subsidiary is liquidated on the basis that the

2 reason for the bankruptcy of the subsidiary is the

3 conduct of its parent. In such a case, after the

4 subsidiary is liquidated, its shareholders accordingly

5 lose such legal status (they are no longer the

6 shareholders) because the subsidiary has ceased to exist

7 as a subject of civil law. For that reason, in the case

8 in question, the claim of ex-shareholders for recovery

9 of the losses caused to them as a result of the

10 liquidation can be based first of all on Article 1064…

11 which sets out the general grounds for the tort

12 liability.»

13 So —

14 A. You said he thinks they can. I think he is saying — he

15 says this case raised the question — we don’t know what

16 the case says, it is unpublished. I think he is saying

17 there should be such a rule.

18 Q. Right. He is saying, as I read it, that Article 1064

19 does allow a claim to be brought to recover a reflective

20 loss where it is necessary in this situation; is that

21 your reading of what he is saying?

22 A. He is, particularly if you look at his last paragraph,

23 I think he is suggesting that this would be a good

24 interpretation of the law.

25 Q. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

95 :1 A. He is not saying that either the case he mentions or any

2 other case has interpreted the law that way.

3 Q. No, that’s fair, but he is saying in the middle

4 paragraph he says:

5 «Under Article 1064 … the harm caused to

6 the property … shall be recoverable by the tortfeasor

7 in full. In the case in question, Article 1064 … may

8 be used as a legal ground for almost any tort claims

9 regardless of the cause of action.»

10 Then he goes on to say only allowing a derivative

11 remedy is not enough because in this particular case

12 where the company ceases to exist. So you are right, he

13 is not tying it into the fact of any specific case

14 because he is making a general proposition that

15 Article 1064 should be available to recover from parent

16 companies that have committed wrongful acts vis-a-vis

17 the subsidiary; is that fair?

18 A. Yes.

19 Q. And that is a reasonable conclusion, isn’t it, because

20 otherwise the loss would go unremedied, potentially?

21 A. It would go unremedied.

22 Q. Another point made by Dr Gladyshev is that Russian law

23 allows claims to be brought by foreign investors in

24 Russia, doesn’t it?

25 A. It allows them basically national treatment unless there

96 :1 is a treaty, and Russia has a large number of bilateral

2 investment treaties and a number of them allow

3 shareholders to bring claims for improper harm to

4 the value of their shares by the Russian Government.

5 I don’t think without that treaty the foreign investment

6 law really gives anything more than national treatment,

7 unless you have such a treaty.

8 Q. Can we look at the law on foreign investments, which is

9 at {E4/14.1/299}. We can see from Article 1 that the

10 law is concerned with:

11 «… relations connected with state guarantees of

12 the rights of foreign investors when they invest on the

13 territory of the Russian Federation.»

14 Can we go over to {E4/14.1/302}, and Article 5

15 provides the substantive protection for foreign

16 investors, and Article 5.1 says that:

17 «On the territory of the Russian Federation the

18 foreign investor shall be granted a full and

19 unconditional right of rights and interests as provided

20 in the present federal law …»

21 And it refers to international treaties, as you

22 mentioned.

23 A. Mm hmm.

24 Q. Then in Article 5.2 it says:

25 «The foreign investor is entitled to damages as

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

97 :1 reimbursement of the losses inflicted thereto as

2 a result of unlawful actions on part of the state

3 bodies … under the civil legislation of the Russian

4 Federation.»

5 A. That’s national treatment.

6 Q. Yes, indeed. So the assessment of damages and the

7 recoverability of damages will be assessed in accordance

8 with domestic Russian law.

9 A. Which, as I have said, doesn’t allow reflective loss.

10 It allows direct loss. If the Russian Government

11 wrongly nationalised your shares, then you would have

12 a right under Russian law to compensation, whether you

13 are a Russian shareholder or a foreign shareholder.

14 Q. Well, if you are a foreign investor, you will often make

15 your investment through a Russian company, won’t you?

16 A. You often would, yes.

17 Q. And what the law provides is for claims to be brought by

18 the foreign investor, so it wouldn’t be a defence, would

19 it, if a foreign investor brought a claim for damage

20 done to his investments to say the loss was suffered by

21 the Russian entity that was operating the company?

22 A. I think it would be a defence unless he had a treaty

23 provision, and that’s exactly why many of the treaties

24 give further rights to foreign investors, and if we look

25 at the other articles of this section, there are various

98 :1 remedies to treaties and to international arbitration.

2 Certainly the investor can get this right, but he needs

3 a treaty to have any right beyond national treatment.

4 Q. I imagine you have given evidence in investment

5 arbitrations before; is that right?

6 A. I have been working for the Yukos Oil Company since

7 2004.

8 Q. Right. So there have been a fair few investment

9 arbitrations in that context?

10 A. So I have had some experience.

11 Q. It’s fair to say, isn’t it, that in investment

12 arbitrations that the issue of reflective loss doesn’t

13 typically arise because the whole purpose of these

14 bilateral treaties is to create protection for foreign

15 investors, regardless of the structure through which

16 they make their investments.

17 A. Nearly always the foreign investors are suing under

18 a treaty which provides this broader protection than

19 this law. This law provides essentially national

20 treatment and the investment treaties then provide

21 broader treatment.

22 Q. What this provides, I suggest, is that the foreign

23 investor can bring a claim against the Russian State

24 body that has caused damage, and recover damages under

25 the civil legislation of the Russian Federation, and it

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

99 :1 doesn’t need a specific treaty provision to recover

2 reflective loss, because in practice, treaties don’t

3 provide for recovery for reflective loss, they contain

4 broad and general provisions like Article 5.1.

5 A. Well, that is not specifically true. A number do

6 provide it and many treaties have a most favoured nation

7 provision which can be used to take advantage of

8 provisions of different treaties.

9 Q. And it would make the protection for foreign investments

10 under Article 5.1 illusory if it could always be met by

11 a defence — if a claim could always met by a defence

12 that the loss was reflective?

13 A. That’s always been the contention of the Russian State

14 in the case of Yukos, that the shareholders have no

15 protection.

16 Q. Now, drawing the threads together, would it be accurate

17 to say that there are, in fact, cases, possibly

18 a limited range of cases, but nevertheless there are

19 cases, where the court can award reflective loss where

20 it is necessary to avoid injustice?

21 A. There may be a very limited number of cases, but, again,

22 I don’t think foreign investors under this law have any

23 better position than Russian investors.

24 MR MILNER: Thank you, Professor Maggs, those are all my

25 questions.

100 :1 A. Thank you.

2 Re-examination by MR BIRT

3 MR BIRT: Professor Maggs, can I just pick up on a couple of

4 points that Mr Milner asked you about just to clarify

5 what your answers were. Could we go back, please, to

6 today’s [draft] transcript at page 9. If we could

7 scroll right down, and we just want it starting at line

8 25, and then if we could have pages 10 and 11 as well.

9 A. Yes.

10 Q. That should be okay. First of all you were taken to

11 paragraph 248 of your report, which talks about auction

12 rules, if they weren’t violated, but there had been

13 bid-rigging not connected with the pledgee:

14 «… the pledgee would bear no liability, but if it

15 could not under the auction, could recover in tort under

16 Article 1064 against the bid-riggers.»

17 You say «yes». You then give some evidence about

18 what you meant by bid-rigging. You were then asked: so

19 that follows that it might be unlawful, and you say it

20 is unlawful and you give the details.

21 You were then asked at line 21:

22 «Question: It follows, then, also that if there is

23 bid-rigging that is connected with the pledgee, then the

24 pledgee would be liable…»

25 You say:

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

101 :1 «Answer: It depends if there were other people who

2 bid high bids and they are bid-rigging — you still need

3 to show causation from the bid-rigging.»

4 Could we just pause there and could I just ask you

5 what did you mean by that, when you said you still have

6 to show causation?

7 A. What I mean is to show the bid-rigging resulted in harm

8 in the sense of a lower price. That the pledgee was

9 engaged in somehow encouraging or organising bid-rigging

10 and you need causation of harm that the bid-rigging

11 resulted in the price being less than it would be

12 received otherwise.

13 Q. I understand.

14 So would that require an investigation into what

15 other bids might have been made, absent the bid-rigging?

16 A. Yes, it would require an investigation if any other bids

17 were made or might have been made, or if somehow

18 prospective bidders were improperly excluded by some

19 sort of physical exclusion or something.

20 Q. So are you saying that it would or that it would not

21 require working out what the auction would have fetched

22 in other circumstances?

23 A. In order to figure the damages, you would have to figure

24 what would have been received had there been no

25 bid-rigging.

102 :1 Q. If it were the case that without what you have described

2 as bid-rigging there was only one participant in

3 an auction, what would the consequence have been of

4 that?

5 A. The auction would have failed.

6 Q. And then what would happen after that?

7 A. There would be a re-auction at a reduced price in

8 accordance with the laws governing a particular type of

9 property being auctioned.

10 MR JUSTICE HILDYARD: Did you say at a reduced price?

11 A. Excuse me?

12 MR JUSTICE HILDYARD: I’m sorry, I misheard.

13 MR BIRT: My Lord, I think he did, but I am happy to

14 clarify.

15 MR JUSTICE HILDYARD: It would be re-auctioned at a reduced

16 price?

17 A. Yes, the auction law provides if an auction fails —

18 an auction starts with a starting price set by

19 an independent appraiser.

20 MR JUSTICE HILDYARD: Yes.

21 A. And it fails if there is only one bidder or if nobody

22 bids above the starting price.

23 MR JUSTICE HILDYARD: Yes.

24 A. If it then fails, the laws, and they are somewhat

25 different for different types of pledge auctions,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

103 :1 provide you start with a lower percentage, and I would

2 have to look at the particular law to get an exact

3 percentage, in a repeat try at the auction. Sort of

4 like a Dutch auction.

5 MR JUSTICE HILDYARD: So woe betide you if you complain

6 about there only being one bidder because the price will

7 then go down if you are the pledgee or the owner of

8 the asset; is that right?

9 A. If there is one bidder, the starting price will go down.

10 Now, again, you have a question of fact: what would the

11 end price be?

12 MR JUSTICE HILDYARD: Right.

13 A. Maybe the low starting price would attract more bidders.

14 That’s purely a question of fact.

15 MR BIRT: And then if it fails a second time, is there

16 another stage?

17 A. Well, eventually it goes down to where the pledgee can

18 take the property at the — as I believe, at the

19 appraised price towards the debt secured by the pledge.

20 Q. Thank you. If we can just go back to Mr Milner’s

21 questions to you, I think we had got to the end of

22 page 10, the start of page 11 on the transcript. Sorry,

23 just pick it up so we get the run-in. At the end of

24 page 10 the question was:

25 «… bid-rigging that is connected with the

104 :1 pledgee …»

2 Then you answer that question. What sort of

3 connection were you assuming there would have to be with

4 the pledgee?

5 A. Well, the pledgee was a party to organising the

6 bid-rigging and somehow was working with the bid-riggers

7 towards achieving a common plan.

8 Q. And what role does the pledgee normally have in

9 the setting of the price at an auction?

10 A. The pledgee has no role in setting the initial price,

11 because it needs to be set by an independent appraiser.

12 Q. And does the pledgee have any role or power to seek to

13 increase the price set by the independent pricer?

14 A. That has to be the starting price.

15 Q. Sorry, the — I think you meant the price from the

16 independent appraiser has to be the starting price?

17 A. Yes.

18 Q. I’m sorry, my question was can the pledgee do anything

19 to increase that price?

20 A. Well, the pledgee could bid.

21 Q. Yes. But apart from that, in his role as pledgee, could

22 he do anything?

23 A. Well, he could pay for newspaper advertisements,

24 television advertisements to get more bidders out. That

25 would be perfectly legal.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

105 :1 Q. Yes. Thank you.

2 Then you were also asked some questions about

3 preliminary agreements, and I wonder if we could just

4 look at an agreement to see if that helps explain some

5 of your evidence. If we can go to the document, just to

6 put it in context, {D106/1531/1}.

7 A. Yes.

8 Q. I think you have been given the hard copy if you want to

9 look at it.

10 A. Yes.

11 Q. That is a contract for the sale of shares in

12 Scandinavia Insurance by Oslo Marine Group LLC to

13 a company called Akva-Ladoga, and that’s one of

14 the companies referred to as the special purchasers, or

15 it came to be one of those companies, as referred to in

16 the memorandum. This is just to give you the context.

17 This was the agreement under which the shares were sold.

18 If we can just go to {D106/1531/5}, please.

19 A. Yes.

20 Q. And this is headed «Provisional share purchase

21 agreement». If you maybe just take a few seconds to

22 cast your eyes down the terms, it’s again between

23 Oslo Marine Group LLC and Akva-Ladoga, and it refers to

24 the shares in Scandinavia Insurance Company again. Just

25 have a quick look through the terms on that page,

106 :1 I think.

2 A. Yes. (Pause).

3 Yes.

4 Q. Are you able to help his Lordship with what type of

5 agreement this is?

6 A. Well, this is an agreement that is clearly written by

7 lawyers to comply with the terms of Article 429, and

8 typically such an agreement is like a final contract,

9 except usually missing the date and always missing the

10 signature of the parties, but always with the names of

11 the parties.

12 Q. This is an agreement to agree to enter an agreement for

13 the sale of shares. How could this be enforced or dealt

14 with by a party who wants to bring into force the share

15 sale agreement?

16 A. Article 429 of the Code allows you to force this

17 agreement into effect, and I believe it refers to

18 section 4 of another article of the Code, providing some

19 details, but basically it is very simple to enforce

20 because you merely need to get a court declaration

21 saying that the agreement you promised to make should be

22 considered made.

23 Q. And it includes as well, if you can see, clause 6.1,

24 saying:

25 «The Parties undertake to act reasonably and in good

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

107 :1 faith during performance of obligations under this

2 agreement.»

3 A. Mm hmm.

4 Q. What do you think that would mean in the context of this

5 agreement?

6 A. Well, you have the preliminary agreement and a proposed

7 final agreement. In the preliminary agreement such

8 language means: we agree to go ahead with the final

9 agreement. In the final agreement, that just becomes

10 one of the terms of the contract you have agreed to

11 make, once you either make it or are forced by the court

12 to make it.

13 Q. Yes. Would that provision apply, or would it not apply,

14 when somebody was seeking to sort of enforce this

15 preliminary agreement in order to compel the entry into,

16 if you like, the master agreement?

17 A. Well, when you seek to enforce it, basically the second

18 agreement, the contract you have made a contract to

19 make, needs to be in fully finished form except for

20 the signatures, maybe the seals and the date, and then

21 it will be enforceable and it is quite commonly used in

22 Russia to get around certain problems that some types of

23 agreements are effective only upon registration, but

24 preliminary agreements are effective as soon as they are

25 signed.

108 :1 MR BIRT: Yes, thank you very much.

2 My Lord, I don’t have any further questions.

3 Questions by MR JUSTICE HILDYARD

4 MR JUSTICE HILDYARD: Yes, I need some help on reflective

5 loss, but before then, can I just clarify one point on

6 the transcript of this morning at page 5. You were

7 asked a question, in fact starting at page 4 in line 24,

8 when Mr Milner asked you:

9 «Question: And that would include, wouldn’t it,

10 a situation where it may not be the defendant’s sole

11 purpose to cause harm to the claimant but where harm is

12 the inevitable result of the defendant’s actions and is

13 intended in that sense?»

14 And you answer:

15 «Answer: And where he knows it is the inevitable

16 result.»

17 Then Mr Milner says:

18 «Question: Yes, you would agree that that counts as

19 intentional harm?»

20 And you say:

21 «Answer: Yes.»

22 Now, supposing that the defendant has no conscious

23 knowledge that it is the inevitable result, though it

24 proves to be the result which follows, but it is

25 a possibility that he had in mind, alternatively he

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

109 :1 didn’t really care whether harm was done or not, he just

2 ploughed on regardless. What would be the position in

3 those two situations?

4 A. Well, if Article 1064 applies, intent is defined —

5 fault is defined as either intent or negligence, and

6 your hypothetical seems to be one of negligence, but the

7 liability is the same, whether you caused the harm by

8 intent or by negligence.

9 MR JUSTICE HILDYARD: So when you answered that you would

10 have to know that that was the —

11 A. I was talking about — I was asked about what would be

12 intentional harm. But if you should have known it would

13 cause harm and went ahead and did it, then it would be

14 negligent and there is no difference in effect between

15 negligent and intent.

16 MR JUSTICE HILDYARD: Thank you. Now, I need your help on

17 reflective loss, and I believe it is your opinion that

18 the bar on reflective loss (whatever it is) is really so

19 plain and obvious that one wouldn’t expect any cases on

20 it, because no lawyer would have dared seek recovery —

21 A. Yes.

22 MR JUSTICE HILDYARD: — for such loss on behalf of

23 a shareholder; is that right?

24 A. That’s right, and one reason for that is where a company

25 has gone bankrupt, there’s specific legislation allowing

110 :1 creditors who do not get fully paid during the

2 bankruptcy process to bring suits against persons who

3 have caused harm to the company, and that is designed to

4 be essentially an exception to the reflective loss

5 principle, but they don’t make any exception for

6 shareholders in that legislation.

7 MR JUSTICE HILDYARD: Right. So under the Russian law, in

8 the event of the bankruptcy of a company and in

9 the event of that being the cause of, or accompanied by,

10 individual creditor loss, the creditor may bring

11 a personal action, may he, in respect of that loss?

12 A. Yes, it’s specifically allowed in the Civil Code and in

13 the company laws.

14 MR JUSTICE HILDYARD: Take the case of a liquidated company,

15 one still existing, but in the process of administration

16 or some other insolvency process —

17 A. Yes.

18 MR JUSTICE HILDYARD: — and there is, as Mr Milner posited,

19 a preponderant creditor, having by far the largest of

20 the debts.

21 A. Yes.

22 MR JUSTICE HILDYARD: And he, or whatever it is, the entity

23 which is the creditor, does not wish any action to be

24 brought because possibly he or it was the source of

25 the problem in the first place. You answered that that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

111 :1 person would not be able to dictate one way or the other

2 to the administrator or liquidator what to do; have

3 I understood so far?

4 A. That’s correct.

5 MR JUSTICE HILDYARD: But it’s a bankrupt company with no

6 money, and let us suppose that the other creditors,

7 being small creditors, are put off the costs of

8 litigation because the costs of litigation might be

9 awfully close to their debts, and the major creditor

10 smiles to himself because he is the only creditor for

11 whom it would be worthwhile. What happens then?

12 A. Well, they have at least one inexpensive alternative,

13 which is to simply fill out a petition to the court

14 supervising the bankruptcy, saying the bankruptcy

15 administrator is not doing his duty and should be

16 replaced.

17 MR JUSTICE HILDYARD: A replacement administrator would

18 still have the problem that he has no money with which

19 to pursue a claim.

20 A. That’s always a problem in any legal system, of course.

21 MR JUSTICE HILDYARD: It is. What do you do about it?

22 A. Well, it is a difficult question. He could also later

23 pursue a claim against the bankruptcy administrator,

24 though again that would cost him some money to initiate

25 the claim. Luckily the costs of bringing a suit in

112 :1 Russia are much lower than in England.

2 MR JUSTICE HILDYARD: It seems unfair that in those

3 circumstances where it is quite plain that neither the

4 company nor the administrator on its behalf, has the

5 wherewithal to sue, that the shareholder should be

6 prevented from recovery.

7 A. Well, it is unfortunate, but I think in Russian law, as

8 in many legal systems, there are many rights which are

9 illusory if you don’t have the money to hire a good

10 lawyer and pursue them.

11 MR JUSTICE HILDYARD: It seems a complex problem, though?

12 A. But it would cost you just as much to sue for reflective

13 loss as to sue the bankruptcy administrator, or in some

14 cases you may be able to bring a sort of — under recent

15 amendments to bankruptcy law — a sort of derivative

16 action as a creditor in cases where the bankruptcy

17 administrator won’t sue.

18 In any case, you are going to have roughly the same

19 legal expenses fighting this issue.

20 MR JUSTICE HILDYARD: No, but my problem was the harm has

21 been done to the company, the shareholder is very cross.

22 You say: well, it may be all right in the end because

23 the creditor’s ambassador on earth in the form of the

24 liquidator or administrator can bring the action and

25 restore the coffers of the company, and thereby the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

113 :1 shareholder will be okay, but what Mr Milner was

2 positing is, supposing that doesn’t happen and the

3 shareholder is thus left in the lurch in respect of

4 a wrong done to him, an otherwise sue-able wrong. It

5 seems a difficult problem.

6 A. It is a difficult problem, but the cost to

7 the shareholder of pursuing a reflective remedy, for

8 which there is no legal precedent in Russia, could be

9 even higher because he would probably have to fight it

10 to a much higher court.

11 So it is a lesser problem to research your rights in

12 bankruptcy than it is ultimately to seek this innovative

13 remedy of reflective loss.

14 But, again, there is certainly an injustice in every

15 case where you can’t afford a lawyer.

16 MR JUSTICE HILDYARD: That answer assumes that there is

17 a principle against reflective loss. One of my

18 questions to you is, given the complexities and the

19 injustice, is it really right to say that it’s so plain

20 and obvious that no one even would dare bring such

21 a claim?

22 A. Well, claims are regularly brought by creditors not

23 satisfied at the end of bankruptcy, for which there is

24 a clear remedy.

25 MR JUSTICE HILDYARD: Yes.

114 :1 A. If there were a remedy for reflective loss — if there

2 weren’t a remedy for creditors, that would be unfair to

3 them. If there were a remedy for reflective loss, one

4 would expect claims to be brought also by shareholders,

5 because shareholders, of course, come last in

6 bankruptcy. So you have a situation where creditors

7 regularly bring claims after bankruptcy, but

8 shareholders don’t. I think it’s because they know they

9 would lose.

10 MR JUSTICE HILDYARD: I’m not following that, because the

11 shareholder claim posited is some harm done to him which

12 has rebounded against his shareholder interest, and of

13 course, his shares would be the less valuable. He is

14 not suing in the bankruptcy.

15 A. The creditor who is not satisfied in bankruptcy

16 obviously has harm done to him by whoever committed the

17 tort against the company. Yet it seems strange that the

18 law protects one and doesn’t protect one if, really,

19 there is a rule protecting both of them.

20 Now, the law can be criticised, and I think that’s

21 what Professor Yarkov was doing, saying: here’s what we

22 should allow.

23 MR JUSTICE HILDYARD: Well, it may be very different in

24 Russia, but here the reason why a single creditor would

25 have to be given an exceptional right is because

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

115 :1 liquidation is — and in most other countries is

2 regarded as a collective process in which only the

3 liquidator or an assignee from the liquidator may bring

4 a collective enforcement right. But that may be not the

5 same in Russia, I don’t know.

6 A. Well, again, a shareholder could petition for the court

7 controlling the liquidator to take some action if the

8 liquidator was not acting properly. The shareholder

9 remains a shareholder until the bankruptcy process is

10 over, the final report of the bankruptcy administrator

11 is approved, and the court orders the company to be

12 stricken from the corporate register, at which point the

13 shareholder ceases to be a shareholder, because there is

14 no company.

15 MR JUSTICE HILDYARD: In any event, these sort of problems

16 and injustices don’t cause you, in any sense, to modify

17 your opinion that this is plain, obvious and I can take

18 it that the reason there isn’t authority one way or the

19 other is because it is just too obvious to query.

20 A. Well, there are, in addition to small shareholders,

21 there are often very large shareholders who lose

22 everything in bankruptcy, and these large shareholders

23 certainly could afford lawyers, yet they are not suing

24 either.

25 MR JUSTICE HILDYARD: Take it out of the field of

116 :1 bankruptcy, please, for the moment now, and take it that

2 a shareholder has suffered harm caused to it, as well as

3 the company, both —

4 A. By a tort to the company.

5 MR JUSTICE HILDYARD: By a tort — well, this is what I want

6 to ask you. Is your answer purely dependent on the only

7 tort being against the company? Supposing the tort also

8 suffers the three requirements, or whatever they are, of

9 the relevant article also to the shareholder, so that

10 prima facie both have valid claims. Is your answer that

11 the shareholder in those circumstances is nevertheless

12 deprived of his claim?

13 A. Well, I find it hard to imagine such a tort. Where the

14 tort is just against the company, the shareholder, if he

15 has over a certain minimum percentage, can bring

16 a shareholder derivative suit for the benefit of

17 the company which is ultimately fair because it’s for

18 the benefit of all the creditors and all the

19 shareholders, and that he definitely can do, but where

20 the — and if the problem is the reduction of value of

21 his shares, then everybody’s shares have been reduced in

22 value and the fair remedy is the derivative suit. There

23 have been cases where dishonest people have taken over

24 a company and faked the company books and turned

25 a shareholder into a non shareholder in the company

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

117 :1 books. Then the shareholder’s rights are directly

2 violated and, of course, he can sue for a remedy.

3 MR JUSTICE HILDYARD: Right. So if the shareholder’s own

4 rights are adversely affected, such as to give rise to

5 a claim under 1064, the reflective loss principle

6 wouldn’t apply?

7 A. Well, it wouldn’t be a reflective loss, it would be

8 a direct loss either based on 1064 or shareholders’

9 rights under company law.

10 MR JUSTICE HILDYARD: Right.

11 A. If he did not get the dividend due to his class of

12 shareholding and other people did, he has a claim under

13 company law.

14 MR JUSTICE HILDYARD: So your view of reflective loss is

15 confined to the case where the only assertion of right

16 by the shareholder is reference to the harm done to

17 the company and, thereby, the loss that he suffers to

18 his investment in the company.

19 A. Yes. That’s —

20 MR JUSTICE HILDYARD: That’s the only —

21 A. That’s what I’m thinking of. Not the situation where

22 some of the shareholders’ rights are otherwise violated,

23 such as the extensive rights shareholders have under

24 corporation law.

25 MR JUSTICE HILDYARD: Because it is fair, I think, to point

118 :1 out to you that in this country, for what it’s worth,

2 the reflective loss principle is also, subject to

3 certain exceptions, triggered by notions of double

4 recovery, so that even if a duty is owed both to

5 the company and to the shareholder, the shareholder’s

6 rights may be trumped by the rights of the company, and

7 preclude that exercise unless, for example, the wrong

8 done to the company is the very person whose rights are

9 being offended against by the very same person. There’s

10 a case on that. But that is not the Russian version of

11 reflective loss?

12 A. I am thinking of reflective loss as merely being where

13 someone has committed a breach of contract to

14 the company or committed a tort against the company, and

15 in a situation where the value of the shares is thereby

16 reduced. This is a problem. The proper remedy is

17 a shareholders’ derivative action to make the company

18 whole which would be fairer to all the creditors and all

19 the shareholders.

20 MR JUSTICE HILDYARD: Yes. I had rather — and possibly it

21 is always a question of language, but, as I say, the

22 reflective loss principle in this country has a slightly

23 broader concept, but I am glad to have asked you the

24 question to see its restricted nature in the context of

25 the Russian corporate law.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

119 :1 A. Reflective loss is actually a term not used in Russian

2 law. That’s what makes this difficult.

3 MR JUSTICE HILDYARD: Yes, I understand that.

4 Well, I think that clarification means that I need

5 not ask you a number of difficulties, your response to

6 a number of difficulties that have arisen in the much

7 broader concept of reflective loss as it applies in this

8 jurisdiction which have been infernal and have been the

9 subject of much litigation recently. Since that does

10 not appear to apply in Russia, I don’t think I need ask

11 you those questions, but naturally, I will let counsel

12 take up any of these points if they think it emerges

13 from my questions. Yes?

14 MR MILNER: Nothing from me, my Lord.

15 MR BIRT: My Lord, no, nothing from me.

16 MR JUSTICE HILDYARD: Thank you.

17 Professor Maggs, thank you very much indeed.

18 (The witness withdrew)

19 MR MILNER: My Lord, I will now call Dr Gladyshev, with

20 your Lordship’s permission.

21 DR VLADIMIR GLADYSHEV (Sworn)

22 MR JUSTICE HILDYARD: Please sit down. I hope you have some

23 water.

24 Examination-in-chief by MR MILNER

25 MR MILNER: Dr Gladyshev, could you be shown {E4/14/1}.

120 :1 A. Yes.

2 Q. Is that a copy of your fifth expert report in these

3 proceedings?

4 A. Yes.

5 Q. Could you look at {E4/14/62}.

6 A. Yes.

7 Q. Is that your signature?

8 A. It is.

9 Q. Could you also look at {E4/14.2/1}.

10 A. Yes.

11 Q. Does that appear to be your supplemental expert report?

12 A. It is.

13 Q. And at {E4/14.2/32} do you see a copy of your signature?

14 A. I do.

15 Q. Could you look at {E4/13/1}.

16 A. Yes.

17 Q. I am sorry, that is not the right document. {E4/15/1},

18 I am sorry.

19 A. Yes.

20 Q. Is that the joint report that you have prepared with

21 Professor Maggs?

22 A. It is.

23 Q. And at page 21, do you see your signature there?

24 A. I do.

25 Q. Is the evidence set out in those reports and in

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

121 :1 the joint statements your true, professional opinion —

2 A. It is.

3 Q. — you wish to rely on. Do you wish to make any

4 additions or corrections to your evidence?

5 A. No.

6 MR MILNER: Thank you very much. If you wait there, there

7 will be some more questions.

8 Cross-examination by MR BIRT

9 MR BIRT: Good afternoon, Dr Gladyshev.

10 A. Good afternoon.

11 Q. I would just like to start by asking you one or two

12 questions about your background, if I may?

13 A. Mm hmm.

14 Q. You started your legal career in the field of

15 international law, I think; is that right?

16 A. It is.

17 Q. I read in your report you took your degree in

18 international law and your first post was working in

19 the Treaty and Legal department of the USSR Foreign

20 Ministry. That was for some eight or nine years?

21 A. Yes.

22 Q. And you were dealing in that role primarily with the law

23 of the sea, in particular, Antarctica?

24 A. Yes.

25 Q. And after that you spent five years in the embassy in

122 :1 Madrid?

2 A. Yes.

3 Q. And again, no doubt, dealing with issues of

4 international law?

5 A. And other issues.

6 Q. And you have been in, I think, private legal practice,

7 you tell us, since 1994?

8 A. That’s right.

9 Q. Originally in a firm, you tell us, called INTER-FILE

10 (Project Finance Legal Services)?

11 A. Yes.

12 Q. Was that in Russia?

13 A. Yes, it was.

14 Q. And then in another firm, also in Russia, was it?

15 A. Yes.

16 Q. And finally, what I take to be your own firm, Gladyshev

17 and Partners, since 2005?

18 A. Yes.

19 Q. Is that based in London or is it based in Russia?

20 A. Based in Russia.

21 Q. It is based in?

22 A. Russia.

23 Q. I think you tell us you are resident in London now, do

24 you?

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

123 :1 Q. So do you work predominantly from the UK?

2 A. Yes.

3 Q. And reading your report, if we could just look at

4 {E4/14/65}, this is your full CV.

5 A. Yes.

6 Q. I start at the end of page 64.

7 A. Mm hmm.

8 Q. Or, rather — yes, the bottom of {E4/14/64} and the top

9 of {E4/14/65}. Your litigation practice in Russia

10 sounds like it was largely for Procter and Gamble, would

11 that be fair to say?

12 A. That was the largest client but I had a lot of other

13 clients as well.

14 Q. I only say that because you tell us you have had more

15 than 300 cases in Russia, but you say you have had about

16 200 cases for Procter and Gamble?

17 A. That’s correct, yes.

18 Q. And most of the cases for Procter and Gamble were to do

19 with tax, customs and currency control?

20 A. Yes.

21 Q. And you tell us you have also consulted a number of

22 companies on tax legislation, customs and trade law and

23 currency controls?

24 A. That’s correct.

25 Q. And you have published articles in that area?

124 :1 A. Yes.

2 Q. And you have also represented defendants in, I think,

3 white collar crime investigations including those

4 related to taxation and currency control?

5 A. Yes.

6 Q. You have been involved in some deals as well. I think

7 you are not just a litigation lawyer, you are also

8 a transactional lawyer; is that right?

9 A. Yes.

10 Q. And you have also been involved in a number of

11 international investment arbitrations and other

12 international disputes, no doubt leveraging your earlier

13 involvement in public international law?

14 A. Yes, but it was mostly leveraging my involvement in

15 the Russian litigation.

16 Q. I think you tell us you have also published various

17 articles, including those on the law of the sea and the

18 Arctic and international relations.

19 A. Right.

20 Q. So you have kept your public international law

21 background, and in terms of private law, your particular

22 expertise and experience is in tax, customs and currency

23 controls; is that right?

24 A. Yes, but you must understand the Russian tax law,

25 90 per cent of the Russian tax litigation depends on

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

125 :1 interpretation of the underlying civil law contract and

2 underlying civil law concepts. So 90 per cent of

3 the tax litigation is litigation about civil law

4 concepts.

5 Q. Thank you. Now, your firm, Gladyshev and Partners, that

6 you have told us about, that is, no doubt, a commercial

7 firm in the sense that in the normal course it works for

8 payment for its services?

9 A. No, I’m a member of the Bar. My firm as the form of

10 the member of the Bar is specifically called

11 non-commercial firm.

12 Q. Right. So does that mean that you normally work for

13 free?

14 A. I normally work for fees, but I often do pro bono work.

15 Q. And in relation to this case, have you been paid for any

16 of the work you have done in this case to date?

17 A. No.

18 Q. And are you expecting to be paid for your work as

19 an expert in this case? Do you have any arrangement for

20 future payment for your work?

21 A. No.

22 Q. So you are acting without any expectation of

23 remuneration?

24 A. That’s correct.

25 Q. And are you acting in this case, therefore, for free

126 :1 because of a sympathy for Mr Arkhangelsky?

2 A. Not really. I have two motives: first, I always try to

3 be involved in some pro bono case; second, I am

4 interested in all the cases where Russian law is at

5 stake, and this is an interesting case.

6 Q. Yes. Presumably you are working pro bono here on the

7 basis of what you have been told is Mr Arkhangelsky’s

8 financial position; in other words, you have been told

9 that he wouldn’t be able to pay you?

10 A. Mr Stroilov told me that this is the condition, and

11 I didn’t object, so we didn’t discuss it any further.

12 Q. Fine. You haven’t got any independent evidence to give

13 about his financial position?

14 A. No, I know only what Mr Stroilov told me.

15 Q. And just to check with you, another Russian lawyer has

16 given factual evidence for Mr Arkhangelsky in these

17 proceedings, somebody called Mr Mikhail Nazarov; is he

18 somebody you have come across?

19 A. No.

20 Q. He is one of Mr Arkhangelsky’s lawyers in Russia, and he

21 said that his recent work for the Arkhangelskys had been

22 unpaid but he was prepared to wait for payment until

23 their financial situation improved. In other words, no

24 payment now for work that he does, but if the financial

25 situation improved, he anticipated being paid for that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

127 :1 work in the future; do you have any similar arrangement

2 with Mr Arkhangelsky?

3 A. No.

4 Q. Thank you very much. Can I ask you, just in relation to

5 your reports, have you had assistance from others in

6 drafting your reports, or are they all your own work?

7 A. It’s my own work. I, at some point, briefly discussed

8 the report, but judging by the number of typos that

9 I have detected yesterday, it’s entirely mine.

10 Q. And there are various cases and articles and other

11 materials exhibited to your report. Are those materials

12 that you have found and compiled and provided, or did

13 somebody else do those for you?

14 A. No, everything is entirely mine.

15 Q. Thank you. Can I just check what you have reviewed for

16 the purposes of compiling your reports.

17 A. Yes.

18 Q. At paragraph 11, which is on {E4/14/5}, you set out,

19 I think, the materials you have been provided with,

20 which include a court order, pleadings and

21 correspondence related to pleadings, and then numerous

22 expert reports that had been previously filed or served

23 in these proceedings.

24 A. Yes.

25 Q. It didn’t appear from that list that you had been

128 :1 provided with any of the contemporaneous documentation;

2 is that right?

3 A. I’m sorry, what do you mean by «contemporaneous

4 documentation»?

5 Q. Well, anything like contracts or e-mails or letters

6 or …

7 A. Not that I remember. I have been provided with the

8 basic pleadings and I don’t remember consulting directly

9 a contract. Although I think I was given quite

10 recently, maybe one of these days, a memorandum,

11 the December memorandum. That I have seen.

12 Q. Right. So you have been provided with a copy of

13 the memorandum quite recently; was that since you wrote

14 your reports?

15 A. Yes. I think I have got the understanding of

16 the memorandum from the pleadings of the parties, and

17 then I have read the full text, yes.

18 Q. Yes. No, that’s okay. But as for other contracts, such

19 as the share sale and repurchase agreements, or the

20 pledge agreements, for example, you haven’t been

21 provided with copies of those, by the sound of it?

22 A. I don’t remember, but I certainly didn’t analyse those

23 documents in preparing my reports. I relied on the

24 pleadings of the parties to understand the factual

25 matters.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

129 :1 Q. Yes, it’s not a criticism, I am just exploring what’s

2 been in front of you at the outset. It may help save

3 time later on, or otherwise.

4 Can we start with some questions about Article 1064

5 of the Civil Code, please.

6 A. Yes.

7 Q. In relation to which there is a fair degree of common

8 ground between you and Professor Maggs. We can perhaps

9 take it briefly from the joint memorandum at

10 paragraphs 31 and 32, so that is in {E4/15/6}.

11 A. Yes, I have it.

12 Q. The two of you list there some matters which are agreed,

13 including that:

14 «The elements to establish are the fact of harm,

15 unlawfulness, a causal link between the defendant’s

16 action (or omission) and the harm, culpability of

17 the tortfeasor.»

18 There’s also a sentence about Article 1080 providing

19 liability for harm caused by two or more persons

20 jointly. I am going to come back to Article 1080 later

21 on, if I may.

22 In your report at paragraph — let’s have a look,

23 sorry, on {E4/14/17}.

24 A. Yes.

25 Q. Under paragraph 72.

130 :1 A. Yes.

2 Q. Did I give the right reference or the wrong reference?

3 {E4/14/17}.

4 A. Yes.

5 Q. You set out a quotation from the judgment of

6 Mr Justice Andrew Smith in the Fiona Trust v Privalov

7 case.

8 A. Yes.

9 Q. When he summarised the principles of liability under

10 Article 1064. That includes the highlighted text in

11 paragraph 94 you have highlighted, and if we go over,

12 and paragraph 73 you make it clear that you agree with

13 this reasoning, insofar as it addresses principles of

14 Russian law.

15 A. That’s correct.

16 Q. Now, can I just check the extent to which you agree with

17 the summary of the law in that case. I know you agree

18 with everything in that passage, which is paragraphs 93

19 to 95. Could we just look at another paragraph of

20 the same judgment, please. It’s not in your report, but

21 we can find it on the screen at {Auth1&Auth2/5/36}. If

22 we could have paragraph 101.

23 A. Mm hmm, yes.

24 Q. Which goes onto the next page as well, that would be

25 very useful. yes, that’s okay. {Auth1&Auth2/5/37}

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

131 :1 So this is just a few pages later than the passage

2 you cite in your report.

3 A. Yes.

4 Q. And in that case, having heard evidence from

5 Professor Maggs and Professor Sergeev, the judge there

6 discussed the requirement of causation under 1064 and

7 said:

8 «The defendant’s action must be a direct or

9 immediate cause of the harm.»

10 And then the judge in that case went on to refer to

11 some of Professor Maggs’ illustrations and he addressed

12 certain points which were particularly pertinent in

13 the context of that case.

14 First of all, can I just check, is it a statement

15 that you agree with that the defendant’s action must be

16 a direct or immediate cause of the harm?

17 A. No, I do not.

18 Q. I assume you have read this judgment before, because you

19 have cited the other paragraphs with approval; are the

20 three particular subparagraphs that follow under

21 paragraph 101, are those examples of Russian law that

22 you would agree with in terms of whether they do or do

23 not constitute sufficient causation? (Pause).

24 A. This heavily depends, of course, on the facts of

25 the Fiona Trust case, this I have to say. I am not just

132 :1 going into the facts of this case because I may

2 misunderstand them from this rendition.

3 However, I don’t think that the direct and immediate

4 causation is what’s required under the Russian law, and

5 this is a point that is sometimes missed.

6 Firstly, there is no such statutory requirement in

7 Russian law. There is no requirement of direct and/or

8 immediate causation.

9 Second, the origin of this perception that there is

10 such a rule under Russian law is old Soviet practices.

11 In the Soviet Union it is indeed, under the

12 interpretation of the old Soviet Civil Code, judges

13 required to demonstrate a direct causation. This

14 attitude, after the demise of the Soviet Union, spilled

15 into the writings of the Soviet academicians, which were

16 quite characteristic in the 1990s.

17 But as corporate relations developed, the simple,

18 direct causation was dropped as courts started to award

19 damages in cases where a more complex causation is

20 present.

21 I, in my report, give several examples of more

22 complex cases, so it is a developing thing.

23 I understand why Professor Maggs and Professor Sergeev

24 are saying this, and especially since they have been

25 very active in the 1990s in Russia, but the Russian law

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

133 :1 moved on.

2 Q. Then we are going to pick up a few points from your

3 answer as we go through, but what I take from the answer

4 you have just given is that there was, in the past,

5 under Soviet times, a judicial practice to require

6 direct causation, which you say has been slowly ebbing

7 away since the 1990s.

8 A. That is correct. Especially since more and more claims

9 were presented within corporate relations.

10 Q. But there has been no change to any code or statutory

11 law which demonstrates that; you say it is just a change

12 in judicial practice?

13 A. No, and that means that judicial practice caught up with

14 the text of the statute, because the statute doesn’t

15 require direct or immediate causation.

16 Q. If we can pick up something that Professor Maggs cites

17 in this respect, please.

18 A. Yes.

19 Q. As you know, his view is that the causal connection must

20 be clear and direct.

21 A. Yes.

22 Q. And he refers to various commentators who support that.

23 One of the extracts he refers to we can find at

24 {E2-E3/12/345}. This is one of the extracts he cites

25 and sets out in his main report for this trial. The

134 :1 author of this book in this extract gives two examples

2 in the first paragraph of potential situations causing

3 liability, and then there is an explanation in

4 the second paragraph of the sort of legal theory. So he

5 says first:

6 «… direct (non-intermediated) causation takes

7 place then in the chain of later developing events

8 between the unlawful act of the person and the losses

9 there are not any circumstances having significance for

10 civil-law responsibility.»

11 Then the second situation:

12 «In those instances when between the unlawful act of

13 the person and the losses there are present

14 circumstances to which a civil law gives significance in

15 the decision of the question of liability (unlawful

16 activity of other persons, effect of force majeure, and

17 so on), there is indirect (intermediated) causation.

18 These means that the unlawful act of the person lies

19 beyond the bounds of significant causation.»

20 Is that an explanation that you would agree with?

21 A. As an example, and I will very briefly explain, first,

22 this explanation deals away with the notion that

23 causation has to be immediate. Under the reasoning of

24 Mr Egorov, causation, even if it goes through a chain of

25 events is always direct if there is no interfering

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

135 :1 independent factor that interrupts the chain of

2 causation. So the definition of «direct» is quite

3 sui generis and it excludes the term «immediate».

4 Second, as I said in my report, Russian courts

5 approach the issue of causation on facts and on common

6 sense. This would go a long way towards clearing what’s

7 common sense in the view of Mr Egorov would be like.

8 Given the circumstances of the case he describes, an

9 independent force interfering with the chain of

10 causation, the chain of causation is interrupted.

11 I would rather say that it’s not a direct causation. It

12 is an interrupted chain of causation.

13 Q. Thank you. In a sense I think your conclusion is that

14 an intervening cause will break the chain of causation?

15 A. Yes, but it, of course, should be seen on the facts, and

16 I don’t think that this paragraph adds anything to pure

17 common sense.

18 Q. You have emphasised that common sense now twice, and the

19 factual enquiry that causation brings. You also rely in

20 your reports on a case at {E4/14.1/63}. It’s a case you

21 refer to at paragraph 70 of your report, or rather, it

22 starts at paragraph 68. You call this containing

23 a popular recent formulation of the relevant principle.

24 A. Yes.

25 Q. The case you cite is at {E4/14.1/63}. It’s a case where

136 :1 a construction firm were sued for damages resulting from

2 works of an allegedly deficient quality, is how you

3 describe the case.

4 A. Yes.

5 Q. I think it is fair to say, isn’t it, that this is

6 actually a contract case rather than a tort case? Isn’t

7 that right?

8 A. Well, I wouldn’t put a definite wall between the two.

9 In Russia there are — well, Professor Osakwe to whom

10 I refer often, he calls it freestanding tort and

11 contractual tort, and sometimes, as I explain, the

12 compensation for damages related to non-performance of

13 contractual obligation under Article 393 and Article 401

14 are decided in conjunction with Article 1064. So there

15 isn’t a clear distinction.

16 Q. Well, we have to come back to some of those points

17 later, but I think you will agree there is no reference

18 to Article 1064 in this case, is there?

19 A. No, but there is a reference in 393 and a reference to

20 Article 15 which is common to both of them and in other

21 cases, in similar cases, Russian courts, which I quote

22 the decisions, do cite both Article 1064 and Article 393

23 in the same judgment.

24 Q. Yes, we are going to come back to your point on that

25 later. For present purposes it may not matter, because

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

137 :1 I think the test for causation would be the same,

2 wouldn’t it, whether the claim was brought under 1064 as

3 a tort claim or as a breach of contract claim?

4 A. Yes.

5 Q. And we can pick it up towards the end of page 64 of

6 the bundle {E4/14.1/64} where, after citing Articles 15

7 and 393, the court said that:

8 «A party seeking reimbursement for damages must

9 prove the fact of breach of an obligation by a

10 counterparty and causation between an offence and

11 resulting damages and their amount.»

12 Then moving on to the next page at {E4/14.1/65}, and

13 this is then the discussion, part of which you have

14 cited in your report, and after referring to

15 the decision of the Plenum of the Russian Supreme Court,

16 this judgment says that:

17 «… a plaintiff must prove that a defendant is

18 a party whose actions (omissions) resulted in damages

19 and the fact of a breach of obligations or infliction of

20 harm, existence of losses…»

21 It goes on:

22 «Therefore, one of the necessary conditions to grant

23 the relief sought by the plaintiff is whether direct

24 causation between the defendant’s actions and losses

25 incurred by the plaintiff is proved.»

138 :1 That’s an example, certainly of judicial practice

2 referring to direct causation, isn’t it?

3 A. Yes, it is. And, as I point out in my report, the word

4 «direct» is not defined. So in Mr Egorov’s formulation,

5 which we have just seen, and who is, among other things,

6 a well known trial lawyer, a direct causation may

7 constitute an uninterrupted chain of causation. So the

8 direct causation is an undefined term.

9 Q. Yes, but it is an example here, isn’t it, of the court

10 referring to the need for direct causation, whatever

11 that means, and we will come back to that, in this case.

12 Despite it being — this is a very recent case. This

13 is, I think, July 2015, rather than as you suggested

14 earlier, I think, that the concept of direct causation

15 was something that slightly belonged to the past and had

16 been recently dying out?

17 A. Yes, and I would like to point out to the fortunate

18 phrase that Professor Maggs used in his, I think,

19 supplemental report, where he said that we should look

20 behind the labels and to the substance of the concepts

21 as they are used by the Russian courts, and the Russian

22 courts use very complex chain of causation when they

23 award damages. So that may be what is meant by direct

24 causation.

25 What I opposed in my report was a sort of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

139 :1 implication, direct and immediate causation, so that the

2 factor that caused harm was of an immediate and direct

3 action, not an uninterrupted chain of causation, as

4 Mr Egorov helpfully states.

5 Q. Yes, can I just get that straight, because I may have

6 slightly misunderstood what you said in that last

7 answer. You said, I think, that the Russian courts use

8 a very complex chain of causation when they award

9 damages, so that may be what is meant by direct

10 causation.

11 You went on to say that what you were really

12 disagreeing with is a sort of direct and immediate

13 causation?

14 A. Yes.

15 Q. So is what you are saying that you can have a long chain

16 but it still has to be direct?

17 A. It has to be direct in the sense of uninterrupted.

18 However, if a Russian court will find on facts that

19 causation is sufficient to find in favour of the

20 claimant, it will do so.

21 Q. Yes. There is obviously a factual enquiry, but that

22 factual enquiry must be undertaken by reference to

23 the legal concept of causation, or as this court puts

24 it, direct causation, mustn’t it?

25 A. I would say causation. Just to understand where the

140 :1 whole concept of causation comes from, it comes from the

2 language of Article 1064, where it says that harm caused

3 has to be compensated. So from this harm caused, the

4 concept of causation occurred. So harm caused does not

5 imply that the causation has to be immediate, but it may

6 be an uninterrupted chain of causation which the courts

7 decide on the facts.

8 Q. If you can look at the next part of the judgment, and

9 I think this is a bit you quote in your report. It

10 says:

11 «In order to prove causation the defendant’s actions

12 must create all necessary preconditions to the plaintiff

13 to incur losses.»

14 I think that is the statement you agree with and you

15 cite in your report, isn’t it?

16 A. Yes, and as I said, it is a popular formulation although

17 it is not the only formulation.

18 Q. And it suggests, doesn’t it, that the entire cause must

19 be down to the defendant. You have to rule out any

20 other possible cause?

21 A. No. I don’t see it this way. On facts, there may be

22 a more complex set of facts. For example, if there is

23 a second person causing harm, then Article 1080 is in

24 operation, or somebody else aiding and abetting the

25 tortfeasor.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

141 :1 Q. So what’s your reading of the words:

2 «The defendant’s actions must create all necessary

3 preconditions to the plaintiff to incur losses.»

4 A. That courts should very carefully examine their factual

5 matrix. The words there are not very well defined.

6 They are common sense words, necessary and sufficient,

7 not defined in the statutory law.

8 Q. So when you say that this is a formulation you have

9 cited, and you say is well used elsewhere, in fact you

10 say it means very little in terms of its language,

11 because really all it means is the court have to

12 carefully examine the facts; is that your answer?

13 A. Yes, and if their common sense suggests that actions of

14 a person or a party have nothing to do with harm caused,

15 then the court will reject the claim, because they do

16 not come into this concept.

17 Q. I suggest to you that the fact that courts have used and

18 continue to use a word such as «direct» before

19 «causation» means that they attribute some meaning to

20 that; they are not putting that in gratuitously?

21 A. No, and I would agree with this, and maybe the court

22 would mean something along the lines of what Mr Egorov

23 suggested: an uninterrupted chain of causal events.

24 Q. And I would suggest that although, as you say, it is a

25 factual enquiry, it also connotes some sort of

142 :1 relationship of proximity, something close, not a remote

2 factor, in the causative chain.

3 A. I don’t agree with this. There is no support for this.

4 MR BIRT: My Lord, I wonder if that would be a convenient

5 moment for the break?

6 MR JUSTICE HILDYARD: Yes.

7 (3.28 pm)

8 (A short break)

9 (3.38 pm)

10 MR BIRT: Dr Gladyshev, before we move on from this topic,

11 I just want to pick up one more case that you refer to

12 in your report, and you refer to this, starting at

13 paragraph 23 of your supplemental report, which is

14 {E4/14.2/6}. This is a case you refer to as the

15 Samotlorneftegaz case. I don’t pretend to get it right.

16 You explain that a Russian oil and gas company,

17 Samotlorneftegaz, presented a claim against

18 an engineering company, Mobile Drilling Division.

19 Samotlorneftegaz had contracted an engineering company,

20 TNK, to drill oil wells and TNK had, in turn,

21 subcontracted to Mobile Drilling Division for work on

22 some wells.

23 Mobile Drilling Division, while performing the

24 works, lost equipment, some of which was owned by

25 Baker Hughes company, and I think we can tell from the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

143 :1 judgment that Baker Hughes had been separately

2 contracted by Samotlorneftegaz to supply that equipment.

3 So under that contract, Samotlorneftegaz compensated the

4 cost of the lost equipment to Baker Hughes.

5 Subsequently it presented a claim for that financial

6 loss against Mobile Drilling Division on the basis of

7 1064 claiming it had been harmed and claiming the cost

8 of compensation as direct loss.

9 Mobile Drilling Division argued that it worked on

10 the basis of a contract with TNK but had no contract

11 with Samotlorneftegaz and it had no contractual

12 obligations to compensate damages and that defence was

13 dismissed.

14 So, in other words, your summary is that the defence

15 was: we don’t have a contract with you, we have

16 a contract with someone else. In this jurisdiction we

17 would often call that a defence based on the rule

18 against no recovery of pure economic loss, where you try

19 and have a tort claim to cut the corner?

20 A. I understand.

21 Q. You say the case is relevant for two reasons. First,

22 you say:

23 «… the courts awarded damages despite the facts

24 that the whole episode took place during performance of

25 a contract. Thus, the courts confirmed, that if harm

144 :1 occurs, it has to be remedied, contractual relations

2 notwithstanding.»

3 We will come back to that concept in the context of

4 your points about the rule —

5 A. Sorry, I didn’t hear it well. What concept?

6 Q. Sorry, in paragraph 32 you say — it’s my fault for

7 facing the wrong way, really, I apologise {E4/14.2/7}.

8 In paragraph 32 these are the two reasons you give:

9 «Firstly, the courts awarded the damages despite of

10 the facts that the whole episode took place during

11 performance of a contract. Thus, the courts confirmed,

12 that if harm occurs, it has to be remedied, contractual

13 relations notwithstanding.»

14 This is a point that relates to the competition of

15 claims debate that we will come onto, but an important

16 point here, isn’t it, is that there was no contract, and

17 this is the point of the case, really. There was no

18 contract between the claimant and the defendant. It was

19 a tort claim between parties who were not party to

20 the same contract?

21 A. Yes.

22 Q. Then the second point you say is that causality was

23 clearly not direct because lost equipment was not owned

24 by the plaintiff. Its property was not directly

25 damaged, it was not directly harmed. But isn’t the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

145 :1 point that what it was claiming for was not for physical

2 loss or loss of its physical property, but financial

3 loss? Was it not directly caused finance loss?

4 A. Well, it was caused through a chain of uninterrupted

5 causally connected events, so it was direct in the sense

6 that Mr Egorov uses it, but it was not direct in

7 the sense of an immediate action cause and effect with

8 no intervening causal events between them. That shows

9 that what direct is quite ambiguous in Russian

10 provision. The other case to which I refer, which

11 perhaps is more illustrative, is one of the many cases

12 where the municipal authorities are sued for negligence

13 in tort, for example, if a company doesn’t clean my roof

14 from snow and if snow damages me, then the company is

15 liable.

16 Q. Because its failure to properly clean the snow has

17 caused the problem?

18 A. Yes.

19 Q. And that’s a bit like a case about a failure of a safe

20 system of work, or anybody who has a duty to ensure

21 safety in some respect, isn’t it?

22 A. Yes, it’s negligence which combines the element of

23 contractual tort and freestanding tort.

24 Q. Just picking up one point from the judgment we were just

25 describing, the Samotlorneftegaz case at {E4/14.3/26},

146 :1 I know in your report you said you thought the damage

2 was clearly not direct, but if one looks at the

3 formulation posed by the court in about the third

4 paragraph from the end of this page, they say:

5 «Harm … subject to reimbursement if there is

6 a tort that includes the following elements: misconduct,

7 existence and amount of damages, direct connection

8 between misconduct and damages, wrongdoer’s fault.»

9 So it is another example, certainly, of the court

10 expressing itself as requiring direct causation?

11 A. Yes, direct but not immediate. Maybe direct in

12 the sense that Mr Egorov said it. Maybe it’s a ritual

13 phrase from the olden times, but as Professor Maggs

14 says, we should look at the substance, not at the

15 labels.

16 Q. Yes, you keep saying the phrase:

17 «Direct causation is from the olden times».

18 But this is another quite recent case, isn’t it,

19 2014?

20 A. Yes, but it is influence of the traditional attitude.

21 The statutory law doesn’t contain it and doesn’t define

22 it.

23 Q. So whatever we think the phrase means, we are looking

24 for a defendant’s act which must be the necessary cause,

25 I think is how you put it, of the harm?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

147 :1 A. Yes.

2 Q. Just moving swiftly through the other aspects of 1064,

3 if we can go back to the joint memorandum, which is in

4 {E4/15/6}. I just want to look at what the two of you

5 agreed at paragraph 36, where you see:

6 «Any harm, unless expressly authorised by a statute,

7 is presumed to be unlawful. Both harmful acts and

8 harmful omissions entail liability. The defendant has

9 to demonstrate not that his actions were lawful, but

10 that the harm caused falls within an expressly defined

11 category of a harm caused lawfully. The burden of proof

12 for exculpation is on the defendant.»

13 So that much is agreed.

14 Then at 37:

15 «Examples of lawful harm are narrow and specific,

16 such as ‘harm in a state of necessary defence’ …

17 however, harm caused during enforcement of legal rights

18 may, on the facts, attract both civil and criminal

19 liability, if harm is caused beyond what is allowed by

20 law. Thus, taking of property as a sanction with proper

21 judicial verification, during lawful enforcement of tax

22 and customs laws, is not regarded as harm.

23 Misappropriation of property under the guise of

24 enforcement of spurious civil claims would be regarded

25 as harm.»

148 :1 A. Correct.

2 Q. So what I take from that is harm caused during

3 enforcement of legal rights you say may be lawful or may

4 be unlawful. If harm is caused beyond what is allowed

5 by the law, it is unlawful.

6 A. Yes, the criterion is, of course, in many cases

7 Article 10, abuse of rights. In Article 10, the

8 threshold measures whether or not I have a right which

9 I then abuse. So if I enforce my right, this is not the

10 end of the story; it’s the beginning of the analysis,

11 whether or not I abuse it.

12 Q. I understand. So if the defendant is acting in

13 enforcement of his right but not abusing that right,

14 then it is lawful. If he is enforcing his right in

15 a way which constitutes abuse of right, then it is

16 unlawful?

17 A. Sorry, say it again?

18 Q. I was simply trying to reflect back what you had said,

19 really, which is that if the defendant was acting in

20 pursuit of his legal right in a way that was not

21 an abuse of that right, it is lawful, but if he was

22 acting in a way that did abuse that right, it is

23 unlawful.

24 A. That one of the — yes, this is one of the positions.

25 There may be other factors which we should — as I said,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

149 :1 Article 10 is one of the criteria, not the only

2 criterion.

3 Q. We have looked at what you said in paragraph 37, and

4 I think what Professor Maggs says is that a good faith

5 enforcement of a defendant’s contract or his property

6 rights is lawful for this purpose, and I think that

7 would be something that you would agree with, given

8 paragraph 37, isn’t that right?

9 A. Good faith conduct which doesn’t breach any other laws

10 apart from Article 10 of course would be lawful.

11 Q. Yes. Presumably if a bank is entitled to enforce its

12 rights under a pledge, for example, and sells property

13 according to the law in a way that doesn’t constitute

14 an abuse of rights, that is not something that’s

15 unlawful?

16 A. If there is no abuse of right and if there is no breach

17 of any other law, then it is by definition lawful.

18 Q. Thank you.

19 Can we move on to a subject that we have touched on

20 briefly already, and it is, in a sense, structural in

21 terms of Russian law and the code, which is the question

22 of whether there is a rule against the competition of

23 claims?

24 A. Yes.

25 Q. Now, I understand that this is something that is clearly

150 :1 disputed between you and Professor Maggs. You say there

2 is no such principle, whereas Professor Maggs says it is

3 an intrinsic part of Russian law, and in particular, he

4 says it prohibits bringing a tort action against a party

5 to a transaction governed by those provisions of

6 the code on transactions.

7 A. Yes.

8 Q. And just for context, I think this is another point that

9 was considered in the Fiona Trust judgment that you

10 cited on the elements of 1064, if we could briefly look

11 at that in {Auth1&Auth2/5/1}.

12 MR JUSTICE HILDYARD: Do I have those separately in hard

13 copy? I don’t know whether I have. I’m so sorry to

14 interrupt.

15 MR BIRT: Can I just ask behind me, my Lord?

16 MR JUSTICE HILDYARD: Yes. (Pause).

17 MR BIRT: I am afraid I can’t immediately give my Lord the

18 answer.

19 MR JUSTICE HILDYARD: That’s fine.

20 MR BIRT: But we can certainly supply them, if that would

21 be …

22 MR JUSTICE HILDYARD: Let’s see how we go.

23 MR BIRT: If we go to {Auth1&Auth2/5/31} and

24 {Auth1&Auth2/5/32}, please. This is a summary of

25 the law found in that case, starting at paragraph 85,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

151 :1 and where the judge there found that:

2 «The relationship between the parties is key to

3 deciding which provisions of the codes are relevant to

4 determining a dispute. Thus, as between parties to

5 a contract, generally disputes are to be resolved in

6 accordance with the law concerning contracts and the

7 contract itself, and the contracting parties cannot

8 bring claims on any other basis.

9 «Professor Maggs [in that case] explained that this

10 reflects a prohibition under Russian law against

11 ‘competition between claims’ and is an application of

12 a broader principle that a special rule prevails over

13 a general legal rule.»

14 He goes on in paragraph 86 to talk about some

15 specific examples that arose in that case in relation to

16 employment contracts and the labour code. Of course we

17 haven’t got the same examples in this case, so I don’t

18 want to take particularly time up with them unless there

19 is anything you want to say about them, but would it be

20 right to say you disagree with what is said there at

21 paragraph 85?

22 A. It would not perhaps be exact, what I would say.

23 I would say that Fiona Trust case was decided correctly,

24 and that in this case, indeed, a Russian claimant would

25 bring a claim only under the Labour Code, not under

152 :1 Article 15 or 1064 of the Civil Code.

2 In Fiona Trust, the issue was the amount of

3 compensation, if I remember correctly. Under Article 15

4 of the Civil Code, the compensation for harm must be

5 full. This is a parameter of principle of Russian law.

6 Under the Labour Code, the liability of an employee

7 is capped, so the issue was how to reconcile those two

8 positions.

9 Professor Maggs says on the basis of prohibition of

10 claims. No Russian lawyer would say that. The problem

11 is that under Article 15, there is a specific exception

12 which says: unless otherwise provides by statute or

13 contract.

14 The statute which provides otherwise is the Labour

15 Code. A Russian lawyer or a Russian judge would say:

16 this is the Civil Code, this is the general rule. It

17 specifically allows for exceptions in a statute. This

18 is the statute, I apply this. No need at all for

19 an interfering cause to say that there is a sort of

20 general injunctions, vague, undefined of competition of

21 claim, no Russian lawyer would do this.

22 This is why in my supplemental report I cite at

23 length a leading professor of civil law in Russian,

24 Professor Belov who says there is no principle of

25 special law derogating from the general law in

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

153 :1 the Russian Civil Code, and this is one example of

2 the techniques of the legislative technique which

3 Professor Belov explains, and which is an example of

4 what was decided in the Fiona Trust case.

5 So generally rules of the Civil Code prevail over

6 every other special legislative provision. There is no

7 such rule in Russia, as in civil law that general law

8 should give way to a specialised statute. Unless there

9 is a specific legislative authorisation, as in

10 Article 15, I know that Professor Maggs disagrees with

11 this and he cites examples, all examples are not from

12 the Civil Code. The Civil Code is a part of.

13 Q. We will pick up some of those points as we go through.

14 I think the summary is you disagree with the finding of

15 the court there that there is a principle against

16 competition of claims, but you accept that there was, in

17 that specific situation, a sort of legislative or

18 a provision in the code which dictated the same answer:

19 that the Labour Code had to prevail there over a general

20 provision of the Code.

21 A. I wouldn’t call it the same answer because this would

22 imply that a real position of competition of claims

23 exists and it provides the same answer. It doesn’t. As

24 Judge Vitriansky had said in the passage that I have

25 cited, the competition of claims is an invention of

154 :1 academics. The civil Code provides the only answer that

2 in cases such as this, apart from a narrow exception of

3 vindication claim, to which we might come or might not,

4 a Russian judge would apply.

5 Q. Before we go to some of those cases, can I just look

6 with you at what you have said in your report. First of

7 all, in your first report in {E4/14/14}, please. I am

8 just asking you to look at paragraph 51 at the top of

9 that page, please?

10 A. Yes.

11 Q. This is your general introduction to 1064. You explain

12 that:

13 «[It] is a general rule for compensation of harm.

14 As a rule, it applies in cases where the harm did not

15 result from a breach of contract. (If harm is caused by

16 a breach of contract, a similar rule in Article 393

17 applies. However, the distinction is not clear cut.

18 Russian courts may apply both articles … to

19 compensation of harm caused by a breach of contract).»

20 We will come on later to some of the examples you

21 give where you say both those articles are in play but

22 can I just ask you first of all about what you say the

23 general position is. You say here that as a rule, 1064

24 applies in cases where the harm did not result from

25 a breach of contract.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

155 :1 What do you mean by that? Do you just mean

2 generally, or do you mean that there is a rule, or

3 something else about it?

4 A. Yes, there are, as I said, Professor Osakwe in his

5 commentary to the Civil Code said that — he is using

6 some of the ugly terminology, but it is indicative. He

7 says that in Russia there are freestanding torts and

8 contractual torts. So it is either Article 1064 or

9 Article 393 or both.

10 Article 1064 is an article that provides for

11 a general regime for compensation of harm. Article 393

12 provides for a specific regime for compensation of harm

13 in cases of a breach of an obligation, any obligation.

14 Obligations arise under the Russian law from three

15 sources: from contract, from tort, or from a statute.

16 So if, for example, my statutory right is violated,

17 I have a remedy under Article 393. If my counterparty

18 in a contract broke the contract, I have a recourse for

19 him for compensation of harm under Article 393.

20 The heads of damages, as for Article 1064, are taken

21 from Article 15. Often Russian courts do regard

22 Article 393 as being a nomination of Article 1064 or

23 they applied it jointly to cover any harm not covered by

24 a contractual wrong.

25 Q. Well, Article 393, for example, I think you have said it

156 :1 is part of the general law of obligations, isn’t it?

2 A. It is in this section of the general law of obligation

3 and it is compensation for harm caused by a breach of

4 obligation, and obligations arise from contract, tort

5 and statute.

6 Q. Yes, so Article 393 might arise in a tort case to do

7 with 1064, or it might arise in a breach of contract

8 case, or you said it might arise in a case relating to

9 breach of a different sort of an obligation?

10 A. Well, not quite. There are situations where Article 393

11 of course doesn’t arise. It’s a harm which is caused to

12 a body or property without intermediation of a contract.

13 So if there is a contract, our relations are shaped by

14 a contract, it doesn’t mean that I cannot bring a claim

15 in tort which is under Article 393 and, as the Russian

16 courts believe, under Article 393 and Article 1064

17 jointly.

18 Q. We will come to that. You are getting slightly ahead,

19 and you know we don’t agree with that, but I am just

20 establishing, Article 393 could arise in a case which is

21 a breach of contract case, or it could arise in a case

22 which is a 1064 case, and you would say they could be

23 the same case, and I would disagree.

24 A. How would you define a 1064 case?

25 Q. Well, a case where liability arises under 1064. You

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

157 :1 have previously, I think, referred to it as tort.

2 A. I don’t think that all cases that might arise under

3 Article 1064 would at the same time arise under

4 Article 393. In fact, if there is a contract and

5 a breach of contractual obligations, the Russian courts

6 will decide that this contract — that this case should

7 proceed under Article 393.

8 I think Professor Maggs in his supplemental report

9 cites a case which I also cite in my principal report

10 as — I cite it as a report where — as a case where the

11 highest Arbitrazh court gives a good example of how 393

12 is different from 1064. There a case was brought for

13 damages, and the Russian courts regarded it under 1064

14 and rejected it.

15 The highest Arbitrazh court said: no, you should

16 review the case, it’s the case under Article 393. Why?

17 Because the standard of proofs under Article 393 are

18 lower than under Article 1064. For example, the

19 liability under Article 393 is an essentially strict

20 liability, the only defence is force majeure. You

21 cannot provide exculpation.

22 Q. Yes, I think we may have been talking slightly at cross

23 purposes. My question was, really, a slightly simpler

24 one, which is that the sections dealing with the general

25 law of obligations, so articles you refer to 393 and

158 :1 elsewhere to Article 401 in the Code.

2 A. Yes.

3 Q. And I think you have confirmed this: they are not

4 articles which are specific to contractual obligations

5 or to a case to do with a breach of contract —

6 A. Sorry?

7 Q. — they may arise in a case to do with a breach of

8 contract, equally they may arise in other cases to do

9 with other sorts of obligations as well.

10 A. Oh yes, this is a breach of obligation, whatever its

11 source, and there are three sources, as I said.

12 But in practice, it would arise only under breach of

13 contract and a breach of a statutory obligation, because

14 for a freestanding tort you have Article 1064.

15 Q. Well, it’s the case, isn’t it, that if you have a claim

16 being brought under 1064, it might well include

17 reference to Article 393 as well, Article 393 being part

18 of the general law, whereas 1064 is a more specific

19 rule, isn’t it?

20 A. No, I think it is the other way around: 1064 is a more

21 general rule and Article 393 is a more specific rule

22 which applies to contracts, to obligations.

23 Q. We will have to look at those in some other cases,

24 I think.

25 Can we have a look at one of the cases that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

159 :1 Professor Maggs cites in relation to competition of

2 claims, please?

3 A. Yes.

4 Q. We can find that at {E4/13/137}.

5 A. Yes.

6 Q. This is an information letter of the High Arbitrazh

7 Court of the Russian Federation, which is the sort of

8 letter or guidance I think you have said would have

9 particularly persuasive force on lower courts; is that

10 fair?

11 A. Yes, that’s correct.

12 Q. Lower courts would usually follow this sort of thing?

13 A. Sorry?

14 Q. Lower courts would usually follow this guidance?

15 A. Yes, they are expected to.

16 Q. Yes. This, I think, Professor Maggs was taken to this

17 earlier on. The principle, in a sense, is stated in

18 the first paragraph, numbered 1:

19 «If a party which had transferred its property for

20 the purposes of an invalid transaction makes a claim for

21 its recovery from illegal possession of the other party

22 to the transaction under Article 301 of the Russian

23 Civil Code, the court shall deny [the] claim.»

24 This was a case, wasn’t it, where the fact that

25 there was a contractual relation between the parties,

160 :1 such that there was a remedy or cause of action under

2 Article 167, causes the court here to say: you can’t

3 circumvent that by going under Article 301?

4 A. Absolutely, and this is a correct position which the

5 Russian courts adhered to, and I also mentioned this.

6 I mentioned about 13 cases such as this in my report,

7 even when the term «competition of claim» was

8 specifically used by Russian courts, and I do mention

9 that is as precisely in cases like this, where the

10 choice is between vindication and restitution. So when

11 our relationship are shaped by a contract, then the

12 vindication is not available where restitution is.

13 The point here is that there is no — in this

14 particular case, the choice between restitution and

15 vindication, there is no very good pathway towards

16 a firm statutory rule which would lead a judge firmly to

17 choose between those two. Whereas in respect of the

18 claim under 1064 and claim 393 it does exist.

19 In these cases, the judges struggled. This is

20 an early version how to do it. I think it is 2000 —

21 well, it’s —

22 Q. 2008?

23 A. It’s an intermediate version. Before that, around this

24 time, the courts also used the academic theory of —

25 what do you call it — competition between claims, and

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

161 :1 in a recent guidance, which I also cite in my report,

2 which supersedes this, because under the law on merger

3 between two Russian courts, if the highest Arbitrazh

4 court issued a guidance, it will apply until superseded

5 by the Supreme Court.

6 So in recent guidance, the Supreme Court, with

7 a view to cases like this, said that in cases of

8 vindication against restitution, you should adhere to

9 the set of rules that most closely describe the

10 relationship between the parties. So if the parties

11 have a contract between them, then it is restitution.

12 If they do not have a contract between them, then it is

13 vindication.

14 But, again, all these examples are related to

15 vindication or restitution. You cannot project

16 a general rule of the Russian law on competition of

17 claim. It just doesn’t exist.

18 Q. Well, let’s just look at some of the points they make,

19 and we will have to go through some of the cases. You

20 have cited a number that I am afraid we will have to go

21 through just to see whether you can make good the points

22 you make. If you look at page 138 here, which is the

23 second page of this information letter {E4/13/138}.

24 A. Yes.

25 Q. And you are absolutely right, this is, of course, in

162 :1 the context of a vindication claim, and you are right

2 that a number of the cases do address this point in that

3 particular context, but it is the reasoning I just want

4 to look at for a minute. So:

5 «It was established by the courts that the parties

6 had made and performed a void transaction. Each party

7 shall return to the other everything it had received

8 under such void transaction as required by Article

9 167(2) of the Russian Civil Code, which states that the

10 returning shall be of a bilateral nature. It means that

11 the judgment in respect of the claim made under Article

12 167(2) of the Russian Civil Code must deal with the

13 issue on duty of each of the parties to return

14 everything it had received under the transaction. Since

15 the law provides for special consequences of invalidity

16 of transactions, the rules on recovery of property from

17 illegal possession (Articles 301, 302 of the Russian

18 Civil Code) do not apply to the relations between the

19 parties.»

20 A. Yes.

21 Q. That was key to their decision, wasn’t it? That is the

22 reason. They’ve looked to see where does the law

23 provide for the special consequences of this situation

24 and if it does so, then that is what is applied, not

25 some other rule that applies to maybe a wider set of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

163 :1 circumstances?

2 A. No, it doesn’t say that. It says that where you have

3 a contract, that restitution is available, and

4 vindication is not. It doesn’t say that claim under

5 Article 393 with Article 1064 is not available. This is

6 a very narrow issue: restitution against vindication.

7 Q. Yes, well, it clearly doesn’t say anything specifically

8 about 393 or 1064. I am simply looking at the way in

9 which it has reasoned and how it has got to the position

10 in this case about applying 167 instead of 301. On the

11 face of it 301 would give a particular remedy. However,

12 they say that there is another article which provides

13 special consequences for this situation, and that’s the

14 one that applies to the exclusion of the other rule.

15 That is the short reason, isn’t it?

16 A. Yes, if you are faced with choice between restitution

17 and vindication. However, it doesn’t address the

18 situation, for example, where a harm has been caused to

19 a plaintiff, then clearly restitution is not the remedy.

20 Harm has to be compensated and in full under the

21 peremptory rule. So then it is either Article 1064 or

22 Article 393 or those two in conjunction.

23 So this broad language does not address the issue of

24 harm. If harm has been caused, it has to be

25 compensated. There is no way around it. The harm

164 :1 cannot be compensated by restitution. The harm can be

2 compensated by the categories caught by Article 15 of

3 the Civil Code, and this is common ground between me and

4 Professor Maggs, which we have recorded in the joint

5 memorandum.

6 Q. Yes, I mean, I was really just asking you about the

7 reasoning in this case, but I think what you are saying

8 is you agree with what I’ve said was the reasoning, but

9 you say it applies only to this case, it doesn’t apply

10 more widely; is that the gist of your answer?

11 A. The guidance was issued, if you see the title. It’s on

12 certain matters related to recovery of property from

13 illegal possession. It doesn’t relate to issues of

14 harm.

15 Q. No.

16 A. When a High Court in Russia issues a guidance, it tries

17 to narrow its scope of obligation as much as possible

18 not to compete with the statutory language. It provides

19 guidance in specific cases. Here it provides a guidance

20 on how you should choose between a restitution and

21 vindication.

22 Q. Could we have a look at one of the cases you cite,

23 please?

24 A. Yes.

25 Q. We need to go to your report at paragraph 270, please.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

165 :1 My Lord, I don’t want to try your Lordship’s

2 patience with making you sit later than you would like

3 to; is there a particular time by which you would like

4 me to have —

5 MR JUSTICE HILDYARD: Well, what suits you? I assume you

6 won’t conclude today?

7 MR BIRT: My Lord, I will be nowhere near concluding today,

8 no. I think it is unlikely I am going to finish this

9 topic today. There are a number of cases that we will

10 have to go through. They will take varying amounts of

11 time. I can certainly carry on for a bit, I am very

12 happy to do so to use a bit more time. There’s probably

13 not going to be much of a natural break, I have to say.

14 MR JUSTICE HILDYARD: Sorry?

15 MR BIRT: There probably isn’t going to be much of a natural

16 break except for when I have got to the end of one case

17 before I go on to the next.

18 MR JUSTICE HILDYARD: Right. Well, does, say, 4.30 or

19 thereabouts, suit you, and take the unnatural break of

20 a case if that suits you?

21 MR BIRT: Completely, my Lord.

22 MR JUSTICE HILDYARD: Yes.

23 MR BIRT: Paragraph 270 of your report, Dr Gladyshev, you

24 refer to a decision of a respected Federal Arbitrazh

25 Court of the North West Circuit based in St Petersburg,

166 :1 which you say reverses a decision of the upper instance.

2 I just want to check what you mean by a «respected

3 Federal Arbitrazh Court»; you mean this is

4 a particularly respected one?

5 A. Oh yes, the judges are considered to be very good.

6 Q. And is that the particular judges in this case?

7 A. No, it’s just the general reputation of the court.

8 Q. Of the Federal Arbitrazh Court of the North West

9 Circuit?

10 A. Yes. I was there on many cases, the level is generally

11 very high.

12 Q. We probably should look at the text of the judgment,

13 which is the easiest place to pick it up from, which is

14 {E4/14.1/229}. This is a case about the lease of a land

15 plot, the lessor was the St Petersburg Property

16 Committee, and the lessee was a company called Astra, TD

17 Astra LLC. We can pick it up towards the end of

18 the page, about three paragraphs from the end. Are you

19 there? We are on {E4/14.1/229}

20 A. Ah yes, this one. Can I have the Russian text, please?

21 Q. Yes, the Russian should be immediately preceding it,

22 I think.

23 So just looking towards the end of, in the English,

24 page 229.

25 A. Mm hmm.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

167 :1 Q. There’s a paragraph that starts:

2 «It follows from the case records that … the

3 St Petersburg KUGI (the lessor) and Astra … signed [an

4 agreement] … for lease of the land plot 504.4 square

5 metres.»

6 A. Yes.

7 Q. Starting from 18 January 1996, and rent was paid by the

8 lessee from 1996 until 2000 based on the land plot area

9 in the agreement of 504 square metres.

10 A. Yes.

11 Q. And then by a subsequent judgment in 2001, that:

12 «… agreement was declared invalid as regards

13 erroneously stated excessive land plot area of 314

14 square metres (in fact the land plot is 193).»

15 So there had been a lease for a land plot of

16 504 square metres, rent had been paid on that basis for

17 a number of years, and then it was subsequently stated

18 in fact to be a much smaller land plot area, and so part

19 of the agreement was declared invalid, namely that part

20 relating to the piece of land that had been erroneously

21 included in the lease.

22 A. Yes.

23 Q. Then Astra brought a claim saying it has paid excessive

24 rent, because it had obviously paid rent on all 504

25 square metres, and seeking recovery of unjust

168 :1 enrichment, and also there was another point about

2 interest for using another person’s money.

3 A. Yes.

4 Q. «The court of first instance granted the claim [on] the

5 recovery for unjust enrichment.»

6 And if you turn over the page in the English to

7 {E4/14.1/230}. Then:

8 «The court of appeal set aside the judgment of

9 the court of first instance by stating that the civil

10 laws do not provide a person whose right was violated

11 with the right to choose the remedy at its own

12 discretion and thus it was denied the concept of

13 ‘competition of claims’ because the applicable remedy

14 shall correspond to the nature of the violated right.

15 Since the claimant brought a claim seeking the recovery

16 of unjust enrichment rather than application of

17 consequences of an invalid transaction, the court of

18 appeal concluded that the claim shall be denied.»

19 So, just pausing there, that was the Court of

20 Appeal’s decision. They effectively said: you can’t

21 have a competition of claims, the applicable remedy had

22 to correspond to the violated right. The claimant had

23 not brought a claim for the consequences of an invalid

24 transaction, which the Court of Appeal thought ought to

25 have been the claim, so the claim it had brought for

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

169 :1 something else, namely under, I think it was Article

2 1103, failed. That was in the Court of Appeal. Is that

3 right?

4 A. Yes.

5 Q. Then the Cassation Court — that’s this court,

6 I think — said — it goes on to say:

7 » … believes that this conclusion … is not based

8 on the legislation. In essence, the claimant made claim

9 seeking the recovery of everything that had been

10 performed under the void transaction (its part). Under

11 Article 1103 … the provisions on unjust enrichment

12 shall apply to claims seeking the recovery of everything

13 that had been performed under a void transaction,

14 provided that the following two conditions are met.»

15 One is:

16 «Unless otherwise is provided by the code, other

17 laws and regulations and unless otherwise follows from

18 the substance of the relations between the parties.»

19 A. Yes.

20 Q. In this case:

21 «… it can be concluded that otherwise is provided

22 by 167(2) of the code. However, the relations between

23 the parties are such that this Article may not apply to

24 them. This Article provides for an obligation of each

25 party to return to the other everything it had received

170 :1 under the transaction. However, in the case in

2 question, [Astra] … did not receive the land plot of

3 314 square metres and did not use it. [So] it is under

4 no obligation to return this land … the obligation to

5 return everything that was received under the invalid

6 part of the transaction (excessively paid rent for the

7 land plot which was not made available) is imposed only

8 on the lessor. [So] it is impossible to apply the

9 bilateral restitution. Assuming this, the claimant’s

10 claim to recover the amount excessively paid for the

11 lease shall be granted under Article 1103 of the Russian

12 Civil Code.»

13 A. Yes.

14 Q. So the Cassation Court overturned the decision, but what

15 is important, isn’t it, is the basis on which they did

16 so. The claimant had brought its claim under Article

17 1103.

18 A. Yes.

19 Q. And the court below had said: no, you can’t have 1103

20 because the right claim is Article 167(2)?

21 A. Correct.

22 Q. And because you can’t have competition of claims, you

23 can’t have your 1103 claim?

24 A. No, the cassational court doesn’t say that.

25 Q. Isn’t that exactly what it says — no, no, that’s what

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

171 :1 the Court of Appeal said.

2 A. Yes.

3 Q. And the cassational court said: that’s wrong, you can’t

4 have a 167(2) claim here. In other words, the key bit

5 of reasoning of the Court of Appeal it was disagreeing

6 with, isn’t it, is whether or not you could have the

7 bilateral restitution claim, as they describe it, under

8 Article 167(2), and the Court of Appeal said: that’s

9 what you should be having, not a 1103 claim.

10 A. Yes.

11 Q. Whereas the cassational court said: no, no, no, Article

12 1672 doesn’t apply. This is not a bilateral restitution

13 case, so you are clear to go ahead with your claim under

14 Article 1103; isn’t that what they decided?

15 A. Yes, it was, and what is significant here is that the

16 appellate court directly referred to the principle of

17 the competition of claims. It said that the claim in

18 this case denied the concept of the competition of

19 claim, and that, said the Court of Appeal, is improper.

20 It is improper to deny the competition of claims in

21 Russia, and the cassational court said: no, the

22 appellate court applies the law incorrectly and that

23 provided a clear, statutory reasoning without any

24 reference at all to the concept of the competition of

25 claims.

172 :1 So this is why I included this case into my report.

2 So this is how the Fiona Trust case should have been

3 reasoned. That is to say, without references to

4 the competition of claim, because according to

5 the cassational court, that constitutes improper

6 application of legislation.

7 Q. Sorry to interrupt you, but the cassational court

8 doesn’t say anything about the concept of competition of

9 claims being improper or not based on the legislation,

10 does it? The conclusion is not based on the

11 legislation?

12 A. The cassational court says that this conclusion of

13 the appellate reasons, that is to say that the

14 conclusion is that there is a competition of claim

15 concept which a party cannot violate, and the cassation

16 says: no, this is not what the Russian law is — this is

17 not what the Russian statutory law is.

18 So this is a clear case where a cassational court

19 says this is the firm statutory reasoning and you refer

20 to the competition of claims and this is not based on

21 the legislation and we apply law, not the competition of

22 claims. This is the implication.

23 Q. I’m sorry, the cassational court does not criticise the

24 reasoning about competition of claims. The point that

25 the cassational court disagrees with the Court of Appeal

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

173 :1 about is whether Article 167(2) applies, doesn’t it?

2 And the Court of Appeal had held that 167(2) ought to

3 apply, that is why it denied the 1103 claim, whereas the

4 cassational court said: no, 167(2) does not apply. That

5 was the key point of dispute, wasn’t it, whether Article

6 167(2) applied?

7 A. That was the point of the dispute, but that was not what

8 the cassational court disagreed to with its reasoning.

9 The cassational court did not resolve the dispute. The

10 cassational court does not look into the facts. The

11 cassational court is prohibited to look into the facts.

12 The cassational court may look only into the application

13 of law —

14 Q. Yes, and that’s what they are doing, isn’t it? I’m

15 sorry to interrupt you, but isn’t that exactly what they

16 are doing when saying that Article 167(2) does not

17 apply? They have looked to see whether that applies or

18 not. What they don’t say — isn’t this notable — what

19 they don’t say is it doesn’t matter whether 167(2)

20 applies or not because the claimant could bring

21 an Article 1103 claim in any event. The reasoning they

22 employ is to decide whether or not Article 167(2)

23 applies before coming on to say whether Article 1103 —

24 the claim under Article 1103 can succeed?

25 A. Yes, and this is how it should be decided, on purely a

174 :1 statutory basis. However, the cassational court saw it

2 fit to reproduce in its very short decision — and

3 decision is a mere two pages, and if we take where it

4 says something significant, it is less. So it sought

5 fit to reproduce a single paragraph from the appellate

6 court instance where the appellate court doesn’t refer

7 to a single provision of the statutory law; it refers to

8 the competition between claims. And cassational said:

9 this is not based upon legislation, and that gives

10 a firm statutory reasoning without any resort to

11 the competition of claims.

12 Q. When it is saying it is not based on legislation, isn’t

13 its point that the conclusion about the application of

14 Article 167(2) is wrong? Surely if they had disagreed

15 with the concept of the competition of claims, they

16 would have (a) said so, and (b) not had to bother about

17 Article 167(2)?

18 A. But they said so. They said — this is how Russian

19 judges approach it. Probably the issue is not to look

20 at Russian judgments from the perspective of an English

21 lawyer. So this is how Russian judges reason. So they

22 take a passage from the decision that they find

23 particularly abhorrent, which is particularly graphic,

24 and they say: this is wrong.

25 So they chose to take the passage which is based

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

175 :1 exactly on the competition — I’m sure that the

2 appellate court in the very bottom of its decision

3 referred to specific articles, as is the habit of every

4 court in Russia. In Russia under procedural codes, each

5 decision must include a reference to specific articles

6 of a statute that the court applies.

7 Here the cassational court chose not to argue with

8 the choice of articles, but to argue with the choice of

9 concept, and to say that it is not based on the

10 legislation.

11 Q. But if you are right, and if the point they were

12 disagreeing with was whether there was competition of

13 claims allowed or not, so in other words, if their view

14 was: you can have competition of claims between these

15 two provisions, then what was the point of them

16 addressing 167(2) at all? Surely all they then had to

17 do was address whether Article 1103 fitted the facts of

18 the case?

19 A. But there is a cause of action under both of these

20 articles in theory which was the choice in this

21 particular case, and the cassational instance decided

22 the issue of choice without any reference to the issue

23 of competition of claims. This is solid statutory

24 reasoning, and it said that the previous reasoning,

25 which doesn’t refer to any particular provision of

176 :1 the black letter Russian law, and based on the — as

2 they say — denial of the competition of claim by the

3 trial court, is wrong.

4 MR JUSTICE HILDYARD: Can I see whether I have understood

5 your explanation of the case. The cassational court

6 appears to have said: there is no competition because

7 one of the features for one alternative claim is simply

8 impossible, or inapplicable, because there is no

9 question of restoring the land, it was never there in

10 the first place. It was never the claimant’s in the

11 first place.

12 A. This is correct. This is my reading, yes.

13 MR JUSTICE HILDYARD: Yes, and they might be saying, I think

14 this is what is being put to you, they might be saying:

15 we don’t even have to deal with competition of claims

16 because there is no competition because one of

17 the claims does not qualify.

18 A. That’s my reading of the case exactly. The only place

19 where other issues arise where there is no proper

20 pathway to a firm black letter law anchor is the choice

21 between restitution and vindication. This is what

22 Russian judges struggle with. But here this is not the

23 case.

24 MR JUSTICE HILDYARD: But you read the Cassation Court as

25 also saying — is this right — by their quite short

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

177 :1 sentence:

2 «The Cassation Court believes that this conclusion

3 in the Court of Appeal is not based on the legislation.»

4 To be saying that even if there was competition,

5 there is no principle of competition of claims except in

6 the vindication/restitutionary field? That’s as you

7 read it, is it?

8 A. Yes. This is how I read it, yes.

9 MR JUSTICE HILDYARD: Right. So that is how you invite me

10 to read that sentence, but it is quite a short sentence,

11 but you invest it with that meaning?

12 A. Excuse me?

13 MR JUSTICE HILDYARD: It is a short sentence but you invest

14 it with that broader meaning?

15 A. Yes, because I have experience with Russian judges.

16 MR JUSTICE HILDYARD: Yes.

17 I’m sorry, Mr Birt.

18 MR BIRT: No, my Lord, very helpful.

19 Just simply closing this case off now, in fact, you

20 don’t get anything from this judgment about whether the

21 cassational court did or did not agree with the concept

22 of the competition of claims rule in the Court of

23 Appeal?

24 A. I think there is something in what you say. The

25 cassational court was more subtle. Russian judges would

178 :1 not attack such things head-on. This is perhaps the

2 maximum that you would expect from a Russian judge

3 attacking a colleague applying the concept which perhaps

4 he shouldn’t apply.

5 I don’t think the Russian judge would see its role

6 as arguing abstract concepts. The cassational instance

7 showed a clear, statutory reasoning, and it said that

8 the conclusion which it cited in its entirety, and which

9 involved the competition of claims passage, it said it

10 doesn’t — it is not based on the legislation.

11 Q. And there is nothing in the cassational court’s

12 reasoning which is inconsistent with a rule against

13 competition of claims, is there?

14 A. I’m sorry, this is a loaded question. There is no rule

15 against competition of claims under the Russian law. So

16 of course there is nothing, because there is no rule.

17 Q. Well, the Court of Appeal below found that there was

18 a rule against competition of claims, and there’s

19 nothing in the cassational court’s decision which

20 certainly expressly disagrees with that, is there?

21 A. No. The appeal court — this is misrepresenting what

22 the appeal court said. The appeal court said there is

23 not a rule. It says there is an institution. I don’t

24 know what is an institution in Russian law. The

25 cassational instance said: this is not based on the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

179 :1 legislation, which is completely true. The competition

2 of claim, as I explained in my report, is not to be

3 found in any black letter law in Russia. It is

4 an abstract concept without clear meaning and Russian

5 courts like determinancy. They don’t like abstract

6 concepts in specific cases.

7 MR BIRT: My Lord, I think I have taken that case as far as

8 it will go, and we may have arrived at a convenient

9 moment, my Lord.

10 MR JUSTICE HILDYARD: Is that about right?

11 MR BIRT: It’s the end of that case and before the next

12 case, my Lord.

13 MR JUSTICE HILDYARD: Right, okay.

14 On timing, just so that I know roughly where we are

15 going and what I can agree to do and what I can’t, how

16 much longer do you think you will be? We were going to

17 be a day with Professor Maggs, and we were shorter. The

18 same for you, or …?

19 MR BIRT: I think when I addressed your Lordship before on

20 this I have estimated a day and a half to put

21 everything.

22 MR JUSTICE HILDYARD: Oh, did you?

23 MR BIRT: I think I will probably still be quite close to

24 that, but I may be able to finish during the course of

25 tomorrow. I have to slightly revisit — Mr Milner took

180 :1 an admirably brief approach to certain of the topics, if

2 I can put it like that, and it may be that there are

3 certain things he didn’t ask about which, in turn,

4 I don’t need to ask about, but I will revisit that

5 overnight, my Lord. That may assist in shortening it.

6 MR JUSTICE HILDYARD: All right. Well, I had forgotten you

7 said a day and a half, but from my point of view, it

8 would be helpful if we were to finish tomorrow because

9 I have, albeit a short cause, in the morning of Friday.

10 I can’t sit early tomorrow because I have another

11 meeting, but I will mark it for 10.30 therefore, and

12 keep my hopes up.

13 MR BIRT: My Lord, yes, understood.

14 MR JUSTICE HILDYARD: Yes. Thank you.

15 (4.37 pm)

16 (The court adjourned until 10.30 am on

17 Thursday, 5 May 2016)

17

18

19

20

21

22

23

24

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

181 :1 INDEX
2 PAGE

3 PROFESSOR PETER B MAGGS (Sworn) ………………….1

4 Examination-in-chief by MR BIRT …………..1

5 Cross-examination by MR MILNER …………….3

6 Re-examination by MR BIRT ……………….100

7 Questions by MR JUSTICE HILDYARD …………108

8 DR VLADIMIR GLADYSHEV (Sworn) ………………….119

9 Examination-in-chief by MR MILNER ………..119

10 Cross-examination by MR BIRT …………….121

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

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182 :1

2

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Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 41

A

abetting140:24 abhorrent174:23 ability17:25 above102:22 absent101:15 absolutely ( 8 ) 22:11

22:13 24:10 38:19 85:12 86:2 160:4 161:25

abstract ( 3 ) 178:6 179:4 179:5

abuse ( 16 ) 12:15 12:18 12:21 13:2 14:9 17:15 17:24 18:12 148:7 148:9 148:11 148:15 148:21 148:22 149:14 149:16

abused13:6 abusing148:13 abusive ( 7 ) 13:10

13:11 13:18 14:2 18:9 19:16 19:20

academic160:24 academicians132:15 academics154:1 accept ( 15 ) 9:11 20:18

28:6 34:6 37:11 37:21 54:18 59:10 59:13 60:7 61:10 64:16 64:21 68:17 153:16

acceptable ( 2 ) 61:18 64:3

accepted43:2 accompanied110:9 accordance ( 6 ) 18:2

26:9 33:25 97:7 102:8 151:6

according ( 2 ) 149:13 172:4

accordingly94:4 account60:7 accurate ( 3 ) 29:12

76:12 99:16 achieving104:7 across126:18 acted18:2

acting ( 7 ) 68:3 115:8 125:22 125:25 148:12 148:19 148:22

action ( 29 ) 4:1 11:3 16:9 66:11 68:4 68:6 68:14 68:15 86:15 86:16 86:17 86:21 88:21 89:4 95:9 110:11 110:23 112:16 112:24 115:7 118:17 129:16 131:8 131:15 139:3 145:7 150:4 160:1 175:19

actions ( 18 ) 4:11 4:21 6:9 8:18 8:24 9:7 12:25 39:4 41:1 41:19 97:2 108:12 137:18 137:24 140:11 141:2 141:13 147:9

active132:25 activities39:22

activity ( 2 ) 82:2 134:16 acts ( 7 ) 8:12 8:19

51:14 73:14 90:20 95:16 147:7

actual ( 5 ) 22:21 23:5 28:22 55:6 88:23

adding32:8 addition ( 3 ) 13:15

32:21 115:20 additional ( 6 ) 12:9

20:10 32:1 65:2 68:11 81:19

additions121:4 address ( 5 ) 43:4 162:2

163:17 163:23 175:17

addressed ( 2 ) 131:11 179:19

addresses130:13 addressing175:16 adds135:16 adduce25:18 adhere161:8 adhered160:5 adjourned180:16 Adjournment ( 2 ) 89:16

89:19 administration110:15 administrator ( 18 )

90:14 90:15 90:22 91:1 91:5 91:9 91:12 91:18 91:20 111:2 111:15 111:17 111:23 112:4 112:13 112:17 112:24 115:10
admirably180:1 admission ( 2 ) 31:12

31:19 admit31:11 admits31:15 admittedly88:4 advantage ( 4 ) 16:22

21:20 77:20 99:7 adversely117:4 advertisements ( 2 )

104:23 104:24 affected117:4 affects35:16 afford ( 2 ) 113:15

115:23

afraid ( 4 ) 54:19 81:3 150:17 161:20

after ( 9 ) 76:14 93:25 94:3 102:6 114:7 121:25 132:14 137:6 137:14

afternoon ( 3 ) 89:18 121:9 121:10

again ( 33 ) 2:22 5:7 7:24 8:3 8:7 9:3 10:3 11:12 16:6 16:19 23:3 33:20 34:3 39:1 39:17 44:2 46:7 46:21 59:24 62:25 65:11 65:24 84:17 99:21 103:10 105:22 105:24 111:24 113:14 115:6 122:3 148:17 161:14

against ( 41 ) 9:23 37:13 66:19 67:4 67:19 68:1 68:18 68:19 77:25 78:20 83:25 84:16 86:14 89:23 90:1 90:7 90:23 93:25 98:23 100:16 110:2 111:23 113:17 114:12 114:17 116:7 116:14 118:9 118:14 142:17 143:6 143:18 149:22 150:4 151:10 153:15 161:8 163:6 178:12 178:15 178:18

agree ( 48 ) 4:2 4:15 4:24 5:23 15:8 21:2 31:14 31:16 34:25 35:20 40:17 43:14 43:23 48:22 50:1 52:18 52:22 53:5 53:10 54:23 55:3 55:6 55:10 56:4 61:1 61:20 69:11 84:11 86:1 89:3 106:12 107:8 108:18 130:12 130:16 130:17 131:15 131:22 134:20 136:17 140:14 141:21 142:3 149:7 156:19 164:8 177:21 179:15

agreed ( 27 ) 20:11 21:8 23:9 31:9 42:16 48:17 48:23 50:5 52:11 52:14 52:25 53:3 53:19 53:22 53:25 55:11 55:15 55:19

56:2 56:3 56:15 56:16 63:8 107:10 129:12 147:5 147:13

agreeing49:14 agreement ( 132 ) 10:7

10:22 11:1 19:24 20:8 21:6 21:7 21:11 21:16 21:23 21:25 23:2 23:16 24:6 24:7 25:19 25:21 25:22 25:24 26:7 26:8 27:7 27:8 27:9 27:11 27:13 28:1 32:1 32:2 32:4 32:21 33:5 33:10 33:22 34:6 35:22 37:19 38:2 38:6 38:8 38:11 38:21 38:24 39:2 39:12 39:14 39:24 41:18 41:21 41:24 42:10 42:23 42:24 43:1 43:5 43:14 43:20 44:18 47:21 47:22 47:23 50:2 50:21 50:24 51:2 51:16 51:20 51:23 52:1 52:4 52:9 52:9 52:16 52:17 53:1 53:4 53:13 53:15 54:3 56:10 57:15 57:15 57:18 58:5 59:17 59:18 60:9 63:9 64:24 65:5 65:9 65:15 65:20 65:21 65:24 66:1 66:4 66:5 66:7 66:8 66:10 67:7 67:9 67:13 67:14 73:22 73:24 105:4 105:17 105:21 106:5 106:6 106:8 106:12 106:12 106:15 106:17 106:21 107:2 107:5 107:6 107:7 107:7 107:9 107:9 107:15 107:16 107:18 167:4 167:9 167:12 167:19

agreements ( 7 ) 37:24 70:4 105:3 107:23 107:24 128:19 128:20

ahead ( 6 ) 35:14 73:5 107:8 109:13 156:18 171:13

aiding140:24

Akva-Ladoga ( 2 )

105:13 105:23 albeit180:9 allegations73:16 alleged ( 2 ) 14:11 27:7 allegedly136:2

alleges ( 2 ) 14:24 14:25 allow ( 11 ) 18:3 32:6

79:10 84:7 84:14 89:21 92:11 94:19 96:2 97:9 114:22 allowed ( 16 ) 13:2 13:3

72:1 74:2 75:1 77:14 80:16 83:20 84:20 86:4 90:12 92:17 110:12 147:19 148:4 175:13

allowing ( 5 ) 64:14 80:11 84:13 95:10 109:25

allows ( 11 ) 63:20 80:6 84:15 93:9 93:12 93:14 95:23 95:25 97:10 106:16 152:17

almost95:8

along ( 4 ) 2:25 27:25 29:15 141:22

already ( 3 ) 49:20

91:14 149:20 also ( 45 ) 2:4 2:15

3:18 10:15 13:16 22:18 23:7 26:2 30:5 32:22 35:16 36:6 51:14 59:13 60:10 63:11 63:13 68:24 78:15 80:22 82:1 84:6 100:22 105:2 111:22

114:4 116:7 116:9 118:2 120:9 122:14 123:21 124:2 124:7 124:10 124:16 129:18 135:19 141:25 157:9 160:5 160:24 161:1 168:1 176:25

alternative ( 4 ) 69:25 74:14 111:12 176:7

alternatively108:25 although ( 7 ) 13:25 52:6 63:22 77:17

128:9 140:16 141:24 always ( 12 ) 55:20 91:7 98:17 99:10 99:11 99:13 106:9 106:10 111:20 118:21 126:2

134:25 ambassador112:23 ambiguity ( 5 ) 35:1

35:6 38:12 61:8 61:9 ambiguous ( 2 ) 61:23

145:9 ambit70:5

amended ( 2 ) 14:4 54:5 amendments112:15 among ( 3 ) 10:5 79:24
138:5

amount ( 5 ) 6:4 137:11 146:7 152:2 170:10 amounts ( 3 ) 7:13 20:2
165:10

analogy ( 4 ) 47:15 47:21 49:13 51:19

analyse128:22 analysis ( 6 ) 6:22 37:1

65:20 86:10 88:4 148:10

anchor176:20 and/or132:7 Andrew130:6 Anglo-American27:18 annulled11:11 annulling18:5 another ( 22 ) 13:1

15:17 24:22 35:11 42:21 47:22 56:9 62:17 89:24 95:22 103:16 106:18 122:14 126:15 130:19 146:9 146:18 150:8 163:12 168:1 168:2 180:10

answer ( 24 ) 37:2 37:12 41:4 62:1 83:9 83:15 101:1 104:2 108:14 108:15 108:21 113:16 116:6 116:10 133:3 133:3 139:7 141:12 150:18 153:18 153:21 153:23 154:1 164:10

answerable90:15 answered ( 3 ) 37:1

109:9 110:25 answers100:5 Antarctica121:23 anti-monopoly ( 2 )

10:4 10:14 anticipated126:25 anybody145:20 anyone ( 4 ) 56:14 57:1

60:2 91:1 anything ( 16 ) 15:16

42:5 53:19 55:3 80:11 81:12 87:4 96:6 104:18 104:22 128:5 135:16 151:19 163:7 172:8 177:20

anyway ( 2 ) 41:17 43:9 apart ( 3 ) 104:21

149:10 154:2 apologise144:7 appeal ( 19 ) 73:7 73:8

91:10 168:8 168:18 168:24 169:2 171:1 171:5 171:8 171:19 172:25 173:2 177:3

177:23 178:17 178:21 178:22 178:22

Appeal’s168:20 appear ( 4 ) 74:21

119:10 120:11 127:25 appears ( 4 ) 36:10

62:11 74:17 176:6 appellate ( 6 ) 171:16

171:22 172:13 174:5 174:6 175:2

applicable ( 3 ) 34:3 168:13 168:21

Applicant’s ( 2 )73:12

73:16

application ( 6 ) 48:2 151:11 168:16 172:6 173:12 174:13

applied ( 5 ) 54:11 73:17 155:23 162:24 173:6

applies ( 22 ) 26:19 27:19 65:20 66:16 67:13 68:25 71:20 109:4 119:7 154:14 154:17 154:24 158:22 162:25 163:14 164:9 171:22 173:1 173:17 173:20 173:23 175:6

apply ( 42 ) 14:10 15:15 19:19 25:5 26:20 26:22 26:24 27:2 49:6 49:13 50:25 52:20 65:23 67:8 67:10 68:1 70:22 71:15 76:19 77:21 79:8 81:7 88:5 107:13 107:13 117:6 119:10 152:18 154:4 154:18 161:4 162:18 164:9 169:12 169:23 170:8 171:12 172:21 173:3 173:4 173:17 178:4

applying ( 6 ) 18:8 19:18 54:25 65:12 163:10 178:3

appraised103:19 appraiser ( 3 ) 102:19

104:11 104:16 approach ( 3 ) 135:5
174:19 180:1

approached83:16 approaches6:25 appropriate ( 2 ) 8:5

16:14 appropriateness8:7 approval131:19 approved115:11 arbitration98:1 arbitrations ( 4 ) 98:5
98:9 98:12 124:11

Arbitrazh ( 11 ) 72:19 73:7 73:11 75:6 157:11 157:15 159:6 161:3 165:24 166:3 166:8

Arctic124:18

area ( 5 ) 16:16 123:25 167:8 167:13 167:18

areas71:9

aren’t ( 5 )3:22 37:23 38:9 58:16 71:10 argue ( 2 ) 175:7 175:8

argued143:9 arguing178:6 argument ( 4 ) 50:20

51:6 51:8 53:25 arise ( 16 ) 86:9 98:13

155:14 156:4 156:6 156:7 156:8 156:11 156:20 156:21 157:2 157:3 158:7 158:8 158:12 176:19

arisen119:6

arises ( 2 ) 29:19 156:25 arising93:4

Arkhangelsky ( 21 )

14:23 20:1 20:9 20:15

25:23 27:24 35:19 36:12 40:12 40:15 40:19 57:2 58:1 59:13 60:9 67:21 69:15 82:15 126:1 126:16 127:2

Arkhangelsky’s ( 2 )

126:7 126:20

Arkhangelskys126:21 arose151:15

around ( 7 ) 77:9 77:11 83:12 107:22 158:20 160:23 163:25

arrangement ( 7 ) 9:8 11:15 12:8 40:18 55:22 125:19 127:1

arrangements ( 4 )

48:11 49:14 49:16 65:7

arrived179:8 art27:16

Article ( 177 ) 3:9 3:9 3:16 4:4 4:5 4:7 6:1 7:21 8:1 9:23 10:3 10:13 12:24 13:15 13:16 15:11 15:19 18:8 21:11 21:14 22:3 22:19 22:23 23:7 23:10 23:25 24:17 25:11 25:12 27:3 43:7 45:1 45:7 45:8 46:7 46:8 46:23 48:7 49:5 49:11 49:21 50:10 50:11 50:12 50:20 50:25 51:6 51:11 52:3 53:17 54:4 54:20 56:11 58:15 61:6 63:6 63:8 65:15 65:19 66:2 68:12 74:3 74:23 75:15 75:19 75:25 76:6 76:8 76:11 78:16 79:11 79:20 80:1 80:19 88:8 92:22 93:11 94:10 94:18 95:5 95:7 95:15 96:9 96:14 96:16 96:24 99:4 99:10 100:16 106:7 106:16 106:18 109:4 116:9 129:4 129:18 129:20 130:10 136:13 136:13 136:14 136:18 136:20 136:22 136:22 140:2 140:23 148:7 148:7 149:1 149:10 152:1 152:3 152:11 153:10 154:16 155:8 155:9 155:10 155:10 155:11 155:17 155:19 155:20 155:21 155:22 155:22 155:25 156:6 156:10 156:15 156:16 156:16 156:20 157:3 157:4 157:7 157:16 157:17 157:18 157:19 158:1 158:14 158:17 158:17 158:21 159:22 160:2 160:3 162:8 162:11 163:5 163:5 163:12 163:21 163:22 164:2 169:1 169:11 169:23 169:24 170:11 170:16 170:20 171:8 171:11 171:14 173:1 173:5 173:16 173:21 173:22 173:23 173:24 174:14 174:17 175:17

articles ( 22 ) 19:18 19:20 72:6 72:10 72:14 72:20 72:23 81:24 97:25 123:25 124:17 127:10 137:6 154:18 154:21 157:25 158:4 162:17 175:3 175:5 175:8 175:20

artificially ( 2 ) 11:22 17:2

ascertained59:7
avoidable ( 3 ) 66:11

aside ( 3 ) 16:17 63:9
67:10 70:4

168:8
avoided ( 3 ) 22:1 22:2

ask ( 18 ) 9:15 22:12
22:3

24:13 26:11 26:13
avoiding67:15

51:8 63:6 63:23 64:1 award ( 4 ) 99:19 132:18

101:4 116:6 119:5
138:23 139:8

119:10 127:4 150:15
awarded ( 4 ) 74:15

154:22 180:3 180:4
74:17 143:23 144:9

asked ( 11 ) 14:10 26:16
awarding74:6

91:19 100:4 100:18
aware ( 9 ) 14:23 15:4

100:21 105:2 108:7
15:5 16:15 37:19 46:3

108:8 109:11 118:23
59:20 59:24 60:1

asking ( 5 ) 3:8 50:18
away ( 5 ) 9:3 39:11

121:11 154:8 164:6
49:9 133:7 134:22

aspects147:2
awfully111:9

assert86:17

assertion117:15
B
assessed ( 2 ) 22:23

97:7

back ( 24 ) 5:6 12:15

assessment97:6

asset ( 12 ) 10:8 11:13
16:15 23:3 29:10 35:2

11:13 11:16 11:17
36:2 39:16 40:5 40:24

11:19 11:21 12:2 12:9
46:19 48:5 49:4 56:6

12:14 12:17 103:8
81:22 100:5 103:20

assets ( 18 ) 15:3 15:21
129:20 136:16 136:24

15:22 15:24 16:3
138:11 144:3 147:3

16:18 16:21 17:1
148:18

17:11 18:17 18:19
background ( 2 )
18:22 19:3 19:4 19:5
121:12 124:21

90:21 91:13 92:14
bad ( 6 ) 5:25 6:2 6:3

assignee115:3
64:25 83:7 88:6

assist180:5
bad-faith21:16

assistance127:5
badly86:24

assume ( 14 ) 5:17
Baker ( 3 ) 142:25 143:1

10:21 24:14 25:19
143:4

26:25 39:24 41:13
bank ( 37 ) 9:2 9:2 15:1

41:17 53:24 54:13
15:20 17:14 20:1

54:15 57:14 131:18
20:11 39:10 40:2

165:5
40:16 40:18 41:7

assumes ( 2 ) 56:11
41:7 42:2 42:5 42:7

113:16
42:15 42:16 42:17

Assuming ( 9 ) 9:12
45:25 46:16 46:20

17:7 41:7 41:12 42:17
47:13 48:9 48:17

48:17 48:19 104:3
49:10 49:14 49:17

170:9
57:1 57:20 58:9 67:18

assumption26:19
68:14 68:15 69:3

Astra ( 5 ) 166:16
69:16 149:11

166:17 167:3 167:23
Bank’s ( 5 )39:12 40:21

170:2
48:12 48:14 68:15

attack ( 2 ) 14:4 178:1
banking43:11

attacking178:3
bankrupt ( 4 ) 90:13

attempt52:15
91:13 109:25 111:5

attitude ( 2 ) 132:14
bankruptcy ( 34 ) 13:21

146:20
14:4 84:14 90:13

attract ( 2 ) 103:13
90:15 90:22 90:25

147:18
91:5 91:7 91:9 91:11

attractive11:19
91:11 91:12 91:18

attribute141:19
91:20 94:2 110:2

auction ( 19 ) 9:19 9:22
110:8 111:14 111:14

11:11 11:14 11:18
111:23 112:13 112:15

11:20 11:20 11:24
112:16 113:12 113:23

100:11 100:15 101:21
114:6 114:7 114:14

102:3 102:5 102:17
114:15 115:9 115:10

102:17 102:18 103:3
115:22 116:1

103:4 104:9
bar ( 9 ) 67:5 67:20

auctioned102:9
68:20 68:21 68:25

auctions ( 3 ) 9:16
69:6 109:18 125:9

11:12 102:25
125:10

Auth1&Auth2/5/1150:11
bargained89:11

Auth1&Auth2/5/31150:23 barred67:22 Auth1&Auth2/5/32150:24 based ( 32 ) 7:11 15:8
Auth1&Auth2/5/36130:21
29:22 30:10 30:20

Auth1&Auth2/5/37130:25
68:11 69:1 69:18

author134:1
70:25 71:2 81:23

authorisation153:9
94:10 117:8 122:19

authorised ( 2 ) 12:4
122:19 122:20 122:21

147:6
143:17 165:25 167:8

authorities ( 2 ) 70:13
169:7 172:9 172:10

145:12
172:20 174:9 174:12

authority ( 2 ) 59:14
174:25 175:9 176:1

115:18
177:3 178:10 178:25

available ( 8 ) 13:9 18:1
basic ( 5 ) 7:7 45:12

73:13 95:15 160:12
47:6 56:12 128:8

163:3 163:5 170:7
basically ( 6 ) 29:25

avoid ( 3 ) 66:21 78:7
65:3 69:25 95:25

99:20
106:19 107:17

basis ( 24 ) 15:25 31:20 31:23 40:14 50:21 57:17 72:10 72:20 72:22 73:20 74:3 74:16 74:17 74:20 74:23 94:1 126:7 143:6 143:10 151:8 152:9 167:16 170:15 174:1

bear ( 2 ) 9:21 100:14 bears ( 2 ) 1:21 58:5 becomes107:9

before ( 19 ) 11:17 14:3 20:14 21:10 26:1 53:1 63:8 89:19 98:5 108:5 131:18 141:18 142:10 154:5 160:23 165:17 173:23 179:11 179:19

beginning ( 2 ) 18:25 148:10

behalf ( 9 ) 20:22 22:9 41:7 60:10 60:10 68:3 85:10 109:22 112:4

behind ( 4 ) 1:13 2:5 138:20 150:15

believe ( 6 ) 44:12 91:16 103:18 106:17 109:17 156:16

believers31:8 believes ( 2 ) 169:7

177:2 bells34:19 belonged ( 2 ) 15:4

138:15 belonging72:2

Belov ( 2 ) 152:24 153:3 below ( 2 ) 170:19
178:17

benefit ( 3 ) 86:18 116:16 116:18

best64:13 betide103:5 better99:23

between ( 77 ) 3:25 6:9 6:18 7:25 10:7 15:20 20:24 35:9 35:25 38:4 41:23 42:7 42:9 45:22 46:4 46:24 47:11 47:16 47:21 49:7 66:14 66:15 66:25 67:5 67:11 67:18 67:20 67:22 68:1 68:13 68:20 69:14 70:17 74:4 76:19 78:1 78:16 80:15 80:21 81:13 84:18 85:25 105:22 109:14 129:8 129:15 134:8 134:12 136:8 137:10 137:24 144:18 144:19 145:8 146:8 150:1 151:2 151:4 151:11 159:25 160:10 160:14 160:17 160:25 161:3 161:10 161:11 161:12 162:18 163:16 164:3 164:20 169:18 169:22 174:8 175:14 176:21

beyond ( 4 ) 98:3 134:19 147:19 148:4

bid ( 3 ) 10:18 101:2 104:20

bid-riggers ( 3 ) 9:23

100:16 104:6 bid-rigging ( 24 ) 9:20

10:1 10:6 10:11 10:15 10:19 10:20 10:21 10:23 10:24 11:5 100:13 100:18 100:23 101:2 101:3 101:7 101:9 101:10 101:15 101:25 102:2 103:25 104:6

bidder ( 4 ) 11:15 102:21 103:6 103:9

bidders ( 8 ) 10:5 10:7 11:21 11:23 12:8 101:18 103:13 104:24

bids ( 5 ) 10:18 101:2 101:15 101:16 102:22

big43:2

bilateral ( 7 ) 53:21 96:1 98:14 162:10 170:9 171:7 171:12

bind ( 2 ) 40:12 59:14 binding ( 26 ) 20:2

21:23 23:13 23:19 31:12 33:22 33:23 35:10 35:13 35:22 38:10 39:3 41:20 42:9 42:10 42:12 42:13 42:18 42:22 42:23 43:14 43:17 43:20 53:4 57:15 67:4

BIRT ( 37 ) 1:3 1:4 1:5 1:10 1:11 1:20 1:23 2:4 3:4 100:2 100:3 102:13 103:15 108:1 119:15 121:8 121:9 142:4 142:10 150:15 150:17 150:20 150:23 165:7 165:15 165:21 165:23 177:17 177:18 179:7 179:11 179:19 179:23 180:13 181:4 181:6 181:10

bit ( 6 ) 72:16 140:9 145:19 165:11 165:12 171:4

black ( 3 ) 176:1 176:20 179:3

bodies97:3

body ( 2 ) 98:24 156:12 bogus ( 2 ) 16:25 17:4 bono ( 3 ) 125:14 126:3

126:6 book134:1

books ( 2 ) 116:24 117:1

both ( 19 ) 21:5 50:23 62:1 74:15 78:18 80:1 81:22 114:19 116:3 116:10 118:4 136:20 136:22 147:7 147:18 154:18 154:21 155:9 175:19

bother174:16

bottom ( 3 ) 31:13 123:8 175:2

bound ( 8 ) 31:5 36:5 36:6 38:12 39:12 39:14 41:6 63:2

bounds134:19 branches ( 3 ) 71:5
71:17 71:19

breach ( 29 ) 64:5 64:18 65:7 65:8 69:17 73:21 88:7 88:8 118:13 137:3 137:9 137:19 149:9 149:16 154:15 154:16 154:19 154:25 155:13 156:3 156:7 156:9 156:21 157:5 158:5 158:7 158:10 158:12 158:13

break ( 9 ) 1:8 57:9 57:12 135:14 142:5 142:8 165:13 165:16 165:19

brief180:1

briefly ( 7 ) 6:17 63:23 127:7 129:9 134:21 149:20 150:10

bring ( 48 ) 18:16 65:25 69:16 76:9 77:14 78:2 78:6 78:9 79:7 79:23 80:2 80:9 80:12 80:17 80:18 80:22 81:7 86:18 87:23 87:25 90:2 90:10 90:12 90:14 90:23 91:2 91:6 91:15 91:23 91:25

93:12 93:14 93:20 96:3 98:23 106:14 110:2 110:10 112:14 112:24 113:20 114:7 115:3 116:15 151:8 151:25 156:14 173:20
bringing ( 7 ) 7:2 65:23 77:8 78:5 83:14 111:25 150:4

brings ( 2 ) 91:5 135:19 broad ( 3 ) 14:25 99:4
163:23

broader ( 8 ) 44:10 70:9 98:18 98:21 118:23 119:7 151:12 177:14

broke155:18 brought ( 30 ) 66:20

70:2 71:24 72:5 72:10 74:3 74:23 74:25 76:6 83:8 84:23 85:9 89:21 90:7 93:10 94:19 95:23 97:17 97:19 110:24 113:22 114:4 137:2 157:12 158:16 167:23 168:15 168:23 168:25 170:16

bundle ( 5 ) 1:12 1:20 2:4 2:9 137:6

bundles1:11

burden ( 2 ) 77:7 147:11 burn ( 2 ) 69:11 72:3 burns31:3

business ( 3 ) 12:20 55:15 65:12

businessmen ( 2 )

37:17 38:20

buy ( 5 ) 10:8 10:9 69:11 86:22 87:15

buyers11:18

C

call ( 6 ) 1:5 119:19 135:22 143:17 153:21 160:25

called ( 7 ) 1:12 34:5 105:13 122:9 125:10 126:17 166:16

calls ( 2 ) 7:6 136:10 cannot ( 10 ) 30:20 49:6

90:18 91:9 151:7 156:14 157:21 161:15 164:1 172:15

capable ( 4 ) 13:5 36:25 64:9 64:20

capital87:15 capped152:7

car ( 2 ) 9:5 69:11 care ( 2 ) 37:20 109:1 career121:14 careful38:21 carefully ( 2 ) 141:4

141:12

carry ( 2 ) 28:4 165:11 cases ( 62 ) 13:7 13:21

29:3 29:9 30:12 33:11 55:5 65:25 77:4 78:11 82:22 82:24 83:2 83:10 83:11 83:14 85:4 85:23 86:2 86:4 86:7 91:18 99:17 99:18 99:19 99:21 109:19 112:14 112:16 116:23 123:15 123:16 123:18 126:4 127:10 132:19 132:22 136:21 136:21 145:11 148:6 154:2 154:5 154:14 154:24 155:13 157:2 158:8 158:23 158:25 160:6 160:9 160:19 161:7 161:7 161:19 162:2 164:19 164:22 165:9 166:10 179:6

Cassation ( 5 ) 169:5 170:14 172:15 176:24 177:2

cassational ( 27 )

170:24 171:3 171:11 171:21 172:5 172:7 172:12 172:18 172:23 172:25 173:4 173:8 173:9 173:10 173:11 173:12 174:1 174:8 175:7 175:21 176:5 177:21 177:25 178:6 178:11 178:19 178:25

cast105:22 categories ( 4 ) 54:20

54:25 55:7 164:2 category147:11 caught ( 2 ) 133:13
164:2

causal ( 6 ) 7:1 8:14 129:15 133:19 141:23 145:8

causality144:22 causally145:5 causation ( 63 ) 6:7

6:13 6:21 6:21 7:18 7:19 8:8 10:20 84:3 88:2 101:3 101:6 101:10 131:6 131:23 132:4 132:8 132:13 132:18 132:19 133:6 133:15 134:6 134:17 134:19 134:23 134:24 135:2 135:5 135:10 135:10 135:11 135:12 135:14 135:19 137:1 137:10 137:24 138:2 138:6 138:7 138:8 138:10 138:14 138:22 138:24 139:1 139:3 139:8 139:10 139:13 139:19 139:23 139:24 139:25 140:1 140:4 140:5 140:6 140:11 141:19 146:10 146:17

causative ( 3 ) 3:25 6:9 142:2

cause ( 39 ) 4:19 7:7 7:9 7:13 7:16 7:23 8:2 8:21 11:3 13:1 19:4 41:25 42:11 42:23 49:14 86:15 86:16 86:17 86:21 88:21 89:4 90:7 91:24 95:9 108:11 109:13 110:9 115:16 131:9 131:16 135:14 140:18 140:20 145:7 146:24 152:19 160:1 175:19 180:9

caused ( 37 ) 3:17 3:18 3:20 5:8 7:24 8:19 8:24 10:24 78:24 84:5 94:9 95:5 98:24 109:7 110:3 116:2 129:19 139:2 140:2 140:3 140:4 141:14 145:3 145:4 145:17 147:10 147:11 147:17 147:19 148:2 148:4 154:15 154:19 156:3 156:11 163:18 163:24

causes ( 2 ) 7:5 160:2 causing ( 10 ) 4:15 6:4 8:9 8:10 9:4 9:15 17:13 74:7 134:2

140:23 caution30:2 ceased94:6 ceases ( 2 ) 95:12
115:13

cent ( 7 ) 31:21 64:8 86:22 87:18 87:19 124:25 125:2

certain ( 20 ) 15:1 15:2 15:3 15:20 18:18 20:12 38:10 43:6 47:13 48:10 49:14

87:22 89:8 107:22 116:15 118:3 131:12 164:12 180:1 180:3

certainty38:11

chain ( 18 ) 8:14 18:14 134:7 134:24 135:1 135:9 135:10 135:12 135:14 138:7 138:22 139:3 139:8 139:15 140:6 141:23 142:2 145:4

change ( 3 ) 85:18 133:10 133:11

changed81:2

changes ( 3 ) 81:3 81:8 81:14

characteristic132:16 charges63:25 charter92:5

check ( 5 ) 126:15 127:15 130:16 131:14 166:2

choice ( 8 ) 160:10 160:14 163:16 175:8 175:8 175:20 175:22 176:20

choose ( 3 ) 160:17 164:20 168:11

chose ( 2 ) 174:25 175:7

Circuit ( 2 ) 165:25 166:9

circumstance7:7 circumstances ( 19 )

13:10 21:18 44:10 59:9 61:24 76:10 77:19 84:22 84:25 85:13 86:8 91:21 101:22 112:3 116:11 134:9 134:14 135:8 163:1

circumvent160:3 cite ( 12 ) 13:7 28:12

29:11 131:2 135:25 136:22 140:15 152:22 157:9 157:10 161:1 164:22

cited ( 10 ) 30:12 32:5 76:13 131:19 137:14 141:9 150:10 153:25 161:20 178:8

cites ( 6 ) 85:8 133:16 133:24 153:11 157:9 159:1

citing137:6

citizen ( 2 ) 3:17 78:25 citizens ( 3 ) 12:25
24:23 24:25

Civil ( 45 ) 3:9 17:20 18:8 19:19 19:21 21:12 23:25 24:17 47:15 58:15 63:20 64:11 78:16 92:25 93:1 94:7 97:3 98:25 110:12 125:1 125:2 125:3 129:5 132:12 134:14 147:18 147:24 152:1 152:4 152:16 152:23 153:1 153:5 153:7 153:12 153:12 154:1 155:5 159:23 162:9 162:12 162:18 164:3 168:9 170:12

civil-law134:10 claimant ( 20 ) 3:23 4:1

4:20 7:23 8:3 66:16 72:18 73:21 76:6 90:3 91:24 108:11 139:20 144:18 151:24 168:15 168:22 169:8 170:16 173:20
claimant’s ( 3 )26:21 170:9 176:10

claimants27:1 claimants’29:9 claiming ( 3 ) 143:7
143:7 145:1

claims ( 78 ) 3:8 66:14 66:15 67:5 67:20 68:1 68:13 68:20 69:1 69:17 69:20 78:1 78:16 78:21 79:8 80:13 80:16 80:17 80:22 81:13 81:22 83:7 83:20 83:24 84:19 85:2 85:6 87:18 87:21 90:9 91:5 91:6 93:10 93:12 93:14 95:8 95:23 96:3 97:17 113:22 114:4 114:7 116:10 133:8 144:15 147:24 149:23 151:8 152:10 153:16 153:22 153:25 159:2 160:25 168:21 169:12 170:22 171:17 171:20 171:25 172:9 172:20 172:22 172:24 174:8 174:11 174:15 175:13 175:14 175:23 176:15 176:17 177:5 177:22 178:9 178:13 178:15 178:18

claims’ ( 2 )151:11 168:13

clarification119:4 clarified51:7

clarify ( 6 ) 8:1 23:10 36:5 100:4 102:14 108:5

clarifying93:18 clarity ( 2 ) 35:4 35:21 class117:11 classified50:3

clause ( 2 ) 81:6 106:23 clean ( 2 ) 145:13
145:16

clear ( 21 ) 21:6 26:1 33:15 33:20 51:5 56:24 57:5 60:17 78:11 82:4 84:17 113:24 130:12 133:20 136:15 154:17 171:13 171:23 172:18 178:7 179:4

clearing135:6

clearly ( 9 ) 41:19 47:10 58:6 106:6 144:23 146:2 149:25 163:7 163:19

client123:12 clients123:13

close ( 3 ) 111:9 142:1 179:23

closely ( 2 ) 18:16 161:9 closer89:25 closing177:19

Code ( 56 ) 3:9 6:1 10:13 17:20 18:8 19:19 19:21 21:12 23:25 24:17 47:15 48:1 52:21 58:15 63:20 64:11 64:14 67:14 67:16 70:3 78:16 79:11 81:25 106:16 106:18 110:12 129:5 132:12 133:10 149:21 150:6 151:16 151:25 152:1 152:4 152:6 152:15 152:16 153:1 153:5 153:12 153:12 153:18 153:19 153:20 154:1 155:5 158:1 159:23 162:9 162:12 162:18 164:3 169:16 169:22 170:12

codes ( 2 ) 151:3 175:4 coercion21:16 coffers112:25 collar124:3 colleague178:3 collective ( 2 ) 115:2

115:4

combines145:22

come ( 25 ) 16:15 20:18 20:24 28:8 35:2 36:2 36:21 37:2 40:24 46:19 48:5 49:4 56:6 114:5 126:18 129:20 136:16 136:24 138:11 141:16 144:3 144:15 154:3 154:20 156:18

comes ( 2 ) 140:1 140:1 coming173:23 comment ( 2 ) 26:16
26:25

commentary ( 6 ) 28:19 28:20 29:11 29:24 31:11 155:5

commentators133:22 comments63:22 commercial ( 4 ) 39:22

61:11 63:21 125:6 commits86:13 committed ( 6 ) 8:13

84:16 95:16 114:16 118:13 118:14

committee ( 4 ) 90:19

90:24 91:4 166:16 common ( 15 ) 7:11

21:13 29:25 59:6 63:7 104:7 129:7 135:5 135:7 135:17 135:18 136:20 141:6 141:13 164:3

commonly107:21 companies ( 39 ) 15:3

33:8 33:10 36:11 36:20 37:18 37:20 38:1 38:4 38:22 39:4 39:6 39:6 40:7 40:8 40:12 40:14 40:15 40:15 40:16 40:19 40:20 41:1 41:2 45:23 46:4 46:5 48:22 48:22 56:5 56:8 56:25 57:2 57:7 65:6 95:16 105:14 105:15 123:22

company ( 93 ) 35:20 59:15 61:2 68:3 68:4 71:25 72:2 72:5 82:18 82:19 83:25 84:7 84:16 85:3 85:9 85:10 85:10 86:14 86:15 86:15 86:16 86:19 86:20 86:22 86:23 86:24 87:1 87:2 87:4 87:5 87:6 87:8 87:15 87:25 88:25 89:1 89:10 89:22 90:1 90:10 90:13 91:13 91:14 91:22 91:24 92:4 92:4 92:14 93:3 93:4 95:12 97:15 97:21 98:6 105:13 105:24 109:24 110:3 110:8 110:13 110:14 111:5 112:4 112:21 112:25 114:17 115:11 115:14 116:3 116:4 116:7 116:14 116:17 116:24 116:24 116:25 117:9 117:13 117:17 117:18 118:5 118:6 118:8 118:14 118:14 118:17 142:16 142:18 142:19 142:25 145:13 145:14 166:16

company’s ( 2 )84:8 88:11

compare29:20 comparison59:2 compel107:15 compelling37:15 compensate ( 2 ) 22:20

143:12 compensated ( 7 ) 92:8

140:3 143:3 163:20 163:25 164:1 164:2 compensation ( 14 )

3:19 79:2 79:17 97:12

136:12 143:8 152:3 152:4 154:13 154:19 155:11 155:12 155:19 156:3

compete ( 2 ) 10:9 164:18

competition ( 55 ) 5:14 66:13 66:15 67:5 67:20 68:1 68:13 68:20 78:1 78:15 78:21 80:15 80:21 81:13 144:14 149:22 152:20 153:16 153:22 153:25 159:1 160:7 160:25 161:16 168:21 170:22 171:17 171:18 171:20 171:24 172:4 172:8 172:14 172:20 172:21 172:24 174:8 174:11 174:15 175:1 175:12 175:14 175:23 176:2 176:6 176:15 176:16 177:4 177:5 177:22 178:9 178:13 178:15 178:18 179:1

compiled127:12 compiling127:16 complain ( 2 ) 90:20

103:5 complained91:17 complaining90:4 completely ( 7 ) 26:5

34:3 35:12 41:17 65:6 165:21 179:1

complex ( 6 ) 112:11 132:19 132:22 138:22 139:8 140:22

complexities113:18 comply ( 4 ) 44:25 45:1

75:3 106:7 conceived19:2 concept ( 20 ) 6:21

118:23 119:7 138:14 139:23 140:1 140:4 141:16 144:3 144:5 168:12 171:18 171:24 172:8 172:15 174:15 175:9 177:21 178:3 179:4

concepts ( 5 ) 125:2 125:4 138:20 178:6 179:6

conceptually38:3 concerned ( 4 ) 46:23

68:16 70:6 96:10 concerning ( 4 ) 16:7 16:9 16:10 151:6

concerns69:25 concert8:20 conclude ( 10 ) 21:17

45:10 46:10 46:14 47:6 47:8 47:22 47:24 60:8 165:6

concluded ( 5 ) 13:18 21:15 47:7 168:18 169:21

concludes93:20 concluding165:7 conclusion ( 13 ) 12:14

28:8 43:16 61:19 95:19 135:13 169:7 172:10 172:12 172:14 174:13 177:2 178:8

conclusions44:9 conclusory31:14 concurrence21:18 condition ( 5 ) 62:5

62:11 62:19 62:22 126:10

conditions ( 7 ) 21:19 49:3 58:21 59:2 62:20 137:22 169:14

conduct ( 5 ) 3:23 69:1 69:7 94:3 149:9

confined117:15 confirm38:23 confirmation25:15

confirmed ( 3 ) 143:25 144:11 158:3

conflict26:18 conjunction ( 2 ) 136:14

163:22 connected ( 8 ) 9:20

10:16 66:20 96:11 100:13 100:23 103:25 145:5

connection ( 6 ) 7:2 9:16 29:18 104:3 133:19 146:7

connotes141:25 conscious108:22 consequence ( 4 )

25:21 56:25 65:8 102:3

consequences ( 12 )

25:11 26:4 44:19 64:5 76:17 77:3 77:5 162:15 162:23 163:13 168:17 168:23

consider ( 8 ) 21:10 23:2 29:17 33:17 34:16 42:19 57:17 58:13

consideration ( 4 )

55:24 58:22 59:7 59:9 considered ( 8 ) 13:5

14:2 19:23 44:13 74:6 106:22 150:9 166:5

considering93:19 consolidated ( 2 ) 1:15

5:11 consolidates1:16 conspiracy10:4 constitute ( 6 ) 15:22

15:24 38:8 131:23 138:7 149:13

constitutes ( 2 ) 148:15 172:5

construction ( 4 ) 71:25 72:2 72:5 136:1

consulted123:21 consulting128:8 consumers ( 2 ) 78:21
81:11

contain ( 3 ) 48:6 99:3 146:21

contained ( 2 ) 58:23 59:4

containing ( 2 ) 54:7 135:22

contains64:4 contemplated48:20 contemporaneous ( 2 )

128:1 128:3 content ( 4 ) 20:18

32:24 48:16 59:5 contention99:13 context ( 14 ) 5:2 50:9

50:19 51:6 98:9 105:6 105:16 107:4 118:24 131:13 144:3 150:8 162:1 162:3

continue141:18 contract ( 236 ) 5:19

5:20 12:3 12:5 12:6 16:8 16:15 16:21 17:5 17:17 17:18 18:2 18:5 19:9 19:15 20:2 20:21 21:1 21:2 21:4 21:25 22:3 22:5 23:2 23:13 23:20 23:22 23:23 23:24 24:9 24:12 24:14 25:20 31:3 31:7 31:9 31:10 31:16 32:18 33:4 34:17 34:18 34:22 35:5 35:9 35:17 36:4 36:6 36:17 36:24 37:6 38:17 39:5 40:23 41:3 42:22 43:2 44:15 44:19 44:24 45:3 45:9 45:10 45:12 45:13 45:15 45:15 46:9 46:10 46:13 46:14 46:15 46:16

46:17 46:18 46:25 47:5 47:7 47:9 47:16 47:17 47:18 47:24 47:25 49:1 49:7 49:8 49:22 49:23 50:3 50:4 50:7 50:7 50:13 50:25 51:13 51:18 51:19 52:11 52:16 53:2 53:20 53:23 53:24 54:2 54:3 54:14 54:15 54:21 56:12 56:19 56:20 56:21 56:22 58:21 59:3 59:6 59:8 59:11 60:14 60:17 60:19 60:25 62:5 62:12 62:21 64:2 64:4 64:17 64:22 66:17 66:20 66:21 67:3 67:4 67:17 67:17 67:23 67:24 68:9 69:2 69:5 69:9 69:14 69:18 69:18 69:21 70:1 70:1 70:17 70:20 70:25 71:4 71:15 71:25 74:4 74:9 74:11 74:14 74:16 74:20 75:2 75:10 75:25 76:3 76:24 77:12 77:15 78:3 78:4 78:7 78:10 78:12 78:13 79:21 79:22 79:23 80:3 80:6 80:8 80:24 81:6 87:2 88:7 88:9 88:13 88:20 89:4 89:7 89:8 105:11 106:8 107:10 107:18 107:18 118:13 125:1 128:9 136:6 137:3 143:3 143:10 143:10 143:15 143:16 143:25 144:11 144:16 144:18 144:20 149:5 151:5 151:7 152:13 154:15 154:16 154:19 154:25 155:15 155:18 155:18 156:4 156:7 156:12 156:13 156:14 156:21 157:4 157:6 158:5 158:8 158:13 160:11 161:11 161:12 163:3

contracted ( 2 ) 142:19 143:2

contracting ( 7 ) 35:2 35:7 35:19 36:14 36:15 37:2 151:7 contracts ( 48 ) 16:24 17:10 17:11 17:15 17:21 18:9 18:15 18:18 18:21 18:21
18:24 19:6 19:7 19:19 25:8 34:19 45:16 45:21 45:22 46:1 46:4 46:24 47:10 48:3 48:13 48:16 51:25 54:16 56:18 61:21 69:2 71:7 78:5 80:2 80:2 80:12 80:16 81:4 81:5 81:9 81:15 81:16 83:13 128:5 128:18 151:6 151:16 158:22

contractual ( 34 ) 16:17 16:23 19:22 31:1 47:13 48:11 49:14 49:16 49:25 50:15 50:15 51:23 67:7 68:16 75:1 76:25 77:3 77:9 77:20 79:5 79:8 80:17 81:16 136:11 136:13 143:11 144:1 144:12 145:23 155:8 155:24 157:5 158:4 159:25

contrary ( 3 ) 60:12 78:14 92:7

contrast77:2 contribute ( 3 ) 8:9 8:10
87:14

contribution2:25

control ( 5 ) 37:18 38:4 90:6 123:19 124:4

controlled36:12 controlling115:7 controls ( 4 ) 90:24 91:4

123:23 124:23 convenient ( 5 ) 57:10

58:9 89:13 142:4 179:8

copies128:21

copy ( 6 ) 1:20 105:8 120:2 120:13 128:12 150:13

corner143:19 Corporate ( 6 ) 41:16

63:1 115:12 118:25 132:17 133:9

corporation117:24 correct ( 18 ) 6:6 6:8

28:9 40:10 58:3 58:13 68:24 111:4 123:17 123:24 125:24 130:15 133:8 148:1 159:11 160:4 170:21 176:12

corrections121:4 correctly ( 5 ) 6:24 24:2

83:23 151:23 152:3 correspond ( 2 ) 168:14
168:22

correspondence ( 2 )

27:8 127:21 corroborated30:6 corroborating ( 2 )

30:14 31:23 corroborative31:20 cost ( 5 ) 111:24 112:12

113:6 143:4 143:7 costs ( 3 ) 111:7 111:8

111:25

couldn’t ( 3 )42:18 65:9 91:21

counsel119:11 counterparty ( 2 )

137:10 155:17 countries115:1 country ( 2 ) 118:1

118:22

counts ( 3 ) 4:11 4:24 108:18

couple100:3

course ( 25 ) 7:21 26:6 26:20 26:21 40:16 41:3 58:9 63:7 80:23 86:7 87:13 111:20 114:5 114:13 117:2 125:7 131:24 135:15 148:6 149:10 151:16 156:11 161:25 178:16 179:24

court’s ( 3 )7:6 178:11 178:19

courts ( 39 ) 6:12 22:7 28:4 28:23 54:6 54:11 55:1 55:4 61:13 73:16 73:19 92:16 132:18 135:4 136:21 138:21 138:22 139:7 140:6 141:4 141:17 143:23 143:25 144:9 144:11 154:18 155:21 156:16 157:5 157:13 159:9 159:12 159:14 160:5 160:8 160:24 161:3 162:5 179:5

cover ( 3 ) 48:7 86:8 155:23

covered ( 3 ) 8:11 52:22 155:23

covers ( 3 ) 23:6 48:9 48:12

create ( 12 ) 11:16 12:9 12:11 12:16 35:10 35:13 36:16 38:5 79:13 98:14 140:12 141:2

creates ( 2 ) 42:6 75:25

creating ( 4 ) 16:25 17:4 17:5 53:22

creation53:23 credible32:12 creditor ( 12 ) 13:20

90:16 90:23 110:10 110:10 110:19 110:23 111:9 111:10 112:16 114:15 114:24

creditor’s112:23 creditors ( 17 ) 84:8

84:13 84:15 87:24 90:9 90:18 91:8 93:12 93:14 110:1 111:6 111:7 113:22 114:2 114:6 116:18 118:18

creditors’ ( 3 )90:19 90:24 91:4

crime124:3 criminal147:18 criteria149:1 criterion ( 2 ) 148:6

149:2 critical9:13 criticise172:23 criticised114:20 criticism129:1 cross ( 2 ) 112:21

157:22

Cross-examination

( 4 ) 3:5 121:8 181:5 181:10

culpability129:16 cumulative37:7 currency ( 4 ) 123:19

123:23 124:4 124:22 custom ( 4 ) 12:20

55:15 63:21 65:12 customs ( 4 ) 123:19

123:22 124:22 147:22 cut ( 2 ) 143:19 154:17

D

D106/1531/1105:6 D106/1531/5105:18 D107/1537/1 ( 3 ) 20:6
23:4 39:17

D107/1537/239:19 D107/1537/3 ( 2 ) 20:7
23:7

damage ( 3 ) 97:19

98:24 146:1 damaged ( 2 ) 12:13

144:25

damages ( 28 ) 11:10 72:5 72:18 74:7 74:12 74:24 92:12 96:25 97:6 97:7 98:24 101:23 132:19 136:1 136:12 137:8 137:11 137:18 138:23 139:9 143:12 143:23 144:9 145:14 146:7 146:8 155:20 157:13

dare113:20 dared109:20 data ( 2 ) 1:25 2:1

date ( 6 ) 2:10 86:1 86:8 106:9 107:20 125:16

dated ( 2 ) 1:18 2:21 day ( 3 ) 179:17 179:20

180:7 days128:10

deal ( 6 ) 30:12 34:4 37:7 37:9 162:12 176:15

dealing ( 8 ) 17:20 19:21 70:3 88:13 88:20 121:22 122:3 157:24

deals ( 6 ) 18:9 18:11 18:13 66:2 124:6 134:22

dealt ( 3 ) 67:14 73:19 106:13

debate144:15 debt103:19 debtor90:21

debts ( 2 ) 110:20 111:9

December ( 5 ) 19:24 20:8 64:24 69:3 128:11

decide ( 6 ) 26:20 44:7 69:20 140:7 157:6 173:22

decided ( 8 ) 28:13 33:24 136:14 151:23 153:4 171:14 173:25 175:21

deciding ( 2 ) 89:6 151:3

decision ( 16 ) 29:21 30:9 75:4 134:15 137:15 162:21 165:24 166:1 168:20 170:14 174:2 174:3 174:22 175:2 175:5 178:19

decisions ( 3 ) 77:18 77:23 136:22

decisive7:7 declaration ( 4 ) 46:21

51:15 52:4 106:20 declared ( 10 ) 17:17

19:8 19:10 19:11 19:13 21:22 48:1 66:8 167:12 167:19

deemed84:5

default ( 2 ) 51:21 52:20 defeat ( 2 ) 38:17 76:11 defective ( 3 ) 79:14

80:10 86:24 defects79:1 defence’147:16 defences7:19 defendant ( 32 ) 3:24

3:25 5:3 5:8 5:24 7:15 8:13 8:19 13:9 13:11 17:25 18:4 66:17 66:19 67:25 73:6 73:23 74:10 75:2 76:8 79:21 80:4 80:12 90:6 108:22 137:17 140:19 144:18 147:8 147:12 148:12 148:19

defendant’s ( 17 )4:1 4:11 4:19 4:21 6:9 8:18 84:5 108:10 108:12 129:15 131:8 131:15 137:24 140:11 141:2 146:24 149:5

defendants ( 4 ) 17:13 19:4 65:1 124:2

defensive13:15 deficient136:2 define ( 3 ) 48:25

146:21 156:24 defined ( 6 ) 109:4

109:5 138:4 141:5 141:7 147:10

definite ( 2 ) 38:7 136:8 definitely116:19 definition ( 4 ) 53:7 55:1

135:2 149:17 defraud14:1 degree ( 2 ) 121:17

129:7 delivery52:18 demand20:11 demise132:14 demonstrate ( 2 )

132:13 147:9 demonstrates133:11 denial176:2

denied ( 5 ) 17:25 168:12 168:18 171:18 173:3

denominated56:3 deny ( 3 ) 75:16 159:23

171:20 denying18:5 department121:19 depend ( 2 ) 17:9 17:10

dependent116:6 depending ( 6 ) 12:20

15:9 32:24 44:4 44:9 58:19

depends ( 10 ) 10:18 37:12 42:25 43:6 50:2 54:3 70:16 101:1 124:25 131:24

deprive ( 3 ) 15:3 25:14 25:17

deprived116:12 derivative ( 8 ) 85:9

86:18 87:21 95:10 112:15 116:16 116:22 118:17

derives ( 2 ) 4:5 4:6 derogating152:25 describe ( 3 ) 136:3

161:9 171:7 described ( 3 ) 33:5

34:20 102:1

describes135:8 describing ( 2 ) 17:3

145:25 description36:14 design79:1 designed110:3 Despite ( 3 ) 138:12

143:23 144:9 detail53:1

details ( 6 ) 16:11 43:21 52:17 52:19 100:20 106:19

detected127:9 determinancy179:5 determinative ( 3 ) 34:8

34:10 34:11 determine ( 2 ) 16:12

59:5 determined26:8 determining151:4 develop51:4 developed132:17 developing ( 2 ) 132:22

134:7 development6:25 dictate111:1 dictated153:18 difference ( 3 ) 6:17

67:11 109:14 different ( 27 ) 15:14

15:15 16:7 16:9 16:10 17:21 32:8 32:10 37:16 38:17 44:8 44:9 45:23 56:6 56:21 70:23 77:7 77:7 82:3 88:15 88:18 99:8 102:25 102:25 114:23 156:9 157:12

difficult ( 5 ) 79:12 111:22 113:5 113:6 119:2

difficulties ( 2 ) 119:5 119:6

difficulty ( 3 ) 17:3 36:23 74:22

diminution82:8

direct ( 45 ) 6:14 49:10 91:9 97:10 117:8 131:8 131:16 132:3 132:7 132:13 132:18 133:6 133:15 133:20 134:6 134:25 135:2 135:11 137:23 138:2 138:4 138:6 138:8 138:10 138:14 138:23 139:1 139:2 139:9 139:12 139:16 139:17 139:24 141:18 143:8 144:23 145:5 145:6 145:9 146:2 146:7 146:10 146:11 146:11 146:17

directly ( 9 ) 14:4 14:10 81:8 117:1 128:8 144:24 144:25 145:3 171:16

director ( 3 ) 59:14

92:14 92:17 disagree ( 5 ) 78:11

81:3 151:20 153:14 156:23

disagreed ( 3 ) 31:9

173:8 174:14

disagreeing ( 3 ) 139:12

171:5 175:12 disagrees ( 3 ) 153:10
172:25 178:20

discretion168:12 discretionary73:14 discuss ( 4 ) 20:6 21:5

23:14 126:11 discussed ( 3 ) 82:13

127:7 131:6 discusses75:9 discussing ( 3 ) 14:8

44:11 93:2 discussion ( 2 ) 53:18
137:13

dishonest ( 14 ) 11:15 15:2 15:19 16:5 16:8 16:8 16:12 16:18 16:19 17:3 17:12 17:13 19:2 116:23

dishonestly ( 3 ) 6:4 16:3 17:19

dismissed ( 2 ) 13:10 143:13

disposed18:19 dispute ( 12 ) 4:10 7:25

18:17 25:15 31:17 31:24 32:3 57:20 151:4 173:5 173:7 173:9

disputed150:1 disputes ( 2 ) 124:12

151:5 disputing68:18 distinction ( 4 ) 38:4

85:25 136:15 154:17 dividend117:11 Division ( 5 ) 142:18

142:21 142:23 143:6 143:9

doctrine ( 2 ) 12:21 66:16

document ( 18 ) 1:23 20:10 20:20 21:7 23:18 32:18 32:22 33:4 35:11 35:23 35:24 40:5 49:25 50:15 50:16 54:7 105:5 120:17

documentary30:4 documentation ( 2 )

128:1 128:4 documents ( 7 ) 14:18

20:16 20:17 27:11 31:1 34:7 128:23 does ( 47 ) 1:22 35:22 36:24 38:6 38:11 38:24 40:24 41:24

46:14 47:7 47:20 48:8 50:2 52:10 53:4 53:15 55:11 60:18 61:2 62:16 67:6 67:10 68:2 70:22 80:13 84:14 90:1 94:19 104:8 104:12 110:23 119:9 120:11 125:12 126:24 140:4 160:18 162:22 162:24 163:23 165:18 172:10 172:23 173:4 173:10 173:16 176:17

doing ( 6 ) 35:24 45:11 111:15 114:21 173:14 173:16

domestic97:8

done ( 14 ) 13:20 37:1 87:10 87:13 93:5 97:20 109:1 112:21 113:4 114:11 114:16 117:16 118:8 125:16

Doroga ( 3 ) 85:8 86:6

92:13

double118:3

doubt ( 3 ) 122:3 124:12 125:6

down ( 18 ) 1:7 12:21 31:3 34:2 36:8 42:24 59:18 65:23 65:25 69:11 72:3 100:7 103:7 103:9 103:17 105:22 119:22 140:19

draft100:6 drafted37:25 drafting127:6

draw ( 2 ) 37:24 38:3 drawing ( 2 ) 85:25

99:16 drill142:20

Drilling ( 5 ) 142:18 142:21 142:23 143:6 143:9

drive ( 2 ) 9:1 9:2 driver ( 2 ) 9:12 9:12 driving9:4 dropped132:18

due ( 3 ) 26:6 40:16 117:11

duplicative90:8 duress ( 2 ) 18:10 63:9 during ( 8 ) 107:1 110:1

143:24 144:10 147:17 147:21 148:2 179:24

Dutch103:4

duty ( 9 ) 11:10 45:10 46:10 46:13 90:20 111:15 118:4 145:20 162:13

dying138:16

E

e-mails128:5 E2-E3/12/11:13 E2-E3/12/3112:23 E2-E3/12/345133:24 E2-E3/12/373:14 E2-E3/12/396:19 E2-E3/12/44 ( 3 ) 33:2

36:8 57:23

E2-E3/12/4545:8

E2-E3/12/4647:3

E2-E3/12/5514:7

E2-E3/12/624:16

E2-E3/12/609:17

E2-E3/12/6466:14

E2-E3/12/6578:17

E2-E3/12/6678:18

E2-E3/12/761:17

E2-E3/12/825:10 E4/13/1 ( 2 ) 2:6 120:15 E4/13/137 ( 2 ) 75:5
159:4

E4/13/138161:23 E4/13/1728:17 E4/13/1829:3 E4/13/232:9

E4/14 ( 17 ) 71:21 73:10 92:21 96:9 96:14 120:9 120:13 135:20 135:25 137:6 137:12 142:14 144:7 145:25 166:14 166:19 168:7

E4/14/1119:25

E4/14/14154:7 E4/14/17 ( 2 ) 129:23
130:3

E4/14/2758:18

E4/14/5127:18

E4/14/5421:12

E4/14/62120:5

E4/14/64123:8 E4/14/65 ( 2 ) 123:4
123:9

E4/15/1 ( 2 ) 2:15 120:17 E4/15/6 ( 2 ) 129:10
147:4

earlier ( 6 ) 1:16 16:25 19:15 124:12 138:14 159:17

early ( 2 ) 160:20 180:10 earth112:23 easiest166:13 easily37:22 ebbing133:6 economic143:18

effect ( 12 ) 4:7 7:4 8:1 64:24 65:5 79:13 80:5 82:19 106:17 109:14 134:16 145:7

effective ( 3 ) 31:21

107:23 107:24 effectively ( 4 ) 39:9

40:2 90:15 168:20 effects ( 3 ) 17:24 34:9
41:23

Egorov ( 6 ) 134:24 135:7 139:4 141:22 145:6 146:12

Egorov’s138:4 eight121:20

either ( 14 ) 31:4 38:16 67:10 69:14 80:17 88:2 90:4 95:1 107:11 109:5 115:24 117:8 155:8 163:21

element ( 2 ) 44:21 145:22

elements ( 5 ) 15:14 15:19 129:14 146:6 150:10

else ( 11 ) 46:14 47:18 47:24 49:8 60:15 61:16 127:13 140:24 143:16 155:3 169:1

else’s ( 2 )75:23 76:23 elsewhere ( 2 ) 141:9

158:1 elucidation7:1 embarks61:25 embassy121:25 emerges119:12 emphasised135:18 employ173:22 employee152:6 employees91:8 employment151:16 enabled65:1

enables ( 2 ) 63:8 80:1 encouraging101:9 encumbrance ( 6 )

11:16 12:9 12:11 12:17 17:4 17:7 encumbrances17:1 end ( 17 ) 24:8 47:5

84:13 103:11 103:21 103:23 112:22 113:23 123:6 137:5 146:4 148:10 165:16 166:17 166:18 166:23 179:11

enforce ( 8 ) 6:1 6:3 66:21 106:19 107:14 107:17 148:9 149:11

enforceable ( 2 ) 49:10 107:21

enforced ( 2 ) 5:24 106:13

enforcement ( 10 )

5:14 5:18 5:22 115:4 147:17 147:21 147:24 148:3 148:13 149:5

enforcing148:14 engaged ( 2 ) 69:3
101:9

engineering ( 2 ) 142:18 142:19

England112:1

English ( 12 ) 26:6 26:8 26:9 26:17 26:22 26:24 33:25 69:24 73:9 166:23 168:6 174:20

enough ( 6 ) 30:7 38:7 38:10 43:18 43:24 95:11

enquiry ( 5 ) 62:24 135:19 139:21 139:22 141:25

enrichment ( 5 ) 71:8 168:1 168:5 168:16 169:11

ensure145:20 entail147:8

enter ( 4 ) 12:8 13:25 59:11 106:12

entered ( 6 ) 15:2 17:12 33:6 71:25 75:9 78:8

enters11:14 entire140:18 entirely ( 2 ) 127:9

127:14 entirety178:8 entities61:24 entitled ( 5 ) 12:18

25:23 27:25 96:25 149:11

entity ( 7 ) 33:7 42:8 42:18 57:22 61:24 97:21 110:22

entry107:15 envisaged76:6 episode ( 2 ) 143:24

144:10 equally158:8 equipment ( 6 ) 86:22

86:24 142:24 143:2 143:4 144:23

erroneously ( 2 )

167:13 167:20 escape5:9 especially ( 3 ) 34:7

132:24 133:8 essence ( 2 ) 16:5 169:8 essential ( 42 ) 48:1

48:3 48:6 48:25 49:18 49:24 50:1 50:4 50:14 50:17 50:19 51:2 51:8 51:10 51:12 51:14 52:7 52:13 52:22 53:5 53:6 53:8 53:12 53:16 53:22 54:4 54:8 54:17 54:21 54:22 54:23 55:1 55:2 55:7 55:12 55:14 55:16 56:1 56:15 56:17 56:22 57:4

essentially ( 13 ) 7:10 12:19 20:9 23:12 28:12 28:16 31:14 58:4 58:18 74:13 98:19 110:4 157:19

establish129:14 established ( 2 ) 59:1

162:5 establishing156:20 estimated179:20 evaluated29:15 evaluation29:16 eve13:21
even ( 24 ) 9:4 12:16 13:22 17:18 27:24 42:4 47:17 49:9 50:24 55:5 56:13 62:2 65:7 67:12 74:4 80:6 84:20 113:9 113:20 118:4 134:24 160:7 176:15 177:4

event ( 7 ) 48:20 64:18 65:6 110:8 110:9 115:15 173:21

events ( 6 ) 18:14 134:7 134:25 141:23 145:5 145:8

eventually ( 2 ) 86:25 103:17

ever ( 2 ) 43:1 85:21 every ( 5 ) 19:10 50:4

113:14 153:6 175:3 everybody’s116:21

everyday39:22 everything ( 11 ) 54:7

115:22 127:14 130:18 162:7 162:14 169:9 169:12 169:25 170:5 179:21

evidence ( 39 ) 3:1 25:18 25:24 26:7 26:10 27:4 27:5 27:15 27:17 27:19 28:7 28:8 28:14 29:10 29:15 29:21 30:4 30:4 30:6 30:14 30:19 30:21 30:23 30:25 31:4 31:5 31:19 31:21 32:12 34:1 56:24 98:4 100:17 105:5 120:25 121:4 126:12 126:16 131:4

evince38:12 ex-shareholders94:8 exact ( 2 ) 103:2 151:22 exactly ( 9 ) 9:13 34:18
49:1 67:2 97:23 170:25 173:15 175:1 176:18

Examination-in-chief ( 4 ) 1:10 119:24 181:4 181:9

examine ( 2 ) 141:4 141:12

examined ( 2 ) 73:12 74:15

example ( 31 ) 9:1 16:25 27:7 42:15 47:2 63:24 64:7 64:13 64:13 69:2 70:9 81:6 86:21 88:25 89:20 118:7 128:20 134:21 138:1 138:9 140:22 145:13 146:9 149:12 153:1 153:3 155:16 155:25 157:11 157:18 163:18

examples ( 13 ) 5:11 29:9 77:25 131:21 132:21 134:1 147:15 151:15 151:17 153:11 153:11 154:20 161:14

except ( 5 ) 86:6 106:9 107:19 165:16 177:5

exception ( 5 ) 78:20 110:4 110:5 152:11 154:2

exceptional114:25 exceptions ( 2 ) 118:3
152:17

excessive ( 5 ) 38:16 64:12 64:14 167:13 167:23

excessively ( 3 ) 64:1 170:6 170:10

exclude62:17 excluded101:18 excludes135:3 exclusion ( 3 ) 81:6

101:19 163:14 exclusively13:1 exculpation ( 2 ) 147:12

157:21

Excuse ( 2 ) 102:11 177:12

exercise ( 3 ) 61:25 85:17 118:7

exhibited127:11 exist ( 8 ) 41:9 41:10

41:12 41:14 94:6 95:12 160:18 161:17

existence ( 3 ) 40:9 137:20 146:7

existing110:15 exists ( 3 ) 70:7 70:8
153:23

expect ( 4 ) 34:18 109:19 114:4 178:2

expectation125:22 expected ( 2 ) 88:17
159:15

expecting125:18 expenses112:19 experience ( 4 ) 86:10

98:10 124:22 177:15 expert ( 6 ) 1:15 92:25 120:2 120:11 125:19

127:22 expertise124:22 experts93:1

explain ( 8 ) 2:2 10:1 79:13 105:4 134:21 136:11 142:16 154:11

explained ( 2 ) 151:9 179:2

explains ( 2 ) 6:21 153:3 explanation ( 7 ) 27:25

31:23 32:7 134:3 134:20 134:22 176:5

explanations ( 12 )

27:21 28:3 28:11 28:15 29:14 29:16 29:20 29:23 30:1 30:7 30:11 30:17

explicitly82:22 explore ( 3 ) 6:16 16:16

24:5 exploring129:1 express2:24 expressing146:10 expressions58:23 expressly ( 5 ) 27:3

52:8 147:6 147:10 178:20

extend42:16 extension65:1 extensive117:23 extensively14:3 extent ( 4 ) 42:6 42:14

69:24 130:16 extract ( 2 ) 6:19 134:1 extracting ( 2 ) 19:3

19:3

extracts ( 2 ) 133:23 133:24

extremely ( 4 ) 21:19 64:6 64:19 65:8

eyes105:22

F

face ( 4 ) 57:6 59:20 64:25 163:11

faced163:16 facie116:10 facing144:7

factor ( 7 ) 34:16 36:16 37:11 39:1 135:1 139:2 142:2

factors ( 8 ) 7:9 15:10 33:16 33:17 37:5 37:13 44:12 148:25

factual ( 11 ) 12:19 41:15 69:22 92:11 126:16 128:24 135:19 139:21 139:22 141:4 141:25

fail45:2

failed ( 4 ) 38:7 54:5

102:5 169:2

fails ( 6 ) 50:17 86:16 102:17 102:21 102:24 103:15

failure ( 11 ) 36:15 43:21 49:23 50:1 50:18 52:12 53:5 85:16 91:2 145:16 145:19

fair ( 18 ) 5:14 15:18 45:5 48:6 70:16 71:4 82:21 95:3 95:17 98:8 98:11 116:17 116:22 117:25 123:11 129:7 136:5 159:10

fairer118:18

faith ( 10 ) 5:14 5:18 5:22 5:25 6:2 6:3

55:15 107:1 149:4 149:9

faked116:24

fall ( 2 ) 39:11 42:24 falls147:10 false40:14

familiar ( 3 ) 20:13 92:23 92:24

far ( 7 ) 14:8 19:13 68:15 70:6 110:19 111:3 179:7

fatal35:5

fatally ( 2 ) 35:7 36:24 fault ( 19 ) 3:24 4:5 4:14

4:16 5:3 5:24 16:1 16:3 79:3 79:18 79:24 80:4 81:9 81:23 81:23 81:25 109:5 144:6 146:8

favour ( 2 ) 78:21 139:19

favoured99:6

features ( 2 ) 63:3 176:7 federal ( 4 ) 96:20
165:24 166:3 166:8

Federation ( 6 ) 22:10 96:13 96:17 97:4 98:25 159:7

fees125:14 fell16:12 fetched101:21

few ( 4 ) 98:8 105:21 131:1 133:2

field ( 3 ) 115:25 121:14 177:6

fifth120:2 fight113:9 fighting112:19 figure ( 2 ) 101:23
101:23

filed ( 2 ) 72:19 127:22 fill111:13

final ( 5 ) 106:8 107:7 107:8 107:9 115:10 finally ( 2 ) 6:7 122:16

Finance ( 2 ) 122:10 145:3

financial ( 7 ) 64:18 126:8 126:13 126:23 126:24 143:5 145:2

find ( 17 ) 29:1 30:15 30:16 31:7 33:16 34:22 62:7 79:12 85:1 88:15 116:13 130:21 133:23 139:18 139:19 159:4 174:22

finders44:9 finding153:14 findings72:8

finds ( 2 ) 32:12 73:13 Fine ( 2 ) 126:12 150:19 finish ( 4 ) 65:17 165:8

179:24 180:8 finished107:19

Fiona ( 7 ) 130:6 131:25 150:9 151:23 152:2 153:4 172:2

fire75:3

firm ( 15 ) 38:3 72:1 72:1 122:9 122:14 122:16 125:5 125:7 125:9 125:11 136:1 160:16 172:19 174:10 176:20

firmly160:16

first ( 39 ) 3:13 3:22 4:9 23:11 24:5 24:21 28:18 28:21 33:2 33:3 36:9 38:10 44:20 49:19 51:10 52:2 66:15 71:22 75:11 83:23 93:21 94:10 100:10 110:25 121:18 126:2 131:14 134:2 134:5 134:21 143:21 154:6 154:7 154:22

159:18 168:4 168:9 176:10 176:11

Firstly ( 3 ) 23:16 132:6 144:9

fit ( 2 ) 174:2 174:5 fitted175:17 five121:25 fixed64:14 focused ( 2 ) 38:19

55:17 focusing38:14

follow ( 6 ) 12:14 84:23 93:6 131:20 159:12 159:14

followed11:20 following ( 4 ) 24:19

114:10 146:6 169:14 follows ( 8 ) 10:10 10:15 47:20 100:19 100:22 108:24 167:2 169:17 force ( 7 ) 44:18 106:14 106:16 134:16 135:9

157:20 159:9 forced ( 2 ) 21:17
107:11

foreign ( 18 ) 95:23 96:5 96:8 96:12 96:15 96:18 96:25 97:13 97:14 97:18 97:19 97:24 98:14 98:17 98:22 99:9 99:22 121:19

foreseeable88:6 forfeited ( 2 ) 22:16 65:6 forfeiture ( 3 ) 22:7 22:7
22:12

forged ( 2 ) 16:21 17:5 forgery16:20 forget54:13 forgotten180:6

form ( 17 ) 24:6 24:20 25:3 25:8 25:12 25:13 25:20 26:4 26:4 34:13 44:21 49:22 49:23 50:13 107:19 112:23 125:9

formal11:19 formalistic61:14 formality59:15 forms13:3 formula79:1 formulation ( 6 ) 135:23

138:4 140:16 140:17 141:8 146:3

forth ( 3 ) 19:20 49:3 91:8

fortunate138:17 found ( 10 ) 19:2 32:21

60:13 74:10 85:23 127:12 150:25 151:1 178:17 179:3

four ( 4 ) 3:21 45:15 45:21 45:21

fourth ( 2 ) 3:25 72:7 framework23:1

fraud ( 3 ) 21:16 21:24 63:11

fraudulent ( 2 ) 69:4 69:6

free ( 3 ) 62:23 125:13 125:25

freestanding ( 4 )

136:10 145:23 155:7 158:14

Friday180:9

front ( 2 ) 1:11 129:2 fulfil23:23

full ( 10 ) 3:19 4:4 32:4 86:12 95:7 96:18 123:4 128:17 152:5 163:20

fully ( 3 ) 31:12 107:19 110:1

function81:10 fundamental74:22 funds90:4

further ( 9 ) 9:7 29:5 46:1 49:6 49:9 92:19 97:24 108:2 126:11

furthering68:14

future ( 14 ) 45:10 46:10 46:23 47:10 47:22 52:12 52:15 52:16 52:17 52:25 55:11 86:9 125:20 127:1

G

Gamble ( 3 ) 123:10 123:16 123:18

gas142:16 gave16:25

general ( 40 ) 3:10 10:4 14:9 14:14 14:23 15:5 15:16 47:14 48:2 49:12 59:14 70:11 70:14 70:18 71:5 71:7 76:22 85:18 88:19 92:7 94:11 95:14 99:4 151:13 152:16 152:20 152:25 153:7 153:19 154:11 154:13 154:23 155:11 156:1 156:2 157:24 158:18 158:21 161:16 166:7

generally ( 5 ) 19:23 151:5 153:5 155:2 166:10

generis ( 2 ) 81:20

135:3

genuinely51:5

get ( 22 ) 18:11 20:14 24:11 24:11 40:11 42:21 60:4 61:6 65:1 72:25 83:12 98:2 103:2 103:23 104:24 106:20 107:22 110:1 117:11 139:5 142:15 177:20

getaway9:12

getting ( 4 ) 77:9 77:11 89:11 156:18

gist164:10

give ( 23 ) 5:11 9:1 27:25 28:10 30:3 32:25 34:7 63:24 84:10 90:18 97:24 100:17 100:20 105:16 117:4 126:12 130:2 132:21 144:8 150:17 153:8 154:21 163:11

given ( 16 ) 1:16 7:4 7:12 27:21 29:18 30:3 30:24 98:4 105:8 113:18 114:25 126:16 128:9 133:4 135:8 149:7

gives ( 7 ) 36:22 54:16 96:6 134:1 134:14 157:11 174:9

giving13:20 glad118:23

Gladyshev ( 18 ) 2:18 23:8 30:16 67:1 71:22 84:18 85:22 92:20 95:22 119:19 119:21 119:25 121:9 122:16 125:5 142:10 165:23 181:8

Gladyshev’s21:13 gone109:25

Good ( 20 ) 3:6 3:7 5:14 5:18 5:22 7:21 55:15 64:23 89:18 94:23 106:25 112:9 121:9 121:10 149:4 149:9 157:11 160:15 161:21 166:5

goods ( 6 ) 51:19 52:19 79:1 79:3 80:7 80:9

governed150:5 governing102:8

Government ( 2 ) 96:4

97:10

grant ( 2 ) 14:19 137:22 granted ( 7 ) 72:11

72:13 72:22 73:25 96:18 168:4 170:11

graphic174:23 gratuitously141:20 grave21:18

ground ( 10 ) 21:13 63:7 63:9 63:11 74:1 74:12 91:3 95:8 129:8 164:3

grounded30:10 grounds ( 7 ) 38:18

73:13 73:20 74:7 74:25 75:1 94:11

Group ( 23 ) 33:6 33:7 35:19 36:10 36:22 43:22 57:21 58:1 58:2 58:5 58:6 58:10 60:10 60:19 60:24 61:1 61:22 62:1 62:2 67:18 82:12 105:12 105:23

groups45:21 guarantees96:11 guidance ( 11 ) 54:17

58:24 159:8 159:14 161:1 161:4 161:6 164:11 164:16 164:19 164:19

guided32:14 guise147:23

H

habit175:3

half ( 2 ) 179:20 180:7 hand ( 4 ) 1:23 39:16
69:15 69:16

Handed2:2 happened ( 3 ) 14:24

18:18 85:5 happens ( 2 ) 40:17

111:11

happy ( 2 ) 102:13 165:12

hard ( 6 ) 1:20 35:25 41:12 105:8 116:13 150:12

hardly57:3

Harm ( 102 ) 3:17 3:18 3:20 3:22 4:1 4:9 4:12 4:15 4:19 4:20 4:25 5:8 5:12 6:5 6:10 7:5 7:15 7:23 7:24 8:3 8:9 8:10 8:15 8:19 8:21 8:25 9:4 9:15 12:2 13:1 15:22 15:25 17:13 19:4 22:21 22:24 23:6 74:7 78:24 92:8 95:5 96:3 101:7 101:10 108:11 108:11 108:19 109:1 109:7 109:12 109:13 110:3 112:20 114:11 114:16 116:2 117:16 129:14 129:16 129:19 131:9 131:16 137:20 139:2 140:2 140:3 140:4 140:23 141:14 143:25 144:12 146:5 146:25 147:6 147:10 147:11 147:15 147:17 147:19 147:22 147:25 148:2 148:4 152:4 154:13 154:14 154:15 154:19 154:24 155:11 155:12 155:19 155:23 156:3 156:11 163:18 163:20 163:24 163:24 163:25 164:1 164:14

harmed ( 2 ) 143:7 144:25

harmful ( 2 ) 147:7

147:8

hazardous82:2

head-on178:1
idea87:4
inevitable ( 5 ) 4:20
interpreted ( 2 ) 80:14

headed ( 2 ) 33:4
identification ( 4 ) 62:13
4:23 108:12 108:15
95:2

105:20
62:13 62:16 62:18
108:23
interpreting ( 2 ) 58:21

heads155:20
identified ( 7 ) 33:11
inevitably11:22
60:24

health78:24
37:13 52:6 70:5 82:21
inexpensive111:12
interrupt ( 3 ) 150:14

hear ( 2 ) 70:24 144:5
83:4 83:19
infernal119:8
172:7 173:15

heard131:4
identifies61:22
inferred26:11
interrupted ( 2 ) 135:10

heavily131:24
identify ( 4 ) 36:15
inflicted ( 2 ) 22:21 97:1
135:12

held ( 2 ) 8:6 173:2
37:10 43:21 70:7
infliction137:19
interrupts135:1

help ( 5 ) 18:15 106:4
identity ( 3 ) 34:25 56:8
influence ( 2 ) 21:15
intervened22:9

108:4 109:16 129:2
56:24
146:20
intervening ( 2 ) 135:14

helpful ( 3 ) 23:3 177:18
illegal ( 6 ) 9:5 75:14
informal ( 6 ) 32:23
145:8

180:8
76:18 159:21 162:17
33:1 33:8 33:14 36:11
into ( 31 ) 11:14 12:8

helpfully139:4
164:13
36:14
13:25 15:2 17:12 33:6

helps105:4
illusory ( 2 ) 99:10
information ( 5 ) 28:23
40:11 40:23 42:21

here ( 20 ) 6:20 25:5
112:9
75:5 75:7 159:6
54:10 58:22 59:7

47:13 52:19 53:8
illustrate70:13
161:23
59:9 59:11 60:7 71:25

56:12 93:2 114:24
illustrations131:11
initial ( 2 ) 18:17 104:10
75:10 78:8 95:13

126:6 138:9 144:16
illustrative145:11
initiate111:24
101:14 106:14 106:17

154:23 160:2 160:13
imagine ( 7 ) 11:12
injunctions152:20
107:15 116:25 132:1

161:22 164:19 171:4
18:14 30:25 34:2
injured91:1
132:15 141:16 172:1

171:15 175:7 176:22
86:21 98:4 116:13
injustice ( 3 ) 99:20
173:10 173:11 173:12

here’s114:21
immediate ( 14 ) 82:11
113:14 113:19
intrinsic150:3

high ( 12 ) 10:18 15:6
131:9 131:16 132:3
injustices115:16
introduction154:11

15:7 15:8 28:12 28:23
132:8 133:15 134:23
innovative113:12
intuitive7:12

64:1 64:4 101:2 159:6
135:3 139:1 139:2
insignificant7:8
invalid ( 26 ) 17:18 19:8

164:16 166:11
139:12 140:5 145:7
insofar ( 3 ) 67:25 77:25
19:10 19:12 19:14

higher ( 2 ) 113:9
146:11
130:13
21:22 25:22 44:22

113:10
immediately ( 3 ) 11:17
insolvency ( 2 ) 84:12
44:23 49:24 65:11

highest ( 3 ) 157:11
150:17 166:21
110:16
65:14 65:15 65:24

157:15 161:3
implementation52:19
insolvent84:7
66:7 67:10 75:10

highlighted ( 2 ) 130:10
implemented18:23
instance ( 12 ) 2:1
75:13 75:25 76:21

130:11
implication ( 2 ) 139:1
16:20 16:22 82:1
159:20 167:12 167:19

highly ( 2 ) 28:24 61:14
172:22
83:25 166:1 168:4
168:17 168:23 170:5

HILDYARD ( 66 ) 1:4
imply ( 2 ) 140:5 153:22
168:9 174:6 175:21
invalidate ( 2 ) 13:17

1:7 1:22 2:3 62:15
important ( 4 ) 8:14
178:6 178:25
69:18

89:14 89:18 102:10
33:17 144:15 170:15
instances134:12
invalidated66:9

102:12 102:15 102:20
imposed170:7
instead163:10
invalidating67:15

102:23 103:5 103:12
imposes ( 2 ) 42:6
institution ( 2 ) 178:23
invalidity ( 2 ) 76:17

108:3 108:4 109:9
81:25
178:24
162:15

109:16 109:22 110:7
impossible ( 4 ) 91:23
instructions90:18
invention153:25

110:14 110:18 110:22
91:24 170:8 176:8
Insurance ( 3 ) 82:12
invest ( 3 ) 96:12 177:11

111:5 111:17 111:21
improper ( 6 ) 74:11
105:12 105:24
177:13

112:2 112:11 112:20
96:3 171:19 171:20
intend ( 3 ) 38:2 38:5
investigation ( 2 )
113:16 113:25 114:10
172:5 172:9
38:24
101:14 101:16

114:23 115:15 115:25
improperly ( 3 ) 19:8
intended ( 7 ) 4:21
investigations124:3

116:5 117:3 117:10
73:23 101:18
33:22 33:23 39:3
investment ( 9 ) 96:2

117:14 117:20 117:25
improved ( 2 ) 126:23
43:14 43:16 108:13
96:5 97:15 98:4 98:8

118:20 119:3 119:16
126:25
intends7:16
98:11 98:20 117:18

119:22 142:6 150:12
inaction91:17
intent ( 14 ) 8:23 23:19
124:11

150:16 150:19 150:22
inapplicable176:8
32:19 35:10 35:11
investments ( 4 ) 96:8

165:5 165:14 165:18
incidental7:8
35:13 37:6 46:21
97:20 98:16 99:9

165:22 176:4 176:13
incidents78:7
49:12 54:5 109:4
investor ( 7 ) 96:18

176:24 177:9 177:13
include ( 13 ) 4:18
109:5 109:8 109:15
96:25 97:14 97:18

177:16 179:10 179:13
10:25 23:9 27:21
intention ( 7 ) 8:20 9:14
97:19 98:2 98:23

179:22 180:6 180:14
50:17 50:19 51:2
13:1 36:16 38:12
investors ( 8 ) 95:23

181:7
52:12 81:22 108:9
38:16 38:20
96:12 96:16 97:24

himself ( 2 ) 92:15
127:20 158:16 175:5
intentional ( 5 ) 4:15
98:15 98:17 99:22

111:10
included ( 4 ) 49:24
4:24 16:2 108:19
99:23

hire112:9
50:14 167:21 172:1
109:12
invite177:9

hmm ( 9 ) 39:25 58:17
includes ( 5 ) 36:10
intentionally12:13
involve ( 3 ) 42:16 48:21

66:24 96:23 107:3
71:7 106:23 130:10
intents41:5
79:24

121:13 123:7 130:23
146:6
INTER-FILE122:9
involved ( 6 ) 18:24

166:25
including ( 3 ) 124:3
interest ( 4 ) 65:2 68:15
28:14 124:6 124:10

hold88:3
124:17 129:13
114:12 168:2
126:3 178:9

Holding ( 6 ) 33:6 36:22
inconceivable85:20
interested ( 6 ) 11:23
involvement ( 2 )
43:22 57:21 60:19
inconsistent ( 2 ) 80:23
19:10 29:18 91:16
124:13 124:14

61:22
178:12
91:19 126:4
involves18:15

holes43:2
incorporated54:9
interesting ( 2 ) 87:9
involving55:5

hope ( 2 ) 1:7 119:22
incorrectly171:22
126:5
irrelevant ( 2 ) 26:5

hopes180:12
increase ( 2 ) 104:13
interests96:19
69:23

house69:12
104:19
interfere39:21
irrespective54:1

however ( 14 ) 11:9
incur ( 2 ) 140:13 141:3
interfering ( 3 ) 134:25
isolate24:15

50:16 65:5 67:9 77:6
incurred137:25
135:9 152:19
isolation ( 4 ) 9:10

132:3 139:18 147:17
independent ( 12 ) intermediate160:23
43:15 43:18 44:3

154:17 163:11 163:17
41:18 42:4 50:21 69:1
intermediated134:17
issued ( 2 ) 161:4

169:22 170:1 174:1
71:5 102:19 104:11
intermediation156:12
164:11

huge83:24
104:13 104:16 126:12
international ( 10 ) issues ( 7 ) 16:17 19:22

Hughes ( 3 ) 142:25
135:1 135:9
96:21 98:1 121:15
122:3 122:5 164:13

143:1 143:4
INDEX181:1
121:18 122:4 124:11
164:16 176:19

hypothetical ( 2 ) 87:9
indicates ( 3 ) 36:9
124:12 124:13 124:18
it’s ( 67 )7:10 8:7 8:8

109:6
51:22 62:8
124:20
10:13 18:23 26:19

indicative155:6
interpretation ( 12 ) 32:10 32:11 33:1 33:5

I indirect134:17
36:23 54:11 55:4 55:9
34:5 37:17 37:23 39:1

individual ( 4 ) 15:13
58:3 58:4 58:14 58:15
41:20 43:10 43:16

65:21 66:3 110:10
61:12 94:24 125:1
44:6 44:8 46:18 46:21

I’ve ( 2 )62:25 164:8

ineffective51:1
132:12
48:6 49:11 49:12

55:14 55:16 55:21 55:22 58:5 62:22 63:20 64:24 65:20 68:3 68:12 82:17 82:21 85:5 87:9 88:21 98:11 105:22 110:12 111:5 113:19 114:8 116:17 118:1 127:7 127:9 129:1 130:20 135:11 135:20 135:25 144:6 145:22 146:12 148:10 156:11 157:16 158:15 160:21 160:23 164:11 166:7 179:11
its ( 32 ) 25:16 54:5 73:24 75:12 75:14 80:5 86:17 87:4 92:4 94:3 94:4 112:4 118:24 125:8 141:10 144:24 145:2 145:16 149:11 158:10 159:19 159:21 164:17 168:11 169:10 170:16 173:8 174:2 174:13 175:2 178:5 178:8

itself ( 6 ) 9:5 43:24 89:22 90:7 146:10 151:7

J

January167:7 joint ( 7 ) 2:17 2:25

120:20 121:1 129:9 147:3 164:4

jointly ( 8 ) 7:23 8:2 8:21 8:24 9:4 129:20 155:23 156:17

judge ( 9 ) 131:5 131:10 151:1 152:15 153:24 154:4 160:16 178:2 178:5

judges ( 9 ) 132:12 160:19 166:5 166:6 174:19 174:21 176:22 177:15 177:25

judging127:8 judgment ( 17 ) 7:10

65:12 73:8 130:5 130:20 131:18 136:23 137:16 140:8 143:1 145:24 150:9 162:11 166:12 167:11 168:8 177:20

judgments174:20 judicial ( 12 ) 29:21 30:9

30:22 32:15 53:18 54:16 73:14 133:5 133:12 133:13 138:1 147:21

July138:13 jumping35:14 jurisdiction ( 2 ) 119:8

143:16 jurisdictions81:11 jurisprudence54:10 justification5:13 justifications5:12

K

keep ( 2 ) 146:16 180:12 kept124:20

key ( 5 ) 81:15 151:2 162:21 171:4 173:5

kind ( 2 ) 55:13 55:22 kindly75:1 knew87:3

know ( 34 ) 1:9 1:20 12:22 13:22 39:15 41:9 41:10 46:17 48:3 48:16 48:20 49:1 49:16 56:11 56:13 57:6 68:22 71:23 77:22 87:20 92:23

94:15 109:10 114:8 115:5 126:14 130:17 133:19 146:1 150:13 153:10 156:19 178:24 179:14

knowledge ( 3 ) 9:13 26:17 108:23

known ( 3 ) 92:25

109:12 138:6

knows ( 2 ) 4:23 108:15 KUGI167:3

L

labels ( 2 ) 138:20 146:15

labour ( 5 ) 151:16 151:25 152:6 152:14 153:19

lack ( 9 ) 5:24 35:4 35:21 36:16 36:19 38:11 38:16 38:19 43:20

land ( 12 ) 166:14 167:4 167:8 167:13 167:14 167:15 167:18 167:20 170:2 170:4 170:7 176:9

language ( 16 ) 51:22

55:8 60:12 60:16 60:17 60:18 60:20 62:4 62:5 62:11 107:8 118:21 140:2 141:10 163:23 164:18

large ( 4 ) 83:1 96:1 115:21 115:22

largely ( 2 ) 63:7 123:10 largest ( 3 ) 90:23
110:19 123:12

last ( 9 ) 9:18 22:18 30:8 63:17 72:17 76:14 94:22 114:5 139:6

later ( 9 ) 111:22 129:3 129:20 131:1 134:7 136:17 136:25 154:20 165:2

latter38:14

lawful ( 14 ) 5:12 5:13 6:4 12:16 13:25 147:9 147:15 147:21 148:3 148:14 148:21 149:6 149:10 149:17

lawfully ( 2 ) 5:9 147:11 lawyer ( 13 ) 37:24

85:22 109:20 112:10 113:15 124:7 124:8 126:15 138:6 152:10 152:15 152:21 174:21

lawyers ( 6 ) 34:8 37:18 37:23 106:7 115:23 126:20

lay59:18

lead ( 5 ) 7:5 43:16 83:24 83:25 160:16

leading ( 2 ) 93:1 152:23

lease ( 5 ) 166:14 167:4 167:15 167:21 170:11

least ( 7 ) 5:2 14:20 18:21 77:4 86:3 88:1 111:12

leave ( 3 ) 52:24 53:19 55:3

leaves ( 4 ) 16:17 52:11 52:14 57:25

led8:15

left ( 6 ) 53:3 53:10 55:11 55:18 56:12 113:3

legal ( 33 ) 3:18 12:25 13:2 13:4 15:25 23:1 24:22 33:7 34:9 36:4 41:22 44:18 51:14 57:22 78:25 93:23 94:5 95:8 104:25 111:20 112:8 112:19

113:8 121:14 121:19 122:6 122:10 134:4 139:23 147:17 148:3 148:20 151:13

legally ( 2 ) 7:13 29:18 legislation ( 16 ) 97:3 98:25 109:25 110:6 123:22 169:8 172:6 172:9 172:11 172:21 174:9 174:12 175:10

177:3 178:10 179:1 legislative ( 4 ) 153:2 153:6 153:9 153:17

length152:23

less ( 6 ) 11:19 61:11 61:13 101:11 114:13 174:4

lessee ( 2 ) 166:16 167:8

lesser113:11 lessor ( 3 ) 166:15
167:3 170:8

let ( 8 ) 1:8 29:1 37:16 63:23 65:17 72:25 111:6 119:11

letter ( 9 ) 28:12 28:23 75:5 159:6 159:8 161:23 176:1 176:20 179:3

letters ( 2 ) 28:16 128:5 level ( 8 ) 15:6 15:7 15:8 15:16 83:16 83:20

86:10 166:10 leveraging ( 2 ) 124:12

124:14

lex ( 3 ) 70:9 70:21 71:14

liability ( 23 ) 5:9 9:21 11:7 11:9 68:16 79:14 80:18 81:20 81:23 81:25 94:12 100:14 109:7 129:19 130:9 134:3 134:15 147:8 147:19 152:6 156:25 157:19 157:20

liable ( 8 ) 7:24 8:6 9:3 10:17 10:24 91:1 100:24 145:15

lies134:18 life78:24

like ( 24 ) 10:4 17:4 30:4 36:6 43:22 52:15 57:14 99:4 103:4 106:8 107:16 121:11 123:10 128:5 135:7 138:17 145:19 160:9 161:7 165:2 165:3 179:5 179:5 180:2

likely ( 2 ) 28:9 30:1 limitation ( 5 ) 16:11 77:6 77:12 77:15

77:21 limitations83:13 limited ( 6 ) 77:19 81:5

81:16 87:22 99:18 99:21

line ( 6 ) 34:20 36:9 40:22 100:7 100:21 108:7

lines ( 2 ) 36:7 141:22 link ( 3 ) 3:25 6:9 129:15 liquidated ( 7 ) 58:12

58:12 90:5 91:14 94:1 94:4 110:14

liquidation ( 2 ) 94:10 115:1

liquidator ( 6 ) 111:2 112:24 115:3 115:3 115:7 115:8

list ( 2 ) 127:25 129:12 listed ( 2 ) 55:13 74:18 literal ( 13 ) 55:8 58:22 58:24 59:1 60:12 60:16 60:16 60:20 60:22 60:23 61:8

61:10 62:23 literally49:6

literature6:24 litigation ( 9 ) 111:8

111:8 119:9 123:9 124:7 124:15 124:25 125:3 125:3

little ( 3 ) 28:4 89:25 141:10

LLC ( 3 ) 105:12 105:23 166:17

loaded178:14

loan ( 2 ) 42:16 65:7 loans ( 2 ) 20:12 65:2 logic70:16

logical ( 4 ) 60:25 61:3 61:11 61:13

logically61:19 London ( 2 ) 122:19
122:23

long ( 3 ) 14:17 135:6 139:15

longer ( 4 ) 77:21 81:15 94:5 179:16

look ( 73 ) 3:13 8:12 8:16 9:6 9:16 10:3 12:22 14:6 15:13 15:18 16:6 16:11 18:12 21:11 23:5 24:16 25:9 29:2 31:12 34:12 34:15 34:18 36:6 36:7 39:19 43:23 44:2 44:3 44:3 45:7 46:7 47:12 49:19 51:10 52:15 53:17 61:23 64:25 65:21 73:1 75:4 81:22 94:22 96:8 97:24 103:2 105:4 105:9 105:25 120:5 120:9 120:15 123:3 129:22 130:19 138:19 140:8 146:14 147:4 150:10 154:5 154:8 158:23 158:25 161:18 161:22 162:4 164:22 166:12 173:10 173:11 173:12 174:19

looked ( 5 ) 34:17 77:24 149:3 162:22 173:17 looking ( 6 ) 9:10 44:6 61:7 146:23 163:8
166:23

looks ( 3 ) 36:13 58:19 146:2

looting ( 2 ) 92:15 92:18 Lordship ( 4 ) 1:3 26:2
106:4 179:19

Lordship’s ( 2 )119:20

165:1

lose ( 3 ) 94:5 114:9 115:21

loses4:10 losing88:8

loss ( 71 ) 82:4 82:5 82:5 82:8 82:23 82:25 83:6 83:20 84:4 84:7 84:19 84:22 85:3 85:7 85:14 85:19 85:21 86:3 86:5 86:12 87:12 88:23 88:23 88:24 88:25 89:3 89:5 89:21 92:3 92:20 93:4 94:20 95:20 97:9 97:10 97:20 98:12 99:2 99:3 99:12 99:19 108:5 109:17 109:18 109:22 110:4 110:10 110:11 112:13 113:13 113:17 114:1 114:3 117:5 117:7 117:8 117:14 117:17 118:2 118:11 118:12 118:22 119:1 119:7 143:6 143:8 143:18 145:2 145:2 145:3 145:3

losses ( 12 ) 72:20 73:20 73:25 89:6 94:9 97:1 134:8 134:13

137:20 137:24 140:13 141:3

lost ( 8 ) 23:7 23:9 82:19 89:1 89:2 142:24 143:4 144:23

lot ( 5 ) 43:21 82:24 83:11 83:13 123:12

low ( 2 ) 11:22 103:13 lower ( 13 ) 17:2 72:7

72:8 72:11 72:12 73:6 101:8 103:1 112:1 157:18 159:9 159:12 159:14

Luckily111:25

Luncheon89:16 lurch113:3

M

machinery ( 4 ) 49:5 87:15 88:6 88:17

Madrid122:1

Maggs ( 33 ) 1:5 1:6 1:7 2:5 3:6 47:19 54:18 57:14 63:4 81:3 89:19 99:24 100:3 119:17 120:21 129:8 131:5 132:23 133:16 138:18 146:13 149:4 150:1 150:2 151:9 152:9 153:10 157:8 159:1 159:16 164:4 179:17 181:3

Maggs’131:11

Magnum1:25

main ( 10 ) 7:7 31:13 44:17 49:7 59:17 64:2 82:10 82:16 84:10 133:25

majeure ( 2 ) 134:16 157:20

major111:9 majority90:16

makes ( 10 ) 35:7 35:25 36:6 49:23 61:11 75:13 78:20 92:20 119:2 159:20

making ( 5 ) 9:6 46:20 51:7 95:14 165:2

manager ( 2 ) 85:10

85:16

mandatory ( 2 ) 25:20

52:7

manner ( 2 ) 18:9 19:20 manufacturer ( 3 ) 79:3
80:17 86:23

many ( 13 ) 11:23 31:8 63:3 65:25 77:4 81:11 97:23 99:6 112:8 112:8 145:11 148:6 166:10

Marine ( 23 ) 33:6 33:7 35:20 36:22 42:8 46:4 57:21 58:1 58:2 58:5 58:6 58:10 60:10 60:19 60:24 61:1 61:22 62:1 62:2 67:18 82:12 105:12 105:23

Marine’36:10 mark180:11 marked85:18 marker34:2 master107:16 material53:17 materials ( 4 ) 73:13
127:11 127:11 127:19 matrix141:5

matter ( 14 ) 26:6 26:8 26:14 32:9 32:10 41:10 57:5 58:14 69:8 72:9 84:20 86:11 136:25 173:19

matters ( 3 ) 128:25

129:12 164:12

maximise ( 2 ) 90:21

91:13

maximum178:2 maybe ( 14 ) 13:22

33:15 64:13 83:3 83:3 89:10 103:13 105:21 107:20 128:10 141:21 146:11 146:12 162:25

mean ( 30 ) 10:1 21:6 22:13 38:5 38:7 38:23 48:15 52:10 53:4 55:11 60:20 60:22 62:16 70:8 80:7 82:5 87:17 101:5 101:7 107:4 125:12 128:3 141:22 155:1 155:1 155:2 156:14 164:6 166:2 166:3

meaning ( 10 ) 58:22 58:24 59:1 61:8 61:11 62:23 141:19 177:11 177:14 179:4

means ( 14 ) 6:22 50:10 58:25 59:2 107:8 119:4 133:13 134:18 138:11 141:10 141:11 141:19 146:23 162:10

meant ( 5 ) 72:16 100:18 104:15 138:23 139:9

measure22:23 measures ( 2 ) 75:3
148:8

meet ( 2 ) 29:21 30:9 meeting180:11 member ( 2 ) 125:9
125:10

memorandum ( 24 )

2:17 3:1 20:5 31:25 33:4 34:6 34:21 36:9 39:17 43:18 43:24 50:16 50:16 51:22 59:21 75:7 105:16 128:10 128:11 128:13 128:16 129:9 147:3 164:5

mention ( 2 ) 51:3 160:8 mentioned ( 4 ) 13:19

96:22 160:5 160:6 mentioning62:10 mentions95:1

mere ( 3 ) 53:14 55:10 174:3

merely ( 2 ) 106:20 118:12

merger161:2

met ( 3 ) 99:10 99:11 169:14

metres ( 6 ) 167:5 167:9 167:14 167:16 167:25 170:3

middle ( 2 ) 6:22 95:3 might ( 36 ) 5:13 13:9 17:10 17:17 18:1

18:15 20:5 23:3 27:17 31:19 37:18 37:18 42:1 42:12 42:25 42:25 64:7 65:11 65:23 80:3 89:13 89:25 92:1 100:19 101:15 101:17 111:8 154:3 154:3 156:6 156:7 156:8 157:2 158:16 176:13 176:14

Mikhail126:17

MILNER ( 21 ) 3:5 3:6

57:8 57:14 62:22 89:12 89:19 99:24 100:4 108:8 108:17 110:18 113:1 119:14 119:19 119:24 119:25 121:6 179:25 181:5 181:9

Milner’s103:20 mind108:25

mine ( 2 ) 127:9 127:14 minimum ( 3 ) 25:1
87:23 116:15

Ministry121:20

minute ( 2 ) 36:21 162:4 minutes89:12 misapprehension16:23 misappropriate15:21 misappropriation ( 3 )

15:21 15:24 147:23

misconduct ( 2 ) 146:6 146:8

misheard102:12 mismanagement ( 2 )

85:9 85:11 misrepresenting178:21 missed132:5

missing ( 5 ) 52:20 54:8 54:17 106:9 106:9

misunderstand132:2 misunderstood139:6 mitigate11:10 Mobile ( 5 ) 142:18
142:21 142:23 143:6 143:9

modify115:16 moment ( 6 ) 57:10

72:25 73:1 116:1 142:5 179:9

money ( 6 ) 4:10 111:6 111:18 111:24 112:9 168:2

month ( 2 ) 31:18 31:18 monthly25:1 moratorium ( 2 ) 21:8
32:2

morning ( 4 ) 3:6 3:7 108:6 180:9

mostly124:14 motives126:2

move ( 7 ) 7:21 19:22 32:17 66:13 82:3 142:10 149:19

moved133:1 moving ( 2 ) 137:12

147:2 municipal145:12 must ( 34 ) 1:8 24:19

29:20 30:5 47:6 47:25 49:22 49:24 50:4 50:13 50:14 51:16 52:1 52:4 53:1 53:13 56:10 66:20 78:12 80:7 124:24 131:8 131:15 133:19 137:8 137:17 139:22 140:12 140:18 141:2 146:24 152:4 162:12 175:5

mustn’t139:24 mutual ( 6 ) 22:4 22:6

22:13 76:1 76:5 76:12

N

name61:15

named ( 2 ) 51:13 56:17 namely ( 3 ) 90:1 167:19
169:1

names ( 2 ) 34:7 106:10 naming36:22

narrow ( 7 ) 69:13 70:7 84:18 147:15 154:2 163:6 164:17

narrower27:16 nation99:6

national ( 5 ) 95:25 96:6 97:5 98:3 98:19

nationalised97:11 natural ( 3 ) 48:7 165:13

165:15 naturally119:11 nature ( 6 ) 23:18 32:19

88:22 118:24 162:10 168:14

Nazarov126:17 near165:7

Nearly98:17 necessarily ( 3 ) 38:3
77:9 86:8

necessary ( 18 ) 7:2 29:17 51:14 56:18 59:10 61:23 79:6 79:9 79:10 79:11 94:20 99:20 137:22 140:12 141:2 141:6 146:24 147:16

need ( 27 ) 1:8 10:19 14:6 16:16 23:5 26:3 33:20 37:9 37:10 37:20 42:19 46:17 49:15 52:21 84:17 99:1 101:2 101:10 106:20 108:4 109:16 119:4 119:10 138:10 152:18 164:25 180:4

needed ( 2 ) 80:25 81:1 needs ( 3 ) 98:2 104:11
107:19

negligence ( 5 ) 109:5 109:6 109:8 145:12 145:22

negligent ( 2 ) 109:14 109:15

negligently12:13 negotiated ( 2 ) 18:9

70:1 neither112:3 neutral40:22

never ( 8 ) 18:11 37:24 60:13 62:25 67:7 87:3 176:9 176:10

nevertheless ( 7 ) 11:25 13:9 34:22 51:1 80:9 99:18 116:11

newspaper104:23 next ( 12 ) 29:2 39:19

47:3 73:9 76:13 76:14 78:17 130:24 137:12 140:8 165:17 179:11

nine121:20

nobody ( 3 ) 67:24 92:3 102:21

nod60:4

nominal ( 2 ) 55:21 56:2 nomination155:22 non116:25 non-binding ( 3 ) 23:19

32:19 32:23 non-commercial125:11 non-

intermediated134:6 non-lawyers34:17 Non-observance25:13 non-parties27:19 non-

performance136:12 non-published93:23 none ( 3 ) 43:15 88:2
88:5

nor ( 2 ) 13:2 112:4 normal ( 2 ) 81:12 125:7 normally ( 6 ) 12:7

55:15 80:7 104:8 125:12 125:14

North ( 2 ) 165:25 166:8 notable173:18 noted6:24

Nothing ( 6 ) 119:14 119:15 141:14 178:11 178:16 178:19

notion134:22 notions118:3 notwithstanding ( 2 )
144:2 144:13

November ( 2 ) 2:11 2:21

nowhere165:7 nullity77:16

number ( 24 ) 1:16 7:5 8:2 15:9 18:23 32:25 37:18 40:19 70:13 83:1 90:19 96:1 96:2 99:5 99:21 119:5 119:6 123:21 124:10 127:8 161:20 162:2 165:9 167:17

numbered159:18 numerous ( 2 ) 13:21
127:21

O

object126:11 objection ( 2 ) 39:10

90:11 objections88:3 objective ( 2 ) 30:4 30:6 obligation ( 20 ) 42:4

42:5 42:17 48:10 48:13 48:14 60:2 136:13 137:9 155:13 155:13 156:2 156:4 156:9 158:10 158:13 164:17 169:24 170:4 170:4

obligations ( 24 ) 39:24 41:7 41:12 41:13 42:6 47:4 71:6 71:7 71:10 71:18 71:19 73:24 74:11 107:1 137:19 143:12 155:14 156:1 156:4 157:5 157:25 158:4 158:9 158:22

observe49:23 observing25:12 obtained ( 3 ) 17:19
19:9 19:19

obvious ( 8 ) 41:11 62:1 71:14 81:10 109:19 113:20 115:17 115:19

obviously ( 9 ) 60:23 83:7 84:2 90:6 92:14 92:16 114:16 139:21 167:24

occur22:8 occurred ( 2 ) 86:7
140:4

occurs ( 2 ) 144:1

144:12

October1:18 offence137:10 offended118:9 offensively13:17 officer68:14 officialed28:15 officials15:1

Often ( 11 ) 77:5 77:5 77:6 84:20 97:14 97:16 115:21 125:14 136:10 143:17 155:21

Oil ( 3 ) 98:6 142:16 142:20

Okay ( 12 ) 15:18 21:8 50:24 65:18 67:22 73:5 82:9 100:10 113:1 128:18 130:25 179:13

old ( 2 ) 132:10 132:12 olden ( 2 ) 146:13
146:17

OMG ( 6 ) 59:14 59:24 60:4 60:11 67:21 69:15

omission129:16 omissions ( 2 ) 137:18
147:8

once ( 2 ) 61:25 107:11 one-sided ( 2 ) 65:9
66:6

onto ( 4 ) 1:24 2:9 130:24 144:15

open ( 4 ) 5:23 34:21 69:16 82:17

opened81:19 operates ( 2 ) 12:22

76:25 operating97:21 operation140:24 opinion ( 10 ) 3:1 23:8

28:24 29:6 30:18 30:19 78:15 109:17 115:17 121:1

opinions2:24 opposed138:25 oppressive ( 5 ) 63:13

63:18 63:24 64:10 70:2

options ( 3 ) 58:1 58:2 58:10

oral ( 9 ) 24:6 24:11 25:21 29:9 31:4 31:4 32:1 32:21 44:21

orally ( 4 ) 20:11 21:8 23:16 25:4

order ( 5 ) 46:15 101:23 107:15 127:20 140:11

ordered74:20 orders115:11 ordinarily93:9

ordinary ( 4 ) 26:9 33:25 50:7 86:14

organising ( 2 ) 101:9 104:5

orient82:11 origin132:9

original ( 2 ) 18:21 54:4 Originally122:9 orthodox61:18 Osakwe ( 2 ) 136:9
155:4

Oslo ( 25 ) 33:6 33:6 35:19 36:10 36:22 42:8 42:18 46:4 57:21 58:1 58:2 58:5 58:6 58:10 60:10 60:19 60:24 61:1 61:22 62:1 62:2 67:18 82:12 105:12 105:23

others ( 2 ) 72:23 127:5 otherwise ( 13 ) 18:1

41:8 79:7 95:20 101:12 113:4 117:22 129:3 152:12 152:14 169:16 169:17 169:21

ought ( 2 ) 168:24 173:2 out-of-pocket23:6 outbid10:5

outline ( 2 ) 15:6 15:9 outset129:2 outside69:5

over ( 17 ) 11:16 12:9 12:17 17:1 24:25 40:23 70:11 78:19 96:14 115:10 116:15 116:23 130:11 151:12 153:5 153:19 168:6

overall ( 2 ) 9:7 28:8 overnight180:5 overturned170:14 owed118:4

own ( 7 ) 61:2 76:7 117:3 122:16 127:6 127:7 168:11

owned ( 2 ) 142:24 144:23

owner ( 5 ) 11:13 82:15 86:22 87:18 103:7

owners18:22 owns61:4

P

pages ( 3 ) 100:8 131:1 174:3

paid ( 10 ) 110:1 125:15 125:18 126:25 167:7 167:16 167:23 167:24 170:6 170:10

paper31:8 parameter152:5 parent ( 5 ) 93:4 93:5

93:25 94:3 95:15 part ( 20 ) 3:24 11:2

17:13 23:6 23:16 24:6 25:21 28:6 66:3 97:2 137:13 140:8 150:3 153:12 156:1 158:17

167:18 167:19 169:10 170:6

participant102:2 participation8:4 particular ( 20 ) 14:24

28:14 28:24 36:1 64:6 64:12 95:11 102:8 103:2 121:23 124:21 131:20 150:3 160:14 162:3 163:11 165:3 166:6 175:21 175:25
particularly ( 10 ) 32:15 33:17 87:3 94:22 131:12 151:18 159:9 166:4 174:23 174:23

parties ( 87 ) 7:25 15:20 21:4 25:14 27:21 29:14 29:16 29:20 29:23 30:1 31:14 33:22 34:25 35:2 35:4 35:9 35:24 36:1 36:2 36:20 38:2 39:9 39:13 41:2 41:6 41:18 41:19 41:20 41:23 42:9 42:15 42:17 42:20 43:8 45:9 46:9 46:24 47:6 47:7 47:11 47:16 47:21 47:23 49:7 49:8 51:16 52:4 52:8 52:18 52:21 52:24 53:9 53:19 53:21 54:23 55:3 56:11 56:13 56:19 56:23 57:17 59:6 62:20 67:7 67:22 67:23 74:4 75:9 76:19 91:19 106:10 106:11 106:25 128:16 128:24 144:19 151:2 151:4 151:7 159:25 161:10 161:10 162:5 162:13 162:19 169:18 169:23

parties’ ( 2 )28:3 28:10 partly27:12

Partners ( 2 ) 122:17 125:5

parts ( 2 ) 42:22 42:22 party ( 67 ) 11:1 11:15

19:9 20:22 21:20 22:5 22:20 27:3 31:12 31:15 31:23 33:10 35:7 35:19 36:14 36:15 37:2 39:4 40:25 41:2 42:11 42:12 45:25 46:13 47:8 57:20 57:21 57:23 58:6 58:11 59:11 60:18 61:3 61:15 61:22 62:9 62:14 62:15 62:15 62:16 62:18 63:8 66:6 66:9 66:10 66:12 68:8 75:12 75:14 76:2 82:13 82:16 82:18 89:8 91:16 104:5 106:14 137:8 137:18 141:14 144:19 150:4 159:19 159:21 162:6 169:25 172:15

passage ( 7 ) 32:5 130:18 131:1 153:24 174:22 174:25 178:9

past ( 2 ) 133:4 138:15 pathway ( 2 ) 160:15

176:20 patience165:2

Pause ( 7 ) 29:1 72:25 73:4 101:4 106:2 131:23 150:16

pausing ( 2 ) 3:21 168:19

pay ( 4 ) 31:17 64:7 104:23 126:9

payable79:17 paying65:2 payment ( 5 ) 64:8

125:8 125:20 126:22 126:24

payments21:8 penalties ( 2 ) 64:12
64:15

penalty ( 2 ) 64:7 64:18 penultimate72:12 people ( 23 ) 7:23 8:2

8:20 10:18 15:2 31:8 34:7 34:8 35:12 35:23 37:23 41:23 46:17 46:18 46:22 81:4 81:8 81:14 81:15 83:13 101:1 116:23 117:12
per ( 7 ) 31:21 64:8 86:22 87:18 87:19 124:25 125:2

percentage ( 3 ) 103:1 103:3 116:15

perception132:9 peremptory163:21 perfectly ( 4 ) 24:13

34:21 61:17 104:25 perform7:11 performance ( 4 ) 74:10

107:1 143:24 144:11 performed ( 6 ) 27:12

27:12 73:24 162:6 169:10 169:13

performing142:23 performs81:10 perhaps ( 9 ) 15:9 49:4

67:11 78:4 129:8 145:11 151:22 178:1 178:3

period ( 4 ) 20:12 47:6 77:12 77:21

periods ( 2 ) 16:10 77:15

permission ( 4 ) 73:7 73:8 73:15 119:20

person ( 23 ) 3:17 3:18 3:19 3:22 4:10 8:8 8:9 12:4 13:2 21:17 42:13 63:1 78:25 88:16 111:1 118:8 118:9 134:8 134:13 134:18 140:23 141:14 168:10

person’s ( 2 )8:4 168:2 personal ( 2 ) 88:23

110:11 personally ( 2 ) 85:3

91:1

persons ( 9 ) 12:25 19:11 24:22 29:14 29:17 29:18 110:2 129:19 134:16

perspective174:20 persuasive159:9 pertinent131:12 PETER ( 2 ) 1:6 181:3 Petersburg ( 3 ) 165:25
166:15 167:3

petition ( 3 ) 21:21 111:13 115:6 photocopies20:17 phrase ( 5 ) 16:19
138:18 146:13 146:16 146:23

physical ( 3 ) 101:19 145:1 145:2

physically12:13 pick ( 10 ) 7:6 100:3

103:23 133:2 133:16 137:5 142:11 153:13 166:13 166:17

picking145:24 piece167:20 pin12:21

place ( 8 ) 110:25 134:7 143:24 144:10 166:13 176:10 176:11 176:18 plain ( 4 ) 109:19 112:3

113:19 115:17 plaintiff ( 9 ) 74:8 74:25

137:17 137:23 137:25 140:12 141:3 144:24 163:19

plan104:7

play154:21
preclude118:7
73:17 88:5 130:9
5:19 5:20 45:11 72:2

played8:13
preconditions ( 2 ) 130:13
75:12 75:22 76:7

plead ( 2 ) 5:24 69:24
140:12 141:3
priority ( 2 ) 70:10 90:17
76:18 76:23 78:24

pleaded74:14
predominantly123:1
Privalov130:6
78:25 87:4 95:6 102:9

pleading69:22
preference13:20
private ( 2 ) 122:6
103:18 144:24 145:2

pleadings ( 7 ) 14:14
preferences ( 2 ) 13:24
124:21
147:20 147:23 149:5

14:20 127:20 127:21
14:5
pro ( 3 ) 125:14 126:3
149:12 156:12 159:19

128:8 128:16 128:24
prejudice ( 3 ) 84:8
126:6
162:16 164:12 166:15

pledge ( 7 ) 12:3 12:5
87:24 90:9
probably ( 8 ) 69:23
proposal47:8

12:6 102:25 103:19
preliminary ( 35 ) 23:23
89:12 113:9 165:12
propose57:1

128:20 149:12
23:24 24:8 24:12
165:15 166:12 174:19
proposed107:6

pledgee ( 29 ) 9:20 9:20
24:14 25:19 40:23
179:23
proposes ( 2 ) 40:16

10:16 10:16 10:25
44:15 44:19 44:24
problem ( 14 ) 20:15
40:18

10:25 11:2 11:2 11:7
45:2 45:9 45:13 46:9
84:3 110:25 111:18
proposing61:10

12:7 12:11 12:12
46:24 47:4 47:16
111:20 112:11 112:20
proposition95:14

12:18 100:13 100:14
49:22 50:3 50:7 50:25
113:5 113:6 113:11
prosecutor22:8

100:23 100:24 101:8
52:16 53:20 53:23
116:20 118:16 145:17
prospective101:18

103:7 103:17 104:1
53:24 54:2 54:3 54:14
152:10
protect ( 2 ) 81:11

104:4 104:5 104:8
54:15 54:16 105:3
problematic7:17
114:18

104:10 104:12 104:18
107:6 107:7 107:15
problems ( 3 ) 88:2
protecting114:19

104:20 104:21
107:24
107:22 115:15
protection ( 5 ) 96:15

Plenum137:15
prepared ( 2 ) 120:20
procedural ( 2 ) 26:23
98:14 98:18 99:9

plot ( 9 ) 166:15 167:4
126:22
175:4
99:15

167:8 167:13 167:14
preparing ( 2 ) 14:20
procedure ( 2 ) 92:25
protects114:18

167:15 167:18 170:2
128:23
93:1
prove ( 9 ) 5:3 25:24

170:7
preponderant110:19
proceed157:7
26:7 27:9 27:13 81:9

ploughed109:2
present ( 7 ) 20:19 35:3
proceedings ( 5 ) 58:11
137:9 137:17 140:11

plus ( 2 ) 20:10 21:8
68:17 96:20 132:20
66:21 120:3 126:17
proved ( 4 ) 15:12 23:17

points ( 16 ) 21:5 24:5
134:13 136:25
127:23
31:4 137:25

34:4 43:19 43:25
presented ( 3 ) 133:9
process ( 6 ) 58:19
proves108:24

63:17 92:19 100:4
142:17 143:5
110:2 110:15 110:16
provide ( 7 ) 98:20 99:3

119:12 131:12 133:2
Presumably ( 3 ) 32:20
115:2 115:9
99:6 103:1 157:21

136:16 144:4 153:13
126:6 149:11
Procter ( 3 ) 123:10
162:23 168:10

161:18 161:21
presumed ( 2 ) 5:7
123:16 123:18
provided ( 14 ) 45:12

policy10:4
147:7
procure42:5
47:4 80:23 96:19

pool11:18
pretend ( 2 ) 26:17
procured21:24
127:12 127:19 128:1

popular ( 2 ) 135:23
142:15
products79:14
128:7 128:12 128:21

140:16
prevail ( 2 ) 153:5
professional ( 2 ) 3:1
169:14 169:16 169:21

Ports ( 8 ) 58:1 59:14
153:19
121:1
171:23

59:24 60:4 60:11 62:2
prevails151:12
Professor ( 49 ) 1:5 1:6
provides ( 28 ) 7:22

67:21 69:15
prevent ( 3 ) 35:22
1:7 2:5 3:6 6:20 30:16
22:6 27:3 41:18 64:5

posed146:3
41:22 53:3
37:9 47:19 54:18
64:17 75:22 76:1

posited ( 2 ) 110:18
prevented ( 2 ) 27:4
57:14 63:4 81:3 85:22
76:11 76:16 76:16

114:11
112:6
89:19 92:22 92:23
96:15 97:17 98:18

positing113:2
prevents53:23
93:19 99:24 100:3
98:19 98:22 102:17

position ( 20 ) 33:20
previous ( 2 ) 29:11
114:21 119:17 120:21
152:12 152:14 153:23

40:1 40:25 42:19
175:24
129:8 131:5 131:5
154:1 155:10 155:12

54:6 67:2 81:12 85:12
previously ( 3 ) 72:16
131:11 132:23 132:23
162:15 163:12 164:18

85:15 85:20 86:3
127:22 157:1
133:16 136:9 138:18
164:19 169:24

86:11 99:23 109:2
price ( 33 ) 10:8 12:10
146:13 149:4 150:1
providing ( 2 ) 106:18

126:8 126:13 153:22
49:2 51:20 51:23
150:2 151:9 152:9
129:18

154:23 160:4 163:9
52:20 53:8 53:11
152:23 152:24 153:3
proving79:24

positions ( 2 ) 148:24
55:18 55:20 55:21
153:10 155:4 157:8
provision ( 20 ) 3:10

152:8
64:1 64:3 64:8 101:8
159:1 159:16 164:4
7:22 18:11 18:12

positively83:4
101:11 102:7 102:10
179:17 181:3
64:11 64:14 75:19

possession ( 7 ) 75:14
102:16 102:18 102:22
profit89:2
81:17 93:9 93:17

75:23 76:18 76:23
103:6 103:9 103:11
profits ( 5 ) 23:7 23:9
97:23 99:1 99:7

159:21 162:17 164:13
103:13 103:19 104:9
88:8 88:10 88:11
107:13 145:10 153:6

possibility108:25
104:10 104:13 104:14
prohibited173:11
153:18 153:20 174:7

possible ( 10 ) 17:17
104:15 104:16 104:19
prohibiting83:5
175:25

37:17 37:23 59:5 62:8
price’51:21
prohibition ( 2 ) 151:10
Provisional105:20

78:18 92:10 93:24
pricer104:13
152:9
provisions ( 9 ) 43:6

140:20 164:17
prima116:10
prohibits ( 2 ) 13:23
47:14 76:22 99:4 99:8

possibly ( 4 ) 44:10
primarily ( 2 ) 55:17
150:4
150:5 151:3 169:11

99:17 110:24 118:20
121:22
Project ( 2 ) 122:10
175:15

post121:18
primary6:24
161:15
proximity142:1

potent37:11
principal ( 2 ) 88:3
proliferation ( 3 ) 83:24
public ( 3 ) 22:8 124:13

potential ( 2 ) 11:18
157:9
87:17 87:21
124:20

134:2
principle ( 48 ) 4:15
promise ( 4 ) 35:25
publicised11:21

potentially95:20
13:25 14:3 15:10
41:25 47:13 49:10
published ( 2 ) 123:25

power ( 2 ) 40:11
15:22 16:17 17:24
promised ( 6 ) 42:13
124:16

104:12
25:7 30:5 30:19 30:23
48:4 88:15 88:16 89:9
purchase ( 2 ) 55:22

practical ( 2 ) 39:12
40:18 42:21 48:2 64:9
106:21
105:20

91:23
64:16 64:21 68:12
promises ( 2 ) 42:3 89:8
purchaser ( 5 ) 36:20

practice ( 18 ) 7:16 28:4
70:5 70:8 70:9 70:14
promising ( 2 ) 42:10
39:6 46:5 48:21 48:22

30:22 32:15 43:11
70:21 78:1 78:3 78:9
49:17
Purchasers ( 4 ) 39:21

53:18 54:16 87:10
83:17 83:21 84:4
proof ( 3 ) 26:7 77:7
39:23 40:4 105:14

90:22 93:23 99:2
86:10 86:13 90:2
147:11
pure ( 3 ) 30:6 135:16

122:6 123:9 133:5
91:22 92:7 110:5
proofs157:17
143:18

133:12 133:13 138:1
113:17 117:5 118:2
proper ( 5 ) 15:25 87:13
purely ( 6 ) 16:23 30:17

158:12
118:22 135:23 150:2
118:16 147:20 176:19
55:21 103:14 116:6

practices132:10
151:12 152:5 152:24 properly ( 6 ) 60:8 61:21
173:25

precedent113:8
153:15 159:17 171:16
85:8 85:13 115:8
purporting39:23

preceding ( 2 ) 72:17
177:5
145:16
purpose ( 12 ) 4:19 9:7

166:21
principled90:11
properties76:21
12:10 13:18 14:1 17:1

precisely ( 4 ) 36:15
principles ( 8 ) 14:8
property ( 31 ) 3:17
17:12 19:3 59:7 98:13

37:20 76:20 160:9
14:11 15:14 29:13
3:18 3:23 5:15 5:18
108:11 149:6

purposes ( 16 ) 4:12 6:5 17:12 20:19 35:3 39:10 39:12 41:5 55:2 59:17 68:17 75:13 127:16 136:25 157:23 159:20

pursuant18:20

pursue ( 4 ) 90:5 111:19 111:23 112:10

pursuing113:7 pursuit148:20 pushes40:23 puts139:23

putting ( 5 ) 14:24 37:16 41:4 53:14 141:20

Q

qualify176:17 quality136:2 query115:19 question ( 73 ) 6:10
6:11 8:3 8:7 8:8 13:12 18:4 18:7 20:24 24:6 24:11 29:19 30:13 31:25 32:3 32:11 32:14 33:24 35:3 35:3 35:16 35:18 36:2 36:4 36:19 36:25 37:6 37:16 38:14 40:11 41:15 43:10 43:11 44:6 44:14 48:5 49:18 58:3 63:19 63:20 65:12 65:17 74:6 82:17 87:16 88:21 88:22 89:4 92:20 93:2 93:19 93:24 94:8 94:15 95:7 100:22 103:10 103:14 103:24 104:2 104:18 108:7 108:9 108:18 111:22 118:21 118:24 134:15 149:21 157:23 170:2 176:9 178:14

questions ( 16 ) 21:3 26:11 38:9 38:13 99:25 103:21 105:2 108:2 108:3 113:18 119:11 119:13 121:7 121:12 129:4 181:7

quick105:25

Quite ( 20 ) 5:20 37:11 37:23 69:13 71:17 85:7 88:14 88:18 107:21 112:3 128:9 128:13 132:16 135:2 145:9 146:18 156:10 176:25 177:10 179:23

quotation130:5

quote ( 3 ) 12:24 136:21 140:9

R

raider’s92:5 raise18:4

raised ( 3 ) 26:13 93:23 94:15

raises58:3 raising68:10

range ( 2 ) 44:10 99:18 rate38:23

rather ( 12 ) 9:10 33:4 34:6 76:5 86:10 118:20 123:8 135:11 135:21 136:6 138:13 168:16

re-auction102:7 re-auctioned102:15

Re-examination ( 2 )

100:2 181:6 reach ( 3 ) 44:9 53:1
61:19

reached ( 10 ) 51:16 51:23 52:5 52:9 53:14

53:15 56:10 67:7 67:9 67:12

reached’52:1

read ( 16 ) 4:4 14:14 14:16 14:19 46:15 50:9 71:23 93:21 94:18 121:17 128:17 131:18 176:24 177:7 177:8 177:10

reading ( 6 ) 48:7 94:21 123:3 141:1 176:12 176:18

ready54:7

real ( 7 ) 6:17 55:22 55:23 56:25 59:6 77:5 153:22

reason ( 20 ) 23:15 32:17 37:15 39:2 40:1 42:8 44:17 54:4 62:3 66:4 68:19 78:9 94:2 94:7 109:24 114:24 115:18 162:22 163:15 174:21

reasonable ( 2 ) 64:2 95:19

reasonably ( 2 ) 88:17 106:25

reasoned ( 2 ) 163:9 172:3

reasoning ( 20 ) 7:12 23:14 52:2 73:10 130:13 134:23 162:3 164:7 164:8 171:5 171:23 172:19 172:24 173:8 173:21 174:10 175:24 175:24 178:7 178:12

reasons ( 13 ) 2:2 23:12 24:15 32:25 33:13 33:15 43:13 43:15 83:19 84:10 143:21 144:8 172:13

rebounded114:12 recall ( 2 ) 75:6 75:8 receive170:2 received ( 10 ) 22:5

22:16 72:18 76:2 101:12 101:24 162:7 162:14 169:25 170:5

recent ( 7 ) 112:14 126:21 135:23 138:12 146:18 161:1 161:6

recently ( 4 ) 119:9 128:10 128:13 138:16

recites ( 2 ) 39:3 41:1 recognised19:15 recognising ( 2 ) 19:17

73:23 recommend91:10 reconcile152:7 recorded164:4 records167:2 recourse155:18 recover ( 19 ) 9:22 75:1

76:7 82:18 83:11 85:14 85:19 85:21 86:3 87:8 89:5 92:12 93:4 94:19 95:15 98:24 99:1 100:15 170:10

recoverability97:7 recoverable ( 4 ) 82:23
84:25 86:12 95:6

recovered ( 2 ) 82:25 85:11

recovering76:23 recovers ( 2 ) 85:3 85:7 recovery ( 23 ) 72:18

72:20 73:19 73:25 75:14 75:22 76:18 83:5 86:5 94:8 99:3 109:20 112:6 118:4 143:18 159:21 162:16 164:12 167:25 168:5 168:15 169:9 169:12

reduce ( 2 ) 12:10 64:12

reduced ( 8 ) 11:17 11:18 64:15 102:7 102:10 102:15 116:21 118:16

reduction116:20 refer ( 20 ) 5:17 5:22

27:9 29:4 36:11 70:13 72:16 82:5 131:10 135:21 136:10 142:11 142:12 142:14 145:10 157:25 165:24 172:19 174:6 175:25
reference ( 12 ) 43:21 117:16 130:2 130:2 136:17 136:19 136:19 139:22 158:17 171:24 175:5 175:22

references ( 2 ) 43:22 172:3

referred ( 8 ) 27:8 39:7 71:22 105:14 105:15 157:1 171:16 175:3

referring ( 7 ) 28:18 33:8 39:5 52:5 137:14 138:2 138:10

reflect148:18 reflected88:11 reflective ( 50 ) 82:3

82:5 82:23 82:25 83:5 83:20 84:4 84:7 84:19 84:22 85:3 85:7 85:14 85:19 85:21 86:3 86:5 86:11 87:12 88:24 89:2 89:21 92:20 93:4 94:19 97:9 98:12 99:2 99:3 99:12 99:19 108:4 109:17 109:18 110:4 112:12 113:7 113:13 113:17 114:1 114:3 117:5 117:7 117:14 118:2 118:11 118:12 118:22 119:1 119:7

reflects151:10 refuse18:3

refusing ( 2 ) 73:8 73:15 regard ( 2 ) 26:12
155:21

regarded ( 5 ) 7:9 115:2 147:22 147:24 157:13

regardless ( 8 ) 79:3 79:4 79:18 80:3 80:4 95:9 98:15 109:2

regards ( 6 ) 4:9 36:20 36:21 43:25 81:13 167:12

regime ( 5 ) 76:1 76:20 76:25 155:11 155:12

register115:12 registered41:16 registration107:23 Registry41:16 regularly ( 2 ) 113:22

114:7 regulations169:17 reimbursement ( 3 )

97:1 137:8 146:5 reject141:15 rejected ( 2 ) 29:10

157:14 relate164:13

related ( 6 ) 69:21 124:4 127:21 136:12 161:14 164:12

relates144:14 relating ( 4 ) 14:9 31:2

156:8 167:20 relation ( 11 ) 4:14 32:1

35:10 35:13 64:23 125:15 127:4 129:7 151:15 159:1 159:25

relations ( 12 ) 76:19 79:5 96:11 124:18 132:17 133:9 144:1 144:13 156:13 162:18 169:18 169:22

relationship ( 7 ) 31:1 31:2 70:17 142:1 151:2 160:11 161:10

relative37:5 relevance ( 2 ) 82:10
82:16

relevant ( 6 ) 33:21 88:19 116:9 135:23 143:21 151:3

reliability29:19 reliance72:14 relied128:23 relief137:23

rely ( 11 ) 13:11 17:14 17:25 25:15 25:23 27:12 75:4 78:15 79:21 121:3 135:19

relying ( 2 ) 27:4 72:6 remain19:7 remains115:9 remedial77:2 remedied ( 2 ) 144:1

144:12

remedies ( 4 ) 16:10 16:13 81:16 98:1 remedy ( 20 ) 81:19 81:20 92:3 95:11

113:7 113:13 113:24 114:1 114:2 114:3 116:22 117:2 118:16 155:17 160:1 163:11 163:19 168:11 168:13 168:21

remember ( 6 ) 20:16 28:21 128:7 128:8 128:22 152:3

remote ( 2 ) 84:4 142:1 remove91:19 remuneration125:23 render64:21 rendering45:11 rendition132:2

rent ( 5 ) 167:7 167:16 167:24 167:24 170:6

repayment20:12 repeat103:3 replaced111:16 replacement ( 2 ) 1:23
111:17

report ( 56 ) 1:15 2:7 2:13 5:11 9:17 14:10 21:13 23:11 26:18 28:3 28:18 28:22 28:22 29:7 33:2 49:19 66:15 71:22 93:8 100:11 115:10 120:2 120:11 120:20 121:17 123:3 127:8 127:11 129:22 130:20 131:2 132:21 133:25 135:4 135:21 137:14 138:3 138:19 138:25 140:9 140:15 142:12 142:13 146:1 152:22 154:6 154:7 157:8 157:9 157:10 160:6 161:1 164:25 165:23 172:1 179:2

reports ( 12 ) 1:16 2:25 14:21 19:23 120:25 127:5 127:6 127:16 127:22 128:14 128:23 135:20

represented ( 3 ) 39:9 41:6 124:2

representing40:2 reproduce ( 2 ) 174:2
174:5

repurchase ( 2 ) 45:19 128:19

reputation166:7 request ( 2 ) 66:9 66:10 requested74:8

require ( 5 ) 101:14 101:16 101:21 133:5 133:15

required ( 8 ) 25:3 26:7 44:20 75:2 91:12 132:4 132:13 162:8

requirement ( 12 ) 4:6 4:9 4:14 4:16 5:6 7:17 25:8 29:22 30:9 131:6 132:6 132:7

requirements ( 7 ) 3:21 4:5 23:24 44:25 45:2 47:16 116:8

requires ( 2 ) 49:21 50:12

requiring146:10 research113:11 resident122:23 resolve173:9 resolved151:5

resort ( 2 ) 76:22 174:10 respect ( 15 ) 20:23

37:9 47:19 48:13 51:15 51:25 53:13 56:9 69:6 110:11 113:3 133:17 145:21 160:17 162:11

respected ( 4 ) 28:24 165:24 166:2 166:4

response119:5 responsibilities85:17 responsibility134:10 responsibility’7:3 restitution ( 24 ) 22:4

22:6 22:14 22:14 71:8 76:2 76:5 76:12 160:10 160:12 160:14 161:8 161:11 161:15 163:3 163:6 163:16 163:19 164:1 164:20 170:9 171:7 171:12 176:21

restore112:25 restoring176:9 restricted ( 2 ) 62:23
118:24

result ( 18 ) 4:11 4:20 4:23 21:18 68:12 73:21 74:9 79:1 82:8 88:6 94:9 97:2 108:12 108:16 108:23 108:24 154:15 154:24

resulted ( 3 ) 101:7

101:11 137:18 resulting ( 2 ) 136:1

137:11

return ( 5 ) 162:7 162:13 169:25 170:4 170:5

returning ( 2 ) 76:21 162:10

reverses166:1 review ( 2 ) 73:14

157:16 reviewed127:15 reviewing74:19 revisit ( 2 ) 179:25

180:4 rightly28:13

rights ( 31 ) 5:15 5:18 5:19 5:20 5:23 5:25 6:2 6:3 12:15 12:22 42:7 90:19 96:12 96:19 97:24 112:8 113:11 117:1 117:4 117:9 117:22 117:23 118:6 118:6 118:8 147:17 148:3 148:7 149:6 149:12 149:14

rise ( 2 ) 36:22 117:4 risk ( 6 ) 87:17 87:20 87:20 87:20 87:24

90:8 ritual146:12 rob9:2

role ( 7 ) 8:14 104:8 104:10 104:12 104:21 121:22 178:5

roof145:13 roughly ( 2 ) 112:18
179:14

routine84:20 ruled22:7

rules ( 27 ) 9:19 11:20 11:24 16:7 16:9 16:10 17:19 17:21 26:9 26:18 26:22 26:24 27:2 27:2 28:16 33:25 58:14 59:4 69:23 70:25 76:17 77:10 78:13 100:12 153:5 161:9 162:16

run-in103:23 runs78:19

Russia ( 28 ) 30:14 30:20 71:1 95:24 96:1 107:22 112:1 113:8 114:24 115:5 119:10 122:12 122:14 122:19 122:20 122:22 123:9 123:15 126:20 132:25 136:9 153:7 155:7 164:16 171:21 175:4 175:4 179:3

Russian ( 124 ) 3:10 5:2 5:7 6:11 6:16 13:23 15:14 20:2 20:6 22:8 22:9 23:5 26:3 26:14 26:16 26:19 27:1 27:16 27:24 28:4 33:21 34:3 34:16 34:19 34:21 51:18 60:13 61:13 61:18 62:7 69:22 72:25 73:1 73:2 82:22 85:18 92:8 92:11 92:16 93:1 95:22 96:4 96:13 96:17 97:3 97:8 97:10 97:12 97:13 97:15 97:21 98:23 98:25 99:13 99:23 110:7 112:7 118:10 118:25 119:1 124:15 124:24 124:25 126:4 126:15 130:14 131:21 132:4 132:7 132:10 132:25 135:4 136:21 137:15 138:21 138:21 139:7 139:18 142:16 145:9 149:21 150:3 151:10 151:24 152:5 152:10 152:15 152:15 152:21 152:23 153:1 154:4 154:18 155:14 155:21 156:15 157:5 157:13 159:7 159:22 160:5 160:8 161:3 161:16 162:9 162:12 162:17 166:20 166:21 170:11 172:16 172:17 174:18 174:20 174:21 176:1 176:22 177:15 177:25 178:2 178:5 178:15 178:24 179:4

Russians31:7

S

safe145:19 safekeeping55:24 safety ( 2 ) 75:3 145:21 sale ( 7 ) 51:18 51:19

51:24 105:11 106:13 106:15 128:19

sales ( 2 ) 45:18 51:24 same ( 27 ) 8:16 25:9 30:3 32:20 45:14 46:24 47:11 69:17
69:19 74:24 77:4 77:5 109:7 112:18 115:5 118:9 130:20 136:23 137:1 144:20 151:17 153:18 153:21 153:23 156:23 157:3 179:18
Samotlorneftegaz ( 7 )

142:15 142:17 142:19

143:2 143:3 143:11 145:25

sanction ( 2 ) 64:17 147:20

satisfied ( 3 ) 74:12 113:23 114:15

satisfies4:16 satisfy80:7 save129:2

Savelyev ( 2 ) 67:25 68:19

saw174:1

saying ( 36 ) 24:2 28:13 29:24 32:17 32:25 36:13 36:17 39:2 43:13 44:17 50:21 53:18 81:12 85:2 94:14 94:16 94:18 94:21 95:1 95:3 101:20 106:21 106:24 111:14 114:21 132:24 139:15 146:16 164:7 167:23 173:16 174:12 176:13 176:14 176:25 177:4

Scandinavia ( 6 ) 40:21 45:19 45:20 82:12 105:12 105:24

scenario ( 3 ) 77:2

92:11 92:13

scheme ( 7 ) 15:2 15:20 16:5 16:12 17:14 18:23 19:2

scholar28:25 scholars80:14 scope164:17

screen ( 5 ) 20:5 23:4 49:20 76:15 130:21

scroll100:7

sea ( 2 ) 121:23 124:17 seal ( 17 ) 20:16 20:19 20:22 58:5 59:10 60:14 60:21 60:22
60:23 61:9 62:3 62:4 62:5 62:8 62:9 62:11 63:1

seals107:20

second ( 13 ) 5:6 32:17 61:6 103:15 107:17 126:3 132:9 134:4 134:11 135:4 140:23 144:22 161:23

secondly ( 8 ) 3:23 7:8 23:18 24:24 33:5 38:11 44:24 84:3

seconds105:21 section ( 5 ) 67:14

81:24 97:25 106:18 156:2

sections ( 4 ) 67:16 70:3 82:1 157:24

secured103:19 security ( 3 ) 55:22 72:1
72:1

see ( 48 ) 2:20 3:16 4:4 6:17 6:22 8:12 9:24 10:7 10:10 12:11 23:6 25:10 28:17 29:1 35:25 37:15 41:13 51:11 58:18 59:20 59:25 61:24 72:6 72:11 73:10 75:10 75:17 77:17 78:22 83:1 83:10 83:11 83:13 96:9 105:4 106:23 118:24 120:13 120:23 140:21 147:5 150:22 161:21 162:22 164:11 173:17 176:4 178:5

seeing49:13

seek ( 4 ) 104:12 107:17 109:20 113:12

seeking ( 7 ) 72:19 107:14 137:8 167:25 168:15 169:9 169:12

seem ( 3 ) 33:2 48:17 60:12

seems ( 10 ) 1:25 12:15 30:22 67:12 70:6 109:6 112:2 112:11 113:5 114:17

seen ( 11 ) 41:25 60:13 62:25 77:17 78:13 87:9 87:13 91:18 128:11 135:15 138:5

self-defence5:13 self-serving30:2 seller ( 4 ) 11:13 63:25

79:2 87:3 selling12:10 sells149:12 send47:8 senior15:1

sense ( 32 ) 4:22 5:4 7:11 10:11 29:25 49:9 56:15 59:3 61:1 61:3 61:11 61:13 68:8 82:23 89:20 101:8 108:13 115:16 125:7 135:6 135:7 135:13 135:17 135:18 139:17 141:6 141:13 145:5 145:7 146:12 149:20 159:17

sensibly41:13 sentence ( 10 ) 9:18

22:18 30:8 61:7 72:17 129:18 177:1 177:10 177:10 177:13

separate ( 17 ) 16:16 21:3 36:3 38:9 38:13 50:20 51:6 51:8 66:23 68:5 68:7 68:10 70:25 71:5 71:9 71:17 71:18

separately ( 5 ) 37:5 37:8 37:10 143:1 150:12

Sergeev ( 2 ) 131:5 132:23

series90:17

serious ( 2 ) 64:6 65:8 serve ( 2 ) 31:19 31:22 served127:22 services ( 5 ) 31:18

45:12 79:15 122:10 125:8

set ( 17 ) 6:19 24:17 49:5 50:10 63:9 70:25 72:4 102:18 104:11 104:13 120:25 127:18 130:5 140:22 161:9 162:25 168:8

sets ( 3 ) 25:11 94:11 133:25

setting ( 2 ) 104:9 104:10

several ( 3 ) 7:22 13:7 132:21

severally7:24 severe64:17

shall ( 21 ) 3:19 22:20 25:14 25:17 28:17 47:5 58:22 59:1 59:6 59:9 75:15 79:2 95:6 96:18 159:23 162:7 162:10 168:14 168:18 169:12 170:11

shaped ( 2 ) 156:13 160:11

share ( 3 ) 105:20 106:14 128:19

shareholder ( 49 )

59:23 61:4 82:6 82:11 82:17 85:2 85:7 85:8 85:13 85:21 86:14 86:17 87:14 87:19 88:7 88:14 88:16 88:24 89:9 89:10 90:12 91:16 92:12 92:17 93:20 97:13 97:13 109:23 112:5 112:21 113:1 113:3

113:7 114:11 114:12 115:6 115:8 115:9 115:13 115:13 116:2 116:9 116:11 116:14 116:16 116:25 116:25 117:16 118:5

shareholder’s ( 4 )

86:18 117:1 117:3 118:5

shareholders ( 24 )

82:25 83:10 84:1 84:15 87:21 92:4 93:3 93:16 93:17 93:24 94:4 94:6 96:3 99:14 110:6 114:4 114:5 114:8 115:20 115:21 115:22 116:19 117:23 118:19

shareholders’ ( 3 )

117:8 117:22 118:17

shareholding ( 3 ) 82:9

87:23 117:12 shares ( 25 ) 40:17

40:20 45:18 45:20 45:22 48:21 51:20 55:18 55:23 57:2 59:19 60:3 61:1 61:4 61:5 96:4 97:11 105:11 105:17 105:24 106:13 114:13 116:21 116:21 118:15

short ( 9 ) 57:9 57:12 142:8 163:15 174:2 176:25 177:10 177:13 180:9

shortening180:5 shorter ( 5 ) 77:11 77:12

77:15 83:12 179:17 should ( 29 ) 2:17 8:6

30:2 71:15 92:8 92:15 94:17 95:15 100:10 106:21 109:12 111:15 112:5 114:22 135:15 138:19 141:4 146:14 148:25 153:8 157:6 157:15 161:8 164:20 166:12 166:21 171:9 172:2 173:25

shouldn’t ( 2 )83:20

178:4

show ( 9 ) 5:8 10:19 11:21 35:13 43:1 43:20 101:3 101:6 101:7

showed178:7 showing ( 4 ) 27:11

35:11 36:16 70:17 shown119:25

shows ( 3 ) 35:10 86:1 145:8

side ( 3 ) 40:21 78:18 78:19

signatories ( 5 ) 39:13 39:15 39:16 41:21 42:7

signature ( 12 ) 1:18 1:21 2:1 2:10 2:22 54:8 62:9 63:2 106:10 120:7 120:13 120:23

signatures107:20 signed ( 7 ) 20:22 60:9

60:14 61:15 62:25 107:25 167:3

signer62:18 significance ( 3 ) 6:25

134:9 134:14 significant ( 6 ) 7:1 8:5

26:12 134:19 171:15 174:4

signing62:19 signs62:8 silent12:6 similar ( 3 ) 127:1
136:21 154:16 simple ( 13 ) 9:1 14:25

24:19 25:3 25:8 25:12 25:13 49:22 50:13

72:3 88:1 106:19 132:17

simpler157:23 simplified88:4

since ( 16 ) 26:12 28:15 51:7 51:21 63:22 76:16 98:6 119:9 122:7 122:17 128:13 132:24 133:7 133:8 162:14 168:15

single ( 5 ) 64:21 65:25 114:24 174:5 174:7

sit ( 4 ) 1:7 119:22 165:2 180:10

situation ( 31 ) 4:18 7:4 9:3 11:7 31:6 48:8 48:9 52:6 54:9 66:3 86:6 86:20 87:12 89:20 89:24 90:8 90:11 92:2 92:6 94:20 108:10 114:6 117:21 118:15 126:23 126:25 134:11 153:17 162:23 163:13 163:18

situations ( 4 ) 92:1 109:3 134:2 156:10

slightly ( 7 ) 118:22 138:15 139:6 156:18 157:22 157:23 179:25

slowly133:6

small ( 2 ) 111:7 115:20 smaller167:18 smiles111:10 Smith130:6

snow ( 3 ) 145:14 145:14 145:16

sold ( 3 ) 11:14 11:21 105:17

sole ( 2 ) 4:19 108:10 solid175:23 somebody ( 12 ) 30:17

42:1 46:14 47:18 47:24 49:8 60:15 107:14 126:17 126:18 127:13 140:24

somehow ( 5 ) 17:18 19:8 101:9 101:17 104:6

someone ( 14 ) 9:2 14:2 60:14 61:14 61:15 62:7 62:25 74:13 75:22 76:23 84:16 86:13 118:13 143:16

someone’s16:22 something ( 32 ) 7:15

10:3 12:4 29:5 31:15 35:9 42:1 42:11 46:22 52:11 52:14 52:24 53:3 53:21 55:10 56:14 56:16 64:8 64:19 69:4 101:19 133:16 138:15 141:22 142:1 149:7 149:14 149:25 155:3 169:1 174:4 177:24

sometimes ( 2 ) 132:5 136:11

somewhat ( 2 ) 69:21 102:24

soon107:24

sort ( 18 ) 11:16 37:7 101:19 103:3 104:2 107:14 112:14 112:15 115:15 134:4 138:25 139:12 141:25 152:19 153:17 156:9 159:7 159:12

sorts ( 2 ) 35:23 158:9 sought ( 4 ) 73:6 73:21

137:23 174:4 sound128:21 sounds123:10 source ( 2 ) 110:24

158:11

sources ( 2 ) 155:15 158:11

Soviet ( 6 ) 132:10 132:11 132:12 132:14 132:15 133:5

special ( 23 ) 39:6 40:7 40:14 40:15 56:5 56:8 71:15 76:1 76:16 76:20 77:9 79:11 80:18 84:12 84:14 86:6 105:14 151:12 152:25 153:6 162:15 162:23 163:13

specialis ( 3 ) 70:9 70:21 71:14 specialised153:8 specific ( 31 ) 6:14

13:23 17:19 18:8 18:10 18:12 19:20 54:19 56:25 70:10 70:18 70:20 71:12 88:20 93:9 95:13 99:1 109:25 147:15 151:15 152:11 153:9 153:17 155:12 158:4 158:18 158:21 164:19 175:3 175:5 179:6

specifically ( 11 ) 7:16 9:15 27:18 33:11 75:2 99:5 110:12 125:10 152:17 160:8 163:7

specifications80:8 specificity36:19 specified ( 2 ) 38:1 55:2 specify ( 2 ) 37:20 38:21 spent121:25 spilled132:14 split45:22 spurious147:24

square ( 6 ) 167:4 167:9 167:14 167:16 167:25 170:3

stage103:16 stages18:24 stake126:5 standard157:17 start ( 6 ) 3:8 103:1

103:22 121:11 123:6 129:4

started ( 3 ) 14:3 121:14 132:18

starting ( 13 ) 11:22 34:5 100:7 102:18 102:22 103:9 103:13 104:14 104:16 108:7 142:12 150:25 167:7

starts ( 4 ) 52:15 102:18 135:22 167:1

stated ( 3 ) 159:17

167:13 167:17 statement ( 6 ) 23:19 32:19 53:21 85:6 131:14 140:14 statements ( 2 ) 31:20

121:1

states ( 2 ) 139:4 162:9 stating ( 3 ) 28:16 80:9

168:9 status94:5

statute ( 18 ) 51:13 55:14 56:17 56:22 77:6 80:25 83:12 133:14 133:14 147:6 152:12 152:14 152:17 152:18 153:8 155:15 156:5 175:6

statutory ( 19 ) 54:22 81:20 93:9 132:6 133:10 141:7 146:21 155:16 158:13 160:16 164:18 171:23 172:17 172:19 174:1 174:7 174:10 175:23 178:7

stay38:19 steps33:9

still ( 8 ) 10:19 17:18 101:2 101:5 110:15 111:18 139:16 179:23

stipulate52:25

stipulated ( 2 ) 52:8

56:14 stipulates54:23

stop ( 4 ) 40:13 86:12 86:25 89:13

stored31:2

story ( 2 ) 18:25 148:10 straight139:5 strange114:17 stricken115:12

strict ( 6 ) 47:15 47:17 79:14 80:18 81:20 157:19

Strictly41:3 Stroilov ( 2 ) 126:10

126:14 stronger31:8 strongly38:23 structural149:20 structure98:15 struggle176:22 struggled160:19 studied14:19 subcontracted142:21 subject ( 14 ) 3:19 6:7

11:12 16:24 34:20 51:12 54:21 69:8 79:2 94:7 118:2 119:9 146:5 149:19

submitted31:22 submitting26:5 subparagraphs131:20 subsequent167:11

Subsequently ( 2 )

143:5 167:17

subset ( 2 ) 70:20 71:12 subsidiaries85:17 subsidiary ( 12 ) 15:9

85:11 92:15 92:18 93:3 93:5 93:25 94:1 94:2 94:4 94:6 95:17

substance ( 4 ) 34:12 138:20 146:14 169:18

substantive ( 5 ) 26:22 27:2 72:7 73:17 96:15

subtle177:25

subvert ( 2 ) 78:4 78:4 succeed ( 3 ) 30:20 31:5
173:24

successful ( 2 ) 10:21 10:23

successively74:15 sue ( 10 ) 84:14 84:15

84:15 92:17 93:3 112:5 112:12 112:13 112:17 117:2

sue-able113:4

sued ( 4 ) 91:2 92:15 136:1 145:12

suffered ( 6 ) 82:5 88:25 89:1 92:5 97:20 116:2 suffers ( 3 ) 86:24 116:8
117:17

sufficient ( 11 ) 6:8 7:2 7:13 8:22 8:23 32:12 43:15 44:1 131:23 139:19 141:6

sufficiently ( 2 ) 8:5 8:14

suggest ( 12 ) 29:12 35:6 52:2 61:17 62:6 68:25 77:24 84:19 89:24 98:22 141:17 141:24

suggested ( 2 ) 138:13 141:23

suggesting ( 2 ) 61:12 94:23

suggests ( 3 ) 67:24 140:18 141:13

sui ( 2 ) 81:20 135:3 suing ( 3 ) 98:17 114:14
115:23

suit ( 11 ) 85:9 86:13 86:18 88:9 88:9 88:13 88:14 111:25 116:16 116:22 165:19

suits ( 4 ) 87:22 110:2 165:5 165:20

Sukhanov’s6:20 sum ( 2 ) 24:25 56:2 summarise71:24 summarised130:9 summarising83:23 summary ( 6 ) 29:12

45:5 130:17 143:14 150:24 153:14

superseded161:4 supersedes161:2 supervising ( 2 ) 91:11

111:14 supplemental ( 10 ) 2:7

2:13 28:22 29:6 29:7 120:11 138:19 142:13 152:22 157:8

supply ( 4 ) 51:21 53:9 143:2 150:20

support ( 4 ) 32:13 78:15 133:22 142:3

suppose ( 2 ) 9:1 111:6 supposed ( 2 ) 67:4
67:19

supposing ( 3 ) 108:22 113:2 116:7

Supreme ( 7 ) 32:15 73:7 73:10 75:6 137:15 161:5 161:6

sure ( 9 ) 15:16 23:13 29:25 47:19 48:19 56:6 62:19 90:25 175:1

Surely ( 2 ) 174:14 175:16

surrounding59:8 survive ( 2 ) 43:5 43:8 swiftly147:2

Sworn ( 4 ) 1:6 119:21

181:3 181:8

sympathy126:1 system ( 3 ) 27:18

111:20 145:20 systems112:8

T

tab ( 2 ) 1:13 2:5

Taken ( 13 ) 2:24 12:25 33:9 39:4 41:2 41:19 43:19 59:9 100:10 116:23 155:20 159:16 179:7

takes ( 2 ) 70:10 134:6 taking ( 9 ) 15:24 16:8 16:8 16:18 16:21 16:22 59:7 60:7

147:20 talk151:14

talking ( 14 ) 6:20 19:17 19:18 28:20 28:20 37:21 38:22 42:14 47:10 55:8 56:20 56:21 109:11 157:22

talks ( 3 ) 35:23 65:19 100:11

task7:6

tax ( 7 ) 123:19 123:22 124:22 124:24 124:25 125:3 147:21

taxation124:4 taxi9:12

technical ( 2 ) 2:2 11:24 technically13:8 technique153:2 techniques153:2 television104:24 ten24:25

tends35:12

term ( 48 ) 20:10 27:15 27:16 27:17 32:6 51:22 52:6 52:7 52:10 52:13 52:20 52:23 53:5 53:6 53:6 53:8 53:8 53:12 53:16

53:22 54:8 54:17 54:21 55:12 55:13 55:16 55:17 55:17 56:1 56:6 56:9 56:12 56:15 56:22 61:20 61:21 64:4 64:21 65:11 65:14 65:16 65:24 65:25 66:3 119:1 135:3 138:8 160:7

Terminal ( 6 ) 40:20 45:19 45:20 59:19 59:23 60:3

terminated47:5 terminology ( 2 ) 82:4
155:6

terms ( 59 ) 11:20 14:9 14:14 14:23 14:25 17:10 25:16 31:3 31:10 32:4 32:8 32:11 40:25 45:12 47:25 48:3 48:6 48:25 49:18 49:24 50:2 50:4 50:14 50:17 50:19 51:2 51:9 51:10 51:12 51:13 51:15 51:24 52:3 52:17 53:13 54:4 54:22 54:22 55:1 55:2 56:17 56:18 59:18 64:2 65:21 69:5 74:9 78:4 79:22 81:5 91:23 105:22 105:25 106:7 107:10 124:21 131:22 141:10 149:21

territory ( 2 ) 96:13 96:17

test ( 2 ) 37:14 137:1 testimony ( 2 ) 25:16
32:7

text ( 9 ) 31:13 72:25 73:1 73:2 128:17 130:10 133:14 166:12 166:20

textbook6:20 themselves ( 4 ) 8:19

27:22 43:19 44:1 theory ( 4 ) 86:9 134:4

160:24 175:20 there’s ( 13 )18:10

28:19 31:24 42:8 66:25 84:3 85:18 109:25 118:9 129:18 165:12 167:1 178:18

thereabouts165:19 thereby ( 4 ) 78:6

112:25 117:17 118:15 therefore ( 11 ) 18:11

23:17 61:23 71:14 77:8 80:1 83:15 83:16 125:25 137:22 180:11

thereto97:1 They’ve162:22

thing ( 4 ) 32:20 81:15 132:22 159:12

thinking ( 2 ) 117:21 118:12

thinks94:14

third ( 23 ) 4:14 11:15 15:20 29:14 29:17 35:14 35:15 36:2 36:20 39:2 39:9 39:13 40:25 41:2 41:18 41:19 41:20 42:11 42:12 42:15 42:16 42:19 146:3

thirdly ( 3 ) 3:24 23:22 33:9

though ( 12 ) 9:4 13:22 42:25 55:5 62:2 68:5 74:4 80:6 88:22 108:23 111:24 112:11

thought ( 3 ) 19:14 146:1 168:24

thousands84:1 threads99:16 threat21:16 threats21:24

three ( 19 ) 23:12 29:3 33:3 33:13 36:7 37:14 43:13 54:20 54:25 55:7 57:25 58:2 58:10 71:17 116:8 131:20 155:14 158:11 166:18

three-stage58:19 threshold148:8 through ( 15 ) 16:21

33:16 67:16 92:4 97:15 98:15 105:25 133:3 134:24 145:4 147:2 153:13 161:19 161:21 165:10

Thursday180:17

Thus ( 7 ) 51:24 113:3 143:25 144:11 147:20 151:4 168:12

time ( 17 ) 14:17 20:12 40:9 41:9 47:5 52:18 59:23 64:9 69:17 103:15 129:3 151:18 157:3 160:24 165:3 165:11 165:12

times ( 4 ) 25:1 133:5 146:13 146:17

timing179:14

title ( 5 ) 34:13 34:15 43:18 43:24 164:11

TNK ( 3 ) 142:20 142:20 143:10

today ( 3 ) 165:6 165:7 165:9

today’s100:6

together ( 4 ) 2:24 8:24 15:1 99:16

told ( 5 ) 125:6 126:7 126:8 126:10 126:14

tomorrow ( 3 ) 179:25 180:8 180:10

too ( 3 ) 64:25 84:4 115:19

took ( 7 ) 16:3 21:20 54:6 121:17 143:24 144:10 179:25

topic ( 5 ) 66:13 82:3 89:13 142:10 165:9

topics180:1 tortfeasor ( 3 ) 95:6

129:17 140:25 tortious16:9

torts ( 3 ) 71:7 155:7 155:8

total45:21 touched ( 2 ) 63:7
149:19

towards ( 7 ) 103:19 104:7 135:6 137:5 160:15 166:17 166:23

trade123:22 trading86:25 traditional146:20 trailer72:3

transaction ( 26 ) 13:17 13:20 14:1 21:15 21:17 21:21 25:14 25:16 63:14 63:14 63:18 63:25 75:13 75:15 150:5 159:20 159:22 162:6 162:8 162:14 168:17 168:24 169:10 169:13 170:1 170:6

transactional124:8 Transactions ( 8 ) 24:22

24:25 25:4 67:15 76:17 76:21 150:6 162:16

transcript ( 4 ) 60:5 100:6 103:22 108:6

transfer ( 8 ) 40:20 45:11 48:21 57:2 59:18 60:3 61:1 61:5

transferred ( 7 ) 17:11 19:6 49:2 55:23 75:12 76:24 159:19

transfers18:17

translated63:13
undertaking ( 3 ) 46:16
victim ( 10 ) 11:4 11:10

treat37:4
46:18 46:20
21:22 22:15 22:20

treated ( 5 ) 6:11 28:16
undesirable84:2
79:4 79:20 79:22 80:6

30:2 68:4 68:6
undo9:22
80:8

treaties ( 9 ) 96:2 96:21
unenforceable ( 2 ) victims ( 6 ) 80:1 80:1

97:23 98:1 98:14
35:8 50:22
80:2 80:11 80:16

98:20 99:2 99:6 99:8
unfair ( 4 ) 66:6 92:2
80:22

treating ( 2 ) 53:20 56:9
112:2 114:2
vindication ( 16 ) 75:19

treatment ( 6 ) 95:25
unfairly64:4
76:7 76:10 154:3

96:6 97:5 98:3 98:20
unfavourable21:19
160:10 160:12 160:15

98:21
unfortunate ( 2 ) 92:6
161:8 161:13 161:15

treaty ( 8 ) 96:1 96:5
112:7
162:1 163:4 163:6

96:7 97:22 98:3 98:18
unfounded73:18
163:17 164:21 176:21

99:1 121:19
unidentified ( 2 ) 40:8
vindication/
trial ( 4 ) 3:2 133:25
40:12
restitutionary177:6

138:6 176:3
uninterrupted ( 6 ) violate172:15

tries164:16
138:7 139:3 139:17
violated ( 9 ) 8:17 9:19

triggered118:3
140:6 141:23 145:4
100:12 117:2 117:22

trivial ( 5 ) 52:24 53:1
Union ( 2 ) 132:11
155:16 168:10 168:14

53:3 53:6 65:7
132:14
168:22

true ( 13 ) 3:1 24:13
unjust ( 5 ) 71:8 167:25
violation ( 2 ) 11:24

27:23 41:3 42:4 46:2
168:5 168:16 169:11
74:9

78:1 78:3 90:25 91:7
unlawfulness ( 4 ) 4:6
violator7:3

99:5 121:1 179:1
5:6 16:4 129:15
vis-a-vis95:16

trumped118:6
unless ( 14 ) 12:12 52:9
vision47:14

Trust ( 7 ) 130:6 131:25
54:6 61:7 95:25 96:7
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150:9 151:23 152:2
97:22 118:7 147:6
VLADIMIR ( 2 ) 119:21

153:4 172:2
151:18 152:12 153:8
181:8

try ( 5 ) 37:16 103:3
169:16 169:17
void ( 10 ) 24:9 50:10

126:2 143:18 165:1
unlikely ( 3 ) 7:17 90:22
52:12 66:8 66:11 70:4

trying ( 3 ) 37:9 78:8
165:8
162:6 162:8 169:10

148:18
unnatural165:19
169:13

turn ( 10 ) 1:12 1:17 2:4
unpaid ( 2 ) 91:8 126:22
volume25:9

2:9 2:15 2:20 34:4
unprovable44:22
votes91:9

142:20 168:6 180:3
unpublished94:16

turned116:24
unrelated ( 2 ) 69:8
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tying95:13
unremedied ( 2 ) 95:20

wage25:1

type ( 2 ) 102:8 106:4
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types ( 4 ) 15:15 83:7
unsatisfied ( 2 ) 84:13
wait ( 3 ) 3:4 121:6

102:25 107:22
93:13
126:22

typical13:19
Unsurprisingly76:9
wall136:8

typically ( 4 ) 34:19
unusual63:3
wants106:14

77:11 98:13 106:8
upper166:1
warehouse31:2

typos127:8
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water ( 3 ) 1:8 88:3

used ( 14 ) 13:16 14:3
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107:21 119:1 138:18
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138:21 141:9 141:17
36:11 37:16 40:22

ugly155:6

160:8 160:24
47:12 61:18 70:1

ultimate82:15
useful ( 3 ) 20:5 81:10
87:13 95:2 111:1

ultimately ( 11 ) 6:10
130:25
115:18 135:6 140:21

13:12 28:6 32:10
user-friendly14:18
144:7 148:15 148:20

32:14 33:24 37:12
uses145:6
148:22 149:13 153:8

43:10 44:6 113:12
using ( 2 ) 155:5 168:2
158:20 163:8 163:25

116:17
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ways ( 2 ) 18:19 47:12

ultra82:1
usual79:7
we’re60:24

unable90:2
usually ( 3 ) 106:9
we’ve82:12

unambiguous ( 2 ) 62:4
159:12 159:14
Wednesday1:1

62:13
weigh28:7

unattractive64:19
V weighing37:12

uncertain ( 2 ) 35:7
weight ( 5 ) 28:4 28:10

36:24
30:3 30:24 34:11

unconditional96:19
vague ( 3 ) 16:19 43:22
well-grounded29:22

unconscionable ( 8 ) 152:20
wells ( 2 ) 142:20

21:21 21:25 63:14
vagueness38:16
142:22

63:18 63:25 64:22
valid ( 7 ) 19:7 21:10
weren’t ( 3 )46:5

65:19 66:5
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100:12 114:2

undefined ( 2 ) 138:8
86:16 116:10
West ( 2 ) 165:25 166:8

152:20
valuable114:13
Western ( 6 ) 40:20

underlying ( 2 ) 125:1
value ( 13 ) 7:10 11:17
45:19 45:20 59:19

125:2
17:2 19:3 82:8 82:9
59:23 60:3

understand ( 18 ) 1:24
82:19 87:8 89:2 96:4
what’s ( 5 )74:18 129:1

21:7 27:17 44:20 50:6
116:20 116:22 118:15
132:4 135:6 141:1

66:2 67:2 68:22 79:12
various ( 16 ) 33:8 33:9
whatever ( 11 ) 22:4

101:13 119:3 124:24
36:11 38:4 38:22 39:3
22:15 62:2 66:4 68:19

128:24 132:23 139:25
41:1 42:21 42:22
109:18 110:22 116:8

143:20 148:12 149:25
73:20 74:7 83:19
138:10 146:23 158:10

understanding128:15
97:25 124:16 127:10
whereas ( 6 ) 7:8 150:2

understood ( 6 ) 23:14
133:22
158:18 160:17 171:11

24:2 61:21 111:3
varying165:10
173:3

176:4 180:13
ventured63:22
whereby ( 2 ) 12:8

undertake ( 5 ) 39:21
verification147:21
20:11

48:10 60:2 62:24
version ( 4 ) 20:7
wherever52:11

106:25
118:10 160:20 160:23
wherewithal112:5

undertaken139:22
versus70:18
whistles34:19

white124:3

whoever ( 3 ) 57:3

67:23 114:16

whole ( 24 ) 16:5 18:25 19:2 26:18 42:23 43:1 44:3 44:7 59:3 60:25 61:7 64:22 65:22 65:25 66:5 66:7 66:8 70:25 90:17 98:13 118:18 140:1 143:24 144:10

whom ( 3 ) 62:18 111:11 136:9

whose ( 4 ) 28:9 118:8 137:18 168:10

widely164:10

wider ( 2 ) 62:24 162:25 widespread83:10 wiped ( 2 ) 1:25 2:1 wish ( 3 ) 110:23 121:3
121:3 withdrew119:18 witness ( 6 ) 25:23 27:5

27:15 27:17 32:7 119:18

witnesses25:17 woe103:5 won30:17

won’t ( 4 )77:4 97:15 112:17 165:6

wonder ( 2 ) 105:3

142:4 wonderful85:22 wording ( 3 ) 55:6 60:22

60:23

work ( 15 ) 45:11 123:1 125:12 125:14 125:14 125:16 125:18 125:20 126:21 126:24 127:1 127:6 127:7 142:21 145:20

worked143:9 working ( 5 ) 98:6

101:21 104:6 121:18 126:6

works ( 3 ) 125:7 136:2 142:24

worth ( 2 ) 27:13 118:1 worthwhile111:11 writing24:9 writings132:15

written ( 18 ) 24:19 25:3 25:8 25:12 25:13 25:18 25:20 26:3 26:4 26:18 32:22 44:20 49:22 49:25 50:13 50:14 50:15 106:6

wrong ( 13 ) 68:25 74:25 87:7 113:4 113:4 118:7 130:2 144:7 155:24 171:3 174:14 174:24 176:3

wrongdoer ( 4 ) 22:15 22:15 89:23 90:2

wrongdoer’s146:8 wrongdoing ( 5 ) 69:19

83:25 84:5 90:3 93:5 wrongful ( 6 ) 11:25

12:2 12:3 12:5 18:20 95:16

wrongfully73:17 wrongly ( 2 ) 90:20
97:11

wrote ( 2 ) 34:17 128:13

Y

Yarkov ( 4 ) 92:22 92:23 93:19 114:21

years ( 3 ) 121:20 121:25 167:17 yesterday127:9

yourself ( 2 ) 67:1 82:11

Yukos ( 2 ) 98:6 99:14

0

000 ( 3 ) 31:17 31:18 64:8

1

1/229 ( 2 ) 166:14 166:19

1/230168:7 1/24571:21 1/24673:10 1/28892:21 1/29996:9 1/30296:14

1/63 ( 2 ) 135:20 135:25 1/64137:6 1/65137:12 100 ( 5 ) 31:21 86:22

87:18 87:19 181:6 101 ( 2 ) 130:22 131:21 10593:11 1064 ( 69 ) 3:9 3:9 3:16

4:5 4:7 8:17 8:17 9:23 11:8 11:9 15:11 15:19 16:7 16:13 16:13 17:22 70:3 72:6 72:10 72:14 72:21 74:3 74:17 74:23 81:22 94:10 94:18 95:5 95:7 95:15 100:16 109:4 117:5 117:8 129:4 130:10 131:6 136:14 136:18 136:22 137:2 140:2 143:7 147:2 150:10 152:1 154:11 154:23 155:8 155:10 155:20 155:22 156:7 156:16 156:22 156:24 156:25 157:3 157:12 157:13 157:18 158:14 158:16 158:18 158:20 160:18 163:5 163:8 163:21

1068 ( 3 ) 68:6 68:12 72:15

108181:7

1080 ( 5 ) 7:21 8:11 129:18 129:20 140:23

1095 ( 3 ) 78:16 80:19 81:1

1103 ( 13 ) 169:2 169:11 170:11 170:17 170:19 170:23 171:9 171:14 173:3 173:21 173:23 173:24 175:17

119 ( 3 ) 12:23 181:8 181:9

121181:10

138161:22

1475:12

16124:17

162 ( 3 ) 25:11 25:12 27:3

16323:11

166 ( 3 ) 33:1 33:18 36:7

167 ( 21 ) 75:25 76:6 76:11 160:2 162:9 162:12 163:10 169:22 170:20 171:4 171:8 173:1 173:2 173:4 173:6 173:16 173:19 173:22 174:14 174:17 175:16

1672171:12

16857:23

16957:25

17245:14

17650:8

177 ( 2 ) 49:19 50:11

178 ( 3 ) 51:3 51:17 53:12

179 ( 9 ) 21:11 21:14
504 ( 4 ) 167:4 167:9

22:3 22:19 63:6 63:8
167:16 167:24

65:15 65:19 66:1 180 ( 4 ) 43:7 43:8 65:23

66:2 193167:14

1990s ( 3 ) 132:16 132:25 133:7

1994122:7

1996 ( 2 ) 167:7 167:8

2

2/1120:9 2/32120:13 2/6142:14 2/7144:7 200123:16

2000 ( 2 ) 160:20 167:8

2001167:11

200498:7

2005122:17

2008 ( 6 ) 19:24 20:8 64:24 69:3 75:6 160:22

200969:4

201269:4

2014146:19

2015 ( 4 ) 1:18 2:11 2:21 138:13

2016 ( 2 ) 1:1 180:17

208 ( 2 ) 63:23 65:3

21714:7

21814:7

229166:24

24673:9

248 ( 3 ) 9:17 10:10 100:11

26766:14

270 ( 2 ) 164:25 165:23

29284:2

3

3/26145:25 300123:15 301 ( 8 ) 75:15 75:19

76:8 159:22 160:3 162:17 163:10 163:11

302162:17

31384:6

314 ( 2 ) 167:13 170:3

393 ( 31 ) 72:14 136:13 136:19 136:22 137:7 154:16 155:9 155:11 155:17 155:19 155:22 155:25 156:6 156:10 156:15 156:16 156:20 157:4 157:7 157:11 157:16 157:17 157:19 157:25 158:17 158:17 158:21 160:18 163:5 163:8 163:22

4

401 ( 3 ) 72:14 136:13 158:1

429 ( 27 ) 23:25 45:1 45:7 45:8 46:7 46:8 46:23 48:1 48:7 49:5 49:11 49:12 49:15 49:21 50:10 50:12 50:20 50:25 51:6 53:17 54:10 54:12 54:13 55:3 55:5 106:7 106:16

431 ( 2 ) 58:15 61:6

432 ( 10 ) 50:11 51:11 52:3 54:9 54:11 54:20 55:4 55:7 55:8 56:11

5