Day 42

Bank St Petersburg v Vitaly Arkhangelsky [Master]

Day 42

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Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

1 :1 Thursday, 5 May 2016
2 (10.30 am)
3 (Proceedings delayed)

4 (10.35 am)

5 MR JUSTICE HILDYARD: Yes, Mr Birt, good morning.

6 DR VLADIMIR GLADYSHEV (Continued)

7 Cross-examination by MR BIRT (Continued)

8 MR BIRT: May it please your Lordship.

9 Dr Gladyshev, yesterday afternoon we were talking

10 about what we regard as the rule against competition of

11 claims. I have taken you to a couple of cases. There

12 are just one or two more cases and extracts I would like

13 to take you to on that topic this morning.

14 One of the cases you refer to in your report is

15 a case you have referred to as the Kombyt case and if we

16 could turn the judgment up, that is at {E4/14.1/230.3},

17 that’s the English translation. If you want the

18 Russian, I think it is at {E4/14.1/230.1}.

19 This is a claim for recovery of property, as some of

20 the other claims on this topic that we have seen, and

21 the bit I want to draw your attention to is on page

22 {E4/14.1/230.4} in the English, starting at the third

23 paragraph where the court explained that:

24 «Claims for the recovery of property from another’s

25 unlawful possession (vindication claims) and claims for

2 :1 application of the consequences of the invalidity of

2 transactions which are null and void by recovery of

3 property are civil law remedies for protection of

4 the interests of the owner and of possessors of title.

5 «When considering such cases, it is necessary to

6 take into account that the concurrence of claims, in

7 particular the concurrence of claims based on the

8 invalidity of transactions and vindication claims, and

9 of vindication claims and contractual claims, is not

10 allowed.

11 «Selection of the correct means of protection of

12 the rights of the owner and of the possessors of title

13 should be according to the requirements of the law, the

14 nature of the material legal relations established

15 between the Claimant and the Defendant in each

16 particular case, and the nature of the breach of law and

17 of its consequences.»

18 So the particularly important part of that, isn’t

19 it, is where it says that the concurrence of claims is

20 not allowed. There may be different translations of

21 that phrase, that may be concurrence of claims or

22 competition of claims, but the gist is the same, isn’t

23 it? Do you have that part of the judgment?

24 A. Yes, I am looking at the paragraph in the Russian text

25 just to see if it actually uses the phrase «competition

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

3 :1 of claims».

2 Yes, it’s not concurrence of claims, it is actually

3 «competition of claims». It uses this phrase.

4 Q. So it uses the phrase «competition of claims», so is the

5 gist of it then that the judgment says it is necessary

6 to take into account the competition of claims, in

7 particular the competition of claims based on the

8 invalidity of transactions and of vindication claims and

9 of vindication claims and contractual claims, is not

10 allowed?

11 A. Yes, in respect of vindication and restitution, as

12 I have said in my report and here, and I also said that

13 first, it’s not proper to draw a general rule from this

14 particular narrow instance, and second, that this

15 particular lesson has never been drawn by Russian courts

16 in other cases.

17 Q. And this judgment seems to put it slightly more widely,

18 doesn’t it, because when it is talking about the

19 vindication claims, that’s after the words, certainly in

20 English, «in particular», suggesting that there is

21 a wider rule, the wider rule being that the competition

22 of claims is not allowed; isn’t that what the paragraph

23 suggests?

24 A. Yes, but I wouldn’t read very much into it. So as

25 I explained yesterday, a proper way for a Russian judge

4 :1 to deal with a novel problem is to seek a sure pathway

2 to a general rule. So here the court was struggling

3 with it. It’s the case from 2001. Currently it’s more

4 of a later part of this judgment that is in play where

5 the highest Arbitrazh court drops any references to

6 competition of claims and just says that in vindication

7 and restitution you should look at the set of rules that

8 closer approximate the relationships between the

9 parties. But still, it is between vindication and

10 restitution.

11 Q. Yes, well it is in the context of this judgment, but

12 just picking up on your point about the lack of — the

13 language in some of the cases. I mean, it doesn’t

14 really matter, does it, what language they clothe this

15 with, whether they use the precise phrase «competition

16 of claims» or not. The point, I think, isn’t it the

17 point you made, that it is which is the set of rules

18 that most closely relates to the relationship between

19 the parties. You have to identify the right set of

20 rules. You can’t have more than one set of rules

21 applying to that relationship.

22 A. No, that’s not correct. You may have several sets of

23 rules applying to this relationship. As, for example,

24 in a case of tort based on a contract and a freestanding

25 tort where Russian courts apply them simultaneously.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

5 :1 But I would agree that you have to identify the set

2 of rules, and in Russia, rules are set in black letter

3 statutory law. Competition of claims is not there.

4 Neither in its terminology, nor in its substance,

5 without using the exact terms.

6 Q. I think you agree that at least in the context of these

7 particular claims, that sort of principle is applied.

8 If we could look at the top of {E4/14.1/230.5} to finish

9 off this case. The court says:

10 «If there exist contractual or other relations

11 between the claimant … and the defendant … and the

12 defendant in the case is the possessor under contract

13 … who is not returning the thing, the claims should be

14 based on the grounds of and with reference to

15 the relevant standards of the law of obligations and not

16 on the standards of Chapter 20…»

17 I think chapter 20 is the part that contains

18 Article 301, isn’t it?

19 A. Yes, this is precisely in — as the first part of

20 the sentence makes it clear, this is in relation to

21 vindication and restitution. I understand your position

22 that you think it is of a wider application. I don’t

23 think any evidence of it, even if we stretch the

24 language, I don’t see it.

25 Q. Let’s go on to one or two other extracts. You are

6 :1 aware, I think, of some of the material that

2 Professor Maggs has cited. Could we look at some

3 extracts from an academic that he has cited, which is

4 Sukhanov. I think you have accepted he is a prominent

5 Russian scholar, haven’t you?

6 A. Yes, he is a very prominent Russian scholar and

7 particularly he has had a very active part in

8 elaboration of the Civil Code, and he is the head of

9 the civil law department of the Moscow State Lomonosov

10 University. And he is very well known to all Russian

11 civil law practitioners.

12 Q. And in many ways, he has been accepted as the leading

13 expert on civil law in Russian for a long period of

14 time, hasn’t he?

15 A. One of the leading. There are a number of competitors

16 for this claim, so it wouldn’t be fair to them to say

17 this.

18 Q. Very good. If we could first of all look at the extract

19 at {E2-E3/12/341}. A very short extract.

20 A. Mm hmm.

21 Q. He is writing about Russia here:

22 «Our country’s civil law, like Continental law in

23 general, in distinction from the Anglo-American legal

24 system usually does not allow competition of claims. It

25 proceeds from the principle that on one basis against

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

7 :1 one defendant, only one claim, contractual or

2 non-contractual, may be brought.»

3 A. Yes, I see that.

4 Q. And can we look at one or two other things he says. If

5 you could look at {E2-E3/12/343}, from a different

6 publication, I think. There he explained that:

7 «Non-contractual liability arises upon the causing

8 of harm to the personality or property of the victim,

9 harm that is not connected with the non-performance or

10 improper performance by the violator of obligations

11 resting on him by force of a contract with the party

12 that is the victim.»

13 And Professor Maggs draws on that for his

14 proposition that claims that would constitute a breach

15 of contract may not be brought on a non-contractual

16 basis; is that something you agree with?

17 A. No, I don’t. Can I comment?

18 Q. Yes, please.

19 A. As I have noted in my large report of October last year,

20 Professor Sukhanov is, indeed, a very prominent

21 professor and a lot of his ideas got into the draft

22 Civil Code, and competition of claims was one of his pet

23 ideas and he didn’t succeed in putting it into his Civil

24 Code, but he tried to promote it.

25 The 1990s were a very exciting time to be professor

8 :1 of civil law. In Russia you actually shaped the

2 country, more than the law, you are shaping the economic

3 constitution of Russia, and Professor Sukhanov got a bit

4 carried away with this bad concept, frankly.

5 In the first passage that you have put to me, may

6 I draw your attention to the fact that he doesn’t cite

7 any authority apart from his own opinion for this thing.

8 That is not surprising because there is none.

9 Professor Maggs and I have common ground that

10 substantive rules of Russian law are to be found in

11 black letter law. If there is a rule on the competition

12 of claims set in stone, it is so important that claims

13 would be actually rejected on this basis, then one would

14 expect in Russia to have some indication in the positive

15 law about it. There is none.

16 As for the second thing, I don’t think it is

17 an exceptional statement. It says then when you don’t

18 have contract, you can’t rely on it. It says if there

19 is harm caused without contract, you cannot — harm is

20 caused without contract, then it is non-contractual

21 harm. It is sort of circular reasoning. I don’t see

22 any special significance to it.

23 Q. Can we look at one other extract from Sukhanov that you

24 exhibit to your report?

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

9 :1 Q. That’s at {E4/14.1/217}. I think this dates from 2004.

2 He explains here his view that:

3 » … our civil law proceeds from the need to

4 strictly differentiate between the grounds giving rise

5 to the liability and in general does not allow different

6 judicial claims (actions) to be made against the same

7 defendant at the choice of the injured claimed, ie the

8 so-called ‘competition of claims’. ‘Competition of

9 claims» means the making of a number of different claims

10 to protect the same interest, while the granting of at

11 least one of such claims excludes (exhausts) the making

12 of other claims. This situation is not uncommon for

13 English and US law which makes no clear differences

14 between the contractual and non-contractual liability.

15 In Russian civil law, it can only be the case only if

16 this is an exclusion expressly provided by the law to

17 protect especially important interests.»

18 In other words, what he is saying there, isn’t it,

19 and this is his view anyway: you can only have

20 competition of claims if there is a specific law that

21 provides as such?

22 A. Yes. And he does say this, I agree. He also, in

23 the next phrase, defines competition of claims, since

24 competition of claims is not a rule of Russian positive

25 law, it is not a rule of Russian law, he finds it is

10 :1 necessary to define. So he makes the definition:

2 competition of claims means making — he wouldn’t need

3 this if there were a rule on competition of claims and

4 all legal practitioners, faced with a need to ascertain

5 the contents of the Russian law, were perfectly aware of

6 what it means, so he feels a strong need to define what,

7 as you put it, to his own mind is competition of claims.

8 I respect Professor Sukhanov. This is not the rule

9 of the Russian law. This is the opinion of

10 Professor Sukhanov without any support in the positive

11 law.

12 Q. But he is explaining, isn’t he, how he sees Russian law

13 as working, whether or not the rule is set down in terms

14 anywhere, he says that this is how Russian law works.

15 A. I’m sorry, where does he say that?

16 Q. He says:

17 «Our civil law proceeds from this need.»

18 This is something that is innate to the system and

19 structure of Russian law, isn’t that what he is saying?

20 A. I think it’s more of an aspirational thing. He states

21 that it works this way; he wishes that it would work

22 this way. It doesn’t, for better or worse.

23 Q. We will look at something else in a second. Just before

24 we leave academics, I think one of the points you have

25 made in your report is that you say that this no

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

11 :1 competition of claims idea is an invention of academics.

2 Is that …?

3 A. No, I don’t say that. This is what Professor Vitriansky

4 said, who is both academic and, at the time of

5 pronouncing it, was deputy chairman of the highest

6 Arbitrazh court and one of the most respected practical

7 jurists with extensive academic background in Russia.

8 So in contrast to Professor Sukhanov, who is a very

9 respected academic, Professor Vitriansky was faced with

10 the mundane task of actually applying the rules in

11 actual cases.

12 Q. If we could just turn to {E4/14.1/219}, so a couple of

13 pages further on from where we were.

14 A. Yes.

15 Q. If you want the Russian, it is the preceding page,

16 {E4/14.1/218}.

17 A. Yes.

18 Q. This is, I think, the extract from an article that you

19 have exhibited which contains the quotation you rely on

20 that you just referred to.

21 A. Yes.

22 Q. And this, as I understand it, is an article by someone

23 called Latyev?

24 A. Yes.

25 Q. And in this paragraph he is discussing the competition

12 :1 of actions in rem and in personam?

2 A. Yes.

3 Q. So he sets out, doesn’t he, to start with, if you like,

4 the general issue, which is that you can get two types

5 of claims, a vindicatory action or an action — what he

6 called in personam, in other words, arising from the

7 relationship between the parties?

8 A. Yes.

9 Q. Then he goes to say there are two standpoints in

10 the national literature. He says:

11 «… a number of authors state … that the

12 condition for making such a claim is the absence of

13 personal, in personam ie primarily, contractual link…»

14 So that’s the first point of view, because if you

15 have a contract you can’t have a vindicatory claim.

16 A. Yes.

17 Q. Then there’s one or two other quotations which support

18 that view. If you look, for example, after the number

19 2, he says:

20 «… because our legislation in this regard gives no

21 opportunity to the owner to choose the claim and does

22 not allow for the so-called ‘competition of claims’

23 which is typical of the English and US … rather than

24 European … public order.»

25 So that’s various people who have said things in

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

13 :1 support of the Sukhanov view, if I can put it like that.

2 A. Yes.

3 Q. Then Mr Latyev goes on to say:

4 «… Vitriansky is of the opposite opinion. He

5 admits that the owner … can make both the vindicatory

6 claim and the so-called «claim for possession’…»

7 Then he explains the advantages. Then I think we

8 get the bit that you rely on:

9 «Moreover, in one of his recent speeches, this

10 author [I think it means Vitriansky] says that ‘the

11 competition of claims is a problem invented by

12 academicians and it does not arise out of the Civil

13 Code… Braginsky demonstrates similar approach.»

14 I think Braginsky is a co-author with Vitriansky,

15 isn’t he, of one of the texts?

16 A. Braginsky is a legendary Soviet and Russian scholar. He

17 is more or less the same stature as Mr Sukhanov and he

18 is author of the standard textbook on the Russian

19 private international law and one of the co-authors of

20 the standard book on law of contracts with

21 Mr Vitriansky.

22 Q. So in this paragraph, what Mr Latyev is setting out is

23 there are two schools of thought amongst the

24 academics: there is a rule against competition of claims

25 school and there is the no, there is no such rule

14 :1 school, and then this author concludes in his last two

2 sentences that there is no express prohibition, and

3 therefore that is in favour of the latter point of view,

4 in other words, the Vitriansky, as it is put here, point

5 of view. So he concludes in this paragraph the court

6 doesn’t deny the vindicatory right where the parties are

7 in in personam relations. That’s his conclusion, isn’t

8 it?

9 A. Which one? I’m sorry, it is my fault, I misheard you.

10 Q. I am hopefully summarising —

11 A. Just the last phrase. I am with you all the way.

12 Q. I beg your pardon. As I read it, the conclusion in this

13 paragraph of this author is that he says that the

14 existence of contractual or in personam regulations does

15 not provide a defence to the vindicatory action. In

16 other words, he says there is no problem or rule against

17 competition of claims.

18 A. Yes, he says that since there is no formal prohibition

19 of the competition of claims, so there is no formal

20 ground for rejecting such a claim.

21 Q. Yes. I just wanted to — and I think that’s your view,

22 isn’t it?

23 A. Not quite. I wouldn’t go that far. What — and this is

24 a slightly different issue. What he argues here, he

25 goes a bit further than I do in my opinion.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

15 :1 Q. Right.

2 A. He goes to the issue of whether or not the competition

3 of claims should be used by courts even in the choice

4 between restitution and vindication. And he said on

5 a straightforward reading of Russian law: no, it doesn’t

6 have any application.

7 I, as a practical lawyer, would never advise my

8 client, if he is faced with the choice between

9 competition of claims — between, sorry, I got

10 contaminated by your terminology — if he is faced with

11 a choice between vindication and restitution, to say

12 this in court, because of the 13 cases that I have

13 identified, where probably maybe they have fallen into

14 disuse lately, but still they are on the books and

15 Russian courts would approach this narrow issue of

16 competition of — sorry, again — of competition of

17 claims, of choice between vindication and restitution,

18 they may approach, or there is a risk for the client.

19 As far as other things are concerned, so if my

20 client, as a practical lawyer, would be faced with the

21 choice of presenting a claim either on the basis of

22 Article 393, because there is a contract and there is

23 a breach of obligation, or on the basis of Article 1064,

24 I would show him all those cases and would say: we go

25 both ways. Russian courts clearly define it as part of

16 :1 the same regime. There may be some academic argument:

2 You are safe here, this is our proper cause of action,

3 we are covered.

4 Q. That’s helpful, I think I got a clearer understanding of

5 your view now; that in the particular situation that

6 this article is dealing with and that some of the cases

7 we have seen have been dealing with, in other words, the

8 vindicatory action, you agree, do you there, that there

9 is a rule which prevents you bringing one claim because

10 of the existence of another claim. I am going to

11 deliberately avoid using the phrase «competition of

12 claims», but in substance that is the rule that

13 provokes —

14 A. No, I didn’t say that. I said that as a practical

15 lawyer I would respect what the Russian courts said on

16 this. I would agree, as a matter of straightforward

17 reading of Russian law, with Mr Latyev, but as

18 a practical lawyer faced with what to advise my

19 client — in academic setting, I would go to seminar and

20 say formally Latyev is right, the Russian courts and

21 those Russian judges, where did they took it. But as

22 a practical lawyer, if a client comes to me and says:

23 please, help me to ascertain the contents of the Russian

24 law. I said maybe internally as a straightforward

25 logical thinker and everything in me militates against

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

17 :1 it, but I wouldn’t advise you to go to a vindication

2 claim if you have a contract between you and it is a

3 restitution which is most likely. But I wouldn’t say

4 that in case of a claim in tort.

5 MR JUSTICE HILDYARD: Can I see if I have understood this?

6 I ask it now, because I think it is clearer to do so

7 than at the end, and because I’m worried that I may be

8 using my own English judicial spectacles to overanalyse,

9 so I need your help on it.

10 In this jurisdiction I think we would probably, as

11 a matter of experience and fact, draw a distinction

12 between competition between consistent claims and

13 inconsistent claims.

14 Where you have consistent claims there are, even in

15 this jurisdiction, continuing debates as to whether

16 there is, as it were, a hierarchy; do you get that?

17 A. Yes.

18 MR JUSTICE HILDYARD: Principally in the field of

19 restitution, as to whether restitution is a reserve

20 claim or a primary claim — no one quite knows.

21 In this jurisdiction, that would be not precluded

22 but it would be a matter which might be the subject of

23 judicial debate in a given case.

24 Turn now to inconsistent claims. There there are

25 two problems, in this jurisdiction at any rate: one

18 :1 legal and the other practical. The legal problem, which

2 we have solved in this jurisdiction by allowing

3 inconsistent claims in a single pleading, was a worry

4 that you couldn’t, in a single pleading, in a single

5 statement of case, both approbate and reprobate

6 a transaction. You couldn’t say that the transaction

7 existed and yet wish to set it aside. We solved it in

8 the way that we are allowed to do that, but ultimately

9 you must elect between the basis of claims when it comes

10 to judgment.

11 The practical problem is obvious: that if you assert

12 a contract, you rather undermine in practical terms your

13 claim that it doesn’t exist. It strikes me that maybe

14 our position is not altogether different from your

15 perception of the Russian position; would I be right

16 about that?

17 A. Yes, my Lord, and I actually included one authority,

18 although I didn’t comment on it extensively, in my first

19 report. Let me explain. For the Russian court, when he

20 is confronted with this sort of dilemma — first, just

21 to be clear, in Russia we are not allowed to plead in

22 the alternative so that’s —

23 MR JUSTICE HILDYARD: Right. So that is the way you, in

24 Russian pleading law, that is the way it has been

25 resolved.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

19 :1 A. I am not allowed to plead in the alternative. I have to

2 choose right away. I am allowed to change the basis of

3 my claim, but I am not allowed to change the basis and

4 the remedy I seek in the same pleading. This is another

5 claim in Russia. So I have to make my choice precisely.

6 There was a case, I am not citing it, but I am

7 citing the authority that was a result of it, where

8 individual merchants from a deeply provincial town in

9 Siberia presented a claim. The equities of the case

10 favoured them but they presented it wrongly, and I think

11 they presented precisely vindication and not

12 restitution. The courts rejected the claim. The case

13 went up to the highest Arbitrazh court and the highest

14 Arbitrazh court said: no, clearly a harm has been done.

15 The court did not have the right in this case of a clear

16 harm, of a clear — probably not harm, because I’m not

17 sure the tort was at stake, but essentially they were

18 wronged.

19 The court is under the obligation to correct the

20 wrong. So if the court saw that they’re presenting the

21 claim on the wrong basis, the court had to correct them.

22 In the very recent guidance of the Supreme Court

23 after the merger of the Supreme and highest Arbitrazh

24 court, what the Supreme Court says, and it lays down the

25 policy on the precise issue of vindication against

20 :1 restitution, it says at the stage when the judge

2 discusses with the parties the basis of their claims,

3 the judge is under an obligation to discuss and to point

4 to the parties any legal inconsistencies in their

5 claims, and the judge has to understand that it is the

6 relations that — the set of rules that closely

7 approximates the thing at issue, this bit at issue, that

8 should be applied, but he should tell it to the parties

9 at the preliminary stage.

10 So of course it is more of a Russian judicial — it

11 is more inquisitorial. So the role of a Russian judge

12 is more active. So he is supposed to guide the parties

13 during preliminary stage of the hearing, so it is

14 different, of course, but the concept is there. So

15 there is an overarching principle, of which I speak

16 several times in my reports. It is enshrined two times,

17 Article 15 and Article 1064: any harm should be

18 compensated in full if there is no statute or contract

19 to the contrary.

20 So the requirement of equity is top-level

21 requirement and then if it is possible to assist the

22 parties, Russian judge would — I don’t know how it

23 works in this jurisdiction, but this is — I’m not sure

24 I answered your question, but that’s how I understand

25 it.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

21 :1 MR BIRT: Dr Gladyshev, the explanation you have just given,

2 that is all about Russian procedure, is it, that’s about

3 the court helping parties to identify whether they are

4 bringing the right claim or not. It’s nothing to do

5 with competition of claims. In fact, it rather suggests

6 that there is one right action that the parties should

7 be bringing and the courts will intervene to make sure

8 that that correct action is brought?

9 A. I would partially agree with you. It is, of course,

10 based in the final analysis on the recommendations of

11 what a Russian judge should do procedurally. However,

12 on the top level, it is based on the dilemma the Russian

13 judges face when they interpret the material law,

14 because what is this all about is to find what I have

15 called strong statutory moorings for judicial reasoning

16 without resorting to the unstatutory notion of

17 competition of claims. So this is a very circuitous way

18 of getting to the result. For Russian courts it’s

19 mainly, or even exclusively, an issue between

20 restitution and vindication.

21 As Mr Latyev, which you have just quoted, says,

22 there is no formal prohibition so how do we arrive at

23 favouring restitution over vindication in case of

24 a contract.

25 So this is what he says. I don’t see it being

22 :1 applied in any other way. So this is the Russian way of

2 procedurally resolving the material law dilemma which is

3 presented by formal equivalence between restitution and

4 vindication.

5 Q. Let me just see if I understand what you are saying

6 about this particular scenario, and the Latyev

7 discussion.

8 As I understood it, you were saying as a pure

9 academic matter, looking at the code, his conclusion

10 would be correct; however, the courts have taken

11 a slightly different course. That is your: so I would

12 have to give my client practical advice that this isn’t

13 going to work in the court, is that where you got to?

14 A. I would agree with you, but with one proviso. It is not

15 an academic conclusion; it is a statutory reasoning.

16 What he says, he doesn’t say it’s academic, he says it’s

17 statutory. But yes, the other part is correct. So in

18 practical terms, in 13 cases that I have identified, and

19 in other cases, the Russian courts struggle with this

20 narrow issue between vindication and restitution.

21 Q. Yes, and in those cases the Russian courts then are

22 doing something which you don’t regard as entirely

23 consistent with the code, doesn’t it follow? They are

24 doing something else?

25 A. I think they are trying — no. I think the Russian

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

23 :1 courts in those cases, and as a practitioner I have to

2 respect what the Russian court says, how they interpret

3 the law, and I cannot advise my client otherwise. But

4 I think that at this point — it’s something like 2001,

5 the cases you pointed me — the way the Russian courts

6 tried to approach the issue, drawing in the freestanding

7 concept of competition between claims, which is not

8 defined, which Professor Sukhanov thought to define

9 ad hoc, just for his writings, that was not entirely

10 satisfactory as an intellectual and as a legal exercise.

11 Now the Supreme Court approaches it differently.

12 Intuitively he thinks that it is a restitution,

13 probably, but he doesn’t say that in there. He says

14 it’s what is closer to the parties. If relations

15 between the parties is shaped by a contract, the court

16 doesn’t have any role of subverting it. So that’s what

17 actually it is more or less saying.

18 Q. Can I just show you, because we saw this attached to

19 your report and I asked those instructing me where it

20 came from, and we found the entirety of this article.

21 Can I just hand it up to give a little bit more context

22 and it may tie in with what you were saying. (Handed).

23 I think, in a sense, it takes us to where we have

24 got to, but I just want to make sure. It is obviously

25 part of a longer article. One can see it starts, and

24 :1 Mr Latyev is a graduate student — Business Law Chair,

2 Urals State Law Academy.

3 If we skip forward, certainly in the English, it is

4 the third page of the translation. In the Russian it

5 may be a few more pages because it is all in a narrow

6 column print. Do you see the first paragraph under

7 heading 3 is the paragraph that you have extracted and

8 exhibited to your report, which concludes with the

9 author’s conclusion. You say the logical conclusion

10 flowing from the code, that there is no competition of

11 claims defence in this claim.

12 The next paragraph, I just want to look at the start

13 of the next paragraph with you in the full article,

14 where the author there says:

15 «However, the practice took the first view …»

16 And by the first view, he means the first school of

17 thought, namely that there is a competition of claims

18 defence, at least in this circumstance. I think that is

19 largely what you have already said, isn’t it? That’s

20 what you mean by as a practical matter you would have to

21 advise your clients that the courts would find a defence

22 to a vindicatory claim in those circumstances?

23 A. Yes, so that would be my first practical point, yes,

24 exactly.

25 Q. So what we have here is this author recognising I think

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

25 :1 what you have said, which is that although on a pure

2 reading of the code as logic, you would get to

3 a position where there is no competition of claims rule,

4 in fact, the courts have taken a different course.

5 A. Yes, I see this language. I don’t see that the graduate

6 student exactly uses the most happy turn of the phrase.

7 I was interested in his writing as a recorder of what

8 Judge Vitriansky said.

9 Q. I see.

10 A. I wasn’t exactly interested in his deep insights.

11 Q. So really it is just his quotation from Vitriansky?

12 A. From Vitriansky, and the context, as he — the precis of

13 the academic discussions of others as he gives as

14 a context, which I think is helpful, but I am not

15 looking for a graduate student for deep insights into

16 the Russian law.

17 Q. Just to finish it off, this author — in support of

18 the point that the court’s practice took the first view,

19 he cites a decree of the Russian Supreme Arbitrazh Court

20 of 25 February 1998, and if one goes to footnote, or end

21 note 38, which is right at the back of the English,

22 certainly. Do you have 38 there? So, notably, the

23 decree, the 1998 decree, when issued, made Vitriansky

24 change his view, and so he says something after that

25 about the vindicatory claim not being available, I think

26 :1 is the gist of it; in other words, if you are in

2 contractual relations, that’s the claim you’ve got to

3 make.

4 So it sounds as though Vitriansky changed his view

5 in some respects after that 1998 decision.

6 A. It’s very hard to understand from this language what

7 exactly happened, and it’s not decree by the way, it is

8 resolution, it is an interpretive decision.

9 Q. Well, that may be a translation issue, I suppose.

10 I don’t know.

11 A. But, frankly — well, yes, Vitriansky has to follow the

12 practice, if such practice exists. So the choice, as

13 I said, between restitution and vindication, the courts

14 have come down on the side of restitution, although, as

15 I said, in the most recent resolution, which supersedes

16 this one resolution, because the resolutions of

17 the Supreme Court now have the precedence, the Supreme

18 Court has taken a more careful approach and says that it

19 is on facts what is closer to the relations, how the

20 relations between the parties are shaped. This is the

21 way you choose your remedy.

22 Q. Just before coming to one further case on this, some of

23 your comment on this point in your report, for example,

24 at paragraph 239, which is {E4/14/39}. It starts,

25 really, at — well, 238 you cite Article 12, which is

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

27 :1 the non-exhaustive list of remedies in Article 12 of

2 the Code.

3 A. Yes.

4 Q. Your point at 239, I think you say that:

5 «Academic proponents of the theory of [I think you

6 mean no competition between claims] … assert that

7 a claimant, as a matter of principle, is constrained in

8 his choice between remedies under Article 12.»

9 And you say:

10 «There is no statutory authority for this

11 assertion.»

12 You are setting up an Aunt Sally there, aren’t you?

13 That is not actually the principle that Professor Maggs

14 or Sukhanov contend for. It is not to do with choice of

15 remedies; it is to do with the appropriate claim, isn’t

16 it? That’s the principle that they contend for?

17 A. No, and I do agree that it is not what Professor Maggs

18 and Professor Sukhanov have in mind, for the simple

19 reason because what both Professor Maggs and

20 Professor Sukhanov have in mind have no place in Russian

21 law or in Russian Civil Code. This is the closest

22 approximation. This is as close as you can get to what

23 they are proposing in an aspirational way, but you won’t

24 find in Russian law anything else.

25 Q. But it is dealing with a different point, isn’t it?

28 :1 It’s dealing with the remedy that can be imposed once

2 you have gone through the rest of the process of working

3 out whether your claim is right or wrong; in other

4 words, it doesn’t tell you which bit of the code you

5 should be under in relation to your claim, whether it

6 should be a 1064 or a contractual claim or anything; it

7 is just looking at a different part of the analysis,

8 isn’t it?

9 A. Yes, and this is the only thing that you will find in

10 Russian law when you are faced with the choice of

11 the remedy of the type of claim you want to present. So

12 this is the point of including it.

13 So I have tried to be helpful and to provide the

14 best approximation to any theory of choice between

15 remedies or between claims, and as you have rightly put

16 it, it has very little to do with competition of claims.

17 Competition of claims, as Professor Vitriansky said, is

18 an invention.

19 Q. Could we have a look at one more case, please, which is

20 a case you have cited in your report. It is at

21 {E4/14.1/240}. If you want the Russian it starts at

22 {E4/14.1/237}. I will just summarise the background for

23 you, as I understand it. You have cited this case so

24 I assume you have some familiarity with it. There was

25 a contract between the postal service as customer and

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

29 :1 a construction company as contractor, which included the

2 installation of some stove equipment. There was a fire

3 shortly after that. The cause was a breach of the fire

4 safety rules upon the installation and operation of that

5 stove heating system. So the postal service sued the

6 contractor. The claim was dismissed below. The courts

7 examined the ingredients of 1064, assuming it was tort

8 liability, and said there had been no proof of the

9 contractor’s illegal conduct or fault. This decision,

10 which is the presidium of the Supreme Arbitrazh Court,

11 disagreed, and we can pick it up on {E4/14.1/241}.

12 Towards the top of the page, we have the conclusion:

13 «… the Presidium is of the opinion that the

14 disputed judgments are to be set aside.»

15 By denying the claim the first instance court relied

16 on Article 702 and 1064 of the Code, assumed it was tort

17 liability, and therefore they run through that. They

18 run through the burden of proof, and we can skip down

19 after they list through some of the Articles: 307, 393,

20 1065, but I think that must be a typo in the translation

21 for 1064.

22 Then it is the next paragraph which is important.

23 Having run through the various provision it says:

24 «It can be inferred from these provisions that there

25 is substantial difference between these liabilities in

30 :1 terms of the grounds giving rise to them: contract and

2 tort. If the harm is caused as a result of

3 non-performance or improper performance of a contractual

4 obligation, the tort liability shall not arise. Instead

5 the harm shall be compensated in accordance with the

6 rules on liability for non-performance of a contractual

7 obligation or under the terms and conditions of

8 the contract signed between the parties.»

9 That makes it abundantly clear, doesn’t it, that

10 Professor Maggs is entirely right, and that when you

11 have contractual relations, you cannot have tort

12 liability?

13 A. No, it doesn’t, and this misconception may proceed from

14 the fact that we skipped too easily the issue of

15 the burden of proof.

16 The issue before the court in this particular case,

17 and I will explain how he came to the conclusion that he

18 did, was as follows: there was a contract and the claim

19 was brought on the basis of a contractual tort; that is

20 to say Article 393 — sorry, the case was brought —

21 yes, I am wrong, you are right. The case was brought

22 under Article 1064 and the court said that the case has

23 to be decided under Article 1064 as a general tort or

24 the freestanding tort.

25 Now, the highest Arbitrazh court looked into the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

31 :1 matter and said: no, there is a contract between the

2 parties and you should have discussed it on the basis of

3 Article 393, because the relations between the parties

4 are shaped by the contract.

5 So it’s a contractual tort, it’s not a freestanding

6 tort, and importantly he stated that: I see that you

7 have made the poor claimant to prove more than he should

8 have under this. The equities of the case are on his

9 part maybe, but you put him through the rigorous

10 procedure of a much higher standard of proof under the

11 freestanding tort, whereas, this is a contractual tort

12 claim. The damages are exactly the same, they are

13 Article 15, but you put the poor guy through the loops

14 of having to discharge a higher burden of proof.

15 So this is what the court says in its entirety.

16 This is the issue of precisely the burden of proof, and

17 being more favourable to the claimant, although the

18 remedy essentially is the same. It is Article 15,

19 damages in full for harm caused.

20 MR JUSTICE HILDYARD: I must say, looking at this again —

21 please correct me — this looks like a case where

22 someone was seeking tortious damages for a contractual

23 breach, which seems difficult, but it is not a case of

24 concurrent claims.

25 A. Tortious damages for concurrent breach is what, my Lord,

32 :1 is expressly allowed under Article 393. The damages are

2 the same, the elements are the same, but they are easier

3 to prove.

4 Russian courts, in examples that I cite, reason in

5 other cases where there is a simple — where there is

6 not a choice between the freestanding tort and

7 contractual tort. So they reason as follows: the

8 first — and I explained it in my opinion — the first

9 stop for them is Article 15, which is common to both.

10 They say under Article 15 there is a peremptory rule.

11 Each half has to be compensated in full. Then they go

12 to Article 1064. They say there is a rule to this

13 effect under Article 1064, and then they go to

14 Article 393.

15 So, essentially, they apply both articles, the

16 freestanding tort and contractual tort in the same

17 regime under the aegis of the peremptory rule of

18 Article 15 to the effect that all harm must be

19 compensated in full unless there is a contract or a

20 statute expressly saying otherwise.

21 MR JUSTICE HILDYARD: So I would be wrong in looking at this

22 case as denoting that if the parties have, by contract,

23 decided what their respective liabilities should be,

24 neither one of them, whilst asserting the contract, can

25 claim any broader right or liability, as when one reads

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

33 :1 it one might think it does, you don’t think that is

2 right?

3 A. The article — well, there is no answer. Article 393 is

4 an article which commands damages for breach of a

5 contractual obligation. The remedy is not contractual

6 remedy. That is to say it is not a remedy that is in

7 the contract. It is not restitution, it is not

8 liquidated damages, it’s not any penalty that parties

9 may provide.

10 MR JUSTICE HILDYARD: It’s not pre-prescribed.

11 A. It is not pre-prescribed. It is a statutory remedy. It

12 is a remedy that is exactly the same as for general

13 tort.

14 But the basis for 393 is breach of contractual

15 obligation. If I am harmed beyond waters(?) it is not

16 specific performance, there may be nothing in

17 the contract, but if I am harmed by somebody else’s

18 breaking the contract, and I am harmed in such a way

19 that I may be harmed by general tort, then I am liable

20 exactly the same as under the general tort, and Russian

21 courts see this regime as part of the general regime for

22 compensation of harm.

23 MR JUSTICE HILDYARD: Thank you.

24 MR BIRT: You have given an explanation of this case,

25 regularly referring to something called a contractual

34 :1 tort, but that is not language used in any of the cases,

2 is it? Certainly not in this case?

3 A. No, no, and I agree with this, and I think the language

4 is somewhat ugly. The source for this

5 Professor Christopher Osakwe, just like Professor Peter

6 Maggs he is an American who was in love with Russian law

7 all of his life. As Professor Maggs, he translated

8 Russian Civil Code into English and it is one of

9 the three canonical translations of the Russian Civil

10 Code and he dedicated a lot of thought on Russian tort

11 claims, and so he, just as a prop, uses this artificial

12 thing, just for understanding, as an academical

13 exercise, uses Article 393, he calls contractual tort,

14 and he calls Article 1064 a freestanding tort.

15 So this is a bit of artificial, it just illuminates

16 the essence of it.

17 Q. And the difficulty, isn’t it, is that actually it may

18 not illuminate the essence particularly, because in this

19 case, if you look at it, what the court is saying is

20 that there is a substantial difference between liability

21 for contract and liability for tort, and what they are

22 saying in the paragraph I have highlighted is that when

23 harm is caused as a result of non-performance or

24 improper performance of a contractual obligation, you do

25 not have tort liability?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

35 :1 A. Not quite. If the harm has been caused by a breach of

2 obligation, you are liable to the exact same extent as

3 under Article 1064, you are liable under Article 15, and

4 this is common ground between me and Professor Maggs, as

5 agreed during the joint exercise.

6 However, the difference between those two will be

7 the different level, the difficult standard of proof.

8 It is much easier to prove tort under 393 than under

9 1064. So if there is a contractual breach, why bring

10 a claim under 1064? This is what caused it; you did

11 wrong.

12 Q. That’s why it is important, isn’t it, to work out what

13 the claim is, because the ingredients may be different,

14 or in other circumstances, the consequences may be

15 different; isn’t that what the court is saying here,

16 which is that you have to identify the right claim and

17 then apply the rules applicable to that claim to

18 the circumstances?

19 A. To some extent I would agree with a small proviso.

20 I would say that — and this is maybe splitting hairs,

21 for which I apologise, but the point is that if you have

22 a claim under Article 393, which is a claim —

23 a contractual tort claim, if you wish — and your

24 circumstances are fully described by what has happened,

25 if you have been harmed entirely by the breach of

36 :1 obligation, so there is an identifiable obligation, a

2 counterparty has breached it, or an obligation arising

3 out of a statute and the respondent breached it, and he

4 has caused you harm in no other way, then Article 393

5 would apply entirely. Your relations are shaped by the

6 contract.

7 However, if there is any additional ground, there is

8 no reason why Article 1064 shouldn’t be applied

9 additionally, because as Russian courts apply it, the

10 peremptory rule is the principle in articles — in both

11 Articles 15 and 1064, and which is maybe why Russian

12 courts often cite Article 1064 in this context, one of

13 the reasons is that the peremptory rule is that any harm

14 must be compensated in full.

15 So if the harm caused is not fully covered by

16 a contractual tort claim, then you should resort to

17 Article 1064 because, precisely as you put it, it would

18 be closer to the relations between the parties.

19 Q. Dr Gladyshev, I think you know we don’t accept that, but

20 we have already been around that set of houses. I am

21 not going to encourage you to go round them again.

22 My Lord, I am conscious of the time and I know that

23 the aim is to finish today if we can. There are various

24 other cases that Dr Gladyshev cites in his report on

25 this topic. We don’t accept he has correctly

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

37 :1 characterised them. I could go through them and point

2 that out. It will take some time. As long as it is not

3 going to be held against me that I haven’t challenged

4 his characterisation of a particular case, I am happy

5 that I have put the burden of my case and I can move on.

6 Professor Maggs has commented on them where appropriate

7 in his report. The last case, for example,

8 Professor Maggs wasn’t challenged on his

9 characterisation, but I did think I ought to put that

10 one.

11 MR JUSTICE HILDYARD: Well, I haven’t read the cases,

12 Mr Birt, so I can’t guide you particularly helpfully,

13 but I think if your point is that there is a fault line

14 between the parties as to whether or not there is (a)

15 a theory of competition of claims, (b) a slightly

16 varying practice amongst the courts, and (c) some

17 divergence of views between the academics, I can quite

18 understand that that has already been demonstrated.

19 MR BIRT: My Lord, yes, I’m grateful.

20 MR JUSTICE HILDYARD: Are you content with that, Mr Milner?

21 MR MILNER: Yes.

22 MR BIRT: That’s very helpful.

23 In which case, can I just wrap up our points on

24 competition of claims, Dr Gladyshev, to ensure that

25 I have just isolated the points before we move on to

38 :1 a new topic, and see how much of this you agree with.

2 Where a claimant has made a contract with

3 a defendant, any claim by the claimant against the

4 defendant connected with the contract must be brought in

5 proceedings to enforce or to avoid that contract, and

6 you can’t bring those as a separate claim in tort.

7 That’s the burden of the general rule, isn’t it?

8 A. No, it isn’t, and it is not because of what you said,

9 any claim connected to the contract. This is

10 a formulation which doesn’t have any support. A claim

11 for a breach of an obligation, if the breach of

12 obligation harms you, is brought under Article 393 but

13 it may be brought within the broad umbrella of

14 Article 1064, as is the practice of Russian courts, and

15 to which I pointed repeatedly in my reports.

16 Q. And, for example, you can’t have an Article 1064 claim

17 for deceit or intimidation that led to the making of

18 a contract. Rather, the right cause of action there and

19 the remedies and the limitation period for such a claim

20 would be those provided by Articles 179 and 181.

21 A. No, I do not agree. Article 179 is a restitution. If

22 you are not fully restored to your position, if your

23 harm has not been fully restored by the restitution

24 under Article 179 — and I don’t see how it can be —

25 then you are quite entitled to bring a claim under

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

39 :1 Article 1064.

2 As I said, the choice, and especially in the case

3 that you have just shown me, is the choice between

4 Article 393 and Article 1064. It’s not between any,

5 however tenuously, contract-related wrong, it is

6 precisely tort, compensate for harm caused by a breach

7 of a contractual obligation. So you first identify the

8 harm that is done to you; second, you identify the

9 obligation that has been breached, and you just don’t

10 identify that somewhere between us there is a contract,

11 and somehow it is all related.

12 Q. And if a claim under an applicable contract rule is

13 time-barred, the party to that contract cannot

14 circumvent that time bar simply by bringing a claim

15 under 1064, can they?

16 A. Well, you are putting it a bit too broadly. The time

17 bar under 169 is for setting contract aside.

18 Article 1064, it’s entirely another remedy. If we go

19 back to Article 12, at which we just have looked at,

20 there is a choice of remedies there, which you have said

21 in other issue from the competition of claims, which it

22 is, and so one of the remedies is the setting aside of

23 a contract.

24 Another remedy is a satisfaction of — well, sorry,

25 compensation for harm. So the parties under Article 12

40 :1 are free in their choice of remedies, and there are

2 cases which I cite which confirm it.

3 So a party may choose between a remedy of claiming

4 for tort, or a remedy of restitution, and as you have

5 agreed, it has nothing to do with competition of claims;

6 it is a freedom of choice between remedies expressly set

7 out in the Russian statutory law.

8 Q. That’s a question of choosing a remedy, though, isn’t

9 it? That doesn’t say anything about which cause of

10 action or claim may apply?

11 A. In Russia, cause of action is remedy under Article 12.

12 It’s very often considered as such and I cited cases

13 where the court said you are free in choosing your

14 remedy cause of action. In Russia, essentially, it is

15 something else, the terminology doesn’t coincide with

16 neither of it.

17 Q. It may be that I am confusing things with the

18 terminology «cause of action», but if your claim under

19 a part of the code which specifically applies, for

20 example, Article 179 has a time bar attached to it which

21 has expired, you can’t effectively bring that same claim

22 via a 1064 claim simply to take advantage of the longer

23 time period, can you?

24 A. I don’t see why not, because Article 12 expressly says

25 you can. Article 12 says these are different remedies

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

41 :1 and Article 12 says you can exercise them at your own

2 choosing, and Russian courts confirm it, and it has

3 nothing to do with competition of claims, as you

4 yourself has confirmed. It is a choice between, as

5 Article 12 said, methods of protection of rights, and if

6 I choose the right under 1064, which is singled out

7 specifically in Article 12, then it is not time-barred;

8 it is another remedy which has nothing to do, and courts

9 have confirmed that parties are free to choose between

10 them and this is something set in stone in Russia.

11 MR BIRT: That’s a point on which you and Professor Maggs

12 violently disagree, but I think we must leave that topic

13 there.

14 My Lord, I am going to move on to a new topic, which

15 is certainly going to take us a good chunk of time now.

16 If that is a convenient time for a short break, that may

17 be a wise course.

18 MR JUSTICE HILDYARD: Yes.

19 (11.40 am)

20 (A short break)

21 (11.49 am)

22 MR BIRT: Dr Gladyshev, I would like to ask you now some

23 questions on the topic of reflective loss. We looked

24 yesterday briefly at a passage of

25 Mr Justice Andrew Smith’s judgment in Fiona Trust where

42 :1 he found that Russian law would not consider

2 a shareholder in a company could recover for reflective

3 loss. I am not going to take you back to that now,

4 I just want to explore with you what your position is

5 and what you say Russian law does allow recovery of,

6 please.

7 As I understand it, you say that reflective loss

8 claims are allowed as a matter of principle under

9 Articles 1064 and 401, and that there is no rule against

10 the recovery of reflective loss; is that right?

11 A. Yes, although I do cite a bit more broader authority for

12 this proposition. It’s not as narrow as you put it.

13 Q. Yes. I am just trying to get some general parameters,

14 really. In the joint memorandum, I think what you said

15 at paragraph 119, this is {E4/15/20}, do you have that?

16 Paragraph 119?

17 A. Yes, I have it.

18 Q. You said as a matter of principle reflective loss claims

19 are allowed under Article 1064 and 401:

20 «There is no statutory provision that would bar

21 a claim for reflective loss based on the above articles.

22 As a matter of practice, if there is a real possibility

23 of presenting a claim on behalf of a company, and if

24 such a claim would be best to satisfy the requirement of

25 full compensation of losses, Russian courts would be

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

43 :1 inclined to permit a claim on behalf of the company

2 rather than its shareholders. However, if no real

3 possibility to present such a claim exists, a claim for

4 reflective losses will be allowed to prevent a genuine

5 loss caused to the shareholders by the defendant from

6 going unremedied.»

7 A. Yes, and it is a somewhat shortened and syncopated

8 version of what I more broadly discussed in my opinion

9 where I gave, as I said, a broader basis for the

10 reflective loss.

11 Q. I understand, let me just show you your first report as

12 well. I am just getting some parameters and then I will

13 ask you some questions about it. You can keep that up

14 on one screen and we could have on the other screen

15 Dr Gladyshev’s report at {E4/14/58}. I just want to

16 look with you at paragraph 368 and over the page at 369,

17 please {E4/14/59}. So just a tiny bit of the next page

18 is fine.

19 MR JUSTICE HILDYARD: Mr Birt, there is a problem of

20 terminology here. My understanding is that the experts

21 are agreed on one important matter, which is that in

22 their lexicon, «reflective loss» in accordance with the

23 way it is recorded in paragraph 343 of

24 Professor Gladyshev’s written statement, is that what

25 they mean by reflective loss is confined to

44 :1 the situation of a diminution in the value of

2 the shareholders’ shares in consequence of a wrong done

3 by the defendant to the company; and that this, as

4 I understand it, is confined in that way so that it does

5 not extend to the situation where a wrong is done to the

6 shareholder, whether alone or concurrently with the

7 company. That is my understanding. I hope that is

8 correct. But the trouble is that I worry that we are

9 imposing, by the use of the phrase «reflective loss»,

10 an uncertain notion. I am sorry to interrupt, but

11 I just feel that it is incredibly important to get this

12 straight, because otherwise we simply don’t know what we

13 are talking about and I just don’t know where I am.

14 MR BIRT: My Lord is right, of course, and I have been

15 proceeding on a similar basis with, I think, a caveat,

16 and it may just be the language, that when one is

17 looking at where there is a wrong done to the company —

18 MR JUSTICE HILDYARD: Yes.

19 MR BIRT: — that is a slightly loaded proposition in

20 the sense that you have only had the wrong done if the

21 harm has been suffered. It imports a slight element of

22 circularity to it.

23 So I think how I would look at it would be what we

24 are calling reflective loss is where it refers to a loss

25 suffered by a shareholder in the company in the form of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

45 :1 a diminution in the value of its shares as a result of

2 something having been done by the defendant which has

3 caused a loss to the company which, in turn, causes that

4 diminution in value.

5 I mean, I think that would probably likely be

6 a wrong. In fact, it would be a wrong to the company.

7 It may also be a wrong to the shareholder if there

8 is a rule that the shareholder can recover. But if

9 there is not a rule that the shareholder can recover, it

10 wouldn’t be. I am simply drawing out has there been

11 a wrong caused slightly imports the conclusion of

12 the argument into the proposition. Apart from that,

13 I think we are looking at things in the same way,

14 my Lord.

15 MR JUSTICE HILDYARD: Yes.

16 MR MILNER: My Lord, if it helps, and it may not, of course

17 it is for the experts to give their opinions, not me,

18 but in English law, reflective loss is cause of action

19 blind. That’s, in a way, the whole point of

20 the doctrine. It doesn’t matter what the cause of

21 action is, and whether the wrong has been done to

22 the shareholder or to the company. Clearly, if the

23 shareholder doesn’t have a cause of action, then he

24 can’t bring a claim at all. If the shareholder does

25 have a cause of action because a wrong has been done to

46 :1 him, he still can’t recover if the loss is reflective,

2 unless it falls within one of the exceptions.

3 Now, it is right that Dr Gladyshev does take that

4 narrow view and Mr Birt may want to ask him about that

5 to refine that, it is not for me to put any gloss on

6 it —

7 MR JUSTICE HILDYARD: No.

8 MR MILNER: — but on the basis of Professor Maggs’ evidence

9 yesterday, I think we did take a slightly broader scope

10 and look at the question regardless of whether the wrong

11 had been done to the shareholder or to the company or to

12 both. Clearly there has to be a wrong of sorts done to

13 the shareholder for him to have a claim at all, but the

14 question is, then, what is the nature of the loss, and

15 is it reflective or not. On that I think we are all

16 agreed that it means diminution in value of

17 a shareholding. But whether it arises from a wrong done

18 to the shareholder alone or to the shareholder and the

19 company, I’m not sure whether, analytically, that makes

20 any difference. I am not going to make submissions on

21 that now, but it may be something that should be

22 clarified.

23 MR JUSTICE HILDYARD: Well, I will read that with care, but

24 I think that there is a terminological curiosity here.

25 I do not know whether what is espoused by one expert and

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

47 :1 rejected by the other is as broad as English law, which

2 is to say that if the company can be made good by

3 restoration of the company, the shareholder has no

4 additional claim. That’s effectively what it comes to.

5 Subject to various quite limited exceptions.

6 I didn’t understand either of the experts to be

7 going that far, but I may be wrong in that, and that is

8 a matter for you to test and if necessary, first ask

9 Professor Maggs if there is some curiosity in it. Do

10 you see what I mean?

11 MR BIRT: My Lord, I do. It may be that my quibble with

12 your Lordship’s formulation, or rather with

13 Dr Gladyshev’s formulation, is similar to Mr Milner’s

14 explanation; which is it’s the language using the word

15 «wrong» which is slightly leading us astray. In

16 a sense, the claimant has to have the ingredients of

17 a cause of action, it is when it comes to assessing has

18 it suffered, we would say loss, 1064 may say harm, that

19 one is saying is — if it has on other things suffered

20 a diminution in value of its shareholding because of

21 something which otherwise may be something done to

22 the company, which the company may otherwise have

23 a claim for, is that merely reflective and

24 non-recoverable.

25 But maybe the way for me to do it is to explore

48 :1 it as I go through —

2 MR JUSTICE HILDYARD: One view of what the experts are

3 saying is that the reflective loss principle in Russia

4 means, but is confined, to a case where a shareholder is

5 seeking to assert a claim in respect of the harm done to

6 his company, which has led to a diminution in the value

7 of his shares. If that is the relevant harm and the

8 principle is confined to that — as I must say, I rather

9 understood Professor Maggs to be saying — then that is

10 a more limited view of reflective loss than might be

11 apparent in this country and, therefore, the phrase

12 might trigger the wrong button.

13 MR BIRT: My Lord, yes, I understand.

14 MR JUSTICE HILDYARD: Will you explore that?

15 MR BIRT: I will try and explore it as we go through.

16 I think I’m bound to slip in phraseology of reflective

17 loss.

18 MR JUSTICE HILDYARD: I think it is my fault because the

19 thing is, we look at things in cause of action terms and

20 they look at it in terms of harm done.

21 MR BIRT: At least that’s where this argument takes place,

22 my Lord.

23 MR JUSTICE HILDYARD: Yes. All right, I’m sorry to

24 interrupt, but I worry that the phrase has caused more

25 harm than good.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

49 :1 I am sorry to speak over you, Dr Gladyshev. Your

2 words are much more important than any surmise of my

3 own.

4 MR BIRT: Can I take it, first of all, Dr Gladyshev, looking

5 at your — we have looked at the sort of summary of

6 yours views in the joint memorandum at 119. Could we

7 look at your report at {E4/14/58} at 368 here.

8 A. Yes.

9 Q. We are in the territory that you know where a wrong or

10 something else that might constitute or ground a claim

11 has been done to the company, and the question is

12 whether a shareholder in that company can recover the

13 diminution in value of its shareholding, which has been

14 caused to it by what has happened to the company. You

15 say in 368:

16 «Normally Russian courts might consider that the

17 requirement of adequate compensation is best served by

18 a claim [I think that must be by] the company itself.»

19 You go on to talk about a derivative claim — and we

20 will come back to derivative claims, but if we can leave

21 those on one side for a minute. I just want to explore

22 with you first of all what you mean by that first

23 sentence of 368:

24 » … Russian courts might consider that the

25 requirement of adequate compensation is best served by

50 :1 a claim [by] the company itself.»

2 A. No, I’m sorry to interrupt you, counsel, but the words

3 were chosen with some care. «For the company» was

4 a deliberate choice of words.

5 Q. Right. So are you talking about a derivative claim

6 there?

7 A. Yes, I do.

8 Q. So when you say «also» in the next sentence, what does

9 that mean? I had rather read that as being something

10 additional in the second sentence, the «classical

11 derivative claim». Or are you talking about — maybe

12 I’ll stop trying to interpret and you can just explain

13 what you meant in paragraph 368.

14 A. Essentially what — «also» perhaps is superfluous here.

15 I am talking here about the same thing, about

16 a derivative claim both in the first sentence and in

17 the second sentence.

18 Q. I understand.

19 A. Because clearly if the company is wronged and it is

20 a claim on behalf of the company and the company brings

21 it herself, there are no issues here.

22 Q. So you say that normally Russian courts might consider

23 that it is best served by a derivative claim brought in

24 the name of the company? That’s what you are saying?

25 A. Yes. The Russian courts might consider that the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

51 :1 requirement — they might consider it for simple reason:

2 if the company is a going concern and the facts of

3 the case are clear, and the restoration of the position

4 of a shareholder is best served by restoration of

5 the position of the company to an unharmed state, and

6 since, as Professor Maggs puts it, there are rules in

7 the corporate laws, that is to say just the

8 companies laws and the limited liability company laws,

9 for precisely this sort of action, yes, the courts might

10 decide to go this way.

11 On the other hand, if, for example, I am as

12 a practical lawyer approached by a defendant and he

13 would say there is a claim against me by a shareholder

14 on his own behalf, and there is no viable company in

15 between, do I argue lack of reflective loss? I would be

16 bound to say that the Russian court would not accept

17 this, because the terminology is not known to

18 the Russian court and the Russian court would think in

19 terms of Article 15 all harm has to be compensated in

20 full.

21 Q. Just going back to the first of those things that you

22 said, so when the company is a going concern, the facts

23 of the case are clear, and so on. You said:

24 «The restoration of the position of a shareholder is

25 best served by the restoration of the position of

52 :1 the company.»

2 So I think what you are saying there in 368 is that

3 then the Russian courts might consider that the best way

4 forward is for the company to bring a claim, either

5 itself or through a derivative action.

6 A. Again, if it is a claim of the company for its own

7 interest, the issue doesn’t arise at all, doesn’t it, so

8 we are not talking about here.

9 Q. You are saying, I think, in 368, your words, that the

10 Russian courts would consider that was the best

11 solution; that is what you have said, isn’t it? Really,

12 I suppose my question to you is on what occasion would

13 it come to that consideration? Surely it is only when

14 it is presented by another claim, namely a claim by the

15 shareholder in its own name, that it is considering this

16 question at all.

17 A. No. Well, it’s a bit — the question is put very well

18 and a bit too broadly. Again, if, for example,

19 a shareholder comes to court and puts it like this,

20 please — I don’t see, frankly, any way under which this

21 can be rejected, and I am not aware of any claim that

22 has been rejected in such a way. Just, we cannot — and

23 Professor Maggs hasn’t found a single case to this

24 respect —

25 Q. Before you go on, can I just be clear what you are

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

53 :1 saying there?

2 A. Yes.

3 Q. When you say «If a shareholder comes to court and puts

4 it like this», what you mean is if there is a viable

5 company which could bring a claim —

6 A. Yes.

7 Q. — and the shareholder comes saying: well because of a

8 wrong done to the company, my shareholding has been

9 diminished in value, so I want to claim under 1064

10 against —

11 A. I would present — that is for myself. This is for

12 myself.

13 Q. — I am just trying to understand your view —

14 A. Yes.

15 Q. — and the shareholder then said says: I have been

16 harmed by the wrongdoer by way of diminution of value,

17 you say in those circumstances there is no way that

18 claim can be rejected; is that right?

19 A. I don’t see how it could be rejected under the

20 straightforward reading of Russian law. So this issue,

21 again, maybe the emphasis that I put here is not

22 precisely succinct. I didn’t want to frame it in

23 the way that a court, when faced with a choice, would

24 prefer it. It’s more or less — well, it would prefer

25 it probably, but it’s not that the court will be forced

54 :1 to choose. What I am talking about is that if a client

2 comes to me, there is a viable concern, his shares have

3 been diminished, and there are clear cause of action

4 under corporate laws for a derivative claim, and he is

5 clear that his position as a shareholder would be

6 restored fully and harm fully compensated by this, and

7 there is wide case law on this, I would advise him to go

8 under the certain route of derivative claim.

9 Q. Yes, you would, because that’s an established route, but

10 what I am trying to test is what if somebody doesn’t do

11 that, goes as a shareholder to claim the diminution in

12 value of their shares in the circumstance and I think

13 what you are saying is there could be no defence to that

14 claim if all the other ingredients —

15 A. Yes, and I would advise a defendant would be my client

16 to present that there is no reflective losses under the

17 Russian law. That’s not true.

18 Q. I think what you are saying is you would advise the

19 defendant to argue what my clients are arguing in this

20 case, and what you are saying is that that defence would

21 fail.

22 A. I’m sorry?

23 Q. I think you say you would advise the defendant to

24 present that there is no reflective loss — you are

25 saying you would advise the defendant to say you

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

55 :1 can’t — the defendant to run the defence: no reflective

2 loss.

3 A. Yes, you cannot run the — it would be ineffective, the

4 defence would be ineffective.

5 Q. But as I understand your view that wouldn’t succeed.

6 So this is a case even where the company could sue

7 in its own name, a viable company that could sue —

8 A. Yes.

9 Q. — you say there is no bar to the shareholder bringing

10 his own claim?

11 A. Exactly, exactly. So the position, as a practical

12 matter, I would advise, other things being equal,

13 I would advise to go the derivative claim route.

14 If, however, other things not being equal, then if

15 a —

16 Q. Can I just pause. You must give your evidence, but I am

17 not really interested in what you would advise a client

18 and the arguments that might be available that might be

19 defeated.

20 A. Sure, yes.

21 Q. It is really what the law is and what a court might

22 decide is what I am interested in.

23 A. Yes. Correct. So the law is that there is no rule

24 against reflective loss, as Professor Yarkov confirms

25 it, in Russian law. So in Russian law, under Article 12

56 :1 you have remedies, which you have discussed previously.

2 The remedies are absolute, unless they are barred by

3 clear statutory provision, as Russian courts have

4 confirmed in the cases that I have cited in connection

5 with Article 12.

6 Article 12 says that one of the remedies that I have

7 is harm, is a claim for compensation of harm.

8 Article 15 says harm has to be compensated fully, and

9 this is a peremptory rule.

10 Now, I don’t see before me nothing in the Russian

11 law that would say otherwise. If I go to court, or if

12 somebody goes to court and says: we thought up such

13 a thing because in other, more developed systems, there

14 is such a thing as reflective loss, this surely cannot

15 be true that this is allowed alongside, and surely our

16 clever idea must rule over the black letter law of

17 Article 12, 15, 1064, I would ask on what basis are you

18 saying this.

19 Q. So if I could take you back to paragraph 119 of

20 the joint memorandum and what you said, it is still on

21 the screen there {E4/15/20}.

22 A. Yes.

23 Q. You said this in the middle:

24 «As a matter of practice, if there is a real

25 possibility of presenting a claim on behalf of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

57 :1 a company, and if such a claim would be best to satisfy

2 the requirement of full compensation of losses, Russian

3 courts would be inclined to permit a claim on behalf of

4 the company rather than its shareholders.»

5 I have to say, I had rather read that as your

6 recognising that if the company could bring a claim in

7 those circumstances, a shareholder claim for reflective

8 loss, diminution in value of shareholding, would not be

9 permitted. Is that not what you were intending to say?

10 A. No. Perhaps it’s not the most felicitous turn of

11 the phrase, but certainly under the Russian rules,

12 either procedural or material, the court doesn’t have

13 the power to arbitrarily reject a claim that is allowed

14 under Article 12 but is not otherwise barred.

15 Q. So what did you mean by that sentence in the joint

16 memorandum. As a matter of practice if you could have

17 that claim the courts would be inclined to permit that

18 claim rather than its shareholders?

19 A. This which I discussed in my report when I talked about

20 the competition of claims and choice between vindication

21 and restitution.

22 Under the Russian practices, what I have described,

23 a court is enjoined to discuss the matter with the

24 parties and to tell them at the outset, at the

25 preliminary stage of the proceedings, and to say: don’t

58 :1 you think that you have a better chance of going — you

2 have a very good claim, well traversed by the Russian

3 courts, why don’t you go this way? However, this would

4 be a suggestion. This won’t be not allowing or

5 disallowing a claim to proceed.

6 Q. And if the shareholder says: not interested, or maybe

7 the shareholder can’t get the company to bring a claim,

8 the shareholder says: I want to bring the claim.

9 A. That he is —

10 Q. Your view is that the Russian court would permit it?

11 A. The Russian court cannot disallow a claim which is

12 brought under these suppositions. However, the Russian

13 court will, of course, find it more easy to consider

14 a claim where the parameters are well regulated in

15 the corporate laws, and will be more comfortable with

16 it. That’s what I’m saying in paragraph 119.

17 Q. I mean, I think you have said that they would be more

18 comfortable, and in other places it would be best, but

19 what I am really testing with you is not what they would

20 be more comfortable with, but what relief they would

21 grant if, we can put it this way, push came to shove and

22 they had to adjudicate on the claim.

23 My understanding of what you are saying is that in

24 all the circumstances we have been discussing, the

25 shareholder claim would succeed?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

59 :1 A. Well, it would be allowed to proceed forward. It would

2 be a more difficult claim, but it would be allowed to

3 proceed forward. Another problem —

4 Q. Just let me ask, why would it be a more difficult claim?

5 A. Because, as I have said, the circumstances for

6 a derivative claim are well described in corporate laws.

7 There are elements there, for example, who may be the

8 respondent and in some respects, the respondent, for

9 example, the general director of a company against whom

10 the derivative claim is regulated, there is a limit on

11 him, on the claim that can be brought, a very strict

12 limitation period of one year. So a general director of

13 the company is protected under those laws.

14 There are certain causes of action that are

15 proscribed. However, if there are circumstances which

16 go beyond that, then I am allowed to do so.

17 Q. So when you say in 369 of your report, it is on the

18 screen there. {E4/14/59}.

19 A. Yes.

20 Q. You say:

21 «However, in cases where a company would not be able

22 to bring a claim on its own, then there is nothing in

23 Russian law that would prevent a reflective losses

24 claim.»

25 A. One of the examples, yes.

60 :1 Q. I see what you say there. You start with «however», and

2 I had rather read that as meaning that your position was

3 that where a company would be able to bring a claim on

4 its own, then Russian law would not permit the

5 shareholder to do so for what you are calling here

6 reflective loss; was that a wrong reading of that?

7 A. Yes, it’s wrong, because it has to be taken against what

8 I have said in my report, which was presented initially,

9 even before that, and in the first report.

10 There I said, I started not with Article 15 or 1064,

11 but with something that is essential for all — the

12 conceptual framework for Russian — any Russian

13 litigation, which is the constitutional right to

14 judicial defence, which is not a nebulous concept. It

15 is a practical concept in Russian courts.

16 So a Russian judge would see, if I bring a claim,

17 I have an absolute right to bring a claim under the

18 constitution. This right may be constrained only by

19 an express language of a black letter statute. If the

20 court disallows me to bring a particular claim, then he

21 must show a good reason for this, and this is what

22 Professor Yarkov is saying. He says there is nothing to

23 prohibit such a claim.

24 Q. So in your view there is — assuming a shareholder can

25 show that there has been a diminution in value of the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

61 :1 value of his shareholding as a result of something done

2 to the company, there is nothing to stop him bringing

3 that claim; it doesn’t matter whether the company could

4 or could not bring the claim in its own name, for

5 example, it doesn’t matter whether they could cause a

6 derivative claim to be brought. All those things are

7 irrelevant to whether the shareholder can recover in his

8 own name?

9 A. Double recovery is relevant. So, for example, if there

10 is a double recovery, Russian courts would not allow it.

11 So if, for example, I bring what you call a

12 reflective losses claim and a derivative claim was

13 previously brought or satisfied, then Russian courts

14 would disallow such a claim, as it did in other cases of

15 double recovery, on the basis of Article 10 of the Civil

16 Code; that is to say, abuse of right.

17 I have the right — I’m sorry to interrupt you,

18 counsel. If I have the right to bring the claim, but if

19 such a claim would harm the other party unnecessarily,

20 beyond what is envisaged, even though it is my right,

21 that I am not allowed to bring this claim. So Russian

22 judges deal with double recovery under Article 10.

23 Q. Presumably if the company has already recovered, either

24 because of its own action or because there has been

25 a derivative claim, so the company has been made whole

62 :1 in that way, then the shareholders, the value of

2 the shareholder’s shareholding has been properly

3 restored, so there would be no harm in that case, would

4 there?

5 A. If the value of the shareholding has been properly

6 restored, so all harm has been fully compensated under

7 Article 15, and nonetheless a shareholder would insist

8 on bringing the claim in the Russian court, then the

9 court would disallow it because of Article 10. That

10 would be an abuse of right.

11 Q. What happens, though, when the shareholder is first out

12 of the blocks and brings his claim where a company —

13 the company could bring the claim but hasn’t done so?

14 On your analysis, the shareholder can recover. Does the

15 court then prevent the company from bringing a claim

16 later on, on the double recovery basis, or on some other

17 basis?

18 A. That is an interesting proposition, to which the answer

19 is not very clear, for a good reason. There has not

20 been such cases before, and here I note that

21 Professor Maggs says repeatedly there is no cases in

22 this respect, and I fully agree with him that the cases

23 are few.

24 While Professor Yarkov tells about the case which he

25 says has been unpublished, I know there are claims to

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

63 :1 this effect under consideration not published. I may

2 explain on which basis they are brought.

3 However, you are looking at this issue from the

4 vantage point of the jurisdiction that has the richest

5 case law in human history. Russia, in contrast, has

6 probably the most modest acquis of case law among the

7 major legal systems because the system dates from 1996.

8 The first part of the Code was adopted in 1996. In

9 20 years there hasn’t been simply enough of a case law

10 to cover all contingencies, and this is the first

11 factor.

12 The second factor, Russian judges are cautious and

13 conservative, and this may not be a bad thing, so as

14 I continually point out, there is a matter of adhering

15 more or less to practices, even though as a matter of

16 general rule, this is allowed, as Professor Yarkov says,

17 and as he quotes a specific case.

18 Q. I just want to test your position a little further.

19 I mean, I take your point that there are no cases under

20 Russian law giving us the details, and we would say that

21 is not surprising because there is no recovery here.

22 I think you say: well, nobody has got round to testing

23 it yet, but, in a sense, we are in a bit of a void then,

24 and we have to analyse the position from, as you say,

25 principle.

64 :1 Your position, which I will be submitting is

2 a rather extreme one, is that a shareholder could

3 recover in all the cases we have discussed so far,

4 regardless of the ability of the company to bring the

5 claim. I think that was a nod; is that right?

6 A. Yes, well I wouldn’t say in all cases. I said «other

7 things being equal», which is a slightly different

8 proposition. There may be other bars to it. Something

9 like, for example, Article 10. There may be issues

10 under Article 10, and maybe their claim would be

11 perfectly described by one of the suppositions in

12 the corporate law, such as a claim against a general

13 director for a specific harm, or a director voting in

14 an especially harmful way for a large transaction which

15 is caught in a law on joint-stock companies.

16 So there are a number of — but what they insist

17 upon is that as a matter of principle, and Russian

18 courts are accustomed to argue from general principles

19 when confronted with the novel issue of law, as a matter

20 of principle, unless you can demonstrate a clear

21 statutory bar to such a claim, this such a claim must

22 proceed par excellence.

23 Q. Take, for example, somebody who isn’t a 100 per

24 shareholder in a company.

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

65 :1 Q. And a wrong has been done to the company, so the company

2 has suffered loss.

3 A. Yes.

4 Q. The company hasn’t brought a claim. Say they are

5 a 90 per cent shareholder. They bring a claim for

6 diminution in value of their shareholding. On your

7 analysis, I think you would say they would be entitled,

8 effectively, to 90 per cent of the damage done to

9 the company.

10 A. Well, not quite. Evaluation is a different matter.

11 They would be entitled to be restored to their original

12 position, and they would be entitled to the compensation

13 which would fully restore the harm done to them.

14 I give you an example. A company — a large

15 company, a large Russian company, trades with a foreign

16 market, the largest fertiliser company in the world.

17 Its competitor, a minority shareholder, buys a minority

18 stock of shares there, with a view of participating in

19 it. Then he says the company is not trading at market

20 prices and it is underselling, so his shareholding

21 suffers, and he brings the claim. On one of

22 the examples where such a claim was allowed, it did not

23 proceed to fruition, but it was allowed historically.

24 Q. I am sorry, I don’t follow your example. You are saying

25 the minority shareholder — oh, I see. Is this

66 :1 an example from case law that you have found?

2 A. Well, it’s an example from an actual case that is

3 running — it’s not in the — it hasn’t been finished.

4 It’s not clear how it will proceed, but it is in —

5 Q. So it’s not much of a guide to how the Russian courts

6 are going to decide if we don’t know the answer.

7 A. No, but at least this claim has been brought.

8 Q. Going back to my question, if you have a shareholder

9 that isn’t a 100 per cent shareholder that brings the

10 claim that you have in mind —

11 A. Yes.

12 Q. — for restoration of the value of his shareholding,

13 whether that is a precise correlation to his 90 per cent

14 shareholding or not, there may be other factors that

15 depend on how that translates through to his

16 shareholding, I grant you, but then that having been

17 granted, what happens if a year later if the company

18 decides to bring the claim in its own name; can it

19 recover or not?

20 A. I don’t know. I would say there is — I don’t know.

21 Frankly, if the company recovers, that would entail

22 a double recovery for the shareholder. So this sort of

23 hypothesis hasn’t been tested in Russian law.

24 Q. If the company couldn’t recover, then wouldn’t the

25 10 per cent shareholder have suffered in that scenario?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

67 :1 A. It might. So then the — one of the ways maybe — since

2 it is untested, we are talking in hypotheticals — one

3 of the ways maybe that the court will, during this

4 preliminary conference, suggest that the minority

5 shareholder brings its own claim, if it so desires, or

6 maybe that the company is satisfied only to the extent

7 that it would not consider it double recovery. I don’t

8 know. It has not been tested. There are many

9 possibilities of which we do not know.

10 Q. And aren’t all those possibilities so extreme and

11 obviously providing the wrong solution, that the only

12 reason you are driven to say that that is what would

13 happen is because there is no intermediate way in

14 Russian law. There is no rule, provision of the Code,

15 or line of cases, which tells you that you can recover

16 this sort of loss in a particular type of case; it’s

17 an all or nothing point, isn’t it?

18 A. This is a long question which is not entirely

19 consistent. So there are two issues here: first, again,

20 it’s not a matter of allowing a claim which is otherwise

21 prohibited; the claim is already allowed. The question

22 for the judge would be: if I bar it, on what ground it

23 is, and there are no grounds.

24 Russian law, as it works now, proceeds more or less

25 from practice. As Professor Maggs knows perfectly, he

68 :1 translated the first part of the code, during the

2 application of the first part of the Code and of

3 the first four parts of the Code enacted since 1996,

4 there were complex issues involving interpretation of

5 the Code.

6 So in the three preceding years there has been

7 a major reform of the Russian Code which took care of

8 similar problems in other areas. So if the Russian

9 legislator looks at it and sees that there are some

10 intermediate solutions to be found, then he will find

11 them.

12 However, the Russian legislator didn’t so far saw

13 fit to limit what you call reflective losses, and what

14 is not in Russia in any way. So if the Russian

15 legislator wishes to limit the constitutional right to

16 judicial defence or to recovery under Article 12, 15,

17 1064, then the Russian legislator would have provided

18 a clear statutory bar to it. So far he hasn’t.

19 Q. But it is not a question, is it, of asking whether there

20 is a rule of Russian law that excludes recovery of this

21 sort of loss; it is that Russian law doesn’t recognise

22 what we’re referring to here as reflective loss as harm

23 for the purposes of a claim; isn’t that right?

24 A. Well, actually it is not, because the two parts of your

25 question are not mutually exclusive. The Russian law

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

69 :1 does not recognise a concept of reflective loss because

2 it would be an artificial construct alien to it.

3 Russian law recognises the general principle that all

4 harm must be compensated in full. Russian law

5 recognises the general principle of freedom of choice of

6 remedies under Article 12, and the Russian law

7 recognises the absolute right to judicial defence unless

8 one is barred from presenting a specific type of action

9 under an express statutory rule. So these are the

10 parameters under which Russian law operates.

11 Imposing a concept which we struggle here in this

12 courtroom to define, and say this concept which we

13 cannot quite define ourselves, is prohibited in Russia.

14 I don’t think that’s how the Russian law works.

15 Q. And, as Professor Maggs says, isn’t it right that

16 Russian law doesn’t consider the causation requirement

17 of 1064 satisfied where a shareholder sues to be

18 directly reimbursed for losses merely reflective of

19 actual losses suffered by a company?

20 A. Can you repeat it, please?

21 Q. Yes, Russian law doesn’t consider the causation

22 requirement of 1065 satisfied where a shareholder sues,

23 so as to directly be reimbursed for losses that are

24 merely reflective of actual losses by the company?

25 A. Can I ask for statutory ground for such an assertion?

70 :1 Q. The statutory ground is that you need to establish

2 causation and that it is not sufficiently direct and

3 immediate.

4 A. As we have discussed it yesterday, Russian law does not

5 have an immediate requirement for causation. As for

6 direct causation, the requirement for a direct causation

7 is not found in Russian law either. I think even on the

8 theory that Professor Maggs proposed, relying on the

9 article of Mr Egorov, the direct causation means that

10 there is an uninterrupted chain of linked events that

11 lead to the satisfaction of a claim in tort.

12 So if, in fact, it occurs that my shareholding in

13 a particular company were harmed through an interrupted

14 chain of mutually connected events at the beginning of

15 it which lies a harm done to a particular company, then

16 even under the theory that Professor Maggs proposes,

17 that would qualify as a direct cause.

18 Q. Can we just test your position in a slightly different

19 context, but by reference to where the company which has

20 suffered the loss is in an insolvent position. Where

21 an office holder has been appointed, say it is in

22 bankruptcy liquidation, it is right, isn’t it, that

23 claims of the company in liquidation can only be brought

24 by the office holder? It is claims of the company I am

25 just talking about at the moment.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

71 :1 A. Yes.

2 Q. I think you say that a claim for — a shareholder’s

3 claim here for his own loss due to diminution in the

4 value of his shareholding can still be brought even

5 where a company is in liquidation; is that right?

6 A. No.

7 Q. You don’t say that?

8 A. No, I don’t say that, because as I said before, other

9 things being equal, there may be intervening things.

10 The insolvency regime and the bankruptcy regime is

11 a complete cover out of the Russian civil laws. So

12 Russian civil laws apply to bankruptcy situation and

13 insolvency situation only as far as the bankruptcy laws

14 allow it.

15 So I wouldn’t pose any bankruptcy situation as

16 a very convincing case for a reflective loss situation.

17 Q. I understand. I was misreading you again. So you say

18 once the company has gone into bankruptcy —

19 A. Yes.

20 Q. — or a similar process —

21 A. Yes.

22 Q. — then the shareholder can’t bring a claim in his own

23 name for diminution in value of his shares?

24 A. He cannot — well, he can, and for example, under the

25 investment law he can bring the claim —

72 :1 Q. Can we come back to the investment law?

2 A. Yes, but you have asked the question and I am answering

3 it. He can bring this claim, for example, under

4 an investment law, and if he can bring the claim under

5 investment law, then he can bring a claim …

6 I think what we should distinguish here are two

7 situations. First, the situation which is fully

8 described by the law on bankruptcy or insolvency, which

9 is carved out of the civil laws. There are

10 unexceptionally several basic provisions for Russian

11 bankruptcy law: the first is that any claim against the

12 company may be brought after the institution of

13 the bankruptcy against the company, may be brought only

14 within the bankruptcy situation. The bankruptcy law

15 doesn’t say anything about any third party.

16 So if a company is declared bankrupt, any claims

17 against the company itself may be brought against only

18 in the bankruptcy court. This is the first principle.

19 The second principle, that in order to satisfy

20 creditors, because he, in the final analysis, a trustee

21 or receiver is appointed by a court but he is answerable

22 by creditors, is controlled by them. The trustee or

23 receiver is under the primary obligation to collect the

24 assets as to satisfy the creditors.

25 So those are two things which are unexceptional.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

73 :1 Now, can you read to it, for example, a bankruptcy

2 was caused by a tortious intervention of a state?

3 A state under Russian law, under Russian Civil Code, is

4 liable for harm done to private parties. So a state,

5 through tortious intervention, improper action, brings

6 the company to bankruptcy, and a shareholder, after the

7 bankruptcy, is left with nothing, his shares are

8 diminished. Can he sue the state? The answer is yes.

9 Q. Well, I may have to come back to that, but I think your

10 earlier answer, when I asked you whether a shareholder

11 could claim for his own loss due to diminution in value

12 of his shareholding, I asked whether that could still be

13 brought even where a company is in liquidation, and you

14 said no, and I think what you went on to say was because

15 the bankruptcy is, in effect, an intervening thing. The

16 insolvency regime gives a complete cover out, you said,

17 so a complete answer, to the claims that have to be

18 brought in that situation; is that right?

19 A. He cannot bring the claim against the company itself,

20 because, as I said —

21 Q. Sorry, in which case I am misunderstanding. I’m not

22 talking about the shareholder bringing a claim against

23 the company itself, we are talking about — in this

24 whole topic we are talking about the shareholder

25 bringing a claim against another party that has caused

74 :1 loss to the company?

2 A. There is nothing in the bankruptcy law that addresses

3 the issue. As I said, the bankruptcy laws are based on

4 the issue that any claims against the debtor can be

5 brought only within the bankruptcy context.

6 Q. Yes, well I am not asking about those. What I am asking

7 about is what your position is when the shareholder in

8 a company which is in bankruptcy seeks to bring his own

9 claim for what he says is a diminution in value of his

10 shareholding against a third party that has caused loss

11 or damage to the company in which he has his

12 shareholdings, and I am just asking about when that

13 company is in liquidation, is your answer still: there

14 can be such a claim, or there can’t be such a claim?

15 A. I think as a practical — first, as a matter of

16 principle, and then I will qualify. As a matter of

17 principle, I don’t see any Russian rule, unless you can

18 identify one for me, which would bar such a claim.

19 As a practical matter, though, such a claim, if

20 a shareholder would bring such a claim in the Russian

21 court during the bankruptcy proceedings, it will be

22 stayed until bankruptcy proceedings are over, because

23 the Russian courts would — it would be sort of

24 lis pendens for a Russian court, and Russian court would

25 like to see the facts of the case as they emerge from

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

75 :1 the bankruptcy court and whether or not any

2 circumstances that might influence the posterior case

3 would surface during the bankruptcy proceedings and most

4 importantly, whether or not the shareholder got his

5 claim — got his harm restored or if he has not.

6 Q. You say after the completion of the bankruptcy

7 proceedings, a shareholder could then bring a claim for

8 loss in diminution of value of his shareholding, do you?

9 A. On facts, if there are — as I said, for example, if the

10 bankruptcy proceedings were caused artificially by

11 malicious conduct of the State, this is precisely caught

12 by the Russian Civil Code.

13 Q. Fine. That’s one example. But if we are in another

14 scenario, so where it is not caused artificially by

15 malicious conduct of the State?

16 A. If, for example, it was caught artificially by

17 a malicious cause, by a malicious behaviour of a more

18 powerful competitor, abusing of anti-monopoly laws,

19 contrary to it, I don’t see why such a claim cannot be

20 brought.

21 Q. But outside those two scenarios, do you say a claim

22 could be brought?

23 A. If there is a wrongful and harmful behaviour of a third

24 party, that would cause such a bankruptcy, then yes.

25 Q. So let me understand. That sounds rather a wide

76 :1 principle, so if a third party has wrongfully harmed the

2 company such as to cause its bankruptcy —

3 A. Yes.

4 Q. — then you say the shareholder can sue that party

5 directly after the bankruptcy has finished, do you?

6 A. Yes. If within his bankruptcy his harm has not

7 restored. But if a third party, private or public, and

8 under Article 124 of the Russian Civil Code, a public

9 entity acts in civil relationship on an equal footing

10 with private companies, so if a third party by its

11 malicious, unlawful behaviour causes in this supposition

12 bankruptcy of a company, then I don’t see why

13 a shareholder cannot bring a claim in tort against such

14 a third entity.

15 Q. Because, you see, Professor Maggs explains that when

16 a company is in liquidation, the proper party to bring

17 a claim for a tort caused to the company is the

18 liquidation administrator. The claim belongs to

19 the company and should be realised for the benefit of

20 all the company’s creditors, including, perhaps, its

21 employees, and only if a surplus remains on the end does

22 it go to the shareholders; that is right as a matter of

23 principle, isn’t it?

24 A. Yes, it is the right amount of principle, and that is

25 precisely why I say that one should wait until the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

77 :1 bankruptcy proceedings are over to see if the receiver

2 or trustee has, indeed, brought such a claim; that

3 he has, indeed, fulfilled his duties properly and has

4 brought a claim against the malicious third party; that

5 he made his best to pursue his claim in a proper manner,

6 and then afterwards what was left properly satisfied the

7 harm done to the shareholder. This is what I’m saying.

8 Q. I see. So your analysis requires an investigation to be

9 done into whether the bankruptcy administrator has, in

10 fact, fulfilled his duties properly?

11 A. It may be one of the factors that would confirm whether

12 or not there is an amount of harm left uncompensated

13 and, as we have discussed it today under articles 15 and

14 1064, all harm must be satisfied in full unless there is

15 contract or statute to the contract.

16 Q. As Professor Maggs explains, there are various rules

17 that govern the role of the bankruptcy administrator.

18 A. Yes.

19 Q. He has to conduct the bankruptcy proceedings in

20 accordance with the bankruptcy law, and if he violates

21 it, the affected party can complain to the bankruptcy

22 court supervising the proceedings.

23 A. Yes, and this is often done, I agree with

24 Professor Maggs on it. However, Professor Maggs says

25 this without regard to Article 12 of the Civil Code,

78 :1 which we have just discussed this morning. Article 12

2 provides an absolute right of choice of remedies and, as

3 I have provided examples in my report, Russian courts

4 confirm that unless there is a specific statutory

5 prohibition to bring a particular remedy to court, then

6 the party is absolutely in his right to choose any

7 remedy which he saw fit under Article 12.

8 So, for example, if a party considers that its

9 interests are best served by presenting a claim in tort,

10 which is precisely listed as a separate remedy under

11 Article 12, rather than taking an administrative action

12 against a trustee in a court, then Article 12 will

13 specifically allow him on the principle of a choice of

14 remedies.

15 Unless the law on bankruptcy would specifically

16 prohibit such a cause of action which, as a matter of

17 fact, Russian law of bankruptcy does not.

18 Q. And just testing it a bit further, if you were to bring

19 a claim where the company is in, or has been in

20 bankruptcy for a diminution in value of your

21 shareholding, it is not as simple, is it, as saying:

22 there was a loss done to the company, therefore I have

23 suffered a loss as a shareholder. Wouldn’t you have to

24 track through what the other liabilities of the company

25 were, the other claims on the company, in particular,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

79 :1 those that had priority to your claims and, indeed,

2 those that have the same priorities as your claims in

3 order to work out whether there would have been any

4 shareholder value left over, even if the claim had been

5 pursued?

6 A. I think we are mixing here different issues. For me, as

7 a Russian lawyer, this is precisely why I said this

8 would be lis pendens for any Russian court that would be

9 engaged to entertain the claim. So the Russian court

10 would first like to see the proceeds of the bankruptcy,

11 how it will end it, whether or not — what is the

12 factual matrix, whether or not the harm has been

13 satisfied; indeed, whether the harm has been done to

14 the shareholder in the form of the diminution of value

15 of his shares due to the action of this hypothetical

16 malicious third party, or not by, for example, economic

17 misconduct of the general director of the company

18 itself; and it would like to see the causal connection

19 direct in the sense, as Professor Maggs and Mr Egorov

20 understand it, as a chain, which may be a long chain,

21 but still a chain of causal events leading to

22 the diminution of value of the shares or the

23 shareholding.

24 Q. And all those steps would have to be gone through,

25 wouldn’t they, in order to prove whether the shareholder

80 :1 actually had suffered any loss? I mean, take an example

2 where the shareholder who is making the claim is

3 a shareholder in a holding company.

4 A. Yes.

5 Q. And that company held shares in a lower subsidiary

6 company, and the, if you like, original loss was done to

7 the subsidiary company, say it was the holding company

8 that was in liquidation. I mean, it’s quite a long

9 chain to go through to work out whether, actually, the

10 shareholder in the top company suffered any loss. You

11 would have to prove the various debts and competing

12 claims on each of the two companies in the chain,

13 wouldn’t you, to work out whether actually there is any

14 value at the end of the day?

15 A. Well, what it amounts to, I’m saying — you are saying,

16 correct me if I am wrong, is that there are certain

17 facts to be considered before proceeding which has very

18 little to do with whether or not such a claim would be

19 prohibited as a matter of principle under the Russian

20 law, which it is not.

21 Yes, there will be facts to consider, and of course,

22 it is decided on facts.

23 Q. And we, standing here, are speculating, rather, how this

24 would all work, and the answer is — the reason is

25 because there aren’t particular cases, indeed,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

81 :1 Professor Maggs says he has seen no case where

2 a shareholder recovered from a tortfeasor either during

3 the liquidation process during which the alleged tort

4 victim was being wound up, or thereafter. He hasn’t

5 seen any cases where a shareholder has recovered in

6 these situations —

7 A. Yes, I understand Professor Maggs, he comes from the

8 United States jurisdiction which has a long story of

9 interpretive precedents of its own, and if in need it

10 will take upon English precedents from preceding

11 centuries, and of course it is frustrating to see

12 a quite young system where in 20 years the courts has

13 not come around to covering every imaginable area with

14 cogent case law. So that’s the situation, but this is

15 the continental system and judges are required to

16 proceed from the first principle.

17 But the answer may be — I apologise for the long

18 speeches, but the answer to your question is: yes, there

19 is no such case which I have identified.

20 Q. And unless one applies the rules quite carefully,

21 especially in relation to an insolvent company, there is

22 a risk of one particular shareholder jumping the queue,

23 or gaining priority over another shareholder or

24 creditors of the company if this sort of claim is

25 allowed, wouldn’t you say?

82 :1 A. I think, yes, it might be a consideration. If we are

2 talking about satisfaction of the diminution of

3 the claim from the proceeds of the company, because the

4 bankruptcy proceedings is about satisfaction of — at

5 least in Russia — satisfaction of a claim of a creditor

6 and if anything left for shareholder out of the property

7 and assets of the company. However, if in the

8 hypothetical that we are considering, if a malicious

9 third party has caused such a harm to the company that

10 there is no assets to go round to satisfy the harm that

11 has been done to the shareholding of an individual

12 shareholder, I don’t see how the issue of priorities

13 between the shareholders are coming to it.

14 A shareholder is bringing a claim against

15 a malicious third party. It brings a claim — the

16 company does not exist any longer. He brings a claim

17 for the compensation of harm done to him, to his shares,

18 and I don’t see how the issue of priority of any other

19 creditor gets into play because he is just claiming the

20 value of his shares.

21 All the claims of creditors has been extinguished in

22 the bankruptcy, since the bankruptcy has been wound up

23 already. Under Russian law there will be no claim of

24 creditors in this case.

25 Q. But in order to show that he suffered harm and that was

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

83 :1 caused, he has to take account, hasn’t he, of

2 the various debts of the company that would have to be

3 reflected in the company’s accounts if it was solvent or

4 in the bankruptcy if it was insolvent to work out

5 whether there would be any surplus on the insolvency.

6 Those all have to be taken into account, don’t they?

7 A. Yes, it would be taking the debts of the company and

8 probably what caused those debts, whether or not they

9 were acquired by the management of the company, or

10 probably through the interference of a malicious third,

11 hypothetical, party.

12 Q. And if your chain of shareholdings is a bit longer, and

13 if your claimant is actually not a shareholder in

14 a company but is a beneficiary under a trust, say

15 an offshore trust, and it is that trust that then holds

16 the shares in some holding company, that is an even more

17 remote connection and even more difficult to prove the

18 loss, isn’t it? You certainly have to prove how the

19 beneficiary held his interest under the trust and how

20 that loss would have been suffered, wouldn’t you?

21 A. I think — well, it’s a matter of factual argument.

22 Q. And, actually, if it’s a trust, wouldn’t there be a more

23 fundamental problem which is that trusts aren’t

24 recognised under Russian law so you would have to have

25 the legal owner, as we say in English law, bringing any

84 :1 claim?

2 A. I think that is not entirely right. I think currently

3 Russian courts more and more recognise a trust as

4 a specific form recognised in the foreign law. So

5 I haven’t produced an opinion on this matter, but I do

6 remember that in the recent cases, trusts have been

7 analysed under the Russian law, just as a bundle of

8 rights arising out of a legitimate foreign jurisdiction.

9 So it’s not that Russian — Russian — I would say that

10 Russian law doesn’t know by itself any trusts. There

11 was an attempt to introduce a trust-like structure,

12 which hasn’t been sitting very well with the basics of

13 the Russian law, but Russian courts would deal with

14 foreign trusts as a set of foreign rights that would

15 have to be proven as a matter of fact on expert evidence

16 in the Russian court, and that’s I think how it has been

17 approached.

18 Q. Then can I just finish off on this topic with two

19 points. One, could I ask you to look at

20 Professor Maggs’ report, please.

21 A. Yes.

22 Q. At paragraph 299. That’s {E2-E3/12/71}.

23 A. Yes.

24 Q. He has previously talked about derivative actions, and

25 he says:

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

85 :1 «There is a general rule of Russian law that does

2 not allow a shareholder of a company to recover for harm

3 caused to the company itself.»

4 That’s the general rule we have been discussing. He

5 says:

6 «The existence of this general rule is shown by the

7 need felt by the drafters of the Civil Code to make

8 a specific exception in paragraph 3 of Article 105 of

9 the Code.»

10 That sets out:

11 «The participants in (or stockholders of)

12 a subsidiary company shall have the right to claim

13 compensation by the principal company (or partnership)

14 for losses caused by its fault to the subsidiary

15 company, unless otherwise established by the statutes on

16 business companies.»

17 A. I’m sorry, where is the prohibition?

18 Q. I’m sorry?

19 A. Where is the prohibition?

20 Q. Sorry, you are asking me a rhetorical question?

21 A. Yes, because you are putting it to me. So the general

22 rule does not allow the shareholder of a company to

23 recover for harm caused to the company itself:

24 «The participants [or shareholders] of a subsidiary

25 company shall have the right to claim compensation by

86 :1 the principal company … for losses caused by its fault

2 to the subsidiary company, unless otherwise established

3 by the statutes on business companies.»

4 Yes, so?

5 Q. This is a specific derivative action that is committed

6 because otherwise the shareholder would not have

7 a remedy; isn’t that why it’s there?

8 A. I think Article 105 is a complex article. Can I have it

9 in its entirety before me, because it is only a third

10 thing, and I would provide you with a more full answer.

11 Q. I don’t know if we have it.

12 A. It’s not quite …

13 Q. I don’t know if you have put it in your report in

14 responding to this. I will have a look.

15 A. Perhaps we might locate Article 105 because it is

16 a complex article which has been subject to various

17 interpretations.

18 Q. Well, let me just put the point to you. I don’t think

19 you did set this out in your report.

20 Professor Maggs’ point, I think we can take from

21 paragraph 308 on page 73 here. { E2-E3/12/73}.

22 A. Yes.

23 Q. He explains this is a derivative claim brought in the

24 name of the company, it is not a reflective loss claim

25 and his point is simply if the shareholders had the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

87 :1 right to bring the suits to recover reflective loss

2 themselves, this provision would be unnecessary, and

3 I think that’s the short point that is made. Do you

4 accept that?

5 A. No. I think what it is here is just an underscore.

6 Article 105, this is why I asked for it. Article 105

7 deals with a specific set of issues. Article 105

8 establishes the principle of relationship between

9 a parent company and a subsidiary company, and it

10 provides, for example, for a piercing of a corporate

11 veil and for instances where a parent company may be

12 liable before third parties for transactions entered

13 into by a subsidiary, one of the things.

14 The second thing, it says that within the general

15 context of a parent company and subsidiary company,

16 there is such a cause of action. So what it doesn’t

17 say, it doesn’t say what is required under the Russian

18 law. It doesn’t say that any, what you call reflective

19 loss, or any other loss by any other artificially

20 imposed construct, is not allowed in under the Russian

21 law. It doesn’t say there is a principle.

22 What it provides for is something quite different.

23 It says that if I am a subsidiary and if I am a parent

24 company, I can escape this liability by providing

25 an escape clause in my business charter, so on the

88 :1 contrary, it sets a narrow exception from a general

2 reflective loss claim. It says: I may derogate from

3 this principle if I put in my charter something to this

4 effect. So this is what it says.

5 It is not one exception that’s allowed. This is

6 allowing a very narrow exception from a general

7 principle that you may pursue.

8 Q. Well, I think the point is not that this creates

9 an exception to the reflective loss rule, but that it

10 provides a cause of action that wouldn’t be required if

11 you were right that this sort of loss could be recovered

12 as a shareholder loss?

13 A. No, I emphatically disagree. What it says, that you can

14 derogate from the principle by contract, because as we

15 have seen yesterday, and under the Russian law there is

16 no principle that a special law prevails over the

17 general law. The Civil Code establishes its own

18 hierarchy. For example, a peremptory principle, every

19 harm must be compensated in full unless there is a

20 contract to the contrary. This is very important. You

21 might have a contract which is a carve-out of

22 the general principle of the general harm, but then you

23 have, for example, Article 1095, the liability — the

24 consumer protection, which says: no, you cannot, in case

25 of liability of consumer protection, you cannot derogate

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

89 :1 from it by contract. So it’s a strict liability and the

2 exception of Article 15 doesn’t apply in consumer

3 relations.

4 So here we have the typical legislative technique of

5 a Russian legislator who says in relationship between

6 parent, subsidiary, shareholder, parent may escape

7 liability if it inserts certain language into the

8 statutory documents, into the charter. So this is what

9 it does. It does not do the thing that Professor Maggs

10 says.

11 Q. And I think the last point on reflective loss is you

12 seek to derive some support for your position from the

13 federal law on foreign investments.

14 A. I do.

15 Q. Which provides a right to compensation for damages in

16 accordance with the civil laws of the Russian

17 Federation. You point out that shares, amongst other

18 things, can be investments, and you rely on Article 5.2.

19 But as Professor Maggs explained yesterday, that simply

20 supplies a right to national treatment, doesn’t it? In

21 other words, to be able to claim in the same way as

22 a national company under the laws of Russia?

23 A. No, that’s not correct. National treatment is described

24 elsewhere. National treatment is essentially in the

25 procedural laws of the Russian Federation. Russian

90 :1 Federation has national — sorry, in the Russian

2 Federation the national treatment of foreign companies

3 and foreign citizens in Russia is enshrined in

4 procedural statutes in the code of Arbitrazh procedure,

5 and in the code of civil procedure. There you have the

6 right to go to court.

7 Here what it says, it says some quite differently.

8 It says you may bring a claim for the diminution of

9 shares, which is defined as an investment. Under the —

10 Q. I don’t think it does say that, does it? It doesn’t say

11 you may bring a claim for the diminution of shares?

12 A. No, but it says the shares are included by reference

13 because of the definition of an investment.

14 Q. Shares are one of the form of investment that this

15 covers, and Article 5.2 says the foreign investor can

16 claim damages as a result of unlawful actions under the

17 civil legislation of the Russian Federation. So it

18 doesn’t say anything about the types of damage, it just

19 says you are in the same position as everyone else,

20 doesn’t it? You can take advantage of the laws.

21 In other words, insofar as particular loss might

22 normally be recoverable, so you can recover it, but it

23 doesn’t tell you, does it, whether reflective loss is or

24 is not normally recoverable?

25 A. Can I have the text of the investment law before me?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

91 :1 Q. Yes. It is in {E4/14.1/289}, Article 5 you rely on is

2 {E4/14.1/302}. That’s in the English. If you want the

3 Russian it will be {E4/14.1/289}.

4 A. Yes, it says that the investor has the right to

5 compensate to any harm compensated to him, and

6 «investor» is defined as an entity that makes

7 investments and «investments» are defined as shares. So

8 I don’t see how you can interpret away the fact that if

9 you diminish the value of the shares, you have recourse

10 under civil laws of Russia.

11 Q. The investments aren’t just shares, are they? They are

12 the investments in an object of entrepreneurial

13 activity. They can include money, securities, other

14 property, rights in rem, exclusive rights to results of

15 intellectual activities and so on.

16 So there could be all sorts of different ways you

17 could invest, different ways you could suffer harm, and

18 this is just saying you can recover them under Russian

19 law. It doesn’t add to the debate about reflective loss

20 at all, does it?

21 A. No, it says that investment is shares, among other

22 things, but it can be shares.

23 Q. It could be.

24 A. It could be shares. So if you are harmed through the

25 diminution of the value of your shares, I don’t see how

92 :1 you can argue how an investor protection may be refused

2 by saying that by confiscating your shares or by

3 diminishing the value of your shares by harming the

4 company you are not entitled for compensation under this

5 law and under the Russian law, and essentially it says

6 that under the civil laws of Russia, it says: we don’t

7 have to adopt any other laws. This is a guarantee,

8 a comfort for foreign investors, that the regime is

9 already in place.

10 Q. Yes, I mean it says: you can recover insofar as you can

11 recover under the law, doesn’t it? It doesn’t give you

12 any additional protection?

13 A. No, it doesn’t give you an additional — and this is

14 exactly the point. It doesn’t give you an additional

15 protection. It says the protection for your harm — for

16 your claim to compensate harm to your investment,

17 probably in the way of diminution of shares, is already

18 in the Russian law. It doesn’t give additional

19 protection. It assures that the comfort is there.

20 MR BIRT: Well, we have to disagree, I think, about that.

21 My Lord, I have come to the end of that topic. I am

22 sorry we have slightly run past 1.00.

23 MR JUSTICE HILDYARD: At the risk of just one further delay,

24 can I just ask clarification as to this witness’s

25 understanding of paragraph 3 of Article 105 of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

93 :1 the Code —

2 A. Yes.

3 MR JUSTICE HILDYARD: — which we were looking at.

4 A. Yes.

5 MR JUSTICE HILDYARD: That’s a claim in respect of damage

6 done to the subsidiary company through the fault of

7 the principal company —

8 A. That’s correct.

9 MR JUSTICE HILDYARD: — the holding company. In a claim

10 under that paragraph by a participant or stockholder,

11 would the compensation be payable to the stockholder or

12 to the parent company?

13 A. To the stockholder.

14 MR JUSTICE HILDYARD: If that is so, would you consider that

15 to be a derivative process or a direct claim?

16 A. My Lord, I don’t know. Russian law doesn’t — from the

17 point of view of the Russian law, I don’t know. It is

18 a clear indication that you can recover from the parent

19 company for the harm done to your shares through damage

20 to the intervening subsidiary.

21 For me as a Russian lawyer, the main point here —

22 well, first of all, Article 105, this is why I asked for

23 the whole text. Article 105 is just article which is

24 more or less entirely describes the relationship between

25 parent and subsidiary as relevant for third parties,

94 :1 including shareholders. So the Russian legislator saw

2 it fit to include this particular regime alongside with

3 the regime if you look at paragraph 2 of Article 105 it

4 will be piercing of corporate veil. So that is to say,

5 the parent company would be liable under the

6 transactions concluded by a subsidiary under binding

7 instructions of the parent company.

8 So, for example, if a parent company commands me as

9 a subsidiary to enter into a contract with a third

10 party, and the subsidiary is impecunious, the third

11 party will have a direct recourse to the parent company.

12 This is the second paragraph.

13 The third paragraph takes another aspect of

14 the relationship, the Russian legislator just covers old

15 grounds between parent and subsidiary, and it says: and,

16 by the way, we are not leaving shareholders from the

17 equation. However, the parent company might have

18 a defence against it if he cares from the beginning to

19 insert a particular clause in the charter of

20 the subsidiary company.

21 MR JUSTICE HILDYARD: Thank you. Yes.

22 MR BIRT: But, for what it is worth, I think

23 Professor Maggs’ report, paragraph 308, sets out his

24 view, anyway, that it’s a derivative claim brought in

25 the name of the company that suffered the loss, my

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

95 :1 understanding of that is that it’s the company that

2 would take the benefit of the claim, and I’ve also —

3 MR JUSTICE HILDYARD: Well, which company?

4 MR BIRT: The subsidiary company.

5 MR JUSTICE HILDYARD: The subsidiary company takes the

6 benefit of the claim?

7 MR BIRT: My Lord, yes.

8 MR JUSTICE HILDYARD: So the wrongdoing parent company gets

9 the benefit?

10 MR BIRT: Well, it’s brought at the instigation of

11 a shareholder in the subsidiary company, so they get the

12 benefit through that route, my Lord. That’s my

13 understanding.

14 MR JUSTICE HILDYARD: Thank you. Very good. Well, that is

15 reflective loss done, is it?

16 MR BIRT: It is, my Lord, yes.

17 MR JUSTICE HILDYARD: If I say 2.10 pm, does that suit? How

18 anxious are you on timing?

19 MR BIRT: I will be frank, my Lord, I am doing my best to —

20 MR JUSTICE HILDYARD: No, I am not saying that —

21 MR BIRT: — try and complete today, and no doubt it is in

22 everybody’s interests. I know Mr Milner — I don’t know

23 what his arrangements are, but he may or may not be in

24 the same boat for tomorrow, but I will do my best to

25 finish today. I think there probably are a good couple

96 :1 of hours, certainly, maybe a bit longer. I am sort

2 of — I’m not being very precise, my Lord, because

3 I don’t know how quickly I will go.

4 MR JUSTICE HILDYARD: No, no, I understand. It is

5 impossible to be precise. I am not saying you are not

6 doing your best.

7 MR BIRT: I think I am on the cusp, as it were, and I might

8 finish by 4.30. I hope to. It might go on a bit

9 longer. I am happy to start at 2.10 pm. That may come

10 out the other end.

11 MR JUSTICE HILDYARD: How are you placed tomorrow?

12 MR MILNER: My Lord, I do have another hearing tomorrow but

13 I have asked for it to be listed in the afternoon,

14 mindful that we might run on to tomorrow. I would,

15 therefore, need to finish by tomorrow afternoon.

16 Obviously if we could finish today, that would be

17 excellent, but it takes as long as it takes so I can be

18 here tomorrow morning.

19 MR JUSTICE HILDYARD: Well five minutes isn’t going to make

20 a difference one way or the other. We will sit at

21 2.10 pm. We will go on as long as we sensibly can, but

22 not past 4.45 or 5.00. If everyone is feeling jaded

23 earlier, then we will have to sit during the course of

24 tomorrow morning, and I appreciate it is quite tough

25 cross-examining on a foreign law. It is also quite

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

97 :1 tough answering questions on a foreign law.
2 (1.16 pm)
3 (The Luncheon Adjournment)

4 (2.10 pm)

5 MR BIRT: Dr Gladyshev, I’m going to ask you some questions

6 now about liability for jointly caused harm under

7 Article 1080.

8 A. Yes.

9 Q. And I think the topics we are going to move on to now,

10 hopefully there will be a little less disagreement

11 between you and Professor Maggs, we have done some more

12 controversial ones. So I just want to establish some

13 common ground and then look at one of the cases you

14 refer to.

15 It is agreed between you, isn’t it, there are no

16 separate nominate torts in Russian law; the claims in

17 tort all fall under Article 1064?

18 A. Yes.

19 Q. And Article 1080, which provides for a form of joint

20 liability, you say would apply to cases that can be

21 identified as conspiracy. What I understand that to

22 mean is you aren’t saying that Article 1080 is the same

23 as or equivalent to English law conspiracy, but that

24 some cases which would be an English law conspiracy fall

25 under Article 1080, would fit the requirements of 1080;

98 :1 is that right? You don’t say they are exactly

2 co-terminate?

3 A. I am afraid I have to plead agnostic on this. I am not

4 sure about what is the English concept of conspiracy.

5 Q. That’s fine. It’s just you used the phrase «conspiracy»

6 in your report?

7 A. But for a good reason.

8 Q. Yes, yes, and we will come to that, but I just want to

9 check that when you use it in your report you are not

10 seeking to describe the English law of conspiracy by

11 using that phrase?

12 A. I don’t have this in mind, definitely.

13 Q. That’s fine.

14 Can we just pick up from Professor Maggs’ report the

15 text of 1080, and we can look at it in the supplemental

16 report at page {E4/13/6}, I think. It’s there at the

17 end of the page and it goes over to the next page as

18 well. Perhaps we could just bring the top of the next

19 page up as well {E4/13/7}:

20 «Persons who have jointly caused harm shall be

21 liable jointly and severally to the victim.»

22 Professor Maggs’ proposition, he explains there at

23 paragraph 25:

24 » … what this means is that each person liable

25 under Article 1080 must have engaged in conduct

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

99 :1 actionable under Article 1064, ie must have been a cause

2 of part of the harm to the victim.»

3 I think that is something you agree with, isn’t it?

4 A. No. I think what Professor Maggs means here is that you

5 can bring a claim under Article 1080 only if you can

6 bring a separate claim under 1064 against each of

7 the joint tortfeasors under 1080, and I don’t think this

8 is necessarily the case.

9 Q. I think what Professor Maggs is saying is that each —

10 let’s use the word «conspirator» for a shorthand — has

11 to have taken some action that causes at least part of

12 the harm; that’s right, isn’t it?

13 A. Yes, to the extent that we define the action in

14 a mutually acceptable manner, and here the word

15 «conspiracy» comes in handy.

16 In my supplemental report I refer to

17 Professor Osakwe, who helpfully provided some historical

18 background, what conspiracy means and how the issue of

19 tort is regarded in Russia, and he said that in Russia

20 the regime of tort has some historical dependence on the

21 conceptual framework of criminal law, and the example

22 that I gave in my original report is of a conspiracy and

23 the court, the highest Arbitrazh court, labels it

24 a conspiracy. Under Russian criminal law conspiracy,

25 under Article 30 of the Criminal Code, is creating

100 :1 conditions for a crime. So if you take part in creating

2 conditions for a crime, then which — sorry, in

3 the wrongdoing, that eventually results in harm, then

4 you are caught by Article 1080, and the example that

5 Mr Milner gave the first day of this when he said that:

6 if I drive a car to a robbery of a bank, I will be

7 liable under 1080.

8 Q. Yes, I think there is not much between us. It may be

9 that I have formulated it badly, but your formulation is

10 if you take a part in creating the conditions, in

11 a sense — in a sense, if you — let me come at this

12 a different way, and we will come back to what Mr Milner

13 said yesterday.

14 Perhaps we can put it like this: What 1080 brings

15 to things is essentially that where the condition for

16 joint liability is satisfied, each of the tortfeasors is

17 then jointly and severally liable for the whole loss,

18 assuming the joint liability, and we will come back to

19 how you get there.

20 A. No, I don’t think so. Well, it depends on your turn of

21 phrase. It will be liable for the whole loss, even

22 though he didn’t cause the whole loss.

23 Q. Yes.

24 A. Yes, that’s correct. And also there is an issue of

25 causality, as the highest Arbitrazh court explained and

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

101 :1 as academics commented on the explanation, if you

2 conspire and if you plan for the cause of action that

3 results eventually in a harm, then you are liable under

4 Article 1080. So if you drive a car, you are not

5 necessarily, but you are caught.

6 Q. Yes. Perhaps, actually, your suggestion of looking at

7 the exchange yesterday is as good a way as any just to

8 see if we can cut through this. Could we have a look at

9 yesterday’s transcript, so it is {Day41/8:1}, please.

10 This is Mr Milner clarifying the effect of Article 1080

11 with Professor Maggs.

12 A. Yes.

13 Q. He says:

14 «Question: … is it … a question of fact for the

15 court as to whether each person’s participation is

16 sufficiently significant —»

17 A. Sorry, on which?

18 Q. I am just starting at line 2 on page 8 of

19 the transcript.

20 A. At line 2, yes:

21 «Question: «Where you have a number of people …»

22 Q. Yes:

23 «Question: … who jointly cause harm to the

24 claimant, is it, again a question of fact for the court

25 as to whether each person’s participation is

102 :1 sufficiently significant to make it appropriate that

2 they should be held liable?»

3 Professor Maggs says:

4 «Answer: Well, it’s not a question of

5 appropriateness … it’s a question of causation. Did

6 each person in some way contribute to causing the harm?

7 If a person didn’t contribute at all to causing the

8 harm, then he would not be covered by 1080.»

9 Mr Milner says:

10 «Question: Yes, I see. So you have to look at what

11 acts each defendant committed and whether they played

12 a sufficiently important role in the causal chain that

13 led to the harm; is that right?»

14 Can we just pause there. You would agree with that

15 proposition, I suspect, the way Mr Milner formulated it

16 there?

17 A. Yes.

18 Q. And Professor Maggs’ answer:

19 «Answer: … you look at it the same way as you do

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

21 «Question: … but if the defendant’s actions in

22 and of themselves have not caused harm, but the

23 defendant acts in concert with other people with the

24 intention that jointly they will all cause harm, that

25 would be sufficient, wouldn’t it?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

103 :1 «Answer: Well, the intent is not sufficient; it has

2 to be that the two actions together in some way jointly

3 caused harm.»

4 I think you would agree with that as well, wouldn’t

5 you?

6 A. Sorry?

7 Q. I think you would agree with that as well?

8 A. Not quite. Professor Maggs says the intent is not

9 sufficient. According to the authorities that I cite,

10 intent is not even necessary, and in some cases,

11 negligence may be quite sufficient, and the point which,

12 perhaps, I agree, to the extent that we make clear that

13 under Article 1080 it is not necessarily to find each

14 and every joint tortfeasor as separately liable under

15 Article 1064, which Russian authorities stress.

16 Q. No. I take your point about intent. I think the point

17 Professor Maggs was saying is it’s not the state of

18 mind, that’s not sufficient, but the two actions

19 together in some way jointly caused the harm.

20 A. Well, if you are saying, just to save the time, if you

21 are saying that if I just sit there at the table and

22 become aware of the conspiracy and do nothing, or do not

23 commit a harmful omission, let’s say for completion,

24 them I am, of course, not liable.

25 Q. Yes.

104 :1 A. So I have noticed it and I thought you were worried

2 about it; that’s not the issue.

3 Q. Yes, I think we are getting to the same point. In other

4 words, if a party doesn’t do anything but simply forms

5 part of an agreement, so he may approve or agree with

6 what somebody else is doing but he hasn’t actually

7 participated in the action or contributed to the actions

8 himself, you don’t fall within 1080?

9 A. That would be decided on facts. There might be

10 an omission — I just give an example —

11 Q. Yes, sure.

12 A. — an example from an actual case in LCIA, under 1080.

13 A parent company deliberately decided not to convene

14 a general shareholder meeting in order not to give

15 an effect to a very important contract, which could have

16 been approved only by the general shareholder meeting.

17 But it was the statutory responsibility of the company

18 to convene this general shareholder meeting. So it was

19 a harmful omission.

20 Q. Yes.

21 A. It knew, and it sat there, and it did nothing, but

22 nonetheless it was liable.

23 Q. Quite right. If you have let’s call it an actionable

24 omission in that sense —

25 A. Yes, exactly.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

105 :1 Q. — then that counts as conduct or participation.

2 A. Or, for example, if you are under the statutory

3 obligation to inform about a crime and you know that

4 crime is not committed and by informing you could have

5 prevented the crime, then I might have a cause of action

6 against it.

7 Q. Yes, and again, that’s because your omission is sort of

8 in the face of an obligation for you to do something?

9 A. Yes, I think we are on the same page.

10 Q. Yes, fine.

11 We could probably take this from your report,

12 because I think it is uncontroversial. If we could look

13 at your supplemental — no, I think your first report.

14 I think that is a reference to {E4/14/19}, I am looking

15 at paragraph 81 at the end, and it goes over the page,

16 so if you could perhaps break the screen between the

17 two.

18 A. Yes.

19 Q. So this is what’s required for the combination between

20 the parties who are participating. The actions have to

21 be:

22 «… previously agreed upon, coordinated and aimed

23 at attaining the intended result common for all the

24 participants.»

25 A. That’s right.

106 :1 Q. I think we have cleared up your following paragraph 82

2 where you say at the end:

3 «Each participant in the conspiracy will be jointly

4 and severally liable under Article 1080 due to the mere

5 fact of its participation in the conspiracy.»

6 We shouldn’t read that to mean simply because it had

7 an agreement but it has to have participated in one of

8 the senses that you have explained, not necessarily —

9 by an action or by an actionable omission?

10 A. Yes, what the Russian law means by conspiracy, as I have

11 said, creating conditions for a crime.

12 Q. Yes.

13 A. They may not necessarily come victim directly, but it

14 creates conditions for a crime, like driving from the

15 scene of a crime, or analogous action in a civil

16 context.

17 Q. And you say in your supplemental report, perhaps we

18 should look at this, {E4/14.2/9}, paragraph … no,

19 actually, I think we have covered that.

20 Sorry, it is another page, paragraph 69,

21 {E4/14.2/11}.

22 A. Yes.

23 Q. You refer here to the respected Russian lawyer

24 Dr Ostanina:

25 » … summed up the established position on

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

107 :1 application of Article 1080.»

2 You then quote at paragraph 70, which is over the

3 page:

4 «She then proceeds to note that, according to

5 established Russian civil law doctrine:

6 «‘It is recognised that, in contrast to the criminal

7 law construct of co-participation, it is not necessary

8 that all (or even some) of the participants acted with

9 intent’.»

10 A. That’s correct. Negligence is sufficient under

11 Article 401 where negligence is defined.

12 Q. Perhaps we should just pick up the extract to put that

13 in context, that’s at {E4/14.3/78}. That particular

14 passage is at {E4/14.3/80}, and you can see roughly

15 three paragraphs from the top the point you have just

16 quoted:

17 «The civil law doctrine recognises that, in contrast

18 to the criminal law … it is not necessary that all (or

19 even some) of the participants act with an intent.»

20 A. I’m sorry, where are you?

21 Q. I’m reading from near the top of that page, it is about

22 the third indent.

23 A. «The civil law doctrine recognises that, in contrast to

24 the criminal law construct of co-participation it is not

25 necessary that all (or even some) of the participants

108 :1 act with an intent.»

2 Yes.

3 Q. Yes, and that’s the part you have quoted.

4 A. Yes.

5 Q. And then it goes on to explain:

6 «For civil law co-participation to arise, it might

7 suffice for two or more persons to commit negligent acts

8 and in known cases — even non-culpable misconduct

9 because joint actions by … persons inflict pecuniary

10 harm to third party rights and interests … result in

11 the single material outcome.»

12 A. Yes.

13 Q. And you could quite obviously having to have two people

14 who happen to be acted negligently who have caused the

15 same harm, they would have joint liability, that could

16 happen in Russian law, as in English law. That’s not

17 really in a conspiracy-type case, is it? That’s more

18 where you have a negligence case.

19 A. Not necessarily, I’m just thinking, conspiracy is

20 creating conditions for a crime, so if — or in this

21 particular context, it’s creating conditions for

22 a tortious harm. So if you are informed about a certain

23 conspiracy, you know what’s going on and carry on

24 nonetheless as if nothing happens, sort of carry out

25 your professional duties that in conjunction result in

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

109 :1 tortious harm, then you will be liable. That I think is

2 what Ostanina is saying.

3 Q. Yes, it may be in those circumstances one has to go back

4 and see whether you fulfil the test required by the case

5 or not. It may, as you said earlier, all depend on the

6 facts.

7 A. Yes.

8 Q. While we are here, can we just pick up the next page,

9 which is page 81.

10 A. Yes.

11 Q. And she says there {E4/14.3/81}, and again it is the

12 second indent down:

13 «I would like to note the specifics of an unlawful

14 act (or omission) in the event of harm caused by joint

15 actions of several parties. Uniformity …»

16 A. Sorry to interrupt. Where are we?

17 Q. We are on page 81 and I am in the second indent down,

18 and it starts:

19 «Not contesting this conclusion …»

20 The second sentence is:

21 «… uniformity, indivisible nature of harm should

22 not nevertheless lead one to discard the need to

23 identify direct rather than indirect causation between

24 an unlawful act by co-tortfeasors and resulting harm.»

25 A. Yes.

110 :1 Q. She is citing there from the Abova and Kabalkin book.

2 You would agree that still is part of the test?

3 A. Yes. As long as we understand as direct causation what

4 we understood alongside Professor Maggs and Egorov as

5 not immediate causation but perhaps uninterrupted, and

6 as long as we keep in mind that even direct causation

7 test is not a statutory law.

8 Q. I won’t revisit that, but yes, I understand your answer

9 in that context.

10 Okay, thank you very much. Could we move on to

11 another topic, please. I’m going to ask you about abuse

12 of rights, and again, this may be a topic where there is

13 not much between you and Professor Maggs in relation to

14 this. Could we just take it, to start with, from the

15 joint memorandum, please. So that’s {E4/15/17}. At

16 paragraph 102, and after explaining the current explicit

17 requirement and the prevailing opinion that that made

18 explicit a previously implicit requirement, you go on to

19 say:

20 «Even under the preceding version of the Civil Code

21 and Article 10, parties had an obligation not to act in

22 an abusive way, that is, dishonestly, to the detriment

23 of another party.»

24 A. Yes.

25 Q. That is your encapsulation, really, isn’t it, of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

111 :1 Article 10?

2 A. Yes. Not, perhaps, exhaustive encapsulation, but it is

3 for the purposes of the joint memorandum.

4 Q. Yes. And I’m going to pick up in a minute, you can note

5 it while we are here, your last sentence of 102, you

6 say:

7 «Depending on facts, failure to provide

8 an extension —»

9 By that I think you mean an extension of a loan

10 contract:

11 » … may be regarded as an abuse of right or

12 otherwise give rise to the obligation to compensate for

13 harm thus caused.»

14 I am going to come back to that in a minute when we

15 have just established some of the other points.

16 You run through a number of cases here and in your

17 supplemental report. I suspect we don’t need to go

18 through them because of a number of facts including what

19 was put to Professor Maggs, but if we could just pick up

20 in your supplemental report at {E4/14.2/21}, please.

21 Some of the conclusions you draw from one of these

22 cases, I just want to check with you, under

23 paragraph 140 —

24 A. Sorry, which paragraph are we on?

25 Q. I am just looking at what you say in relation to

112 :1 the case that you are describing on that page.

2 Paragraph 140, perhaps you could pick it up there, you

3 say one of the conclusions that court drew — this is

4 a case where there had been an allegedly low price for

5 the sale of some vessels, and you draw the conclusion at

6 140:

7 «… the mere fact of an alleged lower price is not

8 sufficient to apply Article 10.»

9 And you conclude in 142 that:

10 » … a Russian court, when applying Article 10,

11 would look not at discrete facts, that by themselves may

12 not necessarily evidence a bad faith, but at the

13 entirety of circumstances.»

14 A. Correct.

15 Q. You go on in 143 to say:

16 «Significantly, a conspiracy [in that case]… was

17 identified … as a sufficient ground to set aside a

18 contract on the basis of Article 10, although a mere

19 knowledge of the counterparty of the bad faith of …

20 managers would also have been sufficient.»

21 And you note in relation to this case in footnote 41

22 that:

23 «… Russian courts regard bad faith behaviour as

24 being synonymous with abuse of right.»

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

113 :1 Q. Would it be fair to say that the cases on abuse of right

2 that you have cited are generally falling into one of

3 a number of categories? One is where abuse of right was

4 used as a basis for negating the defence of lawful

5 action under Article 1064; two are cases which are

6 really sham contract cases, and; three are cases in

7 the bankruptcy context, often those are sham contracts

8 or similar, but not necessarily. Is that a sort of fair

9 summary of the categories of cases you have cited?

10 A. Yes, although the intention was not to provide discrete

11 categories of the cases. Russian courts regard

12 generally Article 10 applicable to any situation where

13 rights are present, any rights are eligible for abuse,

14 except there are exceptions. The two exceptions that

15 I know of is first, a state agency exercising its

16 rights, its public functions cannot be accused of abuse

17 of rights in the civil context, there are other

18 remedies. And second exception is that if there is

19 a valid vindication claim, when the claimant has a clear

20 title to the thing he demands from unlawful possession,

21 then abuse of right in this context is not a defence.

22 So those two are specific exceptions from

23 Article 10, which Russian courts have identified.

24 Q. Professor Maggs says that:

25 «Russian courts have not used the abuse of rights

114 :1 concept as the basis for preventing strict enforcement

2 of the terms of business-related contracts.»

3 So that a bank’s failure to agree an extension to

4 a loan agreement would not be an abuse of right; is that

5 something you agree with?

6 A. No, I don’t. There are two issues here. First, that

7 abuse of rights doesn’t happen in the context of

8 ordinary contracts, which I don’t agree with, and in my

9 supplemental report I provide additional examples when

10 the abuse of rights was taking place exactly in the area

11 of business — commercial relations and commercial

12 contracts.

13 As for the second fact, I would say that it would be

14 decided on facts, for the second limb.

15 Q. And if we just look at the position where a bank has

16 granted a loan and that loan is now repayable, so the

17 period for repayment has finished and the borrower will

18 be in default unless the bank grants an extension,

19 Professor Maggs has looked and found there is no

20 judicial practice whereby abuse of right can be used to

21 create a duty to grant an extension. I don’t think you

22 have found any judicial practice to that effect, have

23 you?

24 A. No, but as I have said, I found only two instances where

25 the abuse of rights has been rejected as — well, there

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

115 :1 are two instances where abuse of rights does not apply:

2 the public entities and vindication. I don’t see why

3 abuse of rights would not, on the facts, apply in this

4 particular case.

5 For example, the Bank provides a loan to a company,

6 and we have seen enough of the — during the Russian

7 crisis in 2008, that was sharp practices of the Russian

8 banks, sometimes subject to severe criticism and legal

9 action.

10 So a bank provides a loan to a company. The company

11 defaults for ten days, because there is an economic

12 downturn, and then the bank takes over the company

13 completely and just dissolves the business. Although by

14 a very quick bridge loan, it could have fixed the

15 situation, because there was a temporary cash flow

16 interruption, and that was regarded as an abuse of

17 right. I am talking about a specific case. I was an

18 expert witness in an extradition case in Cyprus in

19 respect of one of the persons thus suffered.

20 Q. That’s not a case you have cited in your report, is it?

21 A. No, it isn’t, but you just asked me a situation where

22 an extension of loan might be an abuse of right, and

23 I say this is a hypothetical where we can —

24 Q. Oh, I see, that’s a hypothetical. Very good.

25 A. It was an actual case, but since I don’t cite it, it

116 :1 might be regarded as hypothetical.

2 Q. So can I just get clear what you are saying. You would

3 say that there would be, effectively, a positive

4 obligation on the bank in your hypothesis, or case, to

5 grant the bridging loan?

6 A. No, I would say that the right — not granting

7 a bridging loan is, of course, the right of the bank.

8 The bank is entitled not to grant the loan. As any

9 right, it is capable of being abused on facts. For

10 example, if the bank creates a situation — just let’s

11 take another hypothetical. A company has accounts in

12 banks. The bank provides a loan, but that bank blocks

13 accounts of the company and there is no cash flow to

14 the company, and the bank refuses to extend the loan.

15 Q. Well, yes, I mean, the really material facts are

16 different ones there. That’s the blocking of

17 the accounts, isn’t it, effectively?

18 A. Yes, but not perhaps by direct action but by blocking

19 accounts of, let’s say, a client of the company. So

20 I don’t block your account, I block the accounts of your

21 clients, so you have an interruption of cash flow, and

22 then I say I won’t give you the loan and I’m not hurting

23 you directly.

24 Again, maybe not a perfect example, but we can —

25 the point is that any right apart from those identified

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

117 :1 by Russian courts is capable of being abused.

2 Article 10 again applies across the board. There is no

3 restriction on the right as regarded the loan.

4 Q. Isn’t the problem with your analysis the classification

5 or the characterisation of what you call the right not

6 to grant a loan —

7 A. Yes.

8 Q. — is a right that’s being protected. It’s not

9 really — I mean, obviously the bank can grant whatever

10 loans it likes, but surely the Civil Code cannot compel

11 it to grant a loan?

12 A. Yes, because the bank has the ownership right to it,

13 which includes the right to dispose of the money the

14 bank has at its own discretion. So my right to dispose

15 of my property is the right inherent in my ownership of

16 this money, and if I abuse my ownership rights,

17 I certainly am in for a treatment under Article 10. The

18 abuse of ownership rights is a classical — is also

19 abuse of rights.

20 Q. But when it comes to effectively compelling a party to

21 conclude a contract, wouldn’t that be in breach of

22 the basic rules of freedom of contract and Article 421

23 of the Code which says that it is not allowed to compel

24 people to conclude contracts?

25 A. Yes, it’s not allowed people to conclude contracts. On

118 :1 the other hand, it’s not allowed to abuse one’s

2 position, so it has to be decided on the facts.

3 Q. And wouldn’t there be various problems if there was some

4 sort of duty upon banks to extend loans or grant new

5 loans in relation to regulatory issues, issues that they

6 have directors to their own shareholders. I mean, it

7 would cause all sorts of difficulties, wouldn’t it?

8 A. Of course, if you put it as a general proposition, of

9 course there would be, but what we have here, we have

10 a right in a set of hypothetical circumstances — I’m

11 not opining on anything — where the right to dispose or

12 buy property as I choose is not excluded from this

13 concept, and one of the consequences might be refusal of

14 judicial protection for my abusive behaviour. It’s

15 not — the consequence of imposing a contract on me,

16 contrary to the precepts of the Civil Code, might not be

17 necessarily the proper conclusion, a proper consequence.

18 A proper consequence might be that I am denied judicial

19 protections for my abusive behaviour in court, which is

20 actually — Article 10 was primarily designed.

21 Q. And certainly I don’t think you have come across any

22 cases where a failure of a bank to provide a loan, or

23 a further loan, has been held to constitute an abusive

24 right?

25 A. I don’t recall such cases.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

119 :1 MR JUSTICE HILDYARD: So sorry, are you saying that it is

2 the fact and consequences of the prior dealings which

3 change the situation?

4 A. Yes, I would say so.

5 MR JUSTICE HILDYARD: I mean, the refusal — I may feel that

6 I am a very worthy contracting party, and that Mr Birt

7 would be mad not to conclude a contract with me for some

8 sale or other, and I might say: well, you know, you have

9 no reason to think that I wouldn’t abide by it and every

10 reason why it would be to your advantage. Now, if you

11 refuse me this, you are abusing your right and I’m going

12 to go to court and claim for my contractual loss, or for

13 my tortious loss for his abuse.

14 Now, that seems unlikely, because then every man

15 would be wary of the next, for fear that they were in

16 abuse of some obligation that they perceived to strike

17 up a contract. So that can’t be it, can it?

18 A. Just thinking hypothetically about my example, if, for

19 example, I am a client of a bank for many years.

20 MR JUSTICE HILDYARD: Yes.

21 A. I have a cash gap of ten days. I cannot — I have

22 legitimate expectations that the bank would cover it,

23 because I don’t have the ability to go within these ten

24 days to any other source of financing, because it’s

25 large.

120 :1 In certain circumstances where it is justified,

2 maybe the courts will look at it. So the courts — I am

3 not saying that the courts will necessarily take the

4 stand. In Russia, the courts might take the side of

5 banks. However, what I am saying is this course is not

6 precluded. Article 10 recently has been widely used by

7 Russian courts in all sorts of contexts.

8 MR JUSTICE HILDYARD: I can understand it if a legitimate

9 expectation has arisen that there might be some issue as

10 to its non-observance, but are you saying, really, it’s

11 the fact that the consequences of the previous dealings,

12 which were that the bank could shut up shop and, for

13 example, enforce the pledge, give rise to some

14 additional obligation; is that what you are saying?

15 A. Not necessarily, it may give rise to my inability, for

16 example, to seize assets of the defaulting debtor. So

17 if, for example, in this hypothetical, I have ten days

18 of shortfall and I am a client of the bank for 20 years

19 and I have legitimate expectations. The bank lets me

20 default and then goes and grabs all my assets on the

21 cheap. I think in this case, the court, looking at the

22 entirety of surrounding circumstances, may look at the

23 claims of the bank very sceptically and in certain

24 cases, refuse to honour or to protect the claims of

25 the bank on some other grounds against my assets. So

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

121 :1 that’s what I’m saying.

2 MR JUSTICE HILDYARD: So the Russian courts, putting it

3 literally, would have had a different answer to

4 the Merchant of Venice, when he said «it is in

5 the bond», they would have said: well, and the fact is

6 that your entitlement to exercise the rights conferred

7 by the bond are subject to some further restraint?

8 A. To abuse of rights, that’s correct.

9 MR JUSTICE HILDYARD: Right.

10 A. That is a feature of the recent Russian law, and

11 Article 10 was initially not given that much leeway, and

12 what Professor Maggs says is probably correct, but for

13 the 1990s.

14 Currently Article 10 has been applied very widely,

15 there have been several guidances on it, and in

16 the latest version of the Civil Code it was strengthened

17 still further.

18 MR BIRT: I appreciate, Dr Gladyshev, that you have couched

19 a lot of that in: the courts might do this, or look

20 sceptically, and it is all slightly hypothetical and

21 speculative because we are in uncharted territory, but

22 if the courts were to take that approach and effectively

23 compel banks to lend money that they didn’t want to

24 lend, that would drive a coach and horses through normal

25 commercial practice, wouldn’t it?

122 :1 A. I’m not sure that that’s what I’m saying. I’m not

2 saying that the courts would compel the lender to — and

3 to compel to the contract. There may be other

4 consequences, such as refusal to protection to some

5 other actions.

6 I will give you an example. Statute of limitations.

7 Right now, there is a judicial practice where statute of

8 limitations is refused to persons who abuse their right

9 and statute of limitations is something that is set in

10 stone in Russian law, but the courts now consider the

11 statute of limitation is a privilege which is imposed on

12 those who do not abuse their rights.

13 So in certain circumstances there are some

14 qualifications for it, of course, it is not across the

15 board, but this is the example of how widely the abuse

16 of right doctrine has been used recently.

17 Q. Can we move on to a different topic. I am going to ask

18 you some questions about Russian contract law. Again,

19 there is a good degree of ground here. The rules on

20 interpretation of contract are found in Article 431.

21 A. Correct.

22 Q. And that we can find in Professor Maggs’ supplemental

23 report set out at {E4/13/18}. This sets out what is

24 effectively a three-stage process, doesn’t it?

25 A. I am reluctant to characterise, to put into this strict

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

123 :1 categorisation, but I would agree that the elucidation

2 of the plain meaning of the contract is the first stage

3 anyway.

4 Q. Yes. We will just walk through it and see if it breaks

5 down or not. The first sentence:

6 «In the interpretation of the terms of a contract a

7 court shall take into account the literal meaning of

8 the words and expressions contained in it.»

9 A. Yes.

10 Q. That is, if you like, the basic rule, and if the literal

11 meaning of the words and expressions is clear, you don’t

12 get any further, do you?

13 A. Yes, but this is essentially, for me, it’s one and the

14 same: the court — it’s a splitting of the hairs and

15 it’s not important, but it’s not a three-stage.

16 Q. Then the next sentence says:

17 «The literal meaning of a term of a contract, in

18 case the term is not clear, shall be established by

19 comparison with the other terms and the sense of

20 the contract as a whole.»

21 A. Yes.

22 Q. So as I read that, if the literal meaning is clear on

23 its face that is what you take. If it’s not clear on

24 its face, you can establish it by looking at the other

25 terms of the contract in the sense of the contract as

124 :1 a whole?

2 A. Unexceptional. Yes.

3 Q. And then if that doesn’t allow the determination of the

4 content of the contract, but only if, then you get into

5 the next paragraph where you ascertain what is referred

6 to as the real common will of the parties, taking into

7 account the purpose of the contract, and then you bring

8 in all surrounding circumstances including negotiations

9 in correspondence and practice established and questions

10 of commerce and the subsequent conduct of the parties.

11 That is right, isn’t it?

12 A. Yes, with a very slight quip. You said «then»; it’s one

13 and the same process. The second part of Article 431 is

14 not divided into two procedures. It’s one and the

15 same —

16 Q. No, sorry, the second part of 431 is all part of

17 the same process. I think when I said «then», I meant

18 when you are in the second part of 431.

19 A. Yes.

20 Q. In other words, when you are trying to infer the common

21 will of the parties, you look at all the surrounding

22 circumstances.

23 A. Yes.

24 Q. But you only get to this process, the real common will

25 of the parties, if you haven’t been able to ascertain

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

125 :1 the meaning via the rules in the first paragraph?

2 A. Yes.

3 MR JUSTICE HILDYARD: So you are not allowed to take into

4 account the surrounding circumstances when looking at

5 the words?

6 A. Not if they are clear. If they are not clear, if they

7 are in dispute or — and the court agrees that they are

8 in dispute, then you have to look into the surrounding

9 circumstances.

10 Essentially by «clear», I do not mean that they are

11 linguistically clear, that they elucidate the real

12 common will of the parties. The contract is what the

13 parties agreed upon, so if the meaning of the agreement

14 is not clear, then the second part comes into play.

15 MR BIRT: I don’t think it can be right, can it, that simply

16 if they are in dispute about what it means that

17 automatically means it is not clear. Presumably the

18 court has to make an adjudication on whether they are

19 clear or not?

20 A. Yes, and that’s why I said that if the court is not

21 clear.

22 Q. Yes.

23 A. This comes from experience, that’s how Russian judges

24 approach it.

25 MR JUSTICE HILDYARD: Does it slightly depend, as it may in

126 :1 America and in this country, on the quickness or

2 slowness of the given court to determine that the words

3 are ambiguous? Some judges are swift to see ambiguity,

4 otherwise less so.

5 A. Well, in Russia the issue of ambiguity arises in various

6 contexts, and this is especially so in the tax

7 litigation context, when the terms of contracts are

8 interpreted for tax purposes, and there is a special

9 provision on this in the tax code, so Russian judges say

10 that — and all the doubts are interpreted in favour of

11 the taxpayer, so Russian judges are sometimes generous

12 with the ambiguity.

13 MR BIRT: And you also say in your first report that the

14 rules for interpretation of contracts under Article 431

15 are applied to the issue of the identification of

16 the parties to the agreement? I don’t know if you want

17 to see that, or if you can just confirm that is your

18 evidence?

19 A. Yes.

20 Q. Thank you. Can we just bring up — Professor Maggs was

21 asked some questions about this — the memorandum. It’s

22 at {D107/1537/1}.

23 Now, I know you know my client’s case is this isn’t

24 a legally binding document, so I am just going to ask

25 you some questions on the premise that that’s wrong for

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

127 :1 now.

2 Professor Maggs was asked some questions on that

3 basis. Would you agree with him — let me just set it

4 up a bit better. The identification of the first party

5 to this agreement is found in two places: first, at the

6 head of the agreement it refers to the Group Oslo Marine

7 Holding in the person of the President Mr Arkhangelsky,

8 and then at the end of the agreement, or at the end of

9 the document, you can see the group signature of

10 Arkhangelsky and the seal of Oslo Marine Group LLC.

11 A. Yes.

12 Q. That’s on the translation on the second page.

13 A. Mm hmm.

14 Q. I am afraid on the Russian version the seal isn’t there.

15 There is another version with the seal there, but the

16 translator has recorded that it was there. Do you agree

17 with Professor Maggs that the fact that a particular

18 company’s seal has gone down indicates that it is that

19 company which is intended to be party to the agreement?

20 A. Can I have on the screen the exchange between

21 Professor Maggs and Mr Milner?

22 Q. Yes. It is yesterday, Day 41, and I don’t know quite

23 which bit you want to have in mind, but I think there

24 are some exchanges starting around page 58.

25 {Day41/58:1}, but it goes on for quite a long time. He

128 :1 refers to the seal on page 60. He refers to Article 431

2 on page 61.

3 A. Just let me quickly read it through. (Pause).

4 Q. It maybe runs down to about the end of page 62,

5 I suspect. {Day41/62:25}.

6 A. Mm hmm. Yes. So, sorry, what was the question again?

7 Q. The question was do you agree that the fact that

8 a particular company seal has gone down indicates that

9 it is that company which is intended to be party to

10 the agreement or the document?

11 A. No, I think it is ambiguous.

12 Q. Ambiguous, why, when there is a particular company seal

13 which has gone down?

14 A. In Russia the particular company seals don’t have a

15 legal significance. They have legal significance only

16 in certain contexts, for example, when the bank demands

17 a seal as a matter of contract with the bank on certain

18 payment documents, otherwise the seal is not conclusive.

19 Q. It may not have a particular status under Russian law,

20 but wouldn’t it be a very — well, a conclusive

21 identifier of the legal entity which the party signing

22 intended to sign on behalf of?

23 A. Certainly not. A seal is not a conclusive identifier of

24 a company under Russian law except in certain — this is

25 a very well traversed position by Russian courts.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

129 :1 A seal is not a conclusive identifier except for the

2 cases where it has been prescribed so by the law.

3 Q. Okay, can you think of another reason why the company

4 seal may have gone on to this agreement apart from

5 acting as an identifier of a party to it?

6 A. It was the first seal that was handy.

7 Q. Right. Is that your experience of Russian businessmen:

8 they pick whichever seal is handy without discriminating

9 between the companies —

10 A. I’ve come across several cases like this, and one was

11 a rather large case, yes. So it’s just to give some

12 sort of solemnity, because for some reasons, Russian

13 businessmen sometimes think that with seal it looks

14 better.

15 Q. Right. I think you also say in your report, it’s on

16 a slightly different point, that the title of

17 the document does not influence the interpretation of

18 its substantive clauses.

19 A. No, it doesn’t.

20 Q. If the literal meaning of the clause itself does not

21 supply the answer, though, then isn’t the title part of

22 the context against which you can construe the document?

23 A. Yes, it might. It actually might.

24 Q. Yes.

25 A. And in this case, what to me as a Russian lawyer it

130 :1 suggests, the memorandum, it’s so-called top level

2 agreement between the principals, which is very well

3 known law in Russian law as I explain in my conclusions,

4 so sometimes and often it is done in the form of

5 aide-memoire, although it is meant to be a binding

6 agreement.

7 Q. Can I just check with you a couple of other general

8 propositions? I think it is agreed between you that in

9 the definition of a contract under Article 420,

10 a contract can either be a nominate contract, one of

11 a number of nominate contracts under Russian law, or

12 an innominate contract, or I think you refer to it as

13 a sui generis contract, and that Russian law defines

14 essential terms for innominate contracts?

15 A. For some of them, not for all of them.

16 Q. And do you agree with Professor Maggs when he says that

17 if a court finds that a particular document was intended

18 by the parties to be a statement of intent rather than

19 a binding contract, then there would be no binding

20 contract?

21 A. Yes, but you have to look into the — all surrounding

22 circumstances.

23 Q. Yes.

24 A. And I give an example in my opinion of an oral contract

25 that was concluded, very similar to this, that was

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

131 :1 concluded between two parties. That was meant to

2 create — this is — just like this, top level agreement

3 between the principals to give financing to certain

4 venture, and the party argued that it was a statement of

5 intention. The court disagreed and enforced the

6 contract.

7 Q. Yes, I am trying not to ask you too much about facts.

8 I think that probably is the sort of point that turns on

9 facts. It was really premised on if the court finds

10 certain facts. I’m going to try and skip through some

11 of the legal principles and not drag you too much into

12 the facts as we go through this if I can avoid it.

13 You and Professor Maggs give some evidence about

14 contracts which contain elements of different types of

15 contracts under the law, you call them mixed contracts,

16 under Article 421.

17 A. Yes.

18 Q. And can I just check certain points with you. If such

19 a contract contains with it a particular nominate

20 contract, then it must still comply with the relevant

21 criteria under the Code for that nominate contract?

22 A. That part of the contract has to comply.

23 Q. Yes. And you can’t use the idea of a mixed contract to

24 escape what the law otherwise provides for a nominate

25 contract?

132 :1 A. If a nominate contract forms part of a larger scheme,

2 no, you cannot, and you specifically identify it as

3 a nominate contract, then you cannot escape it. For

4 example, if we conclude a lease agreement, which is

5 a very popular contract in Russia, for leasing office

6 premises, and at the same time we agree a service

7 agreement in respect of the same premises, so I cannot

8 escape my obligation to provide exact description of

9 the leased property, and to attach a plan of the leased

10 property just by alleging that this is a mixed contract.

11 Q. Yes.

12 A. So in this respect, yes, I would agree to this extent.

13 Q. Can I just ask you to look at Professor Maggs’ report,

14 please, his first report at {E2-E3/12/9}.

15 A. Yes.

16 Q. I just want to ask you about paragraphs 35 and 36,

17 please. So in 35 Professor Maggs is talking about:

18 «A single oral agreement subject to the ‘simple

19 written form requirement’ may contain some contractual

20 terms subject to the strict rule of Article 162(2) of

21 invalidity for failure to satisfy the simple written

22 form requirement and other contractual terms subject to

23 the more lenient rule of Article 162(1) that bars

24 witness testimony, but allows other evidence.»

25 He recites Article 421(3) which provides for a mixed

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

133 :1 contract and he goes on in 36 to say:

2 «In such a case, with respect to an oral agreement,

3 if a party succeeds in proving terms subject to the more

4 lenient rule of Article 162(1), that part of

5 the contract will be enforceable, while the part of

6 the contract subject to the strict rule of Article

7 162(2) will be absolutely invalid.»

8 I think that follows, doesn’t it, you don’t disagree

9 with that?

10 A. Let me —

11 Q. Yes. Just the first sentence of 36 at the moment, thank

12 you. (Pause).

13 A. Well, if a party concludes a contract, a part of which

14 would be invalid because it contradicts a peremptory

15 rule of Russian law and other parts would not, then the

16 part that contradicts it would be invalid but the other

17 part would stand.

18 Q. Yes, exactly, I think that is what he is saying in

19 the first sentence of 36, isn’t he?

20 A. Yes, but it has to be determined whether or not

21 a given contract, or the part of the contract which

22 forms part of the given contract, is so contrary to the

23 peremptory requirement of the Russian law as to apply

24 Article 168 of the Civil Code.

25 Q. Yes. Then he goes on to say:

134 :1 «In such a case, the fate of the transaction as

2 a whole will be determined by Article 180.»

3 And 180 is where you get to if part of your

4 transaction is invalid and part of it is not. That’s

5 right, isn’t it? In other words, I’m just asking you to

6 look at his next sentence and just confirm that that’s

7 correct. (Pause).

8 A. Yes.

9 Q. And there was some discussion with Professor Maggs

10 yesterday of preliminary contracts under Article 429.

11 A. Yes.

12 Q. And in part, this bleeds into a dispute on the facts

13 about what the December 2008 agreement, so-called, was,

14 which is not a dispute I need to ask you about. But can

15 I just ask you some general questions about preliminary

16 contracts quite briefly.

17 The text is set out in Professor Maggs’ report at

18 paragraph 173, so it is {E2-E3/12/45}.

19 A. Yes.

20 Q. And it is effectively a contract on condition of

21 a conclusion of a contract in the future. A preliminary

22 contract.

23 A. Yes, any preliminary contract is about a contract in

24 the future, although not every contract about a future

25 contract is a preliminary contract.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

135 :1 Q. And a preliminary contract must be in the written form

2 under sub-article 2 here.

3 A. Yes, but a contract about making a contract is not

4 always a preliminary contract, and this one strikes me

5 as being not a preliminary contract.

6 Q. Yes, I know. I am trying not to have the debate with

7 you about what this is.

8 A. Yes.

9 Q. I am trying to establish common ground on the law.

10 If the rules — if it is falling into the category

11 of a preliminary contract but it is not in written form,

12 then paragraph 2 entails that it is void. That’s right,

13 isn’t it?

14 A. Yes.

15 Q. And I think you were in court yesterday, Professor Maggs

16 was saying that Article 429 has been interpreted quite

17 narrowly, so if anything has been left to be agreed by

18 the parties, the courts generally hold that it lacks

19 essential terms?

20 A. Sorry?

21 Q. Professor Maggs has said that if anything was left to be

22 agreed by the parties, the courts have held that it

23 lacked the essential terms as required by Article 429.

24 A. Can you repeat it again? I don’t get it.

25 Q. I think we can pick it up from his report if it is

136 :1 easier for you to see.

2 A. Yes.

3 Q. Paragraph 181.

4 A. No, I don’t think that this formulation will hold water.

5 It’s too broad to be true.

6 Q. Do you have an alternative formulation?

7 A. Yes, if the parties do not agree on any essential terms

8 than the contract prescribed by statute or a contract,

9 then the contract would be void. But if attempted

10 preliminary contract(?) left anything to be agreed,

11 anything to be agreed is too broad and unnecessarily

12 inclusive formulation. We are talking only about

13 essential terms as defined by a statute.

14 Q. So one could substitute «any essential terms» for the

15 word «anything» there?

16 A. Yes, and we must understand «essential terms» as the

17 terms defined by the statute.

18 Q. One of the things that I took Professor Maggs to

19 yesterday to try and illustrate this, I’m just going to

20 take you to the same document, is one of the agreements

21 in this case, which we can find at {D106/1531/5}.

22 I think you told the court yesterday you hadn’t been

23 sent any of these documents for the purposes of your

24 report?

25 A. No, I don’t remember having been sent them, but I am

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

137 :1 reading it for the first time.

2 Q. Yes, and were you in court yesterday when we went

3 through this with Professor Maggs?

4 A. Mm hmm.

5 Q. So you are aware that the way it works, the suite is

6 that starting at page 431 there is the sale of shares

7 contract — I don’t mean 431, that is an old number —

8 at {D106/1531/1}, and then at {D106/1531/5} is the

9 document you have turned up and that contains at annex 1

10 at page {D106/1531/9} the, if you like, final agreement

11 that the parties have agreed that they will in

12 the future enter into. I think Professor Maggs said

13 yesterday that looking at {D106/1531/5}, this was

14 a typical sort of preliminary agreement within

15 Article 429.

16 A. Yes, this is — this says the provisional — actually,

17 it should be translated as «preliminary».

18 Q. Very good. As I understand how this would work, is the

19 parties, having entered into an agreement, which you

20 have in English at {D106/1531/5}, either of them is then

21 entitled to go to the court to compel the other party to

22 enter into an agreement in the form of annex 1.

23 A. Yes.

24 Q. And under clause 6.1:

25 «The Parties undertake to act reasonably it and in

138 :1 good faith during performance of their obligations.»

2 A. Yes.

3 Q. So that would give the context, would it, for the

4 circumstances in which one or other of the parties could

5 compel the purchase of the shares?

6 A. I don’t know. This would give the right to — if this

7 provisional contract is a valid contract, then on this

8 basis the other party may force the other party

9 judicially to conclude the final contract. I don’t know

10 whether it is a contract or not, but this is what it is.

11 Q. Yes. Presumably that clause would — take the facts of

12 this case, for example. This agreement is made against

13 the background of the memorandum that we have seen —

14 A. That I don’t know.

15 Q. — although the memorandum isn’t incorporated into it.

16 A. That I don’t know. Yes.

17 Q. Yes, well, I think we know that it is. So if

18 Mr Arkhangelsky went to the court the day after having

19 completed the first agreement and said: I want to compel

20 repayment of these shares, he wouldn’t be acting

21 reasonably and in good faith, not having paid back the

22 loans. Presumably that would be how it would work?

23 A. I think there is more to the story than this, so I am

24 not opining on the facts.

25 Q. No, I am asking you to assume certain facts and then

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

139 :1 opine on the law, really.

2 A. So say it again?

3 Q. If Mr Arkhangelsky had gone, having not repaid the

4 loans — and which as you know — well, you know what

5 the loans were — and tried to compel re-transfer of

6 the shares to him under this agreement, the court may

7 take the view that that wouldn’t be an action in

8 reasonable and good faith. But if he has repaid the

9 loans then he would be able to compel them, wouldn’t he?

10 A. Let me read the contract to say to tell you. I have to

11 read the contract.

12 Q. Okay. (Pause).

13 A. I’m sorry, and why it would be improper to enforce this

14 contract? Am I missing something?

15 Q. I’m not saying it would be improper in all

16 circumstances, what I am saying to you is in the context

17 of the fact that this has been entered into against the

18 background of the memorandum, for example —

19 A. Can you please qualify or clarify it for me, what do you

20 mean by «entered into the background for the

21 memorandum»?

22 Q. Yes, well, the parties’ arrangements, as recorded in

23 the memorandum, are part of the background to the entry

24 into these agreements. You know that, don’t you?

25 A. Can you show me the memorandum, please? Where is it?

140 :1 Q. Yes, we have been looking at it. It is at

2 {D107/1537/1}.

3 A. So, is this the preliminary contract specifically

4 mentioned here?

5 Q. No.

6 A. And how exactly it enters into the background?

7 Q. Well, I think you are familiar with the facts of this

8 case, aren’t you Dr Gladyshev?

9 A. On a top level.

10 Q. On a top level. You know there was a meeting between

11 Mr Arkhangelsky and people at the Bank in late December

12 2008?

13 A. Yes.

14 Q. And you know that Mr Arkhangelsky alleges an oral

15 agreement was entered into?

16 A. Yes.

17 Q. And you know that the parties executed this document?

18 A. Yes.

19 Q. Whether it is an agreement or not?

20 A. Yes.

21 Q. And you know that shares were transferred from

22 Mr Arkhangelsky’s companies to the original purchasers?

23 A. Yes.

24 Q. Under these share purchase agreements?

25 A. Yes, okay.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

141 :1 Q. And that was part of the putting into effect of what is

2 set out in the memorandum, which is, I think, something

3 that you have opined on in your expert report.

4 A. Yes.

5 Q. So I think you know the background facts,

6 Dr Gladyshev —

7 A. Yes, I just wanted some clarifications.

8 Q. — I am simply asking you to assume certain things and

9 then just elaborate on the meaning of this clause.

10 A. So what was the question again?

11 Q. If, having entered into these share sale agreements,

12 Mr Arkhangelsky then went to the court to try and

13 enforce the repurchase agreement, the provisional

14 agreement, without having paid back the loans, the court

15 would prevent him from doing so, and one of the ways it

16 could do that would be by reference to clause 6.1 of

17 this agreement.

18 A. And it might be on facts, but what behaviour would be

19 unreasonable and in bad faith?

20 Q. Well, the behaviour that I have —

21 A. Not repaying the loans?

22 Q. Yes, against the background of the memorandum and the

23 purpose for which the arrangement was entered into. Is

24 that conceivable, or you think completely inconceivable?

25 A. I’m just a bit confused here.

142 :1 Q. Well, maybe I am pressing too much into the facts for

2 you, Dr Gladyshev. Presumably you would accept,

3 wouldn’t you, that if a party was applying to compel the

4 other party to enter into an agreement —

5 A. Yes.

6 Q. — if the party so applying was acting unreasonably,

7 then the court could, using 6.1, prevent or wouldn’t

8 have to compel the conclusion of the share purchase

9 agreement in the annex?

10 A. Yes, especially, and the court doesn’t really need 6.1.

11 The court has Article 10. So it will be a clear abuse

12 of rights, then in any context the court wouldn’t do so.

13 Q. And, indeed, if the purchasing company sought to

14 withhold the shares or not sell them back in those

15 circumstances, they would be in breach of this. Sorry,

16 if — sorry, assuming Mr Arkhangelsky had acted

17 reasonably in good faith and sought to get repurchase of

18 the shares, then the share purchase company — the

19 company that had purchased would then have to sell them

20 back under this agreement?

21 It was my fault because I got all my terminology

22 mixed up. Assuming Mr Arkhangelsky had in fact acted

23 reasonably and in good faith, repaid his loans, when he

24 went to the court, he would be able to compel the

25 company to sell him the shares under this agreement.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

143 :1 A. Essentially if he would be in breach of one of

2 the conditions of the contract and the court would found

3 that this was an essential condition of the contract

4 which precludes the performance under the contract, yes.

5 Q. Thank you, I probably made too much of a meal of that

6 with the facts. I am sorry about that.

7 My Lord, I’m going to move on to another topic.

8 I am happy to take a break now.

9 MR JUSTICE HILDYARD: Is that a good time for a break?

10 (3.28 pm)

11 (A short break)

12 (3.37 pm)

13 MR BIRT: Just before we move on, Dr Gladyshev, I just want

14 to make sure I wasn’t unfair to you in that last

15 section. When I was putting to you that the

16 requirements of that contract, acting reasonably and in

17 good faith, would apply to Dr Arkhangelsky as one party,

18 or rather his company as one party, they would, of

19 course, equally apply to the other party to that

20 contract as well, wouldn’t they?

21 A. The terms of the contract apply equally to two parties

22 unless otherwise indicated.

23 Q. Yes, the requirements of acting reasonably and in good

24 faith would apply to both parties under that contract?

25 A. All terms of the contract, if formulated as binding,

144 :1 would apply to both parties unless otherwise indicated.

2 Q. Yes, and their behaviour, whether it was reasonable or

3 in good faith, would also have to be assessed against

4 the relevant background, I think, in the way you have

5 described?

6 A. On facts. It would have to be assessed on facts and

7 against what is abuse of right and, as we have

8 discussed.

9 Q. Yes. Could we move on to a different but related topic.

10 The December 2008 agreement, as it is described and

11 alleged by Mr Arkhangelsky.

12 A. Yes.

13 Q. I think you say that it is a sui generis contract.

14 A. Yes.

15 Q. You don’t say that it was a pledge, as I understand it?

16 A. No.

17 Q. What you say is that its terms are similar to

18 the withholding provisions in the Civil Code.

19 A. Yes.

20 Q. Now, it’s not something that’s pleaded or that —

21 I mean, Professor Maggs responded to your points on this

22 and he wasn’t challenged on his analysis, but I just

23 want to very briefly touch on it with you, given that

24 you did say something in your report about it.

25 A. Yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

145 :1 Q. At paragraph 212 of your report, and in fact, over the

2 page it sets out the terms of the article, which is what

3 I was going to ask you to look at. That’s {E4/14/36}.

4 A. Yes.

5 Q. Which refers to a situation where:

6 «A creditor who has in his possession an item

7 subject to transfer to a debtor or to a person specified

8 by the debtor, in case of non-performance by the debtor

9 of his obligation to pay for this item or to compensate

10 the creditor for expenses and other losses associated

11 with it within the specified time limit, shall have the

12 right to withhold it, until such time as the

13 corresponding obligation is performed.»

14 A. Yes, although I must say one thing, this text, this

15 English text, was taken from the translation by

16 Professor Osakwe, whom I mentioned. The word «item» is

17 properly in Russian text, it is a thing, it is a thing.

18 Q. Well, that’s what I was going to ask you about.

19 A. Yes.

20 Q. We are on the same point already.

21 A. Excellent.

22 Q. And that word «thing» means a physical thing, doesn’t

23 it?

24 A. No, because a «thing» in the Russian law is a defined

25 term. It is an important defined term. It is defined

146 :1 in Article 128 of the Civil Code and the «thing» means,

2 apart from physical things, it means money, security and

3 commercial paper.

4 I notice the criticism by Professor Maggs to my

5 point, and I am somewhat surprised to it, because

6 Professor Maggs certainly knows Article 128 which

7 defines «thing» not as a physical thing, but as money,

8 commercial paper and securities. So there is nothing in

9 Russian law to prevent shares to be held as a pledge.

10 So nothing that is excluded from the civil turnover and

11 is defined as a thing, a physical thing, money,

12 security, commercial paper, may be excluded from

13 operation of Article 359.

14 Q. Well, Professor Maggs says that this provision deals

15 with the withholding of physical things and it does not

16 apply to intangible assets such as shares. You are

17 saying he is wrong about that, are you?

18 A. He is wrong about because «thing» is a defined term in

19 the Russian Civil Code, and the terminology is used

20 consistently throughout the code.

21 Q. And we are going to have to be in a slight stymie about

22 that, because obviously without Russian I cannot take

23 that much further. Obviously Professor Maggs wasn’t

24 asked any questions about that —

25 A. Yes, Professor Maggs —

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

147 :1 Q. — can I move on to the next point about this, it deals

2 with the situation, doesn’t it, where possession of

3 property owned by a debtor is retained. It’s not about

4 transferring ownership of property; it’s about

5 withholding possession of it. It’s like a lien, I think

6 you say?

7 A. That is correct. Article 359 in its paragraph 1, and

8 you are precisely right about this, talks about

9 possession. Although in paragraph 3 of the Article 359,

10 we have a provision which allows parties to digress from

11 any provision of this contract and of this concept, so

12 there is no essential mandatory term for a contract of

13 withholding a lien, and may define the withholding as,

14 for example, transfer of ownership for a certain period

15 of time, which then will have to be brought back. This

16 is exactly on the wording of the memorandum what has

17 occurred, so this is quite a common practice in Russia.

18 So under the memorandum, under the wording of

19 the memorandum, a temporary ownership was transferred

20 with the obligation to return it after a certain period

21 of time.

22 Q. Yes, and what was being transferred was ownership, and

23 that’s the difference, isn’t it, really, between that

24 and this provision, apart from our argument about

25 intangible property, it’s that this provision deals with

148 :1 the transfer of possession, like a lien.

2 A. Yes.

3 Q. Not to do with the transfer of ownership.

4 A. Correct, and under paragraph 3 of Article 359, the

5 parties are free to redefine the term as applies to them

6 from possession to ownership for a time, because it says

7 the rule of the present article shall be applied unless

8 otherwise specified by contracts. So the contracts can

9 specify anything. You can digress from any part of

10 Article 359 through contract. No limitation here.

11 Q. That may be right, but what is going on in this case,

12 it’s not a withholding, it’s just a different type of

13 arrangement, isn’t it? It’s sufficiently different,

14 being a transfer of ownership rather than a transfer of

15 possession, that it is not sensible to talk about it as

16 a type of withholding. It is just a different

17 arrangement, isn’t it?

18 A. No. It’s a type of withholding modified by parties in

19 accordance with paragraph 3 of the article on

20 withholding, which is specifically allowed by the regime

21 of the article on withholding.

22 Q. You refer to a case called Savilova in your report,

23 starting at paragraph 216, and we can go through it if

24 we have to, but you seem to —

25 A. Can I have it before me?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

149 :1 Q. Let me just see where we are with it, and let me find

2 out what you rely on it for. You run through the

3 Savilova case, and then you say in paragraph 225

4 {E4/14/37}:

5 «The withholding arrangement precludes transfer of

6 the assets to ownership of third parties or any other

7 actions that preclude return of assets to the owner.

8 «226. This is now a settled position in Russian

9 courts, which has been applied, with direct reference to

10 the Savilova case, in many Russian cases.»

11 Are you saying — that is what I want to check with

12 you before we go into it — that the Savilova case was

13 about withholding?

14 A. Can I see the case before me?

15 Q. You can if you need to.

16 A. I do.

17 Q. It is in {E4/14.1/130}. Briefly remind yourself which

18 case it is.

19 A. Yes, it’s a long case, yes.

20 Q. I know it’s a long case. Do you want time to read the

21 whole of it?

22 A. Sorry?

23 Q. Would you like time to read the whole of it?

24 A. Just let me scan through it.

25 Q. Okay.

150 :1 A. Just to refresh the memory. (Pause).

2 Yes.

3 Q. Are you saying that this is a case about withholding?

4 A. No. It’s not a case of strict application of

5 Article 359.

6 Q. Thank you. I only asked you because you say in

7 paragraph 221 of your report, you say that:

8 «… the Supreme Court stated that, if [the party]

9 was correct on the facts, the transaction may be a sham,

10 and the rules on withholding must be applied.»

11 And I don’t think that is what the court said, is

12 it?

13 A. It says that different rules might be applied. It

14 didn’t cite Article 359, that is correct.

15 Q. I think it’s fair to say, isn’t it, that there is no

16 reference in this judgment at all to withholding or

17 to —

18 A. No, but the relationship could be fairly summarised as

19 relations closer to withholding.

20 Q. There is no reference to Article —

21 A. No, there isn’t.

22 Q. — 359 or 360?

23 A. No.

24 Q. There is no reference to the court saying the rules on

25 withholding had to be applied?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

151 :1 A. No, what the court said that rules on the underlying

2 transactions and intended by parties, has to be applied.

3 Q. Yes, they certainly cite and run through the provisions

4 of Article 431 on page 133 —

5 A. Yes.

6 Q. — to do with the interpretation of contracts.

7 A. Yes, and they also say that the list of securities for

8 contract, guarantees for contracts, is open one, so the

9 parties are free to conclude between them any contract

10 which sets out any security, and in this case, it would

11 be withholding like security or withholding a security

12 which is modified in any way by a contract of

13 the parties.

14 Q. Well, I don’t think they go that far, do they? They do

15 say that under Article 329 the list of methods of

16 security is not exhaustive.

17 A. Yes.

18 Q. So they say this sale and purchase agreement could have

19 been a method of security, they say that in this

20 paragraph, and then they remit it further below to go

21 and work out what really happened.

22 A. Yes.

23 Q. So they don’t actually talk about withholding at all?

24 A. No, but the relations are similar.

25 Q. Well, on your view they may be. The court didn’t make

152 :1 any findings and this is a case of transfer of

2 ownership, isn’t it, not possession?

3 A. Yes, but this is why it didn’t say it is withholding.

4 It said it’s similar to withholding.

5 Q. So if we go back to your report, {E4/14/37}, I think we

6 have agreed that what you say at 221 in those last seven

7 or eight words is not right because they didn’t talk

8 about the rules on withholding?

9 A. No, it’s — withholding was ill advised to use here,

10 but …

11 Q. Then if you go down to paragraph 225, you have added

12 that in your report, but that isn’t found in

13 the judgment, is it? They don’t discuss that in

14 the judgment?

15 A. No. But withholding — but this is the settled position

16 in Russia.

17 Q. Well, in 226 you say this has been applied with direct

18 reference to the Savilova case. And the proposition you

19 assert in 225 has not been applied with direct reference

20 to the Savilova case, has it, because the Savilova case

21 is not about withholding?

22 A. It’s a withholding-like arrangement, but not with — but

23 not with — yes, but you are right, the court did not

24 reference withholding directly.

25 Q. And although you say this is the settled position which

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

153 :1 has been applied with direct reference to the Savilova

2 case, I think you have read in Professor Maggs’

3 supplemental report that following your report he has

4 done some research and he has found only two cases that

5 mention the Savilova case?

6 A. Actually, I think there are four. I have checked it so

7 there will be some others.

8 Q. You haven’t provided those in your report, have you?

9 A. No, I didn’t.

10 Q. The two that Professor Maggs found which were quite

11 low-level courts cited it for its application of the

12 interpretation rules under Article 431?

13 A. They are trial courts and appeal courts, yes.

14 Q. And it cited Savilova in relation to contractual

15 interpretation under Article 431?

16 A. Yes.

17 Q. Those cases didn’t mention withholding, or Articles 359

18 or 360 either?

19 A. No.

20 Q. Thank you.

21 MR JUSTICE HILDYARD: I’m a bit troubled about how I resolve

22 this issue with respect to «item» or «thing» and whether

23 a chose in action, for example, would be a thing.

24 I think Dr Gladyshev mentioned that the relevant

25 word, which I shall call a thing, is defined in

154 :1 the Code; is that right?

2 A. Yes, it’s Article 128 of the Civil Code.

3 MR JUSTICE HILDYARD: 128?

4 A. Yes, the article is called «Objects of civil rights» and

5 it defines what objects are tradeable in Civil Code, and

6 it says that the —

7 MR JUSTICE HILDYARD: Is that in evidence? Is the 128 in

8 evidence?

9 MR BIRT: To the best of my knowledge, I don’t think it is,

10 but I can stand to be corrected.

11 MR JUSTICE HILDYARD: I’m not sure how important this point

12 is, but I don’t know how I resolve it, if I —

13 MR BIRT: My Lord, I don’t. I had thought it was —

14 Professor Maggs says in his supplemental report in terms

15 that this article only applies to physical things.

16 I don’t blame my learned friend at all. It may be that

17 because this withholding point isn’t even pleaded, it

18 wasn’t worth going to, but I can certainly take

19 instructions on what we say about Article 128, if that’s

20 one way of trying to break the deadlock, my Lord. Maybe

21 if there is no case pursued about it, it doesn’t really

22 go anywhere anyway.

23 MR JUSTICE HILDYARD: Exactly. I just don’t know.

24 MR MILNER: I took the view that this point was not one that

25 was going to be very material either way, so I didn’t

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

155 :1 spend time on it. I have looked at Article 128 and

2 I can read what it says, but it is not for me to

3 translate it for the court, probably.

4 MR JUSTICE HILDYARD: No.

5 MR MILNER: But it may be that we can come to an agreement

6 about a translation, at least.

7 MR JUSTICE HILDYARD: Could you?

8 MR MILNER: And insofar as it is material your Lordship will

9 at least be able to see what the words are.

10 MR BIRT: It’s certainly not a problem for us to supply

11 a copy of Article 128, and it may be if this isn’t

12 really a basis for any claim that’s being pursued and it

13 is only background, it doesn’t matter in either event.

14 MR JUSTICE HILDYARD: Well, my understanding is that

15 Dr Gladyshev urges not as it being directly applicable

16 but it being an analogy; is that right?

17 A. That’s correct, and I’m sorry about the confusion about

18 the Savilova case. It was not intentional, of course.

19 One thing here, though, about the thing, and why

20 there may be confusion about it. There is a second part

21 of the article on withholding, which is said that in

22 relations with lay people, normally it is the thing that

23 I am withholding that I held from you, so it’s — in

24 general, it is a physical thing.

25 However, in this particular case, it is nixed by the

156 :1 third paragraph which is said that it does not apply to

2 merchants or companies, so if there are commercial

3 parties to the contract, then the normal situation,

4 which although legally not exact, does not apply. So

5 it’s not a situation of paragraph 2 that we are under,

6 it’s a situation under paragraph 3, whether there are

7 merchants or commercial companies.

8 In this way, «thing» defined as including money or

9 commercial paper and securities is quite pertinent.

10 MR JUSTICE HILDYARD: Well, I shall proceed as follows, but

11 you must correct me if I am wrong in doing so, and

12 counsel must eventually correct me also. I am

13 proceeding on the footing that you refer to this by way

14 of analogy. You say that the agreement made in December

15 was not a pledge. You say it’s most like a withholding

16 agreement, but you don’t say it is a withholding

17 agreement, and to Professor Maggs who says in any event

18 the withholding regime is strictly limited to physical

19 objects, of which you can take possession, you say not

20 so because of the general 128 definition, and in any

21 event, the parties are free to adopt, by analogy or

22 otherwise, the withholding regime by reference to

23 ownership rather than possession; have I basically

24 reflected your evidence so far?

25 A. Yes, that’s my position, yes.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

157 :1 MR JUSTICE HILDYARD: I had better look at Article 128, but

2 I had better be reminded also the genesis in which this

3 came into the record at a later stage; is that fair?

4 MR BIRT: My Lord, yes.

5 MR JUSTICE HILDYARD: Okay.

6 MR BIRT: I’m going to ask you some questions about the

7 obligations on a pledgee of property, so moving off the

8 shares and on to the property now.

9 A. Yes.

10 Q. And it appears from the joint memorandum — we will go

11 to it in a minute — that you are largely agreed, you

12 and Professor Maggs, that a pledgee, when acting in

13 realisation of the pledged property, would only be

14 liable to the pledger, another affected party, if it had

15 acted in bad faith, effectively dishonesty, in being

16 complicit in an unlawful auction or wrongly interfering

17 in that auction?

18 A. Yes.

19 Q. Professor Maggs says that if there’s nothing specified

20 in the pledge agreement, the pledgee has to realise

21 security through the court bailiffs or a licensed

22 auction house, and that a pledgee has no obligation to

23 ensure that the bailiffs or the auction house comply

24 with the law.

25 A. Yes.

158 :1 Q. And that a pledgee is only liable if it illegally

2 interferes with the sale, and absent that sort of

3 interference, only the bailiff or the auction house

4 bears liability if the auction is unlawful.

5 A. It’s a bit too narrow for my taste, but one can imagine

6 again situations where, through certain actions, the

7 genuine bidding process is subverted, and the pledgee

8 would be liable.

9 Q. Let’s just explore it a bit further then. If we have

10 a look at the joint memorandum, please, at {E4/15/18}.

11 A. Yes.

12 Q. There at paragraph 104 you said that:

13 «Security must be realised in good faith, with

14 a pretence of form not being an excuse for an abuse of

15 right. If an organiser of the auction and a pledgee are

16 complicit in abuse of right and/or other wrongdoing,

17 they are liable jointly and severally under

18 Article 1080.»

19 It encapsulates, I think, what you just said.

20 I don’t think you have been able to find any case

21 where that sort of claim has succeeded, have you?

22 A. I don’t remember doing so.

23 Q. And if we can go on down paragraph 107, Professor Maggs

24 says:

25 «The results of an auction will stand, even if the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

159 :1 amount realised is low, if the rules concerning auctions

2 were followed.»

3 I think you would agree with that with the caveat

4 that it might be different if there was an abuse of

5 rights or bad faith?

6 A. I would say that the low price by itself is not

7 an actionable offence, but you have to look into certain

8 circumstances around it.

9 Q. And —

10 A. Depending, of course, on what you mean by low price. If

11 it’s low above the initial asking price, or if you knock

12 it down for your own sake, of course, it’s a bit

13 ambiguous.

14 Q. And Professor Maggs goes on to say in 108:

15 «… if an auction of pledged assets was conducted

16 by court bailiffs or under a court order, liability for

17 any violation of auction rules would fall upon the court

18 bailiffs’ service or the independent auction house that

19 conducted the auction, not upon the pledgee.»

20 A. No, I don’t agree with this.

21 Q. Can I just ask my question? In the absence of any

22 dishonesty on the part of the pledgee, what he says is

23 right, isn’t it?

24 A. It depends on the facts. There may be a conspiracy

25 which would be actionable under Article 1080.

160 :1 Q. And if we just look forward to paragraph 112,

2 {E4/15/19}, and what you say there, just on the next

3 page, you say:

4 «If the auction was conducted unfairly, in

5 an abusive manner, even if formally correct, and the

6 result was harmful, the wrongdoers may be liable under

7 the combined effect of Articles 10 and 1064 (and/or

8 Article 393).»

9 Just picking up that, when you say «the wrongdoers»

10 there, who are you talking about?

11 A. Sorry?

12 Q. When you say «the wrongdoers»?

13 MR JUSTICE HILDYARD: I’m so sorry, where are you looking?

14 MR BIRT: I’m sorry, I’m looking at paragraph 112 of

15 the joint memorandum.

16 MR JUSTICE HILDYARD: So sorry.

17 A. The wrongdoers, as an example, participants in

18 a conspiracy to abuse the bidding process.

19 MR BIRT: Right, so those people who have abused their

20 rights?

21 A. Who abused their rights or violated a law or who were

22 participating in the conspiracy to harm another person

23 using a perfectly legal form of auction to cause

24 unlawful harm.

25 Q. So it’s an abuse of rights point. I suppose you do

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

161 :1 refer to Article 10 there, yes.

2 A. No, it’s an Article 1080 point. Abuse of right may come

3 into it.

4 Q. And I think we have — well, yes, you talk in

5 paragraph 109, sorry to jump forwards and backwards, at

6 paragraph 109 you said:

7 «Depending on the facts, the described conduct may

8 give rise to a joint and several liability under …

9 1080 … or 1064 or 401. If security has been sold

10 dishonestly at an undervalue to the knowledge of

11 the creditor, the Russian courts regard this as a civil

12 wrongdoing that attracts liability.»

13 I just wanted to ask you what you mean there by

14 an «undervalue». Where property has been sold at

15 an auction, how do you assess whether or not it has been

16 sold at an undervalue? Do you mean there has to be

17 an ex post facto investigation into undervalue?

18 A. I think if the allegation of undervalue is important, it

19 has to be established forensically under whatever rules

20 there are.

21 Q. If the rules for an auction have been followed, the

22 value at auction itself is, at least prima facie,

23 the right value, isn’t it?

24 A. I don’t know. Not necessarily. I know of a couple of

25 prominent examples where rules of an auction have been

162 :1 followed but the initial valuer had evaluated the pledge

2 wrongly.

3 Q. But then if the rules are followed and there is nothing

4 else wrong with it, you would expect the auction process

5 to correct that by having bidders bid a sufficient price

6 to reach the market price, wouldn’t you? That’s

7 generally the idea of a competitive auction?

8 A. Not necessarily. The bidders may be in conspiracy with

9 each other, or one of the bidders may be not a genuine

10 one.

11 Q. Yes, but absent those facts, which you would have to

12 prove separately, in other words, you can’t work

13 backwards, can you? You can’t infer that there must

14 have been something wrong simply from the undervalue,

15 and I think to be fair to you, you said that earlier:

16 you have to have more than just the undervalue?

17 A. Yes, that is correct, so I said that if there was

18 a deliberate decision to undervalue in order to profit

19 myself and to harm the other, this by itself, is of

20 course, an actionable offence. But if there is

21 a genuine mistake or undervalue to some objective

22 factors, this is another matter. So undervalue by

23 itself is not a factor. Undervalue in conjunction with

24 intent to harm me and to enrich you, this is the

25 actionable offence.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

163 :1 Q. And in a normal case, the pledgee is entitled to trust

2 the auction process, isn’t he? He gives the property to

3 the bailiff, for example, and then there’s an evaluation

4 and then the auction process takes over.

5 A. I don’t know if trust comes into it. It’s a matter of

6 following the law.

7 Q. Yes, sorry, what I mean is that the pledgee doesn’t then

8 have a role in, for example, setting the price?

9 A. He might have.

10 Q. We will come to the rules in a minute, but isn’t it

11 right that the price is set by a valuer appointed by the

12 bailiff or the auction house?

13 A. Yes, but pledgee may unlawfully interfere with it.

14 Q. Yes, well, you are positing that the pledgee might do

15 something unlawful, but I am saying in a normal case the

16 pledgee doesn’t have an input into the price.

17 A. If there is a normal case and nobody is hurt, then

18 everything is all right again, of course.

19 Q. Even if the pledgee thinks, take an example, that the

20 price set is a bit low by the valuer, the pledgee —

21 I mean, remembering that the pledgee has an interest in

22 this property realising as much as possible, in the

23 normal case. Even if the pledgee thinks the price is

24 a bit low, there is nothing that he can do about it, is

25 there? He can’t apply for the auction to be invalid

164 :1 simply because the price is low or because bidders

2 didn’t bid higher than they actually did?

3 A. In the normal process, other things being equal, there

4 is no conspiracy between a pledgee and evaluator, the

5 pledgee didn’t interfere with objective factors that

6 would influence the price and doesn’t intend to harm the

7 other party and all the rules are followed and no bad

8 faith here, yes, of course.

9 Q. I don’t think you have cited any case where an auction

10 of pledged property in accordance with the auction rules

11 has been invalidated because of what was said to be

12 a low sale price?

13 A. No, I didn’t look very hard, but if you remember, I just

14 touched the topic very briefly.

15 Q. And Professor Maggs makes some other points related to

16 this. I just want to check that you agree with them.

17 The pledgee has no right to control the manner in

18 which the bailiff service selects the auctioneer, does

19 he?

20 A. Normally he doesn’t.

21 Q. Or the manner in which the auctioneer chooses to conduct

22 the auction?

23 A. Normally he doesn’t.

24 Q. And the pledgee doesn’t carry any liability to the

25 pledger for whatever the bailiff service or the

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

165 :1 auctioneer does?

2 A. Normally it doesn’t. Unless, of course, normal caveats

3 apply, 1080 conspiracy, bad faith and so on.

4 Q. This is all subject to somebody being able to prove that

5 there was bad faith in the way you say?

6 A. Yes, but it would trump the —

7 Q. And when property realisation is conducted through

8 a court process, it’s the court that determines the

9 initial sale price for the asset?

10 A. Sorry?

11 Q. When property realisation is conducted through a court

12 process, it’s the court that determines the initial sale

13 price for the asset?

14 A. Yes, the decision of the court will approve of

15 the valuations.

16 Q. Yes, and once it has done so, neither the pledgee or the

17 bailiff or the auction organiser can increase the

18 starting price. That then is the starting —

19 A. That’s correct.

20 Q. The only way to increase the sale price is through

21 bidders placing their bids?

22 A. Yes.

23 Q. I think there is a requirement in Russian law that there

24 needs to be at least two registered bidders?

25 A. Yes, otherwise the auction will be declared void.

166 :1 Q. Yes. Could we just have a look at the rules that are

2 exhibited to — well, at least Professor Maggs’ report.

3 {E2-E3/12/160}, please. Sorry, this starts at page 159.

4 This is an excerpt from the law on the enforcement

5 procedure that Professor Maggs has exhibited. This is

6 something you are familiar with, I imagine?

7 A. Yes, I am.

8 Q. And I think the rule that we are just looking at, it is

9 on page 160.

10 A. Mm hmm.

11 Q. That’s under Article 91.

12 A. Mm hmm.

13 Q. So:

14 «The organiser of a public sale shall announce the

15 public sale unsuccessful if:

16 «1) applications for participation in the public

17 sale have been filed by less than two persons;

18 «2) the participants in the public sale have failed

19 to attend it, or if one participant in the public sale

20 attended.»

21 I think that’s the rule, isn’t it? So you have to

22 have two applications and two attendees?

23 A. Yes, but this is not the full rule. The full rule is,

24 of course, Article 477 of the Civil Code which sets the

25 top level rule that an auction where there is only one

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

167 :1 bidder is void.

2 Q. Let’s come back to that. I didn’t catch what article

3 you were referring to.

4 A. 477.

5 Q. Yes, 477. We will come back to that.

6 I think the rule is, isn’t it, that you need to have

7 your two bidders apply and participate and then the

8 third rule here that if neither of the participants in

9 the public sale who attended raised the initial price of

10 the property.

11 So in other words, you have to have two applicants

12 and participants and one of them has to bid at least the

13 initial price of the property.

14 A. Yes. Yes.

15 Q. In other words, they don’t both have to put bids in?

16 A. Yes, bids, not repeat, but you have to increase.

17 Q. Yes. And I think there’s also the mortgage law where

18 one finds some similar rules. What we’ve been looking

19 at is the law enforcement procedure, and is it right to

20 say that applies to a court — sort of enforcement of

21 a court judgment, for example?

22 A. Yes, apart from mortgages.

23 Q. Yes, and then the law on mortgages applies to

24 the enforcement of mortgages, which is sort of pledge of

25 real property?

168 :1 A. Yes, exactly.

2 Q. And we can find those rules, just for completeness, at

3 {E2-E3/12/329}.

4 It starts, I think, this excerpt, at 328. At 329 is

5 Article 58 at the bottom of that page. They are in

6 similar terms.

7 A. Yes. And Article 58 here repeats the rule of the Civil

8 Code that one bidder is present at the public auction

9 would make the public sale void.

10 Q. Yes, you need two present and one to bid at least the

11 starting price?

12 A. Yes, you need two genuine bidders.

13 Q. Yes. Then can we just turn over the page so we get

14 Article 58(3), and this is what happens if the sale is

15 declared void, so if you haven’t had enough bidders or

16 you haven’t had somebody bidding the starting price.

17 A. Not quite. First, what would happen is paragraph 2

18 would happen, where the mortgagee will have the right to

19 buy the property at the asking price, which of course

20 would be much more favourable to the mortgagor than

21 paragraph 3, where the price will have to be lowered by

22 15 per cent.

23 Q. Yes, well it may depend on whether the mortgagor thinks

24 that that’s a fair price or not, or whether it’s maybe

25 too much.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

169 :1 A. Well, Article 2 says that, so …

2 Q. It gives him the opportunity to buy it at that price,

3 doesn’t it?

4 A. Yes.

5 Q. And if he doesn’t does so — and, of course, that has to

6 be agreed with the mortgagor, so effectively it is

7 a purchase and sale contract?

8 A. It is.

9 Q. And then if there is no such agreement, then you start

10 going down a sliding scale of repeat auctions?

11 A. Yes.

12 Q. With the starting price reduced first of all by

13 15 per cent, and then if that doesn’t generate a winning

14 bid, down at 25 per cent lower.

15 A. That’s correct.

16 Q. I think there are similar rules under the enforcement

17 rules.

18 A. Generally, yes. They will be given answers, but the

19 process is similar.

20 Q. And it’s right, isn’t it, that there is no requirement

21 in the Russian auction rules that bidders be independent

22 of each other, or be non-affiliated?

23 A. There is no express requirement but on facts that may

24 fall under Article 10, because the auction, and there is

25 commentaries to this, the auction has to be a genuine

170 :1 one, it cannot be a sham because the purpose of

2 the auction is to raise the price to bring as much money

3 as possible. If the auction is rigged, this is not

4 a proper auction.

5 Q. And I think Professor Maggs has exhibited a case —

6 I don’t know if you have looked at it — it is at

7 {E2-E3/12/264}, a case called NIK-TRAST v Federal

8 Bailiff Service, and this was a claim, I think it was to

9 seek the invalidation of the auction of some property

10 that had been seized by the court bailiff to recover

11 a debt owed by NIK-TRAST to a bank.

12 One can see on page 266 the successful bidder was

13 a company called April LLC, that’s at the top of

14 the page. Then if we can just go to {E2-E3/12/267}, you

15 have had now various provisions of the Code recited, but

16 the court now finds:

17 «It was established by the court [the third

18 paragraph down] that V.V Miliukhin, the founder

19 of April LLC, and M.B Gisheva, a bidder, have a common

20 child.»

21 So the opinion of JSCB Rosbank was that that fact

22 proved that they were affiliated with each other, that

23 was one of the bases on which they were trying to set

24 aside the auction, and the court here found that the law

25 did not preclude affiliates from participation in

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

171 :1 a public auction:

2 «… the mere fact that such affiliates participate

3 in a public auction may not be treated as actions on the

4 part of the auction organisers which will or may prevent

5 restrict or eliminate competition.»

6 So in other words, the mere fact that bidders are

7 affiliated with each other is not a reason to invalidate

8 an auction, is it?

9 A. That puts it slightly differently. I would say that the

10 court found that having a common child is tantamount to

11 tortious conspiracy.

12 Q. They don’t actually talk about tortious conspiracy here,

13 do they.

14 A. No, they don’t.

15 Q. They talk about whether being affiliated is a breach of

16 the auction rules?

17 A. Yes, and they found that having a common child is not

18 necessarily being affiliated in the commercial sense or

19 having a tortious conspiracy within 1080 which might

20 have been an application of the court.

21 Q. You are right to say that they are not talking about

22 affiliation in a commercial sense, but I think what they

23 are saying, they just say the rules don’t include

24 affiliates from participation. In other words, the mere

25 fact of affiliation is not a problem in itself.

172 :1 A. In itself the affiliation, especially in this case where

2 the common child is — the nexus does not invalidate the

3 auction by itself.

4 Q. Thank you.

5 Then some other points made by Professor Maggs, can

6 I just check them with you, that bidders in an auction

7 are free to act in their own best interest, aren’t they?

8 A. Yes, in their own best, genuine interest, correct.

9 Q. And their best interest is usually to bid no higher than

10 they need to.

11 A. Exactly.

12 Q. And the duties of the auction organisers are, first, to

13 comply strictly with the requirements of the laws

14 governing the auctions?

15 A. Yes.

16 Q. And those rules are designed to provide a balance

17 between the interests of the creditors in the speedy

18 liquidation of property for payment of debts, and the

19 interest of debtors in obtaining maximum prices?

20 A. They might be designed for that. I don’t think they are

21 quite entitled to look into the detail of the laws.

22 They are required to follow the laws and to behave in

23 good faith without violation of Article 10.

24 Q. No. And they are not permitted to deviate from those

25 rules to favour either creditors or debtors in any

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

173 :1 particular case?

2 A. No.

3 Q. And if they do deviate from the rules in a way that

4 results in liability, that would be a liability of

5 the auction organiser, not the pledgee?

6 A. Yes.

7 Q. I’m just going to ask you about the period of notice for

8 an auction. Under the mortgage law — we just had it

9 open. Do you see that was {E2-E3/12/329}. This is part

10 of Article 57, and then paragraph 3 there this provides

11 that:

12 «An organiser of public sales shall place a notice

13 about future sales at least ten days before but at the

14 earliest 30 days before holding them [placed] in

15 a periodical which is an official source of

16 information …»

17 It then tells you what to do. But just looking at

18 the time period, the period provided for auctions under

19 the mortgage law is to place a notice at least ten days

20 before, but at the earliest, 30 days before the auction.

21 A. Yes.

22 Q. So there is no ground for complaint if it is placed,

23 that it is not advertised earlier than 30 days, is

24 there?

25 A. Earlier than 30 days, no.

174 :1 Q. I think in your report you —

2 A. I did.

3 Q. — say that it is a minimal notice period, but that’s

4 not right, is it?

5 A. That’s not right.

6 Q. And I think you go on to say that there might be a case

7 of abuse of right if you haven’t advertised the property

8 for longer than 30 days, but that can’t be right, can

9 it, where the law — as you have said, they have to

10 stick to the law and the law says between 10 and 30

11 days?

12 A. Yes.

13 Q. Thank you. I think you rely on a tax case to do with

14 affording reasonable time, but I think in view of that

15 provision I am not going to have to take you through

16 that.

17 Professor Maggs also says that if the auction rules

18 are followed, the results of the auction will stand

19 unless they are challenged through a court process to

20 declare their invalidity.

21 A. Not necessarily, if they are subject to all the usual

22 strictures and caveats. The defence that I have

23 complied with formal rules and while hurting somebody

24 else in a given set of facts may apply — may not apply.

25 Q. Well, I suppose if the auction organisers have abused

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

175 :1 their rights in some way they may be liable, but

2 otherwise the results will stand, won’t they?

3 A. If organisers of the auction complied with all the

4 rules, they have not abused their rights and there is no

5 other cause of action against them, yes, of course it

6 will stand.

7 Q. And if there is a failure to observe the auction rules,

8 the remedy is to obtain a declaration of invalidity of

9 the auction under Article 449 of the Code?

10 A. Not necessarily, under Article 12 of the Civil Code you

11 may present — you have a choice of remedies and you

12 may, of course, present a claim in tort.

13 Q. And the limitation period for applying to declare

14 an auction as invalid is one year after it is held,

15 isn’t it?

16 A. Yes, but it doesn’t affect your right under Article 1064

17 in conjunction with Article 12, which is an absolute

18 right of choice between remedies.

19 Q. Well, Professor Maggs says that there is nothing in

20 the rules which would allow resort to a general tort

21 remedy under 1064. Your remedy is to apply to declare

22 the auction invalid and then obtain restoration of

23 property under Article 167; that’s right, isn’t it?

24 A. Rules doesn’t say this, but rules do not abolish

25 Civil Code, which would prevail.

176 :1 Q. But it is an example of one of the principles we were

2 discussing earlier, isn’t it, which is that if there is

3 a particular remedy provided by the codes to declare

4 your auction invalid, then that’s where you need to go

5 to obtain your redress. You can’t have parallel claims

6 or competing claims?

7 A. No, we didn’t talk about that. We were talking about

8 vindication and restitution. Whereas Article 12 talks

9 about different sorts of what in Russia we call methods

10 of defence of civil rights, and there is an absolute

11 right of a person, unless it’s expressly restricted by

12 a statute, to go either specific administrative remedy

13 or setting aside a contract or applying for a claim in

14 tort.

15 Q. Could we move on just to a few points about Article 179,

16 please.

17 A. Yes.

18 MR BIRT: My Lord, just to give you an update on timing,

19 because we are reaching that time of the day when

20 I probably owe you one, we are quite close to the end.

21 We may not finish by 4.45 pm, but I would hope to finish

22 by 5.00 pm. Now, I don’t know how much re-examination

23 there is, or how many questions my Lord has, or whether

24 that would then push things too far. I am happy to

25 carry on for as long as you and the witness want me to.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

177 :1 That’s where we are, my Lord.

2 MR JUSTICE HILDYARD: I am grateful to you.

3 Dr Gladyshev, it’s been a long day for you. I am

4 anxious that you should feel that you have not been made

5 to answer questions when you are excessively tired. How

6 do you feel?

7 A. I would prefer to finish today.

8 MR JUSTICE HILDYARD: You would prefer to finish today?

9 A. Yes, if it is all right with you, my Lord.

10 MR JUSTICE HILDYARD: And does that go for you, Mr Milner?

11 MR MILNER: Yes, my Lord.

12 MR JUSTICE HILDYARD: Yes.

13 Well then, let us see if that is what we can do.

14 I must say that I am towards the end of endurance,

15 because it has been a canter through Russian law, but

16 let us continue for the moment.

17 Yes.

18 MR BIRT: Article 179 of the Code, I think it’s agreed

19 between you that a contract made under duress may be

20 declared invalid by a court on the suit of the victim.

21 A. Yes.

22 Q. And damages under Article 179(2) I think you are agreed

23 deals with out of pocket damages but does not include

24 lost profits?

25 A. Can I see the Article 179, please?

178 :1 Q. Yes, you can. I think in {E2-E3/12/52}, I hope …

2 MR JUSTICE HILDYARD: Where is this dealt with in his

3 witness statement? In his report?

4 MR BIRT: It may be that the easiest — that’s where

5 Professor Maggs deals with it, and the joint memo, maybe

6 I should just turn that up to orientate everybody, is

7 paragraph 88 onwards. Actually, it is set out there as

8 well, that’s probably the better place to go.

9 {E4/15/14} and {E4/15/15}.

10 A. Yes, but can I see the text of the Article 179?

11 Q. Yes, it should be there on page 15.

12 MR JUSTICE HILDYARD: Do you know where it is in his main

13 report?

14 MR BIRT: In Dr Gladyshev’s report?

15 MR JUSTICE HILDYARD: Yes.

16 MR BIRT: I think it’s around about paragraph 338, my Lord,

17 page {E4/14/55}.

18 MR JUSTICE HILDYARD: Thank you so much.

19 MR BIRT: Yes, pages 54 and 55.

20 A. Yes.

21 MR JUSTICE HILDYARD: Yes, thank you.

22 MR BIRT: I was just exploring with you the damages

23 available under 179(2).

24 A. Yes.

25 Q. I think you agree that under 179(2) the phrase there you

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

179 :1 have translated as «actual losses» does not include lost

2 profits?

3 A. No, actual damages is a defined term and it is defined

4 in Article 15 on the Civil Code.

5 Q. Well, I am just reading what you say at 93 in the joint

6 memorandum.

7 A. Yes, and I just confirmed it. Actual losses are defined

8 in Article 15, and in Article 15 they are distinct from

9 lost profits, so they did not include them. I wouldn’t

10 characterise them as out of pocket expenses, which is

11 not true, but they — or various things, but it’s

12 a defined term in Article 15.

13 Q. I see, you are taking issue with what Professor Maggs

14 describes as out of pocket damages in the previous

15 paragraph?

16 A. Yes.

17 Q. But you are agreed that Article 179(2) doesn’t include

18 recovery for lost profits?

19 A. Yes, that I agree with.

20 Q. But you go on to say that your position is you could

21 formulate a different claim, a general claim for

22 compensation of damages, which would get you

23 compensation, including lost profits, if justified by

24 the facts?

25 A. Yes.

180 :1 Q. And that would be a claim under 1064, would it?

2 A. It might be a claim under 1064, it might be — yes, it

3 most probably would be a claim under 1064.

4 Q. And I think you know our position, we have been through

5 it earlier, which is that you could not have such

6 a claim because if your claim is under Article 179, that

7 is what your claim is, and you can’t bring a separate

8 claim under 1064 to get round the restrictions on

9 damages in 179?

10 A. I don’t see why not, because under Article 12 you have

11 an absolute choice of remedies, and as I quoted several

12 times in my report, and we may look at it, the highest

13 Arbitrazh court, the Supreme Court, said that this is

14 the absolute right of a person to choose between

15 remedies. A remedy may be a setting aside of a contract.

16 Another remedy which is distinct from it and between

17 which I am entitled to choose under Article 12 is the

18 remedy of bringing a claim in tort. If there is no

19 statutory injunction against it which has to be

20 explicit, then I am free to choose it.

21 Q. And it’s right, isn’t it, that in terms of a claim under

22 179 to invalidate a contract, it is only one of

23 the parties to that contract that can bring that claim?

24 (Pause).

25 That’s what Professor Maggs says?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

181 :1 A. Yes, it says on suit of the victim.

2 Q. Yes.

3 A. Well, the victim, if the party is the victim, yes.

4 Q. If you look at paragraph 1 of 179, doesn’t it have to be

5 because the opening words are about fraud, duress,

6 threat, bad faith agreement of one party with another

7 party; in other words, it’s one of the parties to

8 the contract against whom the fraud, duress or threat

9 has been exercised, and that is the victim. In other

10 words, it’s the —

11 A. Yes, it’s very reasonable.

12 Q. It is certainly Professor Maggs’ view at paragraph 201

13 of his report that it is only the party that can bring

14 a claim to invalidate it under Article 179.

15 A. Yes, it should be the victim.

16 Q. And in terms of the return of the value of anything

17 transferred under an agreement that is declared invalid

18 under 179, that is a return by the transferee to

19 the transferor, and that can only be effected if those

20 are both entities that are parties to the contract in

21 question; isn’t that right?

22 A. Sorry, say it again?

23 Q. I am talking about the return of the value of anything

24 transferred.

25 A. Yes.

182 :1 Q. Under an agreement that is then declared invalid under

2 this provision.

3 A. Mm hmm.

4 Q. In other words, returned by the transferee to

5 the transferor?

6 A. Yes.

7 Q. And that can only be effected if both those entities are

8 parties to the contract in question?

9 A. Yes.

10 MR JUSTICE HILDYARD: Can I clarify, when you said it should

11 be the victim, what did you mean by that?

12 A. Just statutory language, my Lord.

13 MR JUSTICE HILDYARD: I think it has been put to you that

14 only one of the parties can complain, but supposing the

15 person who suffers is some third party, because the

16 arrangement is for the sale of a pledged article. Are

17 you saying it should be the victim in saying: well, the

18 statute has it wrong, or are you saying that’s what the

19 statute says?

20 A. That’s what the statute says, is the victim.

21 MR JUSTICE HILDYARD: So you take «party» to mean victim?

22 A. Yes.

23 MR JUSTICE HILDYARD: Not one of the parties to the auction

24 contract; is that right?

25 A. I’m sorry?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

183 :1 MR JUSTICE HILDYARD: Or is this not to do with …

2 MR BIRT: This, certainly in this case, as far as I am

3 aware, provision doesn’t arise in relation to any

4 auction contracts.

5 MR JUSTICE HILDYARD: Right.

6 MR BIRT: One of the cases pleaded by way of damages by my

7 learned friend’s client is that — their case is that

8 the December 2008 agreement is an agreement, that’s

9 their case. Then their primary case is: but we seek to

10 set that agreement aside under Article 179.

11 MR JUSTICE HILDYARD: I was just trying to bottom out in my

12 own mind, and sorry about this, where the point that

13 Professor Maggs makes that it only arises as between

14 parties takes one; ie are there some contracts which

15 might be within Article 179 which are sought to be sued

16 under that article, though the person is not a party?

17 MR BIRT: Well, the point I am trying to ask the witness

18 about, probably ineptly, is that Article 179 is

19 a mechanism that is available to the party to

20 the contract.

21 MR JUSTICE HILDYARD: Yes.

22 MR BIRT: Whose, if you like, put it this way, will has been

23 oppressed under one of the methods in the first line.

24 MR JUSTICE HILDYARD: Well, I am a sorry to make a mess of

25 that, but my understanding is that you say it is one of

184 :1 the parties, that is to say it is the party who has

2 suffered?

3 A. Yes.

4 MR JUSTICE HILDYARD: Right.

5 MR BIRT: Can we just have a look at what is meant by duress

6 in this context, please. If we can turn forward in

7 Professor Maggs’ report to paragraph 203, which is

8 {E2-E3/12/652}. No, sorry, that must be a wrong

9 reference.

10 MR JUSTICE HILDYARD: 12/52?

11 MR BIRT: I beg your pardon, {E2-E3/12/52}. I have a

12 rogue 6. I think Professor Maggs set this out in his

13 report, and I don’t think you commented upon it, so

14 I think it is probably not too controversial. He starts

15 at paragraph 202 saying:

16 «… Article 179 uses two Russian words to refer to

17 what is called ‘duress’ in English. The first is …

18 [a word meaning force in English] and the second is

19 [a word meaning threat in English].»

20 He goes on to say:

21 «A leading commentary on the Civil Code elaborates

22 on the meaning of these terms, defining ‘force’ as

23 meaning causing actual physical harm to a person or

24 property, and ‘threat’ as being significant

25 psychological pressure.»

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

185 :1 Now, I trust you agree with those as descriptions?

2 A. I don’t think that is entirely correct. It is putting

3 a bit too high a plank on it. It has to be a credible

4 threat. It is a threat, but it has to be credible.

5 The issue of significant psychological pressure

6 doesn’t come into it, and …

7 Q. Well, could we then just flick forwards to

8 {E2-E3/12/360}. This is the commentary on the

9 Civil Code by Abova and Kabalkin, I think this is one of

10 the leading commentaries on the Code, isn’t it?

11 A. One of four, I would say.

12 Q. And under paragraph 3 on the left-hand side there, or

13 sorry on the page, they refer to violence, I think, for

14 the word we have been using perhaps is duress. It

15 means:

16 «… direct physical action on the personality of a

17 participant in a transaction or directly to a party, if

18 it is an individual.»

19 Or it can be, next paragraph, the form of action on

20 the property of a party. So that is, if you like, the

21 physical harm to a person or property.

22 A. Yes.

23 Q. Then paragraph 4:

24 «Threat is a psychic action on the will of a person

25 for the purpose to force him into a transaction under

186 :1 the threat of physical violence, moral suffering,

2 distribution of information which will cause

3 reputational damage, disclosure of information on

4 financial position, or taking any other unlawful

5 action.»

6 Then they go on to say the threat must be real and

7 not presumptive, and it must be material or substantial

8 in terms of those values which it puts in danger.

9 I think that is the source of what Professor Maggs said

10 there.

11 A. Yes, and I would agree with this, but Professor Maggs

12 puts the plank somewhat higher.

13 So if we have a real threat and not a credible

14 threat and not just an empty threat, then the threat

15 shouldn’t be trivial and the threat may involve lawful

16 consequences, and also along with unlawful consequences.

17 So if I threaten to disclose something or I threaten

18 to — I don’t know — some lawful actions against you

19 which you would find unpleasant, this qualifies as

20 a threat, such as acceleration of a contract, for

21 example, of loan, and this — the psychological thing

22 which the leading commentary does not qualify as

23 significant psychological coercion, this is not fair, it

24 distinguishes it from the property and from the person;

25 that is to say it’s not a bodily harm and it’s not

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

187 :1 a harm to your property. It takes place in your head.

2 So this is the point. The significant psychological

3 pressure, it’s not water torture, it’s just a credible,

4 non-trivial threat, full stop.

5 Q. I think that is probably a little vague, isn’t it, but

6 it says it is a psychic action on the will of a person,

7 for the purposes of forcing him into a transaction.

8 I mean, isn’t it something that is effectively

9 sufficient to subvert his will in the circumstances?

10 A. Sorry, where?

11 Q. I am reading from the sentence immediately after the

12 number 4:

13 » … psychic action on the will of a person for the

14 purpose to force him into a transaction …»

15 I’m putting to you that what that really means is

16 sufficient to subvert his will in the circumstances?

17 A. Yes, that means that you would do things which you would

18 not otherwise do. So this is what it meant in Russian

19 parlance, this language is quite usual, it goes back

20 from the Soviet times, it just takes the language from

21 top level psychology and says, essentially, that what is

22 psychic action on the will is that otherwise I would do

23 things which I wouldn’t otherwise do. A contract is

24 a meeting of wills, so my will is subverted if

25 I sign a contract which I would not otherwise do, and

188 :1 I do this because I am being threatened and it takes

2 place in my head. There is no visible bodily damage and

3 no bodily damage takes place at all, no damage to my

4 property. It’s just a credible non-trivial threat, and

5 it may be a threat of a certain lawful action,

6 acceleration of a loan.

7 Q. And then just the next page, if we could quickly look at

8 that, page 361, against paragraph 6, that is talking

9 about what we have described, I think, from time to

10 time, as the unconscionable one-sided transaction, where

11 it says —

12 A. The translation is wrong. It says here:

13 «A combination of adverse circumstances forces

14 a person to act against his will.»

15 In the Russian text it says:

16 «A combination of adverse circumstances forces

17 a person to act not quite within his will.»

18 So there is, against a real plank is always lower.

19 Q. Okay. And if we just read down a bit:

20 «The occurrence of adverse circumstances is not in

21 itself a ground to declare a transaction invalid. The

22 mandatory sign of such a transaction is the extremely

23 unfavourable conditions of the transaction. This was

24 the case, for example …»

25 A. Sorry to interrupt, are we in the same paragraph?

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

189 :1 Q. Yes, paragraph 6.

2 A. Paragraph 6.

3 Q. So:

4 «The mandatory sign of such a transaction is the

5 extremely unfavourable conditions of the transaction.»

6 Then three lines further down:

7 «The second mandatory condition of such

8 a transaction is bad faith conduct by the other party:

9 knowing of the adverse circumstances, it intentionally

10 makes a transaction on the conditions which are

11 extremely unfavourable for that party.»

12 I am just, really, using that as an expansion of

13 what we have been referring to as the one-sided

14 unconscionable bargain element of Article 179.

15 A. Yes.

16 Q. Thank you.

17 Very briefly, Article 179 also covers fraudulent

18 misrepresentation, and I think you have confirmed in

19 the joint memorandum at paragraph 100.

20 A. Mm hmm.

21 Q. That such a misrepresentation is regarded as fraud if

22 made dishonestly.

23 A. Yes.

24 Q. And the converse is true, isn’t it; that if it is not

25 made dishonestly, then it is outside Article 179?

190 :1 A. Yes, and again there is terminology probably here

2 because it’s not fraudulent misrepresentation, it’s

3 not — Article 179 just says deception.

4 Q. Fine. In the context of somebody inducing another party

5 to enter into a written agreement by a misdescription of

6 its terms, which to fall within here would have to be

7 dishonest, in those circumstances where the party

8 entering into the agreement has the opportunity to read

9 the document, do you agree with Professor Maggs that

10 Russian law does not then permit recovery for such

11 a misrepresentation? In other words, if the party to

12 whom the misrepresentation has been made actually has

13 the written document and an opportunity to read it, then

14 he can’t recover?

15 A. No, I don’t see any authority for this conclusion.

16 Q. Then I think there are just —

17 A. And just to return briefly to this point, I think if my

18 will is subverted to the extent that I am forced to

19 accept the circumstances on a psychological level as

20 they are, and I am just wrong about their content, so

21 it’s not entirely fair to say that you have read it,

22 there it is.

23 Q. And then I just want to ask you about one other, maybe

24 two other points. Professor Maggs wasn’t asked any

25 questions about the service of the notices of demand

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

191 :1 under the guarantees in this case?

2 A. Yes, and I have not opined on this in my opinions.

3 Q. You haven’t. I think you agree that Article 132 of

4 the Code doesn’t apply to those demands?

5 A. That’s obvious, yes.

6 Q. Yes. If you don’t have any other views about that,

7 I won’t ask you about them. Professor Maggs gave some

8 evidence in his report about what constituted

9 a substantial breach of contract; do I take it you don’t

10 disagree with what he said about that?

11 A. I haven’t — can you show me?

12 Q. If you turn to {E2-E3/12/25}.

13 A. Yes.

14 Q. Can we just have the next page as well, so perhaps start

15 at paragraph 92 and run down to whatever we can get on

16 the screen. It’s just down to 95, because then he goes

17 back into Article 132, which, as you have said, is not

18 a point that you disagree with him on?

19 A. That it’s not the mandatory pre-trial procedure. Not,

20 it is not.

21 Q. That’s right.

22 A. I agree with him. I have read what Professor Maggs has

23 said. My only concern there was that he seemed

24 sometimes to exclude Article 10 out of operation of

25 the whole notice thing; whereas in the Russian practice,

192 :1 Article 10 is historically first developed as a thing

2 about notices primarily. So there was a period where

3 people abused notices in various things. So if

4 a notice, a procedure for notice is envisaged by

5 a contract, it’s not the end of the story, it’s the

6 beginning of it. I have a right to serve a notice in

7 a certain way and if I abuse it, then I am not entitled

8 to certain protections, I may be liable.

9 Q. I accept that. Apart from that abuse of rights point,

10 you are happy with what Professor Maggs says there?

11 A. I don’t remember quite — fairly, I don’t remember what

12 Professor Maggs says on every point there, but I was

13 just not asked to opine on any of the things so I didn’t

14 analyse them seriously.

15 Q. Okay. Then there were some other points that

16 Professor Maggs made in his report. He wasn’t asked

17 about them, but maybe I should just quickly check with

18 you what your view is, if we can go to his report

19 {E2-E3/12/30}.

20 A. Yes.

21 Q. There are a series of questions which were posed here,

22 and on the hypothesis that even if Mr Arkhangelsky

23 hadn’t signed personal guarantees, he nevertheless could

24 be bound by them if certain facts were ultimately found;

25 and in a sense we don’t have to take an awful lot of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

193 :1 time over it, and if you don’t agree with what’s said,

2 that’s okay.

3 A. This is a fairly complex set of facts. I didn’t opine

4 on it.

5 Q. Okay, fine. Is there anything that you remember taking

6 particular issue with in any of this?

7 A. No, which doesn’t mean I may not take issue with it if

8 I gave my mind to it, but I just didn’t read it.

9 Q. Maybe I should just put some of the points to you. If

10 a guarantee was signed by a representative, either with

11 a power of attorney or someone who appears from the

12 circumstances to act as a representative, then the party

13 could be bound under those circumstances?

14 A. There might be circumstances where the party could be

15 bound. I was party to a case where this was vigorously

16 disputed on the facts.

17 Q. And if you have a look at paragraph 117 there,

18 {E2-E3/12/31}, and there are various facts that are

19 pleaded and some of them may well be disputed in this

20 case, but if those facts were found, they were

21 established, then they would with cause a Russian court

22 to find Mr Arkhangelsky bound or liable under a personal

23 guarantee, wouldn’t they?

24 A. I don’t know, frankly. I have to study it rather

25 carefully, but do you really need me …

194 :1 Q. Let’s take some examples. If you look at, for example,

2 7.2.4 there, if he has received and dissipated sums

3 received under a personal loan, even if he hadn’t

4 actually signed it but knowing that there was

5 a document, then he would be liable under it, wouldn’t

6 he, under one or other legal route, such as estoppel,

7 some similar provision, or ratification or abuse of

8 rights? In other words, he wouldn’t be able to deny the

9 fact that he had used the money under the loan?

10 A. That is not a position under a statute but you have to

11 study it on facts, and I really don’t have a ready

12 answer for it since it is not caught precisely by any

13 statutory provision. It might be an abuse of right, it

14 might be a genuine thing. I don’t know.

15 Q. And in relation to the personal loan Professor Maggs

16 said under paragraph 152, which is at page 41 here that,

17 in any event, if he had received the money under the

18 personal loan, even if he said he hadn’t signed it he

19 would be liable to a claim in unjust enrichment under

20 article 1102. I think that must follow, mustn’t it?

21 A. Again, this is a complex set of facts. Other things

22 being equal, if I am unjustly enriched then I am under

23 the regime of unjust enrichment, with whatever it

24 entails.

25 If the relations are more complex, it might be

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

195 :1 decided on facts. Maybe there are overlapping mutually

2 cancelling obligations which I don’t know. If you ask

3 me if there is a regime in the Russian Civil Code which

4 would on facts apply on this case, then it would apply.

5 Q. And a further alternative route might be in relation to

6 ratification under Article 183, mightn’t it?

7 Professor Maggs addresses this at {E2-E3/12/35}, at the

8 end of that page, paragraph 135, even in the absence of

9 abuse of right, he said, the transaction could

10 nevertheless be ratified, and then he sets out the

11 article.

12 A. Sorry, which paragraph are we on?

13 Q. I am looking at paragraph 135. So it’s the end of that

14 page, and perhaps the top of the next one {E2-E3/12/36},

15 where he sets out the relevant article of the Code.

16 (Pause)

17 A. I would agree. I would take a slight exception with the

18 last words «or by … conduct». So the conduct is

19 decided on facts, and I don’t see it in the statutory

20 rules.

21 Q. Well, he goes on in paragraph 136, which you can see

22 there, saying there is a wide range of evidence

23 permitted to allow a court to find a transaction has

24 been ratified, and he then cites something, explaining

25 what —

196 :1 A. And then we go on to the facts of the case, which I am

2 reluctant to delve into.

3 MR BIRT: Okay, fine.

4 My Lord, those are my questions. Thank you.

5 Thank you, Dr Gladyshev, sorry I have taken so long.

6 MR MILNER: No re-examination.

7 Questions by MR JUSTICE HILDYARD

8 MR JUSTICE HILDYARD: Dr Gladyshev, just one or two

9 questions. First of all, on the auction process and the

10 business of challenging that, can I just clarify your

11 report at paragraphs 182 and 183, which is at

12 {E4/14/32}. Just starting at 182, you tell me:

13 «Auctions have to be conducted as genuine arm’s

14 length public sales, with the purchase awarded to

15 the highest bidder. There has to be more than one

16 genuine bidder at the auction. If there is only one

17 bidder, the auction is considered as not having taken

18 place — Article 447(5).»

19 But someone has to say, has to raise the claim in

20 that regard before the auction is invalidated; is that

21 right?

22 A. Somebody has — I’m sorry, my Lord; somebody has to

23 claim it?

24 MR JUSTICE HILDYARD: Yes. I mean, you see, one view of

25 this, and I will tell you what’s on my mind, is that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

197 :1 an one-man auction is not an auction at all.

2 A. No.

3 MR JUSTICE HILDYARD: Because it cannot possibly achieve the

4 purpose of an auction —

5 A. Correct.

6 MR JUSTICE HILDYARD: — which is a competitive bidding

7 situation.

8 A. Yes.

9 MR JUSTICE HILDYARD: That is a fact.

10 A. Yes.

11 MR JUSTICE HILDYARD: Under Russian law is that a fact which

12 can be prayed in aid, ie the lack of any auction at any

13 time, or must it be raised as a claim for invalidity of

14 the auction on that ground within the period specified

15 by — I can’t remember, was it Article 179? I can’t

16 remember.

17 A. In my view what happens here is that Article 447 —

18 I previously thought 477, it’s 447 —

19 MR JUSTICE HILDYARD: Yes.

20 A. — says about one bidder. Probably it means one bidder,

21 as a principle, and the formal requirement will be to

22 identify two distinct parties in the room, essentially.

23 Then, after a certain period of time, it may occur that

24 the second bidder was not a genuine one.

25 So, in my view, if it so happens that after

198 :1 a certain period of time it turns out that the second

2 bidder was not a genuine bidder, then one is not

3 precluded from bringing a claim under the principle of

4 freedom of choice of remedies for damages as resulting

5 from the fraudulent auction.

6 MR JUSTICE HILDYARD: Right. So have I got it right, that

7 the basic position, ie no auction, only results from

8 there being, in fact, only one bidder, not the

9 appearance of more, just one; is that right?

10 A. I would say so, yes.

11 MR JUSTICE HILDYARD: Yes. Then the next question is when

12 there appear to be two or more bidders but they are

13 actually either the same person in reality, or

14 affiliated so as that any competition between them is

15 illusory —

16 A. Yes.

17 MR JUSTICE HILDYARD: — you must, in order to set aside the

18 auction, apply under the relevant provision?

19 A. Or you — yes, my Lord, this is —

20 MR JUSTICE HILDYARD: To set it aside.

21 A. Yes, to set it aside, yes.

22 MR JUSTICE HILDYARD: I know your point that you may have

23 claims otherwise.

24 A. Yes, yes.

25 MR JUSTICE HILDYARD: But to set it aside under that

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

199 :1 provision?

2 A. Yes, that’s correct.

3 MR JUSTICE HILDYARD: What happens, and this is the point,

4 I think, you were on, which I had wanted to ask you

5 about. What happens if what appeared to be

6 a competition is not a competition because subsequently

7 you discover that what appeared to be two people was

8 really one person, or two people so closely affiliated

9 as to render any competition illusory: what then?

10 A. Then I think what would appear, and I gave an example in

11 my opinion of a case where there wasn’t an auction but

12 there was an appearance of corporate form. It was

13 a genuine company but it was surreptitiously owned by

14 the person who holds it as an arm’s length company.

15 MR JUSTICE HILDYARD: It was a creature?

16 A. Yes, it was a creature, exactly. So it was disregarded.

17 It was said that we do not regard it as a genuine

18 independent entity.

19 So that would mean obviously the court would have

20 several options before it. It may go a purely

21 formalistic way, which was the way of the Russian courts

22 in the 1990s, when they were much more cautious than

23 now, or it may go the way that I indicated in the recent

24 case law, which is disregard the corporate form and say

25 since you have by your bad faith action abuse of right

200 :1 created this situation, you are not entitled to certain

2 protections, and I gave the example of it, of

3 the limitation: if you by your action create

4 a situation, for example denying me the knowledge of

5 certain facts, that I fall out of limitation statute,

6 then Russian courts in a recent —

7 MR JUSTICE HILDYARD: Is this the Keystone case?

8 A. The Keystone is the corporate form.

9 MR JUSTICE HILDYARD: Corporate form. You are now moving on

10 to another one?

11 A. Yes, but just an example, because it’s graphic, it’s

12 about limitation set in stone, it’s a three years

13 limitation set in stone.

14 MR JUSTICE HILDYARD: Yes.

15 A. However, recently, the Supreme Court said: limitation is

16 protection. It is protected only for — only good faith

17 actors are protected by it. If the person by its own

18 action subverts the purpose of limitation, then he is

19 not entitled to it as a sanction. So limitation is

20 limited. It has shifted to accommodate the suit.

21 Something like this must happen there by force.

22 Why? Because this is a pretence of form, pretence of

23 a genuine second bidder, and then if the tortfeasor

24 says: no, I’m allowed to certain defences, I’m allowed

25 to certain cause of action which precludes all others,

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

201 :1 I am allowed to protection of limitation period, and to

2 a couple of other things under the statute. I think

3 that on facts the court has the discretion to find

4 otherwise; that those protections do not apply.

5 MR JUSTICE HILDYARD: I see. So the protection of

6 the Limitation Act and the status, for example, as

7 a bona fide purchaser, could all be stripped away from

8 the successful auction bidder if those sort of facts

9 were disclosed?

10 A. Yes.

11 MR JUSTICE HILDYARD: With apologies, and apologies also for

12 my muddle, can I just ask you a couple of questions on

13 the dreaded reflective loss principle?

14 A. Yes.

15 MR JUSTICE HILDYARD: I think this is bedevilled, and it is

16 certainly confused in my own mind, by the fact that

17 under the Russian law harm and unlawfulness are simply

18 two sides of the same coin.

19 A. Yes.

20 MR JUSTICE HILDYARD: Ie the unlawfulness is the harm, if

21 I can put it that way, as I read your report.

22 A. Yes, it’s — yes, my Lord, this is absolutely correct.

23 Mostly it is positioned as an individual element of

24 the tort, one of the four elements, but unlawfulness, in

25 the early, cautious practice, courts ask to identify

202 :1 specific rule of law to (inaudible). Now the position

2 is that inviolability of person and property is

3 established by Article 1 of the Civil Code. Any

4 unlawful interference with property or person is

5 unlawful per se and you don’t have to go much further

6 than that.

7 MR JUSTICE HILDYARD: And that’s what bedevils it, because

8 in this jurisdiction we look at it in terms of what

9 unlawful invasion of a right is involved as a first

10 step.

11 Take the situation, if you could, of something done

12 by the directors of a company in breach of the duties

13 they owe to the company.

14 A. Yes.

15 MR JUSTICE HILDYARD: But also in breach of some obligation

16 they owe to the shareholder directly.

17 A. Yes.

18 MR JUSTICE HILDYARD: Okay. In this jurisdiction all

19 directors’ duties are really owed to the company, and

20 only very few are owed directly to the shareholder, and

21 I haven’t had a very long or good explanation about

22 that — no fault of yours or Professor Maggs — which

23 involves quite a detailed examination of Russian

24 corporate law, so I don’t quite know what the position

25 is as to the extent of obligations owed by the directors

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

203 :1 to the company and directors to the shareholder, but

2 I take it that the sum which could be owed both to

3 the company and to the shareholder; yes?

4 A. That is correct.

5 MR JUSTICE HILDYARD: Yes. Now, in that situation, my

6 understanding of Professor Maggs’ answers to me

7 yesterday, and I can take you to them if it would

8 assist, is that the shareholder can sue in respect of

9 the harm done without regard to the reflective loss

10 principle. The reflective loss principle has nothing to

11 do with it, because the harm done is direct, and the

12 loss suffered is remediable; is that right in your view?

13 A. That’s correct, and the reason is a special statutory

14 regime in the law on joint-stock companies. This cause

15 of action is very well regulated there. There is

16 a strict limitation period. There are instances where

17 directors are liable on claim by shareholders and this

18 is where most of the litigation in Russia happens.

19 MR JUSTICE HILDYARD: So even if it were the case that if

20 the company leapt in first and recovered in full, the

21 shareholder would still be entitled to claim in respect

22 of the harm done by it?

23 A. I think the shareholder may — the short answer is no.

24 The shareholder, because it is regulated there, has

25 a recourse for the benefit of the company; that is to

204 :1 say he has a classical derivative claim. In respect

2 of a director of the company because it is regulated so.

3 MR JUSTICE HILDYARD: What I was talking about was

4 a personal claim by the shareholders; not derivative.

5 The duties owed to the company, but also to

6 the shareholder.

7 A. I’m sorry, my Lord, what those duties might be? The

8 duties of directors are circumscribed, so the —

9 MR JUSTICE HILDYARD: Well, take an example. Supposing the

10 directors siphon off assets to a company, another

11 company, which they wholly control in a transaction

12 which is, say, ultra vires or otherwise wholly improper.

13 There may be circumstances, as I understand it, where

14 the directors would both have broken their duty to

15 the company, because they have taken its assets, and

16 broken their duty to the shareholders not to act in

17 a manner which is outside the constitution of

18 the company?

19 A. Yes, that’s in this case a shareholder might have direct

20 recourse because the law on the joint-stock company

21 regulates only the certain liabilities of the directors

22 for actions taken within their lines of duties. So the

23 siphoning off would be essentially a criminal act taken

24 out of their duties. He had just an opportunity to do

25 so, because he occupied this position.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

205 :1 So there would be a direct recourse against such

2 a director.

3 MR JUSTICE HILDYARD: Right. And that direct recourse,

4 whether criminal or not, would be maintainable by the

5 shareholder in its own right, not in a derivative

6 capacity, but in its own right?

7 A. Yes, subject to the strictures about the double recovery

8 due to the abuse of law principle. Yes, that’s correct.

9 MR JUSTICE HILDYARD: And you say that the protection to

10 ensure double recovery would not be any principle of

11 reflective loss, but it would be, as it were,

12 a procedural protection of a likely stay of one or other

13 of the proceedings to see what happens?

14 A. It might be a stay of the proceedings, but there is also

15 substantive protection under Article 10. If a person

16 has already paid for his wrong and gave to the company

17 the satisfaction, the shareholder would not have

18 recourse because that would involve double recovery on

19 his part and that is where Article 10 enters into play.

20 So it’s not procedural — procedurally there is

21 a position under Russian procedural laws, it would be

22 (inaudible) something like this, with modifications.

23 But there is substantive, also, protection, which is

24 Article 10. Double recovery is dealt with in Russia

25 under Article 10.

206 :1 MR JUSTICE HILDYARD: I see.

2 Then supposing the same factual context, but the

3 directors of the company say: well, we are not going to

4 get the company to come against us, thanks very much,

5 and the breach is of a nature which wouldn’t admit of

6 a derivative claim. I am not told either what the rules

7 are for derivative claims in Russia, so I am rather

8 guessing, but supposing a derivative claim would not be

9 available. So there is no chance of the company being

10 made good because it won’t bring the action itself, and

11 the shareholder can’t bring an action on its behalf in

12 a derivative way.

13 The shareholder has been harmed. Can it bring

14 a claim in those circumstances directly without regard

15 to our — well, having regard to Article 10, but without

16 any problem under Article 10?

17 A. Yes. Yes. I gave — well, it’s maybe slightly other

18 issue, and it’s actually Article 105.3, which we have

19 discussed briefly. In my opinion, I gave an example

20 where a shareholder under Article 105.3 presented

21 a claim against TNK BP, a joint venture of British

22 Petroleum in Russia, one of the most famous cases.

23 He said that the — essentially British directors

24 from British Petroleum prevented TNK BP from entering

25 into highly lucrative deal of exploration of Arctic

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

207 :1 continental shelf in Russia, and he said because of that

2 I lost money, there is lost profits and diminution of

3 profits. So his claim was allowed to proceed on this

4 basis directly against the holding company.

5 MR JUSTICE HILDYARD: Right.

6 A. And I gave the example in my report.

7 MR JUSTICE HILDYARD: Right. And it may not matter, but in

8 the context of a liquidation where you explained that

9 the Russian rules of insolvency really took over from

10 the general law and wiped out creditor claims, are all

11 derivative claims thereafter precluded, ie is a claim

12 only maintainable by the company through its liquidator

13 and not through a derivative process?

14 A. Yes, the position is that within — yes, the right of

15 claim would pass to the receiver, to the trustee,

16 liquidator.

17 MR JUSTICE HILDYARD: The administrator or the insolvency

18 office holder, yes.

19 A. Because he is now responsible for collecting the assets

20 of the company and all assets for the benefit of

21 the company, not for the benefit of shareholders, but

22 for the benefit of the company, primarily to satisfy the

23 claims of creditors, and all the claims against the

24 company itself may be presented only within the

25 bankruptcy procedure.

208 :1 MR JUSTICE HILDYARD: Yes. Well I am sorry to be so

2 muddled. I find it a very difficult area, especially as

3 I don’t really know what the Russian law on derivative

4 process is, and I don’t really know what the content and

5 division between duties owed to shareholders and

6 companies is, but you have both done your best to rescue

7 me and I am very grateful to you.

8 Are there any questions which arise from that?

9 MR BIRT: My Lord, no.

10 MR JUSTICE HILDYARD: Dr Gladyshev, I am sorry it has been

11 quite a wearing couple of days for you.

12 A. No, no, I like talking about Russian law.

13 MR JUSTICE HILDYARD: I am very grateful to you for your

14 evidence, as I am to Professor Maggs.

15 Well done, you accomplished it and I am grateful to

16 you. It was quite a heavy day.

17 MR BIRT: Thank you. I’m sorry it was a slight canter

18 towards the end.

19 MR JUSTICE HILDYARD: Not at all.

20 MR BIRT: A question of priorities and trying to put the

21 weight in the right place from time to time.

22 MR JUSTICE HILDYARD: No, that’s helpful.

23 MR BIRT: I was trying to look, my Lord, there was a bit

24 more somewhere in one of the reports about derivative

25 claims.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

209 :1 MR JUSTICE HILDYARD: Was there?

2 MR BIRT: I am not suggesting that my Lord needs to read it,

3 but —

4 MR JUSTICE HILDYARD: No, I think I do need to read it.

5 MR BIRT: I was just trying to remember where it was in case

6 it is of interest.

7 MR JUSTICE HILDYARD: I mean, in English corporate law,

8 which may have got itself in a frightful twirl, for all

9 I know, these are very deep waters indeed. These are

10 hugely complex areas.

11 MR BIRT: Yes, Professor Maggs did give some evidence about

12 derivative claims at paragraph 308 to 313.

13 MR JUSTICE HILDYARD: Could you give me the reference?

14 MR BIRT: Yes, it is , and part of that is the

15 provision that we both asked about which is paragraph 3

16 of Article 105.

17 MR JUSTICE HILDYARD: Hold on, I am just going to get it out

18 quickly. I’m so sorry.

19 MR BIRT: I’m not sure whether this is going to be

20 particularly more informative on your Lordship’s point.

21 MR JUSTICE HILDYARD: Yes. Well, I shall read that. That’s

22 very helpful, thank you.

23 I take it that Dr Gladyshev hasn’t demurred from

24 that or put forward any different explanation?

25 MR BIRT: Not as far as I know.

210 :1 Housekeeping

2 MR JUSTICE HILDYARD: Now, what else do we have to do? Have

3 we agreed when you are going to put in written

4 submissions and all that?

5 MR BIRT: We haven’t. It was on — I promised to the usher

6 not to use the word «housekeeping» at this stage.

7 MR JUSTICE HILDYARD: She is quite right.

8 MR BIRT: But there are two points that we need to cover.

9 MR JUSTICE HILDYARD: Additional points.

10 MR BIRT: And one of them is the timetable hereon. Where we

11 left it last time was some pencilling-in of dates,

12 really.

13 MR JUSTICE HILDYARD: Yes.

14 Mr Milner, are you in any position to deal with

15 this, or — I mean, I do not know, and I am extremely

16 grateful to you, by the way, for conducting this part of

17 the trial, but I have no idea what the arrangements are

18 for your future participation.

19 MR MILNER: Well, nor have I, frankly, my Lord, but I did

20 speak to Mr Stroilov this morning, so I know how he is

21 placed, broadly, over the next few weeks. So I am,

22 I think, able to discuss dates for written closing

23 submissions, and oral closing submissions on the basis

24 that he will certainly be doing the oral closing

25 submissions, at least in relation to the facts. I will

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

211 :1 have to discuss with him — clearly I can see sense, if

2 it can be arranged, for me to address any questions that

3 might arise on Russian law, possibly on valuation, but

4 on those areas where I have been responsible for the

5 evidence.

6 So I think, having regard to both my availability

7 and Mr Stroilov’s, I can discuss dates for oral

8 closings.

9 MR JUSTICE HILDYARD: I am very grateful to you. My

10 residual recollection — it is terrible how these things

11 fly out of your mind as soon as you have left court —

12 but I seem to remember we had about six weeks or so

13 for …

14 MR BIRT: We had a plan in pencil, if I can put it like

15 that.

16 MR JUSTICE HILDYARD: Yes.

17 MR BIRT: We talked about a date for written closings of,

18 I think, 17 June, which is a Friday.

19 MR JUSTICE HILDYARD: Yes.

20 MR BIRT: And we posited two potential weeks for oral

21 closings, one of which was the week starting 27 June,

22 and the other which is the following week, starting, it

23 must be about 4 July. I think after a little bit of

24 discussion, my Lord thought that in all the

25 circumstances you would prefer more than a week to read

212 :1 the written closings, you thought probably around two

2 weeks, such that if we were putting our written

3 submissions in on 17 June, you would prefer to have the

4 week of 4 July in court for oral closings.

5 I think Mr Stroilov at that stage said although he

6 hoped to be able to do the oral closings, he had

7 a potential problem in the week of 4 July, so he may

8 prefer the previous week, at which point my recollection

9 is your Lordship said: Well, that’s okay, we can do it

10 the previous week, but if that is the case, I may want

11 your written closings up to a week earlier than 17 June.

12 MR JUSTICE HILDYARD: You are quite right, I am looking at

13 {Day40/134:1} and {Day40/135:1} where this discussion

14 took place.

15 MR BIRT: And I think where we left it was that Mr Stroilov

16 was going to have a think about the dates for oral

17 closings and what he may or may not be able to do with

18 that in mind.

19 MR JUSTICE HILDYARD: I see I referred to your written

20 submissions as «the written stuff». Apologies for that.

21 MR BIRT: No, I’m sure it is perfectly apt.

22 We haven’t heard anything from Mr Stroilov, but

23 Mr Milner did pass on to me earlier, if I understand it

24 right, that Mr Stroilov is unavailable on 4 and 5 July,

25 but would be available for the remainder of that week.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

213 :1 I don’t know what the position is. I didn’t ask.

2 MR JUSTICE HILDYARD: Is the 4th and 5th a Monday and

3 Tuesday?

4 MR BIRT: Yes. I don’t know what the position is in

5 relation to the preceding week, so whether one goes with

6 the preceding week and puts the written closings in

7 sooner, or whether my Lord thinks that three days at the

8 end of that — that would be 6, 7 and 8 July — would be

9 adequate.

10 Can I also, my Lord, while I am on my feet, just put

11 one other marker down about the oral closings, if I may,

12 which is that my Lord knows that Mr Lord has another

13 trial commitment starting at the end of May in rather

14 a high profile case in the financial list.

15 MR JUSTICE HILDYARD: Yes.

16 MR BIRT: And so as things stand, he would be unavailable

17 for any of those weeks in July. I’m not proposing

18 today, as a result of that, to postpone oral closings to

19 some unknown date further into the future, because, for

20 example, Mr Lord may become available if his trial goes

21 short, or for some other reason, I am not really in

22 a position to speculate on that.

23 But I think where we would get to in relation to

24 oral closings is that we suggest that the date, whatever

25 we now alight on, remains in pencil, if I can put it

214 :1 like that, at least subject to my clients having the

2 liberty to be able to come back to my Lord if Mr Lord

3 remains unavailable and they choose to make a submission

4 that they would like him to do it, do the oral closings.

5 I am not making that application now —

6 MR JUSTICE HILDYARD: Would that mean taking it beyond July,

7 is that what you are saying?

8 MR BIRT: I think what I am saying is we don’t know. I am

9 not in a position to really give any explanation about

10 Mr Lord’s trial beyond the fact that I know at the

11 moment it is listed for the remainder of term from the

12 end of May to the end of July.

13 But, as I say, I don’t know to what extent there

14 might be holes in the timetable or it might go short, or

15 there may be some other reason why he becomes available.

16 I’m certainly not asking my Lord today that these

17 closing submissions go beyond the end of July.

18 MR JUSTICE HILDYARD: I know that I have some commitments.

19 I can’t remember whether they are in June or July.

20 MR BIRT: All I was saying, my Lord, is if we could still

21 have, if you like, liberty to come back on the date

22 around the time of written closings, that would be

23 appreciated, but not saying that we will, or that we

24 will come back with any particular proposal, but in

25 circumstances where Mr Lord has done the whole trial, my

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

215 :1 clients may want him to do the oral closings and there

2 may be some arrangement that can be made with the other

3 case, there may be not, and I am not suggesting we have

4 to address that now, my Lord.

5 MR JUSTICE HILDYARD: Right. I would take a bit of

6 persuading to move it beyond July.

7 MR BIRT: Yes. That is noted, and I am not seeking to

8 persuade now.

9 MR JUSTICE HILDYARD: No. Given the uncertainties, what is

10 it that you have tentatively agreed as to the date on

11 which the written submissions should be put in?

12 MR BIRT: We haven’t tentatively agreed anything beyond

13 where we were in court last time which, as I understand

14 it, Mr Milner whose clients are content with the date

15 that was discussed in court on the last occasion, which

16 was 17 June, I think the issue, if there is one, is how

17 much time my Lord wants to have with the written

18 closings before we come back for oral closings, and that

19 dictates whether one goes for the week at the end

20 of June, or a week in early July, and it may be that if

21 my Lord wants the time and a full week, then we should

22 look at a week later in July.

23 MR MILNER: On that point, my preference, or rather

24 Mr Stroilov’s preference, would be for the later week,

25 in order to be able to digest what would probably be

216 :1 a substantial document from the claimants and prepare

2 responsive submissions.

3 So Mr Stroilov’s preference would be for 6 July

4 onwards.

5 MR JUSTICE HILDYARD: For oral submissions?

6 MR MILNER: Yes.

7 MR JUSTICE HILDYARD: Well, this is a bit of a cat’s cradle,

8 but I would like a week, and a full week, as I indicated

9 last time, because otherwise I just feel that I won’t

10 have done justice to the no doubt very considerable work

11 of preparation. If it was the only means of

12 accommodating you all, I would try and do it within the

13 week, and in order to have an earlier oral hearing if

14 that were possible for Mr Stroilov, which he has rather

15 indicated it isn’t, and the only way of accommodating

16 your team, if I can put it that way, Mr Birt, but at

17 present I think I shall leave it that the written

18 submissions are to be in by the 17th; that I won’t

19 presently fix a time until then for a hearing because

20 I will be given judgment writing time anyway in July;

21 that I well appreciate that Mr Stroilov, and to

22 the extent that he is involved, Mr Milner, will need

23 time for reflection on what, no doubt, will be pretty

24 detailed submissions; that that may or may not

25 accommodate Mr Lord, depending on how the other matter

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

217 :1 goes; and that you will keep me informed in that regard

2 on a rolling basis if, once the other matter is

3 underway, which I don’t think it is yet; is that right?

4 MR BIRT: Correct, my Lord.

5 MR JUSTICE HILDYARD: It becomes clearer. It does look as

6 if it may not be easy for Mr Lord to be involved in

7 the oral submissions, if they are to be in July. But

8 I simply don’t know how that case will unfold. I think

9 that is as much as we can do at the moment; is that

10 right, Mr Milner?

11 MR MILNER: Yes.

12 MR BIRT: My Lord, yes. We have our date for written

13 closings. I think 17 June being a Friday, I don’t know

14 if my Lord wants to set a particular time on 17 June for

15 us to simultaneously exchange them, or — it doesn’t

16 really make any difference to my Lord.

17 MR JUSTICE HILDYARD: I could look very efficient and say by

18 a given time, but I will have just finished the long CMC

19 in the RBS matter. I dare say that I won’t read them on

20 17 June and it would be pointless commanding you to put

21 them in by a given time. They ought to be in by the end

22 of that day.

23 MR BIRT: By the end of 17 June?

24 MR JUSTICE HILDYARD: Yes, please. Thank you. And they can

25 obviously in the first instance be provided by e-mail.

218 :1 MR BIRT: I’m very grateful.

2 MR JUSTICE HILDYARD: Yes. I mean, I am just wondering —

3 though my clerk, and I don’t know whether more

4 importantly, my wife, I don’t know what she would think

5 about this — but I suppose I may be able to make

6 enquiries whether I could sit in the beginning

7 of August, if that would be the only means of

8 accommodating — I don’t know. Shall I find out about

9 that? I can’t remember when I am meant to be away.

10 MR BIRT: No, I don’t know whether that is an enquiry worth

11 making or not, my Lord. I am afraid I can’t say,

12 standing here, whether that would assist Mr Lord or not,

13 but we can certainly inquire on our side before putting

14 my Lord to the trouble.

15 MR JUSTICE HILDYARD: Shall I put it this way: if I am

16 committed on other matters then that will take — ie

17 vacation — I will, I am afraid, withdraw the tentative

18 offer. If I am not committed, then I will let Mr Trout

19 send you an e-mail to see whether that would be some

20 other way of squaring what otherwise is a difficult

21 circle.

22 If it doesn’t suit either one of you very

23 definitely, then you might let me know as soon as

24 possible also.

25 MR BIRT: My Lord, yes. I will speak to Mr Lord as soon as

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

219 :1 I can in any event, to see whether there is any further

2 update that can be given. In a sense if that is

3 your Lordship’s kind offer to try to resolve Mr Lord’s

4 problem, if it ends up that that wouldn’t help either

5 way, the sooner you know that, the better.

6 MR JUSTICE HILDYARD: Yes, because that will remove any

7 agony from me.

8 MR BIRT: Quite so.

9 Otherwise, should we have dates pencilled-in, for

10 example for the court diary, for oral closings, or shall

11 we just leave it at large and come back to you in

12 writing?

13 MR JUSTICE HILDYARD: I think I would like you two to

14 discuss the best you can do as matters presently stand,

15 and to let my clerk know as soon as possible. I will

16 leave it that flexible because of Mr Stroilov’s

17 difficulties at the beginning of July, Mr Milner’s

18 uncertainty as to what role, if any, he is to play, and

19 just in case anything has become clearer in your diary

20 or Mr Lord’s diary. But if, by the end of — well, no,

21 we are at the end of the week, really.

22 If, as soon as possible, you could let Mr Trout

23 know: one, whether the beginning of August is a useless

24 proposition in any event, for whatever reason; and two,

25 if you could send me your indicative dates so that we

220 :1 can pencil them in.

2 MR BIRT: Yes.

3 MR JUSTICE HILDYARD: Now, in the context of the oral

4 submissions, I cannot remember whether we decided

5 whether you needed a telly and whether you needed this

6 court or not.

7 MR BIRT: It’s probably contained in the transcript for

8 Day 40, which I can’t remember. I have a feeling,

9 I mustn’t be held to it, but my recollection is

10 Mr Stroilov said we wouldn’t need the translators for

11 oral closings, and I think he said we wouldn’t need the

12 videolink either, but that had better be checked rather

13 than supposed. Perhaps we can check it after the

14 hearing.

15 MR JUSTICE HILDYARD: Could you add that to

16 the clarification in your e-mail, because we need to

17 know that as soon as possible. I think it was at

18 where I think the indication was, in

19 accordance with your recollection, that it wouldn’t be

20 necessary, but equally, if some different view is taken,

21 I would like to know as soon as possible.

22 MR BIRT: That’s my recollection, that’s how it was left:

23 that we wouldn’t have to supply the videolink or the

24 translators for oral closings, but Mr Stroilov would

25 inform us if that wasn’t actually the position.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

221 :1 MR JUSTICE HILDYARD: And were there any other matters which

2 were not housekeeping matters? Mr Nazarov, that sort of

3 thing; has that been resolved?

4 MR BIRT: Well, it hasn’t, my Lord. I wasn’t particularly

5 going to raise it in Mr Stroilov’s absence today, but we

6 haven’t heard anything about Mr Nazarov’s documents, and

7 the point I was just going to mention, and again,

8 Mr Milner may well not have any instructions, but

9 my Lord made an order that the defendants provide their

10 properly done pleading.

11 MR JUSTICE HILDYARD: By the 27th?

12 MR BIRT: Well, it was the end of last week, I think,

13 whether that was 29 April.

14 MR JUSTICE HILDYARD: That hasn’t come?

15 MR BIRT: It hasn’t come. And we wrote a chasing letter and

16 radio silence. It would be actually quite useful now to

17 have it after all these months, as we are doing our

18 closings, but there is a court order that it be done,

19 my Lord.

20 MR JUSTICE HILDYARD: There is. Well, I did order it.

21 I sometimes wonder the utility of it, but you asked for

22 it and I gave it, so I suppose I should …

23 Do you know what the position is, Mr Milner, on

24 that?

25 MR MILNER: No, I don’t, I am afraid, my Lord. I don’t know

222 :1 anything about this issue but I will make sure that

2 Mr Stroilov addresses it.

3 MR JUSTICE HILDYARD: Perhaps that too could be addressed in

4 the e-mail to my clerk so that I know exactly what is to

5 occur.

6 MR MILNER: Yes, sir.

7 MR BIRT: My Lord, the only other point that strikes me,

8 when we are thinking about the dates for oral closings

9 and the proposals that we seek to agree and propose to

10 your Lordship, is there a particular length of time that

11 my Lord anticipates wanting us in court for that?

12 I think previously we were talking in rough weeks, but

13 nobody ever addressed their mind as to whether we needed

14 a full five days. Certainly Mr Stroilov’s proposal

15 sounded like he had in mind a Wednesday, Thursday,

16 Friday. I don’t know whether three days might be a bit

17 short in this case.

18 MR JUSTICE HILDYARD: What, for each of you?

19 MR BIRT: Collectively. My experience, for what it is

20 worth, of oral closings in very long cases like this, is

21 they tend to be very driven from the bench in terms of

22 particular topics and questions and answers rather than

23 anybody being given a head for too long. So, in

24 a sense, we might be in your hands, my Lord, as to how

25 long we ought to be thinking about for that period of

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

223 :1 time.

2 MR JUSTICE HILDYARD: Well, I should have thought that you

3 should be able to accomplish it within four days,

4 divided between you. If anyone disagrees, then that too

5 must be added to the e-mail, but I should have thought

6 that you ought to be able to divide up the time between

7 you for a four-day week. I would have thought that that

8 would give — really the point of it is for you to

9 stress your golden points and me to ask you about the

10 other ones.

11 MR MILNER: My Lord, on the subject of time limits, it might

12 be worth raising the question of the length of

13 the written closings as well. I don’t know if

14 your Lordship is minded to put any limit or at least

15 guidance on that. There are two aspects to it, really:

16 one is what is most useful to the court, because I have

17 been involved in cases where there have been 1,000 or

18 2,000 pages of closing submissions which I imagine are

19 just some voluminous as to be completely unwieldy and

20 almost useless. And then there is the equality of arms

21 point as well, that with the opening submissions there

22 was a very long document from the claimants, a much

23 shorter document from the defendants, and of course,

24 that doesn’t necessarily mean that the document is

25 a better document for being much longer, but the

224 :1 claimants do have the resources to produce documents of

2 almost infinite length, whereas Mr Stroilov doesn’t.

3 I just raise that in case your Lordship is minded to

4 give any guidance on that.

5 MR JUSTICE HILDYARD: It is a good point, Mr Milner. I must

6 say I find it difficult to be prescriptive. I will be

7 very much assisted by relatively full closings which

8 include, wherever they put forward a proposition from

9 the facts of the law, a cross-referencing. That is

10 tedious and difficult, especially for Mr Stroilov alone,

11 but the fact is that the equality of arms is best

12 assured at that point in the case by my being most

13 assisted, if you see what I mean.

14 So it’s awful to talk, and shocking, probably, to

15 the expert witnesses in court now, to talk in terms of

16 sort of 200 or 300 pages, but I have reconciled myself

17 to that sort of size, possibly even 400 pages. I think

18 you are quite right: there does come a point where the

19 sheer volume of it means that the reduction

20 into a judgment is extremely difficult, because it is

21 a sort of blow-by-blow account which rehashes the trial

22 in a way which doesn’t really synthesise it.

23 I would imagine that it will be in the region of 250

24 to 350 pages, if you ask me. I would be rather shocked

25 if it was more than that, but I am not going to put

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

225 :1 a top limit.

2 MR MILNER: I’m grateful.

3 MR JUSTICE HILDYARD: Does that accord with what your

4 expectation is? I see Mr Eschwege is not here. He may

5 be in the Supreme Court, for all I know, but he may also

6 be working away.

7 MR BIRT: I think he has been in the Court of Appeal this

8 week, my Lord.

9 MR JUSTICE HILDYARD: The Court of Appeal.

10 MR BIRT: I don’t think we have a particular number of pages

11 in mind at the moment, my Lord. I have to say, my

12 experience suggests of trials of this length that

13 300-ish pages may be rather short. We have had now 42

14 days of trial.

15 MR JUSTICE HILDYARD: We have had 42 days.

16 MR BIRT: And even if one looks at the expert reports of

17 the Russian lawyers, probably collectively they stretch

18 to maybe 300 or 400 pages. I’m not saying we are going

19 to produce — I hesitate to use the analogy, War and

20 Peace — that we are going to produce thousands upon

21 thousands of pages, but nor do we think it appropriate

22 to be prescriptively limited, but of course we are not

23 going to produce paper simply for the sake of producing

24 it. There has been an awful lot of evidence in this

25 case, my Lord.

226 :1 MR JUSTICE HILDYARD: Well, there has much discussion —

2 I don’t know whether the commercial court have fixed on

3 any fixed length for written closings. My view, which

4 I believe is shared, is that it is very difficult to be

5 prescriptive in a very long case, but remember that

6 I will be impressed by your industry in any event, and

7 your task is to assist me by getting to the real points

8 as best you can.

9 MR BIRT: My Lord, we have that in mind. The only problem

10 with page limits is people start playing games with font

11 sizes and paragraph spacing which doesn’t do anybody any

12 good, my Lord.

13 MR JUSTICE HILDYARD: All right. I’m sorry to involve you

14 in this, Dr Gladyshev. It has been a very long case and

15 I am very grateful to you both for getting through so

16 much so quickly, really, in Russian law.

17 Anything else I can do?

18 MR BIRT: Not from us, my Lord. Thank you very much.

19 MR JUSTICE HILDYARD: All right, you will keep me updated,

20 and we shall too. I think we had better run a fairly

21 flexible updating system.

22 MR BIRT: Yes, understood.

23 MR JUSTICE HILDYARD: Thank you both. And I am very

24 grateful to you and to the transcribers. 5.45, I am so

25 sorry.

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

227 :1 (5.45 pm)
2 (The court adjourned)
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228 :1 INDEX
2 PAGE

3 DR VLADIMIR GLADYSHEV (Continued) ………………..1

4 Cross-examination by MR BIRT (Continued) ……1

5 Questions by MR JUSTICE HILDYARD …………196

6 Housekeeping …………………………………210

7

8

9

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14

15

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Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

Bank St Petersburg v Vitaly Arkhangelsky [Master] Day 42

A

abide119:9

ability ( 2 ) 64:4 119:23 abolish 175:24

Abova ( 2 ) 110:1 185:9 above ( 2 ) 42:21 159:11 absence ( 4 ) 12:12

159:21 195:8 221:5 absent ( 2 ) 158:2

162:11 absolute ( 8 ) 56:2

60:17 69:7 78:2 175:17 176:10 180:11 180:14

absolutely ( 3 ) 78:6 133:7 201:22

abundantly30:9

abuse ( 46 ) 61:16 62:10 110:11 111:11 112:24 113:1 113:3 113:13 113:16 113:21 113:25 114:4 114:7 114:10 114:20 114:25 115:1 115:3 115:16 115:22 117:16 117:18 117:19 118:1 119:13 119:16 121:8 122:8 122:12 122:15 142:11 144:7 158:14 158:16 159:4 160:18 160:25 161:2 174:7 192:7 192:9 194:7 194:13 195:9 199:25 205:8

abused ( 7 ) 116:9 117:1 160:19 160:21 174:25 175:4 192:3

abusing ( 2 ) 75:18 119:11

abusive ( 5 ) 110:22 118:14 118:19 118:23 160:5

academic ( 11 ) 6:3 11:4 11:7 11:9 16:1 16:19 22:9 22:15 22:16 25:13 27:5

academical 34:12 academicians13:12 academics ( 5 ) 10:24

11:1 13:24 37:17 101:1

Academy24:2 acceleration ( 2 )
186:20 188:6

accept ( 7 ) 36:19 36:25 51:16 87:4 142:2 190:19 192:9

acceptable99:14 accepted ( 2 ) 6:4 6:12 accommodate ( 2 )

200:20 216:25 accommodating ( 3 )

216:12 216:15 218:8 accomplish223:3 accomplished208:15 accord225:3 accordance ( 7 ) 30:5

43:22 77:20 89:16 148:19 164:10 220:19

according ( 3 ) 2:13 103:9 107:4

account ( 9 ) 2:6 3:6 83:1 83:6 116:20 123:7 124:7 125:4 224:21

accounts ( 6 ) 83:3 116:11 116:13 116:17 116:19 116:20

accused113:16 accustomed64:18 achieve197:3 acquired83:9 acquis63:6 across ( 4 ) 117:2

118:21 122:14 129:10

acted ( 5 ) 107:8 108:14 142:16 142:22 157:15

acting ( 6 ) 129:5 138:20 142:6 143:16 143:23 157:12

action ( 59 ) 12:5 12:5 14:15 16:2 16:8 21:6 21:8 38:18 40:10 40:11 40:14 40:18 45:18 45:21 45:23 45:25 47:17 48:19 51:9 52:5 54:3 59:14 61:24 69:8 73:5 78:11 78:16 79:15 86:5 87:16 88:10 99:11 99:13 101:2 104:7 105:5 106:9 106:15 113:5 115:9 116:18 139:7 153:23 175:5 185:16 185:19 185:24 186:5 187:6 187:13 187:22 188:5 199:25 200:3 200:18 200:25 203:15 206:10 206:11

actionable ( 7 ) 99:1 104:23 106:9 159:7 159:25 162:20 162:25

actions ( 17 ) 9:6 12:1 84:24 90:16 102:21 103:2 103:18 104:7 105:20 108:9 109:15 122:5 149:7 158:6 171:3 186:18 204:22

active ( 2 ) 6:7 20:12 activities91:15 activity91:13 actors200:17

acts ( 4 ) 76:9 102:11 102:23 108:7

actual ( 10 ) 11:11 66:2 69:19 69:24 104:12 115:25 179:1 179:3 179:7 184:23

added ( 2 ) 152:11 223:5

additional ( 10 ) 36:7 47:4 50:10 92:12 92:13 92:14 92:18 114:9 120:14 210:9

additionally36:9 address ( 2 ) 211:2
215:4

addressed ( 2 ) 222:3 222:13

addresses ( 3 ) 74:2 195:7 222:2

adequate ( 3 ) 49:17 49:25 213:9

adhering 63:14 adjourned227:2 Adjournment97:3 adjudicate58:22 adjudication125:18 administrative ( 2 )

78:11 176:12 administrator ( 4 )

76:18 77:9 77:17 207:17

admit206:5 admits13:5

adopt ( 2 ) 92:7 156:21 adopted63:8 advantage ( 3 ) 40:22

90:20 119:10 advantages13:7 adverse ( 4 ) 188:13

188:16 188:20 189:9 advertised ( 2 ) 173:23

174:7 advice22:12

advise ( 13 ) 15:7 16:18 17:1 23:3 24:21 54:7 54:15 54:18 54:23 54:25 55:12 55:13 55:17

advised152:9 aegis32:17

affect175:16 affected ( 2 ) 77:21
157:14

affiliated ( 6 ) 170:22 171:7 171:15 171:18 198:14 199:8

affiliates ( 3 ) 170:25

171:2 171:24 affiliation ( 3 ) 171:22

171:25 172:1

affording174:14 afraid ( 5 ) 98:3 127:14

218:11 218:17 221:25 after ( 21 ) 3:19 12:18

19:23 25:24 26:5 29:3 29:19 72:12 73:6 75:6 76:5 110:16 138:18 147:20 175:14 187:11 197:23 197:25 211:23 220:13 221:17
afternoon ( 3 ) 1:9 96:13 96:15

afterwards77:6

again ( 25 ) 15:16 31:20 36:21 52:6 52:18 53:21 67:19 71:17 101:24 105:7 109:11 110:12 116:24 117:2 122:18 128:6 135:24 139:2 141:10 158:6 163:18 181:22 190:1 194:21 221:7

against ( 51 ) 1:10 6:25 9:6 13:24 14:16 16:25 19:25 37:3 38:3 42:9 51:13 53:10 55:24 59:9 60:7 64:12 72:11 72:13 72:17 72:17 73:19 73:22 73:25 74:4 74:10 76:13 77:4 78:12 82:14 94:18 99:6 105:6 120:25 129:22 138:12 139:17 141:22 144:3 144:7 175:5 180:19 181:8 186:18 188:8 188:14 188:18 205:1 206:4 206:21 207:4 207:23

agency113:15 agnostic98:3 agony219:7

agree ( 46 ) 5:1 5:6 7:16 9:22 16:8 16:16 21:9 22:14 27:17 34:3 35:19 38:1 38:21 62:22 77:23 99:3 102:14 103:4 103:7 103:12 104:5 110:2 114:3 114:5 114:8 123:1 127:3 127:16 128:7 130:16 132:6 132:12 136:7 159:3 159:20 164:16 178:25 179:19 185:1 186:11 190:9 191:3 191:22 193:1 195:17 222:9

agreed ( 22 ) 35:5 40:5 43:21 46:16 97:15 105:22 125:13 130:8 135:17 135:22 136:10 136:11 137:11 152:6 157:11 169:6 177:18 177:22 179:17 210:3 215:10 215:12

agreement ( 51 ) 104:5 106:7 114:4 125:13 126:16 127:5 127:6 127:8 127:19 128:10 129:4 130:2 130:6 131:2 132:4 132:7 132:18 133:2 134:13 137:10 137:14 137:19 137:22 138:12 138:19 139:6 140:15 140:19 141:13 141:14 141:17 142:4 142:9 142:20 142:25 144:10 151:18

155:5 156:14 156:16 156:17 157:20 169:9 181:6 181:17 182:1 183:8 183:8 183:10 190:5 190:8

agreements ( 4 ) 136:20 139:24 140:24 141:11

agrees125:7 aid197:12 aide-memoire130:5 aim36:23

aimed 105:22 alien69:2 alight213:25 allegation161:18 alleged ( 3 ) 81:3 112:7

144:11 allegedly112:4 alleges140:14 alleging132:10 allow ( 12 ) 6:24 9:5

12:22 42:5 61:10 71:14 78:13 85:2 85:22 124:3 175:20 195:23

allowed ( 35 ) 2:10 2:20 3:10 3:22 18:8 18:21 19:1 19:2 19:3 32:1 42:8 42:19 43:4 56:15 57:13 59:1 59:2 59:16 61:21 63:16 65:22 65:23 67:21 81:25 87:20 88:5 117:23 117:25 118:1 125:3 148:20 200:24 200:24 201:1 207:3

allowing ( 4 ) 18:2 58:4 67:20 88:6

allows ( 2 ) 132:24 147:10

almost ( 2 ) 223:20 224:2

alone ( 3 ) 44:6 46:18 224:10

along186:16 alongside ( 3 ) 56:15

94:2 110:4 already ( 10 ) 24:19

36:20 37:18 61:23 67:21 82:23 92:9 92:17 145:20 205:16

also ( 28 ) 3:12 9:22 45:7 50:8 50:14 95:2 96:25 100:24 112:20 117:18 126:13 129:15 144:3 151:7 156:12 157:2 167:17 174:17 186:16 189:17 201:11 202:15 204:5 205:14 205:23 213:10 218:24 225:5

alternative ( 4 ) 18:22 19:1 136:6 195:5 although ( 16 ) 18:18 25:1 26:14 31:17

42:11 112:18 113:10 115:13 130:5 134:24 138:15 145:14 147:9 152:25 156:4 212:5

altogether18:14 always ( 2 ) 135:4
188:18

ambiguity ( 3 ) 126:3 126:5 126:12

ambiguous ( 4 ) 126:3 128:11 128:12 159:13

America126:1

American34:6

among ( 2 ) 63:6 91:21 amongst ( 3 ) 13:23

37:16 89:17 amount ( 3 ) 76:24 77:12 159:1

amounts80:15 analogous106:15 analogy ( 4 ) 155:16
156:14 156:21 225:19

analyse ( 2 ) 63:24

192:14 analysed84:7

analysis ( 8 ) 21:10 28:7 62:14 65:7 72:20 77:8 117:4 144:22

analytically46:19 and/or ( 2 ) 158:16
160:7

Andrew41:25 Anglo-American6:23 annex ( 3 ) 137:9 137:22

142:9 announce166:14 another ( 28 ) 16:10

19:4 39:18 39:24 41:8 52:14 59:3 73:25 75:13 81:23 94:13 96:12 106:20 110:11 110:23 116:11 127:15 129:3 143:7 157:14 160:22 162:22 180:16 181:6 190:4 200:10 204:10 213:12

another’s1:24

answer ( 21 ) 33:3 62:18 66:6 73:8 73:10 73:17 74:13 80:24 81:17 81:18 86:10 102:4 102:18 102:19 103:1 110:8 121:3 129:21 177:5 194:12 203:23

answerable 72:21 answered20:24 answering ( 2 ) 72:2
97:1

answers ( 3 ) 169:18 203:6 222:22

anti-monopoly75:18 anticipates222:11 anxious ( 2 ) 95:18
177:4

anybody ( 2 ) 222:23 226:11

anyone223:4 anything ( 23 ) 27:24

28:6 40:9 72:15 82:6 90:18 104:4 118:11 135:17 135:21 136:10 136:11 136:15 148:9 181:16 181:23 193:5 212:22 215:12 219:19 221:6 222:1 226:17

anyway ( 5 ) 9:19 94:24 123:3 154:22 216:20

anywhere ( 2 ) 10:14 154:22

apart ( 8 ) 8:7 45:12 116:25 129:4 146:2 147:24 167:22 192:9

apologies ( 3 ) 201:11 201:11 212:20

apologise ( 2 ) 35:21 81:17

apparent48:11 appeal ( 3 ) 153:13
225:7 225:9

appear ( 2 ) 198:12

199:10

appearance ( 2 ) 198:9 199:12

appeared ( 2 ) 199:5 199:7

appears ( 2 ) 157:10 193:11

applicable ( 4 ) 35:17 39:12 113:12 155:15

applicants 167:11 application ( 9 ) 2:1

5:22 15:6 68:2 107:1 150:4 153:11 171:20 214:5

applications ( 2 )

166:16 166:22 applied ( 15 ) 5:7 20:8

22:1 36:8 121:14 126:15 148:7 149:9

150:10 150:13 150:25 151:2 152:17 152:19 153:1

applies ( 7 ) 40:19 81:20 117:2 148:5 154:15 167:20 167:23

apply ( 32 ) 4:25 32:15 35:17 36:5 36:9 40:10 71:12 89:2 97:20 112:8 115:1 115:3 133:23 143:17 143:19 143:21 143:24 144:1 146:16 156:1 156:4 163:25 165:3 167:7 174:24 174:24 175:21 191:4 195:4 195:4 198:18 201:4

applying ( 8 ) 4:21 4:23 11:10 112:10 142:3 142:6 175:13 176:13

appointed ( 3 ) 70:21 72:21 163:11

appreciate ( 3 ) 96:24 121:18 216:21

appreciated214:23 approach ( 7 ) 13:13 15:15 15:18 23:6

26:18 121:22 125:24 approached ( 2 ) 51:12

84:17 approaches23:11 approbate18:5 appropriate ( 4 ) 27:15

37:6 102:1 225:21 appropriateness102:5 approve ( 2 ) 104:5

165:14 approved104:16 approximate4:8 approximates20:7 approximation ( 2 )
27:22 28:14

April ( 3 ) 170:13 170:19 221:13

apt212:21 arbitrarily57:13 Arbitrazh ( 12 ) 4:5 11:6

19:13 19:14 19:23 25:19 29:10 30:25 90:4 99:23 100:25 180:13

Arctic 206:25

area ( 3 ) 81:13 114:10 208:2

areas ( 3 ) 68:8 209:10 211:4

aren’t ( 8 )27:12 67:10 80:25 83:23 91:11 97:22 140:8 172:7 argue ( 4 ) 51:15 54:19
64:18 92:1 argued131:4 argues14:24 arguing54:19 argument ( 5 ) 16:1

45:12 48:21 83:21 147:24

arguments55:18 arise ( 7 ) 13:12 30:4

52:7 108:6 183:3 208:8 211:3

arisen120:9

arises ( 4 ) 7:7 46:17 126:5 183:13

arising ( 3 ) 12:6 36:2

84:8

Arkhangelsky ( 13 )

127:7 127:10 138:18 139:3 140:11 140:14 141:12 142:16 142:22 143:17 144:11 192:22 193:22

Arkhangelsky’s140:22 arm’s ( 2 )196:13
199:14

arms ( 2 ) 223:20

224:11

around ( 7 ) 36:20 81:13 127:24 159:8 178:16 212:1 214:22

arranged211:2 arrangement ( 7 )

141:23 148:13 148:17 149:5 152:22 182:16 215:2

arrangements ( 3 )

95:23 139:22 210:17 arrive21:22

Article ( 242 ) 5:18 11:18 11:22 15:22 15:23 16:6 20:17 20:17 23:20 23:25 24:13 26:25 27:1 27:8 29:16 30:20 30:22 30:23 31:3 31:13 31:18 32:1 32:9 32:10 32:12 32:13 32:14 32:18 33:3 33:3 33:4 34:13 34:14 35:3 35:3 35:22 36:4 36:8 36:12 36:17 38:12 38:14 38:16 38:21 38:24 39:1 39:4 39:4 39:18 39:19 39:25 40:11 40:20 40:24 40:25 41:1 41:5 41:7 42:19 51:19 55:25 56:5 56:6 56:8 56:17 57:14 60:10 61:15 61:22 62:7 62:9 64:9 64:10 68:16 69:6 70:9 76:8 77:25 78:1 78:7 78:11 78:12 85:8 86:8 86:8 86:15 86:16 87:6 87:6 87:7 88:23 89:2 89:18 90:15 91:1 92:25 93:22 93:23 93:23 94:3 97:7 97:17 97:19 97:22 97:25 98:25 99:1 99:5 99:25 100:4 101:4 101:10 103:13 103:15 106:4 107:1 107:11 110:21 111:1 112:8 112:10 112:18 113:5 113:12 113:23 117:2 117:17 117:22 118:20 120:6 121:11 121:14 122:20 124:13 126:14 128:1 130:9 131:16 132:20 132:23 132:25 133:4 133:6 133:24 134:2 134:10 135:16 135:23 137:15 142:11 145:2 146:1 146:6 146:13 147:7 147:9 148:4 148:7 148:10 148:19 148:21 150:5 150:14 150:20 151:4 151:15 153:12 153:15 154:2 154:4 154:15 154:19 155:1 155:11 155:21 157:1 158:18 159:25 160:8 161:1 161:2 166:11 166:24 167:2 168:5 168:7 168:14 169:1 169:24 172:23 173:10 175:9 175:10 175:16 175:17 175:23 176:8 176:15 177:18 177:22 177:25 178:10 179:4 179:8 179:8 179:12 179:17 180:6 180:10 180:17 181:14 182:16 183:10 183:15 183:16 183:18 184:16 189:14 189:17 189:25 190:3 191:3 191:17 191:24 192:1 194:20 195:6 195:11 195:15 196:18 197:15 197:17 202:3 205:15 205:19 205:24 205:25 206:15 206:16 206:18 206:20 209:16

Articles ( 10 ) 29:19 32:15 36:10 36:11 38:20 42:9 42:21 77:13 153:17 160:7

artificial ( 3 ) 34:11 34:15 69:2

artificially ( 4 ) 75:10 75:14 75:16 87:19

ascertain ( 4 ) 10:4 16:23 124:5 124:25

aside ( 13 ) 18:7 29:14 39:17 39:22 112:17 170:24 176:13 180:15 183:10 198:17 198:20 198:21 198:25

ask ( 35 ) 17:6 41:22 43:13 46:4 47:8 56:17 59:4 69:25 84:19 92:24 97:5 110:11 122:17 126:24 131:7 132:13 132:16 134:14 134:15 145:3 145:18 157:6 159:21 161:13 173:7 183:17 190:23 191:7 195:2 199:4 201:12 201:25 213:1 223:9 224:24

asked ( 17 ) 23:19 72:2 73:10 73:12 87:6 93:22 96:13 115:21 126:21 127:2 146:24 150:6 190:24 192:13 192:16 209:15 221:21

asking ( 11 ) 68:19 74:6 74:6 74:12 85:20 134:5 138:25 141:8 159:11 168:19 214:16

aspect94:13 aspects223:15 aspirational ( 2 ) 10:20
27:23

assert ( 4 ) 18:11 27:6 48:5 152:19

asserting32:24 assertion ( 2 ) 27:11

69:25 assess161:15 assessed ( 2 ) 144:3

144:6 assessing47:17

asset ( 2 ) 165:9 165:13 assets ( 14 ) 72:24 82:7 82:10 120:16 120:20 120:25 146:16 149:6 149:7 159:15 204:10 204:15 207:19 207:20

assist ( 4 ) 20:21 203:8 218:12 226:7

assisted ( 2 ) 224:7 224:13

associated 145:10 assume ( 3 ) 28:24

138:25 141:8 assumed29:16 assuming ( 5 ) 29:7

60:24 100:18 142:16 142:22

assured224:12 assures92:19 astray47:15 attach132:9 attached ( 2 ) 23:18

40:20 attaining105:23 attempt84:11 attempted 136:9 attend166:19 attended ( 2 ) 166:20

167:9 attendees166:22 attention ( 2 ) 1:21 8:6 attorney193:11 attracts161:12 auction ( 75 ) 157:16

157:17 157:22 157:23 158:3 158:4 158:15 158:25 159:15 159:17

159:18 159:19 160:4 160:23 161:15 161:21 161:22 161:25 162:4 162:7 163:2 163:4 163:12 163:25 164:9 164:10 164:22 165:17 165:25 166:25 168:8 169:21 169:24 169:25 170:2 170:3 170:4 170:9 170:24 171:1 171:3 171:4 171:8 171:16 172:3 172:6 172:12 173:5 173:8 173:20 174:17 174:18 174:25 175:3 175:7 175:9 175:14 175:22 176:4 182:23 183:4 196:9 196:16 196:17 196:20 197:1 197:1 197:4 197:12 197:14 198:5 198:7 198:18 199:11 201:8

auctioneer ( 3 ) 164:18

164:21 165:1 auctions ( 5 ) 159:1

169:10 172:14 173:18 196:13

August ( 2 ) 218:7 219:23

Aunt27:12

author ( 7 ) 13:10 13:18 14:1 14:13 24:14 24:25 25:17

author’s24:9 authorities ( 2 ) 103:9
103:15

authority ( 6 ) 8:7 18:17 19:7 27:10 42:11 190:15

authors12:11 automatically125:17 availability 211:6 available ( 8 ) 25:25
55:18 178:23 183:19 206:9 212:25 213:20 214:15

avoid ( 3 ) 16:11 38:5 131:12

awarded196:14 aware ( 6 ) 6:1 10:5

52:21 103:22 137:5 183:3

away ( 6 ) 8:4 19:2 91:8 201:7 218:9 225:6

awful ( 3 ) 192:25 224:14 225:24

B

back ( 28 ) 25:21 39:19 42:3 49:20 51:21 56:19 66:8 72:1 73:9 100:12 100:18 109:3 111:14 138:21 141:14 142:14 142:20 147:15 152:5 167:2 167:5 187:19 191:17 214:2 214:21 214:24 215:18 219:11

background ( 12 ) 11:7 28:22 99:18 138:13 139:18 139:20 139:23 140:6 141:5 141:22 144:4 155:13

backwards ( 2 ) 161:5

162:13

bad ( 14 ) 8:4 63:13 112:12 112:19 112:23 141:19 157:15 159:5 164:7 165:3 165:5 181:6 189:8 199:25

badly100:9

bailiff ( 8 ) 158:3 163:3 163:12 164:18 164:25 165:17 170:8 170:10

bailiffs ( 3 ) 157:21 157:23 159:16

bailiffs’159:18 balance 172:16

bank ( 28 ) 100:6 114:15 114:18 115:5 115:10 115:12 116:4 116:7 116:8 116:10 116:12 116:12 116:14 117:9 117:12 117:14 118:22 119:19 119:22 120:12 120:18 120:19 120:23 120:25 128:16 128:17 140:11 170:11

bank’s114:3 bankrupt72:16 bankruptcy ( 47 ) 70:22

71:10 71:12 71:13 71:15 71:18 72:8 72:11 72:13 72:14 72:14 72:18 73:1 73:6 73:7 73:15 74:2 74:3 74:5 74:8 74:21 74:22 75:1 75:3 75:6 75:10 75:24 76:2 76:5 76:6 76:12 77:1 77:9 77:17 77:19 77:20 77:21 78:15 78:17 78:20 79:10 82:4 82:22 82:22 83:4 113:7 207:25

banks ( 5 ) 115:8 116:12 118:4 120:5 121:23

bar ( 9 ) 39:14 39:17 40:20 42:20 55:9 64:21 67:22 68:18 74:18

bargain189:14 barred ( 3 ) 56:2 57:14
69:8

bars ( 2 ) 64:8 132:23 based ( 8 ) 2:7 3:7 4:24 5:14 21:10 21:12

42:21 74:3 bases170:23

basic ( 4 ) 72:10 117:22 123:10 198:7

basically 156:23 basics84:12

basis ( 30 ) 6:25 7:16 8:13 15:21 15:23 18:9 19:2 19:3 19:21 20:2 30:19 31:2 33:14 43:9 44:15 46:8 56:17 61:15 62:16 62:17 63:2 112:18 113:4 114:1 127:3 138:8 155:12 207:4 210:23 217:2

bears158:4 become ( 3 ) 103:22
213:20 219:19

becomes ( 2 ) 214:15 217:5

bedevilled201:15 bedevils202:7 before ( 25 ) 10:23

26:22 30:16 37:25 52:25 56:10 60:9 62:20 71:8 80:17 86:9 87:12 90:25 143:13 148:25 149:12 149:14 173:13 173:14 173:20 173:20 196:20 199:20 215:18 218:13

beg ( 2 ) 14:12 184:11 beginning ( 6 ) 70:14 94:18 192:6 218:6

219:17 219:23 behalf ( 8 ) 42:23 43:1

50:20 51:14 56:25 57:3 128:22 206:11

behave172:22 behaviour ( 9 ) 75:17

75:23 76:11 112:23 118:14 118:19 141:18 141:20 144:2

believe226:4 belongs76:18

below ( 2 ) 29:6 151:20 bench222:21 beneficiary ( 2 ) 83:14
83:19

benefit ( 9 ) 76:19 95:2 95:6 95:9 95:12 203:25 207:20 207:21 207:22

best ( 24 ) 28:14 42:24 49:17 49:25 50:23 51:4 51:25 52:3 52:10 57:1 58:18 77:5 78:9 95:19 95:24 96:6 154:9 172:7 172:8 172:9 208:6 219:14 224:11 226:8

better ( 11 ) 10:22 58:1 127:4 129:14 157:1 157:2 178:8 219:5 220:12 223:25 226:20

between ( 82 ) 2:15 4:8 4:9 4:18 5:11 9:4 9:14 12:7 15:4 15:8 15:9 15:11 15:17 17:2 17:12 17:12 18:9 21:19 22:3 22:20 23:7 23:15 26:13 26:20 27:6 27:8 28:14 28:15 28:25 29:25 30:8 31:1 31:3 32:6 34:20 35:4 35:6 36:18 37:14 37:17 39:3 39:4 39:10 40:3 40:6 41:4 41:9 51:15 57:20 82:13 87:8 89:5 93:24 94:15 97:11 97:15 100:8 105:16 105:19 109:23 110:13 127:20 129:9 130:2 130:8 131:1 131:3 140:10 147:23 151:9 164:4 172:17 174:10 175:18 177:19 180:14 180:16 183:13 198:14 208:5 223:4 223:6

beyond ( 8 ) 33:15 59:16 61:20 214:6 214:10 214:17 215:6 215:12

bid ( 6 ) 162:5 164:2 167:12 168:10 169:14 172:9

bidder ( 15 ) 167:1 168:8 170:12 170:19 196:15 196:16 196:17 197:20 197:20 197:24 198:2 198:2 198:8 200:23 201:8

bidders ( 13 ) 162:5 162:8 162:9 164:1 165:21 165:24 167:7 168:12 168:15 169:21 171:6 172:6 198:12

bidding ( 4 ) 158:7 160:18 168:16 197:6

bids ( 3 ) 165:21 167:15 167:16

binding ( 6 ) 94:6 126:24 130:5 130:19 130:19 143:25

Birt ( 102 ) 1:5 1:7 1:8 21:1 33:24 37:12 37:19 37:22 41:11 41:22 43:19 44:14 44:19 46:4 47:11 48:13 48:15 48:21 49:4 92:20 94:22 95:4 95:7 95:10 95:16 95:19 95:21 96:7 97:5 119:6 121:18 125:15 126:13 143:13 154:9 154:13 155:10 157:4 157:6 160:14 160:19 176:18 177:18 178:4 178:14 178:16 178:19

178:22 183:2 183:6 183:17 183:22 184:5 184:11 196:3 208:9 208:17 208:20 208:23 209:2 209:5 209:11 209:14 209:19 209:25 210:5 210:8 210:10 211:14 211:17 211:20 212:15 212:21 213:4 213:16 214:8 214:20 215:7 215:12 216:16 217:4 217:12 217:23 218:1 218:10 218:25 219:8 220:2 220:7 220:22 221:4 221:12 221:15 222:7 222:19 225:7 225:10 225:16 226:9 226:18 226:22 228:4

bit ( 34 ) 1:21 8:3 13:8 14:25 20:7 23:21 28:4 34:15 39:16 42:11 43:17 52:17 52:18 63:23 78:18 83:12 96:1 96:8 127:4 127:23 141:25 153:21 158:5 158:9 159:12 163:20 163:24 185:3 188:19 208:23 211:23 215:5 216:7 222:16

black ( 4 ) 5:2 8:11 56:16 60:19

blame154:16 bleeds134:12 blind45:19

block ( 2 ) 116:20 116:20

blocking ( 2 ) 116:16 116:18

blocks ( 2 ) 62:12 116:12

blow-by-blow224:21 board ( 2 ) 117:2 122:15 boat95:24

bodily ( 3 ) 186:25 188:2 188:3

bona201:7

bond ( 2 ) 121:5 121:7 book ( 2 ) 13:20 110:1 books15:14 borrower114:17

both ( 22 ) 11:4 13:5 15:25 18:5 27:19 32:9 32:15 36:10 46:12 50:16 143:24 144:1 167:15 181:20 182:7 203:2 204:14 208:6 209:15 211:6 226:15 226:23

bottom ( 2 ) 168:5 183:11

bound ( 6 ) 48:16 51:16 192:24 193:13 193:15 193:22

Braginsky ( 3 ) 13:13 13:14 13:16

breach ( 22 ) 2:16 7:14 15:23 29:3 31:23 31:25 33:4 33:14 35:1 35:9 35:25 38:11 38:11 39:6 117:21 142:15 143:1 171:15 191:9 202:12 202:15 206:5

breached ( 3 ) 36:2 36:3 39:9

break ( 7 ) 41:16 41:20 105:16 143:8 143:9 143:11 154:20

breaking33:18 breaks 123:4 bridge115:14 bridging ( 2 ) 116:5
116:7

briefly ( 8 ) 41:24 134:16 144:23 149:17

164:14 189:17 190:17 206:19

bring ( 51 ) 35:9 38:6 38:25 40:21 45:24 52:4 53:5 57:6 58:7 58:8 59:22 60:3 60:16 60:17 60:20 61:4 61:11 61:18 61:21 62:13 64:4 65:5 66:18 71:22 71:25 72:3 72:4 72:5 73:19 74:8 74:20 75:7 76:13 76:16 78:5 78:18 87:1 90:8 90:11 98:18 99:5 99:6 124:7 126:20 170:2 180:7 180:23 181:13 206:10 206:11 206:13

bringing ( 14 ) 16:9 21:4 21:7 39:14 55:9 61:2 62:8 62:15 73:22 73:25 82:14 83:25 180:18 198:3

brings ( 9 ) 50:20 62:12 65:21 66:9 67:5 73:5 82:15 82:16 100:14

British ( 3 ) 206:21 206:23 206:24

broad ( 4 ) 38:13 47:1 136:5 136:11

broader ( 4 ) 32:25 42:11 43:9 46:9

broadly ( 4 ) 39:16 43:8 52:18 210:21

broken ( 2 ) 204:14 204:16

brought ( 33 ) 7:2 7:15 21:8 30:19 30:20 30:21 38:4 38:12 38:13 50:23 58:12 59:11 61:6 61:13 63:2 65:4 66:7 70:23 71:4 72:12 72:13 72:17 73:13 73:18 74:5 75:20 75:22 77:2 77:4 86:23 94:24 95:10 147:15

bundle84:7

burden ( 6 ) 29:18 30:15 31:14 31:16 37:5 38:7

Business ( 7 ) 24:1 85:16 86:3 87:25 114:11 115:13 196:10

business-related114:2 businessmen ( 2 )

129:7 129:13 button48:12

buy ( 3 ) 118:12 168:19 169:2

buys65:17

C

call ( 8 ) 61:11 68:13 87:18 104:23 117:5 131:15 153:25 176:9

called ( 9 ) 11:23 12:6 21:15 33:25 148:22 154:4 170:7 170:13 184:17

calling ( 2 ) 44:24 60:5 calls ( 2 ) 34:13 34:14 cancelling195:2 cannot ( 25 ) 8:19 23:3
30:11 39:13 52:22 55:3 56:14 58:11 69:13 71:24 73:19 75:19 76:13 88:24 88:25 113:16 117:10 119:21 132:2 132:3 132:7 146:22 170:1 197:3 220:4

canonical34:9 canter ( 2 ) 177:15
208:17

capable ( 2 ) 116:9 117:1

capacity205:6

car ( 2 ) 100:6 101:4 care ( 3 ) 46:23 50:3

68:7 careful26:18 carefully ( 2 ) 81:20

193:25 cares94:18 carried8:4

carry ( 4 ) 108:23 108:24 164:24 176:25

carve-out88:21 carved72:9

cases ( 59 ) 1:11 1:12 1:14 2:5 3:16 4:13 11:11 15:12 15:24 16:6 22:18 22:19 22:21 23:1 23:5 32:5 34:1 36:24 37:11 40:2 40:12 56:4 59:21 61:14 62:20 62:21 62:22 63:19 64:3 64:6 67:15 80:25 81:5 84:6 97:13 97:20 97:24 103:10 108:8 111:16 111:22 113:1 113:5 113:6 113:6 113:9 113:11 118:22 118:25 120:24 129:2 129:10 149:10 153:4 153:17 183:6 206:22 222:20 223:17

cash ( 4 ) 115:15 116:13 116:21 119:21

cat’s216:7 catch167:2 categories ( 3 ) 113:3

113:9 113:11 categorisation123:1 category 135:10 caught ( 6 ) 64:15 75:11

75:16 100:4 101:5 194:12

causal ( 3 ) 79:18 79:21 102:12

causality100:25 causation ( 12 ) 69:16

69:21 70:2 70:5 70:6 70:6 70:9 102:5 109:23 110:3 110:5 110:6

cause ( 35 ) 16:2 29:3 38:18 40:9 40:11 40:14 40:18 45:18 45:20 45:23 45:25 47:17 48:19 54:3 61:5 70:17 75:17 75:24 76:2 78:16 87:16 88:10 99:1 100:22 101:2 101:23 102:24 105:5 118:7 160:23 175:5 186:2 193:21 200:25 203:14

caused ( 36 ) 8:19 8:20 30:2 31:19 34:23 35:1 35:10 36:4 36:15 39:6 43:5 45:3 45:11 48:24 49:14 73:2 73:25 74:10 75:10 75:14 76:17 82:9 83:1 83:8 85:3 85:14 85:23 86:1 97:6 98:20 102:22 103:3 103:19 108:14 109:14 111:13

causes ( 4 ) 45:3 59:14

76:11 99:11

causing ( 4 ) 7:7 102:6

102:7 184:23

cautious ( 3 ) 63:12

199:22 201:25 caveat ( 2 ) 44:15 159:3 caveats ( 2 ) 165:2
174:22

cent ( 8 ) 65:5 65:8 66:9 66:13 66:25 168:22 169:13 169:14

centuries81:11

certain ( 31 ) 54:8 59:14 80:16 89:7 108:22 120:1 120:23 122:13 128:16 128:17 128:24 131:3 131:10 131:18 138:25 141:8 147:14 147:20 158:6 159:7 188:5 192:7 192:8 192:24 197:23 198:1 200:1 200:5 200:24 200:25 204:21

chain ( 9 ) 70:10 70:14 79:20 79:20 79:21 80:9 80:12 83:12 102:12

Chair24:1 chairman11:5 challenged ( 4 ) 37:3

37:8 144:22 174:19 challenging196:10 chance ( 2 ) 58:1 206:9 change ( 4 ) 19:2 19:3

25:24 119:3 changed26:4

Chapter ( 2 ) 5:16 5:17 characterisation ( 3 )
37:4 37:9 117:5

characterise ( 2 )

122:25 179:10 characterised37:1 charter ( 4 ) 87:25 88:3

89:8 94:19 chasing221:15 cheap120:21

check ( 9 ) 98:9 111:22 130:7 131:18 149:11 164:16 172:6 192:17 220:13

checked ( 2 ) 153:6 220:12

child ( 4 ) 170:20 171:10 171:17 172:2

choice ( 29 ) 9:7 15:3 15:8 15:11 15:17 15:21 19:5 26:12 27:8 27:14 28:10 28:14 32:6 39:2 39:3 39:20 40:1 40:6 41:4 50:4 53:23 57:20 69:5 78:2 78:13 175:11 175:18 180:11 198:4

choose ( 13 ) 12:21 19:2 26:21 40:3 41:6 41:9 54:1 78:6 118:12 180:14 180:17 180:20 214:3

chooses164:21 choosing ( 3 ) 40:8

40:13 41:2 chose153:23 chosen50:3 Christopher34:5 chunk41:15 circle218:21 circuitous21:17 circular8:21 circularity44:22 circumscribed204:8 circumstance ( 2 )

24:18 54:12 circumstances ( 40 )

24:22 35:14 35:18 35:24 53:17 57:7 58:24 59:5 59:15 75:2 109:3 112:13 118:10 120:1 120:22 122:13 124:8 124:22 125:4 125:9 130:22 138:4 139:16 142:15 159:8 187:9 187:16 188:13 188:16 188:20 189:9 190:7 190:19 193:12 193:13 193:14 204:13 206:14 211:25 214:25

circumvent39:14 cite ( 10 ) 8:6 26:25
32:4 36:12 40:2 42:11

103:9 115:25 150:14 151:3

cited ( 12 ) 6:2 6:3 28:20 28:23 40:12 56:4 113:2 113:9 115:20 153:11 153:14 164:9

cites ( 3 ) 25:19 36:24 195:24

citing ( 3 ) 19:6 19:7 110:1

citizens90:3

civil ( 61 ) 2:3 6:8 6:9 6:11 6:13 6:22 7:22 7:23 8:1 9:3 9:15 10:17 13:12 27:21 34:8 34:9 61:15 71:11 71:12 72:9 73:3 75:12 76:8 76:9 77:25 85:7 88:17 89:16 90:5 90:17 91:10 92:6 106:15 107:5 107:17 107:23 108:6 110:20 113:17 117:10 118:16 121:16 133:24 144:18 146:1 146:10 146:19 154:2 154:4 154:5 161:11 166:24 168:7 175:10 175:25 176:10 179:4 184:21 185:9 195:3 202:3

Claimant ( 11 ) 2:15 5:11 27:7 31:7 31:17 38:2 38:3 47:16 83:13 101:24 113:19

claimants ( 3 ) 216:1 223:22 224:1

claimed9:7 claiming ( 2 ) 40:3
82:19

claims ( 108 ) 1:11 1:20 1:24 1:25 1:25 2:6 2:7 2:8 2:9 2:9 2:19 2:21 2:22 3:1 3:2 3:3 3:4 3:6 3:7 3:8 3:9 3:9 3:19 3:22 4:6 4:16 5:3 5:7 5:13 6:24 7:14 7:22 8:12 8:12 9:6 9:9 9:9 9:11 9:12 9:20 9:23 9:24 10:2 10:3 10:7 11:1 12:5 13:11 13:24 14:17 14:19 15:3 15:9 15:17 16:12 17:12 17:13 17:14 17:24 18:3 18:9 20:2 20:5 21:5 21:17 23:7 24:11 24:17 25:3 27:6 28:15 28:16 28:17 31:24 34:11 37:15 37:24 39:21 40:5 41:3 42:8 42:18 49:20 57:20 62:25 70:23 70:24 72:16 73:17 74:4 78:25 79:1 79:2 80:12 82:21 97:16 120:23 120:24 176:5 176:6 198:23 206:7 207:10 207:11 207:23 207:23 208:25 209:12

claims’ ( 2 )9:8 12:22 clarification ( 2 ) 92:24

220:16 clarifications141:7 clarified46:22 clarify ( 3 ) 139:19

182:10 196:10 clarifying101:10 classical ( 3 ) 50:10

117:18 204:1 classification 117:4 clause ( 7 ) 87:25 94:19

129:20 137:24 138:11 141:9 141:16

clauses129:18 clear ( 33 ) 5:20 9:13

18:21 19:15 19:16 30:9 51:3 51:23 52:25 54:3 54:5 56:3 62:19

64:20 66:4 68:18 93:18 103:12 113:19 116:2 123:11 123:18 123:22 123:23 125:6 125:6 125:10 125:11 125:14 125:17 125:19 125:21 142:11

cleared106:1

clearer ( 4 ) 16:4 17:6 217:5 219:19

clearly ( 6 ) 15:25 19:14 45:22 46:12 50:19 211:1

clerk ( 3 ) 218:3 219:15 222:4

clever56:16

client ( 14 ) 15:8 15:18 15:20 16:19 16:22 22:12 23:3 54:1 54:15 55:17 116:19 119:19 120:18 183:7

client’s126:23

clients ( 6 ) 24:21 54:19 116:21 214:1 215:1 215:14

close ( 2 ) 27:22 176:20 closely ( 3 ) 4:18 20:6
199:8

closer ( 5 ) 4:8 23:14 26:19 36:18 150:19

closest 27:21 closing ( 5 ) 210:22

210:23 210:24 214:17 223:18

closings ( 27 ) 211:8 211:17 211:21 212:1 212:4 212:6 212:11 212:17 213:6 213:11 213:18 213:24 214:4 214:22 215:1 215:18 215:18 217:13 219:10 220:11 220:24 221:18 222:8 222:20 223:13 224:7 226:3

clothe4:14

CMC 217:18 co-author13:14 co-authors13:19 co-participation ( 3 )

107:7 107:24 108:6 co-terminate98:2 co-tortfeasors109:24 coach121:24

Code ( 64 ) 6:8 7:22 7:24 13:13 22:9 22:23 24:10 25:2 27:2 27:21 28:4 29:16 34:8 34:10 40:19 61:16 63:8 67:14 68:1 68:2 68:3 68:5 68:7 73:3 75:12 76:8 77:25 85:7 85:9 88:17 90:4 90:5 93:1 99:25 110:20 117:10 117:23 118:16 121:16 126:9 131:21 133:24 144:18 146:1 146:19 146:20 154:1 154:2 154:5 166:24 168:8 170:15 175:9 175:10 175:25 177:18 179:4 184:21 185:9 185:10 191:4 195:3 195:15 202:3

codes176:3 coercion186:23 cogent81:14 coin201:18 coincide40:15 collect72:23 collecting207:19 Collectively ( 2 ) 222:19

225:17 column24:6 combination ( 3 )

105:19 188:13 188:16 combined160:7

come ( 31 ) 26:14 49:20 52:13 72:1 73:9 81:13 92:21 96:9 98:8 100:11 100:12 100:18 106:13 111:14 118:21 129:10 155:5 161:2 163:10 167:2 167:5 185:6 206:4 214:2 214:21 214:24 215:18 219:11 221:14 221:15 224:18

comes ( 14 ) 16:22 18:9 47:4 47:17 52:19 53:3 53:7 54:2 81:7 99:15 117:20 125:14 125:23 163:5

comfort ( 2 ) 92:8 92:19 comfortable ( 3 ) 58:15
58:18 58:20

coming ( 2 ) 26:22 82:13

commanding217:20 commands ( 2 ) 33:4
94:8

comment ( 3 ) 7:17 18:18 26:23

commentaries ( 2 )

169:25 185:10 commentary ( 3 )

184:21 185:8 186:22 commented ( 3 ) 37:6
101:1 184:13

commerce124:10 commercial ( 12 )

114:11 114:11 121:25 146:3 146:8 146:12 156:2 156:7 156:9 171:18 171:22 226:2

commit ( 2 ) 103:23 108:7

commitment213:13 commitments214:18 committed ( 5 ) 86:5

102:11 105:4 218:16 218:18

common ( 15 ) 8:9 32:9 35:4 97:13 105:23 124:6 124:20 124:24 125:12 135:9 147:17 170:19 171:10 171:17 172:2

companies ( 13 ) 51:8 64:15 76:10 80:12 85:16 86:3 90:2 129:9 140:22 156:2 156:7 203:14 208:6

company ( 204 ) 29:1 42:2 42:23 43:1 44:3 44:7 44:17 44:25 45:3 45:6 45:22 46:11 46:19 47:2 47:3 47:22 47:22 48:6 49:11 49:12 49:14 49:18 50:1 50:3 50:19 50:20 50:20 50:24 51:2 51:5 51:8 51:14 51:22 52:1 52:4 52:6 53:5 53:8 55:6 55:7 57:1 57:4 57:6 58:7 59:9 59:13 59:21 60:3 61:2 61:3 61:23 61:25 62:12 62:13 62:15 64:4 64:24 65:1 65:1 65:4 65:9 65:14 65:15 65:15 65:16 65:19 66:17 66:21 66:24 67:6 69:19 69:24 70:13 70:15 70:19 70:23 70:24 71:5 71:18 72:12 72:13 72:16 72:17 73:6 73:13 73:19 73:23 74:1 74:8 74:11 74:13 76:2 76:12 76:16 76:17 76:19 78:19 78:22 78:24 78:25 79:17 80:3 80:5 80:6

80:7 80:7 80:10 81:21
complex ( 7 ) 68:4 86:8
consequence ( 4 ) 44:2 contract ( 152 ) 4:24

81:24 82:3 82:7 82:9
86:16 193:3 194:21
118:15 118:17 118:18
5:12 7:11 7:15 8:18

82:16 83:2 83:7 83:9
194:25 209:10
consequences ( 9 ) 2:1
8:19 8:20 12:15 15:22

83:14 83:16 85:2 85:3
complicit ( 2 ) 157:16
2:17 35:14 118:13
17:2 18:12 20:18

85:12 85:13 85:15
158:16
119:2 120:11 122:4
21:24 23:15 28:25

85:22 85:23 85:25
complied ( 2 ) 174:23
186:16 186:16
30:1 30:8 30:18 31:1

86:1 86:2 86:24 87:9
175:3
conservative63:13
31:4 32:19 32:22

87:9 87:11 87:15
comply ( 4 ) 131:20
consider ( 15 ) 42:1
32:24 33:7 33:17

87:15 87:24 89:22
131:22 157:23 172:13
49:16 49:24 50:22
33:18 34:21 36:6

92:4 93:6 93:7 93:9
conceivable141:24
50:25 51:1 52:3 52:10
38:2 38:4 38:5 38:9

93:12 93:19 94:5
concept ( 12 ) 8:4 20:14
58:13 67:7 69:16
38:18 39:10 39:12

94:7 94:8 94:11 94:17
23:7 60:14 60:15
69:21 80:21 93:14
39:13 39:17 39:23

94:20 94:25 95:1 95:3
69:1 69:11 69:12 98:4
122:10
77:15 77:15 88:14

95:4 95:5 95:8 95:11
114:1 118:13 147:11
considerable216:10
88:20 88:21 89:1 94:9

104:13 104:17 115:5
conceptual ( 2 ) 60:12
consideration ( 3 ) 104:15 111:10 112:18

115:10 115:10 115:12
99:21
52:13 63:1 82:1
113:6 117:21 117:22

116:11 116:13 116:14 concern ( 4 ) 51:2 51:22
considered ( 3 ) 40:12
118:15 119:7 119:17

116:19 127:19 128:8
54:2 191:23
80:17 196:17
122:3 122:18 122:20

128:9 128:12 128:14
concerned15:19
considering ( 3 ) 2:5
123:2 123:6 123:17

128:24 129:3 142:13
concerning159:1
52:15 82:8
123:20 123:25 123:25

142:18 142:19 142:25
concert102:23
considers78:8
124:4 124:7 125:12

143:18 170:13 199:13
conclude ( 8 ) 112:9
consistent ( 4 ) 17:12
128:17 130:9 130:10

199:14 202:12 202:13
117:21 117:24 117:25
17:14 22:23 67:19
130:10 130:12 130:13

202:19 203:1 203:3
119:7 132:4 138:9
consistently146:20
130:19 130:20 130:24

203:20 203:25 204:2
151:9
conspiracy ( 27 ) 97:21
131:6 131:19 131:20

204:5 204:10 204:11
concluded ( 3 ) 94:6
97:23 97:24 98:4 98:5
131:21 131:22 131:23

204:15 204:18 204:20
130:25 131:1
98:10 99:15 99:18
131:25 132:1 132:3

205:16 206:3 206:4
concludes ( 4 ) 14:1
99:22 99:24 99:24
132:5 132:10 133:1

206:9 207:4 207:12
14:5 24:8 133:13
103:22 106:3 106:5
133:5 133:6 133:13

207:20 207:21 207:22
conclusion ( 15 ) 14:7
106:10 108:19 108:23
133:21 133:21 133:22

207:24
14:12 22:9 22:15
112:16 159:24 160:18
134:20 134:21 134:22

company’s ( 3 )76:20
24:9 24:9 29:12 30:17
160:22 162:8 164:4
134:23 134:23 134:24

83:3 127:18
45:11 109:19 112:5
165:3 171:11 171:12
134:25 134:25 135:1

comparison123:19
118:17 134:21 142:8
171:19
135:3 135:3 135:4

compel ( 13 ) 117:10
190:15
conspiracy-type108:17
135:5 135:11 136:8

117:23 121:23 122:2
conclusions ( 3 ) conspirator99:10
136:8 136:9 136:10

122:3 137:21 138:5
111:21 112:3 130:3
conspire101:2
137:7 138:7 138:7

138:19 139:5 139:9
conclusive ( 4 ) 128:18
constitute ( 3 ) 7:14
138:9 138:10 139:10

142:3 142:8 142:24
128:20 128:23 129:1
49:10 118:23
139:11 139:14 140:3

compelling117:20
concurrence ( 5 ) 2:6
constituted 191:8
143:2 143:3 143:4

compensate ( 5 ) 39:6
2:7 2:19 2:21 3:2
constitution ( 3 ) 8:3
143:16 143:20 143:21

91:5 92:16 111:12
concurrent ( 2 ) 31:24
60:18 204:17
143:24 143:25 144:13

145:9
31:25
constitutional ( 2 ) 147:11 147:12 148:10

compensated ( 12 ) concurrently44:6
60:13 68:15
151:8 151:9 151:12

20:18 30:5 32:11
condition ( 5 ) 12:12
constrained ( 2 ) 27:7
156:3 169:7 176:13

32:19 36:14 51:19
100:15 134:20 143:3
60:18
177:19 180:15 180:22

54:6 56:8 62:6 69:4
189:7
construct ( 4 ) 69:2
180:23 181:8 181:20

88:19 91:5
conditions ( 12 ) 30:7
87:20 107:7 107:24
182:8 182:24 183:20

compensation ( 16 ) 100:1 100:2 100:10
construction29:1
186:20 187:23 187:25

33:22 39:25 42:25
106:11 106:14 108:20
construe129:22
191:9 192:5

49:17 49:25 56:7 57:2
108:21 143:2 188:23
consumer ( 3 ) 88:24
contract-related39:5

65:12 82:17 85:13
189:5 189:10
88:25 89:2
contracting119:6

85:25 89:15 92:4
conduct ( 12 ) 29:9
contain ( 2 ) 131:14
contractor ( 2 ) 29:1

93:11 179:22 179:23
75:11 75:15 77:19
132:19
29:6

competing ( 2 ) 80:11
98:25 105:1 124:10
contained ( 2 ) 123:8
contractor’s29:9

176:6
161:7 164:21 189:8
220:7
contracts ( 22 ) 13:20

competition ( 52 ) 1:10
195:18 195:18
contains ( 4 ) 5:17
113:7 114:2 114:8

2:22 2:25 3:3 3:4 3:6
conducted ( 6 ) 159:15
11:19 131:19 137:9
114:12 117:24 117:25

3:7 3:21 4:6 4:15
159:19 160:4 165:7
contaminated15:10
126:7 126:14 130:11

5:3 6:24 7:22 8:11
165:11 196:13
contend ( 2 ) 27:14
130:14 131:14 131:15

9:20 9:23 9:24 10:2
conducting210:16
27:16
131:15 134:10 134:16

10:3 10:7 11:1 11:25
conference67:4
content ( 5 ) 37:20
148:8 148:8 151:6

13:11 13:24 14:17
conferred 121:6
124:4 190:20 208:4
151:8 183:4 183:14

14:19 15:2 15:9 15:16
confined ( 4 ) 43:25
215:14
contractual ( 32 ) 2:9

15:16 16:11 17:12
44:4 48:4 48:8
contents ( 2 ) 10:5
3:9 5:10 7:1 9:14

21:5 21:17 23:7 24:10
confirm ( 6 ) 40:2 41:2
16:23
12:13 14:14 26:2 28:6

24:17 25:3 27:6 28:16
77:11 78:4 126:17
contesting109:19
30:3 30:6 30:11 30:19

28:17 37:15 37:24
134:6
context ( 27 ) 4:11 5:6
31:5 31:11 31:22 32:7

39:21 40:5 41:3 57:20
confirmed ( 5 ) 41:4
23:21 25:12 25:14
32:16 33:5 33:5 33:14

171:5 198:14 199:6
41:9 56:4 179:7
36:12 70:19 74:5
33:25 34:13 34:24

199:6 199:9
189:18
87:15 106:16 107:13
35:9 35:23 36:16 39:7

competitive ( 2 ) 162:7
confirms 55:24
108:21 110:9 113:7
119:12 132:19 132:22

197:6
confiscating92:2
113:17 113:21 114:7
153:14

competitor ( 2 ) 65:17
confronted ( 2 ) 18:20
126:7 129:22 138:3
contradicts ( 2 ) 133:14

75:18
64:19
139:16 142:12 184:6
133:16

competitors 6:15
confused ( 2 ) 141:25
190:4 206:2 207:8
contrary ( 6 ) 20:19

complain ( 2 ) 77:21
201:16
220:3
75:19 88:1 88:20

182:14
confusing40:17
contexts ( 3 ) 120:7
118:16 133:22

complaint173:22
confusion ( 2 ) 155:17
126:6 128:16
contrast ( 5 ) 11:8 63:5

complete ( 4 ) 71:11
155:20
Continental ( 3 ) 6:22
107:6 107:17 107:23

73:16 73:17 95:21
conjunction ( 3 ) 108:25
81:15 207:1
contribute ( 2 ) 102:6

completed138:19
162:23 175:17
contingencies63:10
102:7

completely ( 3 ) 115:13
connected ( 4 ) 7:9 38:4
continually63:14
contributed104:7

141:24 223:19
38:9 70:14
continue177:16
control ( 2 ) 164:17

completeness168:2
connection ( 3 ) 56:4
Continued ( 4 ) 1:6 1:7
204:11

completion ( 2 ) 75:6
79:18 83:17
228:3 228:4
controlled72:22

103:23
conscious36:22
continuing17:15

controversial ( 2 )

97:12 184:14

convene ( 2 ) 104:13 104:18

convenient41:16 converse189:24 convincing71:16 coordinated105:22 copy155:11 corporate ( 13 ) 51:7

54:4 58:15 59:6 64:12 87:10 94:4 199:12 199:24 200:8 200:9 202:24 209:7

correct ( 41 ) 2:11 4:22 19:19 19:21 21:8 22:10 22:17 31:21 44:8 55:23 80:16 89:23 93:8 100:24 107:10 112:14 121:8 121:12 122:21 134:7 147:7 148:4 150:9 150:14 155:17 156:11 156:12 160:5 162:5 162:17 165:19 169:15 172:8 185:2 197:5 199:2 201:22 203:4 203:13 205:8 217:4

corrected154:10 correctly 36:25 correlation66:13 correspondence124:9 corresponding145:13 couched 121:18 couldn’t ( 3 )18:4 18:6

66:24

counsel ( 3 ) 50:2 61:18 156:12

counterparty ( 2 ) 36:2 112:19

country ( 3 ) 8:2 48:11 126:1

country’s6:22 counts105:1

couple ( 8 ) 1:11 11:12 95:25 130:7 161:24 201:2 201:12 208:11

course ( 33 ) 20:10 20:14 21:9 22:11 25:4 41:17 44:14 45:16 58:13 80:21 81:11 96:23 103:24 116:7 118:8 118:9 120:5 122:14 143:19 155:18 159:10 159:12 162:20 163:18 164:8 165:2 166:24 168:19 169:5 175:5 175:12 223:23 225:22

court’s25:18 courtroom69:12 courts ( 75 ) 3:15 4:25

15:3 15:15 15:25 16:15 16:20 19:12 21:7 21:18 22:10 22:19 22:21 23:1 23:5 24:21 25:4 26:13 29:6 32:4 33:21 36:9 36:12 37:16 38:14 41:2 41:8 42:25 49:16 49:24 50:22 50:25 51:9 52:3 52:10 56:3 57:3 57:17 58:3 60:15 61:10 61:13 64:18 66:5 74:23 78:3 81:12 84:3 84:13 112:23 113:11 113:23 113:25 117:1 120:2 120:2 120:3 120:4 120:7 121:2 121:19 121:22 122:2 122:10 128:25 135:18 135:22 149:9 153:11 153:13 153:13 161:11 199:21 200:6 201:25

cover ( 5 ) 63:10 71:11 73:16 119:22 210:8

covered ( 4 ) 16:3 36:15 102:8 106:19

covering81:13

covers ( 3 ) 90:15 94:14 189:17

cradle216:7 create ( 3 ) 114:21

131:2 200:3 created200:1 creates ( 3 ) 88:8

106:14 116:10 creating ( 6 ) 99:25

100:1 100:10 106:11 108:20 108:21

creature ( 2 ) 199:15 199:16

credible ( 5 ) 185:3 185:4 186:13 187:3 188:4

creditor ( 6 ) 82:5 82:19 145:6 145:10 161:11 207:10

creditors ( 10 ) 72:20 72:22 72:24 76:20 81:24 82:21 82:24 172:17 172:25 207:23

crime ( 9 ) 100:1 100:2 105:3 105:4 105:5 106:11 106:14 106:15 108:20

criminal ( 8 ) 99:21 99:24 99:25 107:6 107:18 107:24 204:23 205:4

crisis115:7 criteria131:21 criticism ( 2 ) 115:8
146:4

Cross-examination ( 2 )

1:7 228:4 cross-examining96:25 cross-referencing224:9 curiosity ( 2 ) 46:24

47:9 current110:16 Currently ( 3 ) 4:3 84:2

121:14 cusp96:7 customer28:25 cut101:8

Cyprus115:18

D

D106/1531/1137:8

D106/1531/5 ( 4 )

136:21 137:8 137:13 137:20

D106/1531/9137:10

D107/1537/1 ( 2 )

126:22 140:2 damage ( 9 ) 65:8 74:11

90:18 93:5 93:19 186:3 188:2 188:3 188:3

damages ( 18 ) 31:12 31:19 31:22 31:25 32:1 33:4 33:8 89:15 90:16 177:22 177:23 178:22 179:3 179:14 179:22 180:9 183:6 198:4

danger186:8 dare217:19

date ( 7 ) 211:17 213:19 213:24 214:21 215:10 215:14 217:12

dates ( 9 ) 9:1 63:7 210:11 210:22 211:7 212:16 219:9 219:25 222:8

day ( 9 ) 80:14 100:5 127:22 138:18 176:19 177:3 208:16 217:22 220:8

Day40/134212:13

Day40/135212:13
defining184:22
35:13 35:15 40:25

Day41/58127:25
definitely ( 2 ) 98:12
64:7 65:10 70:18 79:6

Day41/62128:5
218:23
87:22 91:16 91:17

Day41/8101:9
definition ( 4 ) 10:1
100:12 116:16 121:3

days ( 19 ) 115:11
90:13 130:9 156:20
122:17 129:16 131:14

119:21 119:24 120:17
degree122:19
144:9 148:12 148:13

173:13 173:14 173:19
delay92:23
148:16 150:13 159:4

173:20 173:23 173:25
delayed1:3
176:9 179:21 209:24

174:8 174:11 208:11
deliberate ( 2 ) 50:4
220:20

213:7 222:14 222:16
162:18
differentiate9:4

223:3 225:14 225:15
deliberately ( 2 ) 16:11
differently ( 3 ) 23:11

deadlock154:20
104:13
90:7 171:9

deal ( 5 ) 4:1 61:22
delve196:2
difficult ( 11 ) 31:23

84:13 206:25 210:14
demand 190:25
35:7 59:2 59:4 83:17

dealing ( 4 ) 16:6 16:7
demands ( 3 ) 113:20
208:2 218:20 224:6

27:25 28:1
128:16 191:4
224:10 224:20 226:4

dealings ( 2 ) 119:2
demonstrate64:20
difficulties ( 2 ) 118:7

120:11
demonstrated37:18
219:17

deals ( 6 ) 87:7 146:14
demonstrates13:13
difficulty34:17

147:1 147:25 177:23
demurred209:23
digest215:25

178:5
denied118:18
digress ( 2 ) 147:10

dealt ( 2 ) 178:2 205:24
denoting32:22
148:9

debate ( 3 ) 17:23 91:19
deny ( 2 ) 14:6 194:8
dilemma ( 3 ) 18:20

135:6
denying ( 2 ) 29:15
21:12 22:2

debates17:15
200:4
diminish91:9

debt170:11
department6:9
diminished ( 3 ) 53:9

debtor ( 6 ) 74:4 120:16
depend ( 4 ) 66:15
54:3 73:8

145:7 145:8 145:8
109:5 125:25 168:23
diminishing92:3

147:3
dependence99:20
diminution ( 26 ) 44:1

debtors ( 2 ) 172:19
Depending ( 4 ) 111:7
45:1 45:4 46:16 47:20

172:25
159:10 161:7 216:25
48:6 49:13 53:16

debts ( 5 ) 80:11 83:2
depends ( 2 ) 100:20
54:11 57:8 60:25

83:7 83:8 172:18
159:24
65:6 71:3 71:23 73:11

deceit38:17
deputy11:5
74:9 75:8 78:20 79:14

December ( 5 ) 134:13
derivative ( 32 ) 49:19
79:22 82:2 90:8 90:11

140:11 144:10 156:14
49:20 50:5 50:11
91:25 92:17 207:2

183:8
50:16 50:23 52:5 54:4
direct ( 21 ) 70:2 70:6

deception190:3
54:8 55:13 59:6 59:10
70:6 70:9 70:17 79:19

decide ( 3 ) 51:10 55:22
61:6 61:12 61:25
93:15 94:11 109:23

66:6
84:24 86:5 86:23
110:3 110:6 116:18

decided ( 10 ) 30:23
93:15 94:24 204:1
149:9 152:17 152:19

32:23 80:22 104:9
204:4 205:5 206:6
153:1 185:16 203:11

104:13 114:14 118:2
206:7 206:8 206:12
204:19 205:1 205:3

195:1 195:19 220:4
207:11 207:13 208:3
directly ( 12 ) 69:18

decides66:18
208:24 209:12
69:23 76:5 106:13

decision ( 5 ) 26:5 26:8
derive89:12
116:23 152:24 155:15

29:9 162:18 165:14
derogate ( 3 ) 88:2
185:17 202:16 202:20

declaration175:8
88:14 88:25
206:14 207:4

declare ( 5 ) 174:20
describe98:10
director ( 7 ) 59:9 59:12

175:13 175:21 176:3
described ( 10 ) 35:24
64:13 64:13 79:17

188:21
57:22 59:6 64:11 72:8
204:2 205:2

declared ( 6 ) 72:16
89:23 144:5 144:10
directors ( 11 ) 118:6

165:25 168:15 177:20
161:7 188:9
202:12 202:25 203:1

181:17 182:1
describes ( 2 ) 93:24
203:17 204:8 204:10

decree ( 4 ) 25:19 25:23
179:14
204:14 204:21 206:3

25:23 26:7
describing112:1
206:23

dedicated34:10
description132:8
directors’202:19

deep ( 3 ) 25:10 25:15
descriptions185:1
disagree ( 6 ) 41:12

209:9
designed ( 3 ) 118:20
88:13 92:20 133:8

deeply19:8
172:16 172:20
191:10 191:18

default ( 2 ) 114:18
desires67:5
disagreed ( 2 ) 29:11

120:20
detail172:21
131:5

defaulting120:16
detailed ( 2 ) 202:23
disagreement 97:10

defaults115:11
216:24
disagrees223:4

defeated55:19
details63:20
disallow ( 3 ) 58:11

defences200:24
determination124:3
61:14 62:9

Defendant ( 18 ) 2:15
determine126:2
disallowing58:5

5:11 5:12 7:1 9:7 38:3
determined ( 2 ) 133:20
disallows60:20

38:4 43:5 44:3 45:2
134:2
discard109:22

51:12 54:15 54:19
determines ( 2 ) 165:8
discharge31:14

54:23 54:25 55:1
165:12
disclose186:17

102:11 102:23
detriment 110:22
disclosed201:9

defendant’s102:21
developed ( 2 ) 56:13
disclosure186:3

defendants ( 2 ) 221:9
192:1
discover199:7

223:23
deviate ( 2 ) 172:24
discrete ( 2 ) 112:11

define ( 8 ) 10:1 10:6
173:3
113:10

15:25 23:8 69:12
diary ( 3 ) 219:10
discretion ( 2 ) 117:14

69:13 99:13 147:13
219:19 219:20
201:3

defined ( 18 ) 23:8 90:9
dictates215:19
discriminating 129:8

91:6 91:7 107:11
difference ( 7 ) 29:25
discuss ( 7 ) 20:3 57:23

136:13 136:17 145:24
34:20 35:6 46:20
152:13 210:22 211:1

145:25 145:25 146:11
96:20 147:23 217:16
211:7 219:14

146:18 153:25 156:8
differences 9:13
discussed ( 11 ) 31:2

179:3 179:3 179:7
different ( 38 ) 2:20
43:8 56:1 57:19 64:3

179:12
7:5 9:5 9:9 14:24
70:4 77:13 78:1 144:8

defines ( 4 ) 9:23
18:14 20:14 22:11
206:19 215:15

130:13 146:7 154:5
25:4 27:25 28:7 35:7
discusses20:2

discussing ( 4 ) 11:25

58:24 85:4 176:2 discussion ( 5 ) 22:7

134:9 211:24 212:13 226:1

discussions25:13 dishonest190:7 dishonestly ( 4 ) 110:22

161:10 189:22 189:25 dishonesty ( 2 ) 157:15

159:22 dismissed29:6 dispose ( 3 ) 117:13

117:14 118:11 dispute ( 5 ) 125:7

125:8 125:16 134:12 134:14

disputed ( 3 ) 29:14 193:16 193:19

disregard199:24 disregarded199:16 dissipated194:2 dissolves115:13 distinct ( 3 ) 179:8

180:16 197:22

distinction ( 2 ) 6:23 17:11

distinguish72:6 distinguishes186:24 distribution186:2 disuse15:14 divergence37:17 divide223:6

divided ( 2 ) 124:14 223:4

division208:5 doctrine ( 5 ) 45:20

107:5 107:17 107:23 122:16

document ( 17 ) 126:24 127:9 128:10 129:17 129:22 130:17 136:20 137:9 140:17 190:9 190:13 194:5 216:1 223:22 223:23 223:24 223:25

documents ( 5 ) 89:8 128:18 136:23 221:6 224:1

does ( 48 ) 4:14 6:24 9:5 9:22 10:15 12:21 13:12 14:14 33:1 42:5 44:4 45:24 46:3 50:8 62:14 69:1 70:4 76:21 78:17 82:16 85:1 85:22 89:9 89:9 90:10 90:10 90:23 91:20 95:17 115:1 125:25 129:17 129:20 146:15 156:1 156:4 164:18 165:1 169:5 172:2 177:10 177:23 179:1 186:22 190:10 217:5 224:18 225:3

doing ( 10 ) 22:22 22:24 95:19 96:6 104:6 141:15 156:11 158:22 210:24 221:17

done ( 49 ) 19:14 39:8 44:2 44:5 44:17 44:20 45:2 45:21 45:25 46:11 46:12 46:17 47:21 48:5 48:20 49:11 53:8 61:1 62:13 65:1 65:8 65:13 70:15 73:4 77:7 77:9 77:23 78:22 79:13 80:6 82:11 82:17 93:6 93:19 95:15 97:11 130:4 153:4 165:16 202:11 203:9 203:11 203:22 208:6 208:15 214:25 216:10 221:10 221:18

Double ( 11 ) 61:9 61:10 61:15 61:22 62:16

66:22 67:7 205:7 205:10 205:18 205:24

doubt ( 3 ) 95:21 216:10 216:23

doubts126:10

down ( 22 ) 10:13 19:24 26:14 29:18 109:12 109:17 123:5 127:18 128:4 128:8 128:13 152:11 158:23 159:12 169:10 169:14 170:18 188:19 189:6 191:15 191:16 213:11

downturn115:12 draft 7:21 drafters85:7 drag131:11

draw ( 6 ) 1:21 3:13 8:6 17:11 111:21 112:5 drawing ( 2 ) 23:6 45:10

drawn3:15 draws7:13 dreaded201:13 drew112:3

drive ( 3 ) 100:6 101:4 121:24

driven ( 2 ) 67:12 222:21

driving106:14 drops4:5

due ( 5 ) 71:3 73:11 79:15 106:4 205:8

duress ( 5 ) 177:19 181:5 181:8 184:5 185:14

during ( 11 ) 20:13 35:5 67:3 68:1 74:21 75:3 81:2 81:3 96:23 115:6 138:1

duties ( 12 ) 77:3 77:10 108:25 172:12 202:12 202:19 204:5 204:7 204:8 204:22 204:24 208:5

duty ( 4 ) 114:21 118:4 204:14 204:16

E

e-mail ( 5 ) 217:25 218:19 220:16 222:4 223:5

E2-E3/12/160166:3

E2-E3/12/25191:12

E2-E3/12/264170:7

E2-E3/12/267170:14

E2-E3/12/30192:19

E2-E3/12/31193:18

E2-E3/12/329 ( 2 ) 168:3 173:9

E2-E3/12/3416:19

E2-E3/12/3437:5

E2-E3/12/35195:7

E2-E3/12/36195:14

E2-E3/12/360185:8

E2-E3/12/45134:18

E2-E3/12/52 ( 2 ) 178:1 184:11

E2-E3/12/652184:8

E2-E3/12/7184:22

E2-E3/12/7386:21

E2-E3/12/9132:14 E4/13/18122:23 E4/13/698:16 E4/13/798:19

E4/14 ( 20 ) 1:16 1:18 1:22 5:8 9:1 11:12 11:16 28:21 28:22 29:11 91:1 91:2 91:3 106:18 106:21 107:13 107:14 109:11 111:20 149:17

E4/14/19105:14

E4/14/32196:12

E4/14/36145:3

E4/14/37 ( 2 ) 149:4

152:5

E4/14/3926:24

E4/14/55178:17 E4/14/58 ( 2 ) 43:15 49:7 E4/14/59 ( 2 ) 43:17
59:18

E4/15/14178:9

E4/15/15178:9

E4/15/17110:15

E4/15/18158:10

E4/15/19160:2 E4/15/20 ( 2 ) 42:15
56:21

earlier ( 11 ) 73:10 96:23 109:5 162:15 173:23 173:25 176:2 180:5 212:11 212:23 216:13

earliest ( 2 ) 173:14 173:20

early ( 2 ) 201:25 215:20 easier ( 3 ) 32:2 35:8

136:1 easiest178:4 easily30:14

easy ( 2 ) 58:13 217:6 economic ( 3 ) 8:2
79:16 115:11

effect ( 10 ) 32:13 32:18 63:1 73:15 88:4 101:10 104:15 114:22 141:1 160:7

effected ( 2 ) 181:19 182:7

effectively ( 12 ) 40:21 47:4 65:8 116:3 116:17 117:20 121:22 122:24 134:20 157:15 169:6 187:8

efficient217:17 Egorov ( 3 ) 70:9 79:19

110:4 eight152:7

either ( 20 ) 15:21 47:6 52:4 57:12 61:23 70:7 81:2 130:10 137:20 153:18 154:25 155:13 172:25 176:12 193:10 198:13 206:6 218:22 219:4 220:12

elaborate141:9 elaborates 184:21 elaboration6:8 elect18:9

element ( 3 ) 44:21 189:14 201:23

elements ( 4 ) 32:2 59:7 131:14 201:24

eligible113:13 eliminate171:5

else ( 11 ) 10:23 22:24 27:24 40:15 49:10 90:19 104:6 162:4 174:24 210:2 226:17

else’s33:17 elsewhere89:24 elucidate125:11 elucidation 123:1 emerge74:25 emphasis53:21 emphatically88:13 employees76:21 empty186:14 enacted68:3 encapsulates158:19 encapsulation ( 2 )

110:25 111:2 encourage36:21 end ( 30 ) 17:7 25:20

76:21 79:11 80:14 92:21 96:10 98:17 105:15 106:2 127:8 127:8 128:4 176:20 177:14 192:5 195:8 195:13 208:18 213:8 213:13 214:12 214:12

214:17 215:19 217:21 217:23 219:20 219:21 221:12

ends219:4 endurance177:14 enforce ( 4 ) 38:5

120:13 139:13 141:13 enforceable133:5 enforced131:5 enforcement ( 6 ) 114:1

166:4 167:19 167:20 167:24 169:16

engaged ( 2 ) 79:9 98:25

English ( 25 ) 1:17 1:22 3:20 9:13 12:23 17:8 24:3 25:21 34:8 45:18 47:1 81:10 83:25 91:2 97:23 97:24 98:4 98:10 108:16 137:20 145:15 184:17 184:18 184:19 209:7

enjoined57:23

enough ( 3 ) 63:9 115:6 168:15

enquiries218:6 enquiry218:10 enrich162:24 enriched194:22 enrichment ( 2 ) 194:19

194:23

enshrined ( 2 ) 20:16 90:3

ensure ( 3 ) 37:24 157:23 205:10

entail 66:21 entails ( 2 ) 135:12
194:24

enter ( 5 ) 94:9 137:12 137:22 142:4 190:5

entered ( 7 ) 87:12 137:19 139:17 139:20 140:15 141:11 141:23

entering ( 2 ) 190:8 206:24

enters ( 2 ) 140:6 205:19

entertain79:9 entirely ( 11 ) 22:22

23:9 30:10 35:25 36:5 39:18 67:18 84:2 93:24 185:2 190:21

entirety ( 5 ) 23:20 31:15 86:9 112:13 120:22

entities ( 3 ) 115:2 181:20 182:7 entitled ( 14 ) 38:25

65:7 65:11 65:12 92:4 116:8 137:21 163:1 172:21 180:17 192:7 200:1 200:19 203:21

entitlement121:6 entity ( 5 ) 76:9 76:14

91:6 128:21 199:18 entrepreneurial 91:12 entry 139:23 envisaged ( 2 ) 61:20

192:4

equal ( 7 ) 55:12 55:14 64:7 71:9 76:9 164:3 194:22

equality ( 2 ) 223:20 224:11

equally ( 3 ) 143:19 143:21 220:20

equation94:17 equipment29:2 equities ( 2 ) 19:9 31:8 equity20:20 equivalence22:3 equivalent97:23 escape ( 6 ) 87:24 87:25
89:6 131:24 132:3 132:8

Eschwege225:4

especially ( 9 ) 9:17 39:2 64:14 81:21 126:6 142:10 172:1 208:2 224:10

espoused46:25 essence ( 2 ) 34:16
34:18

essential ( 10 ) 60:11 130:14 135:19 135:23 136:7 136:13 136:14 136:16 143:3 147:12

essentially ( 15 ) 19:17 31:18 32:15 40:14 50:14 89:24 92:5 100:15 123:13 125:10 143:1 187:21 197:22 204:23 206:23

establish ( 4 ) 70:1 97:12 123:24 135:9

established ( 13 ) 2:14 54:9 85:15 86:2 106:25 107:5 111:15 123:18 124:9 161:19 170:17 193:21 202:3

establishes ( 2 ) 87:8 88:17

estoppel194:6 European12:24 evaluated162:1 Evaluation ( 2 ) 65:10
163:3 evaluator164:4 even ( 35 ) 5:23 15:3

17:14 21:19 55:6 60:9 61:20 63:15 70:7 70:16 71:4 73:13 79:4 83:16 83:17 100:21 103:10 107:8 107:19 107:25 108:8 110:6 110:20 154:17 158:25 160:5 163:19 163:23 192:22 194:3 194:18 195:8 203:19 224:17 225:16

event ( 8 ) 109:14 155:13 156:17 156:21 194:17 219:1 219:24 226:6

events ( 3 ) 70:10 70:14 79:21

eventually ( 3 ) 100:3 101:3 156:12

ever222:13

every ( 7 ) 81:13 88:18 103:14 119:9 119:14 134:24 192:12

everybody178:6 everybody’s95:22 everyone ( 2 ) 90:19
96:22

everything ( 2 ) 16:25 163:18

evidence ( 17 ) 5:23 46:8 55:16 84:15 112:12 126:18 131:13 132:24 154:7 154:8 156:24 191:8 195:22 208:14 209:11 211:5 225:24

exact ( 4 ) 5:5 35:2 132:8 156:4

exactly ( 21 ) 24:24 25:6 25:10 26:7 31:12 33:12 33:20 55:11 55:11 92:14 98:1 104:25 114:10 133:18 140:6 147:16 154:23 168:1 172:11 199:16 222:4

examination202:23 examined29:7 example ( 73 ) 4:23

12:18 26:23 37:7 38:16 40:20 51:11 52:18 59:7 59:9 61:5 61:9 61:11 64:9 64:23 65:14 65:24 66:1 66:2

71:24 72:3 73:1 75:9 75:13 75:16 78:8 79:16 80:1 87:10 88:18 88:23 94:8 99:21 100:4 104:10 104:12 105:2 115:5 116:10 116:24 119:18 119:19 120:13 120:16 120:17 122:6 122:15 128:16 130:24 132:4 138:12 139:18 147:14 153:23 160:17 163:3 163:8 163:19 167:21 176:1 186:21 188:24 194:1 199:10 200:2 200:4 200:11 201:6 204:9 206:19 207:6 213:20 219:10

examples ( 7 ) 32:4 59:25 65:22 78:3 114:9 161:25 194:1

excellence64:22 excellent ( 2 ) 96:17
145:21

except ( 3 ) 113:14 128:24 129:1 exception ( 8 ) 85:8

88:1 88:5 88:6 88:9 89:2 113:18 195:17

exceptional8:17 exceptions ( 5 ) 46:2

47:5 113:14 113:14 113:22

excerpt ( 2 ) 166:4 168:4

excessively177:5 exchange ( 3 ) 101:7

127:20 217:15 exchanges127:24 exciting7:25 exclude191:24 excluded ( 3 ) 118:12
146:10 146:12

excludes ( 2 ) 9:11 68:20

exclusion9:16 exclusive ( 2 ) 68:25

91:14 exclusively21:19 excuse158:14 executed140:17 exercise ( 5 ) 23:10

34:13 35:5 41:1 121:6 exercised181:9 exercising113:15 exhaustive ( 2 ) 111:2

151:16 exhausts9:11 exhibit8:24 exhibited ( 5 ) 11:19

24:8 166:2 166:5 170:5

exist ( 3 ) 5:10 18:13 82:16

existed18:7 existence ( 3 ) 14:14
16:10 85:6

exists ( 2 ) 26:12 43:3 expansion189:12 expect ( 2 ) 8:14 162:4 expectation ( 2 ) 120:9

225:4 expectations ( 2 )

119:22 120:19 expenses ( 2 ) 145:10

179:10

experience ( 5 ) 17:11 125:23 129:7 222:19 225:12

expert ( 7 ) 6:13 46:25 84:15 115:18 141:3 224:15 225:16

experts ( 4 ) 43:20 45:17 47:6 48:2

expired40:21

explain ( 6 ) 18:19 30:17 50:12 63:2 108:5 130:3

explained ( 8 ) 1:23 3:25 7:6 32:8 89:19 100:25 106:8 207:8

explaining ( 3 ) 10:12 110:16 195:24

explains ( 6 ) 9:2 13:7 76:15 77:16 86:23 98:22

explanation ( 7 ) 21:1 33:24 47:14 101:1 202:21 209:24 214:9

explicit ( 3 ) 110:16 110:18 180:20 exploration206:25

explore ( 6 ) 42:4 47:25 48:14 48:15 49:21 158:9

exploring178:22 express ( 4 ) 14:2 60:19

69:9 169:23 expressions ( 2 ) 123:8

123:11 expressly ( 6 ) 9:16

32:1 32:20 40:6 40:24 176:11

extend ( 3 ) 44:5 116:14 118:4

extension ( 6 ) 111:8 111:9 114:3 114:18 114:21 115:22

extensive11:7 extensively18:18 extent ( 10 ) 35:2 35:19

67:6 99:13 103:12 132:12 190:18 202:25 214:13 216:22

extinguished82:21 extract ( 5 ) 6:18 6:19

8:23 11:18 107:12 extracted24:7 extracts ( 3 ) 1:12 5:25

6:3 extradition115:18 extreme ( 2 ) 64:2 67:10 extremely ( 5 ) 188:22

189:5 189:11 210:15 224:20

F

face ( 4 ) 21:13 105:8 123:23 123:24

faced ( 8 ) 10:4 11:9 15:8 15:10 15:20 16:18 28:10 53:23

facie161:22 facto161:17

factor ( 3 ) 63:11 63:12 162:23

factors ( 4 ) 66:14 77:11 162:22 164:5

factual ( 3 ) 79:12 83:21 206:2

fail54:21 failed 166:18

failure ( 5 ) 111:7 114:3 118:22 132:21 175:7

fair ( 9 ) 6:16 113:1 113:8 150:15 157:3 162:15 168:24 186:23 190:21

fairly ( 4 ) 150:18 192:11 193:3 226:20

faith ( 23 ) 112:12 112:19 112:23 138:1 138:21 139:8 141:19 142:17 142:23 143:17 143:24 144:3 157:15 158:13 159:5 164:8 165:3 165:5 172:23 181:6 189:8 199:25 200:16

fall ( 7 ) 97:17 97:24 104:8 159:17 169:24 190:6 200:5

fallen15:13 falling ( 2 ) 113:2

135:10 falls46:2

familiar ( 2 ) 140:7 166:6

familiarity28:24 famous206:22

far ( 12 ) 14:23 15:19 47:7 64:3 68:12 68:18 71:13 151:14 156:24 176:24 183:2 209:25

fate134:1

fault ( 9 ) 14:9 29:9 37:13 48:18 85:14 86:1 93:6 142:21 202:22

favour ( 3 ) 14:3 126:10 172:25

favourable ( 2 ) 31:17 168:20

favoured19:10 favouring21:23 fear119:15 feature121:10 February25:20

federal ( 2 ) 89:13 170:7 Federation ( 5 ) 89:17

89:25 90:1 90:2 90:17 feel ( 5 ) 44:11 119:5

177:4 177:6 216:9 feeling ( 2 ) 96:22 220:8 feels10:6

feet213:10 felicitous57:10 felt85:7 fertiliser65:16

few ( 5 ) 24:5 62:23 176:15 202:20 210:21

fide201:7 field17:18 filed166:17

final ( 4 ) 21:10 72:20 137:10 138:9

financial ( 2 ) 186:4 213:14

financing ( 2 ) 119:24 131:3

find ( 19 ) 21:14 24:21 27:24 28:9 58:13 68:10 103:13 122:22 136:21 149:1 158:20 168:2 186:19 193:22 195:23 201:3 208:2 218:8 224:6

findings152:1

finds ( 5 ) 9:25 130:17 131:9 167:18 170:16

fine ( 8 ) 43:18 75:13 98:5 98:13 105:10 190:4 193:5 196:3 finish ( 12 ) 5:8 25:17
36:23 84:18 95:25 96:8 96:15 96:16 176:21 176:21 177:7 177:8

finished ( 4 ) 66:3 76:5 114:17 217:18

Fiona41:25

fire ( 2 ) 29:2 29:3 first ( 65 ) 3:13 5:19

6:18 8:5 12:14 18:18 18:20 24:6 24:15 24:16 24:16 24:23 25:18 29:15 32:8 32:8 39:7 43:11 47:8 49:4 49:22 49:22 50:16 51:21 60:9 62:11 63:8 63:10 67:19 68:1 68:2 68:3 72:7 72:11 72:18 74:15 79:10 81:16 93:22 100:5 105:13 113:15 114:6 123:2 123:5 125:1 126:13

127:4 127:5 129:6 132:14 133:11 133:19 137:1 138:19 168:17 169:12 172:12 183:23 184:17 192:1 196:9 202:9 203:20 217:25
fit ( 4 ) 68:13 78:7 94:2 97:25

five ( 2 ) 96:19 222:14 fix216:19

fixed ( 3 ) 115:14 226:2 226:3

flexible ( 2 ) 219:16 226:21

flick185:7

flow ( 3 ) 115:15 116:13 116:21

flowing24:10 fly211:11

follow ( 5 ) 22:23 26:11 65:24 172:22 194:20

followed ( 6 ) 159:2 161:21 162:1 162:3 164:7 174:18

following ( 4 ) 106:1 153:3 163:6 211:22

follows ( 4 ) 30:18 32:7 133:8 156:10

font 226:10

footing ( 2 ) 76:9 156:13 footnote ( 2 ) 25:20
112:21

force ( 6 ) 7:11 138:8 184:18 185:25 187:14 200:21

forced ( 2 ) 53:25 190:18

forces ( 2 ) 188:13 188:16

forcing187:7 foreign ( 12 ) 65:15

84:4 84:8 84:14 84:14 89:13 90:2 90:3 90:15 92:8 96:25 97:1

forensically161:19 form ( 19 ) 44:25 79:14

84:4 90:14 97:19 130:4 132:19 132:22 135:1 135:11 137:22 158:14 160:23 185:19 199:12 199:24 200:8 200:9 200:22
formal ( 6 ) 14:18 14:19 21:22 22:3 174:23 197:21

formalistic199:21 formally ( 2 ) 16:20
160:5

forms ( 3 ) 104:4 132:1 133:22

formulate179:21 formulated ( 3 ) 100:9

102:15 143:25 formulation ( 7 ) 38:10

47:12 47:13 100:9 136:4 136:6 136:12 forward ( 8 ) 24:3 52:4

59:1 59:3 160:1 184:6 209:24 224:8

forwards ( 2 ) 161:5 185:7

found ( 21 ) 8:10 23:20 42:1 52:23 66:1 68:10 70:7 114:19 114:22 114:24 122:20 127:5 143:2 152:12 153:4 153:10 170:24 171:10 171:17 192:24 193:20

founder 170:18 four ( 5 ) 68:3 153:6

185:11 201:24 223:3 four-day223:7 frame53:22 framework ( 2 ) 60:12

99:21

frank95:19

frankly ( 6 ) 8:4 26:11 52:20 66:21 193:24 210:19

fraud ( 3 ) 181:5 181:8 189:21

fraudulent ( 3 ) 189:17 190:2 198:5

free ( 8 ) 40:1 40:13 41:9 148:5 151:9 156:21 172:7 180:20

freedom ( 4 ) 40:6 69:5 117:22 198:4

freestanding ( 8 ) 4:24 23:6 30:24 31:5 31:11 32:6 32:16 34:14

Friday ( 3 ) 211:18 217:13 222:16

friend’s183:7 frightful209:8 fruition65:23 frustrating81:11 fulfil109:4

fulfilled ( 2 ) 77:3 77:10 full ( 21 ) 20:18 24:13

31:19 32:11 32:19 36:14 42:25 51:20 57:2 69:4 77:14 86:10 88:19 166:23 166:23 187:4 203:20 215:21 216:8 222:14 224:7
fully ( 11 ) 35:24 36:15 38:22 38:23 54:6 54:6 56:8 62:6 62:22 65:13 72:7

functions113:16 fundamental83:23 further ( 18 ) 11:13

14:25 26:22 63:18 78:18 92:23 118:23 121:7 121:17 123:12 146:23 151:20 158:9 189:6 195:5 202:5 213:19 219:1
future ( 7 ) 134:21 134:24 134:24 137:12 173:13 210:18 213:19

G

gaining81:23 games226:10 gap119:21

gave ( 12 ) 43:9 99:22 100:5 191:7 193:8 199:10 200:2 205:16 206:17 206:19 207:6 221:22

general ( 41 ) 3:13 4:2 6:23 9:5 12:4 30:23 33:12 33:19 33:20 33:21 38:7 42:13 59:9 59:12 63:16 64:12 64:18 69:3 69:5 79:17 85:1 85:4 85:6 85:21 87:14 88:1 88:6 88:17 88:22 88:22 104:14 104:16 104:18 118:8 130:7 134:15 155:24 156:20 175:20 179:21 207:10

generally ( 5 ) 113:2 113:12 135:18 162:7 169:18

generate169:13 generis ( 2 ) 130:13

144:13 generous 126:11 genesis157:2 genuine ( 15 ) 43:4

158:7 162:9 162:21 168:12 169:25 172:8 194:14 196:13 196:16 197:24 198:2 199:13 199:17 200:23

get ( 24 ) 12:4 13:8 17:16 25:2 27:22

42:13 44:11 58:7 95:11 100:19 116:2 123:12 124:4 124:24 134:3 135:24 142:17 168:13 179:22 180:8 191:15 206:4 209:17 213:23

gets ( 2 ) 82:19 95:8 getting ( 5 ) 21:18 43:12
104:3 226:7 226:15

Gisheva170:19

gist ( 3 ) 2:22 3:5 26:1 give ( 29 ) 22:12 23:21 45:17 55:16 65:14 92:11 92:13 92:14
92:18 104:10 104:14 111:12 116:22 120:13 120:15 122:6 129:11 130:24 131:3 131:13 138:3 138:6 161:8 176:18 209:11 209:13 214:9 223:8 224:4

given ( 16 ) 17:23 21:1 33:24 121:11 126:2 133:21 133:22 144:23 169:18 174:24 215:9 216:20 217:18 217:21 219:2 222:23

gives ( 5 ) 12:20 25:13 73:16 163:2 169:2

giving ( 3 ) 9:4 30:1 63:20

GLADYSHEV ( 25 )

1:6 1:9 21:1 36:19 36:24 37:24 41:22 46:3 49:1 49:4 97:5 121:18 140:8 141:6 142:2 143:13 153:24 155:15 177:3 196:5 196:8 208:10 209:23 226:14 228:3

Gladyshev’s ( 4 )43:15 43:24 47:13 178:14

gloss46:5 golden223:9

gone ( 8 ) 28:2 71:18 79:24 127:18 128:8 128:13 129:4 139:3

good ( 31 ) 1:5 6:18 41:15 47:2 48:25 58:2 60:21 62:19 95:14 95:25 98:7 101:7 115:24 122:19 137:18 138:1 138:21 139:8 142:17 142:23 143:9 143:17 143:23 144:3 158:13 172:23 200:16 202:21 206:10 224:5 226:12

govern77:17 governing172:14 grabs120:20

graduate ( 3 ) 24:1 25:5 25:15

grant ( 9 ) 58:21 66:16 114:21 116:5 116:8 117:6 117:9 117:11 118:4

granted ( 2 ) 66:17 114:16

granting ( 2 ) 9:10 116:6 grants114:18 graphic200:11

grateful ( 11 ) 37:19 177:2 208:7 208:13 208:15 210:16 211:9 218:1 225:2 226:15 226:24

ground ( 15 ) 8:9 14:20 35:4 36:7 49:10 67:22 69:25 70:1 97:13 112:17 122:19 135:9 173:22 188:21 197:14

grounds ( 6 ) 5:14 9:4 30:1 67:23 94:15 120:25

Group ( 3 ) 127:6 127:9

127:10

guarantee ( 3 ) 92:7

193:10 193:23 guarantees ( 3 ) 151:8

191:1 192:23

guessing206:8 guidance ( 3 ) 19:22

223:15 224:4 guidances121:15 guide ( 3 ) 20:12 37:12

66:5 guy31:13

H

hairs ( 2 ) 35:20 123:14 half32:11

hand ( 3 ) 23:21 51:11 118:1

Handed23:22 hands222:24

handy ( 3 ) 99:15 129:6 129:8

happened ( 4 ) 26:7 35:24 49:14 151:21

happens ( 10 ) 62:11 66:17 108:24 168:14 197:17 197:25 199:3 199:5 203:18 205:13

happy ( 6 ) 25:6 37:4 96:9 143:8 176:24 192:10

hard ( 2 ) 26:6 164:13 harm ( 99 ) 7:8 7:9 8:19

8:19 8:21 19:14 19:16 19:16 20:17 30:2 30:5 31:19 32:18 33:22 34:23 35:1 36:4 36:13 36:15 38:23 39:6 39:8 39:25 44:21 47:18 48:5 48:7 48:20 48:25 51:19 54:6 56:7 56:7 56:8 61:19 62:3 62:6 64:13 65:13 68:22 69:4 70:15 73:4 75:5 76:6 77:7 77:12 77:14 79:12 79:13 82:9 82:10 82:17 82:25 85:2 85:23 88:19 88:22 91:5 91:17 92:15 92:16 93:19 97:6 98:20 99:2 99:12 100:3 101:3 101:23 102:6 102:8 102:13 102:22 102:24 103:3 103:19 108:10 108:15 108:22 109:1 109:14 109:21 109:24 111:13 160:22 160:24 162:19 162:24 164:6 184:23 185:21 186:25 187:1 201:17 201:20 203:9 203:11 203:22

harmed ( 10 ) 33:15 33:17 33:18 33:19 35:25 53:16 70:13 76:1 91:24 206:13

harmful ( 5 ) 64:14 75:23 103:23 104:19 160:6

harming92:3 harms38:12

head ( 5 ) 6:8 127:6 187:1 188:2 222:23

heading24:7

heard ( 2 ) 212:22 221:6 hearing ( 5 ) 20:13

96:12 216:13 216:19 220:14

heating29:5 heavy208:16

held ( 10 ) 37:3 80:5 83:19 102:2 118:23 135:22 146:9 155:23 175:14 220:9

help ( 3 ) 16:23 17:9 219:4

helpful ( 6 ) 16:4 25:14 28:13 37:22 208:22 209:22

helpfully ( 2 ) 37:12 99:17

helping21:3 helps45:16

here ( 61 ) 3:12 4:2 6:21 9:2 14:4 14:24 16:2 24:25 35:15 43:20 46:24 49:7 50:14 50:15 50:21 52:8 53:21 60:5 62:20 63:21 67:19 68:22 69:11 71:3 72:6 79:6 80:23 86:21 87:5 89:4 90:7 93:21 96:18 99:4 99:14 106:23 109:8 111:5 111:16 114:6 118:9 122:19 135:2 140:4 141:25 148:10 152:9 155:19 164:8 167:8 168:7 170:24 171:12 188:12 190:1 190:6 192:21 194:16 197:17 218:12 225:4

hereon210:10 herself50:21 hesitate225:19 hierarchy ( 2 ) 17:16
88:18

high ( 2 ) 185:3 213:14 higher ( 5 ) 31:10 31:14 164:2 172:9 186:12 highest ( 10 ) 4:5 11:5 19:13 19:13 19:23 30:25 99:23 100:25

180:12 196:15 highlighted34:22 highly206:25 HILDYARD ( 166 ) 1:5

17:5 17:18 18:23 31:20 32:21 33:10 33:23 37:11 37:20 41:18 43:19 44:18 45:15 46:7 46:23 48:2 48:14 48:18 48:23 92:23 93:3 93:5 93:9 93:14 94:21 95:3 95:5 95:8 95:14 95:17 95:20 96:4 96:11 96:19 119:1 119:5 119:20 120:8 121:2 121:9 125:3 125:25 143:9 153:21 154:3 154:7 154:11 154:23 155:4 155:7 155:14 156:10 157:1 157:5 160:13 160:16 177:2 177:8 177:10 177:12 178:2 178:12 178:15 178:18 178:21 182:10 182:13 182:21 182:23 183:1 183:5 183:11 183:21 183:24 184:4 184:10 196:7 196:8 196:24 197:3 197:6 197:9 197:11 197:19 198:6 198:11 198:17 198:20 198:22 198:25 199:3 199:15 200:7 200:9 200:14 201:5 201:11 201:15 201:20 202:7 202:15 202:18 203:5 203:19 204:3 204:9 205:3 205:9 206:1 207:5 207:7 207:17 208:1 208:10 208:13 208:19 208:22 209:1 209:4 209:7 209:13 209:17 209:21 210:2 210:7 210:9 210:13 211:9 211:16 211:19 212:12 212:19 213:2 213:15 214:6

214:18 215:5 215:9 216:5 216:7 217:5 217:17 217:24 218:2 218:15 219:6 219:13 220:3 220:15 221:1 221:11 221:14 221:20 222:3 222:18 223:2 224:5 225:3 225:9 225:15 226:1 226:13 226:19 226:23 228:5

himself104:8 historical ( 2 ) 99:17
99:20

historically ( 2 ) 65:23 192:1

history63:5

hmm ( 8 ) 6:20 127:13 128:6 137:4 166:10 166:12 182:3 189:20

hoc23:9

hold ( 3 ) 135:18 136:4 209:17

holder ( 3 ) 70:21 70:24 207:18

holding ( 7 ) 80:3 80:7 83:16 93:9 127:7 173:14 207:4

holds ( 2 ) 83:15 199:14 holes214:14 honour120:24

hope ( 4 ) 44:7 96:8 176:21 178:1

hoped212:6 hopefully ( 2 ) 14:10

97:10 horses121:24 hours96:1

house ( 5 ) 157:22 157:23 158:3 159:18 163:12

Housekeeping ( 4 )

210:1 210:6 221:2 228:6

houses36:20 However ( 21 ) 21:11

22:10 24:15 35:6 36:7 39:5 43:2 55:14 58:3 58:12 59:15 59:21 60:1 63:3 68:12 77:24 82:7 94:17 120:5 155:25 200:15
hugely209:10 human63:5 hurt163:17 hurting ( 2 ) 116:22
174:23

hypothesis ( 3 ) 66:23

116:4 192:22

hypothetical ( 10 )

79:15 82:8 83:11 115:23 115:24 116:1 116:11 118:10 120:17 121:20

hypothetically119:18 hypotheticals67:2

I

I’ll50:12

I’ve ( 2 )95:2 129:10 idea ( 5 ) 11:1 56:16

131:23 162:7 210:17 ideas ( 2 ) 7:21 7:23 identifiable36:1 identification ( 2 )

126:15 127:4 identified ( 7 ) 15:13

22:18 81:19 97:21 112:17 113:23 116:25

identifier ( 4 ) 128:21 128:23 129:1 129:5 identify ( 12 ) 4:19 5:1 21:3 35:16 39:7 39:8

39:10 74:18 109:23 132:2 197:22 201:25

ill152:9

illegal29:9 illegally 158:1 illuminate34:18 illuminates 34:15 illusory ( 2 ) 198:15

199:9 illustrate136:19 imaginable81:13 imagine ( 4 ) 158:5

166:6 223:18 224:23 immediate ( 3 ) 70:3

70:5 110:5 immediately187:11 impecunious94:10 implicit110:18 important ( 15 ) 2:18

8:12 9:17 29:22 35:12 43:21 44:11 49:2 88:20 102:12 104:15 123:15 145:25 154:11 161:18

importantly ( 3 ) 31:6 75:4 218:4

imports ( 2 ) 44:21 45:11

imposed ( 3 ) 28:1 87:20 122:11 imposing ( 3 ) 44:9 69:11 118:15

impossible96:5 impressed226:6 improper ( 7 ) 7:10 30:3

34:24 73:5 139:13 139:15 204:12

inability120:15 inaudible ( 2 ) 202:1
205:22

inclined ( 3 ) 43:1 57:3 57:17

include ( 8 ) 91:13 94:2 171:23 177:23 179:1 179:9 179:17 224:8

included ( 3 ) 18:17 29:1 90:12

includes117:13 including ( 7 ) 28:12

76:20 94:1 111:18 124:8 156:8 179:23

inclusive136:12 inconceivable141:24 inconsistencies20:4 inconsistent ( 3 ) 17:13
17:24 18:3 incorporated138:15 increase ( 3 ) 165:17

165:20 167:16 incredibly44:11 indent ( 3 ) 107:22

109:12 109:17

independent ( 3 )

159:18 169:21 199:18

INDEX 228:1 indicated ( 5 ) 143:22

144:1 199:23 216:8 216:15

indicates ( 2 ) 127:18 128:8

indication ( 3 ) 8:14 93:18 220:18

indicative219:25 indirect109:23 individual ( 4 ) 19:8

82:11 185:18 201:23 indivisible109:21 inducing190:4 industry226:6 ineffective ( 2 ) 55:3

55:4 ineptly183:18

infer ( 2 ) 124:20 162:13 inferred29:24 infinite224:2 inflict108:9

influence ( 3 ) 75:2 129:17 164:6

inform ( 2 ) 105:3

220:25

information ( 3 ) 173:16 186:2 186:3

informative209:20 informed ( 2 ) 108:22

217:1 informing105:4 ingredients ( 4 ) 29:7

35:13 47:16 54:14 inherent117:15

initial ( 6 ) 159:11 162:1 165:9 165:12 167:9 167:13

initially ( 2 ) 60:8 121:11 injunction180:19 injured9:7

innate10:18 innominate ( 2 ) 130:12

130:14 input163:16 inquire218:13 inquisitorial20:11 insert94:19 inserts89:7 insights ( 2 ) 25:10

25:15

insist ( 2 ) 62:7 64:16 insofar ( 3 ) 90:21 92:10
155:8

insolvency ( 7 ) 71:10 71:13 72:8 73:16 83:5 207:9 207:17

insolvent ( 3 ) 70:20 81:21 83:4

installation ( 2 ) 29:2 29:4

instance ( 3 ) 3:14 29:15 217:25

instances ( 4 ) 87:11 114:24 115:1 203:16

Instead 30:4 instigation95:10 institution72:12 instructing23:19 instructions ( 3 ) 94:7

154:19 221:8 intangible ( 2 ) 146:16

147:25

intellectual ( 2 ) 23:10 91:15

intend164:6 intended ( 6 ) 105:23

127:19 128:9 128:22 130:17 151:2

intending57:9

intent ( 8 ) 103:1 103:8 103:10 103:16 107:19 108:1 130:18 162:24

intent’107:9 intention ( 3 ) 102:24

113:10 131:5 intentional155:18 intentionally 189:9 interest ( 9 ) 9:10 52:7

83:19 163:21 172:7 172:8 172:9 172:19 209:6

interested ( 5 ) 25:7 25:10 55:17 55:22 58:6

interesting62:18 interests ( 6 ) 2:4 9:17

78:9 95:22 108:10 172:17

interfere ( 2 ) 163:13 164:5

interference ( 3 ) 83:10 158:3 202:4

interferes158:2 interfering 157:16 intermediate ( 2 ) 67:13

68:10 internally16:24 international13:19 interpret ( 4 ) 21:13

23:2 50:12 91:8 interpretation ( 8 ) 68:4
122:20 123:6 126:14

129:17 151:6 153:12 153:15

interpretations86:17 interpreted ( 3 ) 126:8

126:10 135:16 interpretive ( 2 ) 26:8
81:9

interrupt ( 6 ) 44:10 48:24 50:2 61:17 109:16 188:25

interrupted 70:13 interruption ( 2 ) 115:16

116:21 intervene21:7 intervening ( 3 ) 71:9

73:15 93:20 intervention ( 2 ) 73:2

73:5 intimidation38:17 into ( 65 ) 2:6 3:6 3:24

7:21 7:23 15:13 25:15 30:25 34:8 45:12 71:18 77:9 82:19 83:6 87:13 89:7 89:8 94:9 113:2 122:25 123:7 124:4 124:6 124:14 125:3 125:8 125:14 130:21 131:11 134:12 135:10 137:12 137:19 137:22 138:15 139:17 139:20 139:24 140:6 140:15 141:1 141:11 141:23 142:1 142:4 149:12 157:3 159:7 161:3 161:17 163:5 163:16 172:21 185:6 185:25 187:7 187:14 190:5 190:8 191:17 196:2 205:19 206:25 213:19 224:20

introduce84:11 Intuitively23:12 invalid ( 12 ) 133:7

133:14 133:16 134:4 163:25 175:14 175:22 176:4 177:20 181:17 182:1 188:21

invalidate ( 4 ) 171:7 172:2 180:22 181:14

invalidated ( 2 ) 164:11 196:20

invalidation170:9 invalidity ( 7 ) 2:1 2:8

3:8 132:21 174:20 175:8 197:13

invasion202:9 invented13:11 invention ( 2 ) 11:1

28:18 invest91:17

investigation ( 2 ) 77:8 161:17

investment ( 10 ) 71:25 72:1 72:4 72:5 90:9 90:13 90:14 90:25 91:21 92:16

investments ( 6 ) 89:13 89:18 91:7 91:7 91:11 91:12

investor ( 4 ) 90:15 91:4 91:6 92:1

investors92:8 inviolability202:2 involve ( 3 ) 186:15

205:18 226:13 involved ( 4 ) 202:9

216:22 217:6 223:17 involves202:23 involving68:4 irrelevant61:7 isolated37:25 issued25:23

issues ( 9 ) 50:21 64:9 67:19 68:4 79:6 87:7 114:6 118:5 118:5

it’s ( 132 )3:2 3:13 4:3 4:3 10:20 21:4 21:18

22:16 22:16 23:4 23:14 26:6 26:7 28:1 31:5 31:5 33:8 33:10 39:4 39:18 40:12 42:12 47:14 52:17 53:24 53:25 57:10 60:7 66:2 66:3 66:4 66:5 67:16 67:20 80:8 83:21 83:22 84:9 86:7 86:12 89:1 94:24 95:1 95:10 98:5 98:16 102:4 102:5 103:17 108:21 117:8 117:25 118:1 118:14 119:24 120:10 123:13 123:14 123:15 123:15 123:23 124:12 124:14 126:21 129:11 129:15 130:1 136:5 144:20 147:3 147:4 147:5 147:25 148:12 148:12 148:13 148:18 149:19 149:20 150:4 150:15 152:4 152:9 152:22 154:2 155:10 155:23 156:5 156:6 156:15 158:5 159:11 159:12 160:25 161:2 163:5 165:8 165:12 168:24 169:20 176:11 177:3 177:18 178:16 179:11 180:21 181:7 181:10 181:11 186:25 186:25 187:3 187:3 188:4 190:2 190:2 190:21 191:16 191:19 192:5 192:5 195:13 197:18 200:11 200:11 200:12 201:22 205:20 206:17 206:18 220:7 224:14

item ( 4 ) 145:6 145:9 145:16 153:22

its ( 47 ) 2:17 5:4 5:4 31:15 43:2 45:1 47:20 49:13 52:6 52:15 55:7 57:4 57:18 59:22 60:4 61:4 61:24 65:17 66:18 67:5 76:2 76:10 76:20 78:8 81:9 85:14 86:1 86:9 88:17 106:5 113:15 113:16 117:14 120:10 123:23 123:24 129:18 144:17 147:7 153:11 190:6 200:17 204:15 205:5 205:6 206:11 207:12

itself ( 22 ) 49:18 50:1 52:5 72:17 73:19 73:23 79:18 84:10 85:3 85:23 129:20 159:6 161:22 162:19 162:23 171:25 172:1 172:3 188:21 206:10 207:24 209:8

J

jaded 96:22

joint ( 23 ) 35:5 42:14 49:6 56:20 57:15 97:19 99:7 100:16 100:18 103:14 108:9 108:15 109:14 110:15 111:3 157:10 158:10 160:15 161:8 178:5 179:5 189:19 206:21

joint-stock ( 3 ) 64:15 203:14 204:20

jointly ( 10 ) 97:6 98:20 98:21 100:17 101:23 102:24 103:2 103:19 106:3 158:17

JSCB170:21

judge ( 10 ) 3:25 20:1 20:3 20:5 20:11 20:22

21:11 25:8 60:16 67:22

judges ( 9 ) 16:21 21:13 61:22 63:12 81:15 125:23 126:3 126:9 126:11

judgment ( 14 ) 1:16 2:23 3:5 3:17 4:4 4:11 18:10 41:25 150:16 152:13 152:14 167:21 216:20 224:20

judgments29:14 judicial ( 13 ) 9:6 17:8

17:23 20:10 21:15 60:14 68:16 69:7 114:20 114:22 118:14 118:18 122:7

judicially138:9

July ( 17 ) 211:23 212:4 212:7 212:24 213:8 213:17 214:6 214:12 214:17 214:19 215:6 215:20 215:22 216:3 216:20 217:7 219:17

jump161:5 jumping81:22 June ( 11 ) 211:18

211:21 212:3 212:11 214:19 215:16 215:20 217:13 217:14 217:20 217:23

jurisdiction ( 11 ) 17:10 17:15 17:21 17:25 18:2 20:23 63:4 81:8 84:8 202:8 202:18

jurists11:7 justified ( 2 ) 120:1
179:23

K

Kabalkin ( 2 ) 110:1

185:9

keep ( 4 ) 43:13 110:6 217:1 226:19

Keystone ( 2 ) 200:7

200:8

kind219:3 knew104:21 knock 159:11

know ( 91 ) 20:22 26:10 36:19 36:22 44:12 44:13 46:25 49:9 62:25 66:6 66:20 66:20 67:8 67:9 84:10 86:11 86:13 93:16 93:17 95:22 95:22 96:3 105:3 108:23 113:15 119:8 126:16 126:23 126:23 127:22 135:6 138:6 138:9 138:14 138:16 138:17 139:4 139:4 139:24 140:10 140:14 140:17 140:21 141:5 149:20 154:12 154:23 161:24 161:24 163:5 170:6 176:22 178:12 180:4 186:18 193:24 194:14 195:2 198:22 202:24 208:3 208:4 209:9 209:25 210:15 210:20 213:1 213:4 214:8 214:10 214:13 214:18 217:8 217:13 218:3 218:4 218:8 218:10 218:23 219:5 219:15 219:23 220:17 220:21 221:23 221:25 222:4 222:16 223:13 225:5 226:2

knowing ( 2 ) 189:9 194:4

knowledge ( 4 ) 112:19 154:9 161:10 200:4

known ( 4 ) 6:10 51:17 108:8 130:3

knows ( 4 ) 17:20 67:25 146:6 213:12

Kombyt1:15

L

labels99:23

lack ( 3 ) 4:12 51:15 197:12

lacked135:23 lacks 135:18 language ( 14 ) 4:13

4:14 5:24 25:5 26:6 34:1 34:3 44:16 47:14 60:19 89:7 182:12 187:19 187:20

large ( 7 ) 7:19 64:14 65:14 65:15 119:25 129:11 219:11

largely ( 2 ) 24:19

157:11 larger132:1 largest65:16

last ( 14 ) 7:19 14:1 14:11 37:7 89:11 111:5 143:14 152:6 195:18 210:11 215:13 215:15 216:9 221:12

late140:11 lately15:14

later ( 6 ) 4:4 62:16 66:17 157:3 215:22 215:24

latest121:16 latter14:3

Latyev ( 8 ) 11:23 13:3 13:22 16:17 16:20 21:21 22:6 24:1

lawful ( 4 ) 113:4 186:15 186:18 188:5

lawyer ( 10 ) 15:7 15:20 16:15 16:18 16:22 51:12 79:7 93:21 106:23 129:25

lawyers225:17 lay155:22 lays19:24 LCIA104:12

lead ( 2 ) 70:11 109:22 leading ( 7 ) 6:12 6:15 47:15 79:21 184:21

185:10 186:22 leapt203:20 lease132:4

leased ( 2 ) 132:9 132:9 leasing132:5

least ( 19 ) 5:6 9:11 24:18 48:21 66:7 82:5 99:11 155:6 155:9 161:22 165:24 166:2 167:12 168:10 173:13 173:19 210:25 214:1 223:14

leave ( 6 ) 10:24 41:12 49:20 216:17 219:11 219:16

leaving94:16

led ( 3 ) 38:17 48:6 102:13

leeway121:11

left ( 12 ) 73:7 77:6 77:12 79:4 82:6 135:17 135:21 136:10 210:11 211:11 212:15 220:22

left-hand185:12 legal ( 16 ) 2:14 6:23

10:4 18:1 18:1 20:4 23:10 63:7 83:25 115:8 128:15 128:15 128:21 131:11 160:23 194:6

legally ( 2 ) 126:24 156:4

legendary13:16 legislation ( 2 ) 12:20

90:17 legislative89:4 legislator ( 7 ) 68:9

68:12 68:15 68:17 89:5 94:1 94:14

legitimate ( 4 ) 84:8 119:22 120:8 120:19

lend ( 2 ) 121:23 121:24 lender122:2

length ( 7 ) 196:14 199:14 222:10 223:12 224:2 225:12 226:3

lenient ( 2 ) 132:23 133:4

less ( 9 ) 13:17 23:17 53:24 63:15 67:24 93:24 97:10 126:4 166:17

lesson3:15

Let ( 20 ) 18:19 22:5 43:11 59:4 75:25 86:18 100:11 127:3 128:3 133:10 139:10 149:1 149:1 149:24 177:13 177:16 218:18 218:23 219:15 219:22

lets120:19

letter ( 5 ) 5:2 8:11 56:16 60:19 221:15

level ( 9 ) 21:12 35:7 130:1 131:2 140:9 140:10 166:25 187:21 190:19

lexicon43:22 liabilities ( 4 ) 29:25

32:23 78:24 204:21 liability ( 30 ) 7:7 9:5

9:14 29:8 29:17 30:4 30:6 30:12 32:25 34:20 34:21 34:25 51:8 87:24 88:23 88:25 89:1 89:7 97:6 97:20 100:16 100:18 108:15 158:4 159:16 161:8 161:12 164:24 173:4 173:4

liable ( 29 ) 33:19 35:2 35:3 73:4 87:12 94:5 98:21 98:24 100:7 100:17 100:21 101:3 102:2 103:14 103:24 104:22 106:4 109:1 157:14 158:1 158:8 158:17 160:6 175:1 192:8 193:22 194:5 194:19 203:17

liberty ( 2 ) 214:2

214:21 licensed 157:21

lien ( 3 ) 147:5 147:13 148:1

lies70:15 life34:7

like ( 41 ) 1:12 6:22 12:3 13:1 23:4 31:21 34:5 41:22 52:19 53:4 64:9 74:25 79:10 79:18 80:6 100:14 106:14 109:13 123:10 129:10 131:2 137:10 147:5 148:1 149:23 151:11 156:15 183:22 185:20 200:21 205:22 208:12 211:14 214:1 214:4 214:21 216:8 219:13 220:21 222:15 222:20

likely ( 3 ) 17:3 45:5 205:12

likes117:10 limb114:14

limit ( 6 ) 59:10 68:13 68:15 145:11 223:14 225:1

limitation ( 15 ) 38:19 59:12 122:11 148:10

175:13 200:3 200:5 200:12 200:13 200:15 200:18 200:19 201:1 201:6 203:16

limitations ( 3 ) 122:6 122:8 122:9

limited ( 6 ) 47:5 48:10 51:8 156:18 200:20 225:22

limits ( 2 ) 223:11 226:10

line ( 5 ) 37:13 67:15 101:18 101:20 183:23

lines ( 2 ) 189:6 204:22 linguistically125:11 link12:13

linked70:10 liquidated33:8 liquidation ( 11 ) 70:22

70:23 71:5 73:13 74:13 76:16 76:18 80:8 81:3 172:18 207:8

liquidator ( 2 ) 207:12

207:16

lis ( 2 ) 74:24 79:8 list ( 5 ) 27:1 29:19

151:7 151:15 213:14 listed ( 3 ) 78:10 96:13

214:11

literal ( 5 ) 123:7 123:10 123:17 123:22 129:20

literally121:3 literature12:10 litigation ( 3 ) 60:13
126:7 203:18

little ( 7 ) 23:21 28:16 63:18 80:18 97:10 187:5 211:23

LLC ( 3 ) 127:10 170:13 170:19

loaded44:19

loan ( 25 ) 111:9 114:4 114:16 114:16 115:5 115:10 115:14 115:22 116:5 116:7 116:8 116:12 116:14 116:22 117:3 117:6 117:11 118:22 118:23 186:21 188:6 194:3 194:9 194:15 194:18

loans ( 10 ) 117:10 118:4 118:5 138:22 139:4 139:5 139:9 141:14 141:21 142:23

locate86:15 logic25:2

logical ( 2 ) 16:25 24:9 Lomonosov 6:9

long ( 25 ) 6:13 37:2 67:18 79:20 80:8 81:8 81:17 96:17 96:21 110:3 110:6 127:25 149:19 149:20 176:25 177:3 196:5 202:21 217:18 222:20 222:23 222:25 223:22 226:5 226:14

longer ( 8 ) 23:25 40:22 82:16 83:12 96:1 96:9 174:8 223:25

look ( 57 ) 4:7 5:8 6:2 6:18 7:4 7:5 8:23 10:23 12:18 24:12 28:19 34:19 43:16 44:23 46:10 48:19 48:20 49:7 84:19 86:14 94:3 97:13 98:15 101:8 102:10 102:19 105:12 106:18 112:11 114:15 120:2 120:22 121:19 124:21 125:8 130:21 132:13 134:6 145:3 157:1 158:10 159:7 160:1 164:13 166:1 172:21 180:12 181:4 184:5

188:7 193:17 194:1 202:8 208:23 215:22 217:5 217:17

looked ( 7 ) 30:25 39:19 41:23 49:5 114:19 155:1 170:6

looking ( 26 ) 2:24 22:9 25:15 28:7 31:20 32:21 44:17 45:13 49:4 63:3 93:3 101:6 105:14 111:25 120:21 123:24 125:4 137:13 140:1 160:13 160:14 166:8 167:18 173:17 195:13 212:12

looks ( 4 ) 31:21 68:9 129:13 225:16

loops 31:13 Lord’s ( 3 )214:10
219:3 219:20

Lordship ( 6 ) 1:8 155:8 212:9 222:10 223:14 224:3

Lordship’s ( 3 )47:12 209:20 219:3

loss ( 71 ) 41:23 42:3 42:7 42:10 42:18 42:21 43:5 43:10 43:22 43:25 44:9 44:24 44:24 45:3 45:18 46:1 46:14 47:18 48:3 48:10 48:17 51:15 54:24 55:2 55:24 56:14 57:8 60:6 65:2 67:16 68:21 68:22 69:1 70:20 71:3 71:16 73:11 74:1 74:10 75:8 78:22 78:23 80:1 80:6 80:10 83:18 83:20 86:24 87:1 87:19 87:19 88:2 88:9 88:11 88:12 89:11 90:21 90:23 91:19 94:25 95:15 100:17 100:21 100:22 119:12 119:13 201:13 203:9 203:10 203:12 205:11

losses ( 16 ) 42:25 43:4 54:16 57:2 59:23 61:12 68:13 69:18 69:19 69:23 69:24 85:14 86:1 145:10 179:1 179:7

lost ( 7 ) 177:24 179:1 179:9 179:18 179:23 207:2 207:2

lot ( 5 ) 7:21 34:10 121:19 192:25 225:24

love34:6

low ( 9 ) 112:4 159:1 159:6 159:10 159:11 163:20 163:24 164:1 164:12

low-level153:11 lower ( 4 ) 80:5 112:7

169:14 188:18 lowered168:21 lucrative206:25 Luncheon97:3

M

mad119:7

Maggs ( 95 ) 6:2 7:13 8:9 27:13 27:17 27:19 30:10 34:6 34:7 35:4 37:6 37:8 41:11 47:9 48:9 51:6 52:23 62:21 67:25 69:15 70:8 70:16 76:15 77:16 77:24 77:24 79:19 81:1 81:7 89:9 89:19 97:11 99:4 99:9 101:11 102:3 103:8 103:17 110:4 110:13

111:19 113:24 114:19 121:12 126:20 127:2 127:17 127:21 130:16 131:13 132:17 134:9 135:15 135:21 136:18 137:3 137:12 144:21 146:4 146:6 146:14 146:23 146:25 153:10 154:14 156:17 157:12 157:19 158:23 159:14 164:15 166:5 170:5 172:5 174:17 175:19 178:5 179:13 180:25 183:13 184:12 186:9 186:11 190:9 190:24 191:7 191:22 192:10 192:12 192:16 194:15 195:7 202:22 208:14 209:11

Maggs’ ( 15 )46:8 84:20 86:20 94:23 98:14 98:22 102:18 122:22 132:13 134:17 153:2 166:2 181:12 184:7 203:6

main ( 2 ) 93:21 178:12 mainly21:19 maintainable ( 2 ) 205:4
207:12

major ( 2 ) 63:7 68:7 makes ( 9 ) 5:20 9:13

10:1 30:9 46:19 91:6 164:15 183:13 189:10

making ( 9 ) 9:9 9:11 10:2 12:12 38:17 80:2 135:3 214:5 218:11

malicious ( 10 ) 75:11 75:15 75:17 75:17 76:11 77:4 79:16 82:8 82:15 83:10

man 119:14 management83:9 managers112:20 mandatory ( 5 ) 147:12

188:22 189:4 189:7 191:19

manner ( 6 ) 77:5 99:14 160:5 164:17 164:21 204:17

many ( 5 ) 6:12 67:8 119:19 149:10 176:23

Marine ( 2 ) 127:6 127:10

marker213:11

market ( 3 ) 65:16 65:19 162:6

material ( 10 ) 2:14 6:1 21:13 22:2 57:12 108:11 116:15 154:25 155:8 186:7

matrix79:12

matter ( 43 ) 4:14 16:16 17:11 17:22 22:9 24:20 27:7 31:1 42:8 42:18 42:22 43:21 45:20 47:8 55:12 56:24 57:16 57:23 61:3 61:5 63:14 63:15 64:17 64:19 65:10 67:20 74:15 74:16 74:19 76:22 78:16 80:19 83:21 84:5 84:15 128:17 155:13 162:22 163:5 207:7 216:25 217:2 217:19

matters ( 4 ) 218:16 219:14 221:1 221:2

maximum172:19 maybe ( 28 ) 15:13

16:24 18:13 31:9 35:20 36:11 47:25 50:11 53:21 58:6 64:10 67:1 67:3 67:6 96:1 116:24 120:2 128:4 142:1 154:20 168:24 178:5 190:23

192:17 193:9 195:1 206:17 225:18

meal143:5

mean ( 43 ) 4:13 24:20 27:6 43:25 45:5 47:10 49:22 50:9 53:4 57:15 58:17 63:19 80:1 80:8 92:10 97:22 106:6 111:9 116:15 117:9 118:6 119:5 125:10 137:7 139:20 144:21 159:10 161:13 161:16 163:7 163:21 182:11 182:21 187:8 193:7 196:24 199:19 209:7 210:15 214:6 218:2 223:24 224:13

meaning ( 14 ) 60:2 123:2 123:7 123:11 123:17 123:22 125:1 125:13 129:20 141:9 184:18 184:19 184:22 184:23

means ( 25 ) 2:11 9:9 10:2 10:6 13:10 24:16 46:16 48:4 70:9 98:24 99:4 99:18 106:10 125:16 125:17 145:22 146:1 146:2 185:15 187:15 187:17 197:20 216:11 218:7 224:19

meant ( 7 ) 50:13 124:17 130:5 131:1 184:5 187:18 218:9

mechanism183:19 meeting ( 5 ) 104:14

104:16 104:18 140:10 187:24

memo178:5 memorandum ( 24 )

42:14 49:6 56:20 57:16 110:15 111:3 126:21 130:1 138:13 138:15 139:18 139:21 139:23 139:25 141:2 141:22 147:16 147:18 147:19 157:10 158:10 160:15 179:6 189:19

memory150:1 mention ( 3 ) 153:5

153:17 221:7 mentioned ( 3 ) 140:4

145:16 153:24

Merchant121:4 merchants ( 3 ) 19:8
156:2 156:7

mere ( 6 ) 106:4 112:7 112:18 171:2 171:6 171:24

merely ( 3 ) 47:23 69:18 69:24

merger19:23 mess183:24 method151:19 methods ( 4 ) 41:5

151:15 176:9 183:23 middle56:23

might ( 65 ) 17:22 33:1 48:10 48:12 49:10 49:16 49:24 50:22 50:25 51:1 51:9 52:3 55:18 55:18 55:21 67:1 75:2 82:1 86:15 88:21 90:21 94:17 96:7 96:8 96:14 104:9 105:5 108:6 115:22 116:1 118:13 118:16 118:18 119:8 120:4 120:9 121:19 129:23 129:23 141:18 150:13 159:4 163:9 163:14 171:19 172:20 174:6 180:2 180:2 183:15 193:14 194:13 194:14 194:25 195:5 204:7 204:19 205:14 211:3

214:14 214:14 218:23 222:16 222:24 223:11

mightn’t195:6 militates16:25 Miliukhin170:18 Milner ( 34 ) 37:20
37:21 45:16 46:8 95:22 96:12 100:5 100:12 101:10 102:9 102:15 127:21 154:24 155:5 155:8 177:10 177:11 196:6 210:14 210:19 212:23 215:14 215:23 216:6 216:22 217:10 217:11 221:8 221:23 221:25 222:6 223:11 224:5 225:2

Milner’s ( 2 )47:13

219:17

mind ( 18 ) 10:7 27:18 27:20 66:10 98:12 103:18 110:6 127:23 183:12 193:8 196:25 201:16 211:11 212:18 222:13 222:15 225:11 226:9

minded ( 2 ) 223:14 224:3

mindful96:14 minimal174:3 minority ( 4 ) 65:17

65:17 65:25 67:4 minute ( 5 ) 49:21 111:4

111:14 157:11 163:10 minutes96:19 misconception30:13 misconduct ( 2 ) 79:17

108:8 misdescription190:5 misheard14:9 misreading71:17 misrepresentation ( 5 )

189:18 189:21 190:2 190:11 190:12

missing139:14 mistake162:21 misunderstanding73:21 mixed ( 5 ) 131:15
131:23 132:10 132:25 142:22

mixing79:6 modest63:6 modifications205:22 modified ( 2 ) 148:18
151:12

moment ( 6 ) 70:25 133:11 177:16 214:11 217:9 225:11

Monday213:2 money ( 12 ) 91:13

117:13 117:16 121:23 146:2 146:7 146:11 156:8 170:2 194:9 194:17 207:2

months221:17 moorings21:15 moral186:1 Moreover13:9 morning ( 6 ) 1:5 1:13

78:1 96:18 96:24 210:20

mortgage ( 3 ) 167:17 173:8 173:19

mortgagee168:18 mortgages ( 3 ) 167:22

167:23 167:24 mortgagor ( 3 ) 168:20
168:23 169:6

Moscow6:9

Mostly201:23

move ( 12 ) 37:5 37:25 41:14 97:9 110:10 122:17 143:7 143:13 144:9 147:1 176:15 215:6

moving ( 2 ) 157:7 200:9

muddle201:12 muddled208:2 mundane11:10

must ( 38 ) 18:9 29:20 31:20 32:18 36:14 38:4 41:12 48:8 49:18 55:16 56:16 60:21 64:21 69:4 77:14 88:19 98:25 99:1 131:20 135:1 136:16 145:14 150:10 156:11 156:12 158:13 162:13 177:14 184:8 186:6 186:7 194:20 197:13 198:17 200:21 211:23 223:5 224:5

mustn’t ( 2 )194:20 220:9

mutually ( 4 ) 68:25 70:14 99:14 195:1

myself ( 4 ) 53:11 53:12 162:19 224:16

N

name ( 9 ) 50:24 52:15 55:7 61:4 61:8 66:18 71:23 86:24 94:25

namely ( 2 ) 24:17 52:14 narrow ( 9 ) 3:14 15:15

22:20 24:5 42:12 46:4 88:1 88:6 158:5

narrowly135:17 national ( 7 ) 12:10

89:20 89:22 89:23 89:24 90:1 90:2

nature ( 5 ) 2:14 2:16 46:14 109:21 206:5

Nazarov221:2

Nazarov’s221:6 near107:21 nebulous60:14 necessarily ( 17 ) 99:8
101:5 103:13 106:8 106:13 108:19 112:12 113:8 118:17 120:3 120:15 161:24 162:8 171:18 174:21 175:10 223:24

necessary ( 9 ) 2:5 3:5 10:1 47:8 103:10 107:7 107:18 107:25 220:20

need ( 27 ) 9:3 10:2 10:4 10:6 10:17 17:9 70:1 81:9 85:7 96:15 109:22 111:17 134:14 142:10 149:15 167:6 168:10 168:12 172:10 176:4 193:25 209:4 210:8 216:22 220:10 220:11 220:16

needed ( 3 ) 220:5

220:5 222:13

needs ( 2 ) 165:24 209:2 negating113:4 negligence ( 4 ) 103:11

107:10 107:11 108:18 negligent108:7 negligently108:14 negotiations 124:8 Neither ( 5 ) 5:4 32:24

40:16 165:16 167:8 never ( 2 ) 3:15 15:7 nevertheless ( 3 )

109:22 192:23 195:10 next ( 21 ) 9:23 24:12

24:13 29:22 43:17 50:8 98:17 98:18 109:8 119:15 123:16 124:5 134:6 147:1 160:2 185:19 188:7 191:14 195:14 198:11 210:21

nexus172:2

NIK-TRAST ( 2 ) 170:7
obtain ( 3 ) 175:8
organiser ( 5 ) 158:15

170:11
175:22 176:5
165:17 166:14 173:5

nixed155:25
obtaining172:19
173:12

nobody ( 3 ) 63:22
obvious ( 2 ) 18:11
organisers ( 4 ) 171:4

163:17 222:13
191:5
172:12 174:25 175:3

nod64:5
obviously ( 9 ) 23:24
orientate178:6

nominate ( 8 ) 97:16
67:11 96:16 108:13
original ( 4 ) 65:11 80:6

130:10 130:11 131:19
117:9 146:22 146:23
99:22 140:22

131:21 131:24 132:1
199:19 217:25
Osakwe ( 3 ) 34:5 99:17

132:3
occasion ( 2 ) 52:12
145:16

non-affiliated169:22
215:15
Oslo ( 2 ) 127:6 127:10

non-contractual ( 5 ) occupied204:25
Ostanina ( 2 ) 106:24

7:2 7:7 7:15 8:20 9:14
occur ( 2 ) 197:23 222:5
109:2

non-culpable108:8
occurred147:17
others ( 3 ) 25:13 153:7

non-exhaustive27:1
occurrence188:20
200:25

non-observance120:10
occurs70:12
otherwise ( 31 ) 23:3

non-performance ( 5 ) October7:19
32:20 44:12 47:21

7:9 30:3 30:6 34:23
offence ( 3 ) 159:7
47:22 56:11 57:14

145:8
162:20 162:25
67:20 85:15 86:2 86:6

non-recoverable47:24
offer ( 2 ) 218:18 219:3
111:12 126:4 128:18

non-trivial ( 2 ) 187:4
office ( 4 ) 70:21 70:24
131:24 143:22 144:1

188:4
132:5 207:18
148:8 156:22 165:25

none ( 2 ) 8:8 8:15
official173:15
175:2 187:18 187:22

nonetheless ( 3 ) 62:7
offshore83:15
187:23 187:25 198:23

104:22 108:24
often ( 5 ) 36:12 40:12
201:4 204:12 216:9

nor ( 3 ) 5:4 210:19
77:23 113:7 130:4
218:20 219:9

225:21
Okay ( 13 ) 110:10
ought ( 4 ) 37:9 217:21

normal ( 8 ) 121:24
129:3 139:12 140:25
222:25 223:6

156:3 163:1 163:15
149:25 157:5 188:19
ourselves69:13

163:17 163:23 164:3
192:15 193:2 193:5
outcome108:11

165:2
196:3 202:18 212:9
outset57:24

Normally ( 8 ) 49:16
old ( 2 ) 94:14 137:7
outside ( 3 ) 75:21

50:22 90:22 90:24
omission ( 7 ) 103:23
189:25 204:17

155:22 164:20 164:23
104:10 104:19 104:24
over ( 19 ) 21:23 43:16

165:2
105:7 106:9 109:14
49:1 56:16 74:22

notably25:22
once ( 4 ) 28:1 71:18
77:1 79:4 81:23 88:16

note ( 6 ) 25:21 62:20
165:16 217:2
98:17 105:15 107:2

107:4 109:13 111:4
one’s118:1
115:12 145:1 163:4

112:21
one-man197:1
168:13 193:1 207:9

noted ( 2 ) 7:19 215:7
one-sided ( 2 ) 188:10
210:21

nothing ( 22 ) 21:4
189:13
overanalyse17:8

33:16 40:5 41:3 41:8
ones ( 3 ) 97:12 116:16
overarching20:15

56:10 59:22 60:22
223:10
overlapping195:1

61:2 67:17 73:7 74:2
onwards ( 2 ) 178:7
owe ( 3 ) 176:20 202:13

103:22 104:21 108:24
216:4
202:16

146:8 146:10 157:19
open ( 2 ) 151:8 173:9
owed ( 7 ) 170:11

162:3 163:24 175:19
opening ( 2 ) 181:5
202:19 202:20 202:25

203:10
223:21
203:2 204:5 208:5

notice ( 9 ) 146:4 173:7
operates69:10
own ( 33 ) 8:7 10:7 17:8

173:12 173:19 174:3
operation ( 3 ) 29:4
41:1 49:3 51:14 52:6

191:25 192:4 192:4
146:13 191:24
52:15 55:7 55:10

192:6
opine ( 3 ) 139:1 192:13
59:22 60:4 61:4 61:8

noticed104:1
193:3
61:24 66:18 67:5 71:3

notices ( 3 ) 190:25
opined ( 2 ) 141:3 191:2
71:22 73:11 74:8 81:9

192:2 192:3
opining ( 2 ) 118:11
88:17 117:14 118:6

notion ( 2 ) 21:16 44:10
138:24
159:12 172:7 172:8

novel ( 2 ) 4:1 64:19
opinion ( 13 ) 8:7 10:9
183:12 200:17 201:16

null2:2
13:4 14:25 29:13
205:5 205:6

number ( 13 ) 6:15 9:9
32:8 43:8 84:5 110:17
owned ( 2 ) 147:3

12:11 12:18 64:16
130:24 170:21 199:11
199:13

101:21 111:16 111:18
206:19
owner ( 6 ) 2:4 2:12

113:3 130:11 137:7
opinions ( 2 ) 45:17
12:21 13:5 83:25

187:12 225:10
191:2
149:7

opportunity ( 5 ) 12:21 ownership ( 14 ) 117:12

O 169:2 190:8 190:13
117:15 117:16 117:18

204:24
147:4 147:14 147:19

opposite13:4
147:22 148:3 148:6

object91:12

oppressed183:23
148:14 149:6 152:2

objective ( 2 ) 162:21
options199:20
156:23

164:5
oral ( 26 ) 130:24

Objects ( 3 ) 154:4
132:18 133:2 140:14
P
154:5 156:19
210:23 210:24 211:7

obligation ( 30 ) 15:23
211:20 212:4 212:6

pages ( 11 ) 11:13 24:5

19:19 20:3 30:4 30:7
212:16 213:11 213:18

33:5 33:15 34:24 35:2
213:24 214:4 215:1
178:19 223:18 224:16

36:1 36:1 36:2 38:11
215:18 216:5 216:13
224:17 224:24 225:10

38:12 39:7 39:9 72:23
217:7 219:10 220:3
225:13 225:18 225:21

105:3 105:8 110:21
220:11 220:24 222:8
paid ( 3 ) 138:21 141:14

111:12 116:4 119:16
222:20
205:16

120:14 132:8 145:9
order ( 14 ) 12:24 72:19
paper ( 5 ) 146:3 146:8

145:13 147:20 157:22
79:3 79:25 82:25
146:12 156:9 225:23

202:15
104:14 159:16 162:18
par64:22

obligations ( 6 ) 5:15
198:17 215:25 216:13
parallel176:5

7:10 138:1 157:7
221:9 221:18 221:20
parameters ( 4 ) 42:13

195:2 202:25
ordinary114:8
43:12 58:14 69:10

observe175:7
pardon ( 2 ) 14:12

184:11

parent ( 17 ) 87:9 87:11 87:15 87:23 89:6 89:6 93:12 93:18 93:25 94:5 94:7 94:8 94:11 94:15 94:17 95:8 104:13

parlance187:19

part ( 51 ) 2:18 2:23 4:4 5:17 5:19 6:7 15:25 22:17 23:25 28:7 31:9 33:21 40:19 63:8 68:1 68:2 99:2 99:11 100:1 100:10 104:5 108:3 110:2 124:13 124:16 124:16 124:18 125:14 129:21 131:22 132:1 133:4 133:5 133:13 133:16 133:17 133:21 133:22 134:3 134:4 134:12 139:23 141:1 148:9 155:20 159:22 171:4 173:9 205:19 209:14 210:16

partially21:9 participant ( 4 ) 93:10

106:3 166:19 185:17 participants ( 10 ) 85:11 85:24 105:24 107:8

107:19 107:25 160:17 166:18 167:8 167:12

participate ( 2 ) 167:7 171:2

participated ( 2 ) 104:7 106:7

participating ( 3 ) 65:18 105:20 160:22

participation ( 8 )

101:15 101:25 105:1 106:5 166:16 170:25 171:24 210:18

particular ( 41 ) 2:7 2:16 3:7 3:14 3:15 3:20 5:7 16:5 22:6 30:16 37:4 60:20 67:16 70:13 70:15 78:5 78:25 80:25 81:22 90:21 94:2 94:19 107:13 108:21 115:4 127:17 128:8 128:12 128:14 128:19 130:17 131:19 155:25 173:1 176:3 193:6 214:24 217:14 222:10 222:22 225:10

particularly ( 6 ) 2:18 6:7 34:18 37:12 209:20 221:4

parties ( 68 ) 4:9 4:19 12:7 14:6 20:2 20:4 20:8 20:12 20:22 21:3 21:6 23:14 23:15 26:20 30:8 31:2 31:3 32:22 33:8 36:18 37:14 39:25 41:9 57:24 73:4 87:12 93:25 105:20 109:15 110:21 124:6 124:10 124:21 124:25 125:12 125:13 126:16 130:18 131:1 135:18 135:22 136:7 137:11 137:19 137:25 138:4 140:17 143:21 143:24 144:1 147:10 148:5 148:18 149:6 151:2 151:9 151:13 156:3 156:21 180:23 181:7 181:20 182:8 182:14 182:23 183:14 184:1 197:22

parties’139:22 partnership85:13 parts ( 3 ) 68:3 68:24
133:15

party ( 67 ) 7:11 39:13 40:3 61:19 72:15 73:25 74:10 75:24 76:1 76:4 76:7 76:10 76:16 77:4 77:21 78:6

78:8 79:16 82:9 82:15 83:11 94:10 94:11 104:4 108:10 110:23 117:20 119:6 127:4 127:19 128:9 128:21 129:5 131:4 133:3 133:13 137:21 138:8 138:8 142:3 142:4 142:6 143:17 143:18 143:19 150:8 157:14 164:7 181:3 181:6 181:7 181:13 182:15 182:21 183:16 183:19 184:1 185:17 185:20 189:8 189:11 190:4 190:7 190:11 193:12 193:14 193:15

pass ( 2 ) 207:15 212:23 passage ( 3 ) 8:5 41:24
107:14

past ( 2 ) 92:22 96:22 pathway 4:1

pause ( 9 ) 55:16 102:14 128:3 133:12 134:7 139:12 150:1 180:24 195:16

pay145:9 payable93:11 payment ( 2 ) 128:18

172:18 Peace225:20 pecuniary 108:9 penalty33:8 pencil ( 3 ) 211:14

213:25 220:1 pencilled-in219:9 pencilling-in210:11 pendens ( 2 ) 74:24
79:8

people ( 13 ) 12:25 101:21 102:23 108:13 117:24 117:25 140:11 155:22 160:19 192:3 199:7 199:8 226:10

per ( 10 ) 64:23 65:5 65:8 66:9 66:13 66:25 168:22 169:13 169:14 202:5

perceived119:16 perception18:15 peremptory ( 8 ) 32:10

32:17 36:10 36:13 56:9 88:18 133:14 133:23

perfect116:24 perfectly ( 5 ) 10:5

64:11 67:25 160:23 212:21

performance ( 6 ) 7:10 30:3 33:16 34:24 138:1 143:4

performed145:13 perhaps ( 20 ) 50:14

57:10 76:20 86:15 98:18 100:14 101:6 103:12 105:16 106:17 107:12 110:5 111:2 112:2 116:18 185:14 191:14 195:14 220:13 222:3

period ( 19 ) 6:13 38:19 40:23 59:12 114:17 147:14 147:20 173:7 173:18 173:18 174:3 175:13 192:2 197:14 197:23 198:1 201:1 203:16 222:25

periodical173:15 permit ( 6 ) 43:1 57:3

57:17 58:10 60:4 190:10

permitted ( 3 ) 57:9 172:24 195:23 person ( 25 ) 98:24

102:6 102:7 127:7 145:7 160:22 176:11 180:14 182:15 183:16

184:23 185:21 185:24 186:24 187:6 187:13 188:14 188:17 198:13 199:8 199:14 200:17 202:2 202:4 205:15

person’s ( 2 )101:15 101:25

personal ( 7 ) 12:13 192:23 193:22 194:3 194:15 194:18 204:4

personality ( 2 ) 7:8 185:16

personam ( 5 ) 12:1 12:6 12:13 14:7 14:14

Persons ( 6 ) 98:20 108:7 108:9 115:19 122:8 166:17

persuade215:8 persuading215:6 pertinent156:9 pet 7:22

Peter 34:5

Petroleum ( 2 ) 206:22 206:24

phrase ( 17 ) 2:21 2:25 3:3 3:4 4:15 9:23 14:11 16:11 25:6 44:9 48:11 48:24 57:11 98:5 98:11 100:21 178:25

phraseology48:16 physical ( 12 ) 145:22

146:2 146:7 146:11 146:15 154:15 155:24 156:18 184:23 185:16 185:21 186:1

pick ( 9 ) 29:11 98:14 107:12 109:8 111:4 111:19 112:2 129:8 135:25

picking ( 2 ) 4:12 160:9 piercing ( 2 ) 87:10 94:4 place ( 13 ) 27:20 48:21 92:9 114:10 173:12 173:19 178:8 187:1 188:2 188:3 196:18

208:21 212:14 placed ( 4 ) 96:11

173:14 173:22 210:21 places ( 2 ) 58:18 127:5 placing165:21 plain123:2

plan ( 3 ) 101:2 132:9 211:14

plank ( 3 ) 185:3 186:12 188:18

play ( 5 ) 4:4 82:19 125:14 205:19 219:18

played 102:11 playing226:10

plead ( 3 ) 18:21 19:1 98:3

pleaded ( 4 ) 144:20 154:17 183:6 193:19

pleading ( 5 ) 18:3 18:4 18:24 19:4 221:10

pledge ( 7 ) 120:13 144:15 146:9 156:15 157:20 162:1 167:24

pledged ( 4 ) 157:13 159:15 164:10 182:16

pledgee ( 24 ) 157:7 157:12 157:20 157:22 158:1 158:7 158:15 159:19 159:22 163:1 163:7 163:13 163:14 163:16 163:19 163:20 163:21 163:23 164:4 164:5 164:17 164:24 165:16 173:5

pledger ( 2 ) 157:14 164:25

pocket ( 3 ) 177:23 179:10 179:14

pointed ( 2 ) 23:5 38:15 pointless217:20

points ( 17 ) 10:24 37:23 37:25 84:19 111:15 131:18 144:21 164:15 172:5 176:15 190:24 192:15 193:9 210:8 210:9 223:9 226:7

policy19:25

poor ( 2 ) 31:7 31:13 popular132:5 pose71:15 posed192:21 posited211:20 positing163:14 position ( 47 ) 5:21

18:14 18:15 25:3 38:22 42:4 51:3 51:5 51:24 51:25 54:5 55:11 60:2 63:18 63:24 64:1 65:12 70:18 70:20 74:7 89:12 90:19 106:25 114:15 118:2 128:25 149:8 152:15 152:25 156:25 179:20 180:4 186:4 194:10 198:7 202:1 202:24 204:25 205:21 207:14 210:14 213:1 213:4 213:22 214:9 220:25 221:23

positioned201:23 positive ( 4 ) 8:14 9:24

10:10 116:3 possession ( 12 ) 1:25

113:20 145:6 147:2 147:5 147:9 148:1 148:6 148:15 152:2 156:19 156:23

possession’13:6 possessor5:12 possessors ( 2 ) 2:4
2:12

possibilities ( 2 ) 67:9 67:10

possibility ( 3 ) 42:22 43:3 56:25

possible ( 9 ) 20:21 163:22 170:3 216:14 218:24 219:15 219:22 220:17 220:21

possibly ( 3 ) 197:3 211:3 224:17

post161:17

postal ( 2 ) 28:25 29:5 posterior75:2 postpone213:18 potential ( 2 ) 211:20
212:7

power ( 2 ) 57:13 193:11

powerful75:18 practical ( 18 ) 11:6

15:7 15:20 16:14 16:18 16:22 18:1 18:11 18:12 22:12 22:18 24:20 24:23 51:12 55:11 60:15 74:15 74:19
practice ( 18 ) 24:15 25:18 26:12 26:12 37:16 38:14 42:22 56:24 57:16 67:25 114:20 114:22 121:25 122:7 124:9 147:17 191:25 201:25

practices ( 3 ) 57:22 63:15 115:7

practitioner23:1 practitioners ( 2 ) 6:11

10:4 prayed197:12 pre-prescribed ( 2 )

33:10 33:11 pre-trial191:19 precedence26:17 precedents ( 2 ) 81:9
81:10

preceding ( 6 ) 11:15 68:6 81:10 110:20 213:5 213:6

precepts118:16 precis25:12

precise ( 5 ) 4:15 19:25 66:13 96:2 96:5

precisely ( 14 ) 5:19 19:5 19:11 31:16 36:17 39:6 51:9 53:22 75:11 76:25 78:10 79:7 147:8 194:12

preclude ( 2 ) 149:7 170:25

precluded ( 4 ) 17:21 120:6 198:3 207:11 precludes ( 3 ) 143:4
149:5 200:25

prefer ( 7 ) 53:24 53:24 177:7 177:8 211:25 212:3 212:8

preference ( 3 ) 215:23

215:24 216:3 preliminary ( 17 ) 20:9

20:13 57:25 67:4 134:10 134:15 134:21 134:23 134:25 135:1 135:4 135:5 135:11 136:10 137:14 137:17 140:3

premise126:25 premised131:9 premises ( 2 ) 132:6

132:7 preparation216:11 prepare 216:1 prescribed ( 2 ) 129:2

136:8

prescriptive ( 2 ) 224:6 226:5

prescriptively225:22 present ( 12 ) 28:11 43:3 53:11 54:16

54:24 113:13 148:7 168:8 168:10 175:11 175:12 216:17

presented ( 8 ) 19:9 19:10 19:11 22:3 52:14 60:8 206:20 207:24

presenting ( 6 ) 15:21 19:20 42:23 56:25 69:8 78:9

presently ( 2 ) 216:19 219:14

President127:7 presidium ( 2 ) 29:10

29:13 pressing142:1 pressure ( 3 ) 184:25
185:5 187:3

Presumably ( 5 ) 61:23 125:17 138:11 138:22 142:2

presumptive186:7 pretence ( 3 ) 158:14

200:22 200:22 pretty 216:23 prevail175:25 prevailing110:17 prevails88:16

prevent ( 7 ) 43:4 59:23 62:15 141:15 142:7 146:9 171:4

prevented ( 2 ) 105:5 206:24

preventing114:1 prevents16:9 previous ( 4 ) 120:11

179:14 212:8 212:10 previously ( 7 ) 56:1

61:13 84:24 105:22 110:18 197:18 222:12

price ( 29 ) 112:4 112:7 159:6 159:10 159:11 162:5 162:6 163:8 163:11 163:16 163:20

163:23 164:1 164:6 164:12 165:9 165:13 165:18 165:20 167:9 167:13 168:11 168:16 168:19 168:21 168:24 169:2 169:12 170:2
prices ( 2 ) 65:20 172:19

prima161:22 primarily ( 4 ) 12:13

118:20 192:2 207:22 primary ( 3 ) 17:20

72:23 183:9 principal ( 3 ) 85:13
86:1 93:7

Principally17:18 principals ( 2 ) 130:2
131:3

principle ( 41 ) 5:7 6:25 20:15 27:7 27:13 27:16 36:10 42:8 42:18 48:3 48:8 63:25 64:17 64:20 69:3 69:5 72:18 72:19 74:16 74:17 76:1 76:23 76:24 78:13 80:19 81:16 87:8 87:21 88:3 88:7 88:14 88:16 88:18 88:22 197:21 198:3 201:13 203:10 203:10 205:8 205:10

principles ( 3 ) 64:18 131:11 176:1

print24:6 prior119:2 priorities ( 3 ) 79:2

82:12 208:20 priority ( 3 ) 79:1 81:23

82:18

private ( 4 ) 13:19 73:4 76:7 76:10

privilege122:11 probably ( 29 ) 15:13

17:10 19:16 23:13 45:5 53:25 63:6 83:8 83:10 92:17 95:25 105:11 121:12 131:8 143:5 155:3 176:20 178:8 180:3 183:18 184:14 187:5 190:1 197:20 212:1 215:25 220:7 224:14 225:17

problem ( 15 ) 4:1 13:11 14:16 18:1 18:11 43:19 59:3 83:23 117:4 155:10 171:25 206:16 212:7 219:4 226:9

problems ( 3 ) 17:25 68:8 118:3

procedural ( 6 ) 57:12 89:25 90:4 205:12 205:20 205:21

procedurally ( 3 ) 21:11 22:2 205:20

procedure ( 9 ) 21:2 31:10 90:4 90:5 166:5 167:19 191:19 192:4 207:25

procedures124:14 proceed ( 10 ) 30:13

58:5 59:1 59:3 64:22 65:23 66:4 81:16 156:10 207:3

proceeding ( 3 ) 44:15

80:17 156:13

Proceedings ( 14 ) 1:3 38:5 57:25 74:21 74:22 75:3 75:7 75:10 77:1 77:19 77:22 82:4 205:13 205:14

proceeds ( 7 ) 6:25 9:3 10:17 67:24 79:10 82:3 107:4

process ( 21 ) 28:2 71:20 81:3 93:15 122:24 124:13 124:17

124:24 158:7 160:18 162:4 163:2 163:4 164:3 165:8 165:12 169:19 174:19 196:9 207:13 208:4

produce ( 4 ) 224:1 225:19 225:20 225:23

produced84:5 producing 225:23 professional108:25 Professor ( 131 ) 6:2

7:13 7:20 7:21 7:25 8:3 8:9 10:8 10:10 11:3 11:8 11:9 23:8 27:13 27:17 27:18 27:19 27:20 28:17 30:10 34:5 34:5 34:7 35:4 37:6 37:8 41:11 43:24 46:8 47:9 48:9 51:6 52:23 55:24 60:22 62:21 62:24 63:16 67:25 69:15 70:8 70:16 76:15 77:16 77:24 77:24 79:19 81:1 81:7 84:20 86:20 89:9 89:19 94:23 97:11 98:14 98:22 99:4 99:9 99:17 101:11 102:3 102:18 103:8 103:17 110:4 110:13 111:19 113:24 114:19 121:12 122:22 126:20 127:2 127:17 127:21 130:16 131:13 132:13 132:17 134:9 134:17 135:15 135:21 136:18 137:3 137:12 144:21 145:16 146:4 146:6 146:14 146:23 146:25 153:2 153:10 154:14 156:17 157:12 157:19 158:23 159:14 164:15 166:2 166:5 170:5 172:5 174:17 175:19 178:5 179:13 180:25 181:12 183:13 184:7 184:12 186:9 186:11 190:9 190:24 191:7 191:22 192:10 192:12 192:16 194:15 195:7 202:22 203:6 208:14 209:11

profile213:14 profit 162:18 profits ( 7 ) 177:24

179:2 179:9 179:18 179:23 207:2 207:3

prohibit ( 2 ) 60:23 78:16

prohibited ( 3 ) 67:21 69:13 80:19

prohibition ( 6 ) 14:2 14:18 21:22 78:5 85:17 85:19

prominent ( 4 ) 6:4 6:6 7:20 161:25

promised210:5 promote7:24 pronouncing11:5 proof ( 7 ) 29:8 29:18

30:15 31:10 31:14 31:16 35:7

prop34:11

proper ( 9 ) 3:13 3:25 16:2 76:16 77:5 118:17 118:17 118:18 170:4

properly ( 7 ) 62:2 62:5 77:3 77:6 77:10 145:17 221:10

property ( 38 ) 1:19 1:24 2:3 7:8 82:6 91:14 117:15 118:12 132:9 132:10 147:3 147:4 147:25 157:7 157:8 157:13 161:14 163:2 163:22 164:10

165:7 165:11 167:10 167:13 167:25 168:19 170:9 172:18 174:7 175:23 184:24 185:20 185:21 186:24 187:1 188:4 202:2 202:4
proponents27:5 proposal ( 2 ) 214:24

222:14 proposals222:9 propose222:9 proposed70:8 proposes70:16 proposing ( 2 ) 27:23
213:17

proposition ( 12 ) 7:14 42:12 44:19 45:12 62:18 64:8 98:22 102:15 118:8 152:18 219:24 224:8

propositions130:8 proscribed59:15 protect ( 3 ) 9:10 9:17
120:24

protected ( 4 ) 59:13 117:8 200:16 200:17

protection ( 19 ) 2:3 2:11 41:5 88:24 88:25 92:1 92:12 92:15 92:15 92:19 118:14 122:4 200:16 201:1 201:5 205:9 205:12 205:15 205:23

protections ( 4 ) 118:19

192:8 200:2 201:4 prove ( 9 ) 31:7 32:3

35:8 79:25 80:11 83:17 83:18 162:12 165:4

proved170:22 proven84:15 provide ( 11 ) 14:15

28:13 33:9 86:10 111:7 113:10 114:9 118:22 132:8 172:16 221:9

provided ( 9 ) 9:16 38:20 68:17 78:3 99:17 153:8 173:18 176:3 217:25

provides ( 13 ) 9:21 78:2 87:10 87:22 88:10 89:15 97:19 115:5 115:10 116:12 131:24 132:25 173:10

providing ( 2 ) 67:11 87:24

provincial19:8 proving133:3 provision ( 19 ) 29:23

42:20 56:3 67:14 87:2 126:9 146:14 147:10 147:11 147:24 147:25 174:15 182:2 183:3 194:7 194:13 198:18 199:1 209:15
provisional ( 3 ) 137:16 138:7 141:13

provisions ( 5 ) 29:24 72:10 144:18 151:3 170:15

proviso ( 2 ) 22:14 35:19

provokes16:13 psychic ( 4 ) 185:24

187:6 187:13 187:22 psychological ( 6 )

184:25 185:5 186:21 186:23 187:2 190:19

psychology187:21 public ( 17 ) 12:24 76:7

76:8 113:16 115:2 166:14 166:15 166:16 166:18 166:19 167:9 168:8 168:9 171:1 171:3 173:12 196:14

publication7:6

published63:1 purchase ( 7 ) 138:5

140:24 142:8 142:18 151:18 169:7 196:14

purchased142:19 purchaser201:7 purchasers140:22 purchasing142:13 pure ( 2 ) 22:8 25:1 purely 199:20 purpose ( 7 ) 124:7
141:23 170:1 185:25 187:14 197:4 200:18

purposes ( 5 ) 68:23 111:3 126:8 136:23 187:7

pursue ( 2 ) 77:5 88:7 pursued ( 3 ) 79:5
154:21 155:12

push ( 2 ) 58:21 176:24 puts ( 7 ) 51:6 52:19

53:3 171:9 186:8 186:12 213:6

putting ( 10 ) 7:23 39:16 85:21 121:2 141:1 143:15 185:2 187:15 212:2 218:13

Q

qualifications122:14 qualifies186:19

qualify ( 4 ) 70:17 74:16

139:19 186:22 question ( 34 ) 20:24 40:8 46:10 46:14 49:11 52:12 52:16 52:17 66:8 67:18 67:21 68:19 68:25 72:2 81:18 85:20

101:14 101:14 101:21 101:23 101:24 102:4 102:5 102:10 102:21 128:6 128:7 141:10 159:21 181:21 182:8 198:11 208:20 223:12
questions ( 24 ) 41:23 43:13 97:1 97:5 122:18 124:9 126:21 126:25 127:2 134:15 146:24 157:6 176:23 177:5 190:25 192:21 196:4 196:7 196:9 201:12 208:8 211:2 222:22 228:5

queue81:22 quibble47:11 quick115:14

quickly ( 6 ) 96:3 128:3 188:7 192:17 209:18 226:16

quickness126:1 quip124:12

quite ( 42 ) 14:23 17:20 35:1 37:17 38:25 47:5 65:10 69:13 80:8 81:12 81:20 86:12 87:22 90:7 96:24 96:25 103:8 103:11 104:23 108:13 127:22 127:25 134:16 135:16 147:17 153:10 156:9 168:17 172:21 176:20 187:19 188:17 192:11 202:23 202:24 208:11 208:16 210:7 212:12 219:8 221:16 224:18

quotation ( 2 ) 11:19 25:11

quotations12:17 quote107:2 quoted ( 4 ) 21:21

107:16 108:3 180:11 quotes63:17

R

radio221:16

raise ( 4 ) 170:2 196:19 221:5 224:3

raised ( 2 ) 167:9

197:13 raising223:12 range195:22 rate17:25

rather ( 31 ) 12:23 18:12 21:5 38:18 43:2 47:12 48:8 50:9 57:4 57:5 57:18 60:2 64:2 75:25 78:11 80:23 109:23 129:11 130:18 143:18 148:14 156:23 193:24 206:7 213:13 215:23 216:14 220:12 222:22 224:24 225:13

ratification ( 2 ) 194:7

195:6

ratified ( 2 ) 195:10 195:24

RBS217:19 re-examination ( 2 )

176:22 196:6 re-transfer139:5 reach162:6 reaching176:19 read ( 29 ) 3:24 14:12

37:11 46:23 50:9 57:5 60:2 73:1 106:6 123:22 128:3 139:10 139:11 149:20 149:23 153:2 155:2 188:19 190:8 190:13 190:21 191:22 193:8 201:21 209:2 209:4 209:21 211:25 217:19

reading ( 9 ) 15:5 16:17 25:2 53:20 60:6 107:21 137:1 179:5 187:11

reads 32:25 ready 194:11

real ( 11 ) 42:22 43:2 56:24 124:6 124:24 125:11 167:25 186:6 186:13 188:18 226:7

realisation ( 3 ) 157:13 165:7 165:11

realise 157:20 realised ( 3 ) 76:19

158:13 159:1 realising163:22 reality198:13

reason ( 18 ) 27:19 32:4 32:7 36:8 51:1 60:21 62:19 67:12 80:24 98:7 119:9 119:10 129:3 171:7 203:13 213:21 214:15 219:24

reasonable ( 4 ) 139:8 144:2 174:14 181:11 reasonably ( 6 ) 137:25 138:21 142:17 142:23

143:16 143:23 reasoning ( 3 ) 8:21
21:15 22:15

reasons ( 2 ) 36:13

129:12 recall118:25 received ( 3 ) 194:2

194:3 194:17 receiver ( 4 ) 72:21

72:23 77:1 207:15 recent ( 7 ) 13:9 19:22 26:15 84:6 121:10

199:23 200:6 recently ( 3 ) 120:6 122:16 200:15

recited170:15 recites132:25

recognise ( 3 ) 68:21 69:1 84:3

recognised ( 3 ) 83:24 84:4 107:6

recognises ( 5 ) 69:3 69:5 69:7 107:17 107:23

recognising ( 2 ) 24:25 57:6

recollection ( 5 ) 211:10 212:8 220:9 220:19 220:22

recommendations21:10 reconciled224:16 record157:3

recorded ( 3 ) 43:23 127:16 139:22

recorder25:7 recourse ( 7 ) 91:9

94:11 203:25 204:20 205:1 205:3 205:18 recover ( 21 ) 42:2 45:8

45:9 46:1 49:12 61:7 62:14 64:3 66:19 66:24 67:15 85:2 85:23 87:1 90:22 91:18 92:10 92:11 93:18 170:10 190:14
recoverable ( 2 ) 90:22 90:24

recovered ( 5 ) 61:23 81:2 81:5 88:11 203:20

recovers66:21 recovery ( 21 ) 1:19

1:24 2:2 42:5 42:10 61:9 61:10 61:15 61:22 62:16 63:21 66:22 67:7 68:16 68:20 179:18 190:10 205:7 205:10 205:18 205:24

redefine148:5 redress176:5 reduced169:12 reduction 224:19 refer ( 10 ) 1:14 97:14

99:16 106:23 130:12 148:22 156:13 161:1 184:16 185:13

reference ( 16 ) 5:14 70:19 90:12 105:14 141:16 149:9 150:16 150:20 150:24 152:18 152:19 152:24 153:1 156:22 184:9 209:13

references4:5

referred ( 4 ) 1:15 11:20 124:5 212:19

referring ( 4 ) 33:25 68:22 167:3 189:13

refine46:5 reflected ( 2 ) 83:3

156:24 reflection216:23 reflective ( 48 ) 41:23

42:2 42:7 42:10 42:18 42:21 43:4 43:10 43:22 43:25 44:9 44:24 45:18 46:1 46:15 47:23 48:3 48:10 48:16 51:15 54:16 54:24 55:1 55:24 56:14 57:7 59:23 60:6 61:12 68:13 68:22 69:1 69:18 69:24 71:16 86:24 87:1 87:18 88:2 88:9 89:11 90:23 91:19 95:15 201:13 203:9 203:10 205:11

reform68:7 refresh150:1 refusal ( 3 ) 118:13
119:5 122:4

refuse ( 2 ) 119:11

120:24

refused ( 2 ) 92:1 122:8 refuses116:14

regard ( 14 ) 1:10 12:20 22:22 77:25 112:23 113:11 161:11 196:20 199:17 203:9 206:14 206:15 211:6 217:1

regarded ( 6 ) 99:19 111:11 115:16 116:1 117:3 189:21

regardless ( 2 ) 46:10 64:4

regime ( 17 ) 16:1 32:17 33:21 33:21 71:10 71:10 73:16 92:8 94:2 94:3 99:20 148:20 156:18 156:22 194:23 195:3 203:14

region224:23 registered165:24 regularly33:25 regulated ( 5 ) 58:14

59:10 203:15 203:24 204:2

regulates204:21 regulations14:14 regulatory118:5 rehashes224:21 reimbursed ( 2 ) 69:18

69:23 reject57:13

rejected ( 8 ) 8:13 19:12 47:1 52:21 52:22 53:18 53:19 114:25

rejecting14:20

related ( 3 ) 39:11 144:9 164:15

relates4:18

relation ( 14 ) 5:20 28:5 81:21 110:13 111:25 112:21 118:5 153:14 183:3 194:15 195:5 210:25 213:5 213:23

relations ( 18 ) 2:14 5:10 14:7 20:6 23:14 26:2 26:19 26:20 30:11 31:3 36:5 36:18 89:3 114:11 150:19 151:24 155:22 194:25

relationship ( 10 ) 4:18 4:21 4:23 12:7 76:9 87:8 89:5 93:24 94:14 150:18

relationships4:8 relatively224:7 relevant ( 9 ) 5:15 48:7

61:9 93:25 131:20 144:4 153:24 195:15 198:18

relied 29:15 relief58:20

reluctant ( 2 ) 122:25 196:2

rely ( 7 ) 8:18 11:19 13:8 89:18 91:1 149:2 174:13

relying70:8

rem ( 2 ) 12:1 91:14 remainder ( 2 ) 212:25
214:11

remains ( 3 ) 76:21 213:25 214:3 remediable203:12

remedies ( 23 ) 2:3 27:1 27:8 27:15 28:15 38:19 39:20 39:22 40:1 40:6 40:25 56:1 56:2 56:6 69:6 78:2 78:14 113:18 175:11 175:18 180:11 180:15 198:4

remedy ( 30 ) 19:4 26:21 28:1 28:11 31:18 33:5 33:6 33:6 33:11 33:12 39:18 39:24 40:3 40:4 40:8 40:11 40:14 41:8 78:5

78:7 78:10 86:7 175:8 175:21 175:21 176:3 176:12 180:15 180:16 180:18

remember ( 16 ) 84:6 136:25 158:22 164:13 192:11 192:11 193:5 197:15 197:16 209:5 211:12 214:19 218:9 220:4 220:8 226:5

remembering163:21 remind149:17 reminded157:2 remit151:20 remote83:17 remove219:6 render199:9

repaid ( 3 ) 139:3 139:8 142:23

repayable114:16 repaying141:21 repayment ( 2 ) 114:17
138:20

repeat ( 4 ) 69:20 135:24 167:16 169:10

repeatedly ( 2 ) 38:15 62:21

repeats168:7

report ( 71 ) 1:14 3:12 7:19 8:24 10:25 18:19 23:19 24:8 26:23 28:20 36:24 37:7 43:11 43:15 49:7 57:19 59:17 60:8 60:9 78:3 84:20 86:13 86:19 94:23 98:6 98:9 98:14 98:16 99:16 99:22 105:11 105:13 106:17 111:17 111:20 114:9 115:20 122:23 126:13 129:15 132:13 132:14 134:17 135:25 136:24 141:3 144:24 145:1 148:22 150:7 152:5 152:12 153:3 153:3 153:8 154:14 166:2 174:1 178:3 178:13 178:14 180:12 181:13 184:7 184:13 191:8 192:16 192:18 196:11 201:21 207:6

reports ( 4 ) 20:16 38:15 208:24 225:16

representative ( 2 )

193:10 193:12 reprobate 18:5 repurchase ( 2 ) 141:13

142:17 reputational186:3 required ( 7 ) 81:15

87:17 88:10 105:19 109:4 135:23 172:22

requirement ( 19 )

20:20 20:21 42:24 49:17 49:25 51:1 57:2 69:16 69:22 70:5 70:6 110:17 110:18 132:22 133:23 165:23 169:20 169:23 197:21
requirement’132:19 requirements ( 5 ) 2:13

97:25 143:16 143:23 172:13

requires77:8 rescue 208:6 research153:4 reserve 17:19 residual211:10 resolution ( 3 ) 26:8

26:15 26:16 resolutions26:16 resolve ( 3 ) 153:21

154:12 219:3

resolved ( 2 ) 18:25

221:3 resolving22:2

resort ( 2 ) 36:16 175:20

resorting21:16 resources224:1 respect ( 16 ) 3:11 10:8

16:15 23:2 48:5 52:24 62:22 93:5 115:19 132:7 132:12 133:2 153:22 203:8 203:21 204:1

respected ( 3 ) 11:6 11:9 106:23

respective32:23 respects ( 2 ) 26:5 59:8 responded144:21 respondent ( 3 ) 36:3

59:8 59:8 responding86:14 responsibility104:17 responsible ( 2 ) 207:19

211:4 responsive216:2 rest28:2 resting7:11 restitution ( 25 ) 3:11

4:7 4:10 5:21 15:4 15:11 15:17 17:3 17:19 17:19 19:12 20:1 21:20 21:23 22:3 22:20 23:12 26:13 26:14 33:7 38:21 38:23 40:4 57:21 176:8

restoration ( 7 ) 47:3 51:3 51:4 51:24 51:25 66:12 175:22

restore65:13 restored ( 8 ) 38:22

38:23 54:6 62:3 62:6 65:11 75:5 76:7

restraint121:7 restrict171:5 restricted176:11 restriction117:3 restrictions180:8 result ( 12 ) 19:7 21:18

30:2 34:23 45:1 61:1 90:16 105:23 108:10 108:25 160:6 213:18

resulting ( 2 ) 109:24 198:4

results ( 8 ) 91:14 100:3 101:3 158:25 173:4 174:18 175:2 198:7

retained147:3

return ( 6 ) 147:20 149:7 181:16 181:18 181:23 190:17

returned182:4 returning5:13 revisit110:8 rhetorical85:20 richest 63:4 rigged170:3 rightly28:15

rights ( 35 ) 2:12 41:5 84:8 84:14 91:14 91:14 108:10 110:12 113:13 113:13 113:16 113:17 113:25 114:7 114:10 114:25 115:1 115:3 117:16 117:18 117:19 121:6 121:8 122:12 142:12 154:4 159:5 160:20 160:21 160:25 175:1 175:4 176:10 192:9 194:8

rigorous 31:9

rise ( 6 ) 9:4 30:1 111:12 120:13 120:15 161:8

risk ( 3 ) 15:18 81:22 92:23

robbery100:6 rogue184:12

role ( 6 ) 20:11 23:16 77:17 102:12 163:8 219:18

rolling217:2 room197:22

Rosbank170:21 rough222:12 roughly 107:14

round ( 4 ) 36:21 63:22 82:10 180:8

route ( 6 ) 54:8 54:9 55:13 95:12 194:6 195:5

rules ( 58 ) 4:7 4:17 4:20 4:20 4:23 5:2 5:2 8:10 11:10 20:6 29:4 30:6 35:17 51:6 57:11 77:16 81:20 117:22 122:19 125:1 126:14 135:10 150:10 150:13 150:24 151:1 152:8 153:12 159:1 159:17 161:19 161:21 161:25 162:3 163:10 164:7 164:10 166:1 167:18 168:2 169:16 169:17 169:21 171:16 171:23 172:16 172:25 173:3 174:17 174:23 175:4 175:7 175:20 175:24 175:24 195:20 206:6 207:9

run ( 12 ) 29:17 29:18 29:23 55:1 55:3 92:22 96:14 111:16 149:2 151:3 191:15 226:20

running66:3 runs128:4

Russia ( 34 ) 5:2 6:21 8:1 8:3 8:14 11:7 18:21 19:5 40:11 40:14 41:10 48:3 63:5 68:14 69:13 82:5 89:22 90:3 91:10 92:6 99:19 99:19 120:4 126:5 128:14 132:5 147:17 152:16 176:9 203:18 205:24 206:7 206:22 207:1

Russian ( 236 ) 1:18 2:24 3:15 3:25 4:25 6:5 6:6 6:10 6:13 8:10 9:15 9:24 9:25 10:5 10:9 10:12 10:14 10:19 11:15 13:16 13:18 15:5 15:15 15:25 16:15 16:17 16:20 16:21 16:23 18:15 18:19 18:24 20:10 20:11 20:22 21:2 21:11 21:12 21:18 22:1 22:19 22:21 22:25 23:2 23:5 24:4 25:16 25:19 27:20 27:21 27:24 28:10 28:21 32:4 33:20 34:6 34:8 34:9 34:10 36:9 36:11 38:14 40:7 41:2 42:1 42:5 42:25 49:16 49:24 50:22 50:25 51:16 51:18 51:18 52:3 52:10 53:20 54:17 55:25 55:25 56:3 56:10 57:2 57:11 57:22 58:2 58:10 58:11 58:12 59:23 60:4 60:12 60:12 60:15 60:16 61:10 61:13 61:21 62:8 63:12 63:20 64:17 65:15 66:5 66:23 67:14 67:24 68:7 68:8 68:12 68:14 68:17 68:20 68:21 68:25 69:3 69:4 69:6 69:10 69:14 69:16 69:21 70:4 70:7 71:11 71:12 72:10 73:3 73:3 74:17 74:20 74:23 74:24 74:24 75:12 76:8 78:3 78:17 79:7 79:8 79:9

80:19 82:23 83:24 84:3 84:7 84:9 84:9 84:10 84:13 84:13 84:16 85:1 87:17 87:20 88:15 89:5 89:16 89:25 89:25 90:1 90:17 91:3 91:18 92:5 92:18 93:16 93:17 93:21 94:1 94:14 97:16 99:24 103:15 106:10 106:23 107:5 108:16 112:10 112:23 113:11 113:23 113:25 115:6 115:7 117:1 120:7 121:2 121:10 122:10 122:18 125:23 126:9 126:11 127:14 128:19 128:24 128:25 129:7 129:12 129:25 130:3 130:11 130:13 133:15 133:23 145:17 145:24 146:9 146:19 146:22 149:8 149:10 161:11 165:23 169:21 177:15 184:16 187:18 188:15 190:10 191:25 193:21 195:3 197:11 199:21 200:6 201:17 202:23 205:21 207:9 208:3 208:12 211:3 225:17 226:16

S

safe16:2 safety29:4

sake ( 2 ) 159:12 225:23 sale ( 20 ) 112:5 119:8 137:6 141:11 151:18 158:2 164:12 165:9
165:12 165:20 166:14 166:15 166:17 166:18 166:19 167:9 168:9 168:14 169:7 182:16

sales ( 3 ) 173:12 173:13 196:14

Sally27:12

same ( 38 ) 2:22 9:6 9:10 13:17 16:1 19:4 31:12 31:18 32:2 32:2 32:16 33:12 33:20 35:2 40:21 45:13 50:15 79:2 89:21 90:19 95:24 97:22 102:19 104:3 105:9 108:15 123:14 124:13 124:15 124:17 132:6 132:7 136:20 145:20 188:25 198:13 201:18 206:2

sanction200:19 sat104:21 satisfaction ( 6 ) 39:24

70:11 82:2 82:4 82:5 205:17

satisfactory23:10 satisfied ( 8 ) 61:13

67:6 69:17 69:22 77:6 77:14 79:13 100:16

satisfy ( 7 ) 42:24 57:1 72:19 72:24 82:10 132:21 207:22

save103:20

Savilova ( 11 ) 148:22 149:3 149:10 149:12 152:18 152:20 152:20 153:1 153:5 153:14 155:18

saw ( 5 ) 19:20 23:18 68:12 78:7 94:1

saying ( 70 ) 9:18 10:19 22:5 22:8 23:17 23:22 32:20 34:19 34:22 35:15 47:19 48:3 48:9 50:24 52:2 52:9 53:1 53:7 54:13 54:18

54:20 54:25 56:18 58:16 58:23 60:22 65:24 77:7 78:21 80:15 80:15 91:18 92:2 95:20 96:5 97:22 99:9 103:17 103:20 103:21 109:2 116:2 119:1 120:3 120:5 120:10 120:14 121:1 122:1 122:2 133:18 135:16 139:15 139:16 146:17 149:11 150:3 150:24 163:15 171:23 182:17 182:17 182:18 184:15 195:22 214:7 214:8 214:20 214:23 225:18

scale169:10 scan149:24 scenario ( 3 ) 22:6

66:25 75:14 scenarios75:21 scene106:15 sceptically ( 2 ) 120:23

121:20 scheme132:1 scholar ( 3 ) 6:5 6:6

13:16

school ( 3 ) 13:25 14:1 24:16

schools13:23 scope 46:9

screen ( 7 ) 43:14 43:14 56:21 59:18 105:16 127:20 191:16

seal ( 15 ) 127:10 127:14 127:15 127:18 128:1 128:8 128:12 128:17 128:18 128:23 129:1 129:4 129:6 129:8 129:13

seals128:14

second ( 27 ) 3:14 8:16 10:23 39:8 50:10 50:17 63:12 72:19 87:14 94:12 109:12 109:17 109:20 113:18 114:13 114:14 124:13 124:16 124:18 125:14 127:12 155:20 184:18 189:7 197:24 198:1 200:23

section143:15 securities ( 4 ) 91:13

146:8 151:7 156:9 security ( 10 ) 146:2

146:12 151:10 151:11 151:11 151:16 151:19 157:21 158:13 161:9

see ( 72 ) 2:25 5:24 7:3 8:21 17:5 21:25 22:5 23:25 24:6 25:5 25:5 25:9 31:6 33:21 38:1 38:24 40:24 47:10 52:20 53:19 56:10 60:1 60:16 65:25 74:17 74:25 75:19 76:12 76:15 77:1 77:8 79:10 79:18 81:11 82:12 82:18 91:8 91:25 101:8 102:10 107:14 109:4 115:2 115:24 123:4 126:3 126:17 127:9 136:1 149:1 149:14 155:9 170:12 173:9 177:13 177:25 178:10 179:13 180:10 190:15 195:19 195:21 196:24 201:5 205:13 206:1 211:1 212:19 218:19 219:1 224:13 225:4

seek ( 6 ) 4:1 19:4 89:12 170:9 183:9 222:9 seeking ( 4 ) 31:22 48:5

98:10 215:7 seeks74:8

seem ( 2 ) 148:24

211:12 seemed 191:23

seems ( 3 ) 3:17 31:23 119:14

seen ( 7 ) 1:20 16:7 81:1 81:5 88:15 115:6 138:13

sees ( 2 ) 10:12 68:9 seize120:16 seized170:10 Selection2:11 selects164:18

sell ( 3 ) 142:14 142:19 142:25

seminar16:19

send ( 2 ) 218:19 219:25 sense ( 16 ) 23:23 44:20 47:16 63:23 79:19

100:11 100:11 104:24 123:19 123:25 171:18 171:22 192:25 211:1 219:2 222:24

senses106:8 sensible148:15 sensibly96:21

sent ( 2 ) 136:23 136:25 sentence ( 15 ) 5:20

49:23 50:8 50:10 50:16 50:17 57:15 109:20 111:5 123:5 123:16 133:11 133:19 134:6 187:11

sentences14:2 separate ( 5 ) 38:6

78:10 97:16 99:6 180:7

separately ( 2 ) 103:14

162:12 series192:21 seriously192:14 serve192:6

served ( 6 ) 49:17 49:25 50:23 51:4 51:25 78:9 service ( 8 ) 28:25 29:5

132:6 159:18 164:18 164:25 170:8 190:25 set ( 40 ) 4:7 4:17 4:19

4:20 5:1 5:2 8:12 10:13 18:7 20:6 29:14 36:20 40:6 41:10 84:14 86:19 87:7 112:17 118:10 122:9 122:23 127:3 134:17 141:2 163:11 163:20 170:23 174:24 178:7 183:10 184:12 193:3 194:21 198:17 198:20 198:21 198:25 200:12 200:13 217:14

sets ( 11 ) 4:22 12:3 85:10 88:1 94:23 122:23 145:2 151:10 166:24 195:10 195:15

setting ( 8 ) 13:22 16:19 27:12 39:17 39:22 163:8 176:13 180:15

settled ( 3 ) 149:8 152:15 152:25

seven 152:6

several ( 9 ) 4:22 20:16 72:10 109:15 121:15 129:10 161:8 180:11 199:20

severally ( 4 ) 98:21 100:17 106:4 158:17

severe115:8

shall ( 19 ) 30:4 30:5 85:12 85:25 98:20 123:7 123:18 145:11 148:7 153:25 156:10 166:14 173:12 209:21 216:17 218:8 218:15 219:10 226:20

sham ( 4 ) 113:6 113:7 150:9 170:1

shaped ( 5 ) 8:1 23:15 26:20 31:4 36:5

shaping8:2 share ( 4 ) 140:24

141:11 142:8 142:18 shared226:4 shareholder ( 101 )

42:2 44:6 44:25 45:7 45:8 45:9 45:22 45:23 45:24 46:11 46:13 46:18 46:18 47:3 48:4 49:12 51:4 51:13 51:24 52:15 52:19 53:3 53:7 53:15 54:5 54:11 55:9 57:7 58:6 58:7 58:8 58:25 60:5 60:24 61:7 62:7 62:11 62:14 64:2 64:24 65:5 65:17 65:25 66:8 66:9 66:22 66:25 67:5 69:17 69:22 71:22 73:6 73:10 73:22 73:24 74:7 74:20 75:4 75:7 76:4 76:13 77:7 78:23 79:4 79:14 79:25 80:2 80:3 80:10 81:2 81:5 81:22 81:23 82:6 82:12 82:14 83:13 85:2 85:22 86:6 88:12 89:6 95:11 104:14 104:16 104:18 202:16 202:20 203:1 203:3 203:8 203:21 203:23 203:24 204:6 204:19 205:5 205:17 206:11 206:13 206:20

shareholder’s ( 2 )62:2 71:2

shareholders ( 17 )

43:2 43:5 57:4 57:18 62:1 76:22 82:13 85:24 86:25 94:1 94:16 118:6 203:17 204:4 204:16 207:21 208:5
shareholders’44:2 shareholding ( 21 )

46:17 47:20 49:13 53:8 57:8 61:1 62:2 62:5 65:6 65:20 66:12 66:14 66:16 70:12 71:4 73:12 74:10 75:8 78:21 79:23 82:11
shareholdings ( 2 )

74:12 83:12

shares ( 41 ) 44:2 45:1 48:7 54:2 54:12 65:18 71:23 73:7 79:15 79:22 80:5 82:17 82:20 83:16 89:17 90:9 90:11 90:12 90:14 91:7 91:9 91:11 91:21 91:22 91:24 91:25 92:2 92:3 92:17 93:19 137:6 138:5 138:20 139:6 140:21 142:14 142:18 142:25 146:9 146:16 157:8

sharp115:7 sheer224:19 shelf207:1 shifted200:20 shocked 224:24 shocking224:14 shop120:12

short ( 10 ) 6:19 41:16 41:20 87:3 143:11 203:23 213:21 214:14 222:17 225:13

shortened43:7 shorter223:23 shortfall120:18 shorthand99:10 shortly29:3

should ( 39 ) 2:13 4:7 5:13 15:3 20:8 20:8 20:17 21:6 21:11 28:5

28:6 31:2 31:7 32:23 36:16 46:21 72:6 76:19 76:25 102:2 106:18 107:12 109:21 137:17 177:4 178:6 178:11 181:15 182:10 182:17 192:17 193:9 215:11 215:21 219:9 221:22 223:2 223:3 223:5

shouldn’t ( 3 )36:8 106:6 186:15

shove58:21

show ( 8 ) 15:24 23:18 43:11 60:21 60:25 82:25 139:25 191:11

shown ( 2 ) 39:3 85:6 shut120:12

Siberia19:9

side ( 5 ) 26:14 49:21 120:4 185:12 218:13

sides201:18

sign ( 4 ) 128:22 187:25 188:22 189:4

signature127:9

signed ( 5 ) 30:8 192:23 193:10 194:4 194:18 significance ( 3 ) 8:22

128:15 128:15 significant ( 6 ) 101:16

102:1 184:24 185:5 186:23 187:2

Significantly112:16 signing 128:21 silence221:16 similar ( 15 ) 13:13
44:15 47:13 68:8 71:20 113:8 130:25 144:17 151:24 152:4 167:18 168:6 169:16 169:19 194:7

simple ( 5 ) 27:18 32:5 51:1 78:21 132:21 simultaneously ( 2 )
4:25 217:15

since ( 9 ) 9:23 14:18 51:6 67:1 68:3 82:22 115:25 194:12 199:25

single ( 6 ) 18:3 18:4 18:4 52:23 108:11 132:18

singled41:6 siphon204:10 siphoning204:23 sir222:6

sit ( 4 ) 96:20 96:23 103:21 218:6

sitting84:12 situation ( 27 ) 9:12

16:5 44:1 44:5 71:12 71:13 71:15 71:16 72:7 72:14 73:18 81:14 113:12 115:15 115:21 116:10 119:3 145:5 147:2 156:3 156:5 156:6 197:7 200:1 200:4 202:11 203:5

situations ( 3 ) 72:7 81:6 158:6

six211:12 size224:17 sizes226:11

skip ( 3 ) 24:3 29:18 131:10

skipped30:14 sliding169:10

slight ( 5 ) 44:21 124:12 146:21 195:17 208:17

slightly ( 16 ) 3:17 14:24 22:11 37:15 44:19 45:11 46:9 47:15 64:7 70:18 92:22 121:20 125:25 129:16 171:9 206:17

slip48:16 slowness126:2

small35:19 Smith’s41:25

so-called ( 5 ) 9:8 12:22 13:6 130:1 134:13

sold ( 3 ) 161:9 161:14 161:16

solemnity129:12 solution ( 2 ) 52:11

67:11 solutions68:10 solved ( 2 ) 18:2 18:7 solvent83:3 somebody ( 11 ) 33:17

54:10 56:12 64:23 104:6 165:4 168:16 174:23 190:4 196:22 196:22

somehow39:11 someone ( 4 ) 11:22

31:22 193:11 196:19 something ( 38 ) 7:16

10:18 10:23 22:22 22:24 23:4 25:24 33:25 40:15 41:10 45:2 46:21 47:21 47:21 49:10 50:9 60:11 61:1 64:8 87:22 88:3 99:3 105:8 114:5 122:9 139:14 141:2 144:20 144:24 162:14 163:15 166:6 186:17 187:8 195:24 200:21 202:11 205:22

sometimes ( 6 ) 115:8 126:11 129:13 130:4 191:24 221:21

somewhat ( 4 ) 34:4

43:7 146:5 186:12 somewhere ( 2 ) 39:10
208:24

soon ( 7 ) 211:11 218:23 218:25 219:15 219:22 220:17 220:21

sooner ( 2 ) 213:7 219:5 sort ( 28 ) 5:7 8:21

18:20 49:5 51:9 66:22 67:16 68:21 74:23 81:24 88:11 96:1 105:7 108:24 113:8 118:4 129:12 131:8 137:14 158:2 158:21 167:20 167:24 201:8 221:2 224:16 224:17 224:21

sorts ( 5 ) 46:12 91:16 118:7 120:7 176:9

sought ( 3 ) 142:13 142:17 183:15

sounded222:15 sounds ( 2 ) 26:4 75:25 source ( 4 ) 34:4 119:24
173:15 186:9

Soviet ( 2 ) 13:16

187:20 spacing226:11 speak ( 4 ) 20:15 49:1

210:20 218:25 special ( 4 ) 8:22 88:16

126:8 203:13 specific ( 14 ) 9:20

33:16 63:17 64:13 69:8 78:4 84:4 85:8 86:5 87:7 113:22 115:17 176:12 202:1

specifically ( 7 ) 40:19 41:7 78:13 78:15 132:2 140:3 148:20

specifics109:13 specified ( 5 ) 145:7

145:11 148:8 157:19 197:14

specify148:9 spectacles17:8 speculate213:22 speculating80:23 speculative121:21

speeches ( 2 ) 13:9
stress ( 2 ) 103:15
suffice108:7

81:18
223:9
sufficient ( 12 ) 102:25

speedy 172:17
stretch ( 2 ) 5:23 225:17
103:1 103:9 103:11

spend155:1
strict ( 8 ) 59:11 89:1
103:18 107:10 112:8

splitting ( 2 ) 35:20
114:1 122:25 132:20
112:17 112:20 162:5

123:14
133:6 150:4 203:16
187:9 187:16

squaring218:20
strictly ( 3 ) 9:4 156:18
sufficiently ( 5 ) 70:2

stage ( 8 ) 20:1 20:9
172:13
101:16 102:1 102:12

20:13 57:25 123:2
strictures ( 2 ) 174:22
148:13

157:3 210:6 212:5
205:7
suggest ( 2 ) 67:4

stake19:17
strike 119:16
213:24

stand ( 9 ) 120:4 133:17
strikes ( 3 ) 18:13 135:4
suggesting ( 3 ) 3:20

154:10 158:25 174:18
222:7
209:2 215:3

175:2 175:6 213:16
stripped201:7
suggestion ( 2 ) 58:4

219:14
Stroilov ( 12 ) 210:20
101:6

standard ( 4 ) 13:18
212:5 212:15 212:22
suggests ( 4 ) 3:23 21:5

13:20 31:10 35:7
212:24 216:14 216:21
130:1 225:12

standards ( 2 ) 5:15
220:10 220:24 222:2
sui ( 2 ) 130:13 144:13

5:16
224:2 224:10
suit ( 5 ) 95:17 177:20

standing ( 2 ) 80:23
Stroilov’s ( 6 )211:7
181:1 200:20 218:22

218:12
215:24 216:3 219:16
suite137:5

standpoints12:9
221:5 222:14
suits87:1

start ( 8 ) 12:3 24:12
strong ( 2 ) 10:6 21:15
Sukhanov ( 13 ) 6:4

60:1 96:9 110:14
structure ( 2 ) 10:19
7:20 8:3 8:23 10:8

169:9 191:14 226:10
84:11
10:10 11:8 13:1 13:17

started60:10
struggle ( 2 ) 22:19
23:8 27:14 27:18

starting ( 14 ) 1:22
69:11
27:20

101:18 127:24 137:6
struggling 4:2
sum203:2

148:23 165:18 165:18
student ( 3 ) 24:1 25:6
summarise28:22

168:11 168:16 169:12
25:15
summarised150:18

196:12 211:21 211:22
study ( 2 ) 193:24
summarising14:10

213:13
194:11
summary ( 2 ) 49:5

starts ( 7 ) 23:25 26:24
stuff212:20
113:9

28:21 109:18 166:3
stymie146:21
summed106:25

168:4 184:14
sub-article135:2
sums 194:2

stated ( 2 ) 31:6 150:8
subject ( 16 ) 17:22
superfluous50:14

statement ( 6 ) 8:17
47:5 86:16 115:8
supersedes 26:15

18:5 43:24 130:18
121:7 132:18 132:20
supervising77:22

131:4 178:3
132:22 133:3 133:6
supplemental ( 10 )
states ( 2 ) 10:20 81:8
145:7 165:4 174:21
98:15 99:16 105:13

stature13:17
205:7 214:1 223:11
106:17 111:17 111:20

status ( 2 ) 128:19
submitting64:1
114:9 122:22 153:3

201:6
subsequent124:10
154:14

statute ( 19 ) 20:18
subsequently 199:6
supplies89:20

32:20 36:3 60:19
subsidiary ( 22 ) 80:5
supply ( 3 ) 129:21

77:15 122:6 122:7
80:7 85:12 85:14
155:10 220:23

122:9 122:11 136:8
85:24 86:2 87:9 87:13
support ( 6 ) 10:10

136:13 136:17 176:12
87:15 87:23 89:6 93:6
12:17 13:1 25:17

182:18 182:19 182:20
93:20 93:25 94:6 94:9
38:10 89:12

194:10 200:5 201:2
94:10 94:15 94:20
suppose ( 6 ) 26:9

statutes ( 3 ) 85:15 86:3
95:4 95:5 95:11
52:12 160:25 174:25

90:4
substance ( 2 ) 5:4
218:5 221:22

statutory ( 24 ) 5:3
16:12
supposed ( 2 ) 20:12

21:15 22:15 22:17
substantial ( 5 ) 29:25
220:13

27:10 33:11 40:7
34:20 186:7 191:9
supposing ( 4 ) 182:14

42:20 56:3 64:21
216:1
204:9 206:2 206:8

68:18 69:9 69:25
substantive ( 4 ) 8:10
supposition 76:11

70:1 78:4 89:8 104:17
129:18 205:15 205:23
suppositions ( 2 ) 58:12

105:2 110:7 180:19
substitute136:14
64:11

182:12 194:13 195:19
subvert ( 2 ) 187:9
Supreme ( 12 ) 19:22

203:13
187:16
19:23 19:24 23:11

stay ( 2 ) 205:12 205:14
subverted ( 3 ) 158:7
25:19 26:17 26:17

stayed74:22
187:24 190:18
29:10 150:8 180:13

step202:10
subverting23:16
200:15 225:5

steps79:24
subverts200:18
sure ( 15 ) 4:1 19:17

stick174:10
succeed ( 3 ) 7:23 55:5
20:23 21:7 23:24

still ( 13 ) 4:9 15:14
58:25
46:19 55:20 98:4

46:1 56:20 71:4 73:12
succeeded158:21
104:11 122:1 143:14

74:13 79:21 110:2
succeeds133:3
154:11 209:19 212:21

121:17 131:20 203:21
successful ( 2 ) 170:12
222:1

214:20
201:8
Surely ( 4 ) 52:13 56:14

stock65:18
succinct53:22
56:15 117:10

stockholder ( 3 ) 93:10
sue ( 5 ) 55:6 55:7 73:8
surface75:3

93:11 93:13
76:4 203:8
surmise49:2

stockholders85:11
sued ( 2 ) 29:5 183:15
surplus ( 2 ) 76:21 83:5

stone ( 5 ) 8:12 41:10
sues ( 2 ) 69:17 69:22
surprised146:5

122:10 200:12 200:13
suffer91:17
surprising ( 2 ) 8:8

stop ( 4 ) 32:9 50:12
suffered ( 17 ) 44:21
63:21

61:2 187:4
44:25 47:18 47:19
surreptitiously199:13

story ( 3 ) 81:8 138:23
65:2 66:25 69:19
surrounding ( 6 )
192:5
70:20 78:23 80:1
120:22 124:8 124:21

stove ( 2 ) 29:2 29:5
80:10 82:25 83:20
125:4 125:8 130:21

straight44:12
94:25 115:19 184:2
suspect ( 3 ) 102:15

straightforward ( 4 ) 203:12
111:17 128:5

15:5 16:16 16:24
suffering186:1
swift126:3

53:20
suffers ( 2 ) 65:21
syncopated 43:7

strengthened 121:16
182:15
synonymous112:24

synthesise224:22 system ( 7 ) 6:24 10:18

29:5 63:7 81:12 81:15 226:21

systems ( 2 ) 56:13 63:7

T

table103:21

taken ( 14 ) 1:11 22:10 25:4 26:18 60:7 83:6 99:11 145:15 196:5 196:17 204:15 204:22 204:23 220:20

takes ( 13 ) 23:23 48:21 94:13 95:5 96:17 96:17 115:12 163:4 183:14 187:1 187:20 188:1 188:3

taking ( 8 ) 78:11 83:7 114:10 124:6 179:13 186:4 193:5 214:6

talk ( 10 ) 49:19 148:15 151:23 152:7 161:4 171:12 171:15 176:7 224:14 224:15

talked ( 3 ) 57:19 84:24 211:17

talking ( 25 ) 1:9 3:18 44:13 50:5 50:11 50:15 52:8 54:1 67:2 70:25 73:22 73:23 73:24 82:2 115:17 132:17 136:12 160:10 171:21 176:7 181:23 188:8 204:3 208:12 222:12

talks ( 2 ) 147:8 176:8 tantamount171:10 task ( 2 ) 11:10 226:7 taste158:5

tax ( 4 ) 126:6 126:8 126:9 174:13

taxpayer126:11 team216:16 technique89:4 tedious224:10

tells ( 3 ) 62:24 67:15 173:17

telly220:5

temporary ( 2 ) 115:15 147:19

ten ( 6 ) 115:11 119:21 119:23 120:17 173:13 173:19

tend222:21 tentative 218:17

tentatively ( 2 ) 215:10 215:12

tenuously39:5 term ( 10 ) 123:17

123:18 145:25 145:25 146:18 147:12 148:5 179:3 179:12 214:11

terminological46:24 terminology ( 9 ) 5:4 15:10 40:15 40:18 43:20 51:17 142:21

146:19 190:1 terms ( 39 ) 5:5 10:13

18:12 22:18 30:1 30:7 48:19 48:20 51:19 114:2 123:6 123:19 123:25 126:7 130:14 132:20 132:22 133:3 135:19 135:23 136:7 136:13 136:14 136:16 136:17 143:21 143:25 144:17 145:2 154:14 168:6 180:21 181:16 184:22 186:8 190:6 202:8 222:21 224:15

terrible211:10 territory ( 2 ) 49:9
121:21

test ( 7 ) 47:8 54:10 63:18 70:18 109:4 110:2 110:7

tested ( 2 ) 66:23 67:8 testimony132:24 testing ( 3 ) 58:19 63:22
78:18

text ( 10 ) 2:24 90:25 93:23 98:15 134:17 145:14 145:15 145:17 178:10 188:15

textbook13:18 texts13:15 thanks206:4 themselves ( 3 ) 87:2
102:22 112:11 theory ( 5 ) 27:5 28:14

37:15 70:8 70:16 there’s ( 4 )12:17

157:19 163:3 167:17 thereafter ( 2 ) 81:4

207:11 therefore ( 5 ) 14:3

29:17 48:11 78:22 96:15

they’re19:20

thing ( 42 ) 5:13 8:7 8:16 10:20 20:7 28:9 34:12 48:19 50:15 56:13 56:14 63:13 73:15 86:10 87:14 89:9 113:20 145:14 145:17 145:17 145:22 145:22 145:24 146:1 146:7 146:7 146:11 146:11 146:18 153:22 153:23 153:25 155:19 155:19 155:22 155:24 156:8 186:21 191:25 192:1 194:14 221:3

thinker16:25 thinking ( 4 ) 108:19

119:18 222:8 222:25 thinks ( 5 ) 23:12

163:19 163:23 168:23 213:7

third ( 27 ) 1:22 24:4 72:15 74:10 75:23 76:1 76:7 76:10 76:14 77:4 79:16 82:9 82:15 83:10 86:9 87:12 93:25 94:9 94:10 94:13 107:22 108:10 149:6 156:1 167:8 170:17 182:15

though ( 11 ) 26:4 40:8 61:20 62:11 63:15 74:19 100:22 129:21 155:19 183:16 218:3

thought ( 13 ) 13:23 23:8 24:17 34:10 56:12 104:1 154:13 197:18 211:24 212:1 223:2 223:5 223:7

thousands ( 2 ) 225:20 225:21

threat ( 17 ) 181:6 181:8 184:19 185:4 185:4 185:24 186:1 186:6 186:13 186:14 186:14 186:14 186:15 186:20 187:4 188:4 188:5

threaten ( 2 ) 186:17 186:17

threatened188:1 three ( 8 ) 34:9 68:6

107:15 113:6 189:6 200:12 213:7 222:16 three-stage ( 2 ) 122:24
123:15

through ( 48 ) 28:2 29:17 29:18 29:19 29:23 31:9 31:13 37:1 48:1 48:15 52:5 66:15 70:13 73:5 78:24 79:24 80:9 83:10 91:24 93:6 93:19

95:12 101:8 111:16 111:18 121:24 123:4 128:3 131:10 131:12 137:3 148:10 148:23 149:2 149:24 151:3 157:21 158:6 165:7 165:11 165:20 174:15 174:19 177:15 180:4 207:12 207:13 226:15

throughout146:20 Thursday ( 2 ) 1:1
222:15

thus ( 2 ) 111:13 115:19 tie23:22

time ( 51 ) 6:14 7:25 11:4 36:22 37:2 39:14 39:16 40:20 40:23 41:15 41:16 103:20 127:25 132:6 137:1 143:9 145:11 145:12 147:15 147:21 148:6 149:20 149:23 155:1 173:18 174:14 176:19 188:9 188:10 193:1 197:13 197:23 198:1 208:21 208:21 210:11 214:22 215:13 215:17 215:21 216:9 216:19 216:20 216:23 217:14 217:18 217:21 222:10 223:1 223:6 223:11

time-barred ( 2 ) 39:13

41:7

times ( 4 ) 20:16 20:16 180:12 187:20

timetable ( 2 ) 210:10 214:14

timing ( 2 ) 95:18 176:18

tiny43:17 tired177:5

title ( 5 ) 2:4 2:12 113:20 129:16 129:21

TNK ( 2 ) 206:21 206:24 today ( 10 ) 36:23 77:13 95:21 95:25 96:16 177:7 177:8 213:18
214:16 221:5 together ( 2 ) 103:2

103:19

told ( 2 ) 136:22 206:6 tomorrow ( 7 ) 95:24 96:11 96:12 96:14 96:15 96:18 96:24 too ( 18 ) 30:14 39:16

52:18 131:7 131:11 136:5 136:11 142:1 143:5 158:5 168:25 176:24 184:14 185:3 222:3 222:23 223:4 226:20

took ( 8 ) 16:21 24:15 25:18 68:7 136:18 154:24 207:9 212:14

top-level 20:20 topic ( 16 ) 1:13 1:20

36:25 38:1 41:12 41:14 41:23 73:24 84:18 92:21 110:11 110:12 122:17 143:7 144:9 164:14

topics ( 2 ) 97:9 222:22 tortfeasor ( 3 ) 81:2

103:14 200:23 tortfeasors ( 2 ) 99:7
100:16

tortious ( 10 ) 31:22 31:25 73:2 73:5 108:22 109:1 119:13 171:11 171:12 171:19

torts97:16 torture187:3 touch144:23 touched164:14 tough ( 2 ) 96:24 97:1

Towards ( 3 ) 29:12

177:14 208:18

town19:8 track78:24 tradeable154:5 trades65:15 trading65:19

transaction ( 21 ) 18:6 18:6 64:14 134:1 134:4 150:9 185:17 185:25 187:7 187:14 188:10 188:21 188:22 188:23 189:4 189:5 189:8 189:10 195:9 195:23 204:11

transactions ( 6 ) 2:2 2:8 3:8 87:12 94:6 151:2

transcribers226:24 transcript ( 3 ) 101:9

101:19 220:7 transfer ( 8 ) 145:7

147:14 148:1 148:3 148:14 148:14 149:5 152:1

transferee ( 2 ) 181:18 182:4

transferor ( 2 ) 181:19 182:5

transferred ( 5 ) 140:21 147:19 147:22 181:17 181:24

transferring147:4 translate155:3 translated ( 4 ) 34:7

68:1 137:17 179:1 translates66:15 translation ( 8 ) 1:17

24:4 26:9 29:20 127:12 145:15 155:6 188:12

translations ( 2 ) 2:20 34:9

translator127:16 translators ( 2 ) 220:10

220:24 traversed ( 2 ) 58:2

128:25 treated171:3 treatment ( 5 ) 89:20

89:23 89:24 90:2 117:17

trial ( 8 ) 153:13 210:17 213:13 213:20 214:10 214:25 224:21 225:14

trials225:12

tried ( 4 ) 7:24 23:6 28:13 139:5

trigger48:12 trivial186:15

trouble ( 2 ) 44:8 218:14 troubled153:21

Trout ( 2 ) 218:18 219:22

true ( 5 ) 54:17 56:15 136:5 179:11 189:24

trump165:6

Trust ( 10 ) 41:25 83:14 83:15 83:15 83:19 83:22 84:3 163:1 163:5 185:1

trust-like84:11

trustee ( 5 ) 72:20 72:22 77:2 78:12 207:15

trusts ( 4 ) 83:23 84:6 84:10 84:14

try ( 7 ) 48:15 95:21 131:10 136:19 141:12 216:12 219:3

trying ( 16 ) 22:25 42:13 50:12 53:13 54:10 124:20 131:7 135:6 135:9 154:20 170:23 183:11 183:17 208:20 208:23 209:5

Tuesday213:3

turn ( 11 ) 1:16 11:12 17:24 25:6 45:3 57:10

100:20 168:13 178:6 184:6 191:12

turned137:9 turnover146:10

turns ( 2 ) 131:8 198:1 twirl209:8

type ( 6 ) 28:11 67:16 69:8 148:12 148:16 148:18

types ( 3 ) 12:4 90:18 131:14

typical ( 3 ) 12:23 89:4 137:14

typo29:20

U

ugly34:4 ultimately ( 2 ) 18:8

192:24 ultra204:12 umbrella38:13

unavailable ( 3 ) 212:24 213:16 214:3

uncertain44:10 uncertainties215:9 uncertainty219:18 uncharted121:21 uncommon9:12 uncompensated 77:12 unconscionable ( 2 )
188:10 189:14 uncontroversial105:12 underlying 151:1 undermine18:12 underscore87:5 underselling65:20 understand ( 31 ) 5:21

11:22 20:5 20:24 22:5 26:6 28:23 37:18 42:7 43:11 44:4 47:6 48:13 50:18 53:13 55:5 71:17 75:25 79:20 81:7 96:4 97:21 110:3 110:8 120:8 136:16 137:18 144:15 204:13 212:23 215:13

understanding ( 11 )

16:4 34:12 43:20 44:7 58:23 92:25 95:1 95:13 155:14 183:25 203:6

understood ( 5 ) 17:5 22:8 48:9 110:4 226:22

undertake137:25 undervalue ( 11 )

161:10 161:14 161:16 161:17 161:18 162:14 162:16 162:18 162:21 162:22 162:23

underway217:3 unexceptional ( 2 )

72:25 124:2 unexceptionally72:10 unfair143:14 unfairly160:4 unfavourable ( 3 )

188:23 189:5 189:11 unfold217:8 unharmed51:5 Uniformity ( 2 ) 109:15

109:21 uninterrupted ( 2 )

70:10 110:5

United81:8 University6:10 unjust ( 2 ) 194:19

194:23 unjustly194:22 unknown213:19 unlawfully163:13 unlawfulness ( 3 )

201:17 201:20 201:24 unless ( 20 ) 32:19 46:2 56:2 64:20 69:7 74:17

77:14 78:4 78:15 81:20 85:15 86:2 88:19 114:18 143:22 144:1 148:7 165:2 174:19 176:11

unlikely119:14 unnecessarily ( 2 )

61:19 136:11 unnecessary87:2 unpleasant186:19 unpublished62:25 unreasonable141:19 unreasonably142:6 unremedied43:6 unstatutory21:16 unsuccessful166:15 untested67:2 unwieldy223:19 update ( 2 ) 176:18

219:2 updated226:19 updating226:21 Urals24:2 urges155:15

used ( 10 ) 15:3 34:1 98:5 113:4 113:25 114:20 120:6 122:16 146:19 194:9

useful ( 2 ) 221:16 223:16

useless ( 2 ) 219:23 223:20

uses ( 7 ) 2:25 3:3 3:4 25:6 34:11 34:13 184:16

usher 210:5

using ( 9 ) 5:5 16:11 17:8 47:14 98:11 142:7 160:23 185:14 189:12

usual ( 2 ) 174:21 187:19

usually ( 2 ) 6:24 172:9 utility221:21

V

vacation218:17 vague187:5

valid ( 2 ) 113:19 138:7 valuation211:3 valuations165:15 value ( 35 ) 44:1 45:1

45:4 46:16 47:20 48:6 49:13 53:9 53:16 54:12 57:8 60:25 61:1 62:1 62:5 65:6 66:12 71:4 71:23 73:11 74:9 75:8 78:20 79:4 79:14 79:22 80:14 82:20 91:9 91:25 92:3 161:22 161:23 181:16 181:23

valuer ( 3 ) 162:1 163:11 163:20

values186:8 vantage63:4 various ( 14 ) 12:25

29:23 36:23 47:5 77:16 80:11 83:2 86:16 118:3 126:5 170:15 179:11 192:3 193:18

varying37:16

veil ( 2 ) 87:11 94:4

Venice121:4 venture ( 2 ) 131:4

206:21 version ( 5 ) 43:8

110:20 121:16 127:14 127:15

vessels112:5

via ( 2 ) 40:22 125:1 viable ( 4 ) 51:14 53:4
54:2 55:7

victim ( 16 ) 7:8 7:12 81:4 98:21 99:2 106:13 177:20 181:1 181:3 181:3 181:9 181:15 182:11 182:17 182:20 182:21

videolink ( 2 ) 220:12 220:23

views ( 3 ) 37:17 49:6 191:6

vigorously 193:15 vindication ( 25 ) 1:25

2:8 2:9 3:8 3:9 3:11 3:19 4:6 4:9 5:21 15:4 15:11 15:17 17:1 19:11 19:25 21:20 21:23 22:4 22:20 26:13 57:20 113:19 115:2 176:8

vindicatory ( 8 ) 12:5 12:15 13:5 14:6 14:15 16:8 24:22 25:25

violated ( 2 ) 102:20 160:21

violates 77:20 violation ( 2 ) 159:17

172:23 violator7:10 violence ( 2 ) 185:13

186:1 violently41:12 vires204:12 visible188:2 Vitriansky ( 14 ) 11:3

11:9 13:4 13:10 13:14 13:21 14:4 25:8 25:11 25:12 25:23 26:4 26:11 28:17

VLADIMIR ( 2 ) 1:6

228:3

void ( 8 ) 2:2 63:23 135:12 136:9 165:25 167:1 168:9 168:15

volume224:19 voluminous223:19 voting64:13

W

wait76:25 walk123:4 wanting222:11 wants ( 3 ) 215:17

215:21 217:14 War225:19 wary119:15

water ( 2 ) 136:4 187:3 waters ( 2 ) 33:15 209:9 way ( 72 ) 3:25 10:21

10:22 14:11 18:8 18:23 18:24 21:17 22:1 22:1 23:5 26:7 26:21 27:23 33:18 36:4 43:23 44:4 45:13 45:19 47:25 51:10 52:3 52:20 52:22 53:16 53:17 53:23 58:3 58:21 62:1 64:14 67:13 68:14 89:21 92:17 94:16 96:20 100:12 101:7 102:6 102:15 102:19 103:2 103:19 110:22 137:5 144:4 151:12 154:20 154:25 156:8 156:13 165:5 165:20 173:3 175:1 183:6 183:22 192:7 199:21 199:21 199:23 201:21 206:12 210:16 216:15 216:16 218:15 218:20 219:5 224:22

ways ( 7 ) 6:12 15:25 67:1 67:3 91:16 91:17 141:15

we’re68:22

we’ve167:18 wearing208:11 Wednesday222:15 week ( 23 ) 211:21
211:22 211:25 212:4 212:7 212:8 212:10 212:11 212:25 213:5 213:6 215:19 215:20 215:21 215:22 215:24 216:8 216:8 216:13 219:21 221:12 223:7 225:8

weeks ( 6 ) 210:21 211:12 211:20 212:2 213:17 222:12

weight208:21 what’s ( 4 )105:19

108:23 193:1 196:25 whatever ( 7 ) 117:9

161:19 164:25 191:15 194:23 213:24 219:24

whereas ( 4 ) 31:11 176:8 191:25 224:2

whereby114:20 wherever224:8 whichever129:8 whilst32:24

whole ( 14 ) 45:19 61:25 73:24 93:23 100:17 100:21 100:22 123:20 124:1 134:2 149:21 149:23 191:25 214:25

wholly ( 2 ) 204:11 204:12

whom ( 4 ) 59:9 145:16 181:8 190:12

Whose ( 2 ) 183:22 215:14

wide ( 3 ) 54:7 75:25 195:22

widely ( 4 ) 3:17 120:6 121:14 122:15

wider ( 3 ) 3:21 3:21

5:22 wife218:4 wills187:24 winning 169:13 wiped207:10 wise41:17
wish ( 2 ) 18:7 35:23 wishes ( 2 ) 10:21 68:15 withdraw218:17 withhold ( 2 ) 142:14

145:12 withholding ( 35 )

144:18 146:15 147:5 147:13 147:13 148:12 148:16 148:18 148:20 148:21 149:5 149:13 150:3 150:10 150:16 150:19 150:25 151:11 151:11 151:23 152:3 152:4 152:8 152:9 152:15 152:21 152:24 153:17 154:17 155:21 155:23 156:15 156:16 156:18 156:22

withholding-like152:22 witness ( 5 ) 115:18

132:24 176:25 178:3 183:17

witness’s92:24 witnesses224:15 won’t ( 10 )27:23 58:4

110:8 116:22 175:2 191:7 206:10 216:9 216:18 217:19

wonder221:21 wondering218:2 wording ( 2 ) 147:16
147:18

work ( 13 ) 10:21 22:13 35:12 79:3 80:9 80:13 80:24 83:4 137:18 138:22 151:21 162:12 216:10

working ( 3 ) 10:13 28:2 225:6

works ( 6 ) 10:14 10:21 20:23 67:24 69:14 137:5

world65:16

worried ( 2 ) 17:7 104:1 worry ( 3 ) 18:3 44:8

48:24 worse10:22

worth ( 5 ) 94:22 154:18 218:10 222:20 223:12

worthy119:6

wound ( 2 ) 81:4 82:22 wrap37:23

writing ( 4 ) 6:21 25:7 216:20 219:12

writings23:9 written ( 23 ) 43:24

132:19 132:21 135:1 135:11 190:5 190:13 210:3 210:22 211:17 212:1 212:2 212:11 212:19 212:20 213:6 214:22 215:11 215:17 216:17 217:12 223:13 226:3

wrong ( 41 ) 19:20 19:21 28:3 30:21 32:21 35:11 39:5 44:2 44:5 44:17 44:20 45:6 45:6 45:7 45:11 45:21 45:25 46:10 46:12 46:17 47:7 47:15 48:12 49:9 53:8 60:6 60:7 65:1 67:11 80:16 126:25 146:17 146:18 156:11 162:4 162:14 182:18 184:8 188:12 190:20 205:16

wrongdoer53:16 wrongdoers ( 4 ) 160:6

160:9 160:12 160:17 wrongdoing ( 4 ) 95:8 100:3 158:16 161:12

wronged ( 2 ) 19:18 50:19

wrongful75:23 wrongfully76:1 wrongly ( 3 ) 19:10

157:16 162:2 wrote221:15

Y

Yarkov ( 4 ) 55:24 60:22 62:24 63:16

year ( 4 ) 7:19 59:12 66:17 175:14

years ( 6 ) 63:9 68:6 81:12 119:19 120:18 200:12

yesterday ( 17 ) 1:9 3:25 41:24 46:9 70:4 88:15 89:19 100:13 101:7 127:22 134:10 135:15 136:19 136:22 137:2 137:13 203:7

yesterday’s101:9 you’ve26:2 young81:12

yours ( 2 ) 49:6 202:22 yourself ( 2 ) 41:4
149:17

0

000 ( 2 ) 223:17 223:18

1

1/130149:17

1/2179:1 1/21811:16

1/21911:12 1/230 ( 4 ) 1:16 1:18
1:22 5:8

1/23728:22 1/24028:21 1/24129:11 1/289 ( 2 ) 91:1 91:3 1/30291:2

100 ( 3 ) 64:23 66:9 189:19

102 ( 2 ) 110:16 111:5

104158:12

105 ( 13 ) 85:8 86:8 86:15 87:6 87:6 87:7 92:25 93:22 93:23 94:3 206:18 206:20 209:16

1064 ( 50 ) 15:23 20:17 28:6 29:7 29:16 29:21 30:22 30:23 32:12 32:13 34:14 35:3 35:9 35:10 36:8 36:11 36:12 36:17 38:14 38:16 39:1 39:4 39:15 39:18 40:22 41:6 42:9 42:19 47:18 53:9 56:17 60:10 68:17 69:17 77:14 97:17 99:1 99:6 102:20 102:20 103:15 113:5 160:7 161:9 175:16 175:21 180:1 180:2 180:3 180:8

1065 ( 2 ) 29:20 69:22

107158:23

108159:14

1080 ( 26 ) 97:7 97:19 97:22 97:25 97:25 98:15 98:25 99:5 99:7 100:4 100:7 100:14 101:4 101:10 102:8 103:13 104:8 104:12 106:4 107:1 158:18 159:25 161:2 161:9 165:3 171:19

109 ( 2 ) 161:5 161:6

109588:23

1102194:20

112 ( 2 ) 160:1 160:14

117193:17

119 ( 5 ) 42:15 42:16 49:6 56:19 58:16

12/52184:10 12476:8 128 ( 10 ) 146:1 146:6

154:2 154:3 154:7 154:19 155:1 155:11 156:20 157:1

132 ( 2 ) 191:3 191:17

133151:4

135 ( 2 ) 195:8 195:13

136195:21

140 ( 3 ) 111:23 112:2 112:6

142112:9

143112:15

152194:16

159166:3

160166:9

162 ( 4 ) 132:20 132:23 133:4 133:7

167175:23

168133:24

16939:17

173134:18

179 ( 27 ) 38:20 38:21 38:24 40:20 176:15 177:18 177:22 177:25 178:10 178:23 178:25 179:17 180:6 180:9 180:22 181:4 181:14 181:18 183:10 183:15 183:18 184:16 189:14 189:17 189:25 190:3 197:15

17th216:18

180 ( 2 ) 134:2 134:3

181 ( 2 ) 38:20 136:3
128:1
137:6 137:7

182 ( 2 ) 196:11 196:12
151:4
153:12 153:15

183 ( 2 ) 195:6 196:11
447 ( 3 ) 196:18 197:17

196 228:5
197:18

1990s ( 3 ) 7:25 121:13
449175:9

199:22
477 ( 4 ) 166:24 167:4

1996 ( 3 ) 63:7 63:8 68:3
167:5 197:18

1998 ( 3 ) 25:20 25:23
4th213:2

26:5

2 5

5th213:2

2/11106:21

2/21111:20
7
2/9106:18

200224:16

70229:16

2001 ( 2 ) 4:3 23:4

20049:1

2008 ( 5 ) 115:7 134:13

140:12 144:10 183:8

201 181:12

2016 1:1

202184:15

203184:7

210 228:6

212145:1

216148:23

221 ( 2 ) 150:7 152:6

225 ( 3 ) 149:3 152:11

152:19

226 ( 2 ) 149:8 152:17

23826:25

239 ( 2 ) 26:24 27:4

250 224:23

266170:12

27th221:11

29984:22

3

3/78107:13

3/80107:14

3/81109:11

300 ( 2 ) 224:16 225:18

300-ish225:13

3015:18

30729:19

308 ( 3 ) 86:21 94:23

209:12

313209:12

328168:4

329 ( 2 ) 151:15 168:4

338178:16

34343:23

350224:24

359 ( 9 ) 146:13 147:7

147:9 148:4 148:10

150:5 150:14 150:22

153:17

360 ( 2 ) 150:22 153:18

361188:8

368 ( 7 ) 43:16 49:7

49:15 49:23 50:13

52:2 52:9

369 ( 2 ) 43:16 59:17

393 ( 15 ) 15:22 29:19

30:20 31:3 32:1 32:14

33:3 33:14 34:13 35:8

35:22 36:4 38:12 39:4

160:8

4

400 ( 2 ) 224:17 225:18

401 ( 4 ) 42:9 42:19

107:11 161:9

420130:9

421 ( 3 ) 117:22 131:16

132:25

429 ( 4 ) 134:10 135:16

135:23 137:15

431 ( 11 ) 122:20 124:13

124:16 124:18 126:14