Restructuring & Insolvency analysis: The Commercial Court dismissed a claim under section 423 of the Insolvency Act 1986 (IA 1986) that the first defendant (Mr El-Husseini) had transferred valuable assets to eight transferee defendants, being his family members, companies under their control and a discretionary trust, with the purpose of putting the assets beyond reach of the claimant (Invest Bank) as a potential creditor. The court held that the allegations advanced at trial were of serious wrongdoing amounting to dishonest behaviour or disreputable conduct which accordingly required a clear pleading of a sufficiently cogent case. Invest Bank had not properly pleaded in its particulars of claim the primary facts on which it sought to rely at trial in raising its case based on inference against the defendants. A positive case as to the financial difficulties of one of the key companies was only raised in a reply to the defence of one of the eight defendants. In any event, without expert accountancy evidence as to the state of finances of the key companies the court could not draw any inferences as to Mr El-Husseini’s purpose. The court also declined to draw adverse inferences from Mr El-Husseini’s failure to participate in the proceedings after a failed jurisdiction challenge, and he gave guidance on the law and practice in that regard. Written by Tiffany Scott KC, barrister at Wilberforce Chambers.

Arbitration analysis: In a successful appeal under section 69 of the Arbitration Act 1996 (AA 1996), the Commercial Court overturned a London Maritime Arbitrators Association (LMAA) tribunal's interpretation of a Saleform 2012 ship sale contract. The tribunal had held that the buyer had until midnight in Hawaii, the westernmost relevant US time zone, to complete payment because the contract defined 'Banking Days' by reference to banks being open in a number of jurisdictions, including the US. Paul Stanley KC, sitting as a Deputy High Court Judge, held that the tribunal had erred in law. The definition of 'Banking Days' identified which calendar days counted for the purpose of calculating time but did not determine when a payment obligation expired. Payment was required by midnight in Norway, where the escrow arrangement and payment mechanism were to be performed. The decision provides important guidance on the construction of Saleform payment provisions and the relationship between banking day definitions and time-zone issues.

Arbitration analysis: The Commercial Court refused a state's application to make substantial amendments to an existing challenge under sections 67 and 68 of the Arbitration Act 1996 (AA 1996) to an UNCITRAL investment treaty award. Although the challenge itself had been commenced within the statutory 28-day period, the proposed amendments were advanced more than five months after the award. The court held that the delay carried significant weight under the principles in Kalmneft JSC v Glencore International AG and was not outweighed by the fact that the amendments would not delay the already-listed substantive hearing. The decision provides important guidance on the application of the Arbitration Act’s strict time limits where a party seeks to expand an existing challenge after the statutory period has expired.

Commercial analysis: The Commercial Court dismissed a challenge under section 67 of the Arbitration Act 1996 to an LCIA tribunal’s ruling that it lacked jurisdiction. The claimant sought to enforce a long-term incentive agreement said to have been executed in 2015, but both the tribunal and the court concluded that the agreement had in fact been signed years later and backdated. As a result, the arbitration agreement contained within it was not valid or binding on the respondent company. The decision provides an important illustration of a challenge under section 67 of the Arbitration Act 1996 under the pre-Arbitration Act 2025 regime—which remains a true rehearing. Here the challenge included matters of and the burden of proving the existence of a valid arbitration agreement, and the evidential consequences of credibility findings in disputes involving allegations of document fabrication.

Arbitration analysis: In V and another v K, the Commercial Court (Mr Justice Calver) denied the claimants permission to appeal against an earlier dismissal of their challenges under sections 67 and 68 of the Arbitration Act 1996 (AA 1996) due to procedural deficiencies and a lack of merit. The claimants failed to appeal at the appropriate time (at the hand-down hearing) meaning that the lower court had no jurisdiction to grant leave. They failed to lodge grounds of appeal at the appropriate time (the hand-down hearing). The claimants could have, but did not, seek an adjournment of the hand-down hearing, which would have preserved the jurisdiction of the court to consider the appeal. The appeal was in any event ‘hopeless’. The court awarded indemnity costs against the claimants, emphasising the necessity of adhering to procedural rules and the futility of pursuing unmeritorious challenges. This decision illustrates the substantial financial risks associated with poorly conceived arbitration challenges. Written by Brandon Malone, advocate at Ampersand Advocates.

Dispute Resolution analysis: The Commercial Court has recently handed down an important judgment rejecting jurisdiction challenges by aviation reinsurers relying on Russian exclusive jurisdiction clauses (EJCs). The court held that there were strong reasons for not giving effect to the EJCs the main reason being that it was ‘very unlikely’ that the claimants would obtain a fair trial in Russia. The judgment contains a detailed exposition of the principles applying to stay applications where an EJC is relied upon. The decision demonstrates that the English Courts will not shy from concluding that it is unlikely that a fair trial will not be available in a foreign forum, where the evidence justifies that conclusion. Written by Josephine Higgs KC, 7 King’s Bench Walk, who was part of the legal team that acted for certain of the claimants.

The minutes from the Commercial Court user group meeting held on 12 June 2024 have been published. Topics of discussion at the meeting include statistical updates, the foreign process section, a perspective from the listing office, the launch of a new checklist for on notice paper applications, an update from the Standing International Forum of Commercial Courts (SIFoCC) and a new judge in charge of the Commercial Court from 1 September 2024.

The Commercial Court and London Circuit Commercial Court have published practice guidance promoting increased participation of junior advocates in oral advocacy in hearings. The guidance encourages the involvement of junior counsel in hearings, including trials and major substantive hearings. It states that when assessing costs, the court may consider whether the paying party should bear the cost of advocacy that could have been carried out competently and effectively by a more junior advocate. For advocacy at trial, parties are advised to determine by the time of the pre-trial review, which parts, if any, of the oral advocacy may be conducted by a junior advocate. The guidance aims to support the professional development of junior advocates, while maintaining effective case presentation.

This Practice Note gives guidance on case management of claims which are proceeding in the Commercial Court. It considers information that is specific to proceedings in the Commercial Court and should be read in conjunction with: • other Commercial Court specific content on case management, statements of case and applications—see Practice Notes: Commercial Court—case management conference (CMC), Commercial Court—list of common ground and issues, Statements of case in the Commercial Court, Making an application in the Commercial Courts and The application notice in the Commercial Court—form N244(CC), and Commercial Court—preparing for the first CMC—checklist • non-court specific content on case management generally (where applicable in the Commercial Court)—see: Multi-track—case management—checklist, Court's case management powers—overview and Practice Notes: Multi-track—case management and Case management of civil claims under the CPR • content on the disclosure scheme in the Business and Property Courts under CPR PD 57AD, where this is applicable to the proceedings—see: Disclosure Scheme (Business & Property Courts)—overview • guidance issued from time to time by the Commercial Court on case management and other matters—see Practice Note: Dispute Resolution—judicial

This Practice Note looks at case management conferences (CMCs) in the Commercial Court. The information is specific to proceedings in the Commercial Court. It should be read in conjunction with: • other Commercial Court specific content on case management—see Practice Notes: Commercial Court—case management, Commercial Court—list of common ground and issues, Making an application in the Commercial Courts and The application notice in the Commercial Court—form N244(CC), and Commercial Court—preparing for the first CMC—checklist • non-court specific content on case management generally (where applicable in the Commercial Court)—see: Multi-track—case management—checklist, Court's case management powers—overview and Practice Notes: Multi-track—case management, Multi-track—case management conference (CMC) and Case management—court's powers under CPR 3—Dispute Resolution Fixing the case management conference (CMC) A CMC is mandatory for all cases being heard in the Commercial Court (Commercial Court Guide, paras D2.1(e) and D3.1) (CPR 58.13(3)). It should be fixed to be heard as promptly as possible, while allowing time for the necessary preparatory steps, including the service of any reply (CPR 58.13(3) and Commercial Court Guide, para D3.1). It will be held

This Practice Note explains the requirements in relation to the list of common ground and issues required in the Commercial Court for a case management conference (CMC) pursuant to the Commercial Court Guide, paras D5.1–D5.5. This Practice Note should be read in conjunction with Practice Notes: • Commercial Court—case management • Commercial Court—case management conference (CMC) Purpose of the list of common ground and issues The list of common ground and issues will be used by the parties and the court as a case management tool as the case progresses to determine various matters, including: • the scope of disclosure and the factual and expert evidence (Commercial Court Guide, paras D2.1(c), D5.4 and E1.2) • whether issues should be determined summarily (Commercial Court Guide, paras D5.4 and D7.10) • whether any preliminary issues should be ordered (Commercial Court Guide, paras D5.4 and D7.10). For more information on the Commercial Court ordering a preliminary issue, see Practice Note: Commercial Court—case management—Preliminary issues or split trial It is not designed to supersede the pleadings

This Checklist sets out the matters that should be considered by a solicitor acting for a party in the Commercial Court in England and Wales, in preparation for the first case management conference (CMC) in accordance with the Civil Procedure Rules (CPR) and the Commercial Court Guide. It considers the steps that will or might be required after all statements of case have been served, leading up to the first CMC. This Checklist should be read in conjunction with Practice Notes: • Commercial Court—case management • Commercial Court—case management conference (CMC) • Commercial Court—list of common ground and issues Procedural and strategic considerations Issue/matter Action required Timing Consider whether to apply for a designated judge Apply in writing to the Judge in Charge if appropriate, eg for complex or high-value cases (Commercial Court Guide, paras D1.4–D1.8) When fixing the CMC or promptly thereafter (Commercial Court Guide, para D1.5) Consider suitability for shorter/flexible trials schemes Assess whether the case is suitable for the shorter or flexible trials scheme in CPR PD 57AB to