3VB successful in $530m Financial List dispute

Ali Malek QCDavid Quest QCWilliam Edwards and Ravi Jackson, instructed by Stewarts Law partners Fiona Gillett and Ian Gatt QC, have succeeded in National Bank of Kazakhstan and the Republic of Kazakhstan v The Bank of New York Mellon, Anatolie Stati and others [2020] EWHC 916 (Comm).

The trial, which took place between 26 March and 1 April 2020, was conducted on a fully remote basis, with the judge, counsel, solicitors and witnesses (factual and expert) participating via video link from their respective homes in England, Belgium, Kazakhstan and the United States. It is understood to be the first Financial List trial to be conducted entirely remotely.

On 19 March 2020, Mr Justice Teare rejected an application to adjourn the trial because of the problems caused by COVID-19. He said this:

“The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely. I accept that for various reasons, in particular the geographical location of the expert witnesses, this exercise will have particular challenges. But it seems to me that having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing if at all possible.”

In his judgment delivered today, Mr Justice Teare stated:

“The hearing was conducted without any technical hitch and all parties co-operated to ensure that the hearing took place efficiently and fairly. I am very grateful to the parties, their solicitors and counsel, the witnesses, transcribers, the suppliers of the necessary software and my clerk for enabling a case in the Commercial Court involving international parties and witnesses from several countries to take place notwithstanding the impediments caused by the outbreak of coronavirus.”

The case concerns $530m of cash held by the Bank of New York Mellon in accounts in London in the name of the National Bank of Kazakhstan pursuant to a Global Custody Agreement (“GCA”). Mr Justice Teare granted declaratory relief in favour of the Claimants confirming that it is solely the National Bank of Kazakhstan, and not the Republic of Kazakhstan, which is a contracting party to, and has rights and obligations under, the GCA.

The judgment is available here.