Matthew Hardwick KC success in USD 230 million BTA Bank jurisdiction appeal before ECSC

In an emphatic win for the respondent commodity traders, on 8 October 2026 the Eastern Caribbean Court of Appeal (ECSC) dismissed an appeal by BTA Bank in Joint Stock Company “BTA Bank” v Saduakas Mamesh & 53 Others BVIHCMAP2024/0008, upholding the 2023 decision of the BVI Commercial Court to set aside service on the foreign defendants.

3VB’s Matthew Hardwick KC, instructed by Oliver Clifton of Walkers, acted for Bunge SA and CIS LLC, alongside legal teams from Maples, Conyers and Carey Olsen.

Mr Ablyazov’s alleged central role in the cUSD6bn fraud on BTA Bank (Kazakhstan) is one of political and legal infamy. Mr Ablyazov served as the Chairman of the BTA Bank from 2005 to 2009. In 2009 PWC discovered a USD10bn shortfall in the bank’s books. Criminal and civil actions in Kazakhstan and England followed from 2009 to 2013 (when Mr Ablyazov was arrested in France). However, it was only in 2021 that BTA Bank issued this latest claim in the BVI: seeking USD230m in a 445-page statement of claim against 54 defendants including a number of well-known foreign commodity sellers.

The foreign defendants refuted the Claim in every particular. However the first issue that arose was the basis upon which BTA Bank had obtained permission to serve the foreign defendants in the BVI. BTA Bank had identified 9 BVI Special Purpose Vehicles (“the BVI SPVs”) as “anchor” defendants in the BVI and claimed to be entitled to serve and pursue the foreign defendants as necessary or proper parties to the same.

The foreign defendants cried foul. They adduced evidence that the BVI SPVs were long defunct shell companies, without assets, that had been restored to their respective company registers just 3 days before the Claim had been issued (and struck off again and dissolved thereafter) in an improper attempt to assert jurisdiction against defendants without any connection to the BVI.

Decision of the BVI Commercial Court

At first instance, Wallbank J. agreed. In a judgment highly critical of BTA Bank and its representatives he:

• (J/157) concluded that BTA Bank had “restored and joined the BVI SPVs as Defendants purely to serve as anchor defendants in order to get through the NPP Gateway”;
• (J/213-214) accepted that BTA’s reliance on the BVI SPVs was “no more than an artifice” which companies had been “briefly resurrected” for the “sole purpose of opening the gates of litigation against their real targets”;
• (J/158) found that “BTA failed in it is duty and full and frank disclosure and fair presentation at the Ex Parte Hearing in significant and material ways”; and
• (J/216-227): described BTA’s failures to draw to the Court’s attention the principles set out in the key authorities as “both extremely serious and…inexcusable” and as omissions which “must have been deliberate”.

Decision of the Eastern Caribbean Court of Appeal

In its judgment handed down on 8 October 2026 the ECSC rejected each of BTA Bank’s grounds of appeal on gateway, forum and failure of full and frank disclosure. In particular the ECSC:

• endorsed (at [85]) Wallbank J’s observation that “the entire rationale for the restrictive manner in which the gateways are to be utilised, is in fact to limit the use of the court’s extra territorial jurisdiction to genuine cases where foreign defendants are necessary or proper parties to support proceedings in this jurisdiction”;
• approved (at [86]) Wallbank J’s findings as to the absence of the requisite “utility” in proceedings against the BVI SPVs; and
• expressed the view (at [103]) that the failure of full and frank disclosure was “not a difficult issue to determine” in view of BTA Bank’s “inexcusable” failures, at the original ex parte application, to bring to the attention of Wallbank J. the leading authorities, together with other “deliberate” “misrepresentations and omissions” ([106]-[107]).

The judgment provides importance guidance as to the application of the necessary or proper party gateway in complex, multi-party litigation. The central message is clear: even in an alleged high-value international conspiracy, the fact of proceedings against domestic companies is not enough to found jurisdiction against other deep-pocketed foreign defendants – and even if the alternative requires a multiplicity of actions in different jurisdictions. The judgment can be found here.