Professional practice

David Davies is an experienced junior who has been described in the legal directories as “a remarkable combination of a Rolls Royce technical lawyer, soft people skills and judgment far beyond his call” a “man of real talent and real insight”, “a brilliant practitioner” and a “very impressive junior, who inspires confidence” He is commonly retained as the “senior junior” on the largest and most complex cases, both in Court and in arbitration, and has considerable experience of Commercial Court trial work including the 24-week Fiona Trust trial, the recent 9-week Bank Trust trial and several shorter trials. He also handles many cases as sole counsel and is “Impressive in court and not afraid to take people on” and a “strong and confident advocate”.

David has more than 14 years’ experience of major commercial litigation in such diverse areas as international arbitration (typically LCIA, ICC, LMAA and UNCITRAL and frequently for or against states or state-owned companies), proceedings in the Commercial Court under the Arbitration Act 1996, banking litigation, offshore engineering, shipping and insurance. He has for example acted in long-running litigation arising out of the privatisation of the railways of Kenya and Uganda, represented a European state in a dispute in relation to satellite surveillance services, a German bank in its claims arising out of a major fraud to sell non-existent tickets to the Beijing Olympics, a state oil and gas company in relation to a subsea drilling project in the Caribbean, Swiss energy trader Mercuria in expedited proceedings against Citibank and the Government of Kazakhstan in a Commercial Court jurisdictional dispute. As many of David’s cases involve allegations of fraud, he has extensive experience of worldwide freezing orders and challenges to such orders including defending the large-scale challenges to the WFOs in the Bank Trust and Tatneft cases (National Bank Trust v. Yurov [2016] EWHC 1913 (Comm) and PJSC Tatneft v. Bogolyubov [2017] EWCA Civ 1581) and contempt proceedings in relation to breaches of freezing orders (PJSC VAB v. Maksimov [2014] EWHC 3771 (Comm)).

Many of David’s cases involve Russia or the former CIS states and he is “often to be seen handling complex, multi-jurisdictional oligarch related work”. He has acted in many of the major Russian disputes before the English courts in the last decade such as:

  • The Fiona Trust litigation (US$800 million fraud claim arising out of the alleged bribery of senior officials at Russian state-owned shipping companies);
  • VTB v. Nutritek: (US$200 million banking fraud claim giving rise to issues of jurisdiction over international torts and piercing the corporate veil);
  • Yukos v. The Russian Federation (enforcement of a US$50 billion arbitration award against the Russian state);
  • Tatneft v. Bogolyubov (US$300 million fraud claim against prominent Ukrainian “oligarchs” governed by Russian law);
  • Bank Trust v. Yurov (US$1 billion claim relating to the collapse of a Russian retail bank and the use of offshore structures to manipulate its accounts);
  • Rusal v. Crispian (expedited Commercial Court trial of a dispute between the shareholders of Norilsk Nickel relating to Roman Abramovich’s disputed entitlement to sell shares worth apprx. US$1.9 billion).

In addition, David has acted in various confidential arbitrations involving Russian parties (typically LCIA shareholders’ disputes involving allegations of asset-stripping or other misconduct). Several of these cases involved the application of Russian law and David has extensive experience in working with foreign law experts and, for example, handled the Russian law expert cross-examination and advocacy in the Bank Trust trial.

 

What others say

David has been recommended in the legal directories for many years. Client comments from Chambers & Partners and the Legal 500 include the following: “a rising star whose sound judgment belies his years at the Bar”; “a calm, assured junior who shows good judgment and legal analysis”; “he has already developed a broad-based commercial practice and recently impressed many people with his work on the Fiona Trust litigation”; “very popular with clients” and gives “very commercial advice”; a “top pick” who has “remained particularly busy of late advising on large-scale fraud litigation”; “produces excellent work” and is “a compelling advocate”; “very strong academically”, and has “a very good manner with both instructing solicitors and clients”; “A very talented junior, who is an excellent technical lawyer with sound judgment. His presentation skills are also very good.”; “He puts his point across in a measured and compelling manner”; “A sought-after junior with wide-ranging commercial experience in both litigation and arbitration”; “One of the first choices on the team sheet for a substantial case”; “Very detail-oriented and able to analyse a large amount of information quickly and efficiently”; “One of the first choices for a fraud case. He is technically very good and shows excellent judgement”; “Close to the perfect junior”; “Excellent. He has terrific attention to detail and the ability to present the most difficult of cases.”; “He’s got his head screwed on, is good on the substance and has good judgement.”; “A well-regarded junior counsel who is extremely active in serious fraud trials and interim proceedings. He is strong on jurisdictional issues”; “Bright, thorough, pleasant and well thought of at the Bar.”; “He’s very hard-working and excellent at legal research.” ‘Shows fine judgement and excellent legal analysis.’; ‘A very strong junior with excellent drafting skills in the presentation of submissions.’; “He is a tremendous lawyer who shows good judgement and is easy to work with. He remains calm under pressure.”; “Fabulously user-friendly and very clever, he turns things around extraordinarily quickly.”; “Shows fine judgement and provides excellent legal analysis.”; “Bright, thorough, pleasant and well thought of at the Bar.” “He’s very hard-working and excellent at legal research.”; “He’s got his head screwed on, is good on the substance and has good judgement.”; “A brilliant practitioner”; ‘A very impressive junior, who inspires confidence.’; “Very bright and sensible, he’s someone who comes up with lots of ideas.” “He is held in high regard.”; “Calm and measured. He shows very good judgement and his analysis is first-class.” “Impressive in court and not afraid to take people on.”

Comments from the current editions of the directories include the following: “He is a fantastic junior”; “He has a very good legal mind, is confident in his advice and advocacy, and has excellent judgement”; “A high-calibre senior junior for fraud cases”; “His written work is excellent and he gets on top of the facts very quickly”; “Thorough and confident in his advice on his feet”; “He has great judgement and is fantastic to dealt with”; “A strong and confident advocate who excels in providing clear, sensible and commercial advice”.  

Examples of Recent Cases

Examples of cases in the last two years include:

  • Bank Trust v. Yurov and others: a US1 billion damages claim by Bank Trust against its former majority owners and supervisory board directors tried by the Commercial Court over 9 weeks in late 2018. David acts for the claimant bank, who successfully resisted a major challenge to the US$800 million worldwide freezing order in 2016 (see National Bank Trust v. Yurov [2016] EWHC 1913 (Comm)). The case involves an alleged scheme to manipulate the bank’s accounts through related-party lending including to Cypriot entities held via complex offshore structures. As the “senior junior” to the claimant, David was responsible for important areas of the trial advocacy including the cross-examination of the defendants’ Russian law expert (in relation to such matters as directors’ duties under the Russian Joint Stock Companies Law and the interplay between civil and employment claims under Russian law).
  • PJSC Tatneft v. Bogolyubov and others: This piece of heavyweight Commercial Court fraud litigation is scheduled to be tried over 12 weeks in late 2020 and concerns the alleged fraudulent diversion of monies owed to Tatneft for oil supplied to a Ukrainian refinery. Tatneft successfully defended a major challenge to the WFO and the claim following a three-day hearing in the Court of Appeal (PJSC Tatneft v. Bogolyubov [2017] EWCA Civ 1581). The claim is governed by Russian law and gives rise to numerous issues as to the scope of Article 1064 of the Russian Civil Code. David is led by Lord Goldsmith QC and Paul McGrath QC.
  • Instructed by Freshfields in a major arbitration for a state-owned gas company in a dispute with a downstream customer involving the disputed extension of a long-term gas supply agreement and issues relating to force majeure. 
  • Apache Beryl v. Marathon Oil UK: Led by David Foxton QC in these expedited Commercial Court proceedings concerned with a private equity investment in North Sea oil and gas infrastructure. The case gave rise to issues of interpretation of the joint operating agreement between the existing stakeholders and the ability of the proposed investment vehicle to withstand system shutdowns or catastrophic events. Settled immediately prior to trial. See “Legal Issues Concerning Private Equity Investment in Jointly Owned North Sea Midstream Infrastructure”, Foxton & Davies, International Energy Law Review, Issue 5, 2018 at p. 155.
  • United Company Rusal v. Crispian: A major shareholders’ dispute involving companies associated with three of Russia’s most prominent businessmen: Oleg Deripaska, Roman Abramovich and Vladimir Potanin. The dispute concerns the shareholders agreement between the three major shareholders in Norilsk Nickel, one of Russia’s most valuable mining companies and in particular Mr Abramovich’s disputed entitlement to sell his shares, worth apprx. $1.9 billion, to the existing shareholders (see [2018] EWHC 2415 (Comm)). An appeal to the Court of Appeal is pending. Led by Lord Goldmsith QC and Daniel Toledano QC.
  • Willmont v. Elm International Ltd: A claim by the trustees in bankruptcy of a Russian businessman in relation to the disputed ownership of a residential property in Highgate valued at £40 million and registered in the name of an offshore company whose shares were held by a Liechtenstein foundation. A proprietary injunction was obtained over the property on the basis of a claim that it was beneficially owned by the defendant and his interest had vested in the bankruptcy estate. The injunction was later expanded to encompass other offshore assets whose ownership was disputed.
  • Confidential LCIA arbitrations in relation to (i) a Russian shareholders’ dispute; and (ii) a series of commodity-based “repo” deals between a trading company and a London Bank.
Arbitration & related court applications

This is one of David’s principal practice areas. He regularly acts in all types of international arbitrations under the rules of the ICC, LCIA, UNCITRAL and the LMAA. Such work has encompassed a broad spectrum of subject matter including defence procurement, oil & gas, offshore engineering and construction, commodities and major shareholders’ disputes. Many cases have involved either states or state-owned companies. David also has substantial experience of applications to the Commercial Court under the Arbitration Act, particularly under sections 44, 67, 68 and 69, and also enforcement of arbitration awards in England & Wales under the New York Convention. In particular, he has substantial recent experience in relation to the enforcement of arbitral awards against states and issues of sovereign immunity.

Significant cases include:

– Hulley & ors v. The Russian Federation: instructed with David Foxton Q.C. and Paul McGrath Q.C. to represent the Claimants, the former majority shareholders of the Yukos oil company, in the English enforcement action in respect of the US$50 billion arbitration awards obtained by the Claimants against the Russian Federation (the largest arbitration awards ever issued). The case raises numerous issues relating to the enforcement of arbitral awards against sovereign states, including immunity under the State Immunity Act 1978 and the interaction between English proceedings and proceedings in the curial court (Holland). One of The Lawyer Magazine’s top 20 cases of 2016. As a result of his participation in this case, David is very familiar with the Energy Charter Treaty and the jurisdictional issues arising thereunder.

– Republic of Iran v United States, Iran-US Claims Tribunal, the Hague: Proceedings by Iran claiming damages for breach by the United States of paragraph 9 of the Algiers Accords 1981, which ended the Tehran hostage crisis. Approximately 100 individual claims by Iran in respect of Iranian property which it is alleged that United States should have arranged to have transferred to Iran following the entry into the Accords. The claims are being heard by a distinguished international tribunal comprised of Hans van Houtte, Professor Herbert Kronke, Professor Bruno Simma, Charles Brower, Thomas Johnson, Rosemary Barkett, Mir Abedian, Professor Hamid Nikbakht and Dr Seyed Seifi. David was part of the counsel team led by Sam Wordsworth Q.C. that conducted the “general issues” hearing and the first two batches of individual claims (including claims in relation to cultural and artistic items). David was responsible for cross-examination of the United States’ expert accountant and oral advocacy in relation to a number of individual claims.

– Claimants v. State Oil Company: US$700 million claim for wrongful repudiation of major offshore contracts with a well-known state oil company involving issues of force majeure, frustration and the interpretation of the domestic law of the relevant state. David represented, as sole counsel, one of the co-claimants (the other parties were represented by Jonathan Hirst Q.C. and Steven Gee Q.C.). An award deciding liability in favour of the claimants was obtained after a three-week hearing in the summer of 2013.

– LCIA Shareholders Dispute: Litigation between a prominent Ukrainian businessman and businesses associated with a well-known “oligarch” in relation to the US$1 billion sale of a number of companies and involving allegations of the misappropriation of hundreds of millions of dollars of corporate funds through related party transactions.

– ICC Commodities Arbitration: Sole counsel for the respondent in London arbitration concerned with gold trading and quantification of damages for breach of a major supply contract and involving extensive cross-examination of the claimant’s witnesses.

– Claimant v. State Oil and Gas Company: Instructed by Freshfields, London in a major ICC arbitration arising out of a failed offshore drilling project in the Caribbean involving claims of approximately US$80 million. Three-week hearing in the summer of 2012 considering wide-ranging factual and expert issues including technical evidence in relation to “horizontal directional drilling”, metal fatigue and project management. The case also involved complex issues as to the interpretation of indemnity or “knock-for-knock” clauses in offshore contracts. Led by Claire Blanchard Q.C.

– Dowans Holding SA v. Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm). Commercial Court proceedings relating to the enforcement of a US$65 million ICC award against the national power company of Tanzania giving rise to issues as to the relationship between challenges to the award in the curial courts and enforcement in England & Wales and the question of security pending enforcement under s. 103(5) of the 1996 Act.

– Claimant v. European State: Led by Graham Dunning Q.C. in €60 million ICC proceedings concerning military contract for the supply of satellite surveillance services involving questions of authorisation of the relevant governmental officials to sign the contract and validity of the contract as a matter of both English law and the relevant state’s domestic law.

– Sheltam Rail Company (Proprietary) Ltd v. Mirambo Holdings Ltd: Led by David Mildon Q.C. in long-running LCIA proceedings between members of the consortium who had won the tender to run the newly privatised railways of Kenya and Uganda. David’s clients, Mirambo and Primefuels, successfully established that they had not been validly excluded from the Consortium and, at a second stage of the dispute, that they were entitled to an order for specific performance in relation to the production of a new shareholders’ agreement allowing them to participate in the running of the railways. See Sheltam Rail Company (Proprietary) Ltd v. Mirambo Holdings Ltd [2008] 2 Lloyd’s Rep 195 for Commercial Court proceedings relating to Sheltam’s unsuccessful attempt to challenge the second award.

Banking & financial services

David has substantial experience of banking litigation including, in particular, claims involving allegations of fraud by or against banks and in relation to the impact of fraud by third parties on complex banking agreements. Major cases include:

– National Bank Trust v. Yurov & ors: representing the claimant bank in on-going proceedings in the Commercial Court. The bank claims approximately US$830 million from its former majority shareholders on the basis of allegations of undeclared beneficial interests in offshore companies with which the bank entered into a large number of loans and other transactions.

– Mercuria Energy Trading v. Citibank: instructed by Stephenson Harwood to represent Mercuria in expedited Commercial Court proceedings concerning so-called “obligated repo” transactions and defending a US$ 270 million counterclaim brought against Mercuria by Citibank. The proceedings relate to a major alleged metals fraud at the Chinese ports of Qingdao and Penglai and the impact of such apparent fraud on “repo” transactions between Mercuria and Citibank involving the sale and repurchase of large quantities of metal supposed to be stored in warehouses at the ports. Led by Graham Dunning Q.C. in a six-day trial in December 2014 considering the interaction between the relevant agreements, the Sale of Goods Act and the English law of personal property and bailment. See: Mercuria Energy Trading Pte Ltd v. Citibank NA [2015] EWHC 1481 (Comm). The case is due to be considered by the Court of Appeal in 2017.

– VTB Capital Plc v. Nutritek International Corp [2012] 2 Lloyd’s Rep 313: Acting in the Court of Appeal for the claimant bank in its US$200 million claims relating to substantial lending said to have been induced by fraudulent misrepresentations. The appeal considered issues relation to jurisdiction over international deceit claims and whether a third party who was said to have orchestrated the alleged fraud could be bound by the jurisdiction clause in the loan agreement.

– Al Khorafi v. Bank Sarasin-Alpen (ME) Ltd (DIFC): Involved at the jurisdictional stage before the Court of Appeal of the Dubai International Finance Centre in relation to this multi-million dollar claim against a Swiss bank for the alleged mis-selling of complex financial products. The case involved issues as to the interpretation of DIFC regulatory law and claims against the defendant bank in both contract and tort. The claimants successfully established that the DIFC Courts had jurisdiction over the claims against the second defendant, a Swiss legal entity.

Sea Emerald v. Prominvestbank [2008] EWHC 1979 (Comm): Led by David Foxton Q.C. in multi-million dollar Commercial Court proceedings relating to a refund guarantee issued by Ukrainian bank in connection with a shipbuilding project. The case involved issues relating to the actual and ostensible authority of the bank official who had signed the guarantee and the impact of variations of the underlying contract on the bank’s liability under the guarantee.

Civil fraud & asset tracing

David has extensive experience of major fraud litigation and has been instructed on a number of recent high-profile fraud matters. He has experience of such litigation on the largest scale, having been part of the team representing the principal defendant in the well-known Fiona Trust litigation. A 24-week trial before Andrew Smith J was completed in March 2010 (Fiona Trust & Holdings Corp v. Yuri Privalov [2010] EWHC 3199 (Comm)). This claim, which was for a sum in excess of US$800 million, revolved around the alleged corruption of the former Director General and President of the two largest Russian state-owned shipping companies. It involved allegations of fraud and bribery spanning a 4-year period and giving rise to complex choice of law issues. As a result of his participation in this trial, David has considerable knowledge of the English law of secret commissions and bribery (and has given a number of talks on this topic to City law firms).

David also has considerable experience of applications for freezing and search orders together with other types of interlocutory relief. A notable example is Jenington International Inc v. Kanat Assaubayev, a worldwide freezing injunction for US$500 million in the Chancery Division along with permission to enforce that injunction outside the jurisdiction in accordance with the Dadourian guidelines, Norwich Pharmacal disclosure orders and search orders in respect of 3 premises in London. David was also instructed in numerous consequential hearings arising out of this injunction, including a successful application to cross-examine certain of the defendants in relation to their asset disclosure (Jenington International Inc v. Kanat Assaubayev [2010] EWHC 2351 (Ch)). He is presently involved in a Russian banking case in which a US$830 million worldwide freezing order was obtained against the defendants (and conducted the advocacy at the return date).

He has also recently been in major disputed contempt proceedings, representing Mr Sergei Maksimov, the former President and majority shareholder of VAB Bank, formerly a leading Ukrainian bank, in contempt proceedings relating to worldwide freezing orders and allegations of non-disclosure and dealing with assets in breach of the orders. Representation of Mr Maksimov at interlocutory hearings and, as sole counsel, at a 4-day Commercial Court contempt trial in October 2014 at which the main allegations against Mr Maksimov were dismissed and the claimant was ordered to pay 80% of his costs (PJSC VAB v. Sergei Maksimov [2014] EWHC 3771 (Comm) (liability for contempt); [2014] EWHC 4370 (Comm) (costs)).

Other major fraud cases include:

– National Bank Trust v. Yurov & ors: representing the claimant bank in on-going proceedings in the Commercial Court. The bank claims approximately US$830 million from its former majority shareholders on the basis of allegations of undeclared beneficial interests in offshore companies with which the bank entered into a large number of loans and other transactions.

– VTB Capital Plc v. Nutritek International Corp [2012] 2 Lloyd’s Rep 313: Acting in the Court of Appeal for the claimant bank in its US$200 million claims relating to substantial lending said to have been induced by fraudulent misrepresentations. The appeal considered issues relation to jurisdiction over international deceit claims and whether a third party who was said to have orchestrated the alleged fraud could be bound by the jurisdiction clause in the loan agreement.

– Latmar Holdings Corp v. Media Focus [2012] EWHC 262 (Comm) (Eder J); [2013] EWCA 4 (Court of Appeal): Commercial Court fraud proceedings relating to alleged sham consultancy agreements in connection with vessel newbuilding projects in the Far East. The Claimants obtained worldwide freezing orders against a large number of defendants said to have been involved in the fraud and the disposal of the proceeds and successfully defended a jurisdictional challenge by certain defendants. Led by Paul McGrath Q.C.

– Dalemont v Senatorov: advising in relation to fraud proceedings in the Royal Court of Jersey seeking to enforce Russian judgments against a Jersey “foundation” established by the judgment creditor. Issues relating to whether the doctrine of piercing the corporate veil applied to the foundation and the applicability of the “Pauline action” under Jersey law. The case settled on the first day of trial.

– Cadogan Petroleum Plc v. Mark Tolley [2011] EWHC 2286 (Ch): Led by Richard Millett Q.C. in Chancery Division proceedings relating to alleged bribery of senior executives of a British company operating in the oil and gas market in the Ukraine. Successfully obtained the discharge of the propriety element of a freezing injunction on the basis of the decision of the Court of Appeal in Sinclair v. Versailles.

– Hanco ATM Systems v. Cashbox ATM Systems [2007] EWHC 1599 (Ch): Led by Andrew Hochhauser Q.C. in relation to summary judgment application against senior employee for breach of fiduciary duty and dishonest assistance and involving issues as to the doctrine of “preparatory steps”.

Commercial chancery disputes

David’s general commercial and fraud practice has often involved conducting litigation in the Chancery Division. Examples of major Chancery Division cases are Hanco ATM Systems v. Cashbox ATM Systems [2007] EWHC 1599 (Ch); Jenington International Inc v. Kanat Assaubayev [2010] EWHC 2351 (Ch); and Cadogan Petroleum Plc v. Mark Tolley [2011] EWHC 2286 (Ch).  More details of these cases are given in the Commercial Dispute Resolution and Civil Fraud section above. David was also instructed on behalf of the Petitioners (led by Martin Griffiths Q.C.) in a major unfair prejudice petition involving a dispute between the shareholders in one of England’s leading house builders and giving rise to questions relating to valuation of the minority shareholder’s shares and pro rata vs. discounted valuation in the context of an alleged “quasi-partnership” company (the case settled on the first day of trial).

Commercial dispute resolution

David has 12 years’ experience in major commercial litigation in the Commercial Court, Chancery Division, Queen’s Bench Division and the Court of Appeal. This includes extensive experience of injunctions and other interim relief (often on an urgent basis), major interlocutory applications and trials. Many general commercial cases have also been conducted in confidential arbitration proceedings (see Arbitration section above). He is at home acting with a leader or as sole counsel and has often appeared against silks, both in court and in arbitration.

Injunctive and interim relief experience includes numerous freezing orders and contested applications to set aside freezing orders, search orders, Norwich Pharmacal and other interim disclosure orders, anti-suit injunctions and injunctions restraining threatened breaches of contract and the disclosure of confidential information.

A notable example of freezing order work is Jenington International Inc v. Kanat Assaubayev, a worldwide freezing injunction for US$500 million in the Chancery Division along with permission to enforce that injunction outside the jurisdiction in accordance with the Dadourian guidelines, Norwich Pharmacal disclosure orders and search orders in respect of 3 premises in London. David was also instructed in numerous consequential hearings arising out of this injunction, including a successful application to cross-examine certain of the defendants in relation to their asset disclosure (Jenington International Inc v. Kanat Assaubayev [2010] EWHC 2351 (Ch)). He is presently involved in a Russian banking case in which a US$830 million worldwide freezing order was obtained against the defendants (and conducted the advocacy at the return date).

Representative examples of other injunctive work include: (i) an injunction against partners of a major international accountancy practice pending the resolution of claims in LCIA arbitration; (ii) an injunction against a company director accused of dealing with advanced “gasification” technology belonging to the claimant in breach of contractual and his fiduciary duties; (iii) advising a major US investment bank on claims against former employees and a rival bank for alleged copying of complex financial products; and (iv) being instructed by the Los Angeles and London offices of a major US law frim on behalf of a technology investment fund to seek urgent injunctive relief against an employee and consultant suspected of establishing a rival investment firm in breach of their contractual and fiduciary duties.

Major interlocutory hearings include jurisdictional disputes, numerous hearings relating to arbitration awards and their enforcement (see Arbitration section above), summary judgments, disclosure applications and other procedural applications. See Erdenet Mining Corp v. Kazakhstan, LTL 4/2/2016; PJSC VAB v. Sergei Maksimov [2014] EWHC 3771 (Comm) (liability for contempt); [2014] EWHC 4370 (Comm) (costs); Carl A Sax v. Lev Tchernoy [2014] EWHC 796 (Comm); VTB Capital Plc v. Nutritek International Corp [2012] 2 Lloyd’s Rep 313 (Court of Appeal); Latmar Holdings Corp v. Media Focus [2012] EWHC 262 (Comm) (Eder J); [2013] EWCA 4 (Court of Appeal); Cadogan Petroleum Plc v. Mark Tolley [2011] EWHC 2286 (Ch); Hanco ATM Systems v. Cashbox ATM Systems [2007] EWHC 1599 (Ch).

David has also been involved in several high profile trials which have fought to their conclusion (in addition to numerous substantive arbitration hearings):

– Mercuria Energy Trading v. Citibank: Led by Graham Dunning Q.C. in six-day expedited Commercial Court trial concerning so-called “obligated repo” transactions and defending a US$ 270 million counterclaim brought against Mercuria by Citibank. The proceedings relate to a major alleged metals fraud at the Chinese ports of Qingdao and Penglai and the impact of such apparent fraud on “repo” transactions between Mercuria and Citibank involving the sale and repurchase of large quantities of metal supposed to be stored in warehouses at the ports. See: Mercuria Energy Trading Pte Ltd v. Citibank NA [2015] EWHC 1481 (Comm). The case is due to be considered by the Court of Appeal in 2017.

– Fiona Trust & Holding Corp v. Yuri Privalov [2010] EWHC 3199 (Comm): Led by Steven Berry Q.C. in 24-week Commercial Court trial involving 51 days of factual evidence and 10 days of expert evidence and resulting in a 421 page judgment. Defending claims for a sum in excess of US$800 million, revolving around the alleged corruption of the former Director General and President of the two largest Russian state-owned shipping companies and involving allegations of fraud and bribery spanning a 4-year period and giving rise to complex choice of law issues.

– Wirecard Bank AG v. Scott & others: Led by Anthony Trace Q.C. in Queen’s Bench Division trial concerned with a multi-million pound fraudulent scheme to sell non-existent tickets to the Beijing Olympics in 2008. Instructed by the German bank that had suffered substantial losses through “chargebacks” through international credit card payment processing arrangements (later re-tried following illness of the original trial judge: [2010] EWHC 451 (QB)).

Sea Emerald v. Prominvestbank [2008] EWHC 1979 (Comm): Led by David Foxton Q.C. in multi-million dollar Commercial Court trial relating to a refund guarantee issued by Ukrainian bank in connection with a shipbuilding project. The case involved issues relating to the actual and ostensible authority of the bank official who had signed the guarantee and the impact of variations of the underlying contract on the bank’s liability under the guarantee.

Conflict of laws & private international law

David has extensive experience of jurisdictional and choice of law issues under both the common law and European regimes. He has been instructed in several jurisdictional disputes raising issues relation to satisfaction of the criteria for permission to serve out of the jurisdiction and forum conveniens. Further, as part of his general commercial and fraud practice, he has been engaged in many cases involving disputed questions as to the law applicable to contractual, tortious and unjust enrichment claims. David also has substantial experience dealing with the substance of foreign law, including Russian law and the law of various other former CIS states along with other legal systems such as Venezuela, Switzerland, China and Serbia.

Significant private international law cases include: Erdenet Mining Corp v. Kazakhstan, LTL 4/2/2016; VTB Capital Plc v. Nutritek International Corp [2012] 2 Lloyd’s Rep 313 (Court of Appeal); Latmar Holdings Corp v. Media Focus [2012] EWHC 262 (Comm) (Eder J); [2013] EWCA 4 (Court of Appeal); Fiona Trust & Holding Corp v. Yuri Privalov [2010] EWHC 3199 (Comm); Sax v. Lev Tchernoy [2014] EWHC 796 (Comm).

Further, the confidential arbitration proceedings in which David has been involved have frequently given rise to foreign law issues and disputes in relation to the interaction between the law of the contract and the law of a foreign state (e.g. in the context of capacity, authority, illegality or force majeure).

Employment

David has been instructed on several High Court employment cases raising issues such as breach of fiduciary duty by directors and senior executives and the alleged misuse of confidential information. His injunctive work (described in more detail the Commercial Dispute Resolution section above) has often involved the area overlap between employment law and commercial law and he has been led by leading employment practitioners such as Andrew Hochhauser Q.C., Martin Griffiths Q.C. and Charles Ciumei Q.C.

Energy & natural resources

Many of David’s cases relate to the energy sector and in particular he has considerable experience of litigating for and against state oil and gas companies, typically in confidential arbitration proceedings (see the Arbitration section above for more details). He also has substantial experience of cases relating to the gold mining industry: see e.g. Jenington International Inc v. Kanat Assaubayev [2010] EWHC 2351 (Ch) referred to above, a major fraud case relating to the gold mining industry in Kazakhstan involving allegations of fraudulent statements in relation to production and infrastructure works at the mining sites.

Insurance & reinsurance

David has a substantial insurance practice with experience of Lloyd’s market related claims including broker’s negligence, claims against members’ agents and political risk insurance. He has also advised on a range of non-Lloyd’s insurance matters including liability insurance policies governed by both English and New York Law. David also has also acted on several marine insurance cases, typically involving actual or constructive total losses.

Significant cases include:

  • Lexington Insurance Company v. Multinacional de Seguros S.A. [2008] EWHC 1170 (Comm). Led by Mark Templeman Q.C. in trial of preliminary issues in the Commercial Court relating to the reinsurance in the Lloyd’s market of certain Venezuelan risks involving issues of waiver and Venezuelan law.
  • Pharmaceutical Company v. Insurers: Confidential arbitration proceedings relating to liability insurance and its application to US pharmaceutical risks (policy governed by New York Law) giving rise to issues as to the scope of cover/exclusion clauses.
  • National Gas Company of Trinidad and Tobago Limited v. Colfire Fire and General Insurance Co Ltd: led by Claire Blanchard Q.C. for the claimant state gas company in US$60 million Commercial Court proceedings relating to the insurance of an offshore drilling project on “WELCAR” terms and giving rise to numerous issues of policy interpretation, estoppel and the reasons for the project’s failure.
Public international law

David has substantial experience of areas where public international law overlaps and interacts with commercial law. This includes inter-state litigation in relation to commercial contracts, the interpretation of treaties and state immunity under the State Immunity Act 1978, particularly in the context of enforcement of arbitration awards against states. Such work has involved acting in conjunction with public international law specialists and academics.

David represented the state of Iran in major international litigation against the Federal Government of the United States in the Hague involving complex issues of treaty interpretation (see International Arbitration section above).

Shipping & admiralty

Aside from shipping-related cases in the Commercial Court, David has acted in numerous LMAA arbitrations, both with and without a leader. These have included major shipbuilding arbitrations, cases concerned with offshore construction projects and numerous time charter cases (typically NYPE or Shelltime) and often involving tankers and technical issues relating to their operation. David has substantial experience of cross-examination of technical experts. Further, as part of his fraud practice, David has often been instructed on cases involving alleged fraud in the maritime sector, most notably the major Fiona Trust litigation referred to in the Civil Fraud and Commercial Litigation sections above.

Significant shipping cases include:

– LMAA Arbitration against leading shipyard: Part of a large counsel team led by Bernard Eder QC and including specialists from a leading construction law set acting for one of the world’s largest ship-owning companies against a major Far Eastern shipyard in relation to the construction of two large ultra-harsh environment drilling rigs. Claims for sums in excess of US$500 million for misrepresentation and in relation to delay and disruption in the construction of the rigs and the incorporation of buyer designed equipment.

– STX Pan Ocean Co Ltd v. Ugland Bulk Transport AS (The “Livanita”) [2008] 1 Lloyd’s Rep 86: Sole counsel on an appeal to the Commercial Court under s. 69 of the Arbitration Act 1996 from an LMAA award giving rise to issues as to the applicability of a safe port warranty to a specifically identified port in the charterparty.

– LMAA Arbitration: Led by Graham Dunning Q.C. in multi-million dollar LMAA proceedings relating to an option to charter a specialist offshore construction/pipe-laying vessel for works on a major offshore project in Asia and the disputed exercise of that option by charterers.

– The Fiona Trust litigation: See Civil Fraud and Commercial Litigation sections above. Described by The Times as “the shipping trial of the century” and involving a wide-ranging examination of a series of major transactions entered into by Sovcomflot and Novoship over a 4-year period including the sale and leaseback of vessels, newbuilding projects, commission arrangements, debt re-financing and time chartering of vessels at allegedly below-market rates. The 76-day trial involved 51 days of factual evidence and 10 days of expert evidence including detailed expert evidence on chartering, ship-finance and vessel values.

– LMAA Arbitration against major state oil company: See International Arbitration section above. Acted for one of the Claimants in a US$700 million claim for wrongful repudiation of three long-term charters on a modified Supplytime 2005 form relating to offshore construction works carried out by a state oil company. Issues involving liability for repudiatory breach of charter, interpretation of charterparty force majeure provisions and quantification of losses for repudiatory breach.

– LMAA Arbitrations as sole counsel: Two recent LMAA arbitrations as sole counsel concerning the time chartering of oil tankers and issues relating to tank cleaning, vessel condition, speed and performance, the operation of off-hire clauses and repudiatory breach. Cross-examination of various factual and expert witnesses.

Recent instructions include acting as sole counsel in an LCIA arbitration in relation to a cancelled bareboat charter, an LMAA arbitration concerning the operation of a tanker in Russian waters and an LMAA arbitration against an oil major in relation to a cancelled voyage charter.

 

Career

Pupilage at Essex Court Chambers between October 2003 and September 2004

Called to the bar by Gray’s Inn in 2004

Tenant of Essex Court Chambers from October 2004

Registered as a Pupil Supervisor in 2013

Called to the bar in the  British Virgin Islands in 2015

Education

2001-2002 Jesus College, Oxford University Bachelor of Civil Law, distinction

1998-2001 Jesus College, Oxford University MA in Jurisprudence, double first class honours

Awards

2003    Atkin Scholar of Gray’s Inn

2002    Sankey Scholar, Jesus College, Oxford University

2002    Bedingfield Scholar of Gray’s Inn

2002    Winner of Oxford Law Society Mooting Competition

2001    Awarded postgraduate study funding by the Arts and Humanities Research Board

2000   Wellson Prize for best performance by a college law student, Jesus College, Oxford University

1999   Awarded Meyricke Scholarship, Jesus College, Oxford University