A fully-remote trial the scale and magnitude of PJSC Tatneft v Bogolyubov & Others was a first for all involved. The 12-week trial, in which Fieldfisher’s commercial litigation team successfully defended its client Igor Kolomoisky, was the longest fully remote Commercial Court trial to date.
For lead associate Yuliya Kupchenko, Tatneft was the largest litigation she has worked on, and she describes it as a fantastic opportunity to witness and be part of a great team which included partners Andrew Lafferty and Arik Aslanyan. Kupchenko joined Fieldfisher in 2015, having qualified in 2013 at fraud specialist Bark & Co Solicitors.
She acts for clients in high-value, complex commercial and energy disputes, usually with a cross-border element. Speaking Russian and Ukrainian, in tow with her knowledge of the region and the energy industry meant that Kupchenko was a crucial member of the team coordinating many parts of the complex disclosure exercise on the case.
“Since joining Fieldfisher, I’ve had incredible experience working on several Investor-State arbitrations,” says Kupchenko. “The one that most inspired me is the arbitration brought by Ukrainian investors against the Russian Federation for misappropriation of real estate property in Crimea. These were ground-breaking arbitrations. It was immensely fascinating and challenging debating extremely complex legal concepts of Public International law, Russian law and Ukrainian law.
I have also worked on very interesting cross-border and parallel litigations with proceedings in the BVI, US and Ukraine. This brought its own challenges of carefully coordinating various proceedings to ensure the overall strategy was in line with the client’s objectives.”
Oil giant PSJC Tatneft’s $350m claim was against four defendants – Kolomoisky and fellow Ukranian oligarchs Gennadiy Bogolyubov, Alexander Yaroslavsky and Pavel Ovcharenko. Listed in London and Moscow, Taftnet is controlled by the Tatarstan Republic of Russia, which holds 36 per cent of the issued shares, plus a controlling golden share. The case related to Ukrtatnafta (UTN), a joint venture between the Republic of Tatarstan (part of Russia) and the Ukrainian government. Oil extracted in Tatarstan was sent by pipeline to the UTN refinery in Kremenchug, Ukraine. Tatneft sold the oil via its commission agent, Kompaniya Suvar-Kazan LLC (S-K), with the oil supplied through a chain of intermediary companies and payment made back up the chain to S-K and Tatneft.
S-K entered bankruptcy in June 2015 and, in October 2015, it purported to assign various causes of action to Tatneft. Tatneft brought a claim under Article 1064 of the Russian Civil Code, alleging that the defendants had participated in a scheme to “siphon” oil payments out of the intermediaries through a series of sham transactions, thereby preventing S-K from receiving the monies owed to it from UTN.
Kupchenko was a member of the disclosure, witness statements and trial bundle sub-teams, as well as the core team overseeing the entire case preparation. She explains that she observed how to strike the right balance between carving-up a large case into manageable sections and sub-teams, while maintaining a degree of collaboration between everyone to bring the case together.
“The scale and challenges of the disclosure process was definitely a learning curve. The particularities of the client and other parties, the various formats of the source data and multi-jurisdictional locations, made for the most complex data collection process that I have experienced. I learnt a thousand and one lessons along the way and have even passed some of these on to my colleagues working on other large cases.”
The complex dispute was made more challenging by being highly politicised, given Kolomoisky’s former role as governor of the Dnipropetrovsk Oblast region of Ukraine in 2014-15, and the ongoing fragile nature of relations between Russia and Ukraine.
The toughest part of the court process, however, was the fact that, given the restrictions of international travel and attendance in court, it was conducted entirely remotely. While video-conferencing and electronic bundles are not unique in today’s Covid world, this was not a straightforward trial to host. The judge presided over the case from her home office, and the parties’ counsel and solicitor teams based themselves in a socially distanced fashion separately around London.
“It took a tremendous level of organisation, forward planning and collaboration to overcome the logistical challenges,” begins Kupchenko. “We had the judge, counsel, supporting legal teams, witnesses, experts, interpreters and transcribers all in different locations, not just in UK but also in Kiev, Moscow, Kazan, Paris, Washington DC, and all needing to have the facilities to use the same video conferencing platform, same electronic bundle as well as hard copies. Not to mention Covid tests and quarantines being thrown into the mix. We relied on our good relationships with supporting teams in foreign countries, and good cultural and language skills to ensure that each piece of the jigsaw puzzle came together.”
Kupchenko adds that the most obvious legal technical issue in this case was that, although the proceedings were in the Commercial Court, the governing law was Russian Civil law, and there were also elements of Russian criminal and insolvency law, as well as Ukrainian Civil law. Thanks to her and her team’s language skills, they were able to deal with translation and interpretation of the key elements of the Russian and Ukrainian laws. It was a task that could not have been left to external translators alone.
Tatneft spent some £87m pursuing its claim to trial, including amending its case twice as it aggressively pursued its claims. However, following Tatneft’s oral evidence and as a result of adverse inferences to be drawn from the absence of contemporaneous documents, the judge concluded that not only did Tatneft have the requisite knowledge prior to August 2010 to bring a claim, but so did its agent S-K, at least prior to March 2013. The judge therefore found that Tatneft’s claims were time-barred as a result of the three-year limitation period under Russian law, and that it was not an abuse of rights or contrary to English public policy for the defendants to rely on that time bar. As a result, Tatneft’s claims were dismissed in their entirety.
At the end of Tatneft, Kupchenko was promoted to the position of director. She credits Fieldfisher partners Alexandra Underwood and Tracey Wright, who she worked closely with on a number of Investor-State arbitrations as being “amazing role models.”
She adds: “They are great to work with, never afraid to roll up their sleeves and join the associates working through the night to file a massive submission. I had also worked with Andrew Lafferty on a couple of cases (Investor-State arbitration and a fraud dispute) prior to Tatneft. I particularly enjoyed working with him because he does not micro-manage but provides just the right level of guidance and critique for someone of my level to improve, whilst still allowing the flexibility to develop my own legal style. Of course, I cannot fail to mention Arik Aslanyan – the engine driving our Russia and CIS team – working with him has provided me with fantastic opportunities.”
About Yuliya Kupchenko
2021-present: Director, Fieldfisher
2015-21: Senior associate, Fieldfisher
2013-15: Solicitor, Bark & Co
Who’s Who: the Fieldfisher team
Leading: Andrew Lafferty and Arik Aslanyan
Core team: Disputes partner James Lewis, corporate partner Mikhail Basisty, disputes director Julia Dodds, senior associates Yuliya Kupchenko and Sergey Okoev, associate Natalya Zarakhovtich and solicitor Galina Borshevskaya.