Recent notable cases –2010

Tamil Nadu Electricity Board (TNEB)

July 2010 – Zaiwalla & Co successfully defended the Indian state-owned TNEB in a £170 million pound claim against it brought by the Claimant, an Indian company with an American stake holding. The dispute revolved round a Power Purchase Agreement, specifically the Actual Capital Cost, used in calculating the tariff of the energy sold to TNEB by the Claimant. The Tribunal accepted TNEB’s arguments and ordered the Claimant to remit to TNEB, the excess monies held by it on account of Capital Costs.  The opponent solicitors were Freshfields and Amarchand Mangaldas.

Indian Oil Corporation

Zaiwalla & Co has been successful in a recent decision in the Arbitration Tribunal of the International Court of Arbitration of the International Chamber of Commerce (ICC) Paris in the form of a final Award dismissing a claim of USD 10 million against their client, an Indian Government owned company, and has awarded the other side to pay GBP 310,000 for its legal costs. The ICC Final Award was published in 2010. Opponent solicitors were Reed Smith.

Global Steel Holdings Limited v Gulf Pacific Holdings Limited

Zaiwalla & Co acted for a leading Dubai Group, Gulf Pacific in defending a claim brought against it and was successful in obtaining a USD seven figure Award by way of counterclaim, from an LCIA Tribunal against Global Steel which is owned by Pramod Mittal, brother of the world steel king, Lakshmi Mittal of Arcelor Mittal Group.  The LCIA Award was published in spring of 2010.  Opponent solicitors were  Kennedys.

Hashwani v Jivraj

Zaiwalla & Co Solicitors acted for the successful claimant in the Court of Appeal case of Hashwani v Jivraj where the Court, for the first time, made a ruling that to object to an arbitrator on the grounds of race or religion was illegal.

The case surrounded a multi-million pound dispute between two Pakistani businessmen who had entered in a JV agreement relating to a chain of hotels in Canada.  The contract contained a clause that stated that any arbitration should be decided by an arbitrator who was an Ismaili Muslim.

Zaiwalla & Co’s appointed arbitrator for their client was a former High Court judge who was Jewish. The High Court ruled against this appointment on the grounds that the arbitrator-party relationship was governed by contract and therefore the parties were free to specify that the arbitrator should come from a particular religious background.

The Court of Appeal considered:

a) Whether an arbitrator is an employee;

b) Religious discrimination of an arbitrator through an arbitration agreement.

In June 2010, the Court of Appeal overturned the High Court ruling and found that an arbitrator is an ‘employee’ of the parties and therefore protected by employment equality regulations which prevent discrimination on racial and religious grounds.

The implications of this ruling means that contractors of any description can now be considered as ‘employees’ and no private individual in the UK can discriminate against the appointment of an independent contractor, be it solicitor or plumber, on  grounds of race, religion or gender. The opponent solicitors are Hill Dickinson.

Shah v HSBC

Zaiwalla & Co successfully represented Mr Shah in a USD 330 million case against HSBC which involves consideration, for the first time by the English Courts, of whether an innocent customer can test in court proceedings a bank’s claim to suspicions of money laundering leading to a freezing of the customer’s account. Back in 2006, rather than transferring US $28 million as their client requested, HSBC bank, without notifying that client, filed a “suspicion of money-laundering” suit with the Serious Organised Crime Agency. As a result of the hold-up in the original transaction, The Reserve Bank of Zimbabwe, who held other assets and accounts of Mr Shah, froze all his accounts with them for a long period. The client claims that because of this he has suffered losses of up to US $300 million.

Sarosh Zaiwalla, senior partner of London firm Zaiwalla & Co, who acted for Shah, said that before this ‘landmark judgment’, banks and law firms ‘could act on a hunch about a client’s transactions without disclosing the necessary information’. This judgment has far reaching implications for banks as the Court in this case has for the first time ruled that the banks are now accountable for their conduct in reporting suspicions of money laundering.

The Court of Appeal Judgment was delivered in February 2010.  HSBC application for permission to appeal to the Supreme Court (formerly House of Lord’s) was rejected. The opponent solicitors are DLA Piper.

PEC Limited v Thai Marpan

In this case which was before a GAFTA Arbitration Tribunal Zaiwalla & Co was successful in obtaining an Award of US$12 million against a Thai rice company.  The Award was published by GAFTA Arbitration Board in March 2010.

Imerman v Tchenguiz

Zaiwalla & Co are defending property tycoons, Robert and Vincent Tchenguiz of Consensus Business Group,  in a claim arising from the £450 million divorce proceedings of their sister, Lisa Tchenguiz. Robert Tchenguiz was accused by his sister’s former husband, Vivian Imerman, former CEO of Delmonte Group,  of having taken confidential financial information from Vivian Imerman’s server to assist his sister in her divorce. Zaiwalla & Co have successfully obtained for the Defendants Leave to Appeal from an order granted by Eady J that the confidential information should not be disclosed. The Court of Appeal’s judgment generated significant media interest as it has impacted significantly on divorce law in the UK. The case has now been settled.  Berwin Leighton Paisner were solicitors for the Claimant.

Gift Investments Pvt Ltd v UT Worldwide (India) Limited

This was an LMAA Arbitration where Zaiwalla & Co have successfully obtained an Award of US$491,932 against UT Worldwide (India) Ltd, an International Shipping Agency Group.  The sole Arbitrator who made the Award is Bruce Harris, a leading English Maritime Arbitrator.

Central Trading Limited of Nigeria v Nav Bharat (India) Ltd

Zaiwalla & Co successfully acted for Nav Bharat in defending a claim of £2.5 million from a Nigerian trading company. The GAFTA Arbitration Board published its Award on 22nd October 2010.

Other landmark cases

• Acted for a Saudi Arabian client, Al-Ameen Establishment, in a landmark case before the Court of Appeal.

• Acted for the first Indian Government in the House of Lords on behalf of the President of India. This was a test case concerning the law on interest and liability for compound interest.  RT Hon Mr Tony Blair was the counsel instructed by the firm in this case at the High Court hearing.

• Acted for the Government of India in the Lips Maritime Corporation case in the House of Lords, involving exchange losses on account of late payment of debt.

• Acted for a Channel Islands ship owner in the House of Lords, concerning a jurisdictional issue involving an International Maritime Arbitration.

• Acted for the Chinese State Oil Corporation (CNPC) in the London ICC Arbitration commenced by a US multinational for a claim of over $50 million.

• Acted for the Indian Oil Corporation (IOC) in a US$15 million case.

• Acted for a Greek National in the Court of Appeal, involving setting aside a High Court Order to a Swiss Bank to reveal details of Swiss Banking accounts relating to the trial of the former Greek Prime Minister, Mr. Papandraou by the Greek Parliament.

• Recovered the antique Nataraja idol for the state of Tamil Nadu, in a landmark judgement of the English Court.

• Acted for ISRO, Bangalore – India’s Satellite Institution, a multimillion dollar claim brought against ISRO in London International Arbitration.

• Acted for a multimillion dollar London International Arbitration for the Oil and Natural Gas Commission of Indian (ONGC).

• Acted for an ICC Arbitration for Hindustan Construction Corporation (HCC), concerning a dispute arising out of a highway construction in the Republic of Malawi.