Commercial Disputes Weekly – Issue 2501 July 2025

Arbitration
The Commercial Court was asked to consider whether an UNCITRAL tribunal had jurisdiction to determine a dispute under the UAE-India bilateral investment treaty relating to bauxite mining and aluminium production in India. The tribunal had concluded that it did not have jurisdiction over the dispute because the relevant government actions did not directly apply to affect the claimant’s investment, which was shares in a processing company. The court disagreed with the tribunal’s interpretation. The tribunal’s conclusion had been based on the premise of separate corporate personality of company and shareholders and who should bring a claim. In a bilateral investment treaty, there was no such consideration – the only relevant claim is that of the investor. And the question is whether the actions applied directly to the investment, not the company or shareholders. The actions were applied directly to the investment in that it put an end to the establishment of an aluminium industry in Andhra Pradesh, India. The tribunal’s analysis would have meant that a major form of investment structure would fall outside the treaty without reason. The court held that the tribunal had jurisdiction.
Ras Al Khaimah Investment Authority v Republic of India [2025] EWHC 1553 (Comm), 20 June 2025

ESG
In the ongoing litigation by communities in Nigeria against Shell and its Nigerian subsidiary, an English court has considered various preliminary issues in relation to Nigerian law, in particular the applicable limitation periods. The court concluded, among other matters, that the applicable limitation period under the Oil Pipelines Act, Petroleum Act and common law was five years, which started when oil entered the land or caused damage. In respect of continuing torts, there will be a fresh cause of action every day that the relevant tort is repeated. It also held that certain rights under the Nigerian Constitution could be enforced against private companies, but not rights under the African Charter.
Alame and others v Shell Plc (formerly Royal Dutch Shell Plc) and others [2025] EWHC 1539 (KB), 20 June 2025

Construction
The First Tier Tribunal has made remediation orders for fire safety defects against the freeholder and developer of a residential development but suspended their application. The Tribunal noted that although the Building Safety Act 2022 does not refer to suspended orders, there was a sufficiently wide discretion under sections 123 and 124 for the Tribunal to make such orders. The Tribunal considered that allowing the developer to undertake the works would be the most efficient and cost-effective way of achieving the appropriate standard of remediation work. The suspended orders carried with them a threat of the developer having to pay twice for the works if it did not carry them out properly the first time.
Zampetti and others v Fairhold Athena Ltd and Berkeley Group Holdings plc [2025] EWHC, FirstTier Tribunal (Property Chamber), 5 June 2025

Commodities
A trade financier, Rasmala, brought a claim against Trafigura in relation to five contracts for Trafigura to supply coal to Farlin, which Rasmala financed. Rasmala made payments totalling approx. US$21m to Trafigura, in relation to those contracts. It transpired that Farlin had forged those contracts, as well as a tri-partite agreement that gave Trafigura permission to apply the payments to discharge other debts owed by Farlin to Trafigura. Rasmala unsuccessfully sought repayment of the money from Trafigura alleging that there was unjust enrichment or that it was inequitable for Trafigura to retain the funds. The claim in restitution for unjust enrichment failed because Trafigura could put forward a change of position defence as it acted in good faith in taking the payments and continuing to trade with Farlin. In the circumstances, it was inequitable to require Trafigura to repay the money.
Rasmala Trade Finance Fund v Trafigura PTE Ltd [2025] EWHC 1569 (Ch), 23 June 2025

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams: