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Sudhanshu Swaroop QC

MA (Cantab), BCL (Oxon)

Sudhanshu became a tenant in 1998 and took silk in 2016. His practice is broad and international.

He has gained legal directory recommendations across the fields of Banking and Finance, International Arbitration, Shipping, Public International Law and Human Rights. The Lawyer Magazine has previously chosen him as one of its "Hot 100" Lawyers.

He acts regularly in complex commercial matters, both in arbitration and in court. His recent cases include a substantial Commercial Court trial concerning letters of credit and alleged fraud (Euro-Asian SA v Credit Suisse AG and Others [2017] 1 Lloyd’s Rep 287). His commercial work also includes several landmark group claims against multinational corporations, eg: Florez and Others v Equion Energia Limited (5 month trial of claims by Colombian farmers against former BP company, described in the media as "one of the largest cases in environmental legal history"); Chandler v Cape plc (parent company tort liability for asbestosis claims, Court of Appeal); Vava and Others v Anglo American South Africa Ltd (silicosis claims by South African gold miners, jurisdiction challenge). He appears regularly in applications for freezing orders and other urgent relief and in matters relating to jurisdiction and enforcement.

In public international and human rights law his important cases include: Freedom & Justice Party and Others v SoS for Foreign and Commonwealth Affairs and Others [2016] EWHC 2010 (Admin) (challenge to "special missions immunity" in relation to attempted arrest of Chief of Egyptian Armed Forces, raising significant issues of international and constitutional law); Reyes v Al-Malki (scope of diplomatic immunity in relation to human trafficking claims, Supreme Court, May 2017, judgment pending); R (Campaign Against Arms Trade) v Secretary of State for Business, Innovation and Skills [2017] EWHC 1726 (QB) (judicial review of licensing of UK arms sales to Saudi Arabia, acting for interveners); The "Enrica Lexie Incident", Italy v India (representing Italy in arbitration under the UN Convention on the Law of the Sea); Del Rio Prada v Spain (test case, challenging the prison sentence of a convicted member of ETA, European Court of Human Rights); Chiragov and Others v Armenia (ethnic cleansing, extraterritorial jurisdiction of ECHR, ECtHR). He has also been acting in various investment treaty matters.

As an advocate he has a unique blend of experience, which encompasses all levels of the English Courts, international commercial arbitration, the Grand Chamber of the European Court of Human Rights and inter-state arbitration in The Hague. In a recent High Court trial he cross-examined witnesses for 7 consecutive court days.

Specialisations: 

  • Commercial Law
  • Arbitration
  • Shipping and Commodities
  • Energy and Natural Resources
  • Insurance and Reinsurance
  • Banking and Finance
  • Private International Law
  • Public International Law and Human Rights

Principal Cases: 

Arbitration

Sudhanshu has considerable experience of both international investment arbitration and international commercial arbitration (including applications in Court). Examples include:

PT Thiess Contractors Indonesia v PT Kaltim Prima Coal [2011] EWHC 1842 (Judgment of Blair J) - application under s9 of the Arbitration Act 1996 for a stay of English High Court proceedings brought under a "Cash Distribution Agreement" in circumstances where there was an overlapping arbitration in Singapore under a mining services agreement.

Razcom CI v Barry Callebaut Sourcing AG [2010] EWHC 2598 (Judgment of Hamblen J) - the Court considered whether an arbitration award should be enforced under s66 of the Arbitration Act 1996, where it was contended that "payment" had already been made and/or that payment had been "accepted".

City of London v Sancheti [ 2009] 1 Lloyd's Rep 117 (Court of Appeal) - the first case to consider the power of the court to stay English Court proceedings where a related Bilateral Investment Treaty Arbitration is taking place. The case also concerned the relationship between "contract claims" and "treaty claims".

Bluewater Energy Services BV v Technip Offshore International [2006] EWHC 2879 (Commercial Court) - whether there was "serious irregularity" under s68 of the Arbitration Act 1996 in relation to an arbitration under the rules of the LCIA.

Bechtel and Others v Government of India - represented the Government of India in the massive Bilateral Investment Treaty Arbitration relating to the Dabhol Power Station.

He has particular experience of FPSOs, having acted in two major arbitrations involving FPSOs installed off the coast of South Africa and in the North Sea, respectively. Both arbitrations led to extensive oral hearings with complex issues of expert evidence and contractual construction.

Acted in LCIA Arbitration involving dispute over shares in a former nuclear missile factory, now an oil facility, in Kazakhstan. 

Acted in substantial LCIA arbitration involving allegations of professional negligence against an international management consultancy firm.

Banking and Finance

He has wide-ranging experience, including a substantial claim (over US$100 million) by a foreign receiver in the courts of the Cayman Islands and a string of cases involving alleged mis-selling of financial products by banks. Other matters include:

Euro-Asian SA v Credit Suisse AG and Others [2017] 1 Lloyd’s Rep 287 - substantial Commercial Court trial concerning financing of sale of goods, letters of credit, letters of indemnity and alleged fraud.

Sherdley v Nordea Life and Pensions SA (Societe Anonyme) [2012] EWCA Civ 88 (Court of Appeal) - challenge to the jurisdiction of the English Courts to try claims relating to two "Managed Capital Plan" contracts. The Court considered the provisions of the Brussels Regulation that govern jurisdiction "in matters relating to insurance" and whether there was a relevant jurisdiction agreement for the purposes of Article 23 of the Regulation.

Chandler v Cape Plc [2012] EWCA Civ 525 (Court of Appeal)- the issue was whether a parent company owed a duty of care to an employee of a subsidiary, who had developed asbestosis after being exposed to asbestos dust, where the subsidiary company was no longer in existence. Lady Justice Arden described the case as being ". . . of some importance not only to the parties but to other cases". Commentators argue that the case raises fundamental issues about company law and limited liability.

Hill Street Services Company Ltd v National Westminster Bank plc EWHC 2379 (Ch) (Judgment of Peter Smith J) - claim that bank had made unauthorised transfers from current account.

Stax Litigation [2007] EWHC 143 (Ch) 01 Feb 2007 (Judgment of Warren J) - claims against banks and IFAs in relation to allegedly fraudulent pension fund transfer scheme.

FSA v Sean Fradley and 147 Racing Limited Times Law Reports, 8 November 2004 - raised a number of issues under FSMA 2000, including the meaning of "collective investment scheme".

Trident Fashions plc Times Law Reports, 23 April 2004 - shareholders challenging a Company Voluntary Arrangement relating to the retailers "Ciro Citterio".

Amalgamated Metal Trading v City of London Police Financial Investigation Unit and others [2003] 1 WLR 2711 - a leading case on s93A to F Criminal Justice Act 1993 regarding money laundering and the steps that a bank must take where there is suspicion that a customer's account represents "the proceeds of crime" within the meaning of the 1993 Act.

Furthermore, he was seconded to the Financial Services Authority (Spring 2000), when he advised on various aspects of the Financial Services and Markets Bill (as it then was) and acted in assorted regulatory matters. Since then he has advised and acted in various matters involving the Financial Services and Markets Act 2000, including compliance and litigation.

Commercial Law

Examples of cases:

Euro-Asian SA v Credit Suisse AG and Others [2017] 1 Lloyd’s Rep 287 - substantial Commercial Court trial concerning financing of sale of goods, letters of credit, letters of indemnity and alleged fraud.

Florez and Others v BP Exploration Company (Colombia) Limited - acting for Colombian Farmers claiming for damage caused by the construction of an oil pipeline. Described by one newspaper as "one of the largest cases in environmental legal history". The 5 month trial ended in March 2015 and judgment is awaited.

Young v Anglo American South Africa Ltd [2014] Bus LR 1434 (Court of Appeal); Vava v Anglo American South Africa Ltd [2013] Bus LR D65 (Judgment of Andrew Smith J) - considered whether the Defendant company had its "central administration" in England under Article 60(1)(b) of the Brussels Regulation. The question arose in the context of silicosis claims by South African gold miners and a separate claim for medical negligence.

Chandler v Cape Plc [2012] 1 WLR 3111 (Court of Appeal) - the issue was whether a parent company owed a duty of care to an employee of a subsidiary, who had developed asbestosis after being exposed to asbestos dust, where the subsidiary company was no longer in existence. Lady Justice Arden described the case as being ". . . of some importance not only to the parties but to other cases".

PT Thiess Contractors Indonesia v PT Kaltim Prima Coal (Judgment of Teare J) [2012] EWCA Civ 525 - claim about the proper construction of a "Cash Distribution Agreement" and whether substantial sums of money had to be transferred into a "Dispute Account".

Sherdley v Nordea Life and Pensions SA (Societe Anonyme) [2012] EWCA Civ 88 (Court of Appeal) - challenge to the jurisdiction of the English Courts to try claims relating to two "Managed Capital Plan" contracts. The Court considered the provisions of the Brussels Regulation that govern jurisdiction "in matters relating to insurance" and whether there was a relevant jurisdiction agreement for the purposes of Article 23 of the Regulation.

Dynastic Maritime Inc v Al Dawood Shipping Lines Ltd [2010] All ER (D) 224 (Feb) (Court of Appeal) - considered the principles that apply where a party fails to comply with an "unless order" and then seeks to set aside the resulting judgment.

Razcom CI v Barry Callebaut Sourcing AG [2010] EWHC 2598 (Judgment of Hamblen J) - the Court considered whether an arbitration award should be enforced under s66 of the Arbitration Act 1996, where it was contended that "payment" had already been made and/or that payment had been "accepted".

Congentra AG v Sixteen Thirteen Marine SA [2008] 2 Lloyd's Rep 602 - considered whether a Freezing Order requires an "accrued " cause of action, whether English law recognises the tort of "wrongful attachment" (in relation to a "Rule B" attachment which had been obtained in New York and the correct procedure for continuing a freezing order where a substantive arbitration is taking place.

Texuna International Ltd v Cairn Energy Plc [2005] 1 BCLC 579 - a leading case on the principles applicable to security for costs applications.

Energy and Natural Resources

Florez and Others v BP Exploration Company (Colombia) Limited - acting for Colombian Farmers claiming for damage caused by the construction of an oil pipeline. Described by one newspaper as "one of the largest cases in environmental legal history". The 5 month trial ended in March 2015 and judgment is awaited.

He has particular experience of FPSOs, having acted in two major arbitrations involving FPSOs installed off the coast of South Africa and in the North Sea, respectively. Both arbitrations led to extensive oral hearings with complex issues of expert evidence and contractual construction.

Represented the Government of India in the Bilateral Investment Treaty Arbitration relating to Dabhol Power Station.

Insurance and Reinsurance

Sherdley v Nordea Life and Pensions SA (Societe Anonyme) [2012] EWCA Civ 88 (Court of Appeal) - challenge to the jurisdiction of the English Courts to try claims relating to two "Managed Capital Plan" contracts. The Court considered the provisions of the Brussels Regulation that govern jurisdiction "in matters relating to insurance" and whether there was a relevant jurisdiction agreement for the purposes of Article 23 of the Regulation.

Instructed by insurers in film finance litigation including, Royal Bank of Canada v Maurice Howell and Others and Filmline International v Etheridge and Others. Both cases concerned the proper construction of a TVC insurance policy and allegations of non-disclosure and misrepresentation.

Acted for reinsurers in arbitration arising from Kingscroft and others v Nissan.

Private International Law

Young v Anglo American South Africa Ltd [2014] Bus LR 1434 (Court of Appeal).

Vava v Anglo American South Africa Ltd [2013] Bus LR D65 (Judgment of Andrew Smith J) - considered whether the Defendant company had its "central administration" in England under Article 60(1)(b) of the Brussels Regulation. The question arose in the context of silicosis claims by South African gold miners and a separate claim for medical negligence.

Sherdley v Nordea Life and Pensions SA (Societe Anonyme) [2012] EWCA Civ 88 (Court of Appeal) - challenge to the jurisdiction of the English Courts to try claims relating to two "Managed Capital Plan" contracts. The Court considered the provisions of the Brussels Regulation that govern jurisdiction "in matters relating to insurance" and whether there was a relevant jurisdiction agreement for the purposes of Article 23 of the Regulation.

Congentra AG v Sixteen Thirteen Marine SA [2008] 2 Lloyd's Rep 602 - considered whether a Freezing Order requires an "accrued " cause of action, whether English law recognises the tort of "wrongful attachment" (in relation to a "Rule B" attachment which had been obtained in New York) and the correct procedure for continuing a freezing order where a substantive arbitration is taking place.

Public International Law and Human Rights

Cases include the following:

Freedom & Justice Party and Others v SoS for Foreign and Commonwealth Affairs and Others [2016] EWHC 2010 (Admin) - a challenge to the assertion of "special missions immunity" in relation to attempted arrest of Chief of Egyptian Armed Forces, raising important issues of international law, as well as the relationship between prerogative powers and Acts of Parliament.

R (Campaign Against Arms Trade) v Secretary of State for Business, Innovation and Skills [2017] EWHC 1726 (QB) - judicial review of licensing of UK arms sales to Saudi Arabia, acting for interveners.

Reyes v Al-Malki [2015] IRLR 289 (Court of Appeal) - an important judgment on diplomatic immunity, holding that Article 31(1)(c) of the Vienna Convention on Diplomatic Relations does not exclude diplomatic immunity in the context of employment/human trafficking claims and that this position is not affected by Articles 4 or 6 of the ECHR. It also considered the correct method for serving process on diplomats. The judgment of the Supreme Court is pending, following a hearing in May 2017.

The "Enrica Lexie Incident", Italy v India - acting for Italy in high-profile, ongoing arbitration under the UN Convention on the Law of the Sea.

Del Rio Prada v Spain, Judgment of 21 October 2013 (Grand Chamber of the European Court of Human Rights) - the Court held that the penalty applicable to the Applicant and the length of her prison sentence had been changed retrospectively (in breach of Article 7 of the ECHR), that the Applicant's detention had not been lawful (in breach of Article 5) and indicated (under Article 46) that the Applicant should be released at the earliest possible date.

Chiragov and Others v Armenia Hearing in January 2014, Judgment pending (Grand Chamber of the European Court of Human Rights) - issues include whether Armenia exercises "effective control" in and around Ngorno-Karabakh, for the purposes of Article 1 of the ECHR.

City of London v Sancheti [2009] 1 Lloyd's Rep 117 (Court of Appeal) - the first case to consider the power of the court to stay English Court proceedings where a related Bilateral Investment Treaty Arbitration is taking place. The case also concerned the relationship between "contract claims" and "treaty claims".

Bechtel and Others v Government of India - represented the Government of India in the massive Bilateral Investment Treaty Arbitration relating to the Dabhol Power Station.

A v Secretary of State for the Home Secretary [2006] 2 AC 221 (House of Lords) - the seminal case on whether evidence alleged to have been obtained by torture is admissible to detain terrorist suspects.

Maher Arar v John D Ashcroft, Former Attorney General of the United States, et al (United States Supreme Court) - a claim by a Canadian citizen for damages from federal officials for delivering him from their custody in the United States to Syria for purposes of torture and arbitrary detention, under the practice known as "extraordinary rendition". Drafted amicus brief setting out the relevant jurisprudence and practice across Europe.

Hamdan v Rumsfeld et al (United States Supreme Court, March to April 2006) - a challenge to the Military Commissions established by the United States to try the detainees at Guantanamo Bay. Assisted in drafting amicus brief on the relevant common law principles.

Chief Justice of Pakistan v President of Pakistan and others (Pakistan Supreme Court, July 2007) - the main issue in the case was whether the suspension from office and treatment of the Chief Justice of Pakistan was constitutional. Drafted amicus brief on the principles relating to independence and impartiality of judges.

Challenge to Law 975/2005 (Colombian Constitutional Court)- a challenge to the Colombian law which regulated the demobilization of the paramilitaries. Drafted amicus brief on whether under international law, in the context of widespread killings and human rights abuses, the State has a duty to investigate and there is a "right to truth".

X v United Kingdom (European Court of Human Rights) - applicant argued that the "Regulation of Investigatory Powers Act 2000" (which governs surveillance operations by the UK authorities) breaches the ECHR (in particular, Articles 8 and 13).

Consolidated Contractors International Company SAL and Consolidated Contractors (Oil and Gas) Company SAL v United Kingdom (European Court of Human Rights) - applicants argued that the UK breached their rights under the ECHR, in circumstances where the English courts imposed conditions on their rights to pursue appeals.

He has also conducted various human rights missions abroad, including in Colombia, Afghanistan and Darfur.

Shipping and Commodities

Recent arbitrations have included a dispute about hire following an alleged hijacking off the coast of Somalia, a claim arising from contaminated bunkers, a claim for wrongful arrest and a series of cocoa arbitrations under the rules of the FCC. Reported cases include:

Euro-Asian SA v Credit Suisse AG and Others (October 2016) - substantial Commercial Court trial concerning financing of sale of goods, letters of credit, letters of indemnity and alleged fraud, judgment pending.

Breffka & Hehnke GmbH Co KG v Navire Shipping Co Ltd and others [2013] 1 Lloyd's Rep 401 - claim for misrepresentation. The Court considered the meaning and effect of a "RETLA" clause in bills of lading.

Dynastic Maritime Inc v Al Dawood Shipping Lines Ltd [2010] All ER (D) 224 (Feb) (Court of Appeal) - the Court considered the nature of Owners' obligations under a time charter in relation to the Vessel's "Oil Pollution Prevention Certificate". The Court also considered the principles that apply where a party fails to comply with an "unless order" and then seeks to set aside the resulting judgment.

STX Pan Ocean Co Ltd v Ugland Bulk Transport A.S. (The "LIVANITA") [2008] 1 Lloyd's Rep 86 - considered whether an express safe port warranty in a charterparty applies to a named port.

Jindal Iron and Steel Co ltd and Others v Islamic Solidarity Shipping Company [2005] 1 Lloyd's Rep 57 (House of Lords); [2003] 2 Lloyd's Rep 87 (Court of Appeal and First Instance) - the three Courts reviewed various aspects of the law on cargo claims, including the construction of "FIOST" clauses in charterparties and bill of lading contracts and the extent to which the Hague Convention abrogates freedom of contract.

Schimon Schestowitz Ltd v Security (North West) Ltd [2001] All ER (D) 350 (May) - considered the issue of vicarious liability for fraud in circumstances where cargo was stolen from warehouse.

Macieo Shipping Ltd v Clipper Shipping Lines Ltd [2000] 1 Lloyd's Rep 645 - considered liability under a time charter for fire alleged to have been caused by incompetent stevedores.

Education and Career: 

Magdalene College Cambridge, BA (later MA) in Law

Exeter College Oxford, BCL.

Publications: 

"The Role of the Judiciary in International Arbitration" with William Rowley QC in IBA Business Law International, September 2009.

"Genocide and Universal Jurisdiction" published by Aegis in Report on "Enforcement of International Criminal Law", January 2009.

Appointments and Society Memberships: 

  • COMBAR
  • Bar Human Rights Committee (Vice-Chair)
  • International Law Association (Member of Study Group on "Business and Human Rights")

Lectures and Teaching: 

He recently lectured in Public International Law on the undergraduate course at King's College, London. He has lectured extensively on Bilateral Investment Treaties, including at Damascus University in March 2006. In September 2009 he gave lectures in Bogota, Colombia on international law and the International Criminal Court. In April 2006 and April 2008 he gave a series of lectures in Afghanistan at Kabul University on the Rule of Law and Human Rights, as part of an FCO/UNDP project. In October 2003 he lectured members of the Sudanese Supreme Court and Court of Appeal in Khartoum on International Law. In November 2005 he worked in Darfur, assisting victims of torture and other human rights abuses.

Quotes: 

Banking and Finance

Recommended as "New Silk" (Legal 500, 2016). Previously a "Leading Junior".

"He has no difficulties tackling cases involving various areas of law." (Legal 500, 2016)

"Particularly experienced in disputes linked to the mis-selling of financial products." (Legal 500, 2015)

"A very popular choice, particularly for mis-selling claims" (Legal 500, 2014)

"hugely impresses" (Legal 500, 2009)

International Arbitration

Recommended as a "New Silk" (Legal 500, 2016). Previously a "Leading Junior".

"He always displays extensive knowledge and is able to assimilate large amounts of information quickly." (Legal 500, 2016)

"A versatile barrister with a strong grounding in international arbitration." (Legal 500, 2015)

"Enjoys a strong track record in trade disputes and investment treaty arbitrations" (Legal 500, 2014)

Public International

Recommended as "New Silk" (Legal 500, 2016). Previously a "Leading Junior". 

"He has a very clear and logical approach, which is evident in his advice." (Legal 500, 2016)

"Recommended for his highly versatile practice in public international law." (Legal 500, 2015)

"... intelligent and well-informed ..." (Legal 500, 2014)

"very well regarded." (Legal 500, 2012)

". . . very thorough, perceptive and supportive . . . praised for his "excellent written submissions" and as being "responsive and efficient" and "demonstrating a clear understanding of bilateral investment treaties" (Legal 500 2011);

"a strong team player with an impressive track record and a mix of private and PIL experience" (Legal 500, 2009)

Civil Liberties and Human Rights

" tenacious and extremely bright . . . with a keen eye for detail

"flourishing commercial practice" and "impressive and worthwhile work in the field of international human rights" (The Lawyer)

Shipping

"robust