The Supreme Court's decision in VTB Capital plc v Nutritek International Corp and others [2013] UKSC 5 was published on 6 February 2013. In Gilford, Mr Horne had undertaken not to compete with his former employer, and a company, in which only he and his wife were shareholders, and which he formed after leaving his employment, was enjoined from competing. The ultimate over-arching principle is that stated in the Spiliada, and, if a court is not satisfied at the end of the day that England is clearly the appropriate forum, then permission to serve out must be refused or set aside.” (18). The facts did not involve Russagroprom being used as a facade to conceal true facts. Justices. Munby J in Ben Hashem seems to have seen the principle as a remedial one, whereas Sir Andrew Morritt V-C in Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177 appears to have treated the principle as triggered by the finding of a "façade". A strong justification would be required, and there was an overwhelming case against extension because the law provided redress against the controller in a misrepresentation action. In other words, unlike virtually all the cases where the court has pierced the corporate veil, VTB is claiming that Mr Malofeev should be treated as if he were, or had been, a co-contracting party with RAP under the two agreements, even though neither Mr Malofeev nor any of the contracting parties (including VTB) intended Mr Malofeev to be a party. The defendants now sought to have the service set aside. It was unnecessary to resolve whether the court could not pierce the veil but this could not succeed in any case. VTB therefore leaves its battle before the English courts with a large legal bill and an as yet undetermined exposure under the cross undertaking in damages granted under the WFO. VTB v Nutritek . Another view of Jones is that the sale by the vendor to the company was treated as a sham transaction. 3 Hashem v … However, such pejorative expressions are often dangerous, as they risk assisting moral indignation to triumph over legal principle, and, while they may enable the court to arrive at a result which seems fair in the case in question, they can also risk causing confusion and uncertainty in the law. It is unnecessary, because the second argument raised on behalf of Mr Malofeev, to which I shall shortly turn, persuades me that VTB cannot succeed on this issue. He said the following on the corporate veil point. Lord Neuberger, Lord Mance, Lord Clarke, Lord Wilson, Lord Reed. Quite a few of them are tantalizingly held out to the reader, without an answer to them being given. The common theme in these cases is where the corporate structure was being used as a “sham” or a “façade” to conceal wrongdoing. In terms of legal practice, it appears that the Supreme Court has laid down a marker that, because they are essentially evaluative, decisions on forum will only rarely be re-opened on appeal. In my view, it is unnecessary and inappropriate to resolve the issue of whether we should decide that, unless any statute relied on in the particular case expressly or impliedly provides otherwise, the court cannot pierce the veil of incorporation. The purpose of the loan was the purchase of six Russian dairy companies from Nutritek International Corp. (Nutritek), a BVI company managed from Russia. Indeed, as mentioned above, VTB's proposed pleaded case is that Mr Malofeev is "jointly and severally liable with RAP". The "façade" mentioned by Lord Keith is often regarded as something of a touchstone in the cases – e.g. Practitioners may feel this is something of a missed opportunity, but the net result is that other than closing down the Gramsci principle, the law in this area remains unchanged. View Notes - VTB Capital plc v Nutritek from LAW 203 at London School of Economics. Recent cases have sought to narrow the exceptions. There is great force in the argument that that case represented an early attempt to pierce the veil of incorporation, and it failed, pursuant to a unanimous decision of the House of Lords, not on the facts, but as a matter of principle. He added that it was "impossible to say at the same time that there is a company and there is not.". 134. Case Law Review: VTB Capital PLC V. Nutritek International Corp & Ors. The notion that there is no principled basis upon which it can be said that one can pierce the veil of incorporation receives some support from the fact that the precise nature, basis and meaning of the principle are all somewhat obscure, as are the precise nature of circumstances in which the principle can apply. 139. The High Court’s exercise of discretion could not be faulted or set aside. Clarke J in The Tjaskemolen [1997] 2 Lloyd's Rep 465, 471 rightly said that "[t]he cases have not worked out what is meant by 'piercing the corporate veil'. On the judge's reasoning, it would have equally been entitled to do so if, instead of the company, the property had been transferred to the vendor's wife. 127. It was suggested, however, by Mr Howard QC that the case against Mr Malofeev involves him "abusing the corporate structure", and that that is sufficient to justify piercing the corporate veil. Snook v London and West Riding Investments Ltd, Daimler Company Ltd v Continental Tyre and Rubber Company (Great Britain) Ltd, Merchandise Transport Ltd v British Transport Commission, Kensington International Ltd v Republic of the Congo, Continental Transfert Technique Ltd v Federal Government of Nigeria, La Générale des Carrières et des Mines v F G Hemisphere Associates LLC, Barcelona Traction, Light, and Power Company, Ltd, Antonio Gramsci Shipping Corporation v Stepanovs, https://en.wikipedia.org/w/index.php?title=VTB_Capital_plc_v_Nutritek_International_Corp&oldid=867369616, Supreme Court of the United Kingdom cases, Creative Commons Attribution-ShareAlike License, This page was last edited on 5 November 2018, at 07:55. After agreeing to sell a property to a purchaser, the vendor sold the same property to a company owned by him and his wife, and the purchaser obtained an order for specific performance against the company. The claimants also sought permission to amend the . It would be wrong to treat another defendant as party to the contract where none of the actual parties had intended this. Lord Clarke gave a judgment, dissenting on the question of forum, while reserving any comments on the corporate veil for a future case. The case raises some interesting practical implications both for legal practitioners and commercial parties. Accordingly, in agreement with the Court of Appeal and for substantially the same reasons, I consider that VTB's contention represents an extension to the circumstances in which the court will pierce the corporate veil, and on analysis it is an extension which is contrary to authority and contrary to principle. (free access) The worldwide freezing injunction would be discharged, and it was unsatisfactory given the length of litigation. VTB entered into a loan agreement with a Russian company, RAP, under which VTB lent $225 million to allow RAP to buy a number of Russian dairy companies from Nutritek. However, given that the principle is subject to the criticisms discussed above, it seems to me that strong justification would be required before the court would be prepared to extend it. None of the other decisions relied on by VTB in this connection is, on analysis, of assistance to its case. 125. The barrier between the company’s assets and those of its members is known as the ‘veil of incorporation’. The ultimate owner and controller of RAP (throug… In VTB Capital v Nutritek [[2013] UKSC 5] , the Supreme Court of the United Kingdom revisits in signature erudite fashion a number of extremely relevant conflicts issues. ... Business Law of Australia, Butterworths, ISBN 0-409-30675-4 Cite uses deprecated parameter|coauthors= ^ [1925] AC 619 ^ David Winch, " Confiscation : lifting the veil of incorporation " (2013) Even accepting that the court can pierce the corporate veil in some circumstances, the notion of such joint and several liability is inconsistent with the reasoning and decision in Salomon. At 1978 SLT 159, 161, Lord Keith suggested that the court could only take such a course "where special circumstances exist indicating that [the involvement of the company] is a mere façade concealing the true facts". Smith v Hughes (1871) LR 6 QB 597, 607. A company should be treated as being a person by the law in the same way as a human being. VTB CAPITAL PLC v NUTRITEK INTERNATIONAL CORPORATION AND OTHERS [2013] 1 Lloyd's Rep. 466 SUPREME COURT ... Applicable law of the tort – Private International Law (Miscellaneous Provisions) Act 1995, sections 11 and 12. Whilst Lord Mance disagreed with Arnold J’s conclusion that the torts were commissioned in Russia, it would be “over-simplistic” – particularly in the context of an international commercial transaction – to presume jurisdiction based on place of commission alone. The Court of Appeal in VTB Capital v Nutritek International Corp [2012] kept it … The case of VTB Capital Plc v Nutritek International Corp and others will be mentioned for years to come, says Fried Frank partner Justin Michaelson Not many things are certain in litigation, but one prediction I can make with confidence is that we will be citing the case of VTB Capital Plc v Nutritek International […] 135. 123. The corporate veil has been in the limelight of late. The recent decision of the UK Supreme Court in VTB v Nutritek has attracted a great deal of attention and will be viewed as the leading modern authori We use cookies to enhance your experience on our website.By continuing to use our website, you are agreeing to our use of cookies. cit, Gore-Browne on Companies at paras 7[3] to 7[6], Gower and Davies on Principles of Modern Company Law (8th ed) at paras 8-5 to 8-14, and Farrar's Company Law (4th ed), pp 69-78. 126. Lord Neuberger, giving a concise judgment on the corporate veil issue, expressly overruled Gramsci and concluded that there was an “overwhelming” case (137) against extending the principle in this way. However, in my view, abuse of the corporate structure (whatever that expression means) adds nothing to the debate, at least in this case. However, there is st… The appeal concerned two issues of significance to commercial law: first, the circumstances in which fraud claims involving foreign parties but relating to frauds allegedly perpetrated in England should be heard by the English courts; and second whether a claimant who has entered into a contract with a company as a result of a fraud practised by the company’s owners can “pierce the corporate veil” so as to sue the owners of the company under that contract. The High Court wrongly concluded that Russian law governed the alleged torts, but it had considered the position if English law had been applicable and found this not to be favourable. Quite apart from this, it seems to me that the facts relied on by VTB to justify piercing the veil of incorporation in this case do not involve RAP being used as "a façade concealing the true facts". 145. In addition, there are other cases, notably Adams v Cape Industries plc [1990] Ch 433, where the principle was held to exist (albeit that they include obiter observations and are anyway not binding in this court). Hugh Tomlinson QC, Matthew Ryder QC, and Emily Campbell (Matrix), Oliver Gayner, Olswang LLP Case Comments. Hilary Term [2013] UKSC 5 On appeal from: [2012] EWCA Civ 808 JUDGMENT VTB Capital plc (Appellant) v Nutritek The issue is of practical importance because […] On VTB's case, if the agency analogy is relevant, the company, as the contracting party, is the quasi-agent, not the quasi-principal. This could not be said to result in unfairness to C: the law provides redress for C against A, in the form of a cause of action in negligent or fraudulent misrepresentation. But this is not the place at which to embark on an attempted subjection of it to critical examination. per Munby J in Ben Hashem, para 164, and per Sir Andrew Morritt V-C in Trustor, para 23. In para 27, reference was made to Case concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ 3, in which, it was said. While not technically necessary, he said the following on piercing the corporate veil. There are numerous cases in which the English courts have allowed the shareholders of a company to be liable for its actions, notwithstanding the principle of separate corporate identity established in Salomon v Salomon [1897] AC 22. The recent Supreme Court decision in VTB Capital Plc v Nutritek Corp and others has provided further clarity of the principle and limited the scope. VTB plc (VTB) is a bank registered as a public company in England which is owned by a large Russian bank. But the variety of circumstances is infinite, and the Albaforth principle cannot obviate the need to have regard to all of them in any particular case. Mr Lazarus argued that in all, or at least almost all, the cases where the principle was actually applied, it was either common ground that the principle existed (Gilford Motor Co Ltd v Horne [1933] Ch 935, Re H (restraint order: realisable property) [1996] 2 BCLC 500, and Trustor) and/or the result achieved by piercing the veil of incorporation could have been achieved by a less controversial route - for instance, through the law of agency (In re Darby, Ex p Brougham [1911] 1 KB 95, Gilford, and Jones v Lipman [1962] 1 WLR 832), through statutory interpretation (Daimler Company Ltd v Continental Tyre and Rubber Company (Great Britain) Ltd [1916] 2 AC 307, Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173, Wood Preservation Ltd v Prior [1969] 1 WLR 1077, and Re A Company [1985] BCLC 333), or on the basis that, as stated by Lord Goff in Goss v Chilcott [1996] AC 788, 798, money due to an individual which he directs to his company is treated as received by him (Gencor ACP Ltd v Dalby [2000] 2 BCLC 734, and Trustor). However, it was not suggested to us that it should be applied as a new or separate ground in domestic law for treating Mr Malofeev as contractually liable to VTB, or that it would assist VTB in this case. VTB Capital Plc v Nutritek International Corp & Ors is one of the highest profile commercial cases of the year. If the Defendants were treated as co-contracting parties, it would lead to the unusual and undesirable conclusion that Mr Malofeev & co had unwittingly become parties to a contract, when none of the actual parties, at the time of contract, intended them to be so (140). The Supreme Court dismissed the appeal, Lord Mance giving the leading judgment, and holding that England was not the appropriate forum. These two factors were enough to persuade Lords Clarke and Wilson to find that Russia was the forum conveniens. It discharged the freezing injunction that was obtained against Malofeev. The Court of Appeal also erred in finding Russian law applicable for the torts and did not recognise the significance of the governing law, but this would not have changed the conclusion. In that this court welcomes blue sky thinking, I do not criticise Mr Lazarus for his over-arching attempt to persuade it that English law recognises no principle that the corporate veil may ever be lifted. In VTB Capital plc v Nutritek International Corp and others [2013] UKSC 5, the Supreme Court has considered whether it could extend the circumstances in which the corporate veil can be pierced and whether England was the appropriate forum to hear the dispute. 140. See Heintzman and Goldsmith on Canadian Building Contracts (4th ed.) 120. 122. Lord Neuberger, having had some strong words to say about parties seeking to stage mini-trials on preliminary issues such as jurisdiction (82 to 89 – see for example “it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, to spend many days in court on such a hearing“), concluded that the appellate Courts should be “vigilant in discouraging appellants from arguing the merits of evaluative interlocutory decision reached by a judge” (93), and should only reopen such a decision if “satisfied that the judge made a significant error of principle” (69).Lord Wilson’s comments on this issue were even more trenchant: “I am doubtful whether the committee would have granted permission to appeal on the forum issue if it had realised that VTB’s case would develop into little more than an invitation to re-evaluate all the relevant factors for and against the English forum.” (157). The decision in VTB Capital Inc. v. Nutritek International Corp. will give the Court an opportunity to clarify when the veil should be pierced, and whether the legal effect of doing so is to constitute the company’s controlling minds as actual parties to its agreements in derogation from the privity of contract doctrine. ... /vtb-capital-v-nutritek … Judgment (PDF) Press summary (PDF) Judgment on BAILII (HTML version) The notion that the principle can be extended to such a case receives no support from any case save for a very recent decision of Burton J, Antonio Gramsci Shipping Corporation v Stepanovs [2011] EWHC 333 (Comm), [2011] 1 Lloyd's Rep 647 (which he followed in his later decision in Alliance Bank JSC v Aquanta Corporation [2011] EWHC 3281 (Comm) [2012] 1 Lloyd's Rep 181, which was considered by the Court of Appeal at [2012] EWCA Civ 1588). UKSC 2012/0167. More generally, it may be right for the law to permit the veil to be pierced in certain circumstances in order to defeat injustice. It is an extension because it would lead to the person controlling the company being held liable as if he had been a co-contracting party with the company concerned to a contract where the company was a party and he was not. principle which provide valuable guidance to the Courts in any common law jurisdiction attempting to reconcile potential transnational conflicts in the context of freezing injunctions. By contrast, the jurisdiction issue was a close run thing: whilst the Court unanimously approved the Spiliada test for determining whether England was the appropriate forum, it split 3:2 (Lords Clarke and Reed dissenting) on the application of that test to the facts, with the majority holding that Russia, not England, was the appropriate forum to hear the claim. Words such as "façade", and other expressions found in the cases, such as "the true facts", "sham", "mask", "cloak", "device", or "puppet" may be useful metaphors. VTB claimed that it was deceived into thinking that Russagroprom was not already under common control with Nutritek. At First Instance – VTB Capital Plc v Nutritek International Corp and Others ChD 29-Nov-2011 The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. Recently the principle was controversially extended in Antonio Gramsci Shipping Corp v Stepanovs [2011] EWHC 333 (Comm), in which Burton J held that the veil could be pierced to allow the controllers of a company to be sued under the company’s contracts as if they were themselves a contracting party. Whilst VTB is the first time the issue of piercing the corporate veil has fallen for consideration by the Supreme Court or House of Lords, the Court elected not to engage with the wider question of whether such a power should exist under English law, holding that to do so would be unnecessary given its determination on the facts of this appeal (130), as described above. In particular, in both VTB Capital and Prest, the Supreme Court confirmed that the corporate veil may only be pierced where a corporate structure has been implemented or used to avoid or frustrate 2 VTB Capital plc v Nutritek International Corp and Others [2013] UKSC 5. This is an important restatement of the law and brings greater clarity to the relationship between the Spiliada and The Albaforth, which Berezovsky v Michaels had previously left open to doubt. It is also difficult to explain the first instance decision in Kensington International Ltd v Republic of the Congo [2005] EWHC 2684 (Comm), [2006] 2 BCLC 296 on any basis other than the principle (but I am not at all sure that the case was rightly decided – see Continental Transfert Technique Ltd v Federal Government of Nigeria [2009] EWHC 2898 (Comm), paras 27-29). VTB was giving a $225m loan to Russagroprom to buy the dairy companies. It lent $225 million to Russagroprom LLC (RAP), incorporated in Russia, under a facility agreement governed by English law. 142. VTB Capital plc v Nutritek International Corp 2013 Refers to a "company" being like a "human being" excepted it will act through human agents with the company as "principal". Thus, the decision in Gilford had nothing to do with the fact that a company was involved, and therefore, as a matter of logic, the decision cannot have been based on piercing the corporate veil – a point made by Toulson J in Yukong Line at 308, and rightly accepted by Arnold J and the Court of Appeal in this case. In my view, however, and notwithstanding the difficulty of being able to define within one sentence the circumstances in which the law will – perhaps – lift the corporate veil, such was a highly ambitious submission. VTB Capital Plc v Nutritek International Corp & Ors [2012] EWCA Civ 808 (20 June 2012) VTB Capital Plc v Nutritek International Corp & Ors [2012] EWCA Civ 808 (20 June 2012) The Court of Appeal has in this case reconciled the differences between the jurisprudence from judges in the Chancery Division and the Commercial Court. 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