Representation of OWH SE i.L v RTI Limited (Royal Court : Hearing (Civil) : Thompson : Companies) [2025] JRC 204 (8 August 2025)

judgment the COMMISSIONER: Introduction 1. This judgment contains the Court's reasons for appointing a provisional liquidator pursuant to Article 157B of the Companies (Jersey) Law 1991 ("the Companies Law") and for adjourning consideration of an application for a creditors' winding up until determination of certain appeals and other challenges described in more detail later in this judgment. Background 2. The general background to this dispute is set out in a judgment of the Royal Court dated 22 May 2025 reported at

OWH SE i. L v RTI Ltd [2025] JRC 137 , presided over by Sir Michael Birt ("the 22 May Judgment"). We adopt the general factual background set out in that judgment at paragraphs 3 to 22. We also use the same definitions and therefore refer to the Representor in this judgment as OWH and the Respondent as RTI.

3. It is also pertinent to refer to a judgment of the Bailiff sitting alone between the same parties reported at

OWH SE i. L v RTI Ltd [2025] JRC 145 and dated 28 May 2025 ("the 28 May Judgment"). This judgment dealt with an application by RTI to set aside a worldwide freezing and disclosure order made by the Bailiff on an ex parte basis on 18 November 2024.

4. The basis of the challenge, as summarised by the Bailiff at paragraph 10 of his judgment, was as follows: "10. The essence of the Defendant's argument before me is that the Plaintiff did not satisfy the appropriate tests in seeking a freezing order and, in particular, did not make full and frank disclosure and did not provide sufficient or any evidence of any risk of dissipation. The Defendant also resists the disclosure requirements." 5. OWH in their Skeleton Argument at paragraphs 4 to 5 expanded upon this as follows: "(4) On 26 November 2024, RTI applied to set the WWFDO aside. The basis on which it sought to do this was essentially that RTI claimed OWH had not provided sufficient evidence establishing a risk of RTI dissipating its assets. For example, in its skeleton of 27 November 2024 for the WWFDO set-aside hearing, RTI asserted that - (a) "[t]he evidence relied on by the Plaintiff to establish risk of dissipation is virtually non-existent"; and (b) "[t]he facts here come nowhere near establishing the risk referred to in sub- paragraph (9) [of Gee on Commercial Injunctions]".5) The affidavit provided in support of that application by Mr Kirill Strunikov did not address OWH's evidence at all. Nor did it contain an offer to provide security pending a proposed challenge to the enforcement of the Award in Jersey on public policy grounds which RTI had indicated it would be

making in a letter to OWH of 21 November 2024." 6. It is also important to record the assertion made at paragraph 7(6) of OWH's Skeleton Argument as follows: "(6) At the hearing of RTI's set-aside application before the Bailiff on 5 December 2024, Advocate Redgrave, on RTI's behalf, argued that the intra-group comfort letter did not give rise to a dissipation "risk factor" as contended by OWH. Instead, he described the position regarding the comfort letter in the following terms - "you owe us some money, but you don't need to pay it yet so that you can keep on as a going concern". As explained below, this was misleading because (as RTI knew, and OWH discovered only recently) by the time that the WWFDO had been granted, the comfort letter no longer reflected the status quo. In fact, and as OWH was to learn much later, the Libertatem loan was repaid on 23 September 2024, at a time when RTI knew the Award was on the verge of being rendered, and the proceeds were then shifted elsewhere in the Rusal group (while it is unknown yet whether before or after the Award was issued), facts which were clearly relevant to the Bailiff's decision on the set-aside application." 7. In light of RTI's challenge to the freezing order and related disclosure obligation, RTI was able to obtain a stay of those obligations until determination of its application by the 28 May Judgment.

8. At the same time as granting a worldwide freezing and disclosure order, the Bailiff also made an order permitting the enforcement in Jersey of the arbitral award referred to at paragraph 21 of the 22 May Judgment ("the Enforcement Order"). An application to set aside the Enforcement Order was made on 6 December 2024 by RTI and heard on 24 and 25 February 2025.

9. RTI, in resisting enforcement, relied on Article 44(3) of the Arbitration (Jersey) Law 1998 ("the Arbitration Law") meaning that it would contrary to public policy to enforce the award. In support of this assertion, RTI relied on Article 46A of the Sanctions Law which was introduced by an amendment with effect from 8 June 2022.

10. For the reasons set out in the 22 May Judgment, the Royal Court at paragraph 46 stated as follows in relation to what was public policy: "46. Accordingly, subject to the qualification described in the following paragraphs, we find that enforcement of an arbitration award against a party under an obligation to effect a payment he reasonably believes would be in breach of Jersey sanctions provisions in circumstances where the award has given no consideration to whether the defence provided for in Article 46A is available on the facts and where the court finds that it is so available, would fall within the public policy exception and such an award should not be enforced." 11. The qualification referred to was that the transaction, the subject matter of the arbitration award, and the events of default relied upon, had all occurred prior to Article 46A of the Sanctions Law coming into effect. This required the Royal Court therefore to determine whether Article 46A had retrospective effect.

12. The 22 May Judgment dealt with this argument at paragraphs 50 to 62. Its overall conclusions were summarised at paragraph 59 as follows: "59. In summary, we find that the public policy of Jersey at the present time is that, in respect of acts carried out after Article 46A came into effect on 8 June 2022, there can be no civil liability in respect of such an act if, at the time of the act, the person carrying out the act reasonably believed that it was necessary to do so in order to comply with a sanctions obligation or prohibition (as defined in Article 46A). Accordingly, on any future occasion concerning an act carried out after 8 June 2022, enforcement of an arbitral award in Jersey should be refused if enforcement would be contrary to Article 46A." 13. In the alternative, as summarised at paragraph 61, the Royal Court also considered RTI's alternative case as follows: "61. .... However, in case we are wrong in our conclusion that Jersey's public policy, as reflected in Article 46A, only applies to acts committed after Article 46A came into force, we go on to consider whether the defence described in Article 46A is made out on the facts. In other words, did RTI reasonably believe that it was necessary to not pay the margin calls in order to comply with the Sanctions Law and therefore not commit an offence under Article 11 of that Law?" 14. On RTI's alternative case, the Royal Court held that, while it was satisfied on balance that RTI did subjectively hold the required belief (see paragraph 95), that belief was not reasonable because of failures to have regard to either the possibility of paying funds to OWH at an account held in Germany with the Bundesbank or the alternative of giving a notice of illegality.

15. RTI has filed a Notice of Appeal seeking to challenge these conclusions.

16. We also note that RTI sought a stay pending appeal which was refused by Sir Michael Birt sitting alone for reasons set out in a judgment dated 16 June 2025, reported at

OWH SE i. L v RTI Ltd [2025] JRC 160 .

17. We further note that there are two other challenges being made by RTI in England to enforcement of the award. These challenges are also being made by RTI's ultimate parent company, United Company Rusal International PJSC ("Rusal"). Rusal had guaranteed RTI's obligation under the contract that led to the arbitration award. It was originally a Jersey company but has since redomiciled to Russia. The first challenge was made on 11 April 2025, pursuant to Section 68 of the English Arbitration Act 1996 which permits challenges to be made on the basis of a serious irregularity. The time limit for such challenges is normally twenty-eight days. In the present case, the arbitration award was handed down on 4 October 2024 and therefore the twenty-eight day period would have run from that date. The basis of the serious irregularity is that OWH failed to provide full disclosure documents in the arbitration proceedings.

18. Secondly, RTI and Rusal have filed a challenge against the arbitrators alleging bias on the basis that the arbitrators refused to stay applications dealing with questions of interest and costs in relation to the arbitration award pending the challenge made under Section 68.

19. RTI rely on these challenges as part of their resistance to the present application.

20. Subsequent to the 28 May Judgment, RTI provided discovery as required by the freezing order and related disclosure orders granted by the Bailiff in November 2024.

21. The Schedule of Assets provided revealed that most of the value of RTI was tied up in an apparently illiquid financial instrument.

22. In response to this Schedule, in a letter dated 20 June 2025, Bedell Cristin for OWH raised the fact that the Schedule of Assets provided did not list certain loans said to be worth in the sum of US Dollars 166 million, that had been payable to RTI in at least March 2024, and which had been referred to at paragraph 46 of an affidavit of Meike Von Levetzow. This affidavit was the affidavit filed on behalf of OWH in support of its applications to enforce the arbitration award in Jersey and for worldwide freezing orders and related disclosure orders. This affidavit referred to a loan of US Dollars 166 million owed by a Cyprus company known as Libertatem Materials Limited (" Libertatem ") to RTI. Libertatem's ultimate parent was also Rusal. The affidavit of Ms Von Levetzow, at paragraph 40(6), noted the following: "(6) According to the 2022 Annual Report of Libertatem , at the end of 2022 the company had loans payable to the Defendant of $166 million. In March 2024, the Defendant apparently issued a comfort letter stating that it waived its rights over the loan to the amount of $166 million after 18 months if Libertatem is unable to repay this sum [MVL-1/Pages 513-557]. It is submitted that the apparent waiver given by the Defendant gives rise to a justified concern regarding the risk of the Defendant dissipating its assets." 23. However, the disclosure provided by RTI did not refer to these loans which led Bedell Cristin to ascertain why they were not included in the Schedule.

24. This led Baker and Partners to reply by letter dated 24 June 2025 which included the following statements: "2. .... As part of a general restructuring of the Rusal group companies' operations, driven by the impact of sanctions, during the period 2023-2024 assets were transferred from RTI to other group companies and RTI has significantly reduced its activities." "10. Paragraph 6 - Libertatem repaid the USD 166m in full on 23 September 2024. RTI no longer has those funds, as they were used at the same time to make payments (including a loan repayment) to another Rusal group company. This was part of the restructuring process referred to above. There is therefore nothing to include in the schedule of assets in respect of this loan." 25. At the time RTI made these loan repayments, it had been notified that an award was likely to be published by the end of September by an email dated 14 August 2024 from Jonathan Nash KC, one of the arbitrators. The arbitration award itself was dated 25 September 2024, although it was agreed between the parties that notification of it was only provided on 4 October 2024.

26. The disclosure of Baker and Partners also revealed that certain other payments had been made to various law firms. However, by comparison with the amount of the award, these amounts were insignificant and Advocate Christie did not rely on them in support of OWH's application. Submissions 27. Advocate Christie firstly set out the legal framework for making a creditors' winding up application and, secondly, for an appointment of a provisional liquidator.

28. A creditors' winding up is made pursuant to Article 157A of the Companies Law.

29. Article 157A provides as follows: "157A Application for creditors' winding up by creditor (1) A creditor may make an application to the court for an order to commence a creditors' winding up if the creditor has a claim against the company for not less than the prescribed minimum liquidated sum and - (a) the company is unable to pay its debts; (b) the creditor has evidence of the company's insolvency; or (c) the creditor has the consent of the company." 30. OWH relied on the fact that it had evidence of RTI's insolvency rather than by service of a statutory demand which is set out in Article 157A(2).

31. The evidence of insolvency was the failure to pay the arbitration award, and the fact that the Schedule of Assets disclosed assets which were less than 10% of the amount of the arbitral award.

32. Advocate Christie realistically accepted that this issue could not be determined until any appeal against the 22 May Judgment and the other challenges described above had been resolved and accordingly suggested that determination of the creditors' winding up order be adjourned.

33. When skeleton arguments were filed, there initially appeared to be an argument as to whether OWH had standing to make an application for a creditors' winding up at all. However, this issue was explored in HWA 555 Owners LLC v Redox Plc S. A. [2023] (2) JLR 1 which the Commissioner had drawn to the parties' attention. We refer in particular to paragraph 96: "96. The third point originally put forward by the second respondent, but abandoned, was that there was a genuine dispute about whether the money was owed at all. The problem with this argument was that the matter had been litigated, and a court of competent jurisdiction had decided that the liability attached. This was not the case of a dispute which had not yet been adjudicated upon. There was indeed an appeal, but, unless and until the appeal was successful, the decision at first instance stood. In fact, we now know that the appeal has been unsuccessful, and that the decision at first instance has been affirmed. If it had not been abandoned, this point would have fallen away anyway." 34. In light of this authority and because of the 22 May Judgment, Advocate Dann rightly conceded that OWH had standing.

35. The arguments put before the Court therefore centred on whether or not a provisional liquidator should be appointed.

36. The power to appoint a provisional liquidator is to be found in Article 157B of the Companies Law as follows: "157B Appointment of provisional liquidator (1) Subject to the provisions of this Article, the court may, at any time after an application for a creditors' winding up is made under Article 157A, appoint a liquidator provisionally. (2) The liquidator appointed provisionally under this Article must carry out such functions that the court may confer on the liquidator. (3) The powers of a liquidator appointed provisionally under this Article may be limited by the order appointing the liquidator." 37. As far as both the parties and the Court were aware, the Royal Court has not previously considered an application for the appointment of provisional liquidators pursuant to Article 157B, albeit the Court is aware that the Royal Court has recognised the appointment of provisional liquidators made by foreign courts (see e.g. Representation of Tacon [2007] JRC 065 ).

38. Given the similarities between Article 157B and the equivalent provisions in England, Advocate Christie therefore relied on the approach taken by the Courts in England. He therefore referred to me McPherson and Keay's Law of Company Liquidation (5 th edition) ("McPherson") at paragraph 601, and the cases of In Re Highfield Commodities Limited [1985] 1 WLR 159 and In Re Revenue and Customs Commissioners v Rochdale Drink Distributors Limited [2011] EWCA Civ 1116.

39. As to why such an appointment should be made now, he contended the following: (i) RTI and Rusal had been in breach of the undertaking to pay arbitration awards which formed part of the relevant rules under which the arbitration was conducted. (ii) No security had been offered pending challenges to the various awards. (iii) RTI had sought to strike off RTI from the Gibraltar Companies Registry where it had a branch on the basis that RTI had no assets or liabilities. This had occurred in December 2024 at the time OWH had obtained the worldwide freezing and disclosure order and an ex parte order to enforce the award in Jersey. (iv) In seeking to have the freezing and disclosure order set aside, RTI has misled the Court in making submissions on the comfort letter given by RTI to Libertatem where it implied that it had represented the status quo, without clarifying that in fact a few days before the award was handed down those assets had been paid out of RTI at a time which has not so far been clarified. (v) It was also contended that RTI had sought to delay disclosure to prevent this fact from being revealed. While Advocate Christie did not go so far as to suggest that Advocate Redgrave had misled the Court, because Advocate Redgrave had simply put OWH to proof of its allegations both RTI and Advocate Redgrave were in possession of material information not known to either

the Court or OWH which was relevant and would have confirmed the case that OWH was advancing. (vi) The Section 68 challenge was way out of time and hopeless on its merits. (vii) There was no evidence from RTI or Rusal that any group restructuring was done for genuine commercial reasons. Even if that were true, that could not justify moving assets to other group companies and rendering RTI hopelessly insolvent. Advocate Christie described what had happened as asset stripping. (viii) RTI had failed to explain how the loans of US Dollars 166 million came to be paid away. It was not clear why this occurred and whether there were any liabilities owed to third parties leading to such loans being repaid.

40. It was therefore important that these matters were investigated and assets preserved. In that regard, in his oral submissions, Advocate Christie placed more emphasis on the preservation of assets, whereas his written skeleton suggested investigating matters was more important.

41. Advocate Christie accepted that ultimately the provisional liquidator would have to take steps in other jurisdictions to have the appointments recognised and to take steps to preserve assets. He made it clear that the intention was not to start substantive proceedings but only to preserve assets, albeit that depending on the jurisdiction it might be necessary for substantive claims to be asserted as part of the process of freezing assets.

42. If assets could not be frozen in the manner envisaged then, by the time the creditors' winding up was determined and liquidators appointed, the trail would have gone cold.

43. In support of his submissions, Advocate Christie had also provided a draft order upon which Advocate Dann had made certain comments.

44. The draft order rightly recognised that the current directors could continue to pursue the appeal and the other challenges we have already described. The directors were also entitled to copies of documents belonging to RTI to pursue the appeal and other challenges.

45. Advocate Christie however was concerned that the directors should not have power to continue to defend enforcement proceedings or defend any further proceedings taken because the effect of appointing provisional liquidators was that all claims by or against the company ceased except with leave of the Court. OWH could not therefore continue with the other proceedings it had already started and could not bring fresh proceedings. As the party seeking relief from the Court, it would be contrary to its own application to therefore try to take enforcement proceedings elsewhere.

46. In respect of the directors preserving the privilege and confidentiality of documents, while Advocate Christie understood that his clients as a creditor could not have access to privileged information, he was concerned about the directors taking steps to preserve such documents. As to any other claims to be pursued, these were matters for the provisional liquidator, not the directors.

47. In relation to pursuing the appeal, under the terms of the injunction to date, an exception to the injunction had allowed the directors access to costs to make the various challenges leading to the 22 May and 28 May Judgments. Advocate Christie fairly accepted that this should continue in respect of the appeal. However, the other challenges were also being pursued by Rusal and he therefore contended that any other challenges should be funded by Rusal and not RTI.

48. In relation to what was going on in the Rusal group, he emphasised the overlap of directors between RTI and Rusal. In addition, not all of those directors were based in Russia and therefore there were other jurisdictions where the provisional liquidator could make enquiries and seek to recover assets. Libertatem was a Cyprus company and its immediate parent appeared to be based in Qatar with the same directors as RTI.

49. While he did not seek to review payments of certain legal fees which were de minimis in amount, he did also refer to a sale of assets of RTI which took place in August 2024. This was referred to at paragraph 12(4) of Baker and Partner's letter dated 24 June 2025 and described a sale of silicon owned by RTI to AL Plus Trading DMCC, another company within the Rusal group, for$8.2 million, with $7 million of that money being used to repay loans on 21 August 2024. Again, there was a lack of detail in relation to this transaction which therefore merited investigation.

50. Advocate Dann for RTI, while conceding that OWH had standing to seek a creditors' winding up, emphasised that the Court possessed a discretion. Given that the appeal was arguable as Commissioner Birt had conceded in refusing a stay, the Court did possess a discretion not to allow OWH to seek a creditors' winding up and therefore not to appoint provisional liquidators at this stage.

51. In relation to the applicable legal principles, he emphasised that it was a high test and in most of the cases what was involved was fraud. There was no allegation of fraud in this case.

52. The reason for the restructuring was due to the impact of sanctions which had led to the Rusal group undergoing a general restructuring. This was why assets were transferred from RTI to other group companies and the activities of RTI had significantly reduced. In relation to this restructuring, an email was read out from an in-house lawyer based in Moscow but it did not add anything to statements previously made on affidavit by RTI (see first affidavit of Roman Khaev dated 7 July 2025 filed in response to the disclosure orders made by the Bailiff in support of the world wide freezing orders).

53. Advocate Dann was concerned about privilege and OWH having access to material and questioned how any safeguards built in might work in practice.

54. He was also concerned about OWH taking steps to continue to pursue enforcement claims elsewhere. Decision 55. The ultimate decision we had to make in light of the fact that it was conceded that OWH had standing to seek a creditors' winding up was whether or not to refuse to exercise our discretion to allow such an application to be brought, and whether or not provisional liquidators should be appointed.

56. In our view, the matters relied upon by OWH relating to whether or not provisional liquidators should be appointed essentially overlapped with any arguments about the Court exercising its discretion not to allow OWH to pursue an application for a creditors' winding up. In other words, if we were satisfied that OWH had made a case for appointing provisional liquidators, then we were also satisfied that OWH, as a matter of discretion, should be allowed to continue with its application for a creditors' winding up. In this case, the converse position was therefore that if we were not satisfied that OWH had established grounds to appoint a provisional liquidator, then we were also not satisfied that it would be right for the Court to exercise its discretion to permit a creditors' winding up application to be presented at this stage and instead it should await the outcome of the appeal and other challenges.

57. In relation to the applicable legal principles on the appointment of a provisional liquidator, we agree with Advocate Christie that in the absence of jurisprudence within this jurisdiction and given the similarity between Article 157B of the Companies Law and its English equivalent, that it is appropriate to look at English authority.

58. The overall summary referred to by Advocate Christie in McPherson provides as follows: "The reason for the petition tends to be, on most occasions, that there is a perception that the assets and affairs of the company are in jeopardy, primarily because the directors and/or shareholders may dissipate the assets while the petition is pending, and that the ultimate effect of leaving the assets in the hands of the company may be that the creditors and/or members will be disadvantaged, if the company is eventually wound up. In most cases the usual concern is the attitude of the directors, and that there is a need to displace them from their position of authority to deal with the assets. This might occur where a creditor is seeking to wind up the company or where there is a conflict between the directors and the company itself." 59. We also note that McPherson described the power to appoint as a "draconian power" which will be a "serious intrusion for the company" .

60. McPherson also suggests that we should apply the following criteria in considering any application: "In considering any application, the court should examine the degree of urgency, the need established by the applicant and the balance of convenience. In relation to the issue of urgency, the case of Re W. F. Fearman Ltd is interesting. In that case Harman J agreed to hear an application for the appointment of a provisional liquidator where there was no application in writing and the usual procedural requirements had not been adhered to. The learned judge made the appointment as requested. The courts must balance the interests of the creditors against that of the company." 61. We also note that as well as having a discretion as to whether or not to appoint a provisional liquidator, we also possess a discretion as to what powers might be vested in that provisional liquidator.

62. In Revenue and Customs Commissioners v Rochdale Drinks Distributors Limited [2011] EW Civ 1116, the Court of Appeal made the following observations at paragraphs 75 to 77: "75. The court's jurisdiction to appoint a provisional liquidator is conferred by section 135 of the Insolvency Act 1986. Section 135(1) provides that 'Subject to the provisions of this section, the court may, at any time after the presentation of a winding-up petition, appoint a liquidator provisionally'. Section 135(2) provides that in England and Wales, 'the appointment of a provisional liquidator may be made at any time before the making of a winding-up order; and either the official receiver or any other fit person may be appointed'. Section 135(4) provides that the provisional liquidator shall carry out such functions as the court may confer on him; and section 135(5) provides that that his powers may be limited by the order appointing him. The power to appoint a provisional liquidator is, therefore, a broad and general one in the sense that, provided that the jurisdictional conditions in section 135(1) and (2) are met, the section imposes no limitations upon, nor does it prescribe, the criteria to be adopted by the court when considering an application for such an appointment (see Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105, at 1109h, per Plowman J; and In re Highfield Commodities Ltd [1985] 1 WLR 149, at 158G to 159F, per Sir Robert Megarry V-C).

76. The appointment of a provisional liquidator to a trading company is, however, a most serious step for a court to take. It is likely in many cases to have a terminal effect on the company's trading life. It is not an order to be made lightly and its making requires the giving by the court of the most anxious consideration. In Union Accident Assurance, Plowman J explained the twofold approach that he proposed to adopt. He said, at [1972] 1 All ER 1105, 1110b: "There are two matters though, which seem to be relevant for me to consider. The first is whether the department has made out a good prima facie case for a winding-up on the hearing of the petition. Any views I express about the matter now are of course provisional only because I am not trying the petition at the present time. If the department has not made out a good prima facie case for a winding-up order then clearly I think it would not be right to appoint a provisional liquidator. On the other hand, if the department has made out a good prima facie case for a winding-up order then the second matter for my consideration arises, namely, whether in the circumstances of this case it is right that a provisional liquidator should have been appointed.' 77. With one qualification, I would respectfully regard that as a good working approach to the disposition of an application for the appointment of a provisional

liquidator. The qualification is that I would, however, regard the continued use in this context of the phrase 'good prima facie case' as unsatisfactory. In American Cyanamid Co v. Ethicon Ltd [1975] AC 396 , at 404F, Lord Diplock said of the phrase 'prima facie case' that it 'may in some contexts be an elusive concept', and Plowman J's chosen phrase also included a 'good', which may perhaps tend to increase the risk of elusiveness. Given the potential seriousness of the appointment of a provisional liquidator, I consider that in the case of a creditor's petition the threshold that the petitioner must cross before inviting such an appointment ought to be nothing less than a demonstration that he is likely to obtain a winding-up order on the hearing of the petition." 63. These are the principles we have applied.

64. In applying these principles, it is not therefore necessary for an applicant to establish fraud. Rather, each case depends on its own circumstances. What, in our judgment, is significant is that the appointment of a provisional liquidator is a serious step and therefore one that should not be undertaken lightly. In other words, there must be something significant which justifies the appointment of a provisional liquidator.

65. In this case, RTI is not a trading company. Based on the material before us, it seems to be undergoing some form of restructuring. However, as Advocate Christie contended, there are serious questions about why a loan of US Dollars 166 million was repaid shortly before the arbitration award was about to be released and whether, as he alleges, some form of asset stripping has occurred. The evidence filed on behalf of RTI to date is lacking in sufficient detail and begs more questions than it answers. In particular, it is not clear when the loan of US Dollars 166 million was repaid to RTI, why these monies were then paid away by RTI, who they were paid to and what was the legal basis for making such payment. In addition, there are questions as to why payments were made with the speed that they were.

66. All of this, in our judgment, requires investigation and further warrants steps being taken to preserve assets. We also agree with Advocate Christie if we were therefore to leave matters until the question of a creditors' winding up order being made was resolved, then any trail would have been likely to have gone cold. The investigation needs to take place as a matter of urgency.

67. As matters stand, it is also right to recognise that OWH is in reality only likely to recover assets which are outside Russia. We therefore conclude it is important for a provisional liquidator to be able to preserve such assets. We accordingly grant the application to appoint a provisional liquidator.

68. In doing so, we imposed certain limitations on the powers of the provisional liquidators.

69. Firstly, while we gave the provisional liquidators powers to issue proceedings to preserve assets, to the extent it is necessary for the provisional liquidators to make substantive claims in respect of those assets as part of seeking preservation orders, then the provisional liquidators are required as soon as reasonably practicable to come back to Court to seek the Court's blessing for the actions taken and what future steps should occur.

70. Secondly, in relation to privileged material, it is for the provisional liquidators to preserve that material and OWH should not have access to it. While we understand the concerns of Advocate Dann and the directors in relation to this material, by making this order we consider that such concerns were addressed. We accept that there may be complications that might arise but we consider that the effect of the overall order being made addressed the important principle of OWH not having access to privileged advice. In relation to such complications, there is always power to come back to Court under the liberty to apply provision should further directions from the Court be needed.

71. We further rule that it is not necessary for orders to be made allowing the directors to resist any enforcement proceedings whether currently on foot or in the future because no such proceedings can be continued or commenced by OWH without leave of this Court.

72. We further directed that the provisional liquidators may retain their own advisers provided that any such advisers were independent of any lawyers retained by OWH. This is to ensure that the provisional liquidators could and should act independently of OWH.

73. Otherwise we approved the draft order provided by Advocate Christie as commented upon by Advocate Dann.

74. We also ordered that the directors could continue to have their costs paid out of assets of RTI in bringing the appeal before the Court of Appeal or any further applications under this order or oppose the creditors' winding up. We refused, however, permission for the directors to be able to pursue the costs of any other challenges given that these challenges were also being brought by Rusal. It was therefore for Rusal to fund these challenges. We reached this view because of the lack of detailed explanation as to why US Dollars 166 million had been repaid which also led us to appoint the provisional liquidators as requested. Authorities Companies (Jersey) Law 1991.

OWH SE i. L v RTI Ltd [2025] JRC 137 .

OWH SE i. L v RTI Ltd [2025] JRC 145 . Arbitration (Jersey) Law 1998. Sanctions Law

OWH SE i. L v RTI Ltd [2025] JRC 160 . English Arbitration Act 1996. HWA 555 Owners LLC v Redox Plc S. A. [2023] (2) JLR 1. In the matter of the representation of Tacon [2007] JRC 065 . McPherson and Keay's Law of Company Liquidation 5th Ed. In Re Highfield Commodities Limited [1985] 1 WLR 159. In Re Revenue and Customs Commissioners v Rochdale Drink Distributors Limited [2011] EWCA Civ 1116. Page Last Updated: 17 Sep 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII