Koza Ltd and Anor v Koza Altin Isletmeleri AS 2020 EWCA Civ 1018 - 31 July 2020
This is an appeal from the grant of an injunction by Mr Jeremy Cousins QC, sitting as a Deputy Judge in the Chancery Division, restraining the appellants, Koza Ltd and Mr Ipek, from using £3 million of assets belonging to Koza Ltd to fund an arbitration claim brought under the auspices of The International Centre for the Settlement of Investment Disputes ("ICSID"). The ICSID arbitration claim is brought against the Republic of Turkey by Ipek Investments Ltd ("IIL"), said by the appellants to be the holding company for the corporate group to which Koza Ltd belongs ("the Koza Group"). The Koza Group is a Turkish based mining and media conglomerate owned by Mr Ipek and members of his family.
The injunction follows an undertaking given by Koza Ltd earlier in the proceedings not to use its assets otherwise than in the ordinary and proper course of business. There is a dispute between the parties as to whether the funding falls within that exception, which has already been considered by this Court ( EWCA Civ 891). This Court decided that the issue could not be definitively resolved either way on the basis of the written evidence in that application. It was common ground that it was equally incapable of definitive resolution on the injunction application before the Judge. The Judge granted the injunction on the grounds that he had a high degree of assurance that the funding would be a breach of the undertaking and the balance of least irremediable prejudice clearly favoured it. The application for permission to appeal against his decision was adjourned to the full Court for a rolled up hearing of the application and, if granted, the appeal itself.