Summary

This case concerns a written Long Term Incentive agreement ("the LTI Agreement") dated 1 October 2015 and expressed to be made between the claimant, Zalina Kanametova, the general director of OSG Records Management Centre LLC from August 2011 to 15 May 2018 (henceforth referred to as "OSG Russia") on the one hand, and the defendant, OSG Records Management (Europe) Limited, a company incorporated in Cyprus (henceforth referred to as "OSG") on the other. At all material times OSG Russia was a subsidiary of OSG, which was the holding company of a group of companies providing records management services in Eastern Europe.

The LTI Agreement provided for the claimant to receive a long-term bonus calculated by reference to the equity value of OSG per share and payable upon the sale by Elbrus Capital Funds of all its shareholdings in OSG (except on an intra-group basis). Elbrus Capital Funds (henceforth "Elbrus") was a private equity fund and majority shareholder of OSG through Octala Services Limited until 30 May 2017 and through Truvon Trading Limited from 30 May 2017 to 9 January 2020.

The LTI Agreement was signed by the claimant and by Krzysztof Bobrowski ("Mr Bobrowski"), who was a director and CEO of OSG until 17 December 2018 when OSG terminated his position, (although the parties later agreed to treat 31 March 2019 as the date of termination). His name is stamped with the company seal of OSG.

The bonus which the claimant claims under the LTI Agreement is calculated at c. USD 1.3m. The LTI Agreement contains an arbitration clause. On 8 September 2023 the claimant filed two requests for arbitration under the LCIA Arbitration Rules 2020: one for payment under the LTI Agreement which she alleged was executed by Mr Bobrowski on 1 October 2015 and by herself on 8 October 2015; and the other for payment under a Management Incentive Programme referred to in a Shareholders' Agreement dated on or about 30 May 2017 and made between OSG, Truvon Trading Limited and Iron Mountain EES Holdings Limited. Those arbitrations were consolidated. The parties appointed Rosalind Phelps KC to act as the sole arbitrator.

OSG challenged the tribunal's jurisdiction on the basis that the LTI Agreement was not executed on 1 October 2015 (when Mr Bobrowski was CEO) but sometime between February and May 2020 (when Mr Bobrowski was no longer CEO) and fraudulently backdated by the claimant and Mr Bobrowski.

Following a three-day hearing, during which the claimant, Mr Bobrowski and Vadym Pavlus (the investment director for Elbrus) gave oral evidence, the tribunal found that the LTI Agreement was not executed on 1 and 8 October 2015 as alleged by the claimant, but was signed at a later date in 2020 and backdated, so that there was no binding arbitration agreement between the claimant and OSG, and OSG's challenge to the tribunal's jurisdiction under the LTI Agreement succeeded. The claim under the Management Incentive Programme also failed on the basis that the claimant had not established that she had a right to enforce the relevant term and so was not to be treated as party to the relevant arbitration agreement.

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