Landmark ruling by E&W Court of Appeal in the Mints Case on ownership and control and UK Government’s response
On 6 October 2023, the E&W Court of Appeal issued a significant judgment in the case of Mints v PJSC National Bank Trust & Anor  EWCA Civ 1132. As most relevant to sanctions practitioners, the case revolves around the "ownership and control" test under The Russia (Sanctions) (EU Exit) Regulations 2019 (Russia Regulations).
In a nutshell the Court found that the President of the Russian Federation – Vladimir Putin, together with Elvira Nabiullina, the Governor of the Central Bank of Russia (CBR) – could by virtue of their political office, be deemed to control Russian state assets, including state-owned PJSC National Bank Trust (NBT) one of the parties to the litigation. The case sets a highly noteworthy precedent and essentially reverses the thinking of the High Court on the same issue.
- Before Russia's invasion of Ukraine in 2022, two banks, including NBT, filed a commercial claim against the appellants, including Mr Boris Mints.
- President Putin and Governor Nabiullina were designated by the UK government in 2022.
- NBT was not expressly listed under the asset freeze of the Russia Regulations, but appellants argued that it should nevertheless be treated indirectly sanctioned under the asset freeze because it is 99 per cent owned by CBR, which in turn is controlled by President Putin and Governor Nabiullina.
The ownership and control test
The test under the Russia Regulations provides, in general terms and as relevant, that a person may be considered to control an entity if it is reasonable to expect that they can influence the entity's affairs according to their wishes. Further, companies that are not directly designated as persons subject to asset freeze restrictions must still be treated as such due to their ownership or control by designated individuals.
The Court of Appeal's findings and its impact
- In a statement considered “obiter”, ie non-binding in future cases but still of highly persuasive authority, the Court concluded that NBT and, by extension, CBR, can be considered to be controlled by President Putin and Governor Nabiullina for the purposes of the Russia Regulations.
- In contrast to the High Court's ruling in the same case, the Court of Appeal determined that there should be no exception to the ownership and control test for control exercised through political office. Notably, the Court asserted that President Putin, as a designated person, could potentially be considered to exercise control over "everything in Russia" according to the Russia Regulations.
- As mentioned, the Court decided in favour of the claimants on the first two grounds of appeal, making its findings on the ownership and control test non-binding (obiter). However, the interpretation could implicitly have the effect of imposing an asset freeze on every Russian institution of state and state-owned entity, including many prominent commercial entities, for the purposes of the UK sanctions regime on Russia (including in the UK Overseas Territories and Crown Dependencies).
UK Government's response
On 16 October 2023, the UK Foreign Commonwealth and Development Office (FCDO) issued an e-alert in response to the Court of Appeal's ruling in the Mints Case. The statement made the following key points:
- The Government is assessing the implications of the Court of Appeal's decision, particularly the Court's perspective that NTB could be considered “controlled” by designated persons as political office holders. It was acknowledged and noted that the case was not ultimately decided on this specific point.
- The FCDO will consider designating a public entity when designating a public official if it believes that the relevant official exerts control over that public entity.
- The UK Government does not automatically assume that a private entity located in Russia or any jurisdiction where a public official is designated is proof in itself of that official's control over the entity.
- To minimise any uncertainties, the Government is exploring options to provide further clarification on this matter.
- OFSI has collaborated with the FCDO to assess the implications of the Court's decision and endorses this statement. OFSI will continue its cooperation with stakeholders to better understand the impacts, especially regarding financial sanctions.
The judgment can be found here.