Sa’ad Hossain KC

Sa’ad deals with a wide range of commercial disputes including in relation to share sale agreements and indemnities, joint ventures, joint operating agreements, agency and distributorship contracts and tort disputes - including conspiracy, unlawful interference, professional negligence and breach of confidence/privacy.

Recommended in the leading directories as an advocate and adviser in complex commercial disputes:

"Gets more into the detail of cases than most." "His advice is always clear, considered and commercial, and he's excellent in front of the client." Commercial Dispute Resolution, Chambers Global 2020

Recent work includes:

• Travelport Ltd v WEX [2020] EWHC 2670 (Comm)
  For the sellers of a travel payments business in a $1.7 billion transaction in the trial of preliminary issues relating to whether the “Material Adverse Effect” clause in the contract releases the buyers from the obligations to close as a result of the effect of the Covid-19 pandemic.
• SDIR (Sports Direct) v. The Rangers Football Club Limited
  Acting for Sports Direct in the Commercial Court obtaining urgent injunctive relief, determination of construction issues, and final declaratory relief, concerning disputes about matching rights in relation to Rangers’ kit and branded products. Arising from contracts entering into following the compromise of derivative proceedings relating to prior arrangements, in which Sa’ad also acted as advising counsel pre-hearing.
• GAMA Aviation v Volare Aviation and Others
  For GAMA at trial of numerous commercial disputes between aviation chartering and maintenance companies, arising from an exit agreement between GAMA and its former CEO. Numerous issues of contractual construction, fiduciary obligations, technical aviation issues. Settled part way through a 4 week trial.
• Lehman Brothers’ Special Financing  v. NPC and PSALM
  For LBSF in the Commercial Court in proceedings concerning Close-Out Amount calculations following an Event of Default in interest rate swaps. The leading case on the objective nature of reasonableness under the 2002 ISDA terms, requirements of good faith, and the ability to revise calculations.  Also involving complex expert evidence regarding pricing of long term swaps in illiquid markets.
• Brown v. British Car Auctions Limited (Re: Tradeouts Limited)
  For BCA defending unfair prejudice claims arising out of its purchase of a developing on-line dealer to dealer sales platform.  4 week evidence heavy trial in the ChD essentially revolving around an unsuccessful allegation of a concerted attempt to cause the Company to fail. Raising legal issues of – equitable restraints, fiduciary duty, good faith, contractual construction, and numerous factual questions of corporate governance.
• Ashany v. Eco-Bat
  For Ashany in hearings ancillary to a dispute regarding anti-trust investigations into Eco-Bat. At first instance and in the CA, successfully displacing the default costs rules following discontinuance in Ashany’s favour.
• TWUL v. Canal and River Trust Authority
  For TWUL on appeal to the CA, a water rights case concerning the ability to convey property in a body of running water, and the statutory purpose of payment provisions in historical water rights statutes, leading up to the present regulatory regime.
• Sir Owen Glenn v Watson and Others
  Leading a 3 counsel team for certain Defendant trust companies in heavy ChD proceedings arising out of the “Spartan” venture. Settled on behalf of the trust companies part way through a 3 month trial (trial continued against Watson). A case raising numerous issues: joint venture obligations, fiduciary duties of nominee directors, equitable proprietary claims, unjust enrichment, ground rent securitisation, attribution of knowledge.
• Clean Power v. Network Rail
  For Clean Power in ongoing Commercial Court proceedings concerning alleged breach of reasonable endeavour obligations and loss of opportunity to construct EfW power plants on Network Rail sites.
• MHB v. Structadene
  Obtained summary judgment for the claimant bank on sums due under ISDA documentation.  The issues raised were set-off and netting under ISDA documentation, and the relevance of mis-selling cross-claims. Currently, the leading case on the ISDA early termination set-off provisions.
• McKillen v. Misland
  As lead Counsel successfully obtained judgment on preliminary issues  concerning the interpretation of pre-emption provisions in the context of the acquisition of control of Claridge’s, the Connaught and the Berkeley hotels by the client companies associated with the Barclay Brothers. A leading authority on the approach to interpretation of pre-emption provisions.
• Re: Coroin (trial and appeal)
  For the Barclay Interests in an expedited trial and appeal, successfully defending various allegations of wrongdoing in the context of a hostile acquisition of control over the Coroin hotel group by the Barclay Brothers. Issues arose of shareholder agreement interpretation, pre-emption provisions, contract formation, good faith obligations, unfair prejudice, economic torts and breach of fiduciary duty. The litigation also raised complex procedural issues including: expedition, preliminary issues, non-party disclosure and privacy regimes.
• Advised in connection with domestic and foreign satellite litigation following trial, including jurisdictional issues.
• BG v. Talisman
  For Talisman as lead counsel in relation to claims and counterclaims for operating expenditure in relation to North Sea oil production arrangements. Successfully obtained judgment on preliminary issues as to the scope of operating expenditure under new production arrangements.  Issues raised included the interpretation of operating agreements, restitution, operation of consent provisions, and prudent operatorship.
• Dorchester v. BNP Paribas and Landprop
  For the Inter-IKEA group of companies in case concerning a substantial Stratford property development site.  Issues raised were alleged breach of confidence and non-disclosure obligations, together with substantial damages issues requiring expert consideration of planning conditions, s106 agreements, development funding, and  expert development profit assessment.
• London Underground v. Freshfields
  For Freshfields (as junior silk) in a prominent professional negligence claim arising from the collapse of the PPP for the refurbishment  and maintenance of the London Underground, and the subsequent payment of substantial sums pursuant to a complex PPP structure.  Issues of PPP structure, interpretation of interlocking finance and operational agreements, bond terms and conditions, solicitor’s duty and standard of care, and causation and loss, including Wrotham Park principles.
• MFL v. Bank Leumi
  For the defendant bank in a claim for overuse of banking software. Issues of jurisdiction (as between England and Israel), and underlying issues of contractual interpretation, usage, agency, authority and estoppel.
• PIC v. Dow
  For the claimant in Commercial Court proceedings seeking to set aside an arbitration award on grounds of procedural irregularity.  Issues concerned the scope of challenge, and the application of the Achilleas to the rules of remoteness of damage.

Sa’ad has recently acted and advised in relation to jurisdictional and conflict of laws disputes in relation to various jurisdictions including: Ireland, Israel, California, and Kuwait.

Examples of recent and notable work:

• Kwok v UBS AG
  Acting for an ultra-high net worth Chinese businessman and dissident, Mr Miles Kwok, and his companies against UBS to claim damages in excess of US$500 million arising out of the total loss of a leveraged investment in shares in a Chinese company listed on the Hong Kong stock exchange. Relating to the exercise of its security rights during a margin call. Resisting the Defendant bank’s challenge to the jurisdiction of the English courts to hear claims relating to allegations of negligence.
• PJSC Bank "Finance and Credit" v Zhevago [2021] EWHC 2522 (Ch)
  Successfully obtained a stay for the Fifth Defendant on the ground of forum non conveniens in a substantial case involving alleged fraudulent schemes to transfer assets from Ukrainian financial institutions. The Court determined that the Fifth Defendant’s application for strike-out did not amount to a submission to the jurisdiction of England & Wales.
• Unicredit Bank GmbH v RussChemAlliance LLC [2024] EWCA Civ 64
  Acted in the most recent appellate case interpreting Enka v Chubb principles applicable to ASIs in support of foreign arbitral proceedings. The Court held that the general rule that an arbitration agreement is governed by the law applicable to the main contract was not, in this case, displaced by the law of the seat (French law). The arbitration agreement between the parties was governed by English law. Accordingly, the Court had jurisdiction to grant an anti-suit injunction to restrain the respondent’s pursuit of proceedings in Russia.
• Claridge’s litigation
  Advised and acted in relation to jurisdictional questions affecting multiple competing proceedings issued, respectively, in Ireland and England and Wales, subsequent to the Barclay companies’ successful defence of the original English Re: Coroin litigation concerning the validity of control acquired over the hotel group
• Nets v. Sanmina
  Advised and acted in litigation securing English jurisdiction in respect of commercial agency disputes notwithstanding exclusive Californian jurisdiction and governing law provisions. A case raising novel legal issues as to the mandatory effect of the Commercial Agents Regulations.
• Acting as expert
  Sa'ad has also acted as expert in Cypriot proceedings on the scope of Article V of the New York Convention.

Sa’ad has wide experience as leading, sole and junior counsel in ICC, LCIA, SCC and ad hoc arbitrations, as well as extensive experience of expert determinations. His expertise includes ancillary proceedings, in particular: arbitral award challenges; arbitral validity challenges; ancillary orders; and stays of court proceedings in favour of arbitration.

Recent and notable cases include:

• LCIA Arbitration
  Leading counsel for the respondent in a case seeking specific performance/damages in relation to completion of a share purchase agreement concerning Middle Eastern insurance businesses.
• ICC Price Review
  For the claimant energy major, seeking a price review in relation to a substantial European long term energy supply contract.  A case raising a wide variety of issues of construction of price review provisions, and economics issues concerning the effects on gas values and merit orders of energy supply and demand changes, including renewables, shale gas, government regulation and CO2 allowances.
• ICC Shipbuilding dispute
  For the claimant shipbuilder in a substantial dispute relating to a contract for the construction and delivery of coastguard vessels.  Issues raised included construction of the delivery and performance specifications, and detailed expert ballistics and armament evidence.
• ICC Petrochemicals merger (Dow v. PIC)
  As junior counsel and lead advocate on quantum for the effective buyer in relation to the non-completion of the world’s largest petrochemicals merger.  A case raising issues of Kuwaiti constitutional law, SPA construction, and many quantum issues including: Achilleas principles of remoteness, date of assessment (Golden Victory), business valuation methodology, damage to credit rating, bond pricing and term loan pricing, event-studies of share price fluctuation, and global energy and petrochemical market developments.
• PIC v. Dow
  For the claimant in Commercial Court proceedings challenging an arbitral award on grounds of serious procedural irregularity.  A case raising issues as to the nature and extent of procedural challenges, and substantive issues of the law of remoteness.
• Expert determination of electricity pricing
  As leading counsel for the electricity purchaser in a case concerning the interpretation of pricing formulae in an electricity allocation agreement.  An energy case raising issues concerning carbon price support rates and climate change levy amendments.
• ICC SPA indemnity dispute
  For the seller of an international waste management business, in relation to indemnities for regulatory penalties.
• LCIA hotel development dispute
  For the claimant luxury brand in relation to the development of branded luxury hotels in the Middle East.
• SCC SPA and pensions dispute
  For the claimant, SEB, in a long running claim for indemnity/damages in relation to the sale of a pensions business, in the context of substantial payments to third parties under the Pensions Review. 
• Also for SEB in several related court proceedings, including: defending a challenge to the validity of the arbitration; breach of warranty of authority proceedings; and defending an award challenge on error of law grounds.
• Price Indexation reviews
  Several ad hoc expert determinations concerning long term energy price indexation provisions in the context of changes in environmental taxation.
• Ad hoc Utilities dispute
  For a water company in relation to a construction/rectification dispute regarding water charges.
• Bluecrest v. Rusal
  For the respondent facility agreement lender, obtaining a s.9 stay of proceedings in favour of arbitration, involving issues of jurisdiction and the construction of arbitration and jurisdiction clauses.

Sa’ad has a substantial energy practice in upstream and downstream oil and gas, and in electricity supply and generation.  He advises regularly in relation to operating, transportation and capacity agreements; decommissioning agreements; drilling rig and FPSO operation; take-or-pay obligations; price indexation and review;  and oil hedging.

Current recommendations:  

"His softly spoken eloquence masks a razor-sharp intellect. Importantly, he is also very down-to-earth and client-friendly, effortlessly summarising difficult legal issues into digestible nuggets." "He's very clever, very charming and receptive. If he promises to give you something he always does; he'll never let you down." Energy & Natural Resources, Chambers Global 2020

Recent and notable cases include:

• ConocoPhillips A/S v Aker BP ASA
  Acting for the defendant in a price review dispute relating to the sale of gas produced from the Valhall field. Unusually, the dispute is being resolved in the High Court.
• Taqa Bratani Limited & Ors -v- Rockrose USCS8 LLC
  For the defendant in an trial concerning the hostile removal of Rockrose as operator of five oil and gas field blocks on the UK Continental Shelf in the North Sea known collectively as the Brae Fields. A case raising novel issues of construction, good faith, and the implication of rationality constraints on the exercise of contractual termination rights.
• Clean Power v Network Rail
  For Clean Power in ongoing Commercial Court proceedings concerning alleged breach of reasonable endeavour obligations and loss of opportunity to construct EfW power plants on Network Rail sites.
• BG v. Talisman
  For Talisman as lead counsel in relation to  Commercial Court claims and counterclaims for operating expenditure in relation to North Sea oil production arrangements. Successfully obtained judgment on preliminary issues as to the scope of operating expenditure in the context of replacement production arrangements.  Issues raised included the interpretation of operating agreements, restitution, operation of consent provisions, and prudent operatorship.
• ICC Price Review
  For the claimant energy major, seeking a price review in relation to a substantial European long term energy supply contract.  A case raising a wide variety of issues of construction of price review provisions, and economics issues concerning the effects on gas values and merit orders of energy supply and demand changes, including renewables, shale gas, government regulation and CO2 allowances.
• ICC Petrochemicals merger (Dow v. PIC)
  As junior counsel and lead advocate on quantum for the effective buyer in relation to the non-completion of the world’s largest petrochemicals merger.  A case raising issues of Kuwaiti constitutional law, SPA construction, and many quantum issues including: Achilleas principles of remoteness, date of assessment (Golden Victory), business valuation methodology, damage to credit rating, bond pricing and term loan pricing, event-studies of share price fluctuation, and global energy and petrochemical market developments.
• Capacity Reservation and Transportation Agreement
  Advising in relation to disputed fees for reservation of capacity in a major pipeline system.
• LNG processing dispute
  Advising in relation to regasification charges and contractual and restitutionary remedies at a major LNG terminal.
• Transocean v. Providence
  For Providence, the hirer, advising and acting in relation to Commercial Court claims and counterclaims in relation to rig hire claims and rig defects.
• ADTI v. Endeavour
  For Endeavour, the hirer, advising and acting in relation to Commercial Court claims and counterclaims in relation to rig hire, mitigation and rig defects.
• Force majeure obligations arising from strike action
  Advising a major refinery in relation to the interpretation and application of force majeure provisions in the context of threatened industrial action potentially affecting upstream and downstream assets.
• Advice in relation to take-or-pay obligations
  Advising an energy major as to the extent and nature of send-or-pay obligations in a very substantial long-term LNG supply contract, and the availability and interpretation of diversion cargo rights.
• Advice in relation to oil and gas joint venture
  Advising an oil major in relation to arbitral and court proceedings in connection with a dispute with its joint venture partners in relation to Russian production assets.
• Standard Chartered Bank v. Ceylon Petroleum Corporation
  For the bank, enforcing out-of-the-money oil derivative contracts. A case raising issues of contractual capacity, illegality, advisory duties, and non-reliance provisions in relation to zero cost-collars entered into by state owned corporations.
• Expert determination of electricity pricing
  As leading counsel for the electricity purchaser in a case concerning the interpretation of pricing formulae in an electricity allocation agreement.  An energy case raising issues concerning carbon price support rates and climate change levy amendments.
• Price Indexation reviews
  Several ad hoc expert determinations concerning long term energy price indexation provisions in the context of changes in environmental taxation.
• Ad hoc Utilities dispute
  For a water company in relation to a construction/rectification dispute regarding water charges.
• Centrica v. Premier Power
  For the (successful) Claimant in relation to a substantial dispute over the sharing of gas transportation costs along the undersea pipeline between N. Ireland and Great Britain, following Network Code changes and postalisation in N. Ireland.
• Various production and operation costs disputes
  Advising numerous clients in relation to North Sea production fields including in relation to: cost sharing under tie-in and TPOSA arrangements; uneconomic field notifications and disputes; force majeure in the context of non-delivery because of upstream equipment failure; and termination of transportation, processing and operation agreements.

Sa’ad has broad experience in banking and finance cases, including in relation to disputes concerning: ISDA documentation; interest rate swaps; oil derivatives; credit rating downgrades; SOCA notifications; “bad bank” asset transfers (NAMA and IBRC); CDS valuation; disputed bond terms and conditions; and disciplinary proceedings (market abuse).

Recent and notable cases include:

• LBSF v. NPC and PSALM
  For LBSF in the Commercial Court in proceedings concerning Close-Out Amount calculations following an Event of Default in interest rate swaps. The leading case on the objective nature of reasonableness under the 2002 ISDA terms, requirements of good faith, and the ability to revise calculations.  Also involving complex expert evidence regarding pricing of long term swaps in illiquid markets.
• MHB v. Structadene
  Obtained summary judgment for the claimant bank on sums due under ISDA documentation.  The issues raised were set-off and netting under ISDA documentation, and the relevance of mis-selling cross-claims. Currently, the leading case on the ISDA early termination set-off provisions. Also raising issues of the effect of the IBRC Act on Events of Default, and validity of IBRC assignments
• McKillen v. MFL
  For the successful defendant, as part of the Claridge’s litigation, in relation to preliminary issues concerning the validity of NAMA transfers of senior debt, raising issues of facility agreement interpretation, and statutory interpretation of the NAMA Act.
• Re: Coroin Limited
  For the successful Barclay companies in the Claridge’s litigation.  A case raising issues of funding qualification and senior debt/mezzanine finance availability in the context of shareholder pre-emption disputes and allegations of breach of fiduciary duty.
• Standard Chartered Bank v. Ceylon Petroleum Corporation
  For the bank, enforcing out-of-the-money oil derivative contracts. A case raising issues of contractual capacity, illegality, advisory duties, and non-reliance provisions in relation to zero cost-collars entered into by state owned corporations with the bank.
• LCIA Arbitration
  For the hedge fund administrator, in a breach of contract and negligence claim concerning valuation of credit default swaps, duties of care and scope of duty in the context of hedge fund manager malpractice.
• Dow v. PIC
  As lead advocate on quantum for the effective buyer in relation to the non-completion of the world’s largest petrochemicals merger.  Quantum issues raised included issues as to: credit rating downgrades; corporate bond issue pricing; rights issue losses; and term loan availability and conditions.
• Dorchester v. Landprop
  As lead counsel for the Inter-IKEA group, a property development case, raising expert issues as to the availability, funding qualifications and terms of UK property development finance.

Sa’ad has recently advised and acted in shareholder disputes concerning: pre-emption rights; rights issues; directors’ duties; unfair prejudice; derivative proceedings; and connected allegations of dishonesty (in particular conspiracy and unlawful interference).

Examples of cases are:

• SDIR (Sports Direct) v. The Rangers Football Club
  Acting for Sports Direct in the Commercial Court obtaining urgent injunctive relief, determination of construction issues, and final declaratory relief, concerning disputes about matching rights in relation to Rangers’ kit and branded products. Arising from contracts entering into following the compromise of derivative proceedings relating to prior arrangements, in which Sa’ad also acted as advising counsel pre-hearing.
• Brown v BCA
  For BCA defending unfair prejudice claims arising out of its purchase of a developing on-line dealer to dealer sales platform.  4 week evidence heavy trial in the ChD essentially revolving around an unsuccessful allegation of a concerted attempt to cause the Company to fail. Raising legal issues of – equitable restraints, fiduciary duty, good faith, contractual construction, and numerous factual questions of corporate governance.
• Ashany v EcoBat
  For Ashany in hearings ancillary to a dispute regarding anti-trust investigations into Eco-Bat. At first instance and in the CA, successfully displacing the default costs rules following discontinuance in Ashany’s favour.
• McKillen v. Misland
  As lead Counsel successfully obtained judgment on preliminary issues  concerning the interpretation of pre-emption provisions in the context of the acquisition of control of Claridge’s, the Connaught and the Berkeley by the client companies associated with the Barclay Brothers. A leading authority on the approach to interpretation of pre-emption provisions.
• Re: Coroin (trial and appeal)
  For the Barclay Interests in an expedited trial and appeal, successfully defended various allegations of wrongdoing in the context of a hostile acquisition of control over the Coroin hotel group by the Barclay Brothers. Issues arose of shareholder agreement interpretation, pre-emption provisions, contract formation, good faith obligations, unfair prejudice, economic torts and breach of fiduciary duty. The case is a leading authority on a number of aspects of company law including pre-emption of shares, good faith between shareholders, and s.994 requirements including conduct of the affairs of the company and the nature of unfair prejudice.