At the National Forensic Sciences University on 12–13 September, I represented Sherrards on the emergency arbitration panel and a roundtable on India’s digital ADR future. The ambition was matched by an infectious sense of possibility.

India has a distinctive combination of advantages. Its digital public infrastructure already operates at extraordinary scale. Aadhaar, a nationwide ID app, for example, supports identity verification, UPI enables instant payments and DigiLocker allows people to share authenticated documents. These are useful foundations for resolving disputes online, where identifying the parties, exchanging reliable evidence and paying settlements can otherwise be costly and slow.

The second advantage is less obvious. India’s enormous volume of disputes creates both an urgent need for better processes and a market large enough to develop them. Its national online dispute resolution policy plan recognises the potential to resolve everyday consumer and commercial disagreements before they reach already busy courts. Scale can make investment in better systems commercially worthwhile.

Imagine a small supplier chasing an unpaid invoice. A straightforward online process could collect the contract and payment records, help the parties negotiate and arrange mediation if needed. Reducing travel and paperwork could make pursuing the claim affordable. Across large numbers of disputes, that matters to businesses and access to justice alike.

Institutions such as NFSU’s International Digital Dispute Resolution Centre are bringing legal and technological expertise together. Alongside investment in electronic filing and digital courts, this points towards a broader ambition to make dispute resolution a service India can develop for domestic and international users.

Success will depend on trust. Parties need fair procedures, secure evidence and outcomes they can enforce. For international businesses, choosing the right institution and arbitration arrangements remains essential, however impressive the technology.

I left optimistic about an institution, and a country, looking confidently towards the future. If India gets this right, the methods developed there could improve how disputes are resolved well beyond its borders.

Jan Kunstyr advises on international arbitration and cross-border disputes. Working with overseas counsel, Sherrards helps businesses plan dispute resolution arrangements and pursue claims and enforcement across jurisdictions.

Contact Jan.

Treaties can give investors a direct remedy

Bilateral investment treaties and the investment chapters of some trade agreements give qualifying foreign investors rights under international law. Depending on the wording, they may protect against unlawful expropriation, unfair or discriminatory treatment and restrictions on transferring funds. Covered investments can include shares, businesses, property, concessions and certain contractual rights.

Where the treaty provides for it, an investor may bring a claim directly against the host state before an independent international tribunal. Compensation is the usual remedy. A fall in value or an unwelcome policy change does not, by itself, establish a breach, and governments retain the right to regulate lawfully.

British Steel shows how a treaty claim starts

British Steel was taken into public ownership on 16 July 2026 under the Steel Industry (Nationalisation) Act 2026. Jingye Group, which bought the business in 2020, says it has started consultations under the 1986 China-UK bilateral investment treaty and reserved its right to arbitrate. On the public information available, this is a treaty notice and consultation step rather than an arbitration.

The treaty allows six months for an amicable settlement after written notice. It permits expropriation or nationalisation only for a public purpose and against reasonable compensation. The dispute is therefore likely to turn on whether that standard was met and on how the investment should be valued. Nationalisation by itself does not decide the outcome.

Coverage is international and continues to change

These protections can be relevant to investments across Africa, the Americas, Asia and Europe. The answer depends on the investor’s nationality, the ownership structure, the host state and the treaty in force at the relevant time.

Recent changes show why a fresh review matters. Following Canada’s ratification, the Pacific trade agreement known as CPTPP has applied between the UK and all 11 other members since 1 September 2026. Its investment chapter offers protections and access to arbitration, subject to country-specific exceptions, including the exclusion of investor-state arbitration between the UK and Australia or New Zealand.

Elsewhere, treaty terminations can leave gaps. Some treaties preserve rights for existing investments after termination, but the dates and terms need checking. A trade agreement does not necessarily include investment protection or a right to arbitrate.

Protection should be considered before a dispute

Treaty protection belongs alongside tax, financing and regulatory advice when an investment is planned or restructured. A holding company may help secure protection if the arrangement meets the treaty’s requirements. Incorporation alone is not enough, and restructuring to obtain protection once a dispute is foreseeable may fail.

When a problem emerges, early advice can preserve options. Notice requirements, consultation periods, time limits and choices about local proceedings may affect whether a treaty claim can proceed.

Sherrards brings practical investment treaty experience

Our lawyers’ experience includes acting for investors and state entities, mining and natural resources disputes in Africa and Latin America, and treaty disputes involving Eastern Europe and EU states. It includes ICSID merits and annulment proceedings, alongside experience under UNCITRAL, ICC and SCC rules.

We advise from investment structuring and treaty analysis through negotiations, arbitration and award enforcement. At the outset, we assess jurisdiction, the merits, potential compensation and the prospects of recovery, including issues of state immunity.

Working with overseas counsel and clients’ existing advisers, we bring specialist treaty and arbitration support to the wider commercial strategy. We welcome discussions about planned investments, emerging disputes and enforcement of existing awards.

To discuss an investment or potential claim, contact Jan Kunstyr or Marta Grieve at Sherrards.

 

As a Czech and EU citizen living in the UK, I cannot say Brexit made my life easier.  It also left Britain with more work to do.  In investment protection, the UK gained greater freedom to set its own course, and greater responsibility for getting it right.

Ten years after the referendum, I think it is doing a good job in this area.  There are gaps, particularly in Europe, but there are also real opportunities for businesses investing internationally.

In 2016, I wrote that Brexit might create opportunities for the UK to develop its investment treaties.  These agreements rarely make headlines, but they can matter enormously when an overseas investment runs into trouble.

Imagine a business builds a factory abroad.  Years later, the government takes it without compensation or arbitrarily withdraws the licence needed to operate it.  An applicable investment treaty may allow the investor to seek compensation directly from the state through independent international arbitration.  That can provide a valuable route beyond the local courts.  The investor must establish a treaty breach; an unwelcome policy change is not enough.

 

Britain already had an extensive network of investment treaties before Brexit.  Much of that network remains in place.  The opportunity has been to build on it, and one of the clearest examples is the Pacific trade agreement known as CPTPP.

The UK joined the CPTPP in December 2024.  Following Canada’s ratification, the agreement has applied between the UK and all 11 other members since 1 September 2026.  Its investment provisions give qualifying investors access to treaty protections and, in many member countries, international arbitration.  There are exceptions, including the exclusion of investor-state arbitration with Australia and New Zealand.

For businesses, this makes the UK worth considering when planning the ownership of overseas investments.  Whether a UK company secures protection depends on the particular treaty and the commercial structure.  Simply incorporating here does not guarantee coverage.

Europe presents a less reassuring picture.  Some investment treaties between the UK and EU countries have ended, and the UK–EU trade agreement does not replace their investor-state arbitration rights.  Older investments may still benefit from provisions extending protection after a treaty ends, sometimes for many years.  The investment date and the terms of the termination matter.

Looking ahead, I expect the UK’s most promising opportunities to lie in strengthening protection outside Europe.  The quality of any future investment arrangements with India will be one test of that ambition.  Closer trading relationships are valuable, but businesses also need effective remedies when a government breaches its commitments.

I also expect political and regulatory risk to give investment protection a more prominent place in deal planning.  Businesses and their advisers should ask which treaties apply, who holds the investment and what remedies are available before committing funds.  Restructuring once a dispute is foreseeable may be too late.

On this aspect of Brexit, I see grounds for optimism.  The UK has preserved useful protections and added new ones.  Businesses that understand how to use them may be better placed when an overseas investment goes wrong.

Jan Kunstyr is a dual-qualified lawyer in England & Wales and the Czech Republic.  Jan key part of Sherrards’ Arbitration Unit and leads the firm’s Czech and Slovak Desk, advising on international arbitration and cross-border disputes.  

Read Jan’s full article or contact Jan.

Part 1: In the ₿eginning

This article is part of a two-part series that leverages this firm’s recent experience advising litigants in relation to claims involving the recovery of digital assets.  The first part looks at the initial stages of the dispute from the perspective of a commercial litigator and what is typically involved.  The second article will provide a more substantive examination of how the forensic tools available under English law have been deployed to recover digital assets.

A legal history: ultra abridged version

Such is the progressive and enlightened nature of English law that it is not necessary to first surmount the hurdle of establishing whether digital assets are property against which traditional asset recovery remedies can be deployed. That question has been answered in the affirmative in several lines of authority, buttressed more recently by the Property (Digital Assets etc) Act 2025 which confirms that something can attract property legal rights without necessarily falling into the two categories of traditional property choses in action and choses in possession.  For the uninitiated, a pithy summary of the position can be found in the decision of Bryan J in AA v Persons Unknown [2019] EWHC 3556 (Comm): “I consider that it is fallacious to proceed on the basis that the English law of property recognises no forms of property other than choses in possession and choses in action”. 

Crypto and the blockchain grotesquely oversimplified

Seeking simple answers to complex questions is very much on trend, so this article will attempt to start from first principles accompanied with a health warning that this is a very complex area.  There are many types of digital currencies each with their own properties.  For the purposes of this article we will assume we are dealing with BTC or Ethereum, these being the most mainstream forms of digital assets that together have a combined market capitalization of over USD 2 trillion.   

At the atomic level cryptocurrency is computer code, but the definition of “what” they are precisely is inseparable from the digital infrastructure in which they are nested. That infrastructure is (you might have guessed) the “blockchain”.  It is beyond the scope of this note to explain comprehensively what a “blockchain” is, but some basic working knowledge is helpful if you are confronted with a dispute in this domain.

If you want to anchor your understanding to something in the real world, you can (multiple sources tell me) think of the blockchain as a kind of publicly accessible community ledger (or “decentralized ledger” to adopt official nomenclature), consisting of “blocks” of information (written in computer code) that tells you who owns what.  This architecture has the following structural features:

1. It consists of a network of computers, with each computer constituting a “node” on the network which serves as the backbone of the blockchain.
2. Each node is a record of every transaction that has ever occurred on the blockchain. This is perhaps its defining feature that confers the property of “immutability” and why it is considered revolutionary: all the nodes must be in a state of agreement or “consensus” as to any given transaction when digital assets are transferred (literally “we all agree x has sent an amount y of say BTC to z and that this is a valid transaction”).  Each node is constantly communicating with all the others ensuring this consensus condition is preserved.  This consensus condition is the only way a transaction is permitted.  The reason why this is considered revolutionary is because it is a system that eliminates the problem of double counting that plague standard ledgers and leave them vulnerable to exploitation. 
3. These nodes also serve as the ramp on to the blockchain and are what the individual wallets interact with to send and receive cryptocurrency. The wallets are the interface with the blockchain with which consumers are most familiar.  Each wallet has an address associated with it which is public, meaning anyone can see how much cryptocurrency is contained within that wallet.  

Pausing there, it is important to appreciate the wallets are not the blockchain and it is important not to conflate the two. Indeed, it is a slightly misleading label because the wallet is not really where the digital asset is stored – the digital asset remains on the blockchain and the wallet performs a “broadcasting” function to communicate with the blockchain in relation to transactions.  For a commercial fraud lawyer however they are a fundamental part of the overall infrastructure and it is important to understand how they basically work:  

1. There are two pieces of information that are fundamental to being able to access the cryptocurrency within the wallet. These are, respectively, the “public” and “private” keys associated with that wallet which are sequences of letters and numbers. 

(a) The “private key” is what enables the wallet holder to access and send cryptocurrency from their wallet, they are functionally the keys to the safe and what determines control of the cryptocurrency. The private key is known only to the wallet holder and who has the private key tends to be the battleground for dispute purposes. 

(b) The “public key” on the other hand is what the cryptocurrency is tethered to, often it is described as being analogous to a bank account number in the sense that it is what is shared with others to enable cryptocurrency to be transferred from one wallet to another, but does not give you access to the account. Unlike an account number however, for some cryptocurrencies (like BTC) the public key is “effervescent” in the sense that it is randomly generated from the private key using sophisticated cryptography techniques for each transaction.

2. Another key thing to grasp is that wallets are either custodial or non-custodial. Custodial wallets are those that are typically held by a third party such as an exchange, the user interacts with their wallet through the exchange’s platform and it is the exchange who holds the public and private keys.  Non-custodial wallets describe the situation where the user themselves holds the private keys for example on a device like a USB stick or hardware drive.  If that non-custodial wallet is lost e.g. like hard drive is misplaced or destroyed there is no possibility of recovering the private key and the BTC is lost forever.

Bringing these features together to explain how a transaction works mechanically, when someone wants to send cryptocurrency on the network, they use their private key, to mathematically verify a message transmitted across the blockchain “move X BTC to address Y”, address Y being the public address of the transferee.  It is the public key that is central to the process, enabling the blockchain network to agree that the message “transfer X BTC” has come from the transferor’s wallet without revealing the wallet’s private key.  This validation on the blockchain network produces a transaction “hash” specific to that transaction (note this is just a transaction reference and does not encode information about the parties to the transaction). 

The process concludes by the cryptocurrency being untethered from the transferor’s private wallet and then tethered to the transferee’s private wallet. Health warning: this is a very oversimplified explanation of the process and is not of universal application to how cryptocurrencies work – as stated above there are different cryptocurrencies with different properties but this is broadly how bitcoin works.  What matters to litigators are the legal consequences of each step in terms of ownership, transfer and acquisition of title and what information is available to tell you what has happened in a given transaction.

Initiating the claim for the uninitiated

There is no one-size-fits-all methodology for onboarding a dispute where the exercise is the recovery of misappropriated digital assets.  What first steps are appropriate is a fact sensitive question and depends on the underlying nature of the fraud: the English courts have confronted many species of fraud involving cyber attacks, socially engineered frauds through to digital asset investment scams. 

Whatever the species of dispute, the first exercise will be data preservation and information harvesting from the digital ecosystem described above to facilitate the tracing exercise. Because of blockchain’s public accessibility, a lot of information can be obtained about the underlying transactions using the right tools.  Accordingly, typically the very first step will involve capturing as much forensic evidence as possible in order to construct a “digital paper trail” with reference to the following core bits of information:

• The first most basic question is how the wallet is held, e.g. through an exchange (the “custodial wallets” described above) or  in some other form, like a USB or hard drive (so called “non-custodial wallets”).
• You need to identify the specific transfers to the fraudster and the primary data point for that are the “transaction hashes” which should be compiled.
• The wallet addresses, both the address that the digital assets were sent to and the addresses they were sent from.
• Other common sense key transaction data points like the time of the transfers, exact amounts and asset types.

How this information, particularly the first two items, is compiled is situation dependent.  Most retail investors hold their digital assets on an exchange (and around a tenth of all BTC is said to be held on wallets on exchanges). Mainstream exchanges have their own methods for providing this information and generating documents for transactions which contain this “raw” blockchain data.  

These are the basic data points, but there are many more.  The priority will be to involve a forensic expert specializing in digital asset tracing exercises who can work with you and the client to identify further relevant information and data points to facilitate the tracing process. Welcome to the highly lucrative industry of chain-analysis service providers that has spawned its own lexicon to describe the analytical tools used in the analysis and the techniques employed by fraudsters.  In simple terms the task is to leverage the public nature of the blockchain to establish patterns that can reveal information about the wallets to which the digital assets have been transferred. 

As you traverse the terrain of a digital asset recovery exercise expect to encounter the following concepts:

• Hops: Following the movement of digital currency from one wallet to another. Sophisticated frauds can involve hundreds of hops.
• Clustering: Establishing whether wallets belong to the same owner, something that can be determined through some complex mathematics applied to the transaction data.
• Mixers: a diabolical device used by fraudsters to frustrate the tracing process by obscuring patterns in the data making it difficult to establish sender/recipient information.

Specialist blockchain analytics service providers have proprietary information which they map on to their analysis in order to identify wallet holders.  Again how this works is complex, but chain analysis enables for example information about certain wallets to be connected with certain exchanges.  Being able to associate a wallet with a third party like an exchange is a hugely valuable piece of information for the reasons explained below.  The end point in the exercise is to (ideally) assert with confidence “these addresses or cluster of addresses are associated with this wallet holder” or “these addresses are associated with this exchange”.

I’ve got some intel: what do I do next?

In our next article we will look at how this information has been combined with the English law asset recovery toolkit to successfully recover digital assets and what that process typically looks like and involves.  

For information about Sherrards’ Crypto, Blockchain and Digital Assets Recovery unit, please speak to Greg Pooler on Gregory.pooler@sherrards.com or Jan Kunstyr on jan.kunstyr@sherrards.com (T: +44 (0) 207 478 9010)

Its appeal is clear: borrowers gain access to flexible finance, while investors seek higher returns in exchange for greater risk. However, the International Monetary Fund (IMF) in its Global Financial Stability Report of April 2024 (the ‘April 2024 Report’), warned that private credit also brings greater opacity, exposure to riskier borrowers than traditional public credit markets and less transparent pricing.  More recently it has been reported by the Financial Times that the number of defaults are increasing to levels not seen since 2017.

The private credit market has expanded significantly in the last 10 years, with an estimated USD 2.1 trillion of assets under management, from around an estimated half a trillion in 2015.  It is also impossible to write about any sector without mentioning the impact of AI and the private credit market is no exception, with the Bank for International Settlements recently finding that a third of all private credit transactions relate to the AI boom in infrastructure spending. A notable structural feature of this growth has been the increasing use of special purpose vehicles (SPVs) to originate and warehouse exposures, particularly in financing AI-related infrastructure. These structures can manage risk, but they may also add layers of complexity and reduce transparency for investors assessing underlying asset quality and leverage.

For UK clients, the concern is no longer just credit risk, but extends to how quickly pressure in the private credit market could translate into disputes. That risk is becoming increasingly harder to ignore. Reflecting those concerns, in December 2025, the Bank of England launched its second system-wide exploratory scenario exercise focused on private markets, including private credit, to assess how stress in the sector could be transmitted more widely across the financial system

The issues recently emerging around Market Financial Solutions Limited (MFS) offer a practical example of how stress in this market can translate into legal and regulatory scrutiny. On 20 March 2026, the Financial Conduct Authority (FCA) confirmed that it had opened an enforcement investigation into MFS following the firm’s entry into administration in February 2026. The FCA also made clear that MFS was an Annex 1 business, meaning it was supervised for anti-money laundering purposes only and was not subject to the FCA’s wider conduct regime. That distinction is significant: where lending falls outside the regulated perimeter, customers may also be unable to refer complaints to the Financial Ombudsman Service, making court proceedings more likely.

What are the key litigation risks in private credit?

First, security and enforcement disputes. Where collateral has been overstated, imperfectly documented or pledged more than once, lenders can quickly find themselves in priority disputes and contested enforcement proceedings. Public reporting around MFS has highlighted allegations of collateral shortfalls and “double pledged” loans, illustrating the kind of issues that can give rise to urgent court actions and complex multi-party claims.

Security and enforcement disputes

Second, misrepresentation, investor and professional negligence claims. In a stressed market, investors are likely to scrutinise whether the underlying risks, liquidity profile and asset quality were properly explained at the outset. That is particularly significant in private credit, where valuations are inherently less transparent and losses may crystallise more slowly than in public markets; the IMF in its April 2024 Report has identified opacity and delayed loss recognition as structural vulnerabilities in the sector. Once losses begin to emerge, scrutiny is also likely to extend beyond the borrower or originator to the wider transaction chain, with lawyers, administrators and valuers potentially coming under examination for their role in the structuring, diligence and ongoing monitoring of the deal.

Misrepresentation, investor and professional negligence claims

Third, insolvency-related litigation. Once a fund vehicle, lender or borrower enters distress, office-holders, administrators/liquidators and creditors are likely to scrutinise related-party dealings, adequacy of the security package and historic asset movements in close detail. In the UK, that scrutiny can quickly develop into claims for misfeasance, transactions at an undervalue, preferences, as well as applications for tracing and freezing relief. The reporting around MFS is a reminder of how rapidly matters can escalate where asset preservation and recovery become the immediate priority.

Insolvency-related litigation

Fourth, waiver and no‑oral modification clauses (“NOM” clauses). In practice, lenders in the private credit market may tolerate shortfalls or accept reduced payments without formally reserving their rights. That flexibility can come at a cost: borrowers may later contend that the lender has waived strict compliance or agreed to a contractual variation. While NOM clauses are designed to guard against informal amendments, they do not eliminate the risk of fact-sensitive disputes where the parties’ conduct departs from the written terms. In an enforcement scenario, such arguments can materially complicate or even undermine a lender’s position.

Waiver and no-oral modification clauses

For clients, the practical message is straightforward: now is the time to test whether valuation processes are both independent and properly documented, whether security packages are robust and whether disclosures to investors and counterparties accurately reflect the underlying risks. This approach is consistent with the FCA’s recent review of private market valuation practices, which identified conflicts, transparency and governance as key areas of focus in private credit.

 

Private credit will continue to play an important role in the UK financing landscape. However, as the market matures and pressure begins to build, disputes are likely to become an increasingly visible feature of the sector, particularly if the use of special purpose vehicles to finance AI infrastructure continues to expand. For clients, the key question is no longer simply where signs of stress may emerge, but how quickly that stress may crystallise into claims.

If you would like to discuss any of the issues raised in this article or require advice in relation to a private credit dispute, please contact a member of our Dispute Resolution team.

With the judgment remaining unsatisfied, the challenge was to secure recognition and enforcement in England – despite there being no reciprocal judgment enforcement treaty between the UK and China.

Sherrards brought enforcement proceedings in the English Commercial Court and took steps to protect assets through freezing and other interim relief.

The defendant challenged enforcement, arguing that the Chinese judgment was not sufficiently final and conclusive and that the underlying proceedings were contrary to natural justice.

A particular issue was whether an application to the Liaoning Province People’s Procuratorate prevented the judgment from being regarded as final. The High Court concluded that, in the circumstances of the case, it did not.

The result

In Xiong Wei & Anor v Wang Jinhong [2026] EWHC 1892 (Comm), the Commercial Court rejected the defendant’s challenges and allowed the judgment to be enforced in England.

The result secured an effective route to recovery for our clients in respect of a judgment worth more than US$2.1 million, plus interest and costs.

The decision has significance beyond disputes involving China, where no applicable reciprocal enforcement regime exists, English common law can provide a route to recognising and enforcing qualifying foreign judgments. The case also demonstrates the importance of considering asset protection at an early stage, with freezing orders and other interim remedies potentially available while enforcement proceedings are underway.

Marta Grieve, Commercial Litigation Partner at Sherrards, said:

“This decision has relevance beyond China. For businesses and individuals holding judgments from jurisdictions where there is no reciprocal enforcement regime with the UK, the absence of a treaty does not necessarily mean that enforcement stops at the border.

English common law can provide an effective route to enforcement where the necessary requirements are met, together with powerful interim remedies to protect assets.”

The Sherrards team was led by Marta Grieve and supported by Paul Marmor, Greg Pooler and Aleksandra Rychlewska. Sherrards instructed Simon Milnes KC and Matthew McGonagle of Twenty Essex as counsel.

The short answer is: quite a lot. English law provides minority shareholders with a meaningful toolkit, even when the odds seem stacked against you.

Understanding the Problem: Majority Rule Has Limits

Companies are, by design, run on democratic principles. Decisions are made by majority vote. This is efficient and sensible — but it creates an obvious risk that the majority can abuse its power at the expense of smaller shareholders.

Parliament and the courts have spent over a century developing protections to prevent exactly that. The key piece of legislation is the Companies Act 2006, and the key remedy is the unfair prejudice petition under section 994 (but there are also other remedies).

 

Can the Majority Simply Change the Articles of Association?

Articles of Association are the rulebook of the company — they govern how it is run, how shares are held, and what rights attach to those shares. The majority can vote to amend them, but only by a special resolution (meaning at least 75% of the votes cast). So if you hold more than 25% of the shares, you can block any change outright.

But what if you hold less than 25%? You are not without options. Under long-established case law, any amendment to the Articles must be made bona fide in the interests of the company as a whole — not simply to benefit the majority or to damage you. If the change was designed to squeeze you out, strip your rights, or give the majority an unfair advantage, a court can strike it down.

Practically speaking, if you believe a change to the Articles is being used as a weapon against you — for example, removing your right to appoint a director, or creating new classes of shares that dilute your stake or changing the methodology by which shares are valued on a sale — you should take legal advice quickly. Time matters and acting early preserves your options.

It is also worth checking if Articles have been filed at Companies House, as failure to file within 15 days of a special resolution is a criminal offence under the Companies Act 2006. Directors and officers of the company can be held personally liable and face fines upon summary conviction.

 

The Unfair Prejudice Petition: Your Most Powerful Weapon

Section 994 of the Companies Act 2006 allows any shareholder to apply to the court where the company’s affairs are being conducted in a manner that is unfairly prejudicial to their interests. This is the most commonly used remedy for minority shareholders, and it is deliberately broad.

Courts have found unfair prejudice in situations including:

• Exclusion from management (especially where there was an expectation of involvement)
• Withholding dividends to starve the minority of returns (particularly where the majority has been paying themselves dividends)
• Paying excessive salaries or benefits to the majority to extract company profits
• Altering the Articles in bad faith
• Diluting shares without proper justification

If the court agrees, it has wide powers to remedy the situation. The most common outcome is an order that the majority buy out your shares at a fair value — typically assessed by an independent expert without any discount for your minority stake. Courts can also order the company to take (or stop taking) specific actions, or even wind the company up.

 

Just and Equitable Winding Up

In the most serious cases — particularly where trust between the shareholders has completely broken down — you can apply under the Insolvency Act 1986 for the company to be wound up on just and equitable grounds. This is a nuclear option and courts treat it as a last resort, but it remains a genuine lever, particularly for small quasi-partnership companies where the relationship between shareholders was built on mutual trust and that trust has been irreparably destroyed.

 

Don’t Overlook Your Shareholders’ Agreement

If the company has a shareholders’ agreement in place, that is a separate contract from the which may give you additional protections entirely separate from the Articles and Companies Act – for example, veto rights over certain decisions, tag-along rights if shares are sold, or specific provisions protecting your stake. Always review it carefully before deciding on your strategy.

 

Practical Steps if You’re in Dispute

1. Review your shareholding documents — Articles, shareholders’ agreement, and any side letters.
2. Preserve evidence — keep records of all communications, board minutes, and decisions you believe are unfair.
3. Act promptly — delay can weaken your position and, in some cases, affect the remedies available to you.
4. Take specialist legal advice — minority shareholder disputes are technical and the courts expect proper procedural steps to have been followed.

 

Being in the minority does not mean being powerless. English law takes the protection of minority shareholders seriously, and the courts have shown a consistent willingness to intervene where the majority oversteps the mark.

 

If you have found yourself in a deadlocked situation and the majority are steamrolling you, please contact Aaron Heslop or the Dispute Resolution Team. 

The underlying proceedings, which Sherrards have been instructed on throughout, concern a judgment debt of approximately £500,000 owed by Mr Khan to NOECL, most of which remains unpaid.

In March 2026, the High Court committed Mr Khan to prison for 6 months for his contempt of court in breaching the terms of a freezing injunction by pawning a Rolex watch which was subject to the freezing order.

Mr Khan appealed the decision to the Court of Appeal. Following a hearing yesterday (Thursday 21 May 2026), the appeal was dismissed and the original sentence upheld.

The case serves as a clear reminder that freezing injunctions are powerful enforcement tools and that the courts will impose custodial sentences where parties deliberately seek to dissipate assets or act in breach of such orders.

 

To find out more, contact Karen Dobson or our Dispute Resolution team. 

 

A decade later, the picture is mixed but broadly positive. Some opportunities have materialised, particularly through the UK’s accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), and its continued support for investor-state arbitration. Others, especially in relation to intra-EU bilateral investment treaties (“BITs”), have narrowed. The result is a more complex but still attractive landscape for UK-based investors.

 

Brexit and Investment Treaty Arbitration: The Initial Concerns

The original article made three main points. First, that the UK, freed from the EU’s exclusive competence over foreign direct investment, would be able to negotiate its own investment protection treaties and free trade agreements more quickly and on its own terms. Second, that the UK could avoid the EU’s proposed Investment Court System (“ICS”), a permanent two-tier tribunal intended to replace the traditional system of international arbitration. The ICS had attracted serious criticism from leading practitioners for its risks of longer proceedings and pro-state bias, since investors would have no role in appointing the decision-makers. Third, that the UK would not have to terminate its BITs with EU Member States (the so-called intra-EU BITs), thereby maintaining an extra layer of protection for UK investors in, particularly Central and Eastern, Europe.

 

How Brexit Reshaped the UK’s Investment Treaty Framework

On the first point, the prediction was largely correct, though the pace was slower than many had hoped. The UK has concluded free trade agreements with more than 60 countries since Brexit, although many were continuity agreements rolling over arrangements previously negotiated by the EU. The more important development, from an investment protection perspective, is the UK’s accession to the CPTPP in December 2024, becoming the first European country to join this major Indo-Pacific trade bloc.

The CPTPP is of particular interest to investment treaty practitioners because its investment chapter provides for a modern and transparent investor-state dispute mechanism, giving UK investors the right to bring claims directly against states.[1] This is a meaningful expansion of the investment protection available to UK businesses operating across the Asia-Pacific region, covering Japan, Singapore, Chile, Vietnam, Peru, Malaysia, Brunei and several other economies.

The UK also signed a landmark free trade agreement with India in July 2025, the most economically significant bilateral deal negotiated from scratch since Brexit. A separate bilateral investment treaty between the UK and India is still being negotiated, but the FTA itself covers services, investment and regulatory cooperation. Negotiations for a new bilateral investment treaty with Singapore were launched in 2023. And as the second-largest BIT network in the world (behind Germany), the UK continues to maintain over 90 bilateral investment treaties in force.[2]

On the second point, regarding the EU’s Investment Court System (“ICS”), the prediction has proven accurate. The UK has not adopted the EU’s proposed ICS. Its treaty practice, including the CPTPP, continues to rely on international arbitration rather than a permanent investment court.

Meanwhile, the EU’s efforts to establish a permanent investment cort through UNCITRAL Working Group III have been in progress since 2017 and remain unresolved. Stakeholder meetings continue to take place, the most recent in January 2026, and key questions around enforcement, financing and the appointment of adjudicators are still being debated. The project also lacks the critical mass of participating states that a multilateral project of this kind requires, with the United States, Japan and others continuing to favour bilateral reform over systemic overhaul. The proposal continues to attract criticism from practitioners who argue that it undermines party autonomy and risks politicising investment dispute resolution. The UK, having chosen a different path, now offers its investors a dispute resolution framework that is familiar, tested and broadly supported by the international arbitration community.

On the third point, the prediction has proved more complicated. In 2016, it seemed possible that the UK, by leaving the EU, could preserve its intra-EU BITs and maintain treaty protection for UK investors in EU Member States. That has only partly happened.

Following the Court of Justice of the European Union’s (“CJEU”) judgment in Achmea v Slovak Republic, investor-state arbitration clauses in intra-EU BITs were held to be incompatible with EU law.[3] most EU Member States signed an agreement terminating their intra-EU BITs. The UK did not sign that agreement, having already left the EU. However, several EU Member States have since terminated their BITs with the UK bilaterally. [4]

The result is that UK investors have lost some treaty protection in Europe, particularly in Central and Eastern Europe.[5] There was also never comprehensive BIT protection between the UK and the larger Western European economies such as Germany, France, Spain and Italy.

The EU-UK Trade and Cooperation Agreement (the “TCA”), which governs the broader post-Brexit relationship, does not fill that gap, as it does not contain the usual substantive investment protections or investor-state dispute settlement mechanism. [6]

That said, the position is not entirely negative. Where UK BITs were terminated bilaterally, their sunset clauses should generally continue to operate in the ordinary way. Many UK BITs contain sunset periods of 15 to 20 years.[7] This means that investors who made qualifying investments while the treaty was still in force may, in principle, continue to benefit from treaty protection for a significant period after termination. For existing investments, the key question is therefore not simply whether the treaty has been terminated, but when the investment was made and whether the sunset clause still applies.[8]

 

New Pressures on the Investment Treaty System

Two important developments since 2016 were not on anyone’s radar when Jan wrote the original article.

The first is the withdrawal of the EU and the UK from the Energy Charter Treaty. The ECT was once one of the most important multilateral investment treaties, particularly for energy investments. Its future is now much less certain. However, its 20-year sunset clause means that existing investments may continue to benefit from protection for some time.[9]

The second is the first ICSID claim brought against the UK.[10] In 2025, Woodhouse Investment Pte. Ltd. and West Cumbria Mining Ltd. commenced proceedings against the United Kingdom under the UK-Singapore BIT, in a dispute concerning a proposed coal mine. The case is a reminder that the UK’s BIT network is not only a tool for UK investors abroad. It also gives foreign investors rights against the UK.

 

Where does this leave UK investors?

The overall position is more favourable than many expected in 2016, but more nuanced than the original prediction suggested.

The clearest opportunity lies outside Europe. The UK’s accession to the CPTPP opens up investment treaty protection across a significant portion of the global economy, with a dispute resolution mechanism grounded in international arbitration rather than any untested court system. UK investors operating in Japan, Vietnam, Malaysia, Singapore, Chile, Peru, Brunei and (once ratification completes) Canada and Mexico now have access to robust treaty-based protections.[11]

There is also a structuring point. The extensive BIT network that the UK built up over decades remains substantially intact. With over 90 BITs in force and a government that continues to support investor-state disputes as a means of protecting outbound investment, the UK is well-positioned as a jurisdiction through which to structure cross-border investments. This is particularly relevant for businesses with operations in higher-risk jurisdictions where the availability of investor-state arbitration can make a meaningful difference to the risk profile of a project.

There is a further practical advantage that is easy to overlook. Since leaving the EU, UK courts are no longer caught between their enforcement obligations under the ICSID and New York Conventions on the one hand and EU law on the other. The enforcement of investment treaty awards in the UK, including awards arising from intra-EU disputes, is now a straightforward matter under the relevant conventions without the complications that EU law previously created.[12]

The main gap is Europe. Some UK-EU BIT protection has been lost, and the EU-UK Trade and Cooperation Agreement does not provide equivalent investment protection. Existing investments may still benefit from sunset clauses, but that requires careful treaty-by-treaty analysis.

Looking ahead, the ongoing negotiations for a UK-India BIT, the new UK-Singapore BIT, the upgraded UK-Republic of Korea FTA concluded in December 2025 (which for the first time includes a full investment protection chapter with investor-state dispute settlement), and the possibility of further trade agreements in the Gulf and South-East Asia all suggest that the UK’s treaty network will continue to grow.

Jan Kunstyr’s client alert in 2016 was not wrong, Brexit did not transform the UK into a perfect investment treaty hub, but it did preserve and create real opportunities.

If you would like to discuss how these developments may affect your business or investment structures, please do not hesitate to get in touch.

 

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[1]  Through the International Centre for Settlement of Investment Disputes (“ICSID”), or using the United Nations Commission on International Trade Law (“UNCITRAL”) ad hoc arbitration rules.

[2] It is worth noting that the UK has not concluded a new standalone BIT since around 2010 (see UNCTAD IIA Navigator, United Kingdom). Instead, the UK’s post-Brexit investment treaty policy has focused on negotiating free trade agreements with investment chapters, such as the CPTPP. Some of the UK’s newer FTAs do not yet include investment protection provisions but contain review clauses contemplating their future inclusion, see https://investmentpolicy.unctad.org/international-investment-agreements/countries/221/united-kingdom.

The UK-Ukraine Political, Free Trade and Strategic Partnership Agreement is a notable example. Its investment chapter includes a review clause under which the parties have agreed to “assess any obstacles to establishment” and “undertake negotiations to address such obstacles, with a view to deepening the provisions of this Chapter and to including investment protection provisions and investor-to-state dispute settlement procedures.” This suggests that the UK sees investment protection as an evolving feature of its FTA programme rather than a precondition for concluding a trade agreement https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/6077/download.

[3] The CJEU reasoned that such clauses were incompatible with EU law because they allowed disputes which might involve the interpretation or application of EU law to be decided by arbitral tribunals outside the EU judicial system. Those tribunals were not able to make preliminary references to the CJEU under Article 267 TFEU, and any subsequent review by national courts was limited. In the Court’s view, that mechanism undermined the autonomy and uniform application of EU law.

[4] NB that under Regulation (EU) No 1219/2012, Member States’ existing BITs with third countries were “grandfathered” and could be maintained until replaced by an EU-level agreement with the same third country. The termination of these BITs with the UK should therefore be understood primarily as a sovereign decision by each Member State in managing its own treaty network, rather than as a direct instruction from the European Commission. That said, the Commission’s broader post-Achmea stance on the incompatibility of investor-state arbitration clauses with EU law, and its willingness to bring infringement proceedings (including, in May 2020, against the UK itself during the transition period), will undoubtedly have informed those decisions.

[5] According to the most comprehensive tracking data, BITs between the UK and Latvia, Croatia, Romania, Estonia, the Czech Republic, Slovakia, Hungary, Malta, Lithuania and Slovenia have all been terminated.

[6] L. Peters and S. Wuschka, “Investment Protection in Post-Brexit EU–UK Relations” (2023) 38(1) ICSID Review 39, at 39–40 and 49–53. The authors note that the TCA focuses on market liberalisation rather than post-establishment protection, containing provisions on market access, national treatment and most-favoured-nation treatment but omitting the substantive standards (FET, expropriation, full protection and security) and investor-state dispute settlement that are standard in investment treaties. The TCA’s dispute settlement mechanism is exclusively state-to-state, with investors limited to amicus curiae submissions.

[7] The UK-Hungary BIT, for example, provides for 20 years of continued protection after termination. The UK-Romania and UK-Croatia BITs similarly provide for 20 years. The UK-Czech Republic and UK-Slovakia BITs provide for 15 years.

[8] The precise cut-off depends on when each treaty was formally terminated, and the position may be complicated in cases where the other State sought to remove or limit the sunset clause prior to termination, as the Czech Republic has done with some of its other BITs. The terms of each termination should therefore be checked carefully. But the general position is that, for existing investments, significant protection remains in place despite the headline terminations.

[9] Individual withdrawals from the ECT took effect as follows: Italy (1 January 2016), France (8 December 2023), Germany (20 December 2023), Poland (29 December 2023), Luxembourg (17 June 2024), Slovenia (14 October 2024), Portugal (2 February 2025), Spain (17 April 2025), and the United Kingdom (27 April 2025). The EU and Euratom withdrawal became effective on 28 June 2025. The Netherlands and Denmark also withdrew. Lithuania notified its withdrawal in August 2025. See Energy Charter Secretariat, Status of the Energy Charter Treaty; European Council Press Release, 27 June 2024.

[10] There are two publicly known investment treaty cases against the UK: Ashok Sancheti v. United Kingdom (2006), brought under the UK-India BIT and terminated by the tribunal in 2009; and Woodhouse Investment Pte. Ltd. and West Cumbria Mining Ltd. v. United Kingdom (ICSID Case No. ARB/25/37), the first ICSID claim against the UK, registered in 2025 under the UK-Singapore BIT. See UNCTAD Investment Dispute Settlement Navigator, https://investmentpolicy.unctad.org/investment-dispute-settlement/country/221/united-kingdom/respondent

[11] The UK already had bilateral investment treaties or FTAs with the majority of CPTPP members prior to accession (including Japan, Australia, Canada, Chile, Mexico, New Zealand, Peru, Singapore and Vietnam). The CPTPP therefore modernises and supplements, rather than creates from scratch, the UK’s investment protection relationships with these countries. See UK Government, “The Accession of the UK to the CPTPP: Agreement Summary” (July 2023).

[12] Peters and Wuschka (n 9), at 53. The authors observe that UK courts before Brexit faced a dilemma in enforcing intra-EU investment awards, caught between their obligations under the ICSID Convention (Article 54 of which leaves no room for judicial review) and the New York Convention on the one hand, and EU law on the other. Post-Brexit, that conflict is resolved. The enforcement of ICSID awards in the UK is now a straightforward matter under the Arbitration (International Investment Disputes) Act 1966. This practical advantage should not be underestimated, particularly given the ongoing difficulties that award creditors face in enforcing intra-EU awards before EU Member State courts.

Issuing a debt claim may seem straightforward, but in practice, it is often slow, can be expensive and recovery of money is uncertain. As a result, many landlords are reconsidering their options, with commercial lease forfeiture coming back into focus as a more decisive alternative.

Suing for Arrears

On paper, a claim for rent arrears is straightforward. However, there are risks:

Cost vs recovery: Legal costs can quickly become disproportionate. Even where a lease includes a contractual indemnity, recovery is not guaranteed given the court retains discretion on costs and may not award the full amount incurred and, ultimately, whether those legal fees are recovered depends on the ability of the tenant to pay the judgment debt.

• Delay: tenants can and do defend claims on spurious grounds (e.g., alleged disrepair) and defended claims can take a long time to resolve (in excess of 12 months), during which arrears will continue to accrue.
• Enforcement risk: A judgment is only as good as the tenant’s ability to pay. Enforcement can be uncertain and further cost is often required.
• Insolvency exposure: By the time judgment is obtained, the tenant may already be insolvent, leaving the landlord as an unsecured creditor.

A “win” on paper does not necessarily translate into cash recovery.

Why Forfeiture is Often the Better Strategic Move

Forfeiture offers a different outcome – control rather than recovery. It offers:

• Immediate possession: The landlord regains the asset and can look to re-let to a stronger tenant.
• Loss containment: It may be commercially preferable to stop the bleeding rather than pursue historic arrears.
• Leverage: The threat of forfeiture can prompt payment or meaningful engagement from tenants.

In a weaker market, these advantages are increasingly relevant.

Forfeiture Risks

Forfeiture needs to be handled carefully. The following are consideration:

• Waiver: acknowledging the existence of the lease by, for example, accepting or demanding rent after a breach can inadvertently waive the right to forfeit.
• Relief from forfeiture: Courts can grant relief from forfeiture if the tenant pays what is due, frustrating the landlord’s objective.
• Method of re-entry: Peaceable re-entry is quick but carries risk whereas court proceedings are safer but slower.
• Void risk: Taking back possession only works if the property can be re-let on acceptable terms and in the interim the landlord will assume responsibility for business rates liability

Conclusion

In a tougher economic climate, landlords need to look beyond legal rights and focus on commercial outcomes. Suing for rent arrears can seem the obvious route but forfeiture, if used strategically, can offer a faster and more decisive solution.

The law concerning forfeiture is, however, unintuitive and full of trip-hazards. If you are dealing with tenant arrears or considering your enforcement options, our property litigation team can help you assess the most effective strategy.