Zalina Kanametova v OSG Records Management (Europe) Limited [2026] EWHC 1196 (Comm)

[2026] EWHC 1196 (Comm)Case No LM-2025-000043
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
IN AN ARBITRATION CLAIM
Venue The Rolls BuildingDate 20/05/2026
7 Fetter Ln, London EC4A 1BR
Before
HIS HONOUR JUDGE CADWALLADER
Between
ZALINA KANAMETOVAClaimantOSG RECORDS MANAGEMENT (EUROPE) LIMITEDRespondent
Lionel Nichols (instructed by Candey Limited) for ClaimantRoman Khodykin and Mark Tushingham (instructed by Bryan Cave Leighton Paisner LLP) for RespondentHearing Hearing dates: 20-23 January 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 20 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HIS HONOUR JUDGE CADWALLADER

HHJ Cadwallader:

[1]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.[2]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.[3]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.[4]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.[5]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.[6]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.

The challenge

[7]The claimant now challenges the tribunal’s award in respect of the LTI Agreement under section 67 of the Arbitration Act 1996 and seeks an order varying or setting aside the award on the basis that the tribunal does have jurisdiction to determine the dispute.[8]Such a challenge is a complete rehearing, and the award of the arbitrator has no automatic legal or evidential weight; but “…given that the arbitral tribunal has considered the same issue, the court will examine the award with care and interest. If and to the extent that the reasoning is persuasive, then there is no reason why the court should not be persuaded by it”: Republic of Korea v Dayyani [2019] EWHC 3580 (Comm), [2020] Bus LR 884 at [26]. The question for the court is therefore not whether an arbitrator was entitled to reach the decision to which she came but whether she was correct to do so: Electrosteel Castings Limited v Scan-Trans Shipping & Chartering SDN BHD [2002] EWHC 1993 (Comm), [22].[9]The challenge was issued on 20 December 2024 and since the Arbitration Act 2025 does not apply, the parties are not restricted to the evidence that was before the tribunal.

The burden of proof

[10]The burden of proof lies on the claimant to prove that the LTI Agreement is valid: see by analogy Ganz v Petronz FZE [2024] EWHC 635 (Comm) at [57]. The allegation that it is valid is an essential part of her case. Where the party who has this burden has not discharged it, the decision must be against them. The claimant’s case is that the LTI Agreement is valid because it was executed at a time when Mr Bobrowski had authority to execute it, that is, on their evidence, 8 October 2015.[11]The standard of proof is the balance of probabilities. Where, as here, dishonesty is alleged against the claimant, the court will, in determining whether the claimant has discharged the burden, take into account the inherent probabilities as part of considering whether the dishonesty alleged has been made out.

The evidence

[12]Both sides relied on the evidence given before the arbitrator. For the claimant, new witness statements were supplied for the purposes of this challenge from the claimant and Mr Bobrowski. For the defendant, new witness statements were supplied from Victoria Gorbunova, General Counsel to Elbrus since September 2016, and Vadym Pavlus, former investment director of Elbrus.[13]The court heard oral evidence from the claimant and Mr Bobrowski for the claimant, and for the defendant, Ms Gorbunova. No other oral evidence was led for the defendant. In particular, Mr Pavlus did not give live evidence before this Court. His witness statement stated that he needed, and would probably not get, authorisation to attend to give oral evidence from his current employer, the International Finance Corporation.[14]The defendant rightly pointed out that the witness statements of the claimant and Mr Bobrowski did not comply with Practice Direction 57 AC in that they were excessively lengthy, took the court through the documents and set out a narrative derived from the documents, and included commentary on other evidence in the case. The parties agreed this should go to the weight to be afforded their evidence and its credibility, rather than to the admissibility of the statements, and that in the circumstances the Court need not consider the imposition of other sanctions. In the event, I have not needed to consider the effect of this on the weight of the evidence, as other factors have been determinative.[15]The claimant gave her evidence remotely from Russia, having been unsuccessful in obtaining a visa for which she had applied on 4 November 2025. She gave her evidence in Russian, through an interpreter who was present in Court. She also had her own interpreter in the same room as her to provide a live translation of the proceedings when she was not giving evidence so she could follow them. Her solicitors also provided her daily with a machine translation of the day’s transcripts so that she could understand them. The parties agreed that while she gave her evidence, Mr Bobrowski should not be in court to hear it and should not see the transcript of her evidence until after he had given his own. Mr Bobrowski’s evidence was given in fluent English, although his mother tongue is Polish. The witness evidence The claimant’s account

The witness evidence

[16]The essence of the claimant’s account of events is set out in her first witness statement prepared for the arbitration, and repeated and expanded upon in her later evidence. The claimant’s evidence in her first witness statement (prepared for the arbitration) was that in 2011 Mr Bobrowski, who was CEO of OSG at the time, appointed her to be General Director of OSG Russia, and she reported to him directly from then on. She also had positions in other group companies. She had performed well and had received annual performance bonuses every year save 2014, but these were short-term and performance-related. After two years as General Director of OSG Russia, Elbrus and OSG promised her long-term motivational bonuses linked to the increase in OSG’s equity value. In March 2013 a scheme for senior management equivalent to 7% of OSG’s equity value growth was announced by Elbrus and she understood that she was to be included. From about April 2013 this became known as the LTI plan, or the options plan. In 2013 and 2014 she helped prepare materials recording discussions of this plan, some of which showed her as getting 1%, 1.25%, or 2%. On the basis of OSG board minutes for 17 October 2014, she understood that she was to get 2%, but reduced to 1.5% if OSG was not sold within 6 months. Because she had been chasing, a call took place between her, Mr Bobrowski and Mr Pavlus on or about 15 August 2015. Mr Pavlus told her the LTI document would be sent to her within a month, giving her the 2% share option. She chased him by email on 15 September 2015, and on 17 September 2015 Mr Pavlus sent her a draft of the proposed LTI agreement by email. On 25 September 2015 she replied to say she would provide her comments next week and asked for the data to be inserted where indicated in the draft. On 1 October 2015 Mr Pavlus sent her a further version of the LTI Agreement. The same day, Mr Bobrowski phoned her to say that Elbrus had indicated she should take the agreement as it was, and after a discussion of the risks she confirmed to Mr Bobrowski that she was in agreement. The following day she forwarded Mr Pavlus’ email, with the draft LTI Agreement, to Mr Rodin, who was OSG Russia’s lawyer, seeking feedback on the clauses relating to Russian law, so she would know how they applied. On 8 October 2015 she met Mr Bobrowski in OSG’s Moscow office, and he gave her two hard copies of the LTI Agreement which he had already signed and stamped on behalf of OSG; she countersigned them in his presence and kept the copy which she produced in the arbitration. He took the other copy to the office of Mr Shorokhov next door to hers: he and his team were responsible for OSG record-keeping. She remembers the meeting because it was her birthday, and Mr Bobrowski had said that the LTI agreement was like a birthday present. Mr Rodin did not respond until 7 December 2015. She sent some of the comments to Mr Bobrowski who later told her to forget about it, as the comments were not critical and in any event the agreement had already been signed.[17]Her second witness statement was responsive to the defendant’s case in the arbitration, and I do not need to mention it here. Her third witness statement was prepared for the purpose of these proceedings. It considerably amplified her previous evidence, mostly by reference to the documentation (which, in the context of the Practice Direction, was not helpful), but also - as it seems to me - to fill in gaps and strengthen potential weaknesses in her previous evidence. So, for example, she explains that from the time of her conversation with Mr Bobrowski on 1 October 2015 she considered the draft LTI Agreement sent by Mr Pavlus to be the final version of the agreement. She wanted Mr Rodin’s comments so as to ensure she did not breach the Russian Labour Code or her terms of employment, since under the LTI Agreement this would allow OSG to terminate for cause, and she would lose her entire bonus: she was not asking him to review or mark up the agreement, because she had already confirmed that she agreed its terms.

Mr Bobrowski’s account

[18]Mr Bobrowski has given a substantial volume of supporting evidence in the form of three witness statements in the arbitration, and two in these proceedings. His evidence is important not only for its content but also because (in his first witness statement in these proceedings) he describes himself as an independent witness with no motivation for giving false or misleading evidence, not wishing to give evidence but feeling compelled to do so when OSG began advancing serious allegations against him, and wanting to ensure the tribunal and court were not misled, and with no other motivation. His account of the central events may be summarised in the following way.[19]In early 2013 Elbrus contemplated an LTI share option programme for senior management of OSG to share in 7% of the equity growth of the OSG Group. Mr Bobrowski himself was to benefit to the extent of 3%. It would be for him to propose how to split the balance of 4%. It was obvious that the claimant would be eligible.[20]OSG board materials dated 11 April 2013 recorded the latest advisory decisions showing the claimant was to receive 1%, and the board minutes recorded it as agreed in principle. By 28 July 2014 the proposal was that she should have 2%, and that was approved by the board of OSG on 17 October 2014 save that it should be reduced to 1.5% if the shareholders did not complete the sale of OSG within 6 months.[21]In response to the claimant’s frequent enquiries about progress with the LTI programme, Mr Bobrowski arranged a call between himself, Mr Pavlus and her, in which Mr Pavlus promised to resolve the situation within a month. On 15 September the claimant sent Mr Pavlus a chasing email, to which he replied, copying in Mr Bobrowski. On 17 September 2015 Mr Pavlus sent the claimant a draft of the LTI Agreement to the claimant, copied to Mr Bobrowski and Elbrus’ in-house lawyer. The claimant said she would comment the following week, and asked Mr Pavlus to complete the placeholders in the draft. On 1 October 2015 Mr Pavlus sent a further version of the LTI Agreement to the claimant, but told Mr Bobrowski in a telephone call that he wanted him to persuade the claimant not to suggest any more corrections. He said it had been approved a long time ago, so it only needed execution. Mr Bobrowski spoke to the claimant on his way to the airport and she agreed to enter into the LTI Agreement as it stood.[22]When he got to his home in London that day, he printed two copies of the LTI Agreement as provided by Mr Pavlus and signed and stamped them on behalf of OSG before travelling to Moscow on 5 October 2015 to provide them to the claimant, which he did on 8 October 2015, her birthday. He recalled saying it was like a birthday present. She countersigned both copies that day in front of him. He went to the CFO’s office to hand over the documents to be filed. On Sunday 6 December 2015 the claimant sent him an email with some further comments on the LTI Agreement. When he saw her one or two days later in the office he told her she had already executed the agreement in October 2015 so there was nothing to discuss, and the comments did not seem particularly important. He had no further discussions with her about it at that stage.

Credibility

[23]This is a case which turns on the credibility of the accounts of the claimant and Mr Bobrowski. Neither is of bad character as far as this Court is aware. Each appears to be a respectable businessperson. The defence to this claim can only succeed if they are found to be, not merely mistaken, but lying; and lying in pursuit of a substantial sum of money to which the claimant is not entitled, and which they both know she is not entitled; and lying in cooperation with each other, and in a deliberate and calculated fashion, which, if discovered, may seriously damage their standing and reputation.[24]On the face of things, a successful claim would only benefit the claimant, and not Mr Bobrowski. His giving evidence in her support, and putting his reputation at the risk of an adverse finding, while standing to gain nothing, is a powerful consideration. The claimant and Mr Bobrowski both describe him as an independent witness. His evidence before the Tribunal was as follows:
“I had no desire to be a witness in these proceedings but felt compelled to give evidence when OSG began advancing serious allegations against me. I also wish to ensure that the arbitral tribunal and the English court are not misled. I have no other motivation for appearing as a witness and, in particular, contrary to OSG’s allegations, I have never had an extra-marital affair with Ms Kanametova. Nor have I, as OSG suggests, “conspired to defraud OSG””
. His evidence before this Court was to the same effect.[25]These are factors making it improbable that they would lie. As always, cogent evidence is required to justify a finding of fraud.[26]Against that is the consideration that, as it turns out, Mr Bobrowski has funded this litigation to the tune of over USD 1 million. The defendant applied for and obtained at the pre-trial review an order for the specific disclosure of the claimant’s funding arrangements. HHJ Pelling granted the order on the basis that the material sought did not merely go to credibility but to the basis of the defendant’s case, which was that there was in effect an unlawful conspiracy between the claimant and Mr Bobrowski. The application was fiercely resisted.[27]The material so reluctantly disclosed in December 2025 revealed for the first time that Mr Bobrowski had paid all the claimant’s legal fees since the commencement of this challenge, probably amounting to a sum of the order of USD 530,000; the first and second tranches of security for the defendant’s costs in the sum of USD 307,190; the additional security sum ordered at the pre-trial review, amounting to USD 135,925; and the further sum of USD 41,176.20 to meet a costs order.[28]That is not the behaviour of an independent witness; and all the less so, since both he and the claimant sought not to reveal it while at the same time positively asserting his independence, as they still do.[29]This significantly undermines the weight to be given to Mr Bobrowski’s evidence as a witness as supporting that of the claimant, and the credibility of both. They significantly undermine the otherwise inherent implausibility of the defendant’s case that there was in effect an unlawful conspiracy between the claimant and Mr Bobrowski. They throw into relief the passages of his evidence and his conduct where he supports the claimant, and even at points appears to argue her case for her.[30]It does not help that the evidence about the nature of the arrangement between them was unsatisfactory. The claimant’s evidence is that, being based in Russia, she has had problems paying her English solicitors, and so arranged with Mr Bobrowski for him to make those payments on her behalf, she reimbursing him in advance, or sometimes shortly afterwards, by cryptocurrency transfers.[31]Since the arrangement with Mr Bobrowski is said to have been oral, there is of course no written agreement, but the absence of formality in an arrangement involving substantial sums between independent persons is surprising.[32]No documentary evidence of the transfers involved was produced, despite request. That is surprising too, since it ought to have helped the claimant. Instead, the defendant’s request for such material was met by the assertion that it was not entitled to it, and that any application for it would be resisted and was bound to fail. There was no suggestion that it could not have been produced. Nothing about cryptocurrency makes it impossible.[33]Considering their evidence generally, the effects of having given evidence on the matters at issue once before, before the tribunal, was very evident. That may have accounted for at least some of the rehearsed quality of much of it. Even so, while Mr Bobrowski was by some margin the more confident of the two of them, both were defensive and hesitant when not on familiar ground. The contemporaneous documentation is therefore particularly important when considering their evidence.

Ms Gorbunova

[34]As to the defendant’s evidence, Mrs Gorbunova was a transparently honest and straightforward witness, and I accept her evidence.

Mr Pavlus

[35]The evidence of Mr Pavlus was hearsay, since he was not called. However, he was cross-examined before the tribunal. I have considered the effect of his evidence below in the course of my narrative findings.

Absence of other witnesses

[36]Much was made of the absence of other witnesses for the defendant, but I am not persuaded that any weight is to be attached to this. It is for the claimant to establish her case.

Hearsay

[37]I should mention that points were taken about the status of some documentation as hearsay. I understood that it was accepted by the claimant that all the documents in the bundle marked hearsay by the claimant’s legal team were admissible as such. The question was the weight to be attached to their contents as evidence of the truth thereof where the author of the document had not been called. I have, of course, had regard to the question of weight and significance when considering those documents in the course of my findings set out below, but I do not consider there to be any need to make specific or explicit findings of weight in relation to each document.

Findings

[38]The contemporaneous documentation before the court shows that for some time there had been discussion of a scheme for rewarding senior employees with an equity value based scheme. The minutes of a meeting of the advisory committee of OSG on 17 October 2014 refer to agenda item 3, “Top management FY14 remuneration and LTI allocation.” The minutes relating to that item read:
“5. Recommend to approve management remuneration plan (page 16 of AC materials dated October 17, 2014) 6. Recommend to approve proposed LTI allocation with the following exception: ▪ 2% LTI allocation to Zalina Kanametova (“Russia”) shall be reduced to 1.5% in case the shareholders do not complete the sale of OSG in the next 6 months. Otherwise, the allocation should be kept at 2%. 7. Recommend to review calculation of the proposed strike price.”
The materials in question set out figures for LTI allocation and refer to an Excel spreadsheet. ▪ 2% LTI allocation to Zalina Kanametova (“Russia”) shall be reduced to 1.5% in case the shareholders do not complete the sale of OSG in the next 6 months. Otherwise, the allocation should be kept at 2%.[39]On 15 September 2015 the claimant emailed Mr Pavlus saying that he had promised that her ‘issue’ (the heading, ‘Options’ shows that she was referring to her share option under the proposed LTI) would be resolved by mid-September, and asking whether it had been. He responded to say “Not everything is up to me. I’ll call to discuss. PS Krysztof [that is, Mr Bobrowski, whom he copied in] knows the situation as well as I do. You’re sitting in the same office…”[40]On 17 September 2015 Mr Pavlus emailed her (copied to Mr Bobrowski and to Ms Spasskaya, Elbrus’ in-house lawyer) a draft of the proposed option agreement, telling her the size of her package was 2%.[41]That evidently did not reflect the reduction to 1.5% referred to in the minutes of the meeting of the advisory committee of OSG on 17 October 2014 to which I have already referred. The shareholders had not completed the sale of OSG in the next 6 months, so the figure should have been 1.5% unless there had been a later decision not to make that reduction. I think it unlikely that Mr Pavlus would have told the claimant that her share was 2% unless there had been authority for it which he regarded as sufficient, or unless he regarded obtaining such authority as a mere formality.[42]Mr Pavlus asked for the claimant’s comments, if any, and said that Ms Spasskaya might also have some. The draft was undated, and did not contain her name or that of the person to sign for OSG, or the programme commencement date. At its foot, it contained the words. “Please confirm your agreement to the terms of this letter by signing below. Yours faithfully, Name: For and behalf of OSG Records Management (Europe) Limited Agreed. Name: XXX” Even so, this was clearly not a document for execution. Name: For and behalf of OSG Records Management (Europe) Limited Name: XXX”

For and behalf of OSG Records Management (Europe) Limited

[43]The claimant responded on 25 September 2015 to say, “Comments and edits will be early next week. I still need to familiarise myself with the laws referred to in the document. In addition, please send me the data instead of which XXX is now indicated in the document.” The laws she mentioned were the Labor Code of the Russian Federation: under the proposed terms, termination of her employment for cause forfeited the bonus entirely, and included circumstances where OSG had reasonable grounds to believe she had breached the Code. This was not a request for a document for execution, but a request for a completed draft, upon which she intended to comment and suggest edits.[44]On 28 September 2015 Mr Pavlus responded “ok,” and emailed a request to Sergey Panarin (a Vice President of Elbrus) to fill in the blanks of an attached copy of the draft LTI Agreement, telling him that the commencement date was the date Elbrus acquired OSG. They appear to have continued with a discussion of the exact basis of the 2% share contemplated, with Mr Pavlus preferring what was described on an attached spreadsheet as the base case, with her having a notional 1416 shares rather than 1632 shares.[45]On 30 September 2015 Mr Pavlus replied (copied to Mr Bobrowski and Ms Spasskaya) “Will send a document tomorrow with the fields filled in.” This was an assurance that a completed draft would be sent for consideration, rather than a final document for execution.[46]On 1 October 2015 Mr Pavlus emailed the claimant (copy to Mr Bobrowski and Ms Spasskaya) with an attachment called “Option letter 011015.doc”. The email said “See attached an option document with additional legal comments on our side, in track changes. Let us know if you have any additional comments.” The document attached was the LTI Agreement in ‘track changes’ format, and included the date of 1 October 2015 (automatically generated); the claimant’s name; the number of notional bonus shares (1416); provision for a fine in the event of breach of non-compete and non-solicit provisions; a new obligation to continue working for OSG after exit for as long as the purchaser might require, up to a maximum of 6 months; a programme commencement date of 7 March 2013; and the claimant’s name (located where one might have expected the name of the person to sign for OSG).[47]Mr Bobrowski’s evidence was that, in a telephone call on 1 October 2015, Mr Pavlus had told him that he wanted Mr Bobrowski to persuade the claimant not to suggest any more corrections. He said the terms of the agreement had been approved a long time ago, so it only needed execution.[48]The document did not only need execution. It was still in track changes format. While it may be the work of a moment to accept all the changes electronically, it is a significant step that is unlikely to have been taken for the purposes of execution without specific authority. There is no evidence of any.[49]Nor is there any contemporaneous evidence of such a call’s having taking place.[50]A person in the claimant’s position might well have wanted to comment substantively. She had been asked to. She had said that she would. She had not yet made the inquiries as to the law referred to in her email of 25 September 2015.[51]Moreover, it would have been odd for Mr Pavlus to invite comments from the claimant on the one hand and then seek to discourage them indirectly and behind her back. Mr Pavlus himself accurately described such an approach as unprofessional in his evidence to the tribunal. It would also have been inconsistent with his raising the possibility that Ms Spasskaya might herself have comments.[52]I find that Mr Pavlus did not ask Mr Bobrowski to persuade the claimant not to suggest any more corrections and just to execute it.[53]It would also have been odd for Mr Bobrowski to have agreed to that underhand approach to dealing with a close colleague. There is no contemporary evidence suggesting he adopted that approach.[54]The claimant and Mr Bobrowski gave evidence that he called her, and she agreed to execute the agreement. Her evidence before the tribunal and in court was that the call took place shortly after the she received the email, and his was that it was about an hour after. Her evidence before the tribunal and in court was that they did not discuss specific risks. His was that they did discuss the risks on her exiting her employment. While one might expect there to be discrepancies in their accounts such a long time after the event, one would not expect them to be so specific and apparently certain about their own accounts if it genuinely reflected the state of their recollection.[55]Mr Bobrowski sent two emails to Mr Pavlus later that day on other topics. They did not mention his having spoken with the claimant or his success in persuading her to sign the agreement without further comment. Nor did Mr Pavlus ask about it in any email. Mr Bobrowski gave no evidence that he informed Mr Pavlus about it at all, or that Mr Pavlus even asked.[56]I find that no such call took place between the claimant and Mr Bobrowski.[57]Mr Bobrowski’s evidence was that when he got to his home in London that day, he printed two copies of the LTI Agreement as provided by Mr Pavlus, and signed and stamped them on behalf of OSG. I am unable to accept it.[58]His initial account before the arbitrator was that he had flown to his home in Poland that night; on the basis of his flight tickets, his third witness statement corrected that to his home in Fulham. His flight appears to have landed at about 2130. He would not have got home to Fulham until late. He accepted it could have been no earlier than 23.00. It would have been at least 01.00 on Moscow time. Frequent traveller or not, it is implausible that he then dealt with this paperwork rather than speaking to his wife (who had just arrived that day) or going to sleep when he must have been tired and had no reason to address the matter then, when he knew he was not due back in Moscow for several days and the claimant could not sign until then. Importantly, he did not email or call the claimant then or later to say he had done it or to arrange for her to execute it.[59]In cross examination he added that he was used to executing the agreements of various non-Russian companies outside Russia for tax reasons, and doing so when he left Russia. That may be so, but it was not persuasive as to his executing the LTI Agreement when he did. In any case, the LTI Agreement would not have been executed until the claimant signed it, which she was going to do in Russia, on his account.[60]True it is that the LTI Agreement bears the date 1 October 2015; but even if was printed then, that is insufficient reason to conclude it was signed and stamped then; and, given that it was common ground that the automatically generated date could be changed manually in any event, I find that it was not printed then, but later. There would of course have been no reason at all to print, sign and stamp it then if he and Mr Pavlus were still awaiting the claimant’s (or Ms Spasskaya’s) comments, or confirmation that they had none. That is what the contemporaneous documents suggest.[61]On 2 October 2015 the claimant emailed Andrey Rodin, a Legal Department Director of OSG Russia, saying “Please see the document. They refer to the employment contract. What kind of cases could it be?” This is evidently a reference to the draft LTI Agreement which she had been sent. She was asking about the effect of its provisions about the effect of a breach of her employee obligations. It is consistent with her email of 25 September 2015 saying, “Comments and edits will be early next week. I still need to familiarise myself with the laws referred to in the document,” and with Mr Pavlus’ invitation to make comments. It would have been an odd email to send if she had already agreed to accept the terms as they stood. While I accept that it might still have sensible, had she already done so, to ask about what might give rise a breach, it would have been more sensible to have done so beforehand, and that is what is more likely to have happened. If she had already signed it, I consider she would have been likely to say something in the email about why she was asking in that context, given that Mr Rodin would only have the ‘track changes’ draft.[62]It was not until Sunday 6 December 2015 that the claimant appears to have chased him for his response, and he responded at some length the following day at 14.59, saying the difficulty was that it was governed by English law, he did not know what the parties had agreed, that the references to the labour contract were too broad, that it appeared to contain inconsistencies and that there were the areas of uncertainty which he identified. In other words, he seems to have advised that the draft was unsatisfactory as it stood. That would be a reason not to pursue its execution, if it had not already been executed.[63]At 16.05 the same day, the claimant emailed Mr Bobrowski with an amended copy of the draft LTI Agreement, saying “Could you check my comments to option.” So, having had Mr Rodin’s observations, she is now sending the comments she had been invited to provide by Mr Pavlus to Mr Bobrowski to check. That is, comments on the draft document. Her comments are in both blue (as she accepted in cross-examination) and pink (as denoted by the initials KZ). They are substantial and detailed. She explains them as her ‘ideas’ which she wanted to run past Mr Bobrowski, about ways to improve the LTI agreement which she had signed, rather than as comments on the draft of an as yet unexecuted agreement. This is, however, highly implausible. She asks for the part dealing with termination of employment to be taken out: she also suggests amending the Programme Commencement Date. The language is not that of suggesting the variation of an existing contract, but of negotiating amendments to the draft of a contract which had not yet been agreed.[64]These considerations strongly suggest that the LTI Agreement had not been executed back in October 2015. The claimant’s account, supported by Mr Bobrowski, of its execution then is also implausible for the following further reasons.[65]I accept that OSG does not have the signed and stamped LTI Agreement said to have been left in the office of Mr Shorokhov. If there were one, I would expect it to have been found. Its business is the management of records. The search by Ms Gorbunova would, I consider, have turned it up if it existed. There is no basis for believing that it has been deliberately suppressed.[66]Mr Bobrowki’s account of what he did with it is surprisingly hazy and changeable, given that it was the claimant’s birthday and the supposed clarity of his recollection otherwise. His first statement said he had handed it to someone in that office. Although, on his evidence, that office was occupied only by Mr Shorokhov and a Mr Nikitushkin, not only could he not remember which of them it was, he could not be sure that he had not simply left it on the desk or even a cupboard. The claimant’s statement of case on jurisdiction dated 4 May 2024 avers that Mr Bobrowski handed it to Mr Shorokov. Mr Shorokhov has declined to give evidence but on 16 May 2024 said he did not recall it. On 7 September 2024 Mr Bobrowski’s evidence was that he had not handed it to Mr Shorokov but had gone to his office to hand the documents over to someone in his team; and that was repeated in his evidence date 9 September 2025. His evidence on 13 November 2025 was that he could not recall to whom he had handed it over. In cross examination before me he repeated that he could not remember, but thought it most likely that after some small talk he had mentioned what the document was and left it there.[67]It is hard to resist the conclusion that Mr Bobrowski preferred not to be definite for fear of having his evidence checked and falsified. I do not accept his account.[68]If it had been executed, it is odd that Mr Bobrowski did not retain an electronic copy himself as he had with other personal documents of the claimant including her employment contract. His explanation that he thought that to do so would involve a breach of data protection laws is implausible in that context.[69]It is also very odd that neither he nor the claimant communicated the completion of the LTI Agreement in any other way to any other person at the time or shortly afterwards. His explanation was that he did not do so because it was understood by all those involved that the claimant had accepted the terms offered on 1 October 2015; and there was no established process at Elbrus for sending scanned copies of employment contracts or incentive scheme bonuses to anyone else at Elbrus, including Mr Pavlus. However, the evidence that it was understood by ‘everyone’ is lacking. In any event, the execution of the LTI Agreement was hardly a mere formality: it needed to be communicated internally and filed. An ‘established process’ would hardly have been required.[70]Subsequent communications do not support the conclusion that the LTI Agreement had been executed in October 2015. On 19 January 2016, Mr Bobrowski emailed the claimant under the heading New Executive Engagement Terms, stating, “Following our conversation please find below the summarized new terms of your employment effective since 1.2.2016. Salary – 650kRub per month gross Bonus – Annual bonus as per earlier agreed formula will assume new annualized base compensation e.g. 12x650kRub for calculation of annual bonus for year ending 3.2016. Extra significant deals made by you will be subject to granting additional bonus subject to board approval New package will not include providing accommodation in Moscow (flat) and education, so you need to transfer related agreements to your name or to cancel them. Other terms like car, phone, Long Term Incentive plan (share options), etc. remain unchanged. I hope to have further fruitful and successful cooperation Please confirm receiving this email.” Although this refers to it as a term of her employment, it also refers to it as a plan: it is not clear whether this is to be understood as her having a contractual right to participate in a LTI plan under a written agreement which had already been executed, or to its (still) being the plan (that is, something intended) that she should acquire such a right. Mr Bobrowski’s evidence was that it was the former. In cross examination, he accepted that only two days later he had referred in the same terms to an LTI ‘plan’ in correspondence with someone (a Mr Akopian) whom he knew had not signed an LTI agreement (he had not signed an employment contract yet either). His evidence was, in effect, that in each case he was referring to a plan, or scheme, in which the claimant was already entitled to participate and which it was envisaged Mr Akopian would join. The words in the email to the claimant are capable of bearing either interpretation but against the background already set out, I conclude that it did not refer to an executed LTI Agreement. Salary – 650kRub per month gross I hope to have further fruitful and successful cooperation Please confirm receiving this email.”

I hope to have further fruitful and successful cooperation

[71]On 11 April 2016 Mr Bobrowski emailed a copy of the draft LTI Agreement of 1 October 2015 with the claimant’s comments, to Mr Pavlus. The email read:
“This is the version of ZK options. I am ok with the comments. the question may be with EC losing control and vesting. Merger was not considered when we were discussing my options so the template for ZK stayed. Should I follow it with Evgeniy or finish it together now?”
The reference to ‘the version of ZK options’ is not a reference to a concluded contract: the document attached was not a concluded contract but a draft. That Mr Bobrowski was ‘ok with the comments’ of the claimant suggests that her comments on 6 December 2015 were still open for debate: that suggests that she had no concluded contract, because if her LTI Agreement had been executed her comments would not be of relevance at this stage unless there were also an active discussion about varying it, which there was not (as indeed Mr Bobrowski said in his written evidence). When he says ‘Merger was not considered when we were discussing my options so the template for ZK stayed’ he is saying that the template for the claimant was his own LTI Agreement, which had been executed at a time when merger was not considered. Now merger with Iron Mountain was in prospect, the comments needed to be considered. Should I follow it with Evgeniy or finish it together now?”[72]Mr Bobrowski’s evidence was that this was about proposed LTI Agreements with a Mr Goncharenko and Mr Betin; not the claimant, who had already executed her agreement. However, ‘Should I follow it [up] with Evgeniy [Koudryavstev, the Investment Director of EC] or finish it together now?’ cannot have been, as he suggested, a reference to multiple other proposed LTI agreements, however, because he said ‘finish it’ not ‘finish them.’ The most natural reading is that Mr Bobrowski was asking whether the claimant’s comments on her draft agreement should be followed up with Mr Koudryavstev, or whether he and Mr Pavlus should get it signed now (in one form or another) before Mr Pavlus left OSG. Evidently either the claimant, or Mr Bobrowski, or both, had not actively been pursuing the finalisation of the terms of her LTI Agreement.[73]This is not the implausible rejection of a valuable offer: it is an attempt to negotiate better terms in circumstances which had changed since Mr Bobrowski’s agreement. There would have been no reason at the time for either of them to think that the claimant would not end up with terms at least as good as his, even if her comments were rejected; and no reason for Mr Bobrowski or Mr Pavlus to make a song and dance about her having rejected them.[74]On 18 April 2016 Mr Panarin sent Mr Koudryavstev a copy of Mr Bobrowski’s LTI Agreement and the draft of the claimant’s LTI Agreement in Word format from 1 October 2015. This is not evidence of an agreement executed in favour of the claimant: if anything, it suggests there was none.[75]On 17 October 2016 Mr Savin, the managing partner of Elbrus, wanted to be reminded of the terms of the existing OSG option programme. Various details were supplied, including in an email from Mr Panarin sent an email to Mr Savin and Mr Koudryavstev stating:
“Vested/allocated % by individual: KB: 1.6%/2.6% ZK: 1.0%/ 1.7% Unallocated: 2.7% Hence, total vested = 2.6% out of 7% options pool. I am not sure that ZK allocation is absolutely correct but it is about right. I am trying to check with Vadym [Pavlus] if ZK plan was ever executed (seems that it wasn't). I have included vesting schedule to the previous table (attached).”
That tends to indicate that as far as Elbrus and OSG knew, the claimant did not have an executed LTI Agreement. The impression is reinforced by Mr Panarin’s email on 2 November 2016 setting out as fact that “ZK’s option agreement was never execute [sic], though there were attempts in 2015 (we have draft forms).” I infer that this followed completion of the inquiries with Mr Pavlus referred to in the earlier email. Mr Pavlus would have known if there had been a concluded agreement. That understanding is carried through to the spreadsheet attached to Mr Koudryavstev’s email of 6 March 2017 to Mr Bobrowski, which refers to the status of Mr Bobrowki’s agreement as ‘executed’ and to the claimant’s as ‘draft’, and refers to her share entitlement as 1.5% now, not 1.7%. Strikingly, Mr Bobrowski did not correct him on either point: on the contrary, he wrote back on 7 March 2017 to criticise the proposed allocation, partly with regard to the claimant’s position. Given his evident commitment to ensuring that her value to OSG was well rewarded, as demonstrated again in that email, his failure to point out that he had signed a binding agreement with her would have been remarkable if he actually had. KB: 1.6%/2.6% ZK: 1.0%/ 1.7% Unallocated: 2.7% I have included vesting schedule to the previous table (attached).”

Unallocated: 2.7%

[76]On 18 December 2018 Mr Bobrowski emailed PWC, attaching his own LTI Agreement, and referring to the split of 7% between management. The claimant relies on this, but the email does not address the question whether her LTI agreement was executed.[77]PWC’s response the following day included a request for copies of the contracts with the other management involved in the LTI. On 24 December 2018 (3 days after being notified he was no longer CEO of OSG) Mr Bobrowski sent them the SHA and forwarded the email of Mr Pavlus to the claimant of 1 October 2015 seeking her further comments on the draft agreement of that date. Mr Bobrowski refers to that as ‘proposed terms of LTI allocation as approved by Elbrus at the time.” Again , he does not send a copy of an executed agreement. More importantly, he does not say it was executed. He refers to ‘proposed’ terms. This email is inconsistent with his having been aware of an executed LTI Agreement with the claimant. I do not accept the suggestion that in context it only makes sense for him to provide the draft at all if the LTI agreement was in force.[78]The disclosure letter written in the context of the sale of OSG states there has been “…discussions with certain managers about the management incentive plan, key terms of which were formulated in Exhibit 4 of the 2017 SHA. No such management incentive plan has formally been put in place.” It did, however, disclose Mr Bobrowski’s LTI Agreement.[79]Accordingly, none of this documentation evidences the existence of an executed LTI Agreement in favour of the claimant; and some of it is inconsistent with there having been one.[80]As between the parties, the first mention of the LTI Agreement dated 1 October 2015 was in the claimant’s letter of demand dated 11 March 2020. The claimant’s letter before action dated 15 May 2020 encloses a copy of it for the first time and, presumably on instructions, refers to it as having been entered into by the claimant and Mr Bobrowski on 1 October 2015, which on their own case it was not, although that was the date it bore. That it was entered into on 1 October 2015 is repeated in the Request for Arbitration dated 8 September 2023 which in cross-examination, the claimant accepted she had approved. The account of its being signed by her only on 8October 2015 emerged only after 1 April 2024, when OSG had set out its case in its statement of case on jurisdiction that the agreement had been backdated.[81]The claimant’s employment with OSG Russia ended on 15 May 2018. The claimant’s evidence is that at a meeting on that date, Mr Savin confirmed to her that “all options will be paid” to her. There is no transcript of this. I do not accept that it was said. If it was, it would not be persuasive evidence that he meant the LTI Agreement had been executed; and if he had meant that, it would not be persuasive evidence that it had been.[82]There was a meeting on 23 July 2018 between the claimant, Mr Savin, Mr Koudryavstev and Mr Aksenov (General Director of OSG Russia and Vice President of Elbrus). There is a transcript of this meeting. She seems to have been assured that their obligations to her, including under an LTI scheme would be honoured, and that they looked at her as their partner, from the point of view of owning shares through the option programme. But there were to be conditions. Her focus, however, was on having had her employment terminated.[83]I do not consider this to be evidence that the LTI Agreement had been executed. It is consistent with the purported acceptance, at that stage and in those circumstances, of some kind of obligation to her in that regard, but not necessarily that there was a contractually binding one.[84]However, the fact remains that, as is common ground, the LTI Agreement on which the claimant relies bears, over Mr Bobrowski’s signature, the corporate stamp or company seal of OSG, incorporating a 5-pointed star. The claimant submits that if the Court does not consider that OSG has discharged its burden of proving that Mr Bobrowski failed to return the company seal and still has that company seal, that is the end of the matter, because the defendant advances no alternative explanation for why it is that the LTI Agreement appears under the company seal; and the only reasonable conclusion that can be drawn is that Mr Bobrowski applied the company seal when it was in his possession in 2015, and not when it was in his possession in 2020, because it was not in his possession in 2020.[85]It is also submitted that if the Court accepts this submission, it is decisive of the case, and there is no need to assess the credibility of any of the witnesses or consider what weight should be given to the 6500 odd pages of evidence. However, I have to consider the evidence as a whole.[86]The claimant explicitly and rightly accepts in her points of claim that the burden of proof is on her to demonstrate on the balance of probabilities that the LTI Agreement was executed in October 2015. Her pleaded case is that the LTI Agreement bears OSG’s company seal (the “Seal”) which was applied by Mr Bobrowski and that this confirms that the LTI Agreement was executed in October 2015 and not 2020 because Mr Bobrowski returned the Seal to OSG on 4 April 2019.[87]The defendant’s pleaded case is that although the LTI Agreement appears to feature OSG’s company seal, it is denied that Mr Bobrowski returned the seal on 4 April 2019 (as the Claimant alleges). The presence of a seal on the LTI Agreement does not confirm that the document was executed in October 2015 as alleged: during his tenure as OSG’s CEO, Mr Bobrowski had in his possession an OSG company seal. Fiduserve Corporate Services Limited kept another OSG company seal.[88]In the arbitration, OSG submitted that the signatures and the seal were applied to the LTI Agreement at some point between February 2020 and May 2020, the first time the LTI Agreement was mentioned in correspondence being in March 2020.[89]In considering this submission I follow Dame Clare Moulder DBE in Ganz v Petronz FZE [2024] EWHC 635 (Comm). In that case it was submitted that the burden of establishing that there was a lack of intention to create legal relations lay on the party asserting that no legal effects were intended, on the ground that the burden of proof lies upon the party who substantially asserts the affirmative of the issue, relying on Phipson on Evidence, 20th ed., paragraph 6-06, as authority for the proposition that where an allegation forms an essential part of a party’s case, the proof of such allegation rests on him.[90]The learned Judge stated at [55]-[57] 55. It seems to me that there is a risk that these submissions do not properly reflect the test as set out in Phipson on Evidence (20th edition) at 6-06 which states that:
“…Where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegations rests on that party. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him.”
[emphasis added] 56. The relevant passage in Phipson is as follows:
“So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue. Where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegations rests on that party. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. This is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The service of a notice to prove documents pursuant to CPR r.32.19 does not shift the burden of proof. This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting. In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will. Moreover, a negative allegation must not be confused with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him. An alternative test, in this connection, is to strike out of the record the particular allegation in question, the onus lying upon the party who would fail if such a course were pursued. In all but the simplest cases, the burden of the issues will be divided, each party having one or more cast upon him. However not every decision made by a judge during or in preparation for a trial is susceptible to analysis in terms of the burden and standard of proof. Many decisions in and before trials involve weighing competing factors and the judge exercising evaluative judgment.”
[emphasis added] 57. Thus, it is clear that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegations rests on that party. It is Mr Ganz who asserts that the SPA and the Arbitration Agreement (at least as between Mr Ganz and Mr Goren) is authentic and binding and it is therefore Mr Ganz who bears the burden of establishing on the balance of probabilities the existence of an authentic and legally binding SPA (or at least a valid Arbitration Agreement).”[91]In the present case, the burden of establishing the validity of the LTI Agreement rests on the claimant. The claimant’s case is that it was executed in October 2015, and that when Mr Bobrowski executed it then, he did so with the authority of OSG. The defendant denies it. I do not accept that OSG has the burden of proving that Mr Bobrowski failed to return the company seal and still has that company seal. Since I reject the claim that it was executed in October 2015, it follows that I should dismiss the claimant’s claim on that ground alone: no alternative claim is advanced about a different date of execution when Mr Bobrowski still had any authority on behalf of OSG.[92]In any case, I find that that Mr Bobrowski did indeed fail to return the company seal. That is for the following main reasons.[93]Mr Bobrowski accepted before me that there were at least 3 company seals for OSG: that of Fiduserve, of Mr Shorokhov and his own. It seems that the seal he used bore a 5-pointed star, as Ms Gorbunova (Elbrus’ General Counsel) was prepared to accept. Such a seal was applied to the LTI Agreement. There was also an OSG seal with a 6-pointed star, which was used by Thekla Christofi, a director of OSG and employee of Fiduserve Management Ltd, on at least two documents: I accept that this was the seal which she had.[94]One OSG seal appears to have been sent by Fiduserve to Dr. K. Chrysostomides & Co LLC (a Cypriot firm said to have been providing corporate services to OSG from 9 January 2020) under cover of a letter dated 21 January 2020. That must have been the seal held by Fiduserve bearing a 6-pointed star. On the basis of their letters dated 27 February 2024 and 13 February 2025 I accept their evidence, albeit hearsay, that they did not then recall and have found no record suggesting they received Mr Bobrowski’s; and in any case they only passed on one seal in 2020.[95]Despite its return having been demanded on 25 December 2018 and 31 December 2018, Mr Bobrowski still had his OSG seal on 28 March 2019, as appears from his letter to his solicitor, privilege in which was waived, of that date. It is not clear why. In cross-examination, he said he was acting on advice, and perhaps he was.[96]However, I have found Mr Bobrowski to have lied about the events of October 2015, and to have done so in concert with the claimant and in support of her claim. It is likely that he has lied in his account of the return of his seal in the same cause. His new evidence about this is responsive to the finding in the arbitrator’s award that he did not return it. Nonetheless he has produced no direct evidence, apart from his own oral account, that he did. I infer that is because he cannot. What contemporaneous evidence he has produced is incomplete. The DHL waybill upon which he relies does not mention the sender, recipient or nature of the item sent. Such of his privileged correspondence with his solicitor as he has made available in evidence for the purpose of this challenge, appears to demonstrate an intention to return the seal on 4 April 2019, a time of his choosing, but it does not confirm that he actually did so. In the context of the deficiencies of the evidence on behalf of the claimant generally, I consider it to be more likely than not that the intention Mr Bobrowski expressed in his correspondence to return the seal on 4 April 2019, if genuine, changed; and that he did not return the seal but applied it to the LTI Agreement.[97]I am reinforced in that conclusion by the fact that notwithstanding the Tribunal’s having directed the claimant to produce all email, text messages, and WhatsApp messages between Mr Bobrowski and her between 1 March and 9 May 2019, and all correspondence and text messages between Mr Bobrowski and her referring to the LTI Agreement between 1 February and 31 May 2020, she has not produced any, explaining that she no longer had access to them. That involves her saying that she has lost and is unable to recover her password to the relevant email inbox, has destroyed not one but two mobile telephones beyond repair, and is unable to access her text or WhatsApp messages (with the occasional exception). That is an implausible trail of mishaps. In the context of her evidence generally I consider it highly suspicious; and I conclude that it is more likely than not that unprovided materials from 2019 would have demonstrated a cooperation between the claimant and Mr Bobrowski in relation to her claim that, if known, would have been unhelpful to her pursuit of it; and that material from 2020 has been suppressed because it would not have supported the assertion that the LTI Agreement was genuine and not backdated.

Conclusion

[98]Accordingly, I conclude that the purported LTI Agreement was not executed by the claimant and Mr Bobrowski in October 2015 when Mr Bobrowski was OSG’s CEO, and that the LTI Agreement and the arbitration agreement which it contains are therefore not valid or binding on OSG, and accordingly that the arbitrator did not have jurisdiction and was correct in holding that she did not.[99]In reaching this conclusion I have preferred to refer my conclusions to my own independent judgment than to adopt the award of the arbitral tribunal, careful and persuasive though it is. That is primarily because the evidential position had changed since that award was made, and the evidence needed to be considered from a wholly fresh perspective in those circumstances.[100]I should add that this was a very thoroughly fought case, and many points were taken which I have not specifically mentioned here, or have touched on only lightly. I have carefully considered each of them nonetheless, but have referred in this judgment only to those which have had the most substantial bearing on my conclusion.