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«Stephen Kosmin Year called 2011 stephen.kosmin Stephen Kosmin’s practice extends across commercial law, financial services law, ...»

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Stephen Kosmin

Year called 2011

stephen.kosmin@39essex.com

Stephen Kosmin’s practice extends across commercial law, financial services law, construction law and public

law. In 2015 alone, Stephen has appeared twice in the Supreme Court, namely in R (Bancoult) v Secretary of

State for Foreign and Commonwealth Affairs and in Cox v Ministry of Justice.

In his commercial practice, Stephen appears regularly in the High Court both by himself and as junior counsel.

Stephen has recently been instructed in disputes concerning insurance contracts, procurement processes, local government financing, NHS funding, company law, and professional negligence. Stephen has also appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes. In addition, Stephen has extensive experience of arbitrations, ranging from a nuclear technology dispute under the ICC Rules, to a dispute under the LCIA Rules concerning the financing of oil exploration, to a dispute concerning agents’ remuneration under Rule K of the Football Association Regulations.

Stephen has great familiarity with financial services law, having been instructed in matters concerning the Bank of England, Financial Ombudsman Service, Financial Services Compensation Scheme, Financial Conduct Authority and Serious Fraud Office. Stephen regularly appears in judicial review proceedings arising from financial regulation, including in R (on the application of Chancery (UK) LLP) v Financial Ombudsman Service Ltd, the leading recent decision on tax avoidance schemes.

Stephen is a member of the Attorney General’s C Panel of Junior Counsel to the Crown, in which role he has been instructed in the Kenyan Emergency Group Litigation concerning the Mau Mau Rebellion. Stephen also has considerable experience of public international law litigation. Stephen’s cases have raised issues of treaty interpretation, customary international law, and the extent to which public international law confers rights or causes of action in domestic law. Indeed, Stephen has guest-lectured and appeared on the BBC to speak on international law issues.

Practice Areas Commercial Construction International Arbitration

BARRISTERS • ARBITRATORS • MEDIATORS

clerks@39essex.com • DX: 298 London/Chancery Lane • 39essex.com Administrative & Public International Civil Liability Sectors Banking & Financial Services Insurance and Reinsurance Practice Areas Commercial Stephen appears regularly in the High Court both by himself and as junior counsel. Stephen has acted in interlocutory hearings, particularly in relation to winding up proceedings, freezing injunctions and jurisdictional disputes. He has additionally appeared as junior counsel in High Court trials. Stephen has also assisted in cases before the Court of Appeal, High Court, and County Courts.

Stephen has appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes. He has experience of proceedings in Ireland, Barbados, and Saint Vincent and the Grenadines.

He has also assisted in arbitral proceedings under the ICC Rules, the LCIA Rules and the Football Association Regulations (see further below under the heading ‘International Arbitration’).

Stephen has extensive experience of drafting pleadings and complex opinions and advising clients in conference, including in relation to local government financing, NHS funding, company law, professional negligence, intellectual property and passing off, and multi-jurisdictional issues in private international law. Stephen has represented commercial clients as diverse as sole-trading dotcom entrepreneurs to multi-national corporate groups. Recently, Stephen has been instructed as a junior in a challenge to a multi-million pound NHS procurement process for mental health services.

Stephen has a developed knowledge and professional experience of company law, commercial remedies,

and alternative dispute resolution, including in respect of:

–  –  –

Stephen has close familiarity with a number of overseas jurisdictions, in particular New York, where he is a qualified attorney, and Israel, where he has been a Foreign Law Clerk in the Supreme Court.

Construction Stephen has experience of a broad range of construction litigation. He has appeared in the High Court and in the Commercial Court in Ireland in respect of large-scale construction disputes. He also regularly drafts pleadings and complex opinions in relation to standard form construction contracts (such as JCT and NEC3 standard building contracts) and non-standard form construction contracts, and advises clients on proper courses to pursue when disputes arise in the course of a construction project. Recently, Stephen successfully obtained a strike out of a claim against a large development project on a London brownfield site.

Stephen has been instructed in relation to international construction projects, including in Malaysia and the Caribbean. Stephen also marshalled in the Technology and Construction Court with Ramsey J and Edwards-Stuart J and has since been instructed in proceedings to enforce adjudicators’ decisions in the Technology and Construction Court.

Stephen is a contributor to Wilmot-Smith on ‘Construction Contracts’ (Oxford University Press, Third Edition), having written the chapter on mistake, frustration and misrepresentation. Stephen, together with Marion Smith, has also spoken on expert evidence and recent developments in the handling of experts.





International Arbitration Stephen has extensive experience arbitral proceedings, as well as adjudications and negotiations.

Stephen has assisted in multiple arbitrations as a Secretary to the arbitrators or Clerk to the Tribunal. The arbitral proceedings included a nuclear technology dispute under the ICC Rules, a dispute under the LCIA Rules concerning the financing of oil exploration, and dispute concerning agents’ remuneration under Rule K of the Football Association Regulations. As Secretary to the Tribunal, he has contributed towards the drafting of arbitral awards, legal research, and procedural management of arbitral proceedings. Stephen also has demonstrated cross-examination of underwriters and experts in the context of a reinsurance arbitration under the ARIAS Rules.

Moreover, Stephen has drafted pleadings for arbitral proceedings in respect of disputes arising under multi-party standard form contracts. Stephen has advised on the implementation and subsequent

–  –  –

clerks@39essex.com • DX: 298 London/Chancery Lane • 39essex.com operation of the Directive for Alternative Dispute Resolution (Directive 2013/11/EU).

Further, Stephen has co-authored an article on arbitration, namely: “The Enforcement of Arbitral Awards in UAE”, (2013) Lexis PSL Arbitration.

Administrative & Public Stephen is interested in all areas of public law, including consultations, human rights law, judicial review and procurement law. Stephen has acted both for claimants and the government in public law matters. In January 2015, Stephen Kosmin was successful in his applications to join the Attorney General’s C Panel of Junior Counsel to the Crown. He will be a member of the Panel from March 2015 to August 2020. In that role, he has already been instructed in the case of Cox v Ministry of Justice, which is to be heard by the Supreme Court in Autumn 2015, and in the Kenyan Emergency Group Litigation concerning the Mau Mau Rebellion.

Stephen was recently junior counsel for the claimant in the Court of Appeal in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ (judgment pending) (on appeal from R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 1502 (Admin)), a challenge to a consultation in the respect of the creation of a no-fishing zone around the Chagos Islands. In addition, this case raised complex matters of civil procedure and evidence in light of the claimant’s attempted reliance upon and cross-examination in respect of a Wikileak Cable that appeared to disclose an improper motive (R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin)).

Stephen will be appearing in the Supreme Court in this case in the summer of 2015.

Stephen has appeared regularly in judicial review permission hearings, and is practised in drafting judicial review pleadings and complex opinions, including advices to the Legal Services Commission and grounds of appeal to the Court of Appeal and Supreme Court, as well as Skeleton Arguments for use in judicial review proceedings. Additionally, Stephen was selected to act as counsel for the Home Office before the First Tier Tribunal (Immigration) and appeared in over 120 appeals.

Stephen has advised investors on statutory reforms and regulatory changes to funding arrangements in public private partnership schemes and has assisted companies involved in regulatory investigations.

Stephen also advises local councils and NHS authorities, including on the likelihood of judicial review proceedings being successful. Recently, Stephen has been instructed as a junior in a challenge to a multi-million pound NHS procurement process for mental health services.

Stephen has extensive experience of education law, in particular judicial review claims against educational institutions. These include claims in respect of a candidates’ failure to be awarded a place at or a degree from an institution. Stephen has successfully obtained civil restraint orders in a number of such cases, including in one case bringing a dispute lasting around twenty years to a satisfactory

conclusion.

–  –  –

clerks@39essex.com • DX: 298 London/Chancery Lane • 39essex.com prison is vicariously liable in respect of prisoners operating within a prison.

Kenyan Emergency Group Litigation, concerning claims arising from the conduct of colonial forces during the Mau Mau Rebellion in Kenya.

XX v Secretary of State for the State Department [2012] EWCA Civ 742, concerning deportation with assurances of a terrorist suspect and particularly the admissibility of evidence about arbitrary detention and ‘flagrant breach’ of Article 6.

–  –  –

R (on the application of the Badger Trust) v Secretary of State for the Environment, Food and Rural Affairs [2012] EWHC 1904 (Admin), involving a judicial review of a licensing scheme for the culling of badgers.

Information Tribunal in The Chagos Refugees Group v Information Commissioner and ors [2012] UKFTT 2011/0300, which concerned whether information was ‘held’ by the FCO, and the scope of the Environmental Information Regulations exception for internal communications of a public authority.

Statutory appeals to the High Court, including in Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419, concerning the treatment of regional policy after the Cala Homes litigation.

Court of Protection, including capacity and best interest assessments.

–  –  –

Stephen has detailed knowledge of public law, having taught Administrative Law and Constitutional EU Law at London Metropolitan University. During his BCL Degree, Stephen also was awarded the Ralph Chiles CBE Prize for the best performance in Human Rights Law at Oxford University.

International Stephen has appeared in the Court of Appeal (R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ – decision pending) and the High Court (R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 1502 (Admin)) in cases concerning the applicability and operation of public international law. Stephen’s cases have raised issues of treaty interpretation, customary international law, and the extent to which public international law confers rights or causes of action in domestic law. Stephen has also assisted in cases about the effects of non-ratification of treaties and of ius cogens norms of public international law (XX v Secretary of State for the State Department [2012] EWCA Civ 742, and SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547).

In particular, Stephen is familiar with treaty interpretation. Stephen’s cases have concerned the Vienna Convention on the Law of Treaties 1969, the Vienna Convention on Diplomatic Relations 1961, the Vienna

–  –  –

clerks@39essex.com • DX: 298 London/Chancery Lane • 39essex.com Convention on Consular Relations 1963, and the United Nations Convention Against Torture 1984. When counsel for the Home Office before the First Tier Tribunal (Immigration), Stephen gained extensive experience of the interpretation and application of the UN Refugee Convention and the European Convention on Human Rights.

In the course of his cases raising public international law, Stephen has worked extensively with leading academics, including Professor Robert McCorquodale (the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham) and Professor Vera Gowlland-Debbas (Honorary Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva and a Visiting Professor at University College London). Stephen is also an experienced researcher of complex public international law problems, not least as a result of his time as a Foreign Clerk with the Supreme Court of Israel, which is at the forefront of international law jurisprudence.

On 29 April 2015, Stephen Kosmin was invited by the BBC to speak on the public international law and maritime law implications of the seizure by the Iranian Revolutionary Guard’s naval forces of a Danishowned, Marshall Islands-flagged cargo vessel in the Strait of Hormuz earlier that day. The seizure sparked a diplomatic incident and came at a critical moment, with the Iranian Nuclear Talks ongoing and US warships having recently arrived in the area.

Civil Liability



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