Sean Wilken KC

Sean has long-standing experience and expertise in the oil and gas and energy sector. His work covers all aspects of upstream and downstream work: treaty issues; block allocation disputes; FOA/JOA issues; rig and pipeline construction and deployment; long term supply contracts; rig and pipeline deployment; transportation issues; the design, construction, financing and operation of power stations (coal, gas, WTE and nuclear) and grid connection issues. He has further knowledge and expertise in the regulation of nuclear materials and reactors, reprocessing, control and security.

Sean has been instructed in energy disputes throughout the world but with particular emphasis on the Middle and Far East and the former Soviet Union. He was instructed in the Seadrill Ghana Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm) case and also instructed by the world’s largest oil futures trading company in a dispute arising from the treatment of gasoline cargos afloat. He has been instructed in major insurance and reinsurance claims in the nuclear industry. He was also lead counsel in the case of Shell v HMRC a leading case on the taxation and interpretation of long term oil and gas sale contracts in the North Sea. In addition he was junior counsel in the case of Scottish Power v Britoil, the leading case concerning the proper construction for long term oil and gas supply contracts.

Sean’s practice since being appointed Queen’s Counsel in 2010 has primarily involved advising and acting in complex, high value international and domestic disputes.

In his recent practice, he has been heavily involved in high value cases emanating from large scale infrastructure and projects disputes across the Middle East and Asia involving – the KRI; UAE; Syria; Pakistan; the PRC and Hong Kong.

Sean has extensive experience in rail and light rail disputes. He has acted:

• For Leighton Contractors Asia Ltd in the Shatin-Central Link Public Inquiry;
• For Croydon Tramlink against Transport for London in a long running series of cases;
• In a multi-party dispute over the construction of rail facilities for the London Olympics;
• For Virgin Rail in disputes over railway operations and infrastructure upgrades;
• Against Network Rail in further disputes over financing and infrastructure upgrades;
• For a major financing house in arbitration and before the Commercial Court and the Court of Appeal relating to the provision of and financing for upgraded rolling stock in the UK;
• Advising and acting in numerous disputes over the provisional of rolling stock and infrastructure dealing with delay (Covid and non-Covid related); the acceptance of rolling stock; the EMA; the ERMA and the National Rail Contracts;
• Advising and acting in relation to insurance issues arising from the provision and use of rolling stock – including risk sharing, cost of insurance and coverage.

Other items in Sean’s recent work load has included –a £1bn UAE dispute; an HKIAC Arbitration over the HK$3bn redevelopment of the Kowloon water supply; disputes over financing and security issues in Iraq; oilfield developments offshore Nigeria; oilfield development offshore Kenya; next generation electricity generation in Eastern Europe; a €4bn M&A dispute over the acquisition of chemical and energy plants worldwide; international commodity and transport disputes involving Russia and Canada; international commodity and shipping disputes involving US, West Africa and Eastern Europe; international aircraft sales between Russia, Germany and Switzerland and commercial and insolvency disputes in Hong Kong.

Sean’s construction practice covers domestic and international large scale development, infrastructure and energy projects. From early experience in the Carlton Gate Property Development litigation through the provision of infrastructure for the Olympics to social housing under the PFI regime, he has acted in all types of disputes for all sides of the industry. Recent instructions include acting for Leighton Contractors Asia Limited in the 12 month Sha Tin – Central Link Public Inquiry; a US$1bn dispute over the provision of infrastructure in Dubai; a HK$3bn
dispute over the provision of water supplies; several disputes over the construction and operation of WTE plants and power station construction.

Sean has advised on and litigated all forms of contracting and the standard forms of contract with particular experience in NEC, EPC, project management, financing and insurance issues. He has extensive international arbitration experience.

Sean has been involved in construction and engineering litigation for all of his career, including:

• luxury developments (Carlton Gate and PointWest) in London;
• signature buildings (No 1 Poultry, London);
• the construction of large scale infrastructure (roads, railways, schools, hospitals and docks); and
• complicated engineering projects (LNG facilities, chemical works and large scale water supply and sewage systems).
• cladding and fire stopping disputes in numerous projects.

His experience of complicated engineering works includes:

• retaining wall design and construction for a large port;
• slab reinforcement design and construction for factories, docks and motorway facilities;
• large scale floating slab design and construction for a residential development; and
• groundworks and ground conditions disputes.

Sean has been involved in financing and securitisation of large projects for over 25 years – dovetailing with his commercial, banking and insurance expertise. He has extensive experience (litigating; arbitrating and advising) of:

• M&A;
• bonds; warranties; guarantees and letters of credit. Sean appeared in the two most recent cases to consider bond wordings – Multiplex v R&F (One) and Yuanda v Multiplex & ANZ.
• equity injections; refinancing; calculations; pay outs and buy outs;
• insurance arrangements covering the risks arising from financial volatility; financing issue; insolvency; market collapse and lender failure;
• securitisation and collateralisation of risks; and
• Islamic Finance.

Particular expertise in:

• energy – particularly upstream oil and gas including JOAs, PSAs/PSCs, tariffs, pricing, field allocation as well as nuclear energy, the handling and transport of nuclear materials, decommissioning;
• international trade, GATT and WTO as well as FTAs and BITs;
• company and insolvency law; directors’ and fiduciaries’ duties;
• corporate restructuring, M&A’s, due diligence, indemnity and warranty claims, financing;
• banking/finance;
• bonds;
• warranties and guarantees;
• insurance and reinsurance;
• financial regulation, anti-money laundering, FCPA, Bribery Act and sanctions;
• telecoms, emergent and convergent technologies;
• aviation: aircraft supply, purchase and leaseback; slot allocation disputes; domestic and international regulatory issues;
• private and public international law – including all aspects of conflicts of laws; international treaty interpretation and application; the law of war; control of nuclear energy and materials and UNCLOS III.

Recent cases include a US$5bn dispute over oil allocations offshore Africa; a US$0.5bn oil exploration dispute offshore Africa; a US$300m rig chartering dispute; a US$2bn rig joint venture dispute; a £20m regulatory dispute over licensing and approvals of commercial waste water disposal; a £3m rail regulatory dispute.

Additional expertise in: restitution; economic torts; relevant EU law including State Aids.

Sean has acted as Counsel in international arbitrations for over 20 years. His experience covers all the major bodies and sets of rules including: LCIA; ICC; DIAC; HKIAC; SCC;  SIAC; UNCITRAL and ICSID as well as ad hoc arbitrations with seats in London, Paris, Geneva, Dubai, Singapore, Hong Kong and Lagos.

Sean’s arbitral practice covers disputes arising from all areas of his practice – from finance to commodities to large scale infrastructure to energy. Examples of arbitrations he has acted in include: a HK$3bn dispute over infrastructure; a US$1bn dispute over developments in the UAE; a US$200m commodities dispute; a US$50m dispute over telecoms in Asia; a £50m dispute over a high end development in London; and various inbound and outbound international investment treaty, BIT, FTA, sovereign guarantee, WTO and GATT disputes.

One specific aspect of Sean’s practice is in the energy sector. Here Sean has acted in arbitrations involving deep water, high cost: block allocation, field exploration, development and production. This includes: funding (JOAs and FIA/FOAs); debates with host governments and NOCs; PSAs and PSCs; offtake and gas sales; allocation of production and reserves; border disputes, unitization, equity determinations and redeterminations. He also has acted in  pipeline, rig and FPSO operation and construction arbitrations. He has in depth knowledge of the associated international law, security and sanctions issues. His experience covers oil and gas issues ranging from Alaska to the N Sea, Russia, Africa, the Middle East, the Bay of Bengal and Australia working for majors, governments and new entrants into the oil and gas sectors.

Sean acted as arbitrator and Chair of the Arbitral Panel on sports arbitrations arising out of the 2010 and 2018 Winter and 2012 Summer Olympics and is listed with the LCIA and ICC as an arbitrator. Sean also accepts ad hoc appointments.

• LCIA Arbitration 2020 – US$25m dispute over the financing of power projects in Africa
• Ad Hoc Arbitration 2016-17 – disputes over offshore field allocation
• Ad Hoc Arbitration 2015 – a US$5bn disputes over offshore field allocation
• UNCITRAL Arbitration 2015 – a US$240m dispute over copper mining in Africa
• ICC Arbitration 2014 – a US$50m dispute over oil field cash calls
• LCIA Arbitration 2014 – a US$60m dispute over infrastructure in the Middle East
• Section 67 Arbitration Act 1996 Appeal – an appeal against an LCIA award in a £100m privatisation dispute
• DIAC Arbitration 2013 – a US$1.5bn dispute over infrastructure in the Middle East
• DIAC Arbitration 2013 – a US$100m dispute over office development in the Middle East
• LCIA Arbitration 2012 – a US$150m dispute over oil field development in Iraq
• HKIAC Arbitration 2012 – a HK$3bn dispute over infrastructure
• ICC Arbitration 2012 – a US$20m dispute over oil field cash calls

Sean has advised and acted in a wide range of commodity disputes including: international metals and rare earth trading; oil futures; long term oil and gas sales contracts; trading afloat; take and/or pay; and energy put and call options.

Sean’s dry shipping experience runs alongside his commodities practice dealing with the transport of commodities by sea, rail and road under the various sets of standard terms as well as the associated private and public international law issues. By way of example, from 2006 – 2011, Sean was extensively involved the largest class action ever arising from the handling of oil cargoes afloat involving claims and litigation in five countries embracing issues of shipping, environmental, insurance, private international, public international and criminal law.

Sean has in-depth litigation and arbitration experience before all the relevant Courts and bodies – the English Courts, ICC, LCIA, HKIAC, SIAC, DIAC, UNCITRAL, SCC and ICSID – and is licenced in Singapore and registered with the Singapore International Commercial Court.

Particular expertise in:

• statutory appeals;
• commercial judicial review;
• public procurement, PFI, PPP and government contracts;
• education and sporting bodies;
• local government finance, CCT and associated issues;
• national security.

Additional expertise in EU and public international law.

Recent cases include: an international border and force majeure dispute; a £20m commercial judicial review challenging the removal of water disposal licences and approvals and large rail regulatory dispute involving complex issues of public and commercial law.

Sean has extensive experience of advising on and litigation all types of financial instruments (particularly relating to the financing of infrastructure and energy projects and international trade) including letters of credit, guarantees and bonds. He has advised on and litigated derivatives and swaps disputes including forex and interest rate transactions as well as pool facilities, CDOs and CDSs.

He has dealt with international and domestic accounting standards disputes from the earliest days of his practice ranging from a large scale property investment collapse in Hong Kong (Carrian) to HKSE issues through to regulation by the FRC and the Accounting Standards Board (as was) as well as auditor’s negligence.

He has advised and acted in all aspects of domestic and international financial regulation and compliance including FCPA; Bribery Act, AML and sanctions issues. He has acted in several complex, international banking and finance frauds including the associated spin off tracing and asset recovery claims. He has experience of Islamic Finance disputes. He is currently instructed in relation to the investigation of a large banking collapse in the Caribbean.

Over the last 20 years, Sean has dealt with all types of insurance disputes: brokerage disputes; coverage issues; insurance frauds; and reinsurance treaties in the UK, USA and worldwide.

Sean has advised on and acted in insurance and reinsurance issues covering: nuclear incidents; the transport and refining of oil; the financial cover for large property developments; environmental incidents and accidents; aircraft supply and purchase; terrorism; financial services coverage and reinsurance; and insurance regulation.

Recently Sean has advised and acted in relation to insurance hedges in the finance sector; the broking of large insurance and reinsurance portfolios in the projects and infrastructure sector; and coverage and risk sharing in the transport sector.

• Chairing two Team GB selection Arbitrations for the 2018 Winter Olympics;
• Advising and acting for British Ski and Snowboard in relation to disputes over the appointment and removal of directors and officials;
• Acted for Team GB in the selection disputes for the 2012 Olympics;
• Sat as the legal member resolving Olympic and selection disputes in seven cases in 2010;
• Instructed by a prominent international test cricketer to challenge the ECB’s Rules on qualifying cricketers;
• UK Representative on the Federation International du Ski Legal & Safety Committee. UK FIS delegate (2016).

Sean has been involved in PFI disputes for over 20 years. His experience includes the following projects:

• Numerous large rail projects;
• the M6 Toll Road;
• the 2012 Olympics;
• the National Programme for Infrastructure in IT;
• the TfL Oyster card programme;
• Croydon Tramlink;
• Nottingham City Trams;
• the Portsmouth City Urban Regeneration Programme;
• the Shatin – Central Link, Hong Kong;
• Dudley Hospital;
• Central Manchester Hospital;
• W Mercia Hospital;
• Papworth Hospital;
• Derby Hospital;
• Mansfield Hospital;
• Multiple BSF projects;
• Waste Projects (including recycling and WTE);
• Numerous other hospitals, schools, social housing projects, police projects; IT projects and roads.

He has experience acting for central government; local authorities; project cos; contractors and financiers covering all issues from defects to PayMechs to equity refinancing to project failure and handback. Recently Sean has been involved in the rescue and refinancing of failing PFI projects using mediation, adjudication and litigation as a means to attempt to achieve an outcome satisfactory to all parties.

All major PFI projects have a multi-tier dispute resolution procedures involving adjudication or expert determination. Sean has therefore been involved in multiple adjudications/expert determinations, and the subsequent litigation.

Many PFI projects have design and workmanship issues over fire protection and Sean has encountered these in more than 10 projects – particularly hospitals and schools. Sean has therefore dealt with all types of fire protection issues from design to fire stopping to whether materials, fixtures and fittings reach the required standards of fire resistance.