Erik Penz

Work Highlights

Sole counsel in obtaining an anti-suit injunctions ex parte in 2023 and 2025 from the previous and current Chief Justices of Bermuda restraining policyholder and additional insureds from continuing US lawsuits commenced in breach of clauses in insurance policies requiring disputes to be arbitrated in Bermuda, coordinated with ex parte hearings the same day led by KCs in the London Circuit Commercial Court.

HSBC v Vigilante [2024] (Bda) 74 civ.: sole counsel for the third party in striking out a defendant’s third party notice for the defendant’s intentional delay which amounted to an abuse of process.

Sole counsel in obtaining adjournment of a winding-up petition on behalf of a minority shareholder due to Hong Kong inspection proceedings in which the underlying cause is a suspicion of oppression.

Re Grosvenor Trusts [2024] SC (Bda) 60: local counsel for the Madoff trustee in seeking stay of the trustee’s appeals of the Grosvenor liquidators’ rejections of the trustee’s proofs of debt pending judgment in the US Bankruptcy Court.

KPMG v Majors [2023] Bda LR 96 addt’l reasons [2023] Bda LR 111 per Hargun CJ: local counsel in maintaining an anti-suit injunction at an inter partes hearing before the Chief Justice of Bermuda restraining US litigants from continuing US proceedings claiming $10m commenced in breach of clause in professional-services agreement to arbitrate any disputes in Bermuda., now on appeal before the Court of Appeal for Bermuda (judgment pending).

Sole counsel for Bermuda reinsurer in opposing a petition presented by the Bermuda Monetary Authority seeking the winding-up of the reinsurer for, inter alia, allegedly failing to meet its Minimum Margin of Solvency.

Leading counsel in striking out claims of $1.2m at admissibility hearing in ICC arbitration where the claimant failed to observe a pre-mediation requirement in a dispute-escalation clause.

Sole counsel in obtaining an anti-suit injunction ex parte from the Chief Justice of Bermuda restraining policyholder from continuing US litigation commenced in breach of clause in insurance policy requiring disputes to be arbitrated in Bermuda.

Acting for Bermuda insurer in English arbitration proceedings brought by US professional services firm in coverage dispute regarding an Employment Practices Liability Policy.

Acting for two Bermuda reinsurers in arbitration proceedings brought by US captive insurer.

Obtaining multiple contested adjournments of a winding-up petition whilst client successfully restructured in Hong Kong and China.

Acting for Bermuda insurer in pursuing insured under a Healthcare Umbrella Liability Policy in arbitration for US legal costs incurred by wrongfully naming insurer as co-defendant in US litigation against other insurers.

Successful petition to the Supreme Court of Oman, valued at €5.95m, for ENGIE subsidiary overturning on appeal decisions of lower courts and revenue authorities regarding how it accounts for its income pursuant to International Financial Reporting Standards (IFRS).

Leading the arbitration team in ICC proceedings (following CEDR mediation) for publicly-traded global construction company responding to $32.9m claim brought by subcontractor, with a $21.2m counterclaim, in respect of delays in the construction of an airport.

Leading the team in international arbitration defending against $12m claim for oilfield services, with expert issues including whether or not the work performed was within the scope of work or subject to variations.

Leading counsel at arbitration hearings for IT multinational in pursuing a $2.4m claim against its local partner, including allegations of misuse of an escrow account.

Successful petition to the Supreme Court of Oman overturning Appeal Court decision regarding the wrongful termination of long-term dealership contract.

Junior counsel in construction arbitration for governmental entity, defending against contractor's $49m claim, reduced by 53% in award and then nullified on application to courts.

Junior counsel in construction arbitration for EPC subsidiary of Singaporean public company in defending against $28m claim brought by Chinese contractor.

Leading counsel in the Superior Court for a listed company in successful motion and application at an all-day hearing to strike-out portions of an affidavit and multi-day hearing to set aside an administrative tribunal’s decision to enforce foreign orders in Canada against mining claims, and advising on scope of immunity granted to government officials.

York Condominium Corp v SEM Gas LP (2013) 362 DLR (4th) 127 (Ont SC) aff’d (2013) 369 DLR (4th) 343 (CA) — leading counsel obtaining dismissal of claim based on limitations defence; the leading Canadian case on when the limitation period begins for claim that contract is void.

Khan Resources v ARMZ Uranium Holding Co (2013) 115 OR (3d) 1, 316 DLR (4th) 446 (CA) — junior counsel obtaining dismissal on basis of sovereignty and security for Russian state enterprises of C$300m claim brought by JV partner; a leading case on the application in Canada of the Hague Service Convention.

Butcher Fuels v Superior Propane (2013) 18 BLR (5th) 283 (Ont SC) — sole counsel obtaining summary judgment dismissing termination claims of long-term distributor.

Re Crystallex International Corp (2013) 3 CBR (6th) 307 (Ont SC (Commercial List)) — sole counsel for merchant bank on motion by noteholders seeking creditors’ meeting.

Leading counsel at multiple mediation sessions for a Canadian railway in pursuing contribution and indemnity from municipality and Crown corporation, in respect of settlement of a C$30m occupier’s liability claim, for negligent design/maintenance of safety precautions in the vicinity of public infrastructure creating a danger to trespassers onto the rail corridor.

Leading counsel in pursuing claim for the Canadian railway against engineers for negligent design of concrete bridge, and settled with engineers’ insurers at mediation.

Sole counsel at mediation session for US employer which was accused of wrongfully terminating Canadian employee for mental illness.

Junior counsel for Canadian political operative in issuing defamation notice overnight against national broadsheet and quickly obtaining published retraction.

Sole counsel for environmental consultant in bringing emergency motion, at trial of consultant’s client in large environmental claim, to quash/limit a summons for examination of the consultant.

Green v Kenora Prospectors & Miners Ltd (2008) 55 RFL (6th) 270 (Ont Div Ct) — leading counsel obtaining leave to appeal decision of case-management judge for lack of natural justice.

Junior counsel for one of Canada’s largest power generators in arbitration concerning pricing for steam supply from a natural gas power station.

Sole counsel in the Superior Court for a leading global petrochemical producer in successfully obtaining an order lifting a stay of civil proceedings, as a result of the operation of Canada’s Bankruptcy and Insolvency Act, because of allegations of fraud, and member of litigation team pursuing C$110m industrial espionage claim concerning the theft of proprietary processes and designs allegedly implemented at a vinyl-acetate plant in Iran including issues regarding the execution of an Anton Piller order.

Junior counsel for a Panama mining corporation claiming US$42m in international arbitration against Bermuda companies and listed Canadian corporation regarding the operation of a JV in Latin America, including drafting application to the Superior Court to appoint arbitrator as the Respondents would not agree on the arbitrator.

Re Chamomile (a firm) (2006) 21 BLR (4th) 290 (Ont SC) — sole counsel for partner petitioning dissolution of firm; a leading Canadian case on judicial discretion in dissolving partnerships.

Re Presbyterian Church of Sudan (2006) 275 DLR (4th) 512 (CA) — junior counsel for Repsol predecessor in successfully resisting requests from US court to the Canadian courts for evidence; a leading Canadian case on the law of international judicial cooperation.

Junior counsel at trial in defending Alberta lawyer, sued in Ontario by former client for negligent advice regarding Ontario law, on instructions from the Alberta Lawyers Insurance Association.

Sole counsel in the Superior Court and junior counsel in the Court of Appeal for a Canadian railway in successfully obtaining an order lifting a bankruptcy stay of civil proceedings in prosecuting claim against vehicle leasing companies and owner of tractor-trailer which caused train derailment in Northern Ontario, in pursuit of insurance funds for a C$2.3m negligence claim.

Sole counsel for judgment debtor in application to the Superior Court in challenging the bailiff’s seizure and sale of the applicant’s fleet of semi-trailer trucks.

Intercontinental Forest Products SA v Rugo (2004) 191 OAC 24 (Div Ct) — junior counsel successfully resisting appeal regarding interlocutory-injunction judge's power to award costs.

Re Air Canada (2003) 47 CBR (4th) 163 (Ont SC (Commercial List)) — sole counsel for Air Canada’s 12 largest unsecured creditors, with claims in excess of C$2.7bn, on motion to approve Lufthansa profit-sharing deal; a leading case regarding circumstances in insolvency proceedings in which a court should permit debtor to make payments for pre-filing obligations.

Sole counsel in Ontario’s Superior Court for US bank in obtaining a Mareva injunction ex parte with respect to a Canadian bank account in a fraud and asset tracing case.

Trial counsel for graduate student claiming an equitable interest in his professor’s business.

Junior counsel at hearing for concessionaires in successful group arbitration arising out of the sudden wind-down of a chain of department stores.

Trial counsel for personal guarantor, successfully arguing against any costs despite adverse finding of liability.

Career

Special Counsel, Kennedys Bermuda, 2021-date

Special Counsel, AMJ Oman. 2017-2021

Partner, Norton Rose (Canada), 2008-2017

Expert in these Jurisdictions

Bermuda, Canada, Oman

Education

Awards