Dispute Resolution

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English Court of Appeal judgment recognises the importance of industry standard ISDA Master Agreement terms when challenged by a competing jurisdiction clause in a financing agreement

By Chris Webber and Squire Patton Boggs on Posted in Dispute Resolution, Regulation
The Court of Appeal has confirmed that a jurisdiction clause that elects the English courts in an ISDA Master Agreement prevails when the underlying swap transaction forms part of a wider financing arrangement that is subject to the jurisdiction of the Turin courts: BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2019] EWCA Civ 768.… Continue Reading

Courts prepared to scrutinise and limit Norwich Pharmacal Orders

By Squire Patton Boggs on Posted in Dispute Resolution
A Norwich Pharmacal Order (“NPO“) forces a third party to disclose documents or information to an applicant. These Court orders are typically used to identify a proper defendant to a claim or to get information to enable someone to set out their case in Court documents. The respondent to an NPO application is generally not the defendant to … Continue Reading

No Contractual Duty Owed to Customers by Banks when Conducting FCA Review into IRHPs

By Mariyam Harunah on Posted in Contracts and Agreements, Dispute Resolution
The Court of Appeal in Elite Property Holdings Limited, Decolace Properties Limited v Barclays Bank Plc [2018] EWCA Civ 1688 considered the appellants’ Application for permission to appeal against the Mercantile Court Judge’s decision to strike out part of the Appellants claims against the Respondent Bank. Whilst the application concerned permission to appeal, this was the first occassion on which … Continue Reading

Mastercard, the next instalment. The retailer strikes back

By Squire Patton Boggs on Posted in Banking, Dispute Resolution
The previous four episodes of the Mastercard saga (as detailed in our previous blog posts) focussed on a number of legal battles between Mastercard and both consumers and retailers. These disputes have centred on Mastercard’s alleged “uncompetitive” interchange fees and restrictive rules on cross-border acquiring. The latest claim by retailers follows a class action brought on … Continue Reading

Overcoming the principle of “reflective loss”

By Chris Webber and Michael Davar on Posted in Contracts and Agreements, Dispute Resolution
In an important recent decision the Commercial Court confirmed the availability of specific performance of a shareholder’s rights under shareholder agreements as a means to dodge the difficulties created for shareholders by the principle of ‘reflective loss’. Background Facts Oceanic Trans Shipping Est was one of three shareholders in two joint venture companies, who owned … Continue Reading

Update: CAT declines the grant of a collective proceedings order in Walter High Merricks CBE v MasterCard Incorporated and others [2017] CAT 16

By Squire Patton Boggs on Posted in Banking, Dispute Resolution
Background As mentioned in our blog posted on 20 September 2016, MasterCard was facing one of the UK’s first class-action lawsuits, following the introduction of collective proceedings under the Consumer Rights Act 2015. This allows for collective proceedings to be brought in the Competition Appeal Tribunal (“CAT”) on an opt-out basis, by representatives of consumers … Continue Reading

Retailers Consortium v MasterCard – an update on ongoing MIF litigation

By Squire Patton Boggs on Posted in Banking, Dispute Resolution
Background Our previous blog piece (20 September 2016) described how, in 2007, the EU found that MasterCard’s Multilateral Interchange Fees (“MIFs“) were unfairly high. This decision was applicable to cross-border transactions using MasterCard and Maestro cards in the European Economic Area (“EEA“). The finding was that Mastercard’s MIF breached Article 101 of the Treaty on the … Continue Reading

Court of Appeal rejects Titan Class X claim: speedread Q & A

By Chris Webber on Posted in Banking, Dispute Resolution
(This article was first published on Lexis®PSL Banking & Finance. Click for a free trial of Lexis®PSL) What was the appeal about? Credit Suisse Asset Management (“CSAM”) was the originator of Titan 2006-1, a commercial mortgage backed securitization (“CMBS”). The Titan 2006-1 SPV (“Titan”) issued eight tranches of bonds (A to H) for a total of EUR 723 million. It used the proceeds to … Continue Reading

FCA chief calls for dispute resolution mechanism for small firms

By Squire Patton Boggs on Posted in Dispute Resolution, Regulation
The Yorkshire Post has reported that Andrew Bailey, CEO of the Financial Conduct Authority, is working with Parliament to develop an adequate and independent complaint resolution for SMEs who believe that they have been badly advised or “mis-sold” a product by a financial institution. Mr Bailey notes that the Financial Ombudsman Service (“FOS”) exists predominantly … Continue Reading

MasterCard faces one of the UK’s first class-action lawsuits

By Chris Webber on Posted in Banking, Dispute Resolution
Class Actions in the UK Class actions have long been a feature of the US legal landscape. But until October 2015 there was no genuine “class action” procedure in the UK. Then the Consumer Rights Act 2015 (“CRA“) introduced collective proceedings that can be brought in the Competition Appeal Tribunal (“CAT“) by representatives of consumers … Continue Reading

Class X Noteholders granted permission to appeal inconsistent judgments

By Chris Webber on Posted in Banking, Dispute Resolution
As previously reported on this blog, April saw two important judgments in the Titan and Windermere Class X cases. Those decisions have implications for both “CMBS 1.0” structures that include Class X notes in them, and for the wider financial markets in terms of how the courts are approaching disputes over the interpretation of finance … Continue Reading

Class X claim fails in High Court

By Chris Webber on Posted in Banking, Dispute Resolution
In an important decision of the Financial List of the High Court, Mr Justice Snowden has rejected claims by the Windermere VII CMBS “Class X” noteholder that it had been underpaid interest on its notes on interest payment dates in 2015. The judgment in Hayfin Opal Luxco 3 SARL v Windermere VII CMBS plc has … Continue Reading

Due or Payable? Court of Appeal Clarifies ISDA Master Early Termination Provisions

By Chris Webber on Posted in Contracts and Agreements, Dispute Resolution
The Court of Appeal has given renewed clarity on how to interpret the early termination provisions of section 6 of the 1992 ISDA Master Agreement. It made clear that inadequate and/or late provision of details of how an early termination amount was calculated will not entitle the Defaulting Party to avoid liability to pay the … Continue Reading

More on Class X claims – Lexis Nexis Q&A; Windermere VII litigation; Titan 2006-3 settlement plan vote on 4 April

By Chris Webber on Posted in Banking, Dispute Resolution
LexisNexis Q&A My Q&A with Lucy Karsten of LexisNexis can be viewed here. Looking ahead to the Class X claims.   The Windermere VII Class X claims In addition to the Titan Class X claims I wrote about in my earlier blog, similar issues were before the High Court on the Windermere VII CMBS case last … Continue Reading

The Canary Wharf “Spens” case: why Welsh caravan parks are a danger to the financial markets

By Chris Webber on Posted in Dispute Resolution
The Oxwich Leisure Park on Wales’s Gower Peninsular might seem a world away from the concerns of Noteholders of a Canary Wharf securitisation following the sale of a £795 million skyscraper. But a decision in the Commercial Court last week (28 January 2016) showed how in the one-size-fits-all world of English contract law they can … Continue Reading
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