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Commercial Disputes

Blog

Breaking news – a victory for privilege

Published on 05 September 2018. By Davina Given, Partner and Jonathan Cary, Partner and Alan Williams, Senior Associate and Lucy Kerr, Senior Associate

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Today the Court of Appeal handed down its eagerly anticipated judgment in the appeal of Andrews J's controversial High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation.

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Blog

Non-party access to documents on court file: normal service resumes

Published on 22 August 2018. By Davina Given, Partner and Laura Evans, Associate

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A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group).(1) In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.

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Blog

A variation on a theme of settlement

Published on 14 August 2018. By Davina Given, Partner and Parham Kouchikali, Partner and Elizabeth Wiggin, Associate

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In this unusual case, the Court was asked to determine a dispute regarding the settlement of a debt alleged to be owed to the Claimant following a sale at Sotheby's of various Persian antiquities. The case will be of interest to practitioners in its examination of the circumstances in which a party is able to discharge its liability under a settlement agreement through the payment of a lesser sum than that originally agreed. The judgment also provides a valuable insight into the antiquities world, and its comments on the close community in which the parties operated are particularly pertinent for those in the art arena who are considering embarking upon litigation.

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Blog

Significant increases to District Court's monetary jurisdiction

Published on 25 July 2018. By Amy Chung, Associate and Michael Maguiness, Of Counsel

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Significant increases to the jurisdictional limits for civil claims in the District Court have been proposed.

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Publication

Financial litigation roundup - Summer 2018 edition

20 July 2018

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Welcome to the latest edition of our financial litigation roundup. In this edition, we consider recent judgments and ongoing cases from the banking and financial world in the UK and Hong Kong, as well as legal developments across those jurisdictions.

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Blog

More dismissal of 'dormant' claims

Published on 12 July 2018. By David Smyth, Senior Partner, Hong Kong and Maria Petzsch, Registered Foreign Lawyer (England & Wales)

Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex,(1) in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed.

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Blog

First Tower Trustees: contractual fiction clauses, unfair contract terms, parliamentary sovereignty and the limits of party autonomy

Published on 06 July 2018. By Jake Hardy, Legal Director

In its recent judgment in First Tower Trustees Ltd and Intertrust Trustees Ltd -v- CDS (Superstores International) Ltd, the Court of Appeal has set down a significant marker that so-called contractual estoppel does not have any special status and is to be treated as just another form of exclusion of liability.

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Blog

Guarding professional secrets: A guide to English legal privilege for international lawyers

30 May 2018

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Most jurisdictions have some form of protection for preserving the confidentiality of communications involving lawyers, whether known as (legal professional) privilege, professional secrecy or something else. How far that protection extends, and how easily it may be broken, varies enormously. In England, the protection, once gained, remains strong, but recent cases have tended to restrict the extent of it, particularly by comparison to other common law jurisdictions (privilege/professional secrecy rules in civil law jurisdictions tend to be narrower than common law jurisdictions in any event). The issue becomes most acute in a pre-litigation (or investigative) phase.

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Blog

Regulation of cryptocurrency pre-ICO funding under English Law

Published on 15 May 2018. By James Kaufmann, Legal Director

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Launching a cryptocurrency typically involves an initial fundraising process followed by a public sale process, by way of initial coin offering or token sale ("ICO").

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Blog

That's not fair (market value)

Published on 03 May 2018. By Christopher Whitehouse, Associate and Simon Hart, Partner

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Court of Appeal rules on application of GMRA close-out provisions in a distressed market. Icelandic bank LBI ehf (LBI) appealed against the High Court decision in its case against Raiffeisen Bank International AG (RZB) regarding the interpretation of the term "fair market value" in the close-out provisions of a repo agreement. The Court of Appeal rejected LBI's arguments that "fair market value" should preclude the use of prices, quotations and other pricing evidence obtained in a distressed or illiquid market and dismissed the appeal.

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Blog

Game theory and the art of litigation settlement (Part 3)

Published on 01 May 2018. By Christopher Whitehouse, Associate and Simon Hart, Partner

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This article is the third in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.

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Blog

Game theory and the art of litigation settlement (Part 2)

Published on 25 April 2018. By Christopher Whitehouse, Associate and Simon Hart, Partner

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This article is the second in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.

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Blog

Game theory and the art of litigation settlement

Published on 06 April 2018. By Christopher Whitehouse, Associate and Simon Hart, Partner

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This article is the first in a series targeted at litigators that consider the issue of settlement in litigation through a mathematical lens.

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Blog

Property Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?

Published on 04 April 2018. By Parham Kouchikali, Partner and Joe Cresswell, Associate

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The Court of Appeal handed down its much anticipated judgment on the misselling and LIBOR manipulation test case in March. Whilst the appeal was dismissed in full, the Court of Appeal's decision clarified a number of aspects of the law in this area and, in particular, the circumstances in which an implied representation in respect of LIBOR would arise.

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Blog

SFC requires ICO to be withdrawn from Hong Kong public

Published on 20 March 2018. By Jonathan Crompton, Partner and Jessica Wong, Associate

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On 19 March 2018 the Securities and Futures Commission (SFC) announced that it had halted an initial coin offering (ICO) to the Hong Kong public by Black Cell Technology Limited (Black Cell).

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Blog

The High Court confirms the availability of Bankers Trust orders to trustee Claimants seeking to recover misappropriated assets

Published on 16 March 2018. By Jonathan Cary, Partner

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The decision of the High Court in Miles Smith Broking Limited –v– Barclays Bank PLC has confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee Claimants of stolen/misappropriated property, highlighting the flexibility of the Court's equitable jurisdiction when presented with new situations. The decision also serves as a neat illustration of the Court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the types of complimentary interim remedies available to Claimants for that purpose.

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Blog

Litigation privilege: whose privilege?

Published on 15 March 2018. By Davina Given, Partner and Christopher Whitehouse, Associate

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The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.

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Blog

Sharp v Blank and others [2017] EWHC 3390 (Ch)

Published on 07 March 2018. By Elizabeth Wiggin, Associate and Andy McGregor, Partner

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The Court considered the Defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation.

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Blog

The perils of using disclosed documents for a collateral purpose

Published on 07 March 2018. By Victoria Rogers, Associate and Geraldine Elliott, Partner

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In Grosvenor Chemicals Ltd v UPL Europe Ltd disclosed documents were used by the UPL for a collateral purpose in breach of the Civil Procedure Rules.

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Blog

Bank liable for breach of Quincecare duty

Published on 01 March 2018. By Andy McGregor, Partner and Charlotte Henschen (née Ducker), Senior Associate

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The Court of Appeal has upheld a decision that the appellant bank breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.

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Blog

Enforcement Reporter - SFC sets out its enforcement priorities for 2018

Published on 01 March 2018. By Jonathan Crompton, Partner and Kingsley Krawczyk, Registered Foreign Lawyer

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On 26 February 2018 the SFC released the third edition of its new series of the Enforcement Reporter. The communication outlines the SFC's key enforcement priorities for the coming year and highlights significant recent enforcement actions. The Enforcement Reporter follows the general themes of previous editions and is a useful indication to the market of the SFC's key concerns. In particular, tackling corporate fraud remains top of the agenda, with insider dealing, misconduct by intermediaries and sponsors, and money laundering on the SFC's radar.

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Blog

In the Matter of Agrokor DD: Model Laws and PIK toggle loans

Published on 26 February 2018. By Jake Hardy, Legal Director

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A recent application made by insolvency practitioner of Agrokor, a major Croatian conglomerate, resulted in recognition in England of a stay of civil proceedings against the group. The purpose of the application was to halt any proceedings in relation to Agrokor's securities and debt obligations containing English law and jurisdiction provisions, pending the restructuring in the Croatian insolvency proceedings of the affairs of the group.

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Blog

When will pleading "special circumstances" permit collateral use?

Published on 22 February 2018. By Joe Cresswell, Associate and Geraldine Elliott, Partner

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Having taken a strict approach when considering what constituted "collateral use" in Tchenguiz v Grant Thornton UK LLP, the Commercial Court has moved quickly to clarify the test for "special circumstances" in applications for permission to use previously disclosed documents in The Libyan Investment Authority v Société Générale SA and others.

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Blog

Court of Appeal holds that a facility agreement based on the LMA model form does not constitute lenders' standard terms for UCTA: But never say never…

Published on 15 February 2018. By Charlotte Henschen (née Ducker), Senior Associate and Jonathan Cary, Partner

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The Court of Appeal has upheld a decision that a facility agreement based on the LMA model form did not constitute the lenders' standard terms for the purposes of UCTA. Had UCTA applied, the terms of the facility agreement would have been subject to a reasonableness test.

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Blog

Hong Kong regulator warns of cryptocurrency risks

Published on 09 February 2018. By Jonathan Cary, Partner and Ben Yates, Senior Consultant

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Blog

Documents from which legal advice can be inferred – are they privileged?

Published on 28 December 2017. By Christopher Whitehouse, Associate and Davina Given, Partner

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The High Court considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client but from which privileged legal advice could be inferred and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.

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Blog

Service by Email – Lessons from Glencore Agriculture B.V. v Conqueror Holdings Limited [2017] EWHC 2893

Published on 19 December 2017. By Laura Evans, Associate and Jonathan Cary, Partner

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The English High Court has found that service by email of arbitration proceedings was not valid under section 76 of the Arbitration Act 1996 on the basis that the correspondence had been directed to the email address of an employee who did not have the authority to accept service. The judge found that in circumstances where service is by way of an individual email address, validity of service depends on the application of agency principles.

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Blog

Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people

Published on 14 December 2017. By Sarah Shaul, Associate and Davina Given, Partner

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The Supreme Court has held that the test for dishonesty should be assessed only by reference to whether or not the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. The Court concluded that there were convincing grounds for holding that the second limb of the longstanding Ghosh test did not correctly represent the law and that directions based upon it ought no longer to be given. The Court further stated that the assessment of dishonesty in criminal and civil proceedings should be made by reference to the same test.

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Publication

Financial litigation roundup winter 2017

Published on 13 December 2017. By Tom Hibbert, Partner and David Smyth, Senior Partner, Hong Kong

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Welcome to the latest edition of our Financial Litigation roundup, where we share our insights into recent judgments and ongoing cases as well as new regulatory developments from the banking and financial world in the UK and Asia.

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Blog

SFAT fines HSBC Private Bank record-breaking HK$400 million and suspends its securities licenses

Published on 24 November 2017. By Jonathan Crompton, Partner

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On Tuesday (21 November 2017), Hong Kong's Securities and Futures Appeals Tribunal fined HSBC Private Bank (Suisse) SA HK$400 million, suspended its license to advise on securities and partially suspended its license to deal in securities, for one year. The previous largest fine was HK$30 million.

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Blog

ADR coming of age for financial disputes in Hong Kong

Published on 20 November 2017. By Jonathan Crompton, Partner and Maria Petzsch, Registered Foreign Lawyer (England & Wales)

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Alternative dispute resolution is coming of age for financial disputes in Hong Kong, as we see the FDRC's Financial Dispute Resolution Scheme expand from 1 January 2018 and 1 July 2018.

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Video

Gulf between legal advice privilege in the UK and Hong Kong is widening

27 September 2017

Jonathan Cary explains the gulf opening up between England and the other major common law jurisdictions such as Hong Kong in relation to legal advice privilege and the pitfalls to be aware of.

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Blog

High Court sheds light on compulsory jurisdiction of Financial Ombudsman Service

Published on 19 July 2017. By Matthew Evans, Senior Associate

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The High Court has provided some clarification of the scope of the compulsory jurisdiction of the Financial Ombudsman Service (FOS). The decision has left the scope of that jurisdiction open to discussion, and appears to suggest that the courts will take a more mechanical approach to reviewing regulatory decisions.

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Blog

Don't be scared – it's just an exemption clause

Published on 05 July 2017. By Parham Kouchikali, Partner and Ed Holmes, Senior Associate

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The Court of Appeal holds that an exemption clause is wide enough to exclude liability for negligence for a failure to identify asbestos.

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Blog

Defective service and culpable delay: a warning to claimants

Published on 03 July 2017. By Chris Ross, Partner and Andy McGregor, Partner

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Commercial Court refuses application for alternative service and strikes out claim forms after claimant's delay in pursuing claim.

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Blog

Another bad bargain upheld: Wood v Sureterm Direct Ltd [2017] UKSC 24

Published on 23 June 2017. By Matthew Evans, Senior Associate and Geraldine Elliott, Partner

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The Supreme Court has dismissed an appeal in Wood v Sureterm Direct Ltd. The Court upheld the Court of Appeal's decision on the meaning of an indemnity clause, and agreed with its application of established contractual interpretation doctrine. The decision confirms the established judicial approach to contractual interpretation, namely the focus on the words of a given clause.

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Blog

Full and frank disclosure – how independent is your expert witness?

Published on 14 June 2017. By Tim Brown, Partner

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This Court of Appeal judgment considers the admissibility of expert evidence where the expert failed to disclose details of a professional relationship with a party.

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Blog

Responsibility of a parent company for the acts of its subsidiary

Published on 12 June 2017. By Elizabeth Wiggin, Associate and Jonathan Wood, Head of International Arbitration

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The Court provided helpful analysis of the circumstances in which a parent company owes a duty of care with regard to operations carried out by its subsidiary. The case is interesting to examine in the context of the readiness of the English courts to hear claims relating to conduct outside of the jurisdiction brought by foreign claimants.

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Blog

Back to first principles: contractual intention

10 May 2017

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The High Court has denied a claim that €13.5m was due on the basis of an oral contract because there was no evidence of the parties' intention to create legal relations as well as a lack of certainty in relation to certain other fundamental terms which militated against the existence of a binding contract.

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Blog

Lessons learned from Property Alliance Group v RBS

Published on 25 April 2017. By Daniel Hemming, Senior Associate and Davina Given, Partner

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This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.

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Blog

Guidance on the "cardinal rule" for implying terms

Published on 21 April 2017. By Ed Holmes, Senior Associate and Davina Given, Partner

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In Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.

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Blog

Cultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?

Published on 19 April 2017. By Davina Given, Partner

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The UK Parliament has recently passed the Cultural Property (Armed Conflicts) Act 2017. Although the provisions of the Act have not yet come into force, how will this impact collectors and dealers?

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Blog

The law of unintended consequences

Published on 12 April 2017. By Victoria Sugden, Senior Associate and Davina Given, Partner

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Why professional indemnity insurers should closely examine losses in professional negligence claims

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Court of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations

Published on 03 April 2017. By Emma Griffiths, Senior Associate and Geraldine Elliott, Partner

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In Global Asset Capital, Inc and another v Aabar Block SARL and others the Court of Appeal found that the High Court had erred in its finding that in assessing whether a contract had been concluded, it need not take account of inconsistent subsequent communications between the parties following the arguable conclusion of a contract during a telephone call that had followed a "subject to contract" offer letter.

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Publication

Fund management litigation

Published on 03 April 2017. By Alan Williams, Senior Associate

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Recourse for LP investors when an investment goes wrong

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Blog

Prior arbitral award – abuse of process?

Published on 30 March 2017. By Davina Given, Partner

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Michael Wilson & Partners Limited v Sinclair and others [2017] EWCA Civ 3 demonstrates the interplay between arbitration and litigation, considering whether legal proceedings commenced by A against C are an abuse of the court's process where arbitration proceedings between A and B have decided the issue in question. The Court of Appeal held that a prior arbitration award can found an argument that subsequent litigation against a third party is an abuse of process, but will rarely do so. On the facts of this case, the claim was not considered to be an abuse of process.

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Blog

Letters of Credit: Fraud conquers all – if it is fraud

Published on 30 March 2017. By Alan Williams, Senior Associate and Andy McGregor, Partner

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The High Court decision in Petrosaudi Oil Services (Venezuela) Ltd v. Novo Banco S.A. and Others [2016] EWHC 2456 provided a useful reminder that the principle of autonomy, which provides for payments to be made under letters of credit, regardless of disputes under the underlying contract, will not be upheld if the fraud exception applies. In its decision at first instance the High Court had found that the fraud exception had applied. However, the High Court judgment was appealed. This update discusses the Court of Appeal's decision.

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Publication

Financial litigation roundup

Published on 06 March 2017. By Tom Hibbert, Partner

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Welcome to the latest edition of our financial litigation roundup, which considers recent judgments, ongoing cases and legal developments from the banking and financial world in the UK and Asia.

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