DISPUTE RESOLUTION CHOICES FOR BANKS AND FINANCIAL INSTITUTIONS: MAXIMISING THE CHANCES OF SUCCESSFUL ENFORCEMENT – WEBINAR RECORDING NOW AVAILABLE

Choice of dispute resolution forum can have a fundamental impact on the ability of banks and financial institutions to enforce contractual obligations.

In our client webinar on 23 September, Dispute Resolution Choices for Banks and Financial Institutions: Maximising the Chances of Successful Enforcement, Julian Copeman, Nick Peacock and Hannah Ambrose discussed recent trends in dispute resolution choices in the banking and finance sector in the context of Brexit, before addressing:

  • the use of the English courts, providing guidance as to enforcement of English court judgments in the EU in the context of Brexit;
  • the risks and rewards associated with unilateral clauses which enable a choice of forum to be made once a dispute has arisen; and
  • the key points which banks and financial institutions need to be aware of if choosing arbitration, such as the powers of arbitral tribunal with respect to remedies and the award of interest, and the increasing use of summary judgment procedures to resolve unmeritorious claims.

The speakers also touched on practical points to bear in mind for successful enforcement in Russia, Africa, India and China, and addressed questions from clients on the restatement of English court jurisdiction clauses after the end of the Brexit transition period to minimise enforcement risk, and the availability of interim relief from the court to support arbitral proceedings.

The webinar recording is now available for clients and contacts. To access the recording, please contact Hannah Ambrose (here) or your usual Herbert Smith Freehills contact.

For more information, please contact Julian Copeman, Partner, Nick Peacock, Partner, Hannah Ambrose, Senior Associate or your usual Herbert Smith Freehills contact.

Julian Copeman
Julian Copeman
Partner
+44 20 7466 2168
Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803
Hannah Ambrose
Hannah Ambrose
Senior Associate
+44 20 7466 7585

HERBERT SMITH FREEHILLS LAUNCHES FIRST GUIDE TO DISPUTE RESOLUTION AND GOVERNING LAW IN RUSSIA

Please click here to preview this publication. To request a copy of the Guide, please email RussiaDisputeResolutionGuide@hsf.com.

Our first Guide to Dispute Resolution and Governing Law in Russia provides a concise and accessible overview of some of the practical issues involving both litigation and arbitration across the region to help our clients understand the ways in which Russian law restricts the choice of law in contracts and the types of dispute resolution mechanisms that can be used for Russia-related commercial contracts.

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ENGLISH HIGH COURT GRANTS EXTENSION OF TIME TO BRING CLAIM UNDER S12 ARBITRATION ACT 1996

In the recent case of National Bank of Fujairah (Dubai Branch) v Times Trading Corp [2020] EWHC 1983 (Comm) the English High Court (the “Court”) granted National Bank of Fujairah (”NBF”) an extension of time under s12(3)(b) Arbitration Act 1996 (the “Act”) to bring an arbitration claim against Times Trading Corp (“Times”). The decision follows the recent case of Fimbank PLC v KCH Shipping (“Fimbank”) (see our blog post on this decision here) where an extension of time to bring an arbitration claim was refused on a somewhat similar set of facts.

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ENGLISH HIGH COURT REFUSES TO GRANT EXTENSION OF TIME TO COMMENCE ARBITRATION PROCEEDINGS UNDER BOTH LIMBS OF S12 ARBITRATION ACT 1996

In the recent case of Fimbank PLC v KCH Shipping Co Ltd [2020] EWHC 1765 (Comm), the High Court (the “Court”) refused to grant an extension of time under either s12(3)(a) or s12(3)(b) Arbitration Act 1996 (the “Act”) for FIMbank PLC (“Fimbank”) to pursue a claim in arbitration against KCH Shipping Co Ltd (“KCH”).

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ENGLISH COURT GRANTS ANTI-SUIT INJUNCTION TO RESTRAIN BRAZILIAN PROCEEDINGS PURSUED IN BREACH OF UNDERTAKING TO ARBITRATE

In the recent case of Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil [2020] EWHC 1223 (Comm) (available here) the English High Court granted an anti-suit injunction to compel a claimant to discontinue Brazilian court proceedings which it had pursued in breach of an undertaking not to pursue the relevant contractual claim otherwise than through arbitration in England.

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Update: The discontinuation of LIBOR: issues of substance and procedure for parties and arbitrators

The global financial markets are currently preparing for the phasing out of the London Inter-bank Offered Rate (or LIBOR) and other Inter-bank Offered Rates (or IBORs). LIBOR is the most widely used benchmark interest rate globally, employed in an estimated US$350 trillion worth of financial contracts worldwide. LIBOR may also be used in commercial contracts – for example, in price adjustment mechanisms in share purchase agreements, price escalation clauses or as a reference rate for contractual interest on late payments. LIBOR may also be specified in arbitration clauses as a benchmark rate for interest on the award.

The clock is now ticking towards the deadline of the end of 2021 for the market to be ready but there is concern that many contracts will not be amended voluntarily by that time. Recognising the impact on existing contracts of the transition, the Tough Legacy Taskforce, part of the industry-led Working Group on Sterling Risk-Free Reference Rates, was set up to provide market input regarding the ‘tough legacy’ of products that may prove unable to be converted or amended to include robust fallbacks to address the end of LIBOR. Last month the Tough Legacy Taskforce published its report (the Tough Legacy Paper). As discussed in detail in our blog post here, the Tough Legacy Paper serves to highlight the difficulties in amendment of contracts, and particularly the complex relationship between contracts in different asset classes in many transactions.

Many financial instruments affected by the discontinuation of LIBOR will include arbitration clauses. As discussed below, whilst the substantive disputes arising from the end of LIBOR will be the same whether they are resolved in a court or by an arbitral tribunal, there are some additional considerations particular to the arbitration process which are relevant in the context of LIBOR discontinuation disputes. Further, even when determining a dispute which does not arise from the end of LIBOR, arbitral tribunals may have to grapple with how to award interest where an arbitration clause uses LIBOR as a reference point. Read more in the E-bulletin here.

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ENGLISH COURT GRANTS ANTI-SUIT INJUNCTION WHERE EXISTENCE OF UNDERLYING CONTRACT WAS DISPUTED

In Times Trading Corporation v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm) the English High Court (the “Court”) granted an anti-suit injunction, restraining National Bank of Fujairah (Dubai Branch) (“NBF”) from continuing its claims in the Singapore High Court in breach of an arbitration clause, despite the fact that the existence of the underlying contract containing the arbitration agreement was disputed.

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ENGLISH HIGH COURT REFUSES TO CONTINUE FREEZING INJUNCTIONS IN A SPA DISPUTE WITH COMPLEX SHAREHOLDING STRUCTURE

In Petrochemical Logistics Limited, Mr Axel Krueger v PSB Alpha AG, Mr Konstantinos Ghertsos [2020] EWHC 975 (Comm) the English High Court considered whether it would be “just and convenient” to maintain two freezing injunctions against the Defendants in support of a London-seated LCIA arbitration. The court declined to continue either injunction, finding insufficient connection with England and Wales in relation to the first injunction (over the bearer shares of a Swiss company), and insufficient risk of dissipation in relation to the second (over shares and assets in a Dutch company). In considering the individual circumstances of the case, the court provided helpful analysis on the exercise of the court’s jurisdiction in support of English and foreign seated arbitral proceedings.

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