Category: Contract

Latest bank victory – Hong Kong High Court dismisses mis-selling claim

14 August, 2018

The Hong Kong Court of First Instance has recently handed down its judgment in Shine Grace Investment Ltd v. Citibank, N.A. and Another (HCCL 28/2008), a case relating to alleged mis-selling of equity accumulator contracts by Citibank. In dismissing the… Read more

UK SUPREME COURT CLARIFIES LEGAL POSITION ON “NO ORAL MODIFICATION” CONTRACTUAL CLAUSES

28 May, 2018

Parties to commercial contracts often insert a "no oral modification" (or NOM) clause to prevent attempts to undermine written agreements by informal means. Such clauses are intended to prevent contracting parties being bound by subsequent variations unless the specified formalities… Read more

Supreme Court decision clarifies basis for the award of Wrotham Park damages

4 May, 2018

We discussed aspects of "Wrotham Park damages" (also called "license fee damages" or "negotiating damages") in Herbert Smith Freehills Hong Kong office's recent Contract Disputes Seminar "Getting your just deserts: remedies for breach of contract". To recap, in some cases… Read more

Hong Kong Court of Appeal finds against bank on the basis that the bank’s exclusion of liability clauses were unconscionable and unreasonable

22 August, 2017

The Hong Kong Court of Appeal (CA) has recently affirmed a decision of the Court of First Instance (CFI), in which a ruling was made in favour of the plaintiff investors in a mis-selling claim against a bank, albeit on… Read more

Herbert Smith Freehills sponsors and contributes chapters to the recently published First Edition of Getting the Deal Through – Financial Services Litigation 2016

5 October, 2016

In the light of the global growth of litigation in the financial sector following the financial crisis, Herbert Smith Freehills has sponsored 'Getting The Deal Through' for the launch of the first edition of the guide to Financial Services Litigation… Read more

Hong Kong Court rules in favour of investors in mis-selling claim: a departure from the recent trend

23 August, 2016

Recently, the Hong Kong Court of First Instance handed down its judgment in relation to a mis-selling claim against a bank, ruling in favour of the plaintiff investors. This departs from the trend in respect of post-financial crisis mis-selling claims… Read more

Hong Kong Court of Appeal takes a practical view on the penalties rule upholding a liquidated damages clause

20 July, 2016

In the recent case of Brio Electronic Commerce Limited v Tradelink Electronic Commerce Limited CACV 271/2013, the Hong Kong Court of Appeal (CA) held that a clause in the contract setting a sum of HK$5 million as liquidated damages in… Read more

Hong Kong: Court of First Instance holds that litigation commenced in breach of a company’s articles of association is liable to be struck out

11 May, 2016

In Yifung Developments Limited v Ricky Liu Chi Keung & others (HCA 1341/2014), the Court of First Instance held that where a company fails to comply with relevant provisions in its articles of association regarding the commencement of litigation, the… Read more

UK Supreme Court rewrites English law rule on penalties whilst Hong Kong (for the moment at least) still continues to follow the traditional test

9 November, 2015

In a judgment handed down on 4 November, the UK Supreme Court has in effect re-written the rule on contractual penalties in England & Wales, holding that the underlying rationale of the rule in English law has been misunderstood and… Read more

Hong Kong court dismisses investor’s counterclaim against bank for mis-selling of financial products

1 June, 2015

The Hong Kong Court of First Instance handed down its judgment in DBS Bank (Hong Kong) Limited v Sit Pan Jit (HCA 382/2009) on 2 April 2015. It is the most recent decision in a string of cases that have… Read more

New class action law in Thailand

22 May, 2015

The Thai Civil Procedure Code has been amended to allow for class action suits to be brought by large groups of plaintiffs for breach of civil wrongs, including breach of tort, breach of contract and breach of labour rights. The… Read more

An exercise in restraint: Singapore Court of Appeal confirms courts will give effect to agreements limiting the circumstances in which a contractor can restrain a call on performance bonds

8 May, 2015

The Singapore Court of Appeal (the "CoA") recently delivered its judgment in CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and Another [2015] SGCA 24. In a landmark ruling, the CoA found that where parties to a construction… Read more

English Commercial Court rules that an unsigned agreement can still bind the parties

14 April, 2015

The English Commercial Court has ruled that a party had accepted the terms of an agreement by its conduct, even though it had not signed the agreement and the agreement purported to require the signatures of both parties to take… Read more

Hong Kong court dismisses investor’s counterclaim against bank for mis-selling of financial products

13 April, 2015

The Court of First Instance has recently handed down its judgment in DBS Bank (Hong Kong) Limited v Sit Pan Jit (HCA 382/2009). This case concerns a claim by DBS Bank (Hong Kong) Limited (DBS) against its former customer, Sit… Read more

Hong Kong Court of Appeal addresses the enforceability of English anti-suit injunction

26 March, 2015

In the recent case of Compania Sud Americana de Vapores S.A. v Hin-Pro International Logistics Limited (CACV 243/2014), the Court of Appeal (CA) held that an English anti-suit injunction with respect to legal proceedings in another jurisdiction (China) could not… Read more

ADR Practical Guide launched on the use of Mediation with Arbitration

24 March, 2015

Our London ADR team has launched the sixth guide in their series of ADR Practical Guides, designed to provide clients with essential practical guidance on various processes falling under the banner of alternative dispute resolution (ADR), with a particular focus on mediation.… Read more

English High Court decision highlights need for tight drafting of settlement terms

10 March, 2015

In the context of high profile celebrity phone hacking lawsuits, the English High Court has struck out claims for phone hacking on the basis that they were compromised by settlement agreements previously agreed between the claimants and the defendant newspaper… Read more

Hong Kong: Sex Discrimination (Amendment) Ordinance 2014 in force and Contracts (Rights of Third Parties) Ordinance 2014 delayed

19 December, 2014

The Sex Discrimination (Amendment) Ordinance 2014—Ordinance No. 19 of 2014 came into force on 12 December 2014. The amended ordinance can be found here. The amended Ordinance provides that it is unlawful for anyone to sexually harass a woman who… Read more

Prophetable construction: English High Court upholds enforceability of a restrictive covenant despite obvious deficiencies in drafting

3 April, 2014

In Prophet plc v Huggett [2014] EWHC 615 (Ch) the Court took a highly flexible approach to the construction of a non-compete clause which, when read literally in its original form, gave the employer no protection at all. The decision… Read more

Contracts (Rights of Third Parties) Bill

10 March, 2014

Overview The Contracts (Rights of Third Parties) Bill was gazetted on 28 February and will be introduced into the Legislative Council on 26 March 2014. When enacted, it will reform the 'third party rule' otherwise known as the doctrine of privity… Read more

“You’re fired” – Lawful termination of employment contracts and employee rights in Hong Kong

15 January, 2014

Given the absence in Hong Kong of an 'unfair dismissal' regime similar to that which exists, for example, in the UK and Australia, the termination of an employment contract in Hong Kong is considered by many to be relatively straightforward.… Read more

English & Hong Kong Courts refuse to infer common law duty of care in mis-selling claims involving non-advisory contracts

17 December, 2013

An English Court of Appeal case heard recently confirmed that the English courts will be unwilling to infer a common law duty into non-advisory contracts between banks and private individuals, by virtue of the Conduct of Business ("COB") rules issued… Read more

Contract may be made in more than one country for purposes of establishing jurisdiction

21 November, 2013

The English High Court has held that a claimant had a good arguable case that a contract was made in both England and Texas and that this was sufficient to come within the relevant gateway for seeking permission to serve… Read more

Indonesian First Instance Court rules that contracts written in English language are void

20 November, 2013

The West Jakarta District Court ruled recently that an Indonesian law governed loan agreement between an Indonesian borrower and a foreign lender was void because it was written in English rather than Bahasa Indonesia and it was, therefore, in violation… Read more

Hong Kong Court upholds exclusive jurisdiction clause in favour of PRC Court

17 October, 2013

The choice of exclusive jurisdiction in favour of either Hong Kong or the PRC courts in a contract may enable litigants to take benefit from the reciprocal enforcement arrangement underpinned by the Arrangement on Reciprocal Recognition and Enforcement of Judgments… Read more

UK Court of Appeal confirms the legality of basis clauses

11 October, 2013

In Genesis Housing Association Limited v Liberty Syndicate Management Limited and others [2013] EWCA Civ 1173 the Court of Appeal upheld the first instance decision of Mr Justice Akenhead and confirmed the legality of basis clauses. A basis clause is… Read more

Hong Kong High Court considers reasonableness of restrictive covenant

26 July, 2013

In Pure International (HK) Ltd v Lo Yan Chan Kenneth [2013] HKEC 1092 the Court of First Instance considered the validity of a six-month restriction prohibiting an ex-employee from finding employment in the same activity within 1000 metres of the… Read more

Hong Kong Court of Final Appeal provides clarification on when a document may be rectified for mutual or unilateral mistake

4 July, 2013

In Kowloon Development Finance Limited v Pendex Industries Limited & Ors [2013] HKEC 704 Lord Hoffmann NPJ took the opportunity to clarify the requirements that need to be met to rectify a document recording an agreement between the parties. He also… Read more

The Hong Kong Court of First Instance rules on whether the “no reflective loss” principle applies to a shareholder’s claim brought under a personal guarantee

5 June, 2013

In the recent case of Suen Kwai Kam v Zhong Hua International Holdings Ltd and others [2013] HKEC 457 the Hong Kong Court of First Instance (CFI) held that a shareholder was unable to claim for an unpaid debt owed… Read more

Singapore courts confirm their “zero-tolerance” policy in respect of agreements that have an illegal object

13 May, 2013

In a judgment handed down on 3 May 2013, the Singapore High Court confirmed that it will not allow a plaintiff to enforce rights under an agreement which has an illegal object, even if capable of being performed in a… Read more

The Year of the Dragon – a litigator’s review of key cases and developments

8 February, 2013

As the Year of the Dragon draws to a close we summarise in this e-bulletin some key cases and developments which are likely to be of interest to clients. We also provide (in so far as possible) an indication of… Read more

“Dispute resolution and governing law clauses in China-related commercial contracts”: 5th edition now available

28 November, 2012

Chinese law restricts both the choice of law and the types of dispute resolution mechanism in China-related commercial contracts. As a result, drafting governing law and dispute resolution clauses in these contracts is not straightforward. This guide, designed for clients… Read more

Hong Kong Department of Justice publishes Contracts (Rights of Third Parties) Bill

14 November, 2012

The Department of Justice of Hong Kong has recently prepared the Contracts (Rights of Third Parties) Bill (the “Bill”) which, if enacted, will significantly change the law relating to privity of contract in Hong Kong. Gareth Thomas provides an overview… Read more

Potential Eurozone Break-Up: Questions and Answers

9 December, 2011

There has been speculation of the possibility of a withdrawal by a Member State from the Euro. What are the issues for creditors that would arise if a Member State were to decide to leave the Eurozone? What are the… Read more

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