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February 29th, 2016 by Simon Lafrance Tags: , ,

Introduction   A recent judgment[1] handed by the High Court added a brick to the mis-selling wall. Thornbridge Limited (“Thornbridge”) claimed damages suffered as a result of entering into a fixed rate interest rate swap in 2008 with Barclays Bank PLC (“Barclays”). The five-year swap ran to maturity, but at an increasing cost to Thornbridge […]

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January 14th, 2016 by Simon Lafrance Tags: , ,

On 2 December 2015, the Supreme Court[1] rendered a landmark judgment on implied terms in contracts governed by English law, and authoritatively set aside the previous leading – but equivocal – decision from the Privy Council[2] as it could be interpreted as a dilution of the traditional requirements. Implied terms – as opposed to express […]

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Introduction On 25 June 2015, the High Court[1] rendered a decision in the matter opposing Dexia Crediop S.p.A. (“Dexia”) to Comune di Prato (“Prato”), an Italian local authority. Although this case is also a classic case about capacity, it is mostly a case about a mandatory Italian rule rendering a swap governed by English law […]

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Introduction On 12 May 2015, the High Court[1] rendered a decision centred on the application of the “Loss” payment measure in the 1992 ISDA Master Agreement, following two earlier decisions[2] on different issues on the same matter. Fondazione Enasarco (“Enasarco”)[3], an Italian pension fund, claimed from Lehman Brothers Finance S.A. (“LBF”) an amount of US […]

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March 18th, 2015 by Simon Lafrance Tags: , , , ,

Introduction On 25 February 2015, the High Court[1] rendered a decision illustrating the intricacy of set-off in relation with the ISDA Master Agreement. MHB-Bank AG (“MHB”) applied for summary judgment in two parallel actions, in respect of Early Termination Amounts totalling £ 30.5 million. The figure is not in dispute, but the defendants Shanpark Ltd, […]

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Introduction On 19 December 2014, the High Court[1] rendered a decision in which it held that Goldman Sachs International (“Goldman”) was entitled to summary judgment against Videocon Global Limited and Videocon Industries Limited (together “Videocon”) in connection with the termination of two currency swaps transactions. This decision follows a previous attempt by Goldman to secure […]

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On 12 November 2014, ISDA officially published the Resolution Stay Protocol. The main purpose of the Protocol is to suspend early termination rights in the event a party or certain of its related entities (e.g. parent or affiliates) become subject to resolution or U.S. insolvency proceedings. The 2014 Resolution Stay Protocol contrasts with other protocols, […]

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Introduction In a recent decision, the Chancery Division of the High Court of Justice[1] offered another strong illustration of the world that separates the tough caveat emptor line adopted by English courts on interest rate mis-selling cases and the FCA-flavoured, consumer-oriented in-house review. As the Interest Rate Hedging Protection (IHRP) review approaches its final stages, […]

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Introduction On 5 November 2014, the European Banking Authority (EBA) published a consultation paper regarding draft Regulatory Technical Standards (RTS) on the contractual recognition of write-down and conversion powers under the Bank Recovery and Resolution Directive (BRRD). Liabilities which would otherwise be subject to bail-in under the BRRD may be governed by the law of […]

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September 12th, 2014 by Simon Lafrance Tags: , , ,

Introduction The High Court in the UK[1] recently clarified important parameters of the Market Quotation process under the 1992 ISDA Master Agreement. It is now established that quotations must be obtained on or after the Early Termination Date and that “live” quotes must be obtained. Backdated or indicative quotes are definitely unacceptable. These questions had […]

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