Proskauer

Notable and representative matters include:

Commercial Litigation

• Goldman Sachs International in complex multi-party, multi-jurisdictional proceedings arising out of the transfer of assets and liabilities of a collapsed bank in an EU member state to a 'bridge' bank, raising issues as to the effect on the English law of obligations of various decisions of a central bank and as to the proper interpretation and effect of the European Banking Recovery and Resolution and Credit Institutions Winding Up Directives;
• The sellers of a market leading programmatic advertising technology platform in a complex claim for substantial damages for unpaid post-sale consideration against WPP resulting in a successful liability trial;
• A leading investment bank in the defence of a very substantial claim of alleged mis-selling and misrepresentation in respect of various CDOs/CDSs;
• A sovereign wealth fund in connection with substantial claims for undisclosed commission arising from transition management arrangements and in connection with a subsequently DoJ investigation into a US based asset management company;
• Skype Technologies SA in a very substantial, high profile "bet the company" dispute in the English High Court and courts in California, Delaware and Estonia, arising out of the licensing and ownership of Skype's core peer-to-peer technology, including a successful application in the English courts for an anti-suit injunction preventing the continuation of a substantial patent and copyright infringement action in California;
• The board of an international telecoms company in respect of an expedited trial valued at up to £600m of various issues arising out of the merger of its UK mobile telecoms subsidiary with another UK mobile telecoms company;
• A leading UK broadcaster on a major dispute relating to a contract for the supply of digital broadcasting management technology including advising on termination strategy, post termination recovery of assets and successful contract renegotiation;
• A leading European insurance company defending a substantial Commercial Court action in respect of allegations of breach of warranty and deceit arising from the sale and purchase of Churchill Insurance;
• Various funds in respect of distressed credit issues.

International Arbitration

• A benchmark data provider in an ICDR arbitration in New York against an index provider and an international stock exchange for breach of the exclusivity provisions in the parties’ joint venture agreement;

• A European manufacturer of aerospace products in an ICC arbitration seated in Paris in connection with allegations of fraud, misrepresentation and breach of contract following the sale of a subsidiary.

• An international IT services company in high value multi-jurisdictional dispute involving several arbitrations arising from the failure of hardware at a key data centre resulting in a lengthy outage and multiple claims from business customers for loss of business;

• A major aerospace and defence company in a substantial ICC arbitration concerning modifications to specialised aircraft under a services contract, including applications for emergency arbitrator relief;

• A leaseholder of a communications satellite in a complex and high value ICC arbitration concerning various alleged design defects in the satellite;

• A pharmaceutical company in a LCIA arbitration relating to the ownership of rights to biopharmaceutical products developed within a licence agreement framework;

• A leading mobile telecommunications company in high value ICC arbitrations concerning the licence of various patents on FRAND terms, including successful UK High Court applications to stay patent proceedings in favour of arbitration;

• A European stock exchange in a $107m ICC arbitration over the supply of a derivatives trading system to an Asian stock exchange;

• A leading international technology supplier in an ICC arbitration over US $700m outsourcing contract with a major energy utility company;

• A consortium of telecoms companies in arbitrated dispute (ICC) concerning the applicability of a force majeure clause to various events in respect of the construction and laying of an under-sea cable in the South China Sea;

• A Swiss based commodities trader in SIAC arbitration proceedings against another Swiss commodity business relating to the enforceability of the terms of a distressed sale of cargo;

• A multi-national soft commodities trading company in UNCITRAL arbitration against Kazakhstan entity claiming over US $30m in respect of shipped consignments of sugar;

• A major European shipping company in substantial ICC arbitration concerning major delays and technical issues in the construction of a series of VLCC ships;
  an energy company in LCIA arbitration concerning issues arising from vessel conversion into FPSO.

Notable Reported Cases

• Webster & Ors v WPP Group (UK) Ltd [2021] EWHC 2153 (acting for former executives and shareholders of The Exchange Lab Holdings Ltd, a digital media specialist operating in the programmatic advertising industry, in a substantial claim against WPP for payment of an earn out arising from the sale of the company/technology platform. This decision upheld the former executives and shareholders construction of the sale contract with indemnity costs being awarded in their favour);

• Goldman Sachs International v Novo Banco SA. [2015] EWHC 2371 (Comm); [2016] EWCA (Civ) 1092; [2018] UKSC 34 (acting for Goldman Sachs, Inc in Novo Banco's application challenging the jurisdiction of English courts in respect of a claim of about US$850 million, the application giving rise to notable issues relating to th European Banking Recovery and Resolution and Credit Institutins Winding Up Directives);

• Property Alliance Group Ltd v RBS Plc [2016] EWHC 3342 (Ch); [2018] EWCA Civ 355; [2018] 1 WLR 3529 (acting for the claimant in a Finncial List test case for claims against banks, including claims of swaps misspelling, LIBOR manipulation. Important decision on implied representation);

• Nokia Corporation v HTC Corporation [2012] EWHC (Pat) (acting for Nokia in successful dismissal of HTC's application pursuant to Section 9 of the Arbitration Act 1996 of certain patent proceedings);

• British Telecoms Plc v Cable & Wireless UK [2010] EWHC 2434 (Comm) (acting for Cable & Wireless in successful application for stay of Commercial Court proceedings brought by BT pending the outcome of parallel regulatory investigation by Ofcom on the same issues);

• British Telecoms Plc v Ofcom [2010] CAT15 (acting for Cable & Wireless UK and others as interveners on their dispute submission to Ofcom about BT's overcharging for partial private circuits. This preliminary issue decision of the CAT found that there should be no distinction between current, prospective or historical disputes and the dispute resolution process covered all such disputes);

• Future Investments SA v Federation Internationale de Football Association [2010] EWHC 1019 (Ch) (acting for FIFA in successful application to strike out Future's claim for exclusive rights to the production and exploitation of various copyright works in the 1998 World Cup on the basis of lack of jurisdiction of the English courts to hear the claim under the Lugano Convention);

• Skype Technologies SA v Joltid Limited [2009] EWCH 2783 (Ch) (acting for Skype in its successful application for an anti-suit injunction preventing Joltid from continuing a substantial patent and copyright infringement action in California in breach of a licence agreement conferring exclusive jurisdiction on the English courts);

• The Number (UK) Ltd v Ofcom [2009] CAT4 (acting for The Number in its successful appeal to the Competition Appeal Tribunal challenging Ofcom's decision that the regulatory condition underpinning the supply of UK directory information was unlawful. The case was referred to the European Court of Justice by the Court of Appeal);

• Bookmakers Afternoon Greyhound Services Ltd v Amalgamated Racing Limited [2008] EWHC 2688 (Ch) (acting for Satellite Information Services Ltd, a leading supplier of data and pictures to bookmakers, in its successful defence of third party claims alleging that it had entered into unlawful media and data rights agreements in breach of competition law);

• R (Government of Bermuda) v Office of Communications [2008] All ER (D) 88 (Aug) (acting for Government of Bermuda in a judicial review of an Ofcom Decision relating to satellites and spectrum capacity);

• Atos Consulting Ltd v Avis Europe Plc (No 2) [2007] EWHC 323 (TCC) (acting for Avis in a successful challenge to privilege claimed by Atos);

• Attheraces Ltd v British Horseracing Board [2005] EWHC 3015 (acting for Attheraces in High Court and Court of Appeal proceedings in an action over alleged abuse of a dominant position by the BHB in relation to licensing of its database;

• Atos Consulting Ltd v Avis Europe Plc [2005] EWHC 982 (TCC)(acting for Avis in a multi-million pound pan European ERP software project in an application to strike out 60 page Particulars of Claim under CPR 3.4);

• Peregrine Systems (Europe) Ltd v Steria Ltd [2004] EWHC 275 (TCC); [2004] All ER (D) 447 (acting successfully for Peregrine before the TCC and Court of Appeal. This is a leading case on the principles governing the time for performance obligation in IT contracts and on the waiver of the right to terminate such contracts);

• Banca Carige SpA v Banco Nacional de Cuba [2001] 2 Lloyds Rep 147 (acting for Banca Carige in a notable case on the application of the doctrine of sovereign immunity and the extent of CPR 6.20(14));

• Cambridge Technology Partners v Abbey National Plc [2001] (TCC) (acting for Cambridge Technology Partners in a software development contract dispute involving the ambit of exclusion clauses in the context of a claim for lost management time);

• Docenave v Bosco [2001] 2 All ER (Comm) 70 (Commercial Court) jurisdiction to serve an arbitration application form on a third party; scope of arbitration except under Lugano Convention);

• Glencore International A.G. v Shell International Trading and Shipping Co Ltd [1995] 2 Lloyds Rep 692 (Commercial Court)(interpleader proceedings);

• Ignazio Messina and Co v Polskie Linie Oceanizce [1995] 2 Lloyds Rep 566 (Commercial Court) (leading case on formation or otherwise of contract);

• The Evia Luck [1992] A.C. 152 (House of Lords) (leading case on economic duress and restitution).