Proskauer

Notable and representative matters include:

• Skype Technologies SA in a very substantial, high profile £2.1bn "bet the company" dispute in the UK 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 UK courts for an anti-suit injunction preventing the continuation of a substantial patent and copyright infringement action in California
• a major aerospace and defense company in a substantial ICC arbitration concerning modifications to specialized aircraft under a services contract, including applications for emergency arbitrator relief
• Goldman Sachs International in an ongoing complex multi-party, multi-jurisdictional dispute concerning an $800m structured loan arranged by GSI in 2014 for a major Portuguese bank, Banco Esperito Santo. BES had to be rescued by the Portuguese central bank in 2014 and the loan was transferred (under the EU regime for bank rescue and recovery) to Novo Banco as the bridge bank. Novo Banco defaulted under the loan but asserted the loan remained with BES, as did the central bank. The lenders and GSI issued proceedings in London for recovery of the debts and challenged the central bank’s decisions in Portugal which purported to re-transfer the loan. The case has resulted in the leading decision issued by the UK Supreme Court on the test for jurisdiction in English law (Goldman Sachs International v Novo Banco SA [2018] UKSC 34) and various administrative and insolvency proceedings in the Portuguese courts
• a leading global supplier of financial trading systems in an UNCITRAL arbitration with an Asian stock exchange in a US$107m ICC arbitration over the supply of a derivatives trading system;
• an international commodities business in UNCITRAL arbitrations against Kazakh entities for non-payment of over US$30m in respect Kazakh of several consignments of sugar, including assisting in recovery under trade credit insurance policies and conducting subrogated claims;
• claimants in a major metals warehousing fraud valued at US$300m in various jurisdictions and requiring close liaison with insurers;
• a global investment bank on various trade finance disputes and claims under political risk insurance and trade credit insurance policies;
• 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;
• an international IT services company in ongoing high value multi-jurisdictional dispute 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 German coal trading company in two US $30 million coal trading ICC arbitrations in which full recovery was made from Bulgarian and Swiss interests;
• an Asian power supplier in US $100 million gas specification and take or pay arbitration under UNCITRAL rules;
• Property Alliance Group in its widely reported dispute with RBS, involving issues of mis-selling of swaps and LIBOR manipulation. The matter was transferred to the High Court Financial List by The Chancellor due to its “test case” importance to the markets resulting in a 12 week High Court trial and a 7-day Court of Appeal hearing (also designated as a “test case”). PAG failed on the facts, albeit the Court of Appeal upheld, as a matter of law, an implied representation as to LIBOR manipulation and an implied term in relation to RBS’ right to call for valuations of the swaps portfolio;
• 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;
• Winterthur Swiss Insurance Co defending a substantial Commercial Court action brought by RBS in respect of allegations of breach of warranty and deceit arising from the sale and purchase of Churchill Insurance Plc, which settled after 3 days of trial;
• a major European shipping company in a substantial ICC arbitration concerning major delays and technical issues in the construction of a series of VLCC ships;
• a Greek ship owning group in over 50 concurrent LMAA arbitrations against Middle Eastern oil interests in wide ranging issues arising from time charter parties affected by alleged acts of war;
• Avis Europe plc on a major dispute valued at £50m with ATOS Consulting Ltd in the Technology and Construction Court, relating to the replacement of Avis' pan European automated accounting systems and involving allegations of deceit and repudiatory breach of contract. Settled successfully after 36 days of trial;
• Bloomberg LP in a complex technology licensing dispute involving two sets of expedited proceedings in the Commercial Court and Chancery Division respectively;
• a major defense multinational on issues arising from a £12 billion nuclear submarine programme, one of the most complex procurement programmes of the UK government;
• war risk underwriters in respect of a claim for the total constructive loss of a vessel which allegedly struck a mine in the Arabian Gulf, including issues as to policy coverage in circumstances where the claim may have been fraudulent.

Key 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 the Brussels (Recast) Regulation, the European Banking Recovery and Resolution Directive and acts of state/non-justiciability);
• Property Alliance Group Ltd v RBS Plc [2016] EWHC 3342 (Ch); [2018] EWCA Civ 355; [2018] 1 WLR 3529 (acting for Property Alliance Group in its widely reported dispute with RBS, involving issues of mis-selling of swaps and LIBOR manipulation. The matter was transferred to the High Court Financial List by The Chancellor due to its “test case” importance to the markets resulting in a 12 week High Court trial and a 7-day Court of Appeal hearing (also designated as a “test case”). PAG failed on the facts, albeit the Court of Appeal upheld, as a matter of law, an implied representation as to LIBOR manipulation and an implied term in relation to RBS’ right to call for valuations of the swaps portfolio).
• 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);
• 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 over documents);
• 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 the 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).