Banking (including derivatives), finance and M & A – examples of mediations undertaken
A claim between a high net worth individual and a private bank concerning the devaluation and exit from an investment fund (c. £12 million).
An Inter-bank dispute in relation to security held by each bank (c. £2 million).
An action brought by a bank to enforce several guarantees given by directors of a business (c. £3 million).
Mediation of a dispute in relation to bank charges levied over a number of years brought by executors of an estate (c. £200k).
A mediation arising out of a claim against a consortium by an investment advisor under an investor agreement for an advisory fee due on the sale of a shareholding in a major public company, the dispute concerning the proper calculation of the fee using project cash flow and project IRR formulae (c. £8 million).
A dispute arising out of the purchase of a number of loan books and alleged misrepresentations given in relation to their performance (c. £3 million).
A claim by a major banking institution against companies and individuals involving allegations of bribery, breach of fiduciary duty and breach of contract, the essence of the dispute concerning representations made to the bank’s credit committee resulting in various ‘bad’ loans being made (c. £7 million).
An action between two financial institutions concerning a number of debts ‘factored’ by a former customer which went into administration (c. £2 million).
A dispute between a high street chain store and an insurance company concerning the selling of and commission structures relating to payment protection and other insurance policies (c. £500k).
A dispute arising out of an unregulated collective investment scheme (c. £3 million).
A private equity dispute concerning an Euro 50 million investment in Eastern Europe in which breaches of a participation agreement and a series of partnership agreements were alleged (c. £7 million).
A dispute arising out of the creation of a private equity fund and the premature exit of a number of partners from an LLP set up to run the fund, with argument focusing on the value of various equity holdings and forecast carried interest calculations (c. £10 million).
A transfer pricing dispute involving discussion of OECD Transfer Pricing Guidelines and appropriate methodologies for measuring arm’s length transaction values e.g. CUP and TNMM.
A claim under a share purchase agreement involving allegations of non-disclosure and breaches of warranty (c. £1.5 million).
A dispute concerning the calculation of an ‘earn out’ following an acquisition, with discussion focusing on competing calculations of EBITDA (c. £10 million).
Various cases involving disputed valuations of shares, loans and other assets, many involving the presence of valuation experts.
Derivatives related mediations
Mediation of a number of disputes concerning a variety of hedging products, including:
• mediation of a Commercial Court action involving interest rate callable swap and collar products involving issues of alleged negligent misstatement and negligent misrepresentation relating to risk recommendations, suitability etc;
• mediation of a dispute concerning a stepped interest rate swap raising issues around the ISDA Master Agreement to which it was subject, advisory duties etc.;
• a multi-faceted claim concerning a requirement to hedge various loan facilities by way of interest rate hedging products involving allegations of negligent advice and recommendations, non-reliance clauses, disclaimers etc.;
• claims arising out of a number of swaps allegedly mis-sold with issues concerning the proper categorisation of the customer (e.g. as a ‘sophisticated’ investor), basis clauses, applicability of various COBS rules and numerous other issues.
Claim against a bank for negligent advice including breach of various COBS rules in connection with the purchase of a number of investments and their suitability, and the monitoring of and eventual exit from those investments;
A mediation arising out of the close out of an options account, with discussion focusing on the requirement for and level of margin in relation to an uncovered call options and put options portfolio, and recoverability of damages for loss of investment trading opportunity under Parabola principles.
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