Litigation. Review. December 2012 EDITORIAL. brought by Italian local authorities against banks challenging the validity.

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1 December 2012 Litigation Review EDITORIAL brought by Italian local authorities against banks challenging the validity Marc Florent Partner Banking, Finance & Regulatory London Tel +44 (0) Contributing editor: Amy Edwards 1

2 Contents Poland 14 France 4 AMF investigations Italy 10 United Kingdom 17 consolidated index 20 Netherlands

3 1 are described below. New enforcement options auction instead. which would then sell it, decrease its registered The court or executor would administer the and will be able to terminate and enter into leases Pre-petition notice Strengthening the role of private executors 3

4 recognised by Czech courts in accordance with the Act on Private International Law. 2 COMMENT Tel +420 (0) /2001 Coll, as amended) and certain other related laws have also been amended. 2. France Ms X v Banque Privée Edmond de Rothschild potestative. In this case, the claimant, Ms X was a French national with a Luxembourg bank (the Luxembourg Bank) via a 4

5 sued both her French bank and the Luxembourg Bank in the First Instance Court in Paris. The Luxembourg Bank, the courts of the client s domicile or any other competent court Brussels Regulation given that the Court of Appeal noted that the clause, according to which the bank reserved the right to sue at Ms X s domicile or before any other competent court, was, in reality, only binding upon Ms X, who was the only one bound to apply to the Luxembourg courts, the Court of Appeal accurately deduced that the clause was potestative for the bank, so that it was I Regulation potestativité Brussels Regulation. This should not be understood as an potestativité. potestativité potestative dependent upon an event which one of the contracting parties has the power to make happen or to prevent from happening any other competent court over the claim pursuant to the otherwise applicable rules Luxembourg but the bank can sue in Luxembourg or in London) may arguably also be considered to have been invalidated by this ruling. than the other, its Article 23 was until now commonly Drafting dispute-resolution clauses in light of the Supreme Court decision clauses in contracts that have a nexus with France. are where: Court here); or 5

6 the French courts (which would otherwise not the clause is not valid. clauses governed by the Brussels Regulation, no governed by the 2007 Lugano Convention as its Convention (eg a clause that would designate the to sue elsewhere). potestativité) raising similar different court on the basis that the England that the clause is invalid so the English courts should potestativité unless the parties have agreed otherwise here cannot be entirely excluded. However, these clauses have long been recognised as valid by the French courts and given that the French courts are by a French court. may wish to consider whether to continue using documentation. In deals with a French nexus, it may are continuing to discuss the issue.

7 Erwan Poisson Partner Litigation Paris Camille Fléchet Associate Litigation Paris Commission des sanctions The AMF had launched investigations against the Nortène Nortène. Your rights during an AMF investigation be seized and individuals that can be heard during AMF French Monetary and Financial Code). its CEO argued that this interview had been conducted in any documents that were transmitted to the AMF as a Committee dismissed this argument and, by a decision again on this issue. It held that AMF investigators can hear any individual the rules in order to ensure that the investigations are 7

8 right to be assisted by legal counsel. not mention that Mr Monin had waived his rights under our rights during an AMF investigation a delay; and (iii) it was not established that Mr Monin, assuming that he had time to read this documentation it was not established that Mr Monin waived his rights Mr Monin s statements. The court held that it was not to the court, it could not be argued that Mr Monin s during Mr Monin s interview. investigation. According to recent case law, and as held This is, however, unlikely to lead to systematic investigation act but will only lead to the annulment that was irregularly obtained. Bénédicte Chesnelong Counsel Litigation Paris Camille Fléchet Associate Litigation Paris 8

9 TO INFORM investor caused the investor s loss. Litigation Review). However, a bank can only be held have caused the investor s decision to buy the investment. investment anyway. investor where there was more than one available course did not raise any claims on that basis. The court

10 which the investor is interested can only be achieved COMMENT comments as to how banks can show that there was no disregard a bank s argument that a claimant s behaviour regard to other investments. Counsel Italy Consiglio di Stato, 27 November 2012 (the Swaps Banks), both authority (Pisa Selfredress Decisions redress Decisions. 10

11 However, since the issues to be dealt with were too Expert Pisa s arguments It has been Pisa s main allegation in both the English and costs borne by Pisa which were undisclosed and investment services to customers. These arguments were Italian court decision transaction costs and risks incurred by the intermediary Moreover, in the Pisa case, the relevant costs (assessed Decisions were deemed to be illegitimate. On this basis, the court concluded that the Banks acted COMMENT necessarily 11

12 Massimiliano Danusso Partner ICM Rome and England. Netherlands 3 UCITS The Dutch legislator has stated that it considers it (or Wft AFM electronic money, current accounts, credit, savings 12

13 COMMENT omissions, the AFM is authorised, among other things, is contrary to the lex certa decide whether their acts or omissions may in general have may unworkable. Partner Litigation Amsterdam Associate Litigation Amsterdam 3. markets. The idea behind this is that each year all the amendments in 13

14 Poland Equality of the parties to arbitration clauses 4, a Polish court will the arbitration agreement, or when a Polish court is being (PCCP arbitration only. excluded that a Polish court would tend to resort to the Equality of the parties to jurisdiction clauses both under the PCCP and the Brussels Regulation, which is domiciled in an EU member state. Thus, with some 14

15 COMMENT Marek Neumann Associate Monika Murawska Associate 4. to an arbitration agreement contained in a contract governed by a in which claimants alleged that they did not understand investment agreement and thus, these claimants argue, the investment agreement is void. between 2007 and 2008, many claimants are currently dies a quo 15

16 dies a quo dies a quo dies a quo investment was not as he/she understood to the shares. granted by the courts only when dealing with extreme 5 ). A claimant must show that there was no consent at all. There is no dies a quo is irrelevant when considering radical nullity. Moreover, some claimants are, as an alternative, trying obligations thereunder. The time limit to bring such an action is 15 years. Many claimants have argued that has caused damage which have resulted in the investor Anunciada Delgado Associate Litigation Madrid 5.

17 United Kingdom Preservation Orders (EAPOs ex parte basis bank accounts in litigation, in addition to those remedies currently available under national law (although the in granting a national remedy). an EAPO should be revoked without any circumstances and standards to be agreed later by 17

18 court making the EAPO. It is also unclear whether other the Council. Litigation London Tel +44 (0) What did the Supreme Court decide? Rubin and Cap) which, together, necessitated the need to consider 18

19 common law rule. The standard common law rule broadly in personam) litigation was instituted, was claimant or counterclaimed ( Holdings held that the standard common law rules concerning Rubin English court (ie outside the standard common law insolvency law in England. In Rubin COMMENT insolvencies and restructurings with a connection to Nick Herrod Banking London Tel +44 (0)

20 consolidated index Belgium in wealth management and investment advisory agreements (May 12) investigation: admissible evidence? (Feb 12) involvement: don t be caught out (May 11) (Nov 10) Czech Republic clauses (May 12) directors (May 11) uncertainty (Feb 11) de facto France clause (Dec 12) investigations (Dec 12) des sanctions (May 12) la Défense scrutiny (May 11) (Nov 10) Germany 20

21 Hungary Italy (May 12) (May 11) and bank (Nov 10) Luxembourg distinction? (May 12) (May 11) (Feb 11) Netherlands Poland Changes to Polish court rules in commercial cases (May 12) agencies (Feb 12) Bank Association (May 11) and arbitration agreements (Feb 11) 21

22 (Nov 10) Russian Federation agreements (Feb 12) Slovakia (Feb 12) (May 11) Spain (May 12) law? (Feb 12) borrower: Martinsa-Fadesa (May 11) structured notes? (Nov 10) United Kingdom (Dec 12) (May 12) EU Developments 22

23 Commission [subsubheading] (Nov 10) (May 11) (Nov 10) Key contacts 23

24 Allen & Overy LLP Tel Fax In this document, Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Athens (representative office), Bangkok, Beijing, Belfast, Bratislava, Brussels, Bucharest (associated office), Budapest, Casablanca, Doha, Dubai, Düsseldorf, Frankfurt, Hamburg, Hanoi, Ho Chi Minh City, Hong Kong, Istanbul, Jakarta (associated office), London, Luxembourg, Madrid, Mannheim, Milan, Moscow, Munich, New York, Paris, Perth, Prague, Riyadh (associated office), Rome, São Paulo, Shanghai, Singapore, Sydney, Tokyo, Warsaw and Washington, D.C. Allen & Overy LLP This document is for general guidance only and does not constitute definitive advice. 24