Banking and finance disputes review - Issue 10

The Banking and finance disputes review has always aimed to predict the trends of the future as well as commenting on the latest court decisions and legal developments. In this edition, New trends in banking litigation uses our awardwinning Court Intelligence Database to give insights into how banking litigation is conducted in the English courts and – as the title suggests – what new trends are emerging.

One of the key findings of our analysis is that fraud is moving with sudden speed to become a key argument in a significant proportion of major banking disputes. Two articles deal with fraud and related claims. In Civil claims against banks arising from bribery and corruption issues, we look at fraud from the perspective of a financial regulatory investigation. In Letters of credit – the fraud exception, we see the English courts take a characteristically robust and commercial approach to fraud in a particular area of international finance.

Our analysis also gives comprehensive data on the duration and outcome of English banking litigation. With the approach of Brexit, the advantages – or otherwise – of litigating in England is in the spotlight and banks are monitoring alternative methods of dispute resolution. In Financial institutions: addressing misconceptions about arbitration, we give an introduction to arbitration for banks and, in Investor state dispute settlement in the banking and finance sector, we look at one niche – but increasingly important – area where arbitration is already used by banks.

Finally, the Court Intelligence Database shows that mis-selling claims, although starting to decline in number, still dominate banking litigation. Three articles dealing with recent cases arise out of mis-selling scenarios: our casenote on CGL Group Lt v Royal Bank of Scotland plc [2017] EWCA Civ 1073 and our articles Thomas v Triodos: revisiting the duties of care owed by banks and Challenging governing law clauses: re-match in the Court of Appeal. Another source of banking disputes that has become topical recently is dealt with in Restricting permissible loan transferees: “Financial institutions” and Argo Fund revisited.

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