Articles by author
International aspects of capacity and authority: a need for reappraisal of Haugesund v Depfa?
The effect upon private law contractual rights of public law illegality has long been a source of confusion and controversy, particularly in the context of disputes between banks and public bodies over complex derivatives. The issue divided the Court of Appeal in Credit Suisse v Allerdale [1997] QB 306 and although the view of Hobhouse LJ in that case has been endorsed in Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439, this was only obiter. Foxton J in School Facility Management Ltd v Governors of Body of Christ the King [2020] EWHC 1118 (Comm) has now decided how far public law illegality can provide a defence of incapacity but his logic when applied to a foreign entity is more consistent with Etherton LJ’s dissent in Haugesund v Depfa [2010] EWCA Civ 579 than with the majority decision.
1 JUL 2021Swaps litigation: the continuing search for certainty
Banks who enter into swaps with public sector entities might reasonably have hoped that during the three decades since Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 (in which the House of Lords ruled that the local authority’s interest-rate swaps were speculative and ultra vires) most of the associated legal problems would have been resolved. Two recent cases in the Commercial Court involving Italian authorities show that quite a lot remains to be argued about. These are Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm) (Busto) and Banca Intesa Sanpaolo SPA & Anor v Comune Di Venezia [2022] EWHC 2586 (Comm) (Venezia). In this article Andrew Fulton KC highlights the continuing problems so far as the enforceability of a disputed swap is concerned.
1 MAR 2023
