“Within the context of its asset management and trading activities, the Manager [FMCP] may receive compensation for services performed for third parties (e.g. for the products’ sponsors or issuers), that are not contemplated in this Agreement. Such compensation is totally independent from the remuneration provided in Clause 8.1 above and the Client [LAP] acknowledges that it has and will have no right to assert any proprietary claim or otherwise in this respect.”
“[e]ffecting option transactions in securitized form (warrants) traded on- and off-exchange, unsecuritized options… on stocks, bonds, precious metals, commodities etc. or on reference rates such as currencies, interest rates, indices, etc.” … “[e]ffecting further transactions in derivative instruments, such as combinations of option and forward transactions, swap transactions of all types, so-called certificates on one or more underlying security or asset, structured products and other derivative instruments of all types.”
"the Charles Russell letter"
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury.”
“If an event is inherently improbable, it may take better evidence to persuade the judge that it has happened than would be required if the event were a commonplace. This was what Lord Nicholls was discussing in re H (Minors)[1996] AC 563 , 586. Yet, despite the care that Lord Nicholls had taken to explain that having regard to the inherent probabilities did not mean that the standard of proof was higher, others had referred to a “heightened standard of proof” where the allegations were serious.”
“… it has been firmly established that: i) First, there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not: Re B at para 13 per Lord Hoffmann. ii) Second, the proposition that “the more serious the allegation, the more cogent the evidence needed to prove it” is wrong in law and must be rejected: Re S-B at §13 per Baroness Hale; Re J[2013] 1 AC 680 at para 35 per Baroness Hale. iii) Third, while inherent probabilities are relevant in considering whether it was more likely than not that an event had taken place, there is no necessary connection between seriousness and inherent probability: Re S-B at para 12 … 89. …. it may well be true to say that it is inherently improbable that a particular defendant will commit a fraud. But it all depends on a wide range of factors. For example, if the court is satisfied (or it has been admitted) that a defendant has acted fraudulently or reprehensibly on one occasion, it cannot necessarily be considered inherently improbable that such defendant would have done so on another; or if, for example, the court is satisfied (or it has been admitted) that a defendant has created or deployed sham or false documents, the court cannot assume that it is inherently unlikely that such defendant did so on other occasions. For the avoidance of doubt, I should make absolutely plain that this is not to say that inherent probability is irrelevant. On the contrary, as submitted by Mr Casella, I accept, of course, that the court should take into account the inherent probability of an event taking place (or not taking place) as is made abundantly plain by Baroness Hale in the passage from Re S-B quoted above. However, as it seems to me, the court must in each case consider carefully what is – and is not – inherently probable having regard to the particular circumstances – but the standard of proof in civil cases always remains the same i.e. balance of probability.”
“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations …”
“In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist. But a warning should be sounded. Suspicion is a word that can be used to describe a state-of-mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts. In my opinion, in order for there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts. The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe. To allow blind-eye knowledge to be constituted by a decision not to enquire into an untargeted or speculative suspicion would be to allow negligence, albeit gross, to be the basis of a finding of privity.” iii) However, a defendant does not have the requisite dishonest state of mind if he merely suspects what is going on: Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd’s Rep Bank 511 where (in the context of a case with a distinct factual parallel to this one) Colman J put the matter with characteristic clarity and good sense: “it is not enough that on the whole of the information available to [the defendant] he ought as a reasonable man to have inferred that there was a substantial probability that the funds originated from the Bank. It must be established that he did indeed draw that inference…. If third parties are to be held accountable on the basis of accessory liability for breaches of trust committed by others the standard of proof of dishonesty, although not as high as the criminal standard, should involve a high level of probability.”
“Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries.”
“I do not suggest that one cannot be dishonest without a full appreciation of the legal analysis of the transaction. A person may dishonestly assist in the commission of a breach of trust without any idea of what a trust means. The necessary dishonest state of mind may be found to exist simply on the fact that he knew perfectly well that he was helping to pay away money to which the recipient was not entitled.”
“a bribe consists in a commission or other inducement which is given by the third party to an agent as such, and which is secret from the principal.”
“A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.”
"Q. Are [the current executive management of LAP] a different group of people from those who acted as the executive management of LAP in January 2010? A. (Interpreted): 90% changed, they changed 90%. But the old team stayed in LAP as employees now. They are still working as employees. So, there was a change in positions, if you like, but the employees themselves are still working at LAP."
“We will also sometimes suggest investment in traditional asset classes via Structured Products. LIA can rely on our superior experience in that field to find the best products and track hidden costs/undesirable features.”
“Dear Mr Frederic Marino This letter hereby confirms that Libya Africa Investment Portfolio, a Sovereign Fund registered in Libya …. (The Investor) is giving Frederic Marino the mandate to advise the Investor on the structuring of a portfolio comprising the following Funds: • UBP • Palladyne • Platinum • Stanford International Bank (SIB) CDs The total Notional of the portfolio is around USD650Mios The Investor gives Frederic Marino the mandate to • Select the banks to be involved in the structuring of the product • Start structuring the product with them” • UBP • Palladyne • Platinum • Stanford International Bank (SIB) CDs • Select the banks to be involved in the structuring of the product • Start structuring the product with them”
“[LAP]…intends to invest in a financial advisory new company to be established by [Mr Marino] as set out in the presentation “FM Capital Partners – Financial Advisory” dated May 2009 …”
“THIS AGREEMENT… replaces that made the6th July 2009 between GAM Structured Investments Ltd. and FM Capital Partners…”
“Members of the Julius Baer Group have various and multiple roles and responsibilities related to the issue, performance, management and administration of the Notes. Members of the Julius Baer Group and their directors, officers, employees and agents may also be involved in other financial investment or professional activities which may cause conflicts of interest with the issue and ongoing management and administration of the Notes.”
“…initial structure and parameters of designated Products as per Schedule I [i.e. GAIN] including but not limited to (i) composition of initial portfolio and weighting of portfolio components, (ii) choice of basic Products parameters such as currency, denomination and tenor, (iii) level of principal protection and/or leverage, (iv) choice of Products risk parameters such as maximum exposure and the allocation table, and (v) determination of product fees.”
“… matters of ongoing maintenance and reporting of Products as per Schedule I [i.e. GAIN], including but not limited to (i) monitoring of Products performance, (ii) reporting of Products performance and key Products parameters in light of investor needs, and potentially (iii) any modification of Products terms as may be conducted by the Calculation Agent and/or the issuer of the Products according to the Terms of the Products.”
“… at its reasonable discretion… with a view to reasonably safeguard the legitimate interests of [LAP], provided however always in accordance with (i) the Terms of the Products and (ii) the Terms of this Agreement.”
“1157 Power of court to grant relief in certain cases (1) If in proceedings for negligence, default, breach of duty or breach of trust against– (a) an officer of a company, or … it appears to the court hearing the case that the officer or person is or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit.”
“he knew perfectly well that he was helping to pay away money to which the recipient was not entitled”
“Given what he knew of Metcalf’s operations, it would not be obvious to him that any funds under Metcalf’s control probably originated with the Bank. Nor would it be obvious that because the funds were going into the accounts of companies under the control of Metcalf …. that meant that those funds were probably fraudulently procured.”
“…[t]he only position that corresponds to our long term plan for the alternative allocation is [Vesper DTF] … The performance is not on par with our expectations, but the Manager has recently reshuffled the portfolio between the three strategies and this should help building sustainable returns. More importantly, this fund should perform well in volatile market conditions, and therefore can be seen as a hedge in case market conditions deteriorated.”
“The [BPA] reflected the intention that in so far as Mr Marino and Mr Bessot acted as introducers to Conquest Financial Partners in relation to future transactions, they would be paid as such (through Ironfly) in accordance with standard market practice. In the event, the arrangement set out in the [BPA] was subject to further negotiations and discussions.”
“Q: You knew, at least now, Mr Ohmura, on 30 September... that FMCP was the manager of the LAP account at HSBC from which this trade had been—was to be executed? Yes… I would have gathered that from this information.”
“[t]hey knew about the commission I was receiving under the Capital Guarantee so they clearly wanted a part of it”
“the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the company's involvement, and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement.”
“For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. Those three are the only elements necessary to constitute the payment of a secret commission or bribe for civil purposes.”
“The JB Secret Commissions”
“164. I turn … to the other key ingredient of this tort: the defendant's intention to harm the claimant. A defendant may intend to harm the claimant's business either as an end in itself or as a means to an end. A defendant may intend to harm the claimant as an end in itself where, for instance, he has a grudge against the claimant. More usually a defendant intentionally inflicts harm on a claimant's business as a means to an end. He inflicts damage as the means whereby to protect or promote his own economic interests. “165. Intentional harm inflicted against a claimant in either of these circumstances satisfies the mental ingredient of this tort. This is so even if the defendant does not wish to harm the claimant, in the sense that he would prefer that the claimant were not standing in his way. “166. Lesser states of mind do not suffice. A high degree of blameworthiness is called for, because intention serves as the factor which justifies imposing liability on the defendant for loss caused by a wrong otherwise not actionable by the claimant against the defendant. The defendant's conduct in relation to the loss must be deliberate. In particular, a defendant's foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention for this purpose. The defendant must intend to injure the claimant. This intent must be a cause of the defendant's conduct, in the words of Cooke J in Van Camp Chocolates Ltd v Aulsebrooks Ltd[1984] 1 NZLR 354 , 360. ….””
“(1) … where in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”
“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. … 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in [paragraph] 1 … the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“For the purposes of this Regulation, damage shall cover any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo.”
"They were under an obligation not to sue in Germany or elsewhere than England. The former clients could have performed their contractual obligations to AMTF either by not raising proceedings in Germany or, having raised those proceedings, by discontinuing them"
"the raising of the German proceedings has damaged AMTF's business model as it sought, through the exclusive jurisdiction clause, to preserve the focus of its business in London if it traded with overseas clients. But that loss of focus is consequential upon the direct harm caused by the raising of the German proceedings"
" …the case-law from the Brussels I Regulation offers guidance which, with one significant reservation, it will be proper to follow. The one note of caution is that the case-law dealing with special jurisdiction under what is now Article 7(2) of the recast Brussels I Regulation has proceeded on the basis that if a proposed interpretation of the place where the damage occurred would tend to point to the home country of the claimant it will not be favoured, as the jurisdictional principle of forum actoris conflicts with the general principle of the Brussels I Regulation that defendants should enjoy the advantage of defending in their own courts. It is hard to see that this concern corresponds to any aspect of the proper interpretation of Article 4(1) of the Rome II Regulation, under which the law applicable to the claim may be that of the claimant’s home country, even though it would not be generally appropriate that this be the court with special jurisdiction over a defendant domiciled in another Member State."
"But there is, we think, this important difference between Article 4 of Rome II and Article 5.3 of the Judgments Regulation. The latter contemplates that a claimant in tort may choose between the courts of the place where the harmful event occurred and the place where the damage was sustained. But the purpose of Rome II is to identify a single applicable law rather than a choice: see Recitals (6) and (14). It is for that reason that Article 4.1 excludes the place where ‘the event giving rise to the damage occurred’, if different from the place where the damage itself occurred."
“Any person who unlawfully causes loss or damage to another, whether wilfully or negligently, is obliged to provide compensation.”
“(A138)1. Any person who for his own or another’s unlawful gain appropriates moveable property belonging to another but entrusted to him, any person who makes unlawful use of financial assets entrusted to him for his own or another’s benefit, is liable to a custodial sentence not exceeding five years or to a monetary penalty. … (A158)1. Any person who by law, an official order, a legal transaction or authorisation granted to him, has been entrusted with the management of the property of another or the supervision of such management, and in the course of and in breach of his duties causes or permits that other person to sustain financial loss is liable to a custodial sentence not exceeding three years or to a monetary penalty. Any person who acts in the same manner in his capacity as the manager of the business but without specific instructions is liable to the same penalty. If the offender acts with a view to securing an unlawful gain for himself or another, a custodial sentence of from one to five years may be imposed.”
“(1) Shall be deemed to have committed an act of unfair competition, anyone who: (a) in the private sector, offers, promises or concedes to a third party’s employee, partner, agent or other auxiliary person an improper advantage in his or a third party’s favour in return for an unlawful or discretionary act or nonfeasance in connection with his official or professional tasks; (b) in the private sector, as a third party’s employee, partner, agent or other auxiliary person demands, is promised or accepts an improper advantage for himself or a third party in return for an unlawful or discretionary act or nonfeasance in connection with his official or professional task. (2) Advantages contractually accepted by the third party as well as insignificant, socially common advantages are not deemed to be improper.”
“[a]ny behaviour or business practice that…affects the relationship between competitors or between suppliers and customers…”
“It has to affect competition in the abstract sense. [i]t has to influence the market as such, the quest for customers and market shares”
“(1) Where agency activities were not carried out with the best interests of the principal in mind, he is nonetheless entitled to appropriate any resulting benefits. (2) The principal is obliged to compensate the agent and release him from obligations assumed only to the extent the principal is enriched.”
“The agent and the third party are jointly and severally liable to account for the bribe, and each may also be liable in damages to the principal for fraud or deceit or conspiracy to injure by unlawful means. Consequently, the agent and the maker of the payment are jointly and severally liable to the principal (1) to account for the amount of the bribe as money had and received and (2) for damages for any actual loss. But the principal must now elect between the two remedies prior to final judgment being entered… The third party may also be liable on the basis of accessory liability in respect of breach of fiduciary duty: Bowstead & Reynolds on Agency, para 8-221. The principal is also able to rescind the contract with the payer of the bribe.”
Showing the 50 most senior of 53.