Industry Focus

Corporate, M&A and Shareholder Disputes

Our lawyers regularly act for companies and shareholders in corporate rights disputes and those arising from acquisitions and disposals:

• Control rights dispute: Representing a New York-based hedge fund in LCIA arbitration proceedings arising out of a high-profile and high-value distressed asset investment in Russia. The shareholder dispute arose from changes to the company’s constitution and subsequent exercise of shareholder voting and control rights in advance of a potentially significant value event.

• Scheme of Arrangement: Litigation counsel for the acquirer in the recent and novel Radius Properties takeover by way of Scheme of Arrangement.

• Breach of shareholder and financing obligations: Representing Russian interests in parallel US$2 billion-dollar LCIA arbitration claims in London and related asset freezing and litigation proceedings in Cyrpus, concerning a substantial shareholder and financing dispute arising out of a major real estate and investment project on the Red Square in Moscow.

• Post-acquisition earn-out dispute: Defending a leading international cloud computing technology and services company in litigation proceedings arising out of the sale and purchase of a foreign cloud computing company, involving alleged pre-contractual misrepresentations, post-completion breaches of warranty and loss of chance claims to “if any” vendor earn out payments.

• Breach of shareholder and joint venture obligations: Representing a global forex and derivatives trading house in a multi-billion-dollar LCIA arbitration proceedings, and multiple related court litigation proceedings in the High Court, concerning a shareholder dispute arising out of a global forex and derivatives trading joint venture in Hong Kong, London and the Middle East.

• Put option exercise, breach of shareholder and project obligations: Representing the majority shareholders in a $400m Stockholm Chamber of Commerce (SCC) arbitration concerning the attempted exercise of a put option for shares under a shareholder agreement relating to a substantial real estate development company, including claims of breach of shareholder and project management obligations. Our lawyers have acted in numerous disputes and situations relating to put and call options and have successfully defended numerous attempted invalid exercises of such rights.

• Shareholder fraud: Representing minority shareholders and directors in a $30m shareholder dispute concerning a consumer finance company, including allegations of breach of contract and fraud.
• Post-acquisition ‘locked box’ accounts dispute: Representing a private equity owned independent oil and gas exploration company in an ICC arbitration concerning a post-acquisition ‘locked box’ accounting dispute.

• Minority shareholder buy-out rights: Representing the company in arbitration proceedings brought by minority shareholders following the triggering of buy-out rights.

Banking & Finance

From debt recovery, ISDA currency swaps to regulatory enforcement, our lawyers have assisted banks, financial institutions, counterparties and borrowers on a wide range of issues arising in the banking & finance sector:

• ISDA currency swap: Representing the counterparty in an LCIA arbitration claim in excess of US$100m brought by an international bank arising out of an ISDA Master Agreement currency swap and purported early termination of that transaction. The claim gave rise to complex cross-default and mis-selling issues.

• Internal syndicated loans: Representing a major international metals and mining company and related interests as borrowers and guarantors in a series of 16 LCIA arbitration claims seeking recovery under two US$500m internationally syndicated facility agreements. The team led by Tim successfully defended a parallel court application for an urgent world-wide freezing order against the mining company’s international bank accounts.

• Investment treaty claim in relation to banking interests: Representing an Eastern European State in an investment treaty dispute brought by a foreign investor seeking damages of $150m in relation to the investor’s banking interests in that country, brought under the auspices of ICSID.

• Global forex and derivatives trading companies: Representing a global forex and derivatives trading house in multi-billion-dollar LCIA arbitration proceedings, and related court litigation proceedings, concerning a shareholder dispute arising out of a global forex and derivatives trading joint venture in Hong Kong, London and the Middle East. A series of ‘follow-on’ proceedings were brought by investors in relation to the company’s management of their funds.

• Bank fees class action: Assisting as a junior team member in the representation of a major bank in defending class action proceedings brought by customers over the charging of certain account and credit card fees.

• Commerce Commission interest rate swaps investigation: Assisting as a junior team member in representing a major New Zealand bank in response to an investigation by the Commerce Commission under the Fair Trading Act 1986 into the sale of interest rate swaps.

• Price fixing – credit card markets: Assisting as a junior team member in representing an international credit-card company in price fixing proceedings brought by the New Zealand Commerce Commission in relation to the setting of interchange fees.

• Investment banking mandates and ‘success fee’ disputes: Acting for both investment banks and clients in a number of arbitration and litigation proceedings, and disputes generally, relating to the payment of ‘success fees’ under investment banking mandates.

• Contributory mortgages: Acted for the successful plaintiff in contract dispute arising out of New Zealand’s largest contributory mortgage, which also raised secret commissions and securities issues.

• Debt recovery: Various proceedings against borrowers and guarantors arising from loan agreements.

• Consumer finance company: Representing minority shareholders and directors in a $30m shareholder dispute concerning a consumer finance company, including allegations of breach of contract and fraud.

• ISDA: Head of practice Timothy Lindsay is a past member of the ISDA Arbitration Committee (see a copy of the ISDA Arbitration Guide here) and has spoken on the use of arbitration in the banking and finance sector at ISDA and other industry conferences.

• ICC Task Force on Financial Institutions and Arbitration: Timothy Lindsay also a member of the ICC Task Force on Financial Institutions and Arbitration (see a copy of the ICC’s Report here).

Telco, Technology & Intellectual Property

From patent and copyright litigation, to disputes over technology joint ventures and wholesale telecommunications services, our lawyers have acted for multinationals and start-ups:

• Smartphones – patent licensing and technology development: Representing one of the world's leading technology companies in a high-value and high-profile ICC arbitration against another leading global technology company, concerning disputes arising from patent licenses and a significant business collaboration agreement in relation to smartphone development and technologies.

• Cloud computing: Defending a leading international cloud computing technology and services company in litigation proceedings arising out of the sale and purchase of a foreign cloud computing company, involving alleged pre-contractual misrepresentations and post-completion breaches of warranty.

• Copyright litigation: Timothy Lindsay has previously served as the solicitor for New Zealand’s reprographic rights organisation, Copyright Licensing Limited, and has acted for parties in numerous copyright litigation cases. These including claims for CLL against infringing educational institutions, defending a leading multinational large format retailer in copyright litigation in relation to a menswear clothing item and acting for the rightsholders in the high-profile Eight Mile proceedings against the National Party in relation to its use of the Eminem song Lose Yourself.

• Wholesale telco services: Represented a leading telecommunications company in arbitral proceedings against competitor telco relating to the supply of wholesale telecommunications services.

• Acquisition of telco assets: Representing one of the world’s largest telecommunications companies in separate related LCIA arbitrations seated in London worth several hundred million dollars, concerning a complex post-acquisition dispute over emerging market telecommunications assets

• Telco joint venture dispute: Representing one of Europe’s largest telecommunications companies in a multi-billion Euro ICC arbitration seated in Switzerland, relating to Eastern European telecommunications assets.

• Airline ticketing and booking system: Acted for technology joint venture (between various international airlines) in litigation proceedings relating to a well-known airline computer reservation software system.

• Lithium battery technology company: Acted for plaintiff lithium battery technology company is a successful action against former CEO and director for breach of fiduciary duties, and associated parties for knowing receipt, arising out of various capital raising exercises.

• Point of sale technology: Acted for plaintiff POS technology company in negligence claim against German liquidator, involving complex cross-border insolvency and private international law issues.

Energy & Natural Resources

Our lawyers have significant technical expertise in disputes arising from long-term natural resources concessions and acting for clients in the energy and natural resources sectors generally:

• Oil concession: Whilst a partner with the firm Timothy Lindsay was part of the Dechert team representing the Republic of Ecuador in the multi-billion-dollar Perenco v Ecuador investment treaty arbitration at ICSID, concerning alleged breaches of the France-Ecuador BIT arising out of a long-term production sharing agreement for the exploration and production of oil in Ecuador. As well as FET and expropriation claims, the dispute raised complex oil contract economics, production forecasting and damages issues. Tim Lindsay also acted for Ecuador in the parallel Burlington v Ecuador investment treaty arbitration arising from the same investment.

• Oil field pollution and breach of operator equipment and infrastructure obligations: Representing Ecuador in counterclaims against Perenco and Burlington for remediation of oil field pollution and breach of production facility infrastructure maintenance obligations. Both issues raised complex technical issues relating to oil field operations. In both cases Tim Lindsay was responsible for the cross-examinations, among others, of the oil companies’ geostatistics experts on the extent of oil field pollution and industry experts on compliance with infrastructure maintenance obligations.

• Metals and Mining: Lead counsel for one of the world’s largest metals and mining companies in a series of over twenty arbitrations, litigations and injunction proceedings brought by a major international bank in London, Switzerland, The Hague and Singapore in relation to the financing of its operations. Those proceedings included 16 LCIA arbitrations seeking recovery under US$1 billion of internationally syndicated facility agreements and a complex LCIA arbitration claim of over US$100m arising out of an ISDA Master Agreement currency swap that gave rise to mis-selling and other issues arising from the purported termination of the swap.

• Post-acquisition ‘locked box’ accounts dispute: Representing a private equity owned independent oil and gas exploration company in an ICC arbitration concerning a post-acquisition ‘locked box’ accounting dispute.

• AIPN: Head of practice Timothy Lindsay is a past member of the AIPN Dispute Resolution Committee.

Infrastructure, Engineering & Real Estate

Our lawyers have acted in a number of significant disputes arising out of infrastructure and real estate projects:

• Retail shopping development: Successfully acted for shopping centre developer in judicial review proceedings relating to the grant of resource consent for significant retail shopping centre development.

• Port concession: Successfully defending a Middle Eastern government in a multi-hundred-million-dollar infrastructure dispute under the ICC Arbitration Rules relating to the development of a deep-sea port and related onshore infrastructure.

• Large residential real estate project: Representing the majority shareholders in a $400m Stockholm Chamber of Commerce (SCC) arbitration concerning the attempted exercise of a put option for shares under a shareholder agreement relating to a substantial real estate development project, including claims of breach of shareholder and project management obligations.

• Hotel project: Representing the defendants in parallel US$2 billion-dollar LCIA arbitration claims in London, and related asset freezing and litigation proceedings in Cyrpus, concerning a substantial shareholder and financing dispute arising out of a major real estate and investment project on the Red Square in Moscow.

• Caveat proceedings: Representing an Asian investor in a large local property development in High Court proceedings alleging breach of contract and guarantee, and related caveat proceedings.

• Commercial lease disputes: Acting for commercial property investors and landlords in relation to various lease disputes, including plant, fixtures and fittings, health and safety, as well as rent and make-good disputes.

Regulatory & White Collar

Our lawyers have acted in a number of significant enforcement proceedings and investigations brought by regulatory authorities:

• Fair trading and consumer protection: Representing a large Australasian retailer in defending a Commerce Commission prosecution under the Fair Trading Act 1986.

• Commerce Commission interest rate swaps investigation: Assisting as a junior team member in representing a major New Zealand bank in response to an investigation by the Commerce Commission under the Fair Trading Act 1986 into the sale of interest rate swaps.

• Price fixing – credit card interchange fees: Assisting as a junior team member in representing an international credit-card company in price fixing proceedings brought by the New Zealand Commerce Commission in relation to the setting of interchange fees.

• Air cargo: Assisting as a junior team member in representing an international airline in relation to Commerce Commission proceedings alleging price fixing in the air cargo market.

• Insider trading: Assisting as a junior team member in representing defendants in insider trading proceedings brought by New Zealand’s securities regulator.

• Advisory: Advising New Zealand and international corporates on competition/anti-trust, consumer protection, securities and financial markets issues, including in response to regulatory investigations in respect of alleged price fixing, anti-competitive behaviour, breaches of the Fair Trading Act 1986, breaches of the Takeovers Code, and NZX’s continuous disclosure rules.

Foreign Investment & Public International Law

Our lawyers are experienced counsel and advisors in investment and public international law arbitration proceedings:

• Oil concession – investment treaty claim: Whilst a partner with the firm Timothy Lindsay was part of the Dechert team representing the Republic of Ecuador in the multi-billion-dollar Perenco v Ecuador investment treaty arbitration at ICSID, concerning alleged breaches of the France-Ecuador BIT arising out of a long-term production sharing agreement for the exploration and production of oil in Ecuador. As well as FET and expropriation claims, the dispute raised complex oil contract economics, production forecasting and damages issues. Tim Lindsay also acted for Ecuador in the parallel Burlington v Ecuador investment treaty arbitration arising from the same project.

• Investment treaty claim in relation to banking interests: Representing an Eastern European State in an investment treaty dispute brought by a foreign investor seeking damages of $150m in relation to the investor’s banking interests in that country, brought under the auspices of ICSID.

• Abyei arbitration: Representing the Sudan People’s Liberation Movement/Army (SPLM/A) in its widely publicised arbitration at the Permanent Court of Arbitration against the Government of Sudan, concerning the disputed oil-rich Abyei region in Sudan (recognised by industry peers as the 2009 arbitration award of the year).

• Advising investors: Advising investors and prospective investors (including hedge funds and distressed investors) in relation to potential investments in foreign companies/investments, including those subject to state measures and with contingent claims under investment treaties.