Picture of  Henry Forbes Smith

Henry Forbes Smith

Barrister
Date of call: 2004 (admitted to the New York bar 2001 and New Zealand bar 1997)
Email: hsmith@oeclaw.co.uk
Fax: 020-7520-4879

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Henry Forbes Smith practices commercial litigation and international arbitration. He is recommended by Chambers & Partners (Banking & Finance) and Legal 500 (Civil Fraud). He has worked on matters in more than 30 countries and five continents, mostly involving the laws of multiple jurisdictions (often civil law countries). He is a member of the New York and New Zealand bars and practised New York law for four years as a capital markets and M&A lawyer with Davis Polk. His recent cases include Lomas v. Firth Rixson (2012), the leading authority on the construction of the ISDA Master Agreement, and Berezovsky v. Abramovich (2011) and Patarkatsishvili (2012). He recently appeared as sole counsel for Sal Oppenheim in a five-day trial in the Commercial Court concerning close-out under the ISDA Master Agreement. He also serves as arbitrator and believes in the prompt, efficient and fair resolution of disputes in accordance with the parties’ wishes.

He’s extremely intelligent, very thoughtful, hard-working, and, in a word, meticulous” (Chambers and Partners, 2014, banking & finance)

The ‘highly intelligent and dedicated’ Henry Forbes Smith is praised for his concise drafting style and his work on the recent glut of derivatives mis-selling cases.” (Chambers and Partners, 2013, banking & finance)

"An efficient drafter," Henry Forbes Smith demonstrates "exceptional legal knowledge and lateral thinking." (Chambers and Partners, 2012, banking & finance)

"assiduous and exceptionally hardworking" (Legal 500, 2011, civil fraud)

good analytical mind” (Legal 500, 2012, civil fraud)

"one of the finest legal minds of his generation" (Legal 500, 2010, civil fraud)

"a fantastic lawyer, very focused, incredibly clever, ferociously hard working and very analytical" (featured on the cover of Legal Week, 2009 as a 'future star at the bar')

 

Scope of practice

Examples of recent cases

Arbitration

As arbitrator

  • LCIA arbitration (2014)

    Arbitrator in a dispute over a mining joint venture in West Africa.

  • Ad hoc arbitration (2014)

    Sole arbitrator in a dispute over pricing changes in a contract between a government entity and a care provider.

  • LCIA arbitration (2014)

    Presiding arbitrator in a dispute over demurrage (2014).

  • LCIA arbitration (2013)

    Arbitrator in a dispute over the enforceability under Illinois law of a non-compete / deprivation provision in an employment contract in the financial sector.

  • LCIA arbitration (2011)

    Sole arbitrator in a dispute over the interpretation of a settlement agreement and shareholders’ agreement and forum selection clauses contained therein.

  • Secretary to ICC, ICDR and LCIA tribunals (2005-2007)
Arbitration

As counsel

  • SIAC arbitration (2014)

    Junior counsel to Rhodri Davies QC for a Dutch distributor in its claim against its Chinese manufacturer for breach and repudiation of a Supply Agreement.

  • LCIA arbitration (2013)

    Sole counsel for a Dutch company on its $8 million claim against a Swiss company concerning carbon emissions trading.

  • LCIA arbitration (2013)

    Provided evidence on English law to US courts in support of applications under USC 1782 for disclosure in aid of foreign arbitral proceedings.

  • UNCITRAL arbitration (2013)

    Advised (with Laurence Rabinowitz QC) on a challenge to a sitting tribunal on grounds of bias.

  • ICSID proceedings (2013)

    Advised on a potential investment treaty claim against a foreign state.

  • LCIA arbitration (2010)

    Junior counsel to Laurence Rabinowitz QC for a German company defending a €1.4 billion claim in respect of a potential investment in Russia.

  • LCIA arbitration (2010)

    Junior counsel to Michael Sullivan QC for a Russian property developer in a claim against an Austrian company for failure to finance a Moscow shopping centre.

  • ICC and LCIA arbitrations (2005-2009)

    Junior counsel to Christopher Carr QC and Neil Kitchener QC for a Tajik aluminium plant in arbitrations concerning loan contracts and alleged bribery.

Banking & finance
  • Lehman Brothers Special Financing v. Sal Oppenheim (2014, Commercial Court)

    Sole counsel for Oppenheim in a 5 day trial concerning the close-out of options under the ISDA Master Agreement.

  • Lomas v. Firth Rixson [2012] EWCA Civ 419

    Junior counsel to Mark Hapgood QC for Firth Rixson on the recoverability of Lehman’s in-the-money position on swaps under the ISDA Master Agreement. The case is the leading authority on the ISDA Master Agreement.

  • Trebuchet v. Merrrill Lynch (2012, Commercial Court)

    Junior counsel to Laurence Rabinowitz for the purchaser of sub-prime mortgage securities seeking restitution or damages.

  • Dumrul v. Standard Chartered Bank (2011, Commercial Court)

    Junior counsel to Neil Kitchener QC for a bank defending a claim by an options trader concerning option valuation and close-out.

Commercial & company
  • Berezovsky v. Abramovich [2012] EWHC 2463 (Comm)

    Junior counsel to Laurence Rabinowitzh QC for Mr Berezovsky in his €6 billion tort claim against Mr Abramovich for intimidation in respect of the disposal of Russian oil and gas interests.

  • Berezovsky v. Patarkatsishvili (2012)

    Junior counsel to Mark Hapgood QC for Mr Berezovsky in his €2 billion euro claim against the estate of Mr Patarkatsishvili and against Mr Anisimov.

  • Meinl Bank v. Atrium (2011, Jersey)

    Advised (with Anthony de Garr Robinson QC) a public company and its board on a €1.2 billion derivative action by a minority shareholder.

  • Benedetti v. Sawiris [2013] UKSC 50

    Advised (with Geoffrey Vos QC and Joe Smouha QC) an Italian businessman in the early stages of his €3 billion contract and quantum meruit claim for arranging the €12.2 billion acquisition of an Italian telecom for an Egyptian magnate.

  • 3M Security v. Infineon Technologies AB (2010, Commercial Court)

    Sole counsel for an English company seeking a declaration of non-liability to a German company for failed negotiations .

  • Global Risk v. Marsh & McLennan (2006, Commercial Court)

    Junior counsel to Laurence Rabinowitz QC for a US insurer applying to strike out a claim by a vulture fund to declaratory relief on a guarantee to which it was a stranger.

  • Royal Bank of Scotland v. Winterthur (2006, Commercial Court)

    Junior counsel to Stephen Auld QC for RBS in a £50 million warranty claim for an illegal aspect of an insurer it acquired for £1 billion.

  • HMRC (2008, Special Commissioners

    Junior counsel to Malcoln Gammie QC for HMRC in a dispute over the tax treatment of a property investment scheme.

Civil fraud
  • TNK-BP v. Beppler & Jackson Ltd [2012] EWHC 3286 (Ch)

    Junior counsel to Neil Kitchener QC for a Russian citizen accused of bribery setting aside worldwide freezing orders for material non-disclosure.

  • Weavering Capital Ltd v. Peterson [2012] EWHC 1480 (Ch)

    Junior counsel to Thomas Beazley QC for a hedge fund manager in the early stages of his defence to a $500 million claim alleging fraudulent interest rate swap trading. The case involved parallel civil and criminal proceedings.

  • Alphasteel v. Shirkhani [2009] EWHC 2153 (Comm)

    Junior counsel to Neil Kitchener QC) the Iranian director of a steel company in respect of fraud claims by the administrators of the company.

  • Tajik Aluminium Plant v. Ermatov (2005 – 2008, Comm)

    Junior counsel to Murray Rosen QC and Neil Kitchener QC for a Tajik state-owned aluminium plant in its $500 million fraud and corruption claim against its former manager and trading partner. The case was of major significance for the country of Tajikistan and was very heavy litigation involving eighteen parties with major pre-trial hearings on freezing orders [2006] EWHC 7 and justiciability [2006] EWHC 2374.

Conflict of laws & jurisdiction
  • Deutsche Bank AG v. Petromena [2013] EWHC 3065 (Comm)

    Junior counsel to David Wolfson QC for a Norwegian company contesting English jurisdiction under Articles 5 and 23 of the Lugano Convention. There were parallel proceedings in Norway.

  • Mauritius Commercial Bank v. Hestia Holdings Ltd [2013] EWHC 1328 (Comm)

    Lead counsel (with a junior) for Mauritius and Indian defendants contesting English jurisdiction on the ground that a one-sided English jurisdiction clause was invalid under Mauritius law.

  • TNK-BP v. Beppler & Jackson Ltd [2012] EWHC 3286 (Ch)

    Junior counsel to Neil Kitchener QC for a Russian citizen in a forum conveniens jurisdiction challenge to a claim alleging bribery.

  • Relational LLC v. Hodges [2011] EWCA Civ 774

    Junior counsel to David Wolfson QC for a US company enforcing (with indemnity costs) a US default judgment. The Court of Appeal held that a foreign judgment claimant need not normally provide security for the defendant’s costs.

  • Catalyst v. Lewinsohn [2010] 2 WLR 839 (Ch)

    Junior counsel to David Wolfson QC for a Luxembourg bond issuer obtaining a declaration in England of non-liability for fraud allegations in parallel Utah litigation. The case is a leading authority on lis pendens under the Jurisdiction Regulation.

  • Grovit v. De Nederlandsche Bank [2008] 1 WLR 51 (CA)

    Junior counsel to Mark Barnes QC for the Dutch central bank dismissing on grounds of state immunity a claim for libel in the performance of its regulatory and supervisory functions.

  • Extensive expertise with the application of foreign law in English courts and in international tribunals, including Russian, French, German, Dutch, Swiss, Swedish, Ukrainian, Uzbek, Taiik, Mauritius, Congolese and Indonesian law, as well as United States law and other common law jurisdictions.

DAVIS POLK & WARDWELL (2001 - 2004)

From 2001 to 2004, Henry practised New York law with Davis Polk & Wardwell in London, where he advised on the US law aspects of international capital markets and mergers & acquisitions transactions. In 2000, he spent a summer with Davis Polk in New York assisting with federal and state litigation.

  • €2.3 billion privatisation of ONGC, an Indian energy major.
  • $20 billion US medium term note shelf for RBS.
  • Initial public offering (IPO) of a reinsurance broker on the London Stock Exchange.
  • IPOs of Nordic biotech companies on Nordic stock exchanges.
  • €1.3 billion restructuring of Bulgaria's Brady Bonds.
  • Equity derivatives and convertible bonds.
  • Debt offerings by financial, energy and telecom majors.
  • Spin off by a UK pharmaceutical of a Canadian business.
  • UK water and healthcare acquisitions by US private equity.
  • US disclosure and corporate governance requirements.
  • Corruption issues in a currency swap with an African sovereign.
  • Corruption and sanction issues regarding Iran.

Other Experience

  • Seminar, Act of State, BIICL, London (2007)
  • Lecturer, Conflict of Laws, University of Otago, New Zealand (2005)
  • Lecturer, Restitution, University of East Anglia, UK (2000)
  • Philip C. Jessup International Moot Competition, Washington D.C. (1997) (representing New Zealand)
  • Chapman Tripp, Wellington, New Zealand (1995-1996; 1997)

Publications

  • "The British perspective on advocacy in international arbitration", The Art of Advocacy in International Arbitration, 2010
  • The Scope of Private International Law, PhD, University of Cambridge, 2001
  • "Enforcement of foreign mandatory rules" (2000) 2 HLJ 305
  • "Unjust enrichment in English and German law" (1997) 9 OLR 144

Education

  • Ph.D, Cambridge (2002) (W.M. Tapp Studentship; Commonwealth Scholarship), doctoral thesis on the conflict of public laws.
  • BCL, Oxford (1998), 1st Class (joint top of year) (Vinerian Scholarship; Domus & Harmsworth Senior Scholarship)
  • LLB (Hons), Otago, (1997), 1st Class (Top of law school, coming top in 12 of 14 individual subjects and second or third in the other two subjects, and gaining numerous scholarships and prizes).