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 arbitration. He is recommended by Chambers & Partners (Banking & Finance: Band 4) and Legal 500 (Banking & Finance: Band 4 and Civil Fraud: Band 3). He is a member of the New York and New Zealand bars and before coming to the Bar practised New York law for four years with Davis Polk, advising on international capital markets and M&A transactions.

He acts both with and without a leader, and recently appeared as sole counsel in a five-day trial in the Commercial Court concerning close-out under the ISDA Master Agreement (2014). He appeared as junior counsel in Lomas v. Firth Rixson (2012), a leading authority on the ISDA Master Agreement, and in Berezovsky v. Abramovich (2011) and Patarkatsishvili (2012), where he was responsible for Russian law. He has particular experience with jurisdiction, choice of law and foreign law, has litigated numerous cases under Russian law as well as under French, German, Swiss, Swedish and US law, and has advised on disputes before tribunals in Singapore, Switzerland, Jersey, the BVI and the US as well as England. He also serves as arbitrator.

A former capital markets lawyer at a New York firm, who is well-versed in a variety of securities and derivative transactions.” (Chambers and Partners, 2015, banking & finance)

He is particularly well regarded for his experience in disputes concerning Russian law.” (Chambers and Partners, 2015, banking & finance)

“A must-have on your side in disputes involving Russia.” (Legal 500, 2014, banking & finance).

He’s a very impressive individual in terms of his knowledge of the law and his thoroughness. He works well with QCs providing them with the ammunition to fight cases.” (Chambers and Partners, 2015, banking & finance)

He’s solid, responsive and cerebral.” (Chambers and Partners, 2015, banking & finance)

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

Extremely bright and thorough.” (Legal 500, 2014, civil fraud)

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

Banking & finance

(Recommended by Chambers and Partners (Band 4) and Legal 500 (Band 4))

  • Lehman Brothers Special Financing v. Sal Oppenheim (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 a leading authority on the ISDA Master Agreement

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

    Junior counsel to Laurence Rabinowitz QC for the purchaser of sub-prime mortgage securities seeking restitution or damages for poor underwriting standards. The case settled.

  • 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. The case settled after the first day of trial.

  • 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.

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

    Junior counsel to Laurence Rabinowitz 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. Primary responsibility for Russian law.

  • Berezovsky v. Patarkatsishvili (2012)

    Junior counsel to Mark Hapgood QC for Mr Berezovsky in his €2 billion claim against the estate of Mr Patarkatsishvili. Primary responsibility for Russian law.

  • 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.

  • 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. The case settled prior to trial.

  • Woolf Bond Planning LLP v. Robertson (2012)

    Sole counsel for a company director defending a debt claim on the basis that the debt was owed by the company rather than the director (pro bono).

  • Freedman v. Blue Space Properties (2009)

    Sole counsel for a prospective property purchaser recovering a deposit.

  • HMRC (2008, Special Commissioners)

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

  • 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.

Civil fraud

(Recommended by Legal 500 (Band 3))

  • 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 for 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 involved eighteen parties with major pre-trial hearings on freezing orders [2006] EWHC 7 and justiciability [2006] EWHC 2374.The case settled during trial

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

    Junior counsel to David Wolfson QC for a Norwegian company challenging English jurisdiction under Articles 5 and 23 of the Lugano Convention in a claim for a negative declaration in respect of allegations in parallel Norwegian litigation.

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

    Lead counsel (with a junior) for Mauritius and Indian defendants challenging the validity of a one-sided English jurisdiction agreement.

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

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

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

    Junior counsel to David Wolfson QC for a US company enforcing a US default judgment. The Court of Appeal held that a foreign judgment claimant need not provide security for 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.

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 government contract.

  • LCIA arbitration (2014)

    Presiding arbitrator in a dispute over demurrage.

  • 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 (with a counterclaim) 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 tribunal on grounds of bias.

  • ICSID proceedings (2013)

    Advised on a potential investment treaty claim.

  • LCIA arbitration (2013)

    Advised a Singapore company on a dispute with an Australian group concerning a ship-building contract.

  • 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.

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 capital markets and mergers & acquisitions transactions. In 2000, he spent a summer with Davis Polk in New York assisting with US 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.