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Practice Summary

Henry Forbes Smith practices international commercial litigation and arbitration. He is recommended by Chambers & Partners (Banking and Finance) and Legal 500 (Banking and Finance and Civil Fraud). Henry is also admitted in New Zealand (1997) and New York (2001), and practised New York law with Davis Polk before coming to the bar in 2005. He acted in Lomas, the leading case on the ISDA Master Agreement. Henry has a doctorate in the conflict of laws and is often instructed specifically to advise on jurisdiction or on choice of law and the presentation of foreign law. He has been responsible for the presentation of Russian law in many of the major Russian cases in recent years, including Tajik Aluminium and Berezovsky v. Abramovich. Henry also has a substantial arbitration practice, including under LCIA, ICC, SIAC, ICDR, UNCITRAL rules. He also sits arbitrator.

"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 of the bar’).

He is very intellectually capable and very hard working.” (Chambers and Partners, 2018)

He is a great cross-examiner and a very clever guy.” (Chambers and Partners, 2017)

His attention to detail is extraordinary and his written work is flawless” (Legal 500, 2017)

inventive, prepared to run difficult arguments” (Chambers & Partners, 2016).

Digests large volumes of documents very quickly to identify areas of relevance” (Legal 500, 2017)

He's excellent on questions of jurisdiction” (Chambers and Partners, 2016)

A first-class draftsman and analyst when it comes to complex jurisdiction points” (Legal 500, 2015)

He’s solid, responsive and cerebral.” (Chambers and Partners, 2015, 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 is particularly well regarded for his experience in disputes concerning Russian law.” (Chambers and Partners, 2015)

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

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

Extremely bright and thorough” (Legal 500, 2014, Fraud: Civil)

highly intelligent and dedicated” (Chambers and Partners, 2013, Banking & Finance)

"exceptional legal knowledge and lateral thinking." (Chambers and Partners, 2012)

assiduous and exceptionally hardworking." (Legal 500, 2011, Fraud: Civil)

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

 

EXAMPLES OF RECENT CASES

  • Banking and Financial Services

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    Solid junior with a banking practice informed, in part, by his former career as a capital markets lawyer in New York at US firm Davis Polk. He has a particular interest in cases dealing with securities, options trading and derivatives (Chambers and Partners, 2017, Banking & Finance)

    Regularly sought after for representation on complex derivative and securities litigation thanks to his in-depth experience in capital markets. He is well versed in the structure of the ISDA Master Agreement and often utilises his knowledge in relation to the close-out of transactions.  "He's inventive, prepared to run difficult arguments, and his knowledge of that area of the law is encyclopaedic”. (Chambers and Partners, 2016, Banking & Finance)

    “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)

    “A first-class draftsman and analyst when it comes to complex jurisdiction points and ISDA matter” (Legal 500, 2015, Banking & Finance)

    A former capital markets attorney, he has substantial expertise in securities and derivatives transactions. He has been led by prominent banking silks in major financial litigation (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)

    • Fondazione Enasarco v. Lehman Brothers Finance SA (2016)
      For Lehman Brothers (with David Wolfson QC) on a proposed appeal against a judgment concerning the timing of valuation of closeout under the ISDA Master Agreement.
    • Lehman Brothers Finance SA v. Sal Oppenheim & Cie [2014] EWHC 2627 (Comm)
      Sole counsel for a German bank in a 5 day trial concerning the close-out of options under the ISDA Master Agreement.
    • Lomas v. Firth Rixson [2012] EWCA Civ 419, [2012] 2 Lloyds Rep 548
      For a US private equity firm (with Mark Hapgood QC) on the recoverability by an insolvent party of its in-the-money position on swaps. The case is the leading authority on the ISDA Master Agreement.
    • Trebuchet v. Merrrill Lynch (Commercial Court)
      For a purchaser of sub-prime mortgage securities (with Laurence Rabinowitz QC) in a £20m restitution or damages claim for poor underwriting standards.
    • Dumrul v. Standard Chartered Bank (Commercial Court)
      For the defendant bank (with Neil Kitchener QC) in a claim by an options trader concerning option valuation and close-out.
    • Global Risk v. Marsh & McLennan (Commercial Court)
      For a US insurer (with Laurence Rabinowitz QC) applying to strike out a claim by a vulture fund to declaratory relief on a guarantee to which it was a stranger.
  • Commercial Dispute Resolution

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    • LCIA arbitration (2017)
      For a Russian party (with Alain Choo-Choy QC) claiming against an Israeli party that very substantial sums were not due under a settlement agreement.
    • Gerald Metals SA v. Timis [2017]
      For Timis Corporation (with Neil Kitchener QC) in an unlawful means conspiracy claim arising out of West African mining investments.
    • Palmerston Hotels & Resorts BV v. Brocket Hall (UK) Ltd [2016] EWHC 2018 (Comm)
      For the Chinese-backed owners (with Anthony de Garr Robinson QC) of a historic estate and golf club in a dispute with a Dutch company and its German owner on an alleged management contract.
    • SIAC arbitration (2014-2015)
      For a Dutch distributor (with Rhodri Davies QC) in a dispute with its Chinese manufacturer under a Supply Agreement.
    • Berezovsky v. Abramovich [2012] EWHC 2463 (Comm)
      For Mr Berezovsky (with Laurence Rabinowitz QC) in his €6 billion tort claim against Mr Abramovich for intimidation
    • Berezovsky v. Patarkatsishvili (Chancery, 2012)
      For Mr Berezovsky (with Mark Hapgood QC) in his €2 billion claim against the estate of Mr Patarkatsishvili.
    • 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).
    • Meinl Bank v. Atrium (Jersey, 2011)
      For a Jersey public company and its board (with Anthony de Garr Robinson QC) on a €1.2 billion derivative action.
    • 3M Security v. Infineon Technologies AB (Comm, 2011)
      Sole counsel for an English company seeking a declaration of non-liability to a German company for failed negotiations.
    • 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 (Comm)
      For the claimant bank (with Stephen Auld QC) RBS in a £50 million warranty claim.
  • Civil Fraud

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    Recommended by Legal 500, Henry Forbes Smith has a substantial civil fraud practice, often involving banking, financial, and multijurisdictional matters.

    Highly experienced in banking and fraud related cases” (Legal 500, 2015, Fraud: Civil)

    Extremely bright and thorough” (Legal 500, 2014, Fraud: Civil)

    assiduous and exceptionally hardworking." (Legal 500, 2011, Fraud: Civil)

    good analytical mind.” (Legal 500, 2012, Fraud: Civil)

    • Gerald Metals SA v. Timis (2017) (Comm)
      For Timis Corporation (with Neil Kitchener QC) in an unlawful means conspiracy claim arising out of West African mining investments.
    • Premier League Football Club v. Former Director (2015-2016)
      Sole counsel for the former director of a premier league football club defending fraud allegations. Claims were threatened in England and then pursued in Hong Kong. The case settled.
    • Swiss attachment proceedings (2015)
      Advised on the presentation of Russian law to Swiss courts seeking release of attached assets.
    • Weavering Capital Ltd v. Peterson (Chancery)
      Advised a former hedge fund manager (with Thomas Beazley QC) in the early stages of his defence to $500 million claims of fraudulent swap trading.
    • Alphasteel v. Shirkhani (Comm, 2009-2010)
      For an Iranian director (with Neil Kitchener QC) of an English steel company defending fraud claims against him involving documentary credits.
    • Tajik Aluminium Plant v. Ermatov (Comm, 2005-2008), [2006] EWHC 7, [2006] EWHC 2374
      For the Tajik Aluminium Plant (with Murray Rosen QC and others) throughout its very heavy $500 million fraud claim against its former manager and trading partner, with counterclaims and related arbitrations. The case was of major significance for the country of Tajikistan and involved eighteen parties with major pre-trial hearings on freezing orders and justiciability.
  • Russian and CIS Litigation

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    Henry Forbes Smith has been involved with most of the major Russian litigation over the past decade. He is frequently instructed to advise on the presentation of Russian law to western courts and arbitral tribunals, in England and elsewhere.

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

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

    • Swiss attachment proceedings (2015)
      Advised on the presentation of Russian law to Swiss courts seeking release of attached assets.
    • TNK-BP v. Beppler & Jackson Ltd [2012] EWHC 3286 (Ch)
      For a Russian businessman (with Neil Kitchener QC) challenging jurisdiction over a bribery claim. Primary responsibility for Russian law.
    • Berezovsky v. Abramovich [2012] EWHC 2463 (Commercial Court)
      For Mr Berezovsky (with Laurence Rabinowitz QC and others) in his €6 billion tort claim against Mr Abramovich for intimidation. Primary responsibility for Russian law.
    • Berezovsky v. Patarkatsishvili (Chancery)
      For Mr Berezovsky (with Mark Hapgood QC and others) in his €2 billion claim against the estate of Mr Patarkatsishvili. Primary responsibility for Russian law.
    • LCIA arbitration (2010)
      For a German company (with Laurence Rabinowitz QC) defending a €1.4 billion claim made following failed negotiations for a potential investment in Russia. Primary responsibility for Russian law.
    • Tajik Aluminium Plant v. Ermatov (2005-2008 Commercial Court)
      For the Tajik Aluminium Plant (with Murray Rosen QC and others) in its $500 million fraud claim against its former manager and trading partner, with a substantial counterclaim. Primary responsibility for Tajik and Russian law.
  • Jurisdiction, Conflict of Laws and State Immunity

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    Henry Forbes Smith is regularly instructed to advise on jurisdiction, choice of law, the enforcement of judgments (including anti-suit injunctions), and the presentation of foreign law, both in private law and public law matters, including state immunity. He has a PhD on the Conflict of Public Laws.

    He's excellent on questions of jurisdiction” (Chambers and Partners, 2016)

    A first-class draftsman and analyst when it comes to complex jurisdiction points” (Legal 500, 2015)

    • Microsoft Mobile Oy v. Sony Europe Ltd [2017] EWHC 374 (Ch), [2017] 2 Lloyds Rep 119
      For Samsung (with Daniel Beard QC) in its jurisdiction challenge against global competition law claims.
    • Serious Fraud Office v. Saleh [2017] EWCA Civ 18, [2017] Lloyds Rep FC 177
      For the Serious Fraud Office (with Andrew Mitchell QC) in an appeal concerning whether a Canadian judgment precluded English forfeiture proceedings on grounds of res judicata.
    • Heraeus Medical GmbH v. Biomet Healthcare Ltd [2016] EWHC 1369 (Ch)
      For foreign defendants (with Camilla Bingham QC) seeking to set aside service on them on the ground that they were already being sued in Germany.
    • Deutsche Bank AG v. Petromena [2015] EWCA 226, [2015] 2 Lloyds Rep 15
      For a Norwegian company (with David Wolfson QC below and Alain Choo Choy QC on appeal), challenging English jurisdiction where there was parallel Norwegian litigation. The case is authority both on submission to the jurisdiction and on the scope of jurisdiction agreements.
    • Mauritius Commercial Bank v. Hestia Holdings Ltd [2013] EWHC 1328 (Comm), [2013] 2 Lloyds Rep 121
      For the defendants (as lead counsel) challenging the validity of a one-sided English jurisdiction agreement. Issues of Mauritian and French law arose.
    • TNK-BP v. Beppler & Jackson Ltd [2012] EWHC 3286 (Ch)
      For a Russian citizen (with Neil Kitchener QC) challenging jurisdiction over a bribery claim.
    • Relational LLC v. Hodges [2011] EWCA Civ 774 (Comm)
      For a US company (with David Wolfson QC) enforcing a US default judgment, including by obtaining an anti-suit injunction. The Court of Appeal held that a foreign judgment claimant need not provide security for costs.
    • Catalyst v. Lewinsohn [2010] Ch 18
      For a Luxembourg bond issuer (with David Wolfson QC) 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 EU Jurisdiction Regulation.
    • Grovit v. De Nederlandsche Bank [2008] 1 WLR 51 (CA)
      For the Dutch central bank (with Mark Barnes QC) dismissing on grounds of state immunity a claim for libel in the performance of its regulatory and supervisory functions.
    • Tajik Aluminium Plant v. Ermatov [2006] EWHC 2374
      For the Tajik Aluminium Plant (with Murray Rosen QC) applying on grounds of act of state and sovereign immunity to strike out a counterclaim dependent on allegations against the Tajik President.
  • Arbitration (As Counsel)

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    • LCIA arbitration (2017)
      For a Russian party (with Alain Choo-Choy QC) claiming against an Israeli party that very substantial sums were not due under a settlement agreement.
    • LCIA arbitration, including section 67 challenge (2016-2017)
      Sole counsel for a Malta-based lender claiming repayment of loans from South African-based borrowers and guarantors. Issues of actual and apparent authority arose in the arbitration and on a section 67 jurisdiction challenge.
    • LCIA arbitration [2016] EWHC 2018 (Comm)
      For the Chinese-backed owners (with Anthony de Garr Robinson QC) of a historic estate and golf club in a dispute with a Dutch company and its German owner on an alleged management contract. Related section 44 proceedings concerning an injunction in aid of arbitration.
    • SIAC arbitration (2014-2015)
      For a Dutch distributor (with Rhodri Davies QC) in a dispute with its Chinese manufacturer under a Supply Agreement.
    • LCIA arbitration (2013)
      Sole counsel for a Dutch company on a 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.
    • LCIA arbitration (2013)
      Advised a Singapore company on a dispute with an Australian group concerning a ship-building contract.
    • LCIA arbitration (2010)
      For a German company (with Laurence Rabinowitz QC and others) defending a €1.4 billion claim made following failed negotiations for a potential investment in Russia.
    • LCIA arbitration (2010)
      For a Russian property developer (with Michael Sullivan QC) in a claim against an Austrian company for failure to finance a Moscow shopping centre.
    • ICC and LCIA arbitrations (2005-2009) 
      For the Tajik aluminium plant (with Christopher Carr QC and Neil Kitchener QC) in LCIA and ICC arbitrations defending claims concerning loan contracts and alleged bribery.
  • Arbitration (As Arbitrator)

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    • LCIA arbitration (2016)
      Arbitrator in a dispute between Dutch and Kazakh parties over a tax indemnity.
    • LCIA arbitration (2015)
      Arbitrator in a dispute between Chinese and African parties 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 between a US company and a former employee over the enforceability of a non-compete / deprivation provision in an employment contract.
    • LCIA arbitration (2011)
      Sole arbitrator in a dispute between English and Hong Kong parties over the interpretation of a settlement agreement and shareholders’ agreement.
    • Secretary to ICC, ICDR and LCIA tribunals (2005-2007)
      Secretary to various ICC, ICDR and LCIA tribunals in international commercial disputes.

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, top in 12 of 14 classes)