New case law on contractual estoppel
The doctrine of contractual estoppel looms large in cases where a counterparty to a bank alleges that the bank is liable to make good losses suffered as a result of entering into a financial transaction that has turned out to be unfavourable to the counterparty.
A formidable body of banking cases shows that parties to a transaction may agree that a particular state of affairs is to be the basis on which they are contracting, regardless of whether or not that state of affairs is true, and that such an agreement may give rise to a contractual estoppel, precluding the assertion of facts inconsistent with those that have been agreed to form the basis of the contract: see the archaeology of modern banking cases starting with Peekay (CA) and galvanised by Springwell (Gloster J/CA).
It is unsurprising then that, in response to the recent wave of complaints by counterparties to interest rate derivatives, banks have pointed to the banking documentation to show that no advice was given or representations made that could be relied on. International Swaps and Derivatives Association (ISDA) and similar bank treasury documentation confirming and governing interest rate derivatives contains standard clauses by which the parties agree that no advice is given or representation is made or can be relied on. These clauses were considered and upheld in Cassa di Risparmio (Hamblen) and Standard Chartered (also Hamblen J)…
If you are registered and logged in to the site, click on the link below to read the rest of the Outer Temple Chambers briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Outer Temple Chambers
News from The Lawyer
Briefings from Outer Temple Chambers
Claim raises questions over victims of untraced drivers.
State prosecutors achieve much of what they want by influence rather than direct control.