Deutsche Bank LIBOR case — implied terms and facility agreements

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The latest installment of the Deutsche Bank/Unitech LIBOR battle has recently played out in the High Court.

In the first round, Unitech, which had entered into loan-and-swap agreements with the bank, had been encouraged by the judge that it should be allowed to include a defence and counterclaim to the bank’s claim for outstanding sums due under the loan-and-swap based on a breach of an implied term relating to the bank’s alleged manipulation of LIBOR. The parties returned to the court for another round where Unitech and its guarantor wanted to make further amendments to clarify the nature of the implied term dealing with LIBOR manipulation.

The result was something of a legal seminar dealing with 27 issues ranging from the main point — what was the scope of an implied term relating to non-manipulation of LIBOR? — to the truly esoteric such as whether the guarantee in the loan agreement failed as an unlawful exchange contract as a result of the Bretton Woods Agreement. Some of the more interesting points are described in this briefing…

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