Simon Fawell

Banking and structured finance disputes

• Representing an operator of global primary and secondary market platforms for alternative investments in a multi-million GBP claim against a specialist property investment company concerning a structured commercial real-estate finance product relating to major UK real estate projects.
• Representing Fondazione Enasarco in a claim against Lehman Brothers concerning the calculation of loss under the 1992 ISDA Master Agreement. Successfully obtained an English High Court judgment of approximately USD 61m. The case has produced two substantive judgments which are considered two of the leading cases on the calculation of Loss under the 1992 ISDA Master Agreement. Continued representation of client with regard to related proceedings before the Zurich bankruptcy court (in conjunction with Swiss counsel).
• Representing an Italian entity on a pan-European enforcement strategy with regard to a book of loans valued at several hundred million EUR. This matter has given rise to proceedings before the English courts in which directions are sought for the effective winding up of an Italian real estate fund.
• Representing Credit Suisse Asset Management LLC in litigation concerning the interest entitlement of Class X notes in a non-performing CMBS transaction.
• Advising numerous global entities on disputes with the various Lehman Brothers estates on a range of disputes concerning the termination of derivatives transactions.
• Representing a US rail financier in proceedings under the LCIA international arbitration rules concerning a multi-million GBP right to share in the profits from a rail financing transaction. This case concerned complex contractual arrangements and allegations that the relevant contractual provisions amounted to an unenforceable agreement to agree.
• Representing Perpetual Trustee Company Limited and a number of other entities in the so-called “flip-clause” litigation concerning the operation of certain waterfall clauses in structured note transactions.

Cyber disputes

• Advising a well-known US investment bank on its response to a cyber breach at its UK branch which potentially resulted in the compromise of market sensitive data relating to M&A transactions.
• Advising a medical technology company client on all aspects of its global response to a cybersecurity breach which resulted in the compromise of sensitive personal data.
• Advising a US domiciled clothing company on its response to a cyber security breach potentially affecting EU-based customers.
• Advising a US investment trust company on its strategy for responding to personal information requests under the UK Data Protection Act.

Insolvency

• Representing a US private equity group in a series of complex disputes with the total value of EUR 20m arising out of investments made in the healthcare industry and involving claims under an SPA, challenges to the appointment of a receiver and issues of confidentiality breaches.
• Representing a private European renewable retail energy company in a GBP 10m dispute brought by a leading insurer relating to the company’s liquidation in the UK and involving complex cross-border insolvency issues.
• Representing an Italian entity on a pan-European enforcement strategy with regard to a book of loans valued at several hundred million EUR. This matter has given rise to proceedings before the English courts in which directions are sought for the effective winding up of an Italian real estate fund.

Insurance and Re-insurance disputes

• Representing a leading European motor insurance company in a GBP 60m dispute with a market-leading broker concerning the misuse of confidential information.
• Representing insurers in a relation to a public and hard-fought USD 45m dispute between an Asia-based global commodities company and an African-Asian conglomerate in relation to a metal fraud. The dispute involved policy wording issues, business interruption issues and interim measures.
• Representing the owners of a luxury yacht in a EUR 6m dispute with a leading European insurance company in a coverage dispute concerning the importance of a vessel being “in Class” at the time the insurance policy was incepted and the effect of the COVID pandemic on the classification process.
• Representing Federal-Mogul Ltd in English High Court proceedings concerning the operation of insurance and reinsurance policies providing GBP 500m of cover for asbestos liabilities following Federal Mogul’s entry into and emergence from US Chapter 11 bankruptcy proceedings.

Other commercial disputes

• Representing Société Générale, a global investment bank, in the English Court defending declaratory proceedings brought by Clifford Chance following Société Générale’s EUR 500m professional negligence claim for alleged mishandling of a dispute with Turkish jewellers, Goldas Kuyumculuk Sanayi Ithalat Ihracat AS, and other companies in the same group.
• Representing a well-known litigation funding advisory company in High Court proceedings against the estate of a borrower concerning the recovery of a GBP 15m loan granted for the purpose of funding an investment treaty arbitration against a country in the MENA region. This case raises novel questions regarding funding agreements with individuals.
• Advising a US alcoholic drinks producer on regulatory issues relevant to a major UK product launch, including successfully representing the client before the Portman Group Independent Complaints Panel.
• Advising a global conglomerate in respect of a major infrastructure dispute in the energy sector subject to ICC arbitration and a related investment treaty claim.
• Advising a major oil and gas supplier on multi-billion USD arbitration proceedings concerning price review clauses in an LNG contract. Case concerned, among other issues, assertions that the relevant review clause was unenforceable as an agreement to agree.
• Advising on contentious issues concerning the restructuring of an EM energy company and related UK Schemes of Arrangements.
• Advising on contentious issues concerning the restructuring of a structured product for the financing of renewables within the EU.
• Advising two directors of multiple group companies within the corporate structure of a property business with regard to the liquidator investigations into pre-liquidation conduct.
• Advising Formula 1’s governing body, the FIA, on a number of contentious issues, including the McLaren “spygate” investigation; the investigation into allegations concerning the private conduct of its then president, Max Moseley; and the regulatory hearing concerning use of diffusers of a particular size.
• Advising a Hong Kong/London based PE fund in multi-jurisdictional proceedings concerning the categorisation of investment moneys and alleged fraud/misappropriation of assets.