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Secure Capital v Credit Suisse: Difference between revisions
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{{cn}}In {{cite|Secure Capital|Credit Suisse|2017|EWCA(Civ)|1486}} | {{cn}}In {{cite|Secure Capital|Credit Suisse|2017|EWCA(Civ)|1486}} a [[bearer security]] held as a [[global note]] by a [[common depositary]] on behalf of [[Clearing system|clearing systems]] which has a [[Contracts (Rights of Third Parties) Act 1999]] provision excluding the right of the end [[noteholder]] (in the [[clearing system]]s) to sue the issuer is enforceable according to its terms. The [[governing law]] is the law in which the {{tag|contract}} is expressed to be governed and not that where the instrument happens to be situated (in this case in a clearing system in {{t|Luxembourg}}). | ||
Interesting observation re [[privity]] though: the direct custodian, who ''would'' be able to sue, would not suffer a loss because of its back-to-back custodial relationship with the client. Therefore, even if it did sue, it would not be able to prove any loss. | Interesting observation re [[privity]] though: the direct [[custodian]], who ''would'' be able to sue, would not suffer a [[loss]] because of its back-to-back custodial relationship with the client. Therefore, even if it did sue, it would not be able to prove any loss. | ||
:''56. The only justification advanced by Secure Capital is that, unless the law of the settlement system is identified as the proper law, there will be no-one able to recover substantial damages in {{t|contract}} for breach of the [[Negligent misstatement|misleading statements]] term, thus creating a [[lacuna]] and conferring immunity on Credit Suisse as the issuer. I emphasise “in {{tag|contract}}” because it is not suggested that a claim in {{t|tort}}, if sustainable, would be similarly barred.'' <br> | :''56. The only justification advanced by Secure Capital is that, unless the law of the settlement system is identified as the proper law, there will be no-one able to recover substantial damages in {{t|contract}} for breach of the [[Negligent misstatement|misleading statements]] term, thus creating a [[lacuna]] and conferring immunity on Credit Suisse as the issuer. I emphasise “in {{tag|contract}}” because it is not suggested that a claim in {{t|tort}}, if sustainable, would be similarly barred.'' <br> | ||
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{{sa}} | {{sa}} | ||
*[[https://www.bailii.org/ew/cases/EWCA/Civ/2017/1486.html Judgment transcript] | |||
*[[Privity of contract]] | *[[Privity of contract]] | ||
*[[Contracts (Rights of Third Parties) Act 1999]] | *[[Contracts (Rights of Third Parties) Act 1999]] | ||
*[[Negligent misstatement]] | *[[Negligent misstatement]] | ||
{{ref}} | |||