Click here to download the Financial services litigation 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 11 jurisdictions are covered in this report:

Australia; Brazil; China; Greece; Ireland; Korea; South Africa; Switzerland; United Arab Emirates; United Kingdom; United States

Questions

The set of questions relating to the topic of financial services litigation and answered by the guide for each jurisdiction covered include:

Nature of claims

• • What are the most common causes of action brought against banks and other financial services providers by their customers?
• • In claims for the misspelling of financial products, what types of non-contractual duties have been recognised by the court? In particular is there scope to plead that duties owed by financial institutions to the relevant regulator in your jurisdiction are also owed directly by a financial institution to its customers?
• • In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?
• • Is there an implied duty of good faith in contracts concluded between financial institutions and their customers? What is the effect of this duty on financial services litigation?
• • In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?
• • How are standard form master agreements for particular financial transactions treated?
• • Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?
• • What other restrictions apply to the freedom of financial institutions to contract?
• • What remedies are available in financial services litigation?
• • Have any particular issues arisen in financial services cases in your jurisdiction in relation to limitation defences?

Procedure

• • Do you have a specialist court or other arrangements for the hearing of financial services disputes in your jurisdiction? Are there special judges for financial cases?
• • Do any specific procedural rules apply to financial services litigation?
• • May parties agree to submit financial services disputes to arbitration?
• • Must parties initially seek to settle out of court or refer financial services disputes for alternative dispute resolution?
• • Are there any pre-action considerations specific to financial services litigation that the parties should take into account in your jurisdiction?
• • Does your jurisdiction recognise unilateral jurisdiction clauses?
• • What are the general disclosure obligations for litigants in your jurisdiction? Are banking secrecy, blocking statute or similar regimes applied in your jurisdiction? How does this affect financial services litigation?
• • Must financial institutions disclose confidential client documents during court proceedings? What procedural devices can be used to protect such documents?
• • May private parties request disclosure of personal data held by financial services institutions?
• • What data governance issues are of particular importance to financial disputes in your jurisdiction? What case management techniques have evolved to deal with data issues?

Interaction with regulatory regime

• • What powers do regulatory authorities have to bring court proceedings in your jurisdiction? In particular, what remedies may they seek?
• • Are communication between financial institutions and regulators and other regulatory materials subject to any disclosure restrictions or claims of privilege?
• • May private parties bring court proceedings against financial institutions directly for breaches of regulations?
• • In a claim by private party against a financial institution, must the institution disclose complaints made against it by other private parties?
• • Where a financial institution has agreed with a regulator to conduct a business review or redress exercise, may private parties directly enforce the terms of that review or exercise?
• • Have changes to the regulatory landscape following the financial crisis impacted financial services litigation?
• • Is there an independent complaints procedure that customers can use to complain about financial services firms without bringing court claims?
• • Is there an extrajudicial process for private individuals to recover lost assets from insolvent financial services firms? What is the limit of compensation that can be awarded without bringing court claims?
• • What are the principal challenges currently facing the financial services litigation landscape in 2019? What trends are apparent in the nature and extend of financial services litigation? Are there any other noteworthy features that are specific to financial services litigation in your jurisdiction?