Francis is frequently involved as advocate on arbitrations both under systems such as the ICC, contractual and ad hoc contractual agreements.  Arbitration work is by its nature confidential but the following details give an indication of the types of arbitration in which he becomes involved:

• ICC arbitration between major telecommunication multi-national and US equity fund: The claim related to a guarantee liability in relation to the construction and fitting out of an office development in Moscow.  Although the property and proposed tenant were in Moscow and the principal contract under which the guaranteed obligations arose was a Russian law preliminary lease agreement, the guarantee on which claims were made was governed by English law. The arbitration took place in London in 2011;
• Arbitration for the Coal Authority  : A substantial arbitration which  related to the compensation obligations in respect of land with development potential which had been the subject of opencast mining and post-opencast restoration.  The arbitrator sat with an assessor who was a commercial valuer.
• Various arbitrations for British Coal including a recent case concerning the valuation formula in an overage contract.  The case involves a complicated series of issues relating to the calculation of open market value.
• Arbitration concerning major housing developer: The dispute concerned the degree to which the developer had to inform a seller about the advisability of the seller securing a right of way over the land being sold.

Francis has  wide of experience relating to the recovery of assets fraudulently obtained.  He has acted for liquidators seeking to recover assets from directors in a number of different contexts, generally involving fraud.

For example:

• Aeroflot dispute: Francis is acting in this US$100 – 200m dispute between Aeroflot and some Swiss companies.  A group of companies were set up in Switzerland other jurisdictions to provide financing services to Aeroflot which was, at the time, 49% owner by Boris Berezovsky. Aeroflot now alleges that the agreements entered into between it and the various companies were fraudulent and used to extract substantial sums in foreign earnings from Aeroflot – a claim which is rejected.  Breaches of Russian and Swiss law are alleged.
• Emirates International Investment v Gallea : A fraud concerning a sovereign investment fund.  The allegation is that the consultancy charges were fraudulently charged (and paid).  The principal issue is whether the company should be allowed out of liquidation under BVI insolvency law to contest the issues or whether they should be dealt with in the context of the liquidation.
• MG Fabrications: major fraudulent trading claim made against Lloyds Register by the liquidators of a ship-building company. The liquidators alleged that fraudulent certificates had been issued. Francis acted for Lloyd’s Register and the liquidator’s claims were withdrawn before trial;
• BTA Bank: various BVI companies were alleged to have been used as conduits to move money stolen from the claimants.

Francis has extensive commercial litigation experience covering a wide range of areas including:

• Fund and banking litigation
• Company and business disputes
• Forex and other derivatives
• Trust disputes
• Conflicts of law disputes
• Sports disputes

He is recommended for commercial dispute resolution by Chambers & Partners who have referred to him as a “quick thinking silk on the rise”.

Some of his recent cases include:

• North Shore Ventures v Anstead Holdings & Ors ([2011] EWCA Civ 230): This case is important in establishing the law on guarantees.  It is already authority for the limitations on the duty of disclosure by a creditor to a proposed surety.  In the process of execution there have been significant judgments on whether cross-examination on assets has to be heard in private. In a judgment dated 18 January 2012, the court of Appeal has just upheld a judgment ordering the former beneficiaries of  discretionary trusts to give disclosure of documents relating to the trusts on the basis that they had sufficient control of the relevant documents.
• Camerata Property Inc v Credit Suisse [2011] EWHC 479 (Comm): This case has recently produced a Commercial Court judgment concerning structured credit products and the terms of the contracts on the basis of which advice was given by Credit Suisse.  The case is now proceedings on the allegations of unsuitable investments.
• Litigation relating to Berezovsky-related companies: Francis is currently acting for a  group of  companies registered in Switzerland, Luxembourg, Cyprus and the BVI which advised and arranged finance for Aeroflot in which  Boris Berezovsky’s held a significant  shareholding..  Aeroflot are now seeking the return of US$100 – 200m.  The companies are contesting jurisdiction on the basis of specific Swiss jurisdiction and arbitration clauses and a major hearing is due in March/April 2012. .
• Hedge fund disputes: Francis has acted for or in relation to  CPIM SCF, Thames River Hillside, Weavering, La Fayette, Bear Stearns, Matador, Torre Asset Funding and Valiance amongst others.  Further details can be found in the “Hedge funds and structured investment vehicles” section of his profile.
• Lehman Bros: Francis acted for equity funds seeking information from the administrators of Lehman Bros which held US$400m of assets as collateral for prime brokerage.
• Film financing scheme disputes: Francis was involved in the recently settled Tower dispute and is still acting in Take.  These are complex group actions involving claims  based on breach of trust, breach of contract, misrepresentation, professional negligence, faulty tax advice and execution of schemes, breach of schemes as well as regulatory aspects.
• Bermudan trust dispute: This case relates to the problems caused over decades by alleged historic and continuing defects in the appointments of trustees and protectors .
• Emirates International Investment: This case concerns an alleged  fraud committed against  a sovereign investment fund.  The allegation is that the consultancy charges were fraudulently charged (and paid).  The issue is whether the liquidation of the company should be terminated under BVI insolvency and company law.
• AMG Global v Africa Resources ([2008] EWCA Civ 1262 CA): high profile trial between representatives of Mugabe’s regime and a Zimabwean businessman concerning the rights over bearer share warrants for two English companies which owned very substantial Zimbabwean asbestos mines.  The case is important in relation to issues relating to unlawful assistance for purchase of shares under the former s151 Companies Act.
• Spreadex: various high value cases for a spread betting company called Spreadex including the Sekhon case ([2008] EWHC 1136 – the client was held 85% contributorily liable as the decision to keep positions open was driven by him and he was not inexperienced) and its claim against the Icelandic Landesbank.
• Formula 1 disputes: Francis has dealt with a number of cases for Jordan Grand Prix such as their claim against Vodafone and against Tiger Telematics.  He has also dealt with a number of disputes relating to the Force India Formula 1 team including Force India v Etihad [2010 CA], Van der Garde v Force India [2010] EWHC 2373 – an important case on termination by repudiatory breach and remediability of breaches of contract.
• BTA Bank: Francis acted in relation to claims against various BVI companies which were alleged to have been used as conduits for significant sums of money.
• Savannah Consulting v Mintley:  This was a derivative claim brought for a company in relation to the sale of an asset at an undervalue. Francis obtained a freezing order in Gibraltar and successfully resisted an attempt to strike out the claim.

Francis is recommended in this area in both Chambers & Prs and Legal 500.  High profile disputes relating to shareholder disputes and share valuations form a major part of his practice.   He also has considerable experience of hedge fund related company work (see the “Hedge fund and structured investment vehicles” section of his profile). 

Francis has in addition been involved in company proceedings in Cyprus and the Channel Islands and a complex restructuring of the assets of various international companies in order to permit distribution through a trust structure in the Cayman Islands.

Francis is and has been involved in a large number of hedge fund related disputes such as:

• Polygon Opportunities Global Fund: Francis was instructed by US lawyers and Ogiers in Cayman in relation to Polygon Opportunities Global Fund in relation to a just and equitable winding up petition which was discontinued.
• Kathrein v Camulos (2010) (1) CILR 303: this case was heard in the Cayman Islands Court of Appeal and concerned the interpretation of the articles and whether it was open to investors to petition to wind up the fund on the just and equitable basis.  Francis successfully prevented the presentation of a winding up petition. The issues involved the correct approach to redemptions in specie and the limits of just and equitable petitions in Cayman law after the Strategic Turnaround Master partnership case.

He has also acted in funds cases involving Valiance, Torre Asset Funding, Matador, CPIM SCF, Thames River Hillside, Weavering and La Fayette, further details of which can be found in the  “Hedge funds and structured investment products” section of his profile.

Some other recent examples of his cases are set out below:

• North Shore Ventures v Anstead: Although the principal matter in this case related to the disclosure obligations owed by a creditor to a guarantor it also involved  issues relating to bearer shares and new legislation immobilising bearer shares in the BVI.  There were also other issues relating to the migration of companies and reconstitution in other Caribbean jurisdictions (such as Nevis) as trustsand the nature of dissolution of Nevis Trust Foundation.
• Camber 3 PLC: This was a claim for US$24m. There was alleged breach of collateral management agreement. CPIM was said to have bought securities which were not eligible for a particular fund. Francis’ robust defence led to the case being discontinued.
• Litigation involving Berezovsky companies: Francis is currently involved in a high profile dispute between Swiss companies and Aeroflot (see the “commercial litigation” section of his profile).  He was also involved in litigation in December 2011 relating to the sale of an interest in a Russian Steel company which was the subject of litigation and in preserving the US$600m proceeds in an escrow account in London.
• Emirates International Investment [       ]: the main issue in this matter is whether an  insolvent liquidation under BVI insolvency law should be terminated in order to enable it to defend meet claims for fraudulent consultancy charges.  The case has been the subject of numerous hearings before the BVI Commercial Court and the Eastern Caribbean Court of Appeal.
• AMG v ARL: In 2008 Francis acted for ARL (a BVI company owned by a high profile Zimbabwean/South African businessman) in a dispute with AMG (which was a nominee for the government of Zimbabwe) as to the rights over bearer share warrants for two English companies which owned very substantial Zimbabwean asbestos mines.  The case turned on the true construction of the US$60,000,000 purchase agreement for the bearer shares and related security documentation.  The Government of Zimbabwe also unsuccessfully argued that the purchase agreement was void pursuant to section 151 Companies Act 1985 on the grounds of unlawful financial assistance.  Evans-Lombe J held that section 151 was not breached because any financial assistance was given by an offshore subsidiary in accordance with local law.
• Davenport v Cream Holdings [2008] EWCA Civ 1363 CA, [2009] BCC 183: in 2008 Francis acted successfully for an outgoing shareholder in relation to the company’s compulsory share-transfer provisions. The principal question was whether a valuation carried out by the company was binding on the outgoing shareholder under the company’s articles.  Francis was involved in a further hearing on a related issue which is the subject of a judgment in [2010] EWHC 3096.
• Cordaire & Prs v Bet on Sports Antiqua: the consequences of a sale which had not completed at the time the US regulator closed down Bet on Sports.
• Savannah Consulting v Mintley Investments Ltd: A derivative action brought by a shareholder in the Gibraltar courts for Canadian $12.5m.

Francis is recommended for banking and financial services by both Legal 500 and Chambers & Partners.  He also has very considerable experience of work involving capital markets and derivative products, as recognized in the licensing section of Legal 500 (see the “hedge fund and structured investment vehicle” section of his profile).

His work is mostly contentious but does include the non-contentious. Contentious work has included disputes over contracts for differences, spread bets, options and other derivatives relating to financial (and, to a lesser extent, sporting) markets. 

Notable and recent cases have included the following:

• Torre Asset Funding: This hedge fund invested in a property portfolio, the investment being by way of syndicated loan.  RBS held the top £500m layer which was secured by a credit default swap.  RBS also acted as agent for the lenders.  The allegation is that RBS should have informed the lenders that the fund was running out of cash and needed restructuring.
• Spreadex v. Barnes(2010) a £2.4m claim by a spread betting company against a debtor in which there were issues as to the debtor’s liability for an account that was not in his own name.
• Spreadex v Kemsley(2010) claim by a spread betting company for payment of c. £6.5m under a number of spread bets.  The defendant took numerous points of contractual construction as well as relying on UCTA.
• Claim against UBS: current and past directors of UBS were encouraged to put their bonuses in a tax avoidance scheme which does not work.
• Spreadex v Sekhon(2008/09) - important case dealing with FSA rules and the scope and effect of section 150 of FSMA 2000.
• Byblos International v IFX Markets Ltd [2009] EWHC 346.  Claim by a foreign exchange broker against a dealer which the broker alleged had underpaid it in relation to transactions by customers introduced under the brokerage.
• Various film financing schemes: Francis acts and has been involved in a number of cases relating to film financing schemes that failed to deliver the promised tax breaks including Take and Tower.  Important regulatory points are involved.  Tower was the subject of a recent and very significant settlement. A judgment in preliminary issues in the Take scheme is awaited.
• Camerata Property Inc v Credit Suisse [2011] EWHC 479 (Comm): This case has recently produced a Commercial Court judgment concerning structured credit products and the terms of the contract pursuant to which advice was given to purchase the products by Credit Suisse.  The case is now proceedings on the allegations of unsuitable investments.

Francis’s practice in relation to hedge funds and structured investment vehicles ensured his involvement in major disputes when the current global financial crisis first arose in 2007. This means that he has advised on and been involved in litigation relating to a range of issues which have affected funds and their managers as the crisis has developed and worsened.

In 2007 he was advising funds in relation to the power to manage redemptions generally either consensually by agreed lock-ups and variation of class rights or by imposing gates. The objective was to use the articles of association to ensure that a balance was struck between redeeming and non-redeeming investors. This involved advising on restructuring and litigation in the Grand Court in Cayman on the imposition of gates.

As the crisis after 2007 into 2008, Francis became involved in litigation in Cayman relating to the liquidation of Bear Stearns funds and conflicts of interest in service providers to funds. 

In 2008 onwards, Francis has been involved in advising funds on questions relating to powers of suspension, orderly wind-downs and powers to redeem compulsorily during suspension. He has also been involved in litigation relating to the scope of the Court’s power to wind up funds on the just and equitable basis – e.g. Camulos Partners Offshore Ltd (Court of Appeal Cayman 2010) in which he successfully appealed an order and got a winding up petition struck out and Polygon [2010] in which there was a settlement.

Francis has also been closely involved in advising on claims by and against funds’ investment managers relating to particular structured investments and fees. He has recently advised investment managers relating to the payment of management fees in the context of a fund which was heavily invested in Madoff.

Other cases he has dealt with include:

• Torre Asset Funding: A hedge fund invested in a property portfolio by way of syndicated loan.  RBS had the top US$500m layer which was securitized and protected by a credit default swap.  However, RBS also acted in a number of different capacities including as agent for the lenders.  It is alleged that RBS should have told other lenders of indications that the underlying borrower was running out of cash and needed restructuring.  The company subsequently went into administration. The provision of information in accordance with the terms of the loan documentation would have enabled the fund to avoid loss .
• Valiance: A hedge fund (A) invested in another hedge fund (B).  The case relates to the terms of the  offer memorandum and whether it failed to  disclose a structural and serious conflict of interest.  The claim relates to the losses caused to (A) by the failure to make proper disclosure of conflict in relation to a key asset held by (B).
• Matador: This dispute concerns whether there was a valid gate on redemption as a result of an investor being bound by the articles after being enticed into investing on the basis of some particular representations.  The claim is being brought within a Cayman Islands liquidation in the context of an appeal against the liquidator’s adjudication that the gate was effective.

Praised in Legal 500 for his "excellent advice", Francis Tregear has a long-established insolvency practice.  Specialising in international insolvencies, he has recently has been engaged on matters relating to Madoff, the collapse of the Icelandic banks, Lehman Brothers and Bear Stearns. 

Other recent cases include:

• Camulos Partners LLP (2010) (1) CILR 303: winding up petition in the Cayman Islands.  Leading case as to the correct approach to redemption in specie and the limits of just and equitable petitions in Cayman law after the Strategic Turnaround Master Partnership case.
• Spreadex v Landesbank: claim in the Icelandic ISU process.
• Matador: liquidation of a multi-million dollar fund in the Cayman Islands. This dispute concerns whether there was a valid gate on redemption as a result of an investor being bound by the articles after being enticed into investing on the basis of some particular representations.  The claim is being brought within a Cayman Islands liquidation in the context of an appeal against the liquidator’s adjudication that the gate was effective.  
• Emirates International Investment:A fraud concerning a sovereign investment fund.  The central allegation is that consultancy charged to EIIC were  fraudulently charged (and paid).  The principal legal issue is whether the liquidation of the company which was commenced as a voluntary liquidation by its owners and directors (and which was continued as an insolvent liquidation) should be terminated under BVI insolvency law.
• Polygon Opportunities Global Fund: Just and equitable winding up petition which was discontinued following a settlement.
• North Shore Ventures v Anstead Holdings & Ors: law relating to bearer shares, migration from the BVI to Nevis and St Kitt’s and the nature of the dissolution of a Nevis Trust Foundation.
• Kathrein v Camulos: The limits of just and equitable petitions in Cayman law.
• In re Lehman Brothers (Europe) (in administration) v. Four Private Equity Funds [2008] EWHC 269
• Take film investment scheme: This multi-party litigation has been complicated by the fact that the promoters of the Take scheme (Teather and Greenwood) were owned by Landesbanki whose insolvency delayed claims which will have to be met by insurers.

Francis has done a considerable amount of work for coal and gypsum mining companies and/or land subject to the grant of mineral rights. Recent cases have involved detailed consideration of mining leases and working rights agreements.

His cases include:

• Acting for British Coal in relation to the formula contained in a transfer of a strategic development site outside Leeds. The contract contained an overage clause.  The developers  failed to develop the land blaming the economic crisis and the question turns on development value and the proper interpretation of the contract. . The case involves a complicated series of issues relating to open market value, deductions to be made and different dispute resolution clauses (expert determination and arbitration) in the same contract for different issues.
• Acting for Persimmon Homes in an Arbitration seeking rectification for unilateral and mutual mistake of a contract for a development site to provide for a right of way to part of the retained land.  It was alleged that Persimmon should have advised the vendor that its solicitors had failed to include the necessary provision in the final documentation. The claim was rejected .
• Acted successfully for the Coal Authority in an arbitration relating to a terminal payment compensation clause following opencast coal operations on land with very valuable development potential. Involved 3 week hearing with evidence from valuation experts, geo technical engineers, development consultants and development layout experts and quantity surveyors.
• Successfully represented UK Coal in litigation relating to development land swap agreement following opencast coaling operations in which the issues were estoppels, rectification, mutual and unilateral mistake
• Advising the Coal Authority in relation to the validity of a restrictive covenant limiting density of development of land for housing under which there were former mine workings.Advising the Coal Authority in relation to liability for damage caused by former mine workings in Wales.
• Hallam Land Management Ltd -v- RJB Mining (UK) Ltd & Anor [2002] 24 EG 146 (CS) Court of Appeal : A condition of an option agreement for the acquisition of some 45 acres of developable land that provided that the option was exercisable on the submission of a planning application for development of "the property" was not satisfied where the application as submitted, although relating to the property as a whole, provided for 2.5 acres of office development and 42.5 acres of open space.
• Advised Manchester City Council in relation to restrictive covenants relating to development land in respect of which there had been historic mining operations.

Francis is a very experienced chancery practitioner.  Recommended by Chambers & Prs for his traditional chancery practice, his work is largely international in nature.

Recent cases include:

• Bermuda Trust Litigation: This case involves a large group of high value Bermuda Trust and important questions relating to appointment of trustees and protectors.  The allegation that the trustees and/or protectors were invalidly  appointed has led to a major problems in the administration and constitution of the Trust amd the effectiveness of steps taken within the Trust .
• Guernsey trust dispute: The dispute in this case revolves around whether an employee benefit trust which was capable of being set aside on the basis of mistakes made in its establishment .
• Film finance tax shelter schemes: Francis is involved for large groups of investors in litigation involving film finance tax shelter schemes in which a critical issue is whether investors’ money was held by the scheme promoters on the basis of a purpose trust giving rise to obligations to account in addition to liability for misstatement and negligence.  A judgment is awaited in relation to certain preliminary issues in this case.
• Hutcheson: Guernsey trust involved in a dispute over diversification of investments.
• Draper Family settlements: dispute over diversification of Guernsey trust assets.