Ali Malek QC Born 1956; Called to the Bar 1980; QC 1996; Languages: English and French (working knowledge) E-mail: am@3vb.com

Academic

• Keble College, Oxford. MA(1978) BCL(OXON) (first class)
  

Bar

• Gray's Inn Awards: Cynthia Terry Entrance Award and The Malcolm Hilberry Award
  
• Specialising in all aspects of commercial law
  
• Queen's Counsel April 1996
  
• Assistant Recorder 1998; Recorder 2000
  
• Bencher of Gray's Inn (2003)
  
• Member of the General Council of the Bar (2005-)
  
• Chairman of the Commercial Bar Association (2007-)

Legal Directories

1. 2005: Banking and Finance (“The Fantastic Ali Malek QC was described by practitioners as “a well known banking silk” and “ a nice chap”. He acted for Rabobank ….a £500 million dispute regarding a swap action. “One of the guys you just keep seeing in this area”) ;

   2006: Sources feel that Ali Malek QC is "someone to turn to if you want to pursue a bold strategy." His "powers of lateral thinking and tactical nous" ensure that he receives frequent instructions from leading City specialists. His appearances on many large-scale banking matters have made him a "useful source of guidance" to other members of the Bar. He appeared for Paragon in a Court of Appeal case concerning lending contracts, securitisation and the Consumer Credit Act. He also advised PrimaCom in its disputes with those bankers with whom it had loan agreements.

2. 2005: Commercial Litigation (“The “outstanding” Ali Malek QC is “an extremely bright, very hard working barrister” with a “delightful manner towards clients”);
   

   2006: Ali Malek QC's "sophisticated urbanity" smooths the passage of complex disputes, and his excellence in court is undisputed.

3. 2005: Financial Services (“Definitely a name in the area” and “ceaseless toiler”….Described colourfully by one practitioner as someone who “has been around forever and knows everything”);
   

   2006: "very much a regulatory man," despite a general commercial background. …he was noted for "a practical, hands-on approach," with clients commenting that "he really mucks in."

4. 2005: Civil Fraud (“Hard working, extremely bright and with extensive experience”, his “charm in the face of both judge and clients is a disarming weapon”. Once in court, Malek is “extraordinarily quick on his feet”);
   

   2006: Positioned high in the tables, one source described Ali Malek QC as a "tender advocate who is incredibly smooth. He always has an effective strategy for the case, owing to his remarkable way of judging from the start the most effectual way to take things forward." His particular strength lies in cases involving the freezing of assets. A highly respected leader, he was recommended as being "first rate on paper and a good cerebral advocate."

5. 2005: International Arbitration (“..a practitioner who can be “depended upon for quality across the board”).

   2006: Market commentators identified Ali Malek QC of 3 Verulam Buildings as one of the "stars on the circuit." He is particularly well versed in handling LCIA and ICC disputes.

Legal 500 (2006) 4 categories:

1. Banking and Finance (“very hardworking, effective advocate”);
   
   
2. Commercial Litigation (“first-rate intellect and is tremendously approachable”…”banking litigation star”);
   
   
3. Civil Fraud (“a leader and a very able lawyer, first-rate on paper and a good cerebral advocate”);
   
   
4. Commercial Arbitration.

Legal Press

Areas of Law

Arbitration - examples:

• ICC arbitration in The Hague concerning termination of a military supply contracts and related enforcement proceedings in the Dutch courts.

• ICC arbitration in The Hague concerning termination of missile system involving 9 contracts. Dispute governed by non-national rules of law.

• ICC arbitrations in Houston and Stockholm involving oil and gas disputes in Turkmenistan.

• ICC arbitration concerning a high fashion designer and a consumer products company.

• ICC arbitration in Amsterdam concerning a joint venture set up by 2 Hollywood studies. Dispute concerned affiliation agreements and European competition law (article 81).

• ICC arbitration about boiler technology in China.

• ICSID arbitration: Enrho v Kazakhstan.

• ICSID arbitration: telecommunications dispute.

• LCIA arbitration concerning a dispute about a hotel and share warranties.

• LCIA dispute about fuel additives.

• Uncitral arbitration concerning an alleged settlement agreement.

Court

• Dardana v Yukos [2002] 2 Lloyd's Rep 326 (New York Convention. Awards against non-signatories and the approach of the court to applications for a stay pending hearings to set aside in the country of origin).

• Dardana v Yukos [2002] 2 Lloyd's Rep 261(arbitration and security for costs).

• AIG Capital v Republic of Kazakhstan [2006] 1 Lloyd's Rep 45 (ICSID arbitration/ enforcement. State Immunity Act 1982).

• Republic of Kazakhstan v Istil [2006] 2 All ER (Comm) 26 (arbitration and security for costs) .

• Republic of Kazakhstan v Istil [2006] 2 Lloyd's Rep 370 (jurisdiction of arbitrators and issue estoppel).

Arbitrator Appointments - examples:

• Arbitrator (ICC): sale of goods dispute.
  
• Arbitrator (ICC): settlement agreement subject to English/Sharia law.
  
• Arbitrator (LCIA): VAT dispute.
  
• Arbitrator (LCIA): reinsurance dispute governed by New York law.
  
• Arbitrator (ad hoc): joint venture dispute.

• Partiality of Barrister Arbitrators". Mealey's International
• Arbitration Report (Vol 15, January 2000).
  
• Speaker at an ICC Seminar (December 2001) "Arbitration and Financial Disputes".
  
• Speaker at the Practitioner Workshops in International Commercial Arbitration in June 2004 on "Finality of Arbitration Awards" organized by the British Institute of International and Comparative Law.

• Sabena Technics SA v Singapore Airlines Ltd [2003] EWHC 1318 (Comm) (misrepresentation as to ETOPs compliance).
  
  
• Kayo v Blue Wings (2005) (dispute concerning delivery of 3 airbus A330-200 aircraft).
  
  
• Lopes v Howard Kennedy (2006) (professional negligence claim against a barrister in relation to an aviation dispute). (See Professional Negligence below).
  
  
• Fraud claim relating to non-delivery of an aircraft.
  
  
• Dispute with UK aircraft manufacturer concerning anti-aircraft missile system.

• XAG [1983] 2 All ER 466 (cross-border banking dispute with the USA/England).

• Cryne v Barclays [1987] BCLC 548 (bank's rights in making demand for repayment).

• Hone v CIBC (unreported) 9 November 1990 (Privy Council) (money paid under mistake of fact).

• R v Southwark Crown Court [1990] QB 650 (judicial review. Bank duties in relation to notices under the Drug Trafficking Offences Act 1986).

• Barclays v Khaira [1992] 1 WLR 623 (bank's duties on taking security).

• Tudorgrange v Citibank [1992] Ch 53 (releases and UCTA 1977).

• Appeared for a clearing bank in the case concerning "phantom withdrawals" (1993) 2 Banking LR 211.

• Natwest v Daniel [1993] 1 WLR 1453 (circumstances in which a court can resolve disputes of fact on summary judgment applications).

• A and others [1993] QB 311 (Bank of England's powers under the Banking Act 1987).

• James v Barclays (1994) 4 Banking LR 131 (jurisdiction of the Court of Appeal to strike out appeals).

• Robertson v CIBC [1994] 1 WLR 1493 (Privy Council) (bank's duties when served with a subpoena).

• Glencore International AG v Bank of China [1996] 1 Lloyds Rep 135 (ICC 500).

• National Provincial Building Society v Lloyd [1996] 1 All ER 630 (court's power to suspend orders).

• Guinness Mahon v LEIL 4 Banking LR 185 (guarantees).

• Barclays Bank v Thomson [1997] 4 All ER 816 (undue influence).

• Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] Ch 84 (Bank of England’s powers under the Banking Act).

• Box, Brown and Jacobs v Barclays Bank [1998] Lloyds Rep Bank 185 (see Fraud below).

• Yorkshire Bank v Halls [1999] 1 All ER 879 (bank's duties to customers).

• Yorkshire Bank v Lloyds Bank [1999] Lloyds Rep Bank 191: collecting bank's duties.

• Turner v Royal Bank of Scotland [1999] Lloyds Rep Bank 231: bank's duties on giving a reference.

• Portman v Dusangh [2000] Lloyds Rep Bank 197 (unconscionable bargains).

• Montrod v Grundkotter [2002] 1 WLR 1975 (see Fraud below).

• Lloyds TSB Bank v Hayward [2002] EWCA Civ 1813 (guarantees).

• Niru Battery v Milestone [2004] 1 Lloyd's Rep 344 (see Fraud below).

• Alliance & Leicester v Slayford [2000] All ER (D) 1376 (mortgages).

• Financial Institutions Services Ltd v Negril Negril Holdings Ltd and another (Privy Council) [2004] UKPC 40 (appeal from Jamaica concerning charging of compound interest).

• AIG Capital v Kazakhstan (2005) (see Arbitration): status of central bank accounts.

Practitioners’ Book

Papers/talks

• Presented a joint paper at the International Bar Association/American Banking Association in Washington on issues concerning cross-border disputes involving banks.

• Joint paper presented at the Creaton Conference on "Banks, Fraud and Crime" entitled "Cross-Border Fraudulent Activity" (published by Lloyds of London Press in 1994; 2nd Ed. 2000).

• Speaker at the ICC Seminar on Letters of Credit (July 2001): "Special Defences to Payment".

Commercial Litigation

See sections on Aviation, Banking, Energy, Insurance / Reinsurance and Sports

Competition and Consumer Credit

• Nash and others v Paragon Finance [2002] 1 WLR 685 (meaning of extortionate credit bargains and discretionary interest rates).

• Paragon Finance plc v. Pender [2005] 1 WLR 3412 (test case on the effects of mortgage securitisation, discretionary interest rates and extortionate credit bargains).

• ICC arbitration involving Article 81 EC.

  OFT v Lloyds TSB Bank plc and others [2005] 1 All ER 843 (whether s75 Consumer Credit Act 1974 applies to overseas transactions).

• Advising a financial institution in connection with OFT investigation into default charges.

Conflict of laws (Private International Law)

• Barclays Bank v Homan [1993] BCLC 680 (anti-suit injunctions).

• EDF Mann v Haryanto (no.2) [1991] 1 Lloyds Rep 429 (anti-suit injunctions).

• Re Rafidain Bank [1992] BCLC 301 (status of embassy bank accounts).

• Bank Melli v Ispahani [1998] Lloyds Rep Bank 133 (illegality/conflict of laws).

• Royal Bank of Canada v Rabobank [2004] 1 Lloyd's Rep 471 (anti-suit injunctions).

• JP Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Comm); [2005] 2 Lloyd's Rep 665 (conflict of laws/Brussels Regulation).

• Dornoch Ltd v Mauritius Union Assurance Co Ltd [2006] EWCA Civ 389, [2006] 2 All ER (Comm) 385 (jurisdiction agreement and proper law of insurance and reinsurance contracts).

Papers/ talks

• Joint paper on worldwide injunctions in [1990] LMCLQ 88.

• British Institute of International and Comparative Law (November 1998): Speaker at workshop on "The Drafting and Enforcement of Transnational Contracts: Jurisdiction and Choice of Law".

Energy

• Oil and gas dispute in relation to Turkmenistan (see Arbitration above).

• Disputes relating to joint ventures and Kazakhstan (see Arbitration above).

• Dispute concerning Chinese power plant (see Arbitration above).

Insolvency

• Lathia v Dronsfield [1987] BCLC (Receivers' duties).

• Eastern Capital Futures [1989] BCLC 371 (trust claims in insolvencies).

• Turner v Royal Bank of Scotland [2000] BPIR 683 (application to set aside a statutory demand).

• Appeared for the liquidators of Eurobank (in the Cayman Islands) dealing with issues concerning money-laundering; the effect of criminal sanctions in the liquidation; applications for leave to bring criminal proceedings against companies in liquidation and the powers of the Attorney-General in relation to criminal proceedings.

• Attorney General of the Cayman Islands v James Cleaver and Co (as liquidators of Liberty Capital Ltd and Sun Holding Ltd) and another (Privy Council) [2006] UKPC 28, [2006] 1 WLR 2245 (power of Grand Court of the Cayman Islands to set guidelines and procedures for fixing of liquidators' remuneration).

Talk

Speaker at Insol Conference in July 2001 on Liquidations and Money Laundering

Insurance / Reinsurance

• Casson v Ostley PJ Ltd [2001] EWCA Civ 1013; [2003] BLR 147 (obligation to obtain insurance/exclusion clauses).

• Mann v Coutts [2004] 1 All ER (Comm) 1 (insurance/banking related dispute).

• Dornach v Mauritius Union (see Conflict of Laws above).

• LCIA arbitration concerning Bermuda form reinsurance policy (see Arbitration above).

Financial Services

• Eurolife Assurance Co. Ltd v FSA (26 July 2002) (Decisions nos. 1 and 2 Financial Services and Markets Tribunal) (issue of whether hearings should be in private or open court).

• Advising on a judicial review application concerning powers of the FSA to transmit information to the United States Securities and Exchange Commission.

• Several appearances before the FSA’s Regulatory and Disciplinary Committee (RDC).

• Advising on money-laundering issues in the UK, Cayman Island and Jersey.

• Dubai Financial Services Authority, member of the Financial Markets Tribunal (from 2005).

Fraud/Fiduciary duties

• Box, Brown and Jacobs v Barclays Bank [1998] Lloyds Rep Bank 185 (constructive trusts and knowing receipt).

• Bolkiah v KPMG [1999] AC 222 (the duties of accountants and whether they can act against former clients relying on information barriers/Chinese Walls).

• Young and others v Robson Rhodes [1999] 3 All ER 524 (accountancy merger conflicts).

• Halewood v Addleshaw Booth & Co. [2000] Lloyds Rep PN 298 (“Chinese Wall” case concerning solicitors).

• Dubai Aluminium Company Ltd v Salaam and Others [2002] UKHL 48; [2003] 2 AC 366 (House of Lords) (partnership; constructive trust and contribution).

• Montrod v Grundkotter [2002] 1 WLR 1975 (the scope of the fraud exception in letters of credit) .

• Niru Battery v Milestone [2004] 1 Lloyd's Rep 344 (fraud and letters of credit).

• I appeared as counsel for the Aall Foundation in the international trust litigation taking place in the Cayman Islands involving Anders Jahre. The case commenced in late 2003 (with a time estimate of 3 months) but settled.

Talks

Speaker at the Chancery Bar Association Seminar (July 2002) on the topic of "Recent developments in the law relating to dishonest assistance".

Bar Conference 2002 (September 2002): speaker at workshop on Conflicts of Interest.

Professional Negligence

• Audit negligence. Appeared for BCCI in its claims against its former auditors.

• Acted for the BMIF in claims against barristers (a wasted costs order and a trial relating aviation matters).

• Niru Battery v Milestone (see Fraud above). One of the issues related to the duties owed by inspection agencies in issuing certificates.

• Film financing claim against a firm of solicitors.

• Turner v Royal Bank of Scotland (see Banking above): the central allegation was that the bank had negligently given a reference.

• Mann v Coutts (see Insurance above): the alleged duties of a bank in negligence were considered.

• Valse v Merrill Lynch (see Banking above): management of an investment portfolio.

• Acted for the directors of a Bahamian mutual fund (MJ Select Global Ltd) in a trial that took place in The Bahamas in relation to their duties.

Sports Law

• Sepoong v Formula One Administration [2000] Lloyds Law Rep 602 (dispute concerning a grand prix venue).

• Appeared before the Boxing Board of Control.

• Acted in the litigation concerning corporate governance issues in Formula 1 (2005).

• Appeared for Renault F1 before the FIA International Court of Arbitration (2006).

Telecommunications

• Dispute concerning cable affiliation agreements in The Netherlands (see Arbitration above).

• ICSID dispute concerning telecommunications in Kazakhstan (see Arbitration above).

• Dispute concerning a Polish telecommunications company.