How is a financial institution answerable for ultra-state-of-the-art investments?

Introduction?

Banks can be divided into the following sectors, based on the clientele served and the products and services provided: (1) retail banks (including commercial banks), (2) cooperative banks, (3) investment banks, (4) specialised banks and (5) central banks. The nature of the banks might signalise the services offered by them.?

Retail banks offer standard consumer services such as withdrawal, deposits, account holding, and mortgages[1] . Those services are subjected to terms and conditions of the contract, and statutory rules, specifically to the Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contract Regulations 1999. They might be governed by the Banking Code, which sets standards for banks, building society and other banking services providers. The British Bankers' Association and the Building Societies Association issue these private rules.?

The customer deems to receive considerable protection from these rules. The relationship between banker and consumer considers most of the principles in the Unfair Terms in Consumer Contract Regulations. The term "fairness" is intimately connected to equity principles, which is an open door for the influence of public policy. The baking contract cannot impose on the consumer clauses that might reveal as abusive under regulations. Thus, the Courts can intervene in the agreement to rectify or cancel contractual clauses to protect the consumer's right under the statutory rules.??

This is the rule for commercial bank transactions. But it is not the rule for sophisticated transactions made by the other types of banks.?

In the?JP Morgan Chase Bank v Springwell Navigation (2008), the issue was whether the bank had a duty of care. Also, was there a discussion about any 'willful misconduct'.?The Springwell line of cases[2] ?goes beyond the consumer relationship with retail banks. The services provided in this case are particular. SN invested heavily in certain Russian bonds. However, the Russian economy was in a severe crisis, resulting in loss being suffered. Then it can be stated that the case relates to a complex selling of financial products to a sophisticated client[3] .?

The case deems notable in that it confirms the English Courts' reluctance to intervene between sophisticated contracting parties, such as a bank and its corporate client[4] . The bank obligation in this context is considerable more independent from the principles of equity law surrounding the common Law and more release from public policies.?

As a result, the contractual clauses might sound absolute to form the Law between the parties. It gives significant weight to the parties' ability to regulate their affairs by contract and with a minor degree of interference from public policies[5] .?

The services provided in this kind of relationship are based on agreements in which the expectation for extraordinary gains is high, and the conscience about the high risks of loss are understandable (which, conversely, might not occur in retail banking service contracts).??

The Springwell judgment does not contain any new law. Still, it provides a valuable viewpoint of the current state of English Law in complex financial claims involving obligations of banks in a bank-client relationship for the specialised services they offer.?

This case study will provide the essential key to demonstrating that bankers' obligations in the services they offer to sophisticated clients shall be scrutinised rather than increased. It critically analyses whether banks should be subjected to more outstanding legal commitments in their customers' complex financial services.?

It will limit the approach of the work on the sophisticated services provided by specific banks. It aims to provide an in-depth understanding of the theme proposed and the related issues that arise in the judgment of the cases. The services focused on in this paper are those subjected to specific agreements. This paper is divided into eight sections.?

The Line of Cases

Springwell's claims against Chase bank were wide-ranging. However, the main claims were based on fundamental breach of contract, negligence, breach of fiduciary duty, negligent misstatement and misrepresentation.?

Apart from the breach of contract claim, those other allegations referred to purported implied obligations that Springwell claimed against Chase Bank. Also, Springwell made several related claims arising out of Chase's conduct in the weeks following the Russian default in August 1998, specifically, that imputation that Chase failed to exercise options available to it under the terms of the "Notes" and failed to obtain value from the forward currency transactions linked to the "Notes".?

This paper is interested in the line of claims that treated the core issue about the obligation of the banker's service under the relationship banker-customer. The Commercial Court decided on the former claims on May 27th 2008. The latter claims were decided on July 25th 2008. The Court of Appeal upheld both judgements in a single decision on November 1st 2010. Other claims related to Springwell and Chase Bank tackling procedure matters. Thus, this paper is going to be focused on the study of the former line of Springwell's cases: [2008] EWHC 1186 (Comm); [2008] EWHC 1793 (Comm); [2010] EWCA Civ 1221.?

Other cases treated similar issues[6] . They will be considered in this paper insofar relevant for tackling the proposed sections.?

The starting point analysis of banker obligation and their liability in tort for economic loss is the well-known case in?Hedley Byre & Co Ltd v Heller & Partner Ltd[7] , as more recently examined and explained in Commissioners for?Customs & Excise v. Barclays Bank plc[8] .?

They will, insofar necessary, compose the analysis proposed by this paper.?

Nature of the facilities (services)

Several of the services offered in the Springwell case were related to the delivery and management of financial facilities[9] . They were part of a portfolio[10] ?of debt instruments, including "GKO-linked notes", derivative instruments referenced to bonds, and the services available to attend to the client's intentions.?

It is vital to start arguing about the nature of the financial facilities to measure whether banks should have more obligations to their clients. These facilities are international financial transactions related to the term international debt finance. These are exceptional (premium) products (services) offered to outstanding bank clients.?

Financial facilities (services and products) arrangements are based on an expectation of profits and the allocation of risks of losses.?

According to Ulrich Beck, the social production of wealth in modern society is systematically accompanied by the social production of risks[11] . And the reason behind the interest in that kind of agreement might be based on the economic system for means of production.?

The result of that arrangement is that the more the chances of winning vast amounts of capital might be, the more risks of losing an individual's assets might be: greater expectations and more significant risks.?

Thus, it could be stated that financial transactions comprise one or more positions, on which the effect of a post is to transfer risk from one person to another[12] . The risk allocation is in the nature of financial facilities[13] . The banker and the customer who seek these arrangements might consider the system based on where it is found.??

Whereas the regulation of highways, airways, medicine, construction and consumer products and services set compulsory standards intended to separate the population from unacceptable risks, the style of financial regulation is different[14] : any deal, however ruinous, is permitted and enforced, provided that the loser entered into it with informed consent.?

The commercial purpose of those instruments is the freedom of the parties to agree upon the allocation of risks of loss in light of setting on them the potential gaining. This understanding is acceptable by legal systems to permit the functioning of financial facilities[15] .?

The reason behind that acceptance might be that strictly statutory controlling measures upon the risk allocation, for instance, could infringe the commercial purpose of those instruments. This is because of the lack of liberty in agreeing on the allocation of losses (even though it appears to be ruinous) could undermine the interest of commercialising those instruments.?

One direct implication of this understanding is bankers' obligations to sophisticated clients for their services. Springwell's judicial case might be a notable example of that. The products and services that Chase bank sold to Springwell seem to be included in that category of facilities.?

In that context, the parties had enhanced legal liberty for setting the applicable rules to the contract for their financial facilities, which in case signified that Springwell, the acquirer of the service, assuming in light of potential gains to hold a higher degree of risks of loss (and suffered those losses) for the services offered by Chase Bank.

The Obligations

According to Black's Law Dictionary[16] , an obligation is a legal duty to do or not do something. Statutory Law, case law, contract, promise or morality might impose duties. The responsibility under a banker-customer relationship might be settled by arrangement, and also it might be implied by Law. The 'duties' discussed in this paper are those related to the contract of financial facilities and those imposed by Law. The discussion of duty relates to the discussion of liability, which means the state is legally responsible for a commitment (an obligation)[17] . For assessing the banker's responsibility, it sounds reasonable to evaluate the degree of liability banks currently hold.?

The degree of liability held by a bank will mainly depend on the contract, which governs the banker-customer relationship. However, three themes might emerge here. They are bankers' duty of care, fiduciary duty, and misrepresentation[18] .?

In determining those features requested in Springwell's case, the Court analysed the circumstances surrounding the relationship between banks and customers. First concerning the quality of the contracting parts involved; Second, considering the impact of exclusion clauses on liability. And thirdly, it considered the potential for overlap with the conduct of business regulation.?

These issues, which pertain to the analysis of bankers' obligations over the services (products) they offer, will be analysed in the paragraphs below.??

The character of the customer?

The Court of Appeal in Springwell's line of cases assessed some of the obligations in services the bank offers to their client depending on the customer's financial and technical abilities.?

The Court of Justice valued the customer's specific standard as the vital element for measuring the bank's civil liability in the particular case. It considered that the sophisticated quality of the claimant was one of the substantial elements for discharging the banker from liability on claims of misrepresentation, a duty to care and tort.??

In sum, the view of the Court was that sophisticated clients such as Springwell, whose records showed their ability to deal with complex financial facilities, were concise grounds for considering them conscious before the agreement they made with the bank and consequently for rebutting, for instance, the allegation of the ineffectiveness of contract disclaimers.?

The reason for the Court's decision was that Springwell was considered equally qualified to stand before the bank. They have sufficient ability to be conscious of what they agree.?

Disclaimers (Exclusion clauses)

The disclaimers expressly provided in the contract are fundamental for dosing the extent of obligation banks take on the services they offer to their clients. They might be usual in a contract which involves vast investment risks[19] .?

Specifically to the investment services provided in the Springwell case, the Court of Appeal revelled that the instrument of contract contained a significant number of disclaimers in light of limiting the banker's liability over the management of the investment facilities.?

Although the bank was the medium between the owner of the investment and the facility itself, it has built (and not assumed obligation) a comfortable position regarding their related commitments[20] .?

The bank (arranger) limited his statutory liability and ceased occasionally implied obligations on the standard relationship banker-customer. The terms describing, restricting and limiting Chase's duties were called the "Relevant Provisions"?[21] . They are deemed to consciously alter the banks' obligations upon the services offered to its customer, restraining them.?

These disclaimers clauses deem substantial to the result upon the liability held by banks. As the Court held it, Springwell made its own decision to buy the assets independently and without relying on Chase and did not expect Chase to be responsible for any close relation (e.g. advisory). The obligation of Chase was extremely limited in the relationship banker-investor.?

A contract restricting clause (or disclaimers) might deal with the extension of the excluded losses, their validity upon the common Law, their consistency with the statutory rules, their charge of reasonableness, and at least if something is revealing capable of discharging them, such as mistake or immoral behaviour of the party contracting.?

This approach given by the Law demonstrates that banks generally are duly subjected to obligations. And the intention of the parties is the element that may change this trend.?

The exclusion clauses in complex financial services (e.g. Selling and delivering security, exchange of related payments, etc.) offered by Bankers to sophisticated clients sound reasonable instruments to be used.?

The party client here, different from a typical banking client, might be technically prepared in order to be operating such complex facilities. In bare words, "they know how to deal both with money and the financial market".?

It would be non-sense to diminish the agreement between two specialised parties (banker-customer) and their specific intentions because, in doing so, it would?infringe the purpose of the instruments themselves.?

This line of thought follows the well-known knowledge held on?Henderson v. Merrett Syndicates[22] . The Lordships held there that?'any contractual modification of the duties owed between the parties were effective to modify the duties in tort and equity as well as in contract'.?

Duty to care

Any professional duty expressly contracted carries with it the implied obligation that the service should be offered with reasonable skill, care and diligence. The services provided by a bank might be charged with these duties. If the duty of care is expressed in the contract, it will be incorporated as part of the expected contract performance. Otherwise, if it is not contained in an agreement, it can be claimed in tort.??

Springwell argued for the existence of concurrent duties based on contract and tort[23] . The duty of care in the contract was related to the claim that Chase bank provided defaulted advisory services to Springwell.?

Springwell claimed that Chase bank was to be liable for the losses that occurred with the "notes" because the causes of the losses were imputed due to the advice provided by Mr Atk (commercial paper salesman in Chase).?

According to the argument, Springwell had relied on the advisory purportedly received from Chase bank on those notes, which led it to suffer the claimed losses. Conversely, the duty of care in tort relates to the tort of negligence.?

Springwell claimed that misrepresentations occurred in the performance of the service carried out by Chase bank concerning their investments. It was not contended that the bank deceived it in providing those services. It was therefore alleged that the bank, through its agent provided faulty service.

The majority of misrepresentations would provide this allegation. But, for instance, Springwell related the misrepresentations to the lack of conformity derived from the purported advisory service.?

This paper will critically analyse in the following sections those two aspects involving the duty to care about the services offered by banks, considering especial Springwell's line of cases.?

Misrepresentation

Misrepresentation is not an obligation in itself. Nonetheless, it is an occurrence that can generate outstanding debts in the relationship between banker-customer[24] . The bank should be aware of this circumstance while carrying out its service.?

In financial services, the difficulty facing most claimants is identifying the statement of fact, which is said to have been wrong and on which the claimant relied. Many of the well-known misrepresentation cases arise from the sales process[25] . A fraudulent or negligent action can back it.?

This paper believes that the Law reasonably considers this occurrence concerning the obligation Banks bear due to the services they offer.??

In particular, finding a misrepresentation claim on a prediction[26] ?is complicated. Financial services can rely on the trend of the capital market that even the bank cannot foresee the probabilities of the results.?

Springwell is a notable example of that situation. For instance, the Russian Federation's moratorium was a factor that caused the notes to lose economic value[27] . This occurrence might not have been foreseeable when the note arrangement was made.?

Springwell attempted to argue that he relied on statements made by Chase bank and was reasonable to oblige the bank for losses to their capital. The arguments of Springwell were based on the premise that the bank had within the relationship not only the duty to advise but also the duty to care.?

In general, those are not the most sustainable arguments for misrepresentation. Misrepresentation generally is backed by an act of deception. However, the Court of Appeal held no grounds for misrepresentation. The reason was that the duty of advice and the duty to care were not present.?

In addition, there was no evidence of false statements that could have led Springwell to rely on statements made by Chase bank in light of the depreciation of the assets.?

The understanding of the Courts deems reasonable and under the doctrine. According to Alastair Hudson's concept, the Courts considered that the regulatory standards could reveal in the Springwell case that the seller of a specific product serving a reasonable bank was not a dishonest trader and did not trade with an unconscionable investment company[28] .?

The bank's set of obligations in the Springwell case was consistent with the regulatory obligations agreed by the parties[29] . They were both well-prepared entities for dealing with that kind of business.?

Fiduciary duty

The analysis of services offered by Banks and the obligations involved might call for the analyse of fiduciary duty. The fiduciary duty composed the claims of Springwell against Chase bank. This paper believes that it is crucial to draft the concept of duty and its implication on banking services to assess whether banks should hold more significant legal obligations.

Millet LJ in?Bristol and West Building Society v. Mothew[30] ?stated that:?'A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in the circumstances, which give rise to a relationship of trust and confidence'.?

It can be extracted from the passage that the fiduciary duty is not ordinarily, and for it to be imposed, it shall be something specific within the relationship between banker and customer.?

It means that the banker is not a trustee simply because of being a banker[31] . Accordingly to Ellinger, the bank does not generally owe their customer fiduciary duties to their client. The relationship between the banker and the client will not create a fiduciary relationship without more[32] .?

Conversely, it is vital to understand that this duty might be implied in the bank–customer contract[33] .?

Moreover, there are particular situations where a fiduciary relationship can arise between bankers and customers without being agreed upon. For instance, it occurs when the bank induces business by agreeing to become a financial advisor, where it has discretionary control of a customer's assets. And where the bank advises a person to enter into a transaction to their economic disadvantage without ensuring that they have taken independent advice.?

In circumstances where a bank impliedly becomes a fiduciary, the bank will owe its customer an equitable duty to care. In complex contracts, the fiduciary duty might be relieved by disclaimers or, in other cases, they are accounted for in the price of the service. A trustee's duty to exercise reasonable care in common banking relationships might be present.??

Considering Springwell's line of cases, the entity contended that although it was impossible to evidence the agreement on advisory services, there was an advisory relationship with the banker, which was derived from the fiduciary duty.?

Springwell attempted to rebate the disclaimers against the establishment of fiduciary duty and duty to care by alleging, based on?Interfoto[34] , that the Chase bank could not rely on the waivers provided in the contract since they had not been drawn very clearly to Springwell's attention.?

The?Interfoto?principle was that if clauses incorporated into a contract are particularly unusual or onerous, they must fairly and reasonably be brought to the other party's attention if they are to be relied upon.?

Rix L.J. in HIH[35] ?thought that the principle just did not apply at all in the case of signed contracts.?

The allegations of Springwell did not convince their Lordships. Conversely, the fact that there was no contractual advisory agreement was considered a "strong pointer" against the tortious duty of advice[36] . The reason which the interpretation mostly relied on was the assignment of the contract and the circumstances surrounding the contract.?

According to Christa Band[37] , whether the principle (of unconscious undertaking) could apply to signed documents has never conclusively been determined. The result in the studding case was that Gloster J. held that the principle has minimal application to signed contracts between commercial parties operating in the financial markets.?

He considered the reasonableness of the fact of the assignment of the agreements[38] . It was deemed a consequence of the acceptance of the party to the contract. He understood that even though most of the relevant provisions were not drawn to Springwell's attention, there was no room for the operation of the principle here because they signed the agreements.?

The fact that Springwell's expertise in the market was also highly deemed to contribute to the result of the decision of the Court.?

This paper believes the current Law is proper about complex agreements such as the Springwell, where banking instruments (and services offered) are truly peculiar, and the party's condition is unusually high.?

The Law, in this case, is consistent with the principles of finance law, such as the conscious allocation of risks. It separates the consideration of reasonableness in those peculiar circumstances from the ordinary circumstances surrounding the relationship between banker-customer.?

The idea is the distance between the intention of the contracting party from the control derived from public policies shall be favoured by the flowing of business in this area. The less interference of public policies in offering specialised finance facilities might enhance the driving force behind the economic system that supports them.?

These satisfactions satisfy the parties' expected intentions in those complex finance arrangements, as well as the parties' choices for future contracts.??

More significant obligations to the services offered??

The New York Times published on March 2nd 2013, the following news:?'Selling the Home Brand: A Look Inside an Elite JPMorgan Unit (referring to Chase Bank)[39] .?

The news states that while financial advisers at other firms are typically free to offer a variety of investments, JPMorgan pressures brokers to sell the bank's own products, according to current and former employees.?

BS, a financial adviser who quit JPMorgan in April 2012 and now works in another non-banking financial institution, stated that "We were not able to do the right things for our clients".?

This paper believes this news is intimately related to the analysis provided. It can be used as a concrete example.?

The news suggests that there is a lack of responsibility of the bank (Chase bank in specific) for the obligations provided to their clients for the services offered. This paper believes that it can be argued that a problem with the banker's duties might arise, not because the Law is weak in governing that point (that relationship), but because there is a real difficulty in determining the natural character of the relationship clients have with their bank.?

As exposed in Springwell case, the contracts might disclaim the bank for almost all duties that could rely on its relationship. This is permissible and reasonable under the Law. The Courts might depend on the documents presented. Conversely, the news example surprisingly reveals a possibility of a close relationship between a bank and client (here included advisory), and those essential elements of duty remain hidden from the truth (e.g. in claims) due to practical difficulty in forming evidence[40] .??

The services banks offer in the complex financial facilities category are under an adequate obligation imposed by Law. Those contractual obligations can be subjected to Court's analysis for weighing its term in light of reasonableness. Nonetheless, the banks' conduct in providing their clients' primary services seems to be inappropriately scrutinised.?

Practical solutions such as obliging banks to record client conversations with their investment manager could avoid doubt about the express and implied performance of the services.

CONCLUSION?

All in all, this article focused on the complex financial services offered by banks. It assessed the nature of financial instruments. It differentiated the standard bank's assistance with the complex financial facilities.?

Springwell line of cases was used in light of analysing the banker's obligations. Considering Springwell's line of case study, this article critically analysed whether banks should be subjected to a more outstanding obligation to their clients' financial services. It was revealed that it should be subjected to more scrutiny than increased burdens.?

It evaluated the importance of the client's character, the contract terms and the banker-client relationship's conduct for determining the banks' obligations. In similar contexts to Springwell, it was concluded that the Law is lenient in interfering in that kind of financial arrangement (including services).?

The agreement between the parties (banker/arranger-customer/investor) might be decisive for defining the number and extent of banks' obligations. They are the primary source of commitment in that context.?

This article concluded that other duties might emerge from the banker-customer (investor) relationship. It analysed the duty of care, advisory, fiduciary, and misrepresentation (obligation in tort). Contract clauses can limit those duties. Previous cases and commentators' opinions were presented to support the arguments and conclusions.?

In the last section, it referred to a news article to support the view that if there is a factual problem, it can interfere with the degree of the obligation of banks in financial services which are offered to their clients; the problem might be related to a lack of inspection of their dealings within the relationship. Solutions were suggested.?

[1] ?E.P. Ellinger, E. Lomnicka and C.V.M. Hare, Ellinger's Modern Banking Law, 5th Ed., Oxford University Press, Oxford, 2011.

[2] ?JP Morgan Chase Bank v Springwell Navigation?[2008] EWHC 1186 (Comm).

[3] ?See Agasha Mugasha, 'International Financial Law: Is the Law Really "International" and Is it "Law" Anyway?', in Banking and Finance Law Review, 26, pp. 381-449.

[4] ?Melanie Ryan and Andrew Yong, 'Springwell – are the English Courts the Venue of Last Resort for Complex Investor Claims?', in Journal of International Banking Law and Regulation, vol. 24, issue 1, Sweet & Maxwell, 2009, pp. 54-61.

[5] ?See Christa Band, 'Selling Complex Financial Products to Sophisticated Clients: JP Morgan Chase v Springwell', in Journal of International Banking Law and Regulation, v. 24, issue 2, Sweet & Maxwell, 2009.

[6] ?IFE Fund SA v. Goldman Sachs International?[2007] EWCA Civ. 811?

[7] ?[1964] A.C. 465

[8] ?[2006] UKHL 28.

[9] ?See Charles Proctor,?The Law and Practice of International Banking, Oxford University Press, 2010, pp. 473-484.

[10] ?Dick Frase,?Law and Regulation of Investment Management,?Sweet & Maxwell, 2007. According to this author, "Portfolio" is a collective term for the client's assets being managed. It may comprise all the client's investments. As with other services, "the core investments tend to be bonds and listed securities".?

[11] ?Ulrich Beck,?Risk Society: Towards a New Modernity, SAGE publications, London, 1998.?

[12] ?See Joanna Benjamin,?Financial Law, Oxford University Press, Oxford, 2007.

[13] ?Ibid.

[14] ?Ibid.

[15] ?Hugh Beale, Michael Bridge, Luise Gullifer, Eva Lomnicka,?The Law of Security and Titled-Based Financing, 2nd Ed., Oxford University Press, Oxford, 2012. The authors argued that, 'It is unclear how "commercial reasonableness" will be assessed by the Courts in this context, although if a detailed valuation process is agreed in advance by commercial parties, it is unlikely that a court would interfere with this in the absence of clear Unconscionability'.?

[16] ?Black's Law Dictionary (Bryan A. Garner ed.), 9th Ed., 2010.

[17] ?Chitty,?Chitty on contracts, Hugh Beale (ed.), Sweet & Maxwell, available at < www.westlaw.co.uk > 9 Abril 2013.?

[18] ?See n. 3.

[19] ?Catherine Gibaud, 'Does a bank owe a duty of care to give investment advice to sophisticated clients who purchase its complex investment products?', in Trusts & Trustees, 15 (2), 2009, pp. 109-115.

[20] ?See Alastair Husdson, The Law of Finance. The author provides a separation on the liability of securities; Also see Agasha Mugasha, op. cit. The author states that the bank in this case is in the quality of arranger.?

[21] ?JP Morgan Chase Bank (formerly Chase Manhattan Bank) v Springwell Navigation Corp?[2008] EWHC 1793 (Comm).

[22] ?[1995] 2 A.C. 145

[23] ?See n. 8.

[24] ?See Alexander Trukhtanov, 'Misrepresentation: acknowledgement of non-reliance as defence', in Law Quarterly Review, 2009.?

[25] ?See n. 21.

[26] ?See n. 4.

[27] ?Ruppert Lewis, 'The development of contractual estoppel', in Journal of International Banking Law and Regulation, 26 (2), 2011, pp. 49-58.

[28] ?Alastair Hudson,?The Law on Financial Derivatives, 5th Ed., Sweet & Maxwell, 2012, pp. 389-396.?

[29] ?Cf. Sphere Drake Insurance Ltd v. Euro International [2003] EWHC 1636; Manolakaki v. Constantinides [2004] EWCH 749; Tayeb v. HSBC Plc [2004] 4 All E.R. 1024.?

[30] ?Bristol & West Building Society v. Mothew [1997] 2 W.L.R.

[31] ?Alastair Hudson,?The Law of Finance, 2nd Ed., Sweet & Maxwell, 2012, pp. 776.

[32] ?See Foley v. Hill (1848) 2 H.L. Cas. 28 Q.B.

[33] ?See n. 29.

[34] ?Interfoto?[1989] Q.B. 433 CA.?

[35] ?HIH Casualty and General Insurance Ltd v. New Hampshire Insurance Co [2006] EWHC 1285.?

[36] ?See n. 8.

[37] ?See n. 5.?

[38] ?See n. 6.

[39] ?Susanne Craig and Jessica Silver-Greenberg, 'Selling the Home Brand: A Look Inside an Elite JPMorgan Unit', in The New York Times, March 2nd 2013, pp. 10-20.?

[40] ?Cf. Timothy Spangler,?The Law of Private Investment Funds, 2nd Ed., Oxford University Press, Oxford, 2012.?