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  • 1.

    Common causes of action
    What are the most common causes of action brought against banks and other financial services providers by their customers?

  • 2.

    Non-contractual duties
    In claims for the misselling 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?

  • 3.

    Statutory liability regime
    In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?

  • 4.

    Duty of good faith
    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?

  • 5.

    Fiduciary duties
    In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?

  • 6.

    Master agreements
    How are standard form master agreements for particular financial transactions treated?

  • 7.

    Limiting liability
    Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?

  • 8.

    Freedom to contract
    What other restrictions apply to the freedom of financial institutions to contract?

  • 9.

    Litigation remedies
    What remedies are available in financial services litigation?

  • 10.

    Limitation defences
    Have any particular issues arisen in financial services cases in your jurisdiction in relation to limitation defences?

  • 11.

    Specialist courts
    Do you have a specialist court or other arrangements for the hearing of financial services disputes in your jurisdiction? Are there specialist judges for financial cases?

  • 12.

    Procedural rules
    Do any specific procedural rules apply to financial services litigation?

  • 13.

    Arbitration
    May parties agree to submit financial services disputes to arbitration?

  • 14.

    Out-of-court settlements
    Must parties initially seek to settle out of court or refer financial services disputes for alternative dispute resolution?

  • 15.

    Pre-action considerations
    Are there any pre-action considerations specific to financial services litigation that the parties should take into account in your jurisdiction?

  • 16.

    Unilateral jurisdiction clauses
    Does your jurisdiction recognise unilateral jurisdiction clauses?

  • 17.

    Disclosure obligations
    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?

  • 18.

    Protecting confidentiality
    Must financial institutions disclose confidential client documents during court proceedings? What procedural devices can be used to protect such documents?

  • 19.

    Disclosure of personal data
    May private parties request disclosure of personal data held by financial services institutions?

  • 20.

    Data protection
    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?

  • 21.

    Authority powers
    What powers do regulatory authorities have to bring court proceedings in your jurisdiction? In particular, what remedies may they seek?

  • 22.

    Disclosure restrictions on communications
    Are communications between financial institutions and regulators and other regulatory materials subject to any disclosure restrictions or claims of privilege?

  • 23.

    Private claims
    May private parties bring court proceedings against financial institutions directly for breaches of regulations?

  • 24.


    In a claim by a private party against a financial institution, must the institution disclose complaints made against it by other private parties?

  • 25.

    Enforcement
    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?

  • 26.

    Changes to the landscape
    Have changes to the regulatory landscape following the financial crisis impacted financial services litigation?

  • 27.

    Complaints procedure
    Is there an independent complaints procedure that customers can use to complain about financial services firms without bringing court claims?

  • 28.

    Recovery of assets
    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?

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Trench, Rossi e Watanabe is one of the largest law firms in Brazil, placed among the top-ranking in nearly all areas of practice. We bring to bear expansive cross-border capabilities and half a century of experience advising on all aspects of complex, pioneering deals.

View more information about Trench Rossi Watanabe, in cooperation with Baker McKenzie


São Paulo
Rua Arq Olavo Redig de Campos, 105 – 31st Floor
EZ Towers – Tower A
04711 904
São Paulo
Brazil
T: +55 11 3048 6800
F: +55 11 5506 3455


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