Defending NatWest Markets in landmark FX collective proceedings

We are defending long-standing client NatWest Markets in antitrust litigation arising from regulatory findings in the global foreign exchange (FX) market, having also acted in the earlier investigation stage.

Our role includes acting as NatWest’s counsel in the UK litigation, as well as serving as global coordinating counsel for related proceedings overseas.

The case

Multiple proposed class representatives have attempted to bring opt-out collective proceedings following the European Commission’s FX decisions. This has presented novel and complex issues for the UK’s developing collective proceedings regime, including:

• managing the UK’s first ever “carriage dispute” between competing opt-out class actions;
• assessing the adequacy of funding arrangements in light of the Supreme Court’s PACCAR judgment;
• addressing whether claims should proceed on an opt-in or opt-out basis; and
• challenging the admissibility of and reliance upon foreign regulatory decisions against non-defendants.

The latter two issues have gone all the way up to the Supreme Court, from which judgment is currently awaited.

The matter involves substantial international coordination, with related proceedings across a number of different jurisdictions.

Our approach

We have worked closely with NatWest to build a robust defence strategy, including:

• successfully resisting certification of the collective proceedings at first instance before the Competition Appeal Tribunal (CAT);
• representing NatWest in the subsequent Court of Appeal proceedings; and
• successfully applying to the Supreme Court for permission to appeal the Court of Appeal’s judgment.  Following a hearing in April 2025, the Supreme Court’s judgment is awaited.

Throughout, we have coordinated with counsel for other banks, while remaining closely focused on protecting NatWest’s individual interests. 

The outcome

The Supreme Court’s judgment is awaited on the issues of the correct approach to certifying claims on an opt-in or opt-out basis and the admissibility of and reliance upon foreign regulatory decisions against a non-defendant. The outcome is likely to have far-reaching implications for the collective proceedings regime in the UK, as well as for financial institutions and other large corporates facing claims that arise from global regulatory investigations.