Banco Santander Totta SA v Companhia Carris De Ferro De Lisboa SA & Ors [2016] EWCA Civ 1267 (13 December 2016)

Banco Santander Totta SA v Companhia Carris De Ferro De Lisboa SA & Ors [2016] EWCA Civ 1267 (13 December 2016)

The swaps contracts were not purely domestic as they contained international elements (assignment rights, use of international documentation, international market, hedging arrangements). Therefore, Article 3(3) of the Rome Convention was not engaged and Portuguese mandatory rules, including Article 437, did not apply. The appeal was dismissed.

Citation
[2016] EWCA Civ 1267
Parties
Respondent/claimant: Banco Santander Totta SA; Appellants/defendants: Companhia Carris de Ferro de Lisboa SA & Ors
Jurisdiction
England and Wales
Judgment Date
13 December 2016
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From High Court, Commercial Court
Outcome
Appeal dismissed
Legal Topics
Choice of Law, Mandatory Rules, Interest Rate Swaps, Rome Convention, ISDA Master Agreement, Contractual Obligations
Private International Law Contract Law Financial Law Choice of Law Mandatory Rules Interest Rate Swaps Rome Convention ISDA Master Agreement +1 more

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Parties

Banco Santander Totta SA

Respondent/claimant

Companhia Carris de Ferro de Lisboa SA & Ors

Appellants/defendants

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From High Court, Commercial Court

Legal Issues

  1. 1 Proper interpretation of Article 3(3) of the Rome Convention regarding choice of law and mandatory rules
  2. 2 Whether Article 437 of the Portuguese Civil Code applies as a mandatory rule to the swaps contracts governed by English law
  3. 3 Whether the swaps contracts are purely domestic or have international elements

Ratio Decidendi

The swaps contracts were not purely domestic as they contained international elements (assignment rights, use of international documentation, international market, hedging arrangements). Therefore, Article 3(3) of the Rome Convention was not engaged and Portuguese mandatory rules, including Article 437, did not apply. The appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The order of Mr Justice Blair declaring the swaps legal, valid, and binding is upheld.
  • No reference to the CJEU is necessary.