National Bank of Kazakhstan & Anor v The Bank of New York Mellon Sa/nv, London Branch

National Bank of Kazakhstan & Anor v The Bank of New York Mellon Sa/nv, London Branch

Clause 16(i) of the GCA, by its clear and unqualified language, excuses BNYM from performance of its obligations where delay or failure arises out of any order imposed by any judicial authority, including foreign courts, regardless of whether such orders are recognisable under English law, provided the causation requirement is met.

Parties
Claimant/appellant: National Bank of Kazakhstan; Claimant/appellant: The Republic of Kazakhstan; Defendant/respondent: The Bank of New York Mellon SA/NV, London Branch
Jurisdiction
England and Wales
Judgment Date
19 June 2018
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed
Legal Topics
Force Majeure Clauses, Interpretation of Contracts, Recognition of Foreign Judgments, Banking Branch Liability, Exculpatory Clauses
Contract Law Private International Law Banking Law Force Majeure Clauses Interpretation of Contracts Recognition of Foreign Judgments Banking Branch Liability Exculpatory Clauses

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Parties

National Bank of Kazakhstan

Claimant/appellant

The Republic of Kazakhstan

Claimant/appellant

The Bank of New York Mellon SA/NV, London Branch

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether clause 16(i) of the Global Custody Agreement excuses BNYM from performance due to foreign court orders not recognised under English law
  2. 2 Whether BNYM is entitled to freeze assets under the GCA in light of Dutch and Belgian court orders

Ratio Decidendi

Clause 16(i) of the GCA, by its clear and unqualified language, excuses BNYM from performance of its obligations where delay or failure arises out of any order imposed by any judicial authority, including foreign courts, regardless of whether such orders are recognisable under English law, provided the causation requirement is met.

Court Disposition

Appeal dismissed

Orders

  • Declaration sought by appellants refused
  • No need to consider discretionary arguments in Respondent’s Notice