Guardians of New Zealand Superannuation Fund & Ors v Novo Banco, S.A.

Guardians of New Zealand Superannuation Fund & Ors v Novo Banco, S.A.

The English courts are obliged to give effect to the decisions of Banco de Portugal as the home Member State's resolution authority, including the December decision declaring that the Oak liability was not transferred to Novo Banco. As a result, Novo Banco was not a party to the English jurisdiction clause at the relevant date, and the English courts have no jurisdiction over the claims. The December decision is a reorganisation measure entitled to universal recognition under the Reorganisation Directive.

Parties
Claimant/respondent: Guardians of New Zealand Superannuation Fund as manager and administrator of The New Zealand Superannuation Fund; Claimant/respondent: Andorra Gestió Agricol Reig, S. A. U. S. G. O. I. C.; Claimant/respondent: APWIA Fund SPC Ltd; Claimant/respondent: Olifant Fund Ltd; Claimant/respondent: FYI Ltd; Claimant/respondent: FFI Fund Ltd; Claimant/respondent: Elliott International, L. P.; Claimant/respondent: The Liverpool Limited Partnership; Claimant/respondent: Karrick Limited; Claimant/respondent: GL Europe Luxembourg S.À. R. L.; Claimant/respondent: Silver Point Luxembourg Platform S.À. R. L.; Claimant/respondent: TDC Pensionskasse; Claimant/respondent: Goldman Sachs International; Defendant/appellant: Novo Banco S.A.; Intervener: Banco de Portugal
Jurisdiction
England and Wales
Judgment Date
04 November 2016
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Jurisdictional Challenge
Outcome
Appeal allowed; English courts have no jurisdiction over Novo Banco in respect of the Oak liability claims.
Legal Topics
Recognition of Foreign Insolvency Measures, Jurisdiction Clauses, Bank Resolution and Reorganisation, Directive 2001/24/ec, Directive 2014/59/eu, Effect of Administrative Acts Under EU Law
Banking and Finance Law European Union Law Conflict of Laws Recognition of Foreign Insolvency Measures Jurisdiction Clauses Bank Resolution and Reorganisation Directive 2001/24/ec Directive 2014/59/eu +1 more

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Parties

Guardians of New Zealand Superannuation Fund as manager and administrator of The New Zealand Superannuation Fund

Claimant/respondent

Andorra Gestió Agricol Reig, S. A. U. S. G. O. I. C.

Claimant/respondent

APWIA Fund SPC Ltd

Claimant/respondent

Olifant Fund Ltd

Claimant/respondent

FYI Ltd

Claimant/respondent

FFI Fund Ltd

Claimant/respondent

Elliott International, L. P.

Claimant/respondent

The Liverpool Limited Partnership

Claimant/respondent

Karrick Limited

Claimant/respondent

GL Europe Luxembourg S.À. R. L.

Claimant/respondent

Silver Point Luxembourg Platform S.À. R. L.

Claimant/respondent

TDC Pensionskasse

Claimant/respondent

Goldman Sachs International

Claimant/respondent

Novo Banco S.A.

Defendant/appellant

Banco de Portugal

Intervener

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Jurisdictional Challenge

Legal Issues

  1. 1 Whether English courts have jurisdiction over claims against Novo Banco under the Facility Agreement
  2. 2 Whether the Oak liability was transferred to Novo Banco under Portuguese/EU law
  3. 3 Whether subsequent administrative decisions by Banco de Portugal must be recognised by English courts

Ratio Decidendi

The English courts are obliged to give effect to the decisions of Banco de Portugal as the home Member State's resolution authority, including the December decision declaring that the Oak liability was not transferred to Novo Banco. As a result, Novo Banco was not a party to the English jurisdiction clause at the relevant date, and the English courts have no jurisdiction over the claims. The December decision is a reorganisation measure entitled to universal recognition under the Reorganisation Directive.

Court Disposition

Appeal allowed; English courts have no jurisdiction over Novo Banco in respect of the Oak liability claims.

Orders

  • Appeal allowed
  • Proceedings against Novo Banco set aside for lack of jurisdiction