Banco Santander Totta SA v Companhia Carris De Ferro De Lisboa SA & Ors

Banco Santander Totta SA v Companhia Carris De Ferro De Lisboa SA & Ors

The appeal was dismissed because the Swaps were not purely domestic contracts; elements such as the use of international ISDA documentation, assignment rights, and the international swaps market meant Article 3(3) was not engaged. Therefore, Portuguese mandatory rules, including Article 437, did not apply. Even if Article 437 applied, it was not a non-derogable rule for the purposes of Article 3(3).

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
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Rome Convention Article 3(3), Mandatory Rules, Interest Rate Swaps, Party Autonomy, Interpretation of International Contracts
Conflict of Laws Contract Law Financial Law Rome Convention Article 3(3) Mandatory Rules Interest Rate Swaps Party Autonomy Interpretation of International Contracts

Case Brief

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Parties

Banco Santander Totta SA

Respondent/claimant

Companhia Carris de Ferro de Lisboa SA & Ors

Appellants/defendants

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Proper interpretation of Article 3(3) of the Rome Convention
  2. 2 Whether the Swaps are subject to mandatory rules of Portuguese law under Article 3(3)
  3. 3 Whether Article 437 of the Portuguese Civil Code is a non-derogable mandatory rule under Article 3(3)

Ratio Decidendi

The appeal was dismissed because the Swaps were not purely domestic contracts; elements such as the use of international ISDA documentation, assignment rights, and the international swaps market meant Article 3(3) was not engaged. Therefore, Portuguese mandatory rules, including Article 437, did not apply. Even if Article 437 applied, it was not a non-derogable rule for the purposes of Article 3(3).

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed; the order of Mr Justice Blair stands.