Guardians of New Zealand Superannuation Fund & Ors v Novo Banco, S.A. [2016] EWCA Civ 1092 (04 November 2016)

Guardians of New Zealand Superannuation Fund & Ors v Novo Banco, S.A. [2016] EWCA Civ 1092 (04 November 2016)

English courts must recognise and give effect to the December 2014 decision of Banco de Portugal, which declared that the Oak liability was not transferred to Novo Banco, as a reorganisation measure under EU law. Therefore, Novo Banco was not bound by the English jurisdiction clause in the Facility Agreement at the relevant date, and the respondents did not have the better of the argument for jurisdiction.

Citation
[2016] EWCA Civ 1092
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; Defendant/appellant: Novo Banco, S.A.; Intervener: Goldman Sachs International (GSI); Intervener: Banco de Portugal
Jurisdiction
England and Wales
Judgment Date
04 November 2016
Procedural Posture
Commercial Court Appeal / Court of Appeal Judgment
Outcome
appeal allowed
Legal Topics
Recognition of Foreign Insolvency Measures, Jurisdiction Clauses, Transfer of Liabilities, EU Directives, Resolution Authority Powers
Banking Insolvency EU Law Conflict of Laws Recognition of Foreign Insolvency Measures Jurisdiction Clauses Transfer of Liabilities EU Directives +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

Novo Banco, S.A.

Defendant/appellant

Goldman Sachs International (GSI)

Intervener

Banco de Portugal

Intervener

Procedural Posture

Commercial Court Appeal / Court of Appeal Judgment

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 from BES to Novo Banco under Portuguese and EU law
  3. 3 Recognition and effect of administrative decisions by Banco de Portugal under EU directives

Ratio Decidendi

English courts must recognise and give effect to the December 2014 decision of Banco de Portugal, which declared that the Oak liability was not transferred to Novo Banco, as a reorganisation measure under EU law. Therefore, Novo Banco was not bound by the English jurisdiction clause in the Facility Agreement at the relevant date, and the respondents did not have the better of the argument for jurisdiction.

Court Disposition

appeal allowed

Orders

  • Permission granted to Novo Banco to amend grounds of appeal to argue the December decision is a reorganisation measure.
  • Permission refused to rely on September and December 2015 decisions.