Case details

Guardians of New Zealand Superannuation Fund and others (Appellant) v Novo Banco S.A. (Respondent)

Case ID: UKSC 2016/0215

Case summary

  1. Whether the obligation under Article 3 of Directive 2001/24/EC to apply reorganisation measures in accordance with the law of their home member state meant that the effect of a reorganisation measure taken by Banco de Portugal in August 2014 to transfer liabilities to the respondent fell to be determined by the effect in Portuguese law of a later decision in December 2014, and/or
  2. whether the December 2014 decision, was itself a reorganisation measure which required recognition by the English courts

In June 2014 Oak Finance Luxembourg SA (‘Oak’) entered into a Facility Agreement with Banco Espirito Santo SA (‘BES’), a Portuguese bank, which contained an express choice of English law and jurisdiction, under which BES drew down a loan of nearly $785m. The appellants are all successors in title to Oak. In August 2014 BES was in financial difficulties. Banco de Portugal established a new ‘bridge bank’ (the respondent) and issued a resolution measure by which certain liabilities of BES were transferred to the respondent. The appellants contend that the Oak liability was among them. Banco de Portugal issued a further decision in December 2014 declaring that the Oak liability had not been so transferred. No repayments have been made. The appellants issued proceedings in the High Court. The respondent applied for the proceedings to be set aside on the grounds that the court had no jurisdiction to entertain them, or should be stayed pending the outcome of proceedings in Portugal.

Judgment appealed

[2016] EWCA Civ 1092



Guardians of New Zealand Superannuation Fund and others


Novo Banco S.A


Banco de Portugal



Lord Mance, Lord Sumption, Lord Hodge, Lady Black, Lord Lloyd-Jones

Hearing start date

17 Apr 2018

Hearing finish date

18 Apr 2018

Watch hearing
17 Apr 2018 Morning session Afternoon session
18 Apr 2018 Morning session Afternoon session