Limited scope for the application of Portuguese mandatory rules: Banco Santander Totta SA

This case (Banco Santander Totta SA v Companhia de Carris de Ferro de Lisboa SA [2016] EWHC 465 (Comm)), arises from a number of complex swap contracts under which, by October 2015, some EUR 272 million were due but not paid.

In his judgment on 4 March 2016, among other things, Blair J decided that Article 3(3) of the Rome Convention [1] could not be used to displace a contractual choice of English law with certain mandatory provisions of Portuguese law even where both contracting parties were Portuguese.  Had he held otherwise, Portuguese law might have provided a complete defence to payment.  Blair J’s decision was clearly influenced by the desirability of legal certainty in major financial transactions and upholding party autonomy.

Blair J’s decision is notable because his conclusion is at odds with that of Walker J in a similar case involving Italian parties (Dexia Crediop SpA v Comune di Prato [2015] EWHC 1746 (Comm)). Continue reading