Banco Santander Totta (Banco Santander) was a Portuguese subsidiary of the Spanish Santander group. The defendants were four state-owned Portuguese transport companies serving Lisbon and Porto. Between 2005 and 2007 they entered into a series of long-term interest rate swap transactions with Banco Santander. Those swaps were entered into under ISDA master agreements that were subject to English law.
The interest rate swaps were ‘snowball swaps’. They contained upper and lower boundaries and once interest rates moved outside of those barriers the fixed rate payable by the transport companies increased by a cumulative spread and became subject to further leverage. The spread was activated and the interest payable by the transport companies grew significantly. The transport companies ceased making payments and Banco Santander claimed €270 million as owing under the swaps.
As in Dexia v Prato, the transport companies sought to rely on several defences to dispute the validity or enforceability of the transaction. These included a lack of capacity and that Banco Santander had breached its duties under the Portuguese Securities Code. On the facts and evidence submitted, the transport companies were unable to rely on those defences.
The final defence was that Portuguese mandatory rules applied to the swaps. It was argued that those rules meant that the swaps were (i) void for being unlawful ‘games of chance’ or (ii) were otherwise terminable because of an ‘abnormal change of circumstances’, being low interest rates for a sustained period. Those mandatory rules were said to apply despite the English governing law clause because all of the relevant elements of the swap transactions related to Portugal under Article 3(3) of the Rome Convention.
Blair J held that the swaps were valid and that the mandatory rules did not apply. Article 3(3) did not provide a route for their application in the face of the English governing law clause. The finding was significant as Blair J would have found that the mandatory rules were breached had he found that they applied under Article 3(3).
Blair J expressly declined to follow Dexia v Prato and adopted a different approach to the question of whether all elements relevant to the situation were connected with a particular country. Blair J held that elements which pointed to an ‘international situation’ (and not a particular alternative jurisdiction to Portugal) could be sufficient to defeat an attempt to argue that all relevant elements of the transaction related to Portugal. Blair J found that the use of an international form document in the context of an international market was relevant as was the fact that there was a back-to-back swap with a non-Portuguese counterparty.
There were other factors relevant to the application of Article 3(3) that did not feature in Dexia v Prato. There was an assignment provision which contemplated the potential assignment of the transaction to a different (non-Portuguese) subsidiary of the Spanish Santander parent. The Spanish parent also approved the transactions in various committees and priced the swap transactions. Taking all of these factors into account, Blair J concluded that the swaps were not purely domestic contracts and that any other conclusion would ‘undermine legal certainty’.