5.3.3. The second Kensington International case (against BNP) (New York)
2-059 The Kensington saga had a part two in New York. This case is very
interesting because it gave the pari passu clause a new twist, taking it to
another level after the new interpretation of the pari passu clause in the
Elliott case.257 On August 13, 2003 a claim was filed in a New York State
court: Kensington International L td v BNP Paribas SA .258 One of the arguments
of this claim was that BNP tortiously interfered with Kensington’s
rights to collect the moneys due from the Republic of Congo as per the pari
passu clause included in the 1984 loan agreement giving rise to the plaintiffs
claim against Congo. This resulted from the fact that, according to the
plaintiffs line of argument, BNP had received payments from new financings
entered between the defendant and Congo after 1985, i.e., BNP collected
money without distributing it on a pro rata basis with Kensington as
a result of the broad or “payment” interpretation of the pari passu clause.
aus Olivares Caminal Legal aspcts....S 88
257 An example of a case of tortious liability for breach of contractual provision prior to the
Elliott interpretation is the Citibank NA v Export-Import Bank o f the United States, No.76
Civ. 3514 (CBM) (S.D.N.Y. August 9, 1976).
258 See Kensington International Ltd v BNP Paribas SA, No.03602569 (NY Sup. Ct., August 13,
2003).
-----------------------
January 2010
Pari Passu and A Distressed Sovereign's
Rational Choices
53 Emory L.J. 823-867 (2004)
William Wilson Bratton
Professor of Law
Georgetown University Law Center
wwb@law.georgetown.edu
This paper can be downloaded without charge from:
Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/50/
Elliott beat the odds and got paid. It relied on the 1983 debt contract's pari
passu clause, which provided, "The obligations of the Guarantor hereunder do
rank and will rank at least pari passu in priority of payment with all other
External Indebtedness of the Guarantor, and interest thereon.,,6 Elliott took the
clause to Brussels, the home of Euroclear, a clearing house through which
funds from abroad enter the European banking system. Peru was about to
dispatch a large payment on its Brady Bonds to European holders via
Euroclear. Elliott, in an ex parte proceeding, persuaded the Belgian courts to
block the payment on the ground that the pari passu clause gave the holders of
the 1983 debt the right to participate pro rata in Peru's payments to other
foreign creditors.7 Peru, not wishing to default on its Brady Bonds, paid Elliott
in full.s Since then, vulture investors have successfully repeated the tactic,9
with mixed results. 10
10 Compare Kensington Int'l Ltd. v. Republic of Congo, 2002 No. 1088 (Commercial Ct. Apr. 16,2003)
(refusing to enjoin sovereign borrower from making payments of external indebtedness without proportional
payment to the plaintiff), affd, 2003 WL 1935493 (C.A. May 13,2003), with Red Mountain Fin., Inc. v.
Democratic Republic of Congo, No. CV 00-0164 R (C.D. Cal. May 29, 2001) (refusing specific performance
of pari passu clause but enjoining sovereign borrower from making payments of external indebtedness without
proportional payment to the plaintiff).
A pending action in respect of Republic of Congo debt uses a pari passu clause to assert a claim of
tortious interference with contract against a later lender who received payments. Kensington In!'1 Ltd. v. BNP
Paribas S.A., No. 03602569 (N.Y. Sup. Ct. Aug. \3, 2003). But cf Nacional Financiera, S.N.C. v. Chase
Manhattan Bank, 2003 WL 1878415 (S.D.N.Y. Apr. 14, 2003) (holding that pari passu clause covering
Mexican corporate borrower might support an injunction against its paying third party creditors but did not
support an intercreditor action).
Keine Kommentare:
Kommentar veröffentlichen