2-059 (Olivares Caminal, Legal Aspects...S 88)
5.3.3. The second Kensington International case (against BNP) (New York)
The Kensington saga had a p art 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 Ltd v BNP Paribas SA.258 One of the arguments
o f this claim was tha t 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 ra ta basis with Kensington as
a result o f the broad or “payment” interpretation of the pari passu clause.
Die pari passu clause in den Congo-Kreditverträgen
The relevant part of the pari passu clause reads as follows: .. the claims of all other parties
under [the loan] agreement will rank as general obligations of the People’s Republic of the
Congo, at least pari passu in right and priority of payment with the claims of all other
creditors of the People’s Republic of the Congo ..
258
See Kensington International L td v BNP Paribas SA, No.03602569 (NY Sup. Ct., August 13,
2003).
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Compare Kensington Int’l Ltd. V. Republic of Congo, 2002 No. 1088 (Commercial Court, April 16, 2003)(refusing to enjoin sovereign borrower from making payments of external indebtedness without proportional payment to the plaintiff ), aff’d, No. [2003] EWCA Civ. 709 (C.A. May 13, 2003), with Red Mountain Fin., Inc. v. Democratic Republic of Congo and Nat’l Bank of Congo, Case 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 tortuous interference with contract against a later lender who received payments. Kensington Int’l Ltd. V. BNP Paribas S.A., No. 03602569 (N.Y. Sup. Ct.). But cf. Nacional Financiera, S.N.O. v. Chase Manhattan Bank, N.A., No. 00 Civ. 1571 (JSM) 2003 WL 1878415 (SDNY Apr. 14, 2003)(holding that pari pasu clause covering Mexican corporate borrower might support an injunction against its paying third party creditors but did not support an intercreditor action)..
S 2 PARI PASSU AND A DISTRESSED SOVEREIGN’S
RATIONAL CHOICES
William W. Bratton*
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