(1) National Bank of Kazakhstan v The Bank of New York Mellon SA/NV, London Branch
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Popplewell |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] EWHC 3512 (Comm) |
| Docket Number | Case No: FL-2017-000013 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 21 December 2017 |
[2017] EWHC 3512 (Comm)
Mr. Justice Popplewell
Case No: FL-2017-000013
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
FINANCIAL LIST
Royal Courts of Justice
7 The Rolls Building,
Fetter Lane,
London EC4A 1NL
Mr. Ali Malek QC, Mr. David Quest QC and Mr. William Edwards (instructed by Stewarts Law LLP) for the Claimants
Mr. Christopher Butcher QC and Mr. Rupert Allen (instructed by Linklaters LLP) for the Defendant
In other circumstances, I would have wished to reserve judgment and give my reasons in writing. However it is important for the parties to know my decision and reasons promptly and today is the last day of term. Accordingly, my reasons will be more abbreviated and less elegantly expressed than I would otherwise have wished.
INTRODUCTION
The Second Claimant is the Republic of Kazakhstan (“ROK”). The First Claimant is the National Bank of Kazakhstan (“NBK”). The Defendant is a bank incorporated in Belgium with a branch in, amongst other places, London. Through its London branch it provides banking and custody services to NBK in respect of the National Fund of Kazakhstan (“the National Fund”), pursuant to a Global Custody Agreement dated 24th December 2001, (“the GCA”). The National Fund has been the target of proceedings brought by Mr. Anatolie Stati and others, (“the Stati Parties”), who are seeking to enforce a Swedish arbitration award against ROK for a sum, including interest and costs, in excess of US$ 500 million. The Stati Parties obtained attachment orders from the Dutch court and the Belgian court, which were served on the Defendant (“BNYM”). BNYM, after taking legal advice, decided to freeze all the assets comprising the National Fund, which it holds under the GCA, on the basis that it was bound to comply with the Belgian and Dutch orders, breach of which would expose it to the risk of civil liability for the amount of the Stati Parties' claims and criminal liability in Belgium and the Netherlands.
ROK and NBK have brought these Part 8 proceedings for a number of declarations essentially designed to establish that, under the terms of the GCA, and as a matter of English law, BNYM is not obliged or entitled to freeze the National Fund by reason of the Belgian and Dutch court attachment orders.
THE CLAIMANTS AND THE NATIONAL FUND
NBK is the central bank of Kazakhstan and a distinct legal entity incorporated in the form of a republican state entity. NBK carries out its activities pursuant to the Law of the Republic of Kazakhstan on the National Bank of Kazakhstan, #2155, dated 30 th March 1995 (as amended), which provides, amongst other things, by Article 7, that the responsibilities and functions of NBK include developing and carrying out the monetary and credit policy of ROK, ensuring the functioning of payment systems, carrying out currency regulation and currency control, and assisting to ensure the stability of the financial systems of Kazakhstan.
The National Fund was established by Presidential Decree on the National Fund of Kazakhstan, number 402, on 23 rd August 2000, according to which it is a fund of assets held with the aims of securing the stable social and economic development of Kazakhstan, accumulating financial assets for future generations, and reducing the dependence of the Kazakhstan economy on unfavourable external factors. Article 2.2.1 of the Law on State Property provides that the National Fund constitutes state property.
The assets in the National Fund are managed by NBK pursuant to a Trust Management Agreement, dated 11th June 2001, number 299 (“the Trust Management Agreement”). By clause 1.1 of the Trust Management Agreement, the Government of ROK transferred the National Fund into “trust management” and NBK agreed to carry out trust management of the National Fund “for the benefit of the Government [of ROK] by investing financial assets of the [National Fund]”. By clause 2 of the Trust Management Agreement, NBK is given the right to “use and dispose of the [National Fund] under the conditions specified herein”, and subject to investment rules to invest the National Fund assets. In return, there is a fee arrangement between the Government of ROK and NBK.
The Ambassador of Kazakhstan to the Court of St James has certified, in a letter dated 15th November 2017, that the assets held by BNYM at its London branch for NBK form part of the National Fund and belong beneficially to ROK. The letter continues:
“The National Fund is designed to ensure the economic stability of Kazakhstan and to accumulate funds for future generations by way of investment in securities. In this connection, the assets held by BNY London for NBK under the GCA are not in use or intended for use by or on behalf of the Republic of Kazakhstan for commercial purposes.”
THE DEFENDANT
BNYM is a limited liability company incorporated in Belgium with its registered office in Brussels. As such it is authorised and regulated as a significant credit institution by the European Central Bank and the National Bank of Belgium under the Single Supervisory Mechanism and by the Belgian Financial Services and Markets Authority. It is ultimately wholly owned by The Bank of New York Mellon Corporation, a United States entity. It has branches in a number of places, including a London branch through which it conducts business at two locations in London. It also has branches in Frankfurt, Amsterdam, Paris, Dublin, Luxembourg and Milan. The branches, including the London branch, are not separate legal entities with a distinct legal personality from the Belgium incorporated entity.
BNYM is registered in England and Wales as an overseas company and is registered as a UK establishment. As such, it is subject to the in personam jurisdiction of the English court. The staff at the London branch of BNYM are not employed by BNYM but are employees engaged on behalf of the London branch of The Bank of New York Mellon, BNYM's parent company, based in New York.
THE GCA
It is common ground that BNYM provides banking and custodian services to NBK in respect of the National Fund pursuant to and upon the terms of the GCA. The GCA was originally entered into between NBK and (1) Boston Safe Deposit and Trust Company, (“Boston Safe”) and (2) Mellon Bank NA (London Branch). Boston Safe was a corporation established under the laws of Massachusetts USA. Mellon Bank NA was a US entity with a London branch. The GCA expressed itself to be with the London branch of Mellon Bank NA.
Clause 19 provided that, in the event of a merger or reorganisation, Boston Safe and/or Mellon Bank NA could assign their respective rights, duties or obligations to any affiliated company of Mellon Bank NA or a successor in title to either company. This is what occurred by a deed of assignment, dated 25th January 2003, whereby the rights, title and interest in the GCA were assigned to ABN Amro Mellon Global Securities Services BV (London branch) (“AAMGS”), which is the Defendant, BNYM, by a subsequent name change. The assignment was expressed to be to the London branch of AAMGS, i.e., to BNYM (London branch).
The ECA is governed by English law and provides for English jurisdiction.
I shall have to refer to a number of the provisions of the GCA but, for present purposes, it is sufficient to identify that at the heart of the issues before me are the terms of clause 16(i) of the GCA, the critical words of which are:
“[BNYM], shall [not] be liable for and no default shall be caused by any delay or failure on the part of [BNYM] to perform any obligation which, in whole or in part, arises out of or is caused by circumstances beyond its direct and reasonable control including without limitation …. any order …. imposed by any …. judicial …. authority.”
THE ASSETS IN THE NATIONAL FUND AND ITS OPERATION
As of 31st October 2017, the total value of the assets held by BNYM pursuant to the GCA was a little in excess of US$ 22.6 billion. The assets fell broadly within four classes: (i) cash and cash equivalents; (ii) equities; (iii) fixed income and; (iv) preferred securities. The cash and cash equivalents involved cash deposits and also short-term government bonds or US Treasury Bills. The value of this asset class was approximately US$ 333 million. The equities class contained equities split by market and sector to a value of approximately US$ 11.4 billion. The fixed income class included a number of fixed income instruments such as corporate and other bonds, valued at about US$ 10.8 billion. The preferred securities class contained preferred corporate stocks valued at about US$ 91 million.
The National Fund assets which are subject to the GCA are managed externally by asset management managers appointed by NBK, of whom there are a number. It is those asset managers who are responsible for taking the investment and trading decisions in respect of the assets. BNYM is not involved in those decisions.
The relatively small cash component of deposits, which forms a sub-set of the cash and cash equivalents class, is a debt to NBK and is treated internally by BNYM as being located at the London branch of BNYM. The majority of the assets in the National Fund, in the form of the various securities described above are not such as to have any physical existence, so far as Mr. Ronald, the relationship manager at BNYM's London branch responsible for NBK, is aware. They are de-materialised securities, the underlying rights in which arise in a wide variety of different geographical locations and in jurisdictions governed by a variety of local laws, including amongst other places, England, the Netherlands and Belgium. They are...
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