EUPillar Cinnamon European Structured Credit Master Fund v Banco Commercial Portugues SA [2009] EWHC 3381 (Ch)

Summary

The claimant, Cinnamon, was a Cayman-registered fund. The defendant, BCP, was a substantial bank incorporated under the laws of (and registered) in Portugal. The dispute arose out of securitisation of a portfolio of Portuguese residential mortgages. Class F Notes were bought by BCP, and then sold to Goldman Sachs for over €50 million. The relevant contractual arrangements were set out in Security Purchase Agreement (GS Purchase Agreement) and a Representation Letter, delivered as a deed. GS Purchase had an English choice of law clause, and an English jurisdiction clause. The Representation letter had a choice of law clause, and incorporate cl. 10 which was headed “Agent for Services of Process”. Subsequently, Cinnamon purchased the Class F Notes from Goldman Sachs, and acquired all the benefits arising out of the agreements. Cinnamon started suing in England for breaches of the Representation Letter. The claim form was issued on the 11th June 2009. The defendant, BCP, challenged the English court‘s jurisdiction. On 18th December 2009, the English High court judge dismissed BCP’s challenge. Sir William Blackburne held that: “37 It is plain that for the reasons submitted by Mr Crow (and summarised at para.30 above) the Representation Letter and the GS Purchase Agreement are inextricably linked. They set out the contractual arrangements which govern the terms on which Goldman Sachs purchased the Class F Notes on March 29, 2006. It is artificial to regard them as wholly free-standing documents, operating independently of one another, and to approach the construction of the one as if the other did not exist except only to the extent that it is referred to or incorporated into the former. 38 That being so, I am of the view that any dispute arising out of the Representation Letter is properly to be regarded as within the scope of [the jurisdiction clause] of the GS Purchase Agreement. That clause is a choice of jurisdiction clause not just for any dispute arising out of that agreement but also for any which arises “in connection with this agreement …” [...].” [37-38].