Hier ein Brief von euroclear, Brüssel an das New Yorker Berufungsgericht in der pari passu argy saga:
Euroclear Bank SA/NV
1 Boulevard du Roi Albert 11
1210 Brussels, Belgium
RPM Brussels 0429 875 591
Tel. +32 (0)2 326 1211
www.euroclear.com
January 3, 2013
sy E-FIUNG
Second Circult Court of Appeals
Danlei Patrlck Moynlhan U.S. Courthouse
500 Pearl Street
New York, NY 10007
Subject: NML Capltal. Ud. et al y Republlc of Argentina, Docket Nos. 12-
105(L), 12-109(Con), 12-111(Con),12-157(Con), 12-l58(Con), 12-
163(Con}, 12- 164(Con), 12-170(Con), 12-l76(Con), l2-l85(Con),
12-189(Con), 12-214(Con), 12-909(Con), l2-914(Con), 12-
916(Con), l2-919(Con), l2-920ccon), l2-923(Con), 12-924(Con),
12-926(Con), 12-939(Con), 12-943(Con), 12-951(Con), 12-
968(Con), 12-971(Con)
We wrlte to you to express ~ur deep concern regardlng the Amended February
23, 2012 order lssued by the Distrlct Court on November 21, 2012 (the
"Order''). We are concerned that the Dlstrlct Court has misunderstood the role
of Euroc!ear Bank In the payment flows We are further concerned that glving
effect to the Order will Impair the smooth functlonlng of the International bond
markets.
I. IntroductJOD
Euroclear Bank SA/NV ("Euroclear Bank") Is a user-owned and user-governed
commerclal bank and securitles settlement system Incorporated In Belgium. It
is regulated by the National Bank of 6elglum and has Its registered office at 1
Boulevard du Rol Albert U, B-121O Brussels, Belglum.
Euroclear Bank 15 a member of the Euroclear Group, which is the world's
largest provider of domestlc and cross-border settlement and related services.
The Euroclear Group Inc!udes, Inter alla, Euroclear Belglum, Euroclear Flnland,
Euroclear France, Euroclear Nederland, Euroclear Sweden, Euroclear UK &
Ireland and Xtrakter Llmlted.
Euroclear Bank provides settlement and related securities services for crossborder
transactions Involvlng domestlc and international bonds, equltles,
Investment funds and derivatives. Its cllents are major financlal Institutions
located in more than 90 countries. Euroclear Bank holds securltles and bookentry
Interests In securltles for partlclpatlng organlzatlons and facilitates the
clearance and settlement of securltles transactions between Euroclear
accounts and between Euroclear account holders and partlclpants of other
securltles settlement systems through electronlc book-entry changes In
accounts of such partlclpants or through other securlties intermediaries.
Euroclear Bank has been asslgned an AA+ rating by Fitch Ratings and an AA
rating by Standard & Poor's. Euroclear Bank has been a hlghly rated firm for
The value of securlties held for Eurodear Bank dients at the end of 2011 was a
record of (10.8 trillion. The value of securitles transactions settled was
(328.5 trillion In 2011.
As a custodian of securlties for its cllents, Euroclear Bank receives income and
redemptlon payments from paylng agents appointed by issuers and then
credlts such amounts to its account holders. Euroclear Bank does not act on
behalf of securltles issuers. Its contraetual obligations are solely to Its
cllents/account holders.
Euroclear Bank has no operations In the United States. It malntains a small
representatlve office In New York for dient relationship and support purposes.
11. Ourconcerns
A. Ihe Order Is oyerly broM
The Order purports to cover "Partlclpants" deflned by the Court as "those
persons and entltles who act In aetlve concert or partlclpatlon wlth the
Republlc, to assfst the Republlc In fulfllling Its payment obllgatlons under the
Exchange Bonds." The Order then goes on to list the Particlpants to fndude
Euroclear Bank under "the clearing corporatlons and systems, depositaries,
operators of clearing systems, and settlement agents for the Exchange
Bonds."
Thls 15 a mlsunderstandlng of the role of Euroclear Bank, Euroclear Bank does
not act In "aetlve concert or partlclpatlon" wlth Argentlna. It has no
contraetual relatlonshfp wlth Argentlna as the Issuer of the ExChange Bonds
and does not act as Its agent. rt merely recelves payments on the Exchange
Bonds on behalf of Its cllents, Euroclear Bank should not be consldered a
Partlclpant under the definition used in the Court Order and Federal Rule of
CIvii Procedure 65(d)(2).
B. Eyroclear Bank 15 an "Intermedlarv bank" ynder Artlc!e 4A of the UCC
The Dlstrict Court In Issuing the Order recognlzed that It could not enjoln the
aetlvlty of any "Intermedlary bank" as defined In Artlcle 4A of the Uniform
Commercial Code (UCC).l The UCC deflnes "Intermedlary bank" as "a
recelvlng bank other than the orlglnator's bank or the beneflclary's bank,"
Euroclear Bank's role Is that of an Intermedfary bank In respeet of payments
on Exchange Bonds. [t receives the funds from the bank of the issuer
Argentlna and then credits the accounts of Its clients wh Ich elther are the
dlrect benefIciaries or aet on behalf of the beneflclarles,
Accordlngly, per the terms of the Order Itself, Euroclear Bank should be
exempt from Its effect. However, the Order speclflcally Identifles Euroclear
Bank as a Particlpant covered under the Order. Thus, there Is an inherent
contradlction wlthln the terms of the Order, clearly, the Distriet Court has not
understood the role of Euroclear Bank In the payment
C. Ihe Order would have an extra-territorial effect
By the express incJuslon of the European securities settlement systems as
Participants in the Order, the District Court has extended its reach weil beyond
its jurlsdlctlon. 2 It aSserts authorlty over Institutions and actlvltles with little
or no connectlon to the United States.
The Exchange Bonds for whlch the Order attempts to constrain the payments
Include a number of Euro-denomlnated Instruments. These bonds are held
entlrely outside the Unlted States and are govemed by Engllsh law. Ihe
payments made on such bonds oecur outside the Unlted States.
Ihe Injunctlon Issued by the Dlstrlct Court purports to enjoln payments made
wlthln the European System of Central Banks TARGET2 real-time gross cash
settlement system. Glvlng effect of the Order will expand the authorlty of the
US courts beyond the borders of the United States to actlvities carrIed out by
govemmental Institutions in Europe. In the Interest of comlty we would
expect that the Court would strlve to avold such a result.
D. The Order Is In dlrect confllct wlth Belgian law
In July 2003, an Interest payment on bonds Issued by Nicaragua was stopped
by a Belglan lower court order served on Euroclear Bank at the request of LNC
Investments which clalmed that such Interest payment was a breach of the
pari passu provision In the governlng documentatlon for such bonds. That
court order prevented Euroclear to accept or make any payments In respect of
Nicaragua bonds.
On appeal, the Brussels Court of Appeal reversed the court order In March
2004 and released EurocJear Bank from the blocking measures. The Court of
Appeal found that Euroclear Bank was a thlrd party to the loan agreement
between Nicaragua Republlc and its lenders (indudlng the pari passu
provision) and that In such capacity, Euroclear Bank could not be forced to
comply wlth any contractual obligation to treat debtors equaliy.
Followlng the Nicaragua ease, Belglan law was amended to prevent any future
Court orders slmilar to the luly 2003 order. Artlcle 9 of the Belglan Act of April
28, 1999 Implementlng the EU Settlement Flnality Directlve as amended by
artlcle 15 of the Law of November 19, 2004 and by subsequent leglslatlon
provldes:
Any cash settlement account malntained with the operator of a
system or wlth a cash settlement agent, as weil as any cash
transfer, through a Belglan or forelgn credlt Institution, to be
credlted to such cash settlement account, can not be attached,
put under sequestration or otherwlse blocked by any means by
a partlclpant (other than the operator or the settlement
agent), a counterpart or a third party. (Euroclear Translation]
2 See Restatement (Thlrd) of Forelgn Relations Law of the Unlted States,
Sectlon 403 (the jurlsdlctlon of astate with respeet to preserlbing law with
respect to matters taklng place outside of Its own terrltory is Ilmited to:
conduet that has or Is Intended to have substantlal effect withln its terrltory;
the actlvlties, etc., of Its own nationais; and conduct that is directed agalnst
the security of the state or agalnst a limited dass of other state Interests).
According to the legislative history of Artlcle 9 and its subsequent amendment,
the purpose of this prohibition to attach or otherwlse block a cash settlement
account or any cash transfer to be credlted to such account Is to avoid any
Impediment to the proper functlonlng of payment or settlement systems and
hence to safeguard the credlbility and the IIquldlty of national and intemational
finandal markets.
Conslderlng this objectlve, the prohibition contained In Artide 9 of the Belgian
Act of April 28, 1999 Implementing the EU Settlement Finality Dlrectlve should
be regarded as a rule of Belglan intematlonal publlc pollcy.
The Implementatlon of the Order on the terms set by the Dlstrict Court would
IIkely lead to a dlrect violation of thls rule of Belglan law to the extent It would
be Interpreted In such a way that Euroclear Bank would be prohlblted from
recelvlng cash payments In relation to the Exchange Bonds from Its
correspondents and from credlting the cash so recelved to lts cllents' cash
settlement account$.
A confUct of laws of thls nature will impact the legal certalnty underplnnlng the
International bond markets and could cause a loss of confldence In the role of
key market lnfrastructure provlders. In the Interest of comlty, we trust that
the Court would not wlsh to permit any action whIch would Interrupt or Impair
the smooth functioning of the bond markets upon whlch so many governments
and Investors over the world rely so heavlly.3
* * * * *
For the above reasons, we submit to the Court that the Order should not be
glven effect under the terms wrltten by the Dlstrlct Court.
We are available to respond to any questions of the Court or to provlde a
formal submission If requested by the Court.
Respectfully submitted on behalf of Euroclear Bank,
