30 September 2019 - Post by:Briony Langley-Miles
In Lamesa v Cynergy, the High Court clarified the meaning of “in order to comply with any mandatory provision of law” in an English law governed facility agreement, allowing the borrower to avoid making payments where to do so might breach U.S. federal law imposing secondary sanctions.
Lamesa, acting as lender, was a Cypriot company wholly owned by a group company registered in the British Virgin Islands. The group company’s owner was added to a list of “Specially Designated Nationals” by the U.S. Department of The Treasury Office for Foreign Assets Control, more commonly known as OFAC. As a result Lamesa became a “blocked person” under a U.S. federal law, exposing Cynergy, the borrower, to secondary sanctions if it made payments to Lamesa. This would be ruinous to Cynergy’s business given its activities in the U.S..
Cynergy therefore refused to make payments, relying on a clause in the facility agreement stating that it would not be in breach if “sums were not paid in order to comply with any mandatory provision of law, regulation, or order of any court of competent jurisdictions.”
The court rejected Lamesa’s contention that “provision of law” meant “a law applying to a UK party, acting in the UK, that has agreed to make a sterling payment pursuant to a contract governed by English law”, finding that:
- in the absence of any express territorial qualification, “mandatory provision of law” could not be confined to English law;
- “mandatory provision of law” meant a provision of law that the parties could not vary or disapply (drawing from the use of that phrase in the Rome Convention and the Rome I Regulation); and
- “in order to comply” – where the real interpretation issue arose – as well as meaning compliance where the law expressly prohibited payment and compliance to avoid a penalty imposed by law, also covered compliance so as to avoid the possible imposition of a penalty by law given that the parties were aware that Lamesa may become subject to U.S. sanctions at the time the contract was executed.