Methodology
Welcome to the sixth edition of the JAUSAS Review of Complex Financial Products.
The criteria followed to determine the scope of the study remains unchanged from the previous edition. The Provincial Appellate Court (Audencia Provincial) rulings refer exclusively to swaps and structured products, as those relating to preferred stock and subordinated debentures continue to be upheld in almost all cases. We have maintained the same criteria as in previous years with regard to Supreme Court (Tribunal Supremo) rulings, and have examined decisions on swaps, structured products and preferred stock. With regard to these latter, the trend set by Provincial Appellate Courts in upholding almost all claims seems to be supported.
In preparing this study, the CENDOJ and Westlaw (Aranzadi) databases of Provincial Appellate Court and Supreme Court rulings have been used.
As in previous years, Provincial Appellate Court rulings have been classified by product, and the number and percentage of decisions handed down in favour of and against investors has been indicated. We have also divided the decisions analysed into private investors and SMEs, in consideration of the still notable differences between success rates of the claims filed by each group. In addition, we have compared results from previous years and have drawn conclusions on how data have performed over time.
For Supreme Court rulings, the decisions in favour of, and against, investors this year have been compared with those of previous years, and each product has been studied separately.
Likewise, we have highlighted the most important rulings of 2017 in the Supreme Court and the Provincial Appellate Courts, as well as those from the first quarter of 2018, including some First Instance decisions.
Copyright Jausas Legal y Tributario SLP.
Introduction
After some years in which the number of court decisions against financial institutions soared, 2016 and 2017 have seen a drop in the number of rulings.
The rulings handed down on appeal dropped from 512 decisions in 2016 to 409 rulings in 2017, due to the sharp drop in claims filed for swaps, despite these continuing to be considerable.
Meanwhile, Supreme Court rulings have doubled, from 79 to 158 in just one year. This number of rulings is unprecedented and, according to Professor Angel Carrasco Perera, they represent half of the rulings of the Civil Chamber of the Supreme Court. (1)
In terms of financial product, only from the perspective of swaps and structured products, there has been a positive avalanche of civil and criminal claims related to the collapse of Banco Popular, which has had some bearing on first instance rulings that will be included in the observatory once they reach the appeal stage.
For the swap, which is the star product of this study, we must highlight that comparisons since 2012 show that, over the past six years, Provincial Appellate Courts have decided in favour of investors on 3,410 occasions. Of those, 2,075 were small and medium enterprises (SMEs) and 1,335 were private individuals. This fact shows the extent to which there has been generalised bad practices in the marketing of swaps.
The Supreme Court ruling of 19 February 2018 on swaps is of particular interest, as it changes the legal doctrine relating to the time bar on annulment due to invalid consent, and indicates that, as of that ruling, the period will be calculated from when the swap agreement matures (rather than on the occasion of the first negative settlement). This will mean that, on the one hand, there may be a rise in the number of claims brought by investors who signed very long-term swaps (normally for very high monetary amounts). On the other hand, the success rate for the investor will rise because many Provincial Appellate Courts (and the Supreme Court thereafter) will consider the deadline countdown to start as of the first negative settlement.
Moreover, we must also highlight the decision of the Spanish National Markets and Competition Commission (CNMC) of 13 February 2018, which imposed a hefty fine of 91 million euros on Caixabank, Banco Santander, BBVA and Banco Sabadell for the sale of derivatives above market price. The decision is an important one because: a) the claimant was a company, operating in renewable energies; b) it documents the existence and widespread nature of bad banking practice by financial institutions in project finance products marketed between 2006 and 2016; c) it highlights that the obligations of loyalty, transparency and information of the financial institution are equally enforceable when the client is classified as a professional investor; and d) it clarifies the obligations of financial institutions and the agent bank, ruling for investors in respect of certain issues that arise in multiple civil proceedings (particularly when the claim amount is high).
The decision of the CNMC was the motivation behind the creation of the first JAUSAS "Observatory on the Case Law of Financial Derivatives at Renewable Energy Companies in Spain" (Observatorio de Jurisprudencia de Derivados Financieros en Empresas de Energías Renovables), the results of which are much more favourable to the investor than those of the general analysis of this report.
For structured products, the report shows that success rates of investors have levelled out.
Our findings on the products included in the observatory show that the foreseeable trend is that the number of lawsuits will increase (as will the number of rulings), particularly those affecting renewable energy companies and interest rate derivatives, where there are big sums of money involved.
Footnotes
1 CARRASCO PERERA, Ángel. Professor of Civil Law of Universidad de Castilla-La Mancha, Academic director of Gómez-Acebo & Pombo. El estado actual de la jurisprudencia sobre la validez y nulidad de los contratos de permuta financiera (swaps). May 2017.
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