BARCLAYS BANK MEXICO S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BARCLAYS MEXICO Plaintiff,
DESARROLLADORA HOMEX, S.A.B. De C.V., Defendant. Index No. 651681/2013
MOTION DATE August 9, 2013
DECISION AND ORDER
O. PETER SHERWOOD, Justice.
On this motion to dismiss pursuant to CPLR 3211(a)(8), defendant Desarrolladora Homex, S.A.B de C.V. ("Homex") moves to dismiss for lack of personal jurisidiction. For the following reasons, the motion is denied. .
Plaintiff Barclays Bank Mexico SA., Institution de Banca Multiple, Grupo Financiero Barclays Mexico ("BBMex") is a Mexican financial institution. Homex is a publically traded home construction company based in Mexico. On February 15, 2012, BBMex and Homex entered into the standard agreement that governs derivatives transactions: the 1992 ISDA Master Agreement (the "Master Agreement"), which pursuant to usual custom and practice, includes and incorporates a Schedule (the "Schedule").
Pursuant to Section 1(c) of the Master Agreement, the Master Agreement, the Schedule, and all subsequent Confirmations form a single agreement (the "Agreement") that governs all relevant transactions between the parties. The Master Agreement provides that "[i]n the event any inconsistency between the provisions of Schedule and the other provisions of [the] Master Agreement, the Schedule will prevail" (Master Agreement §1 [b]). It further provides that "[i]n the event of any inconsistency between the provisions of any Confirmations and [the] Master Agreement (including the Schedule), such Confirmation will prevail/or the purpose of the relevant transaction" (id. [emphasis added]).
The Master Agreement specifies the following with regard to governing law:
(a) Governing Law. The Agreement will be governed by and construed in accordance with the law specified in the Schedule
(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement ("Proceedings"), each party irrevocably:
(i) submits to the jurisdiction of the English courts if this Agreement is expressed to be governed by English law, or to the non-exclusive jurisdiction of the courts of the State of New York . . . if this agreement is expressed to be governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court . . . [and] waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.
(id. § 13).
The Schedule, also dated February 15, 2012, provides that New York law governs the parties' agreement (Schedule Part 4 [h]). Attached as an appendix to the Schedule is a Legal Opinion by Javier Romero Castaneda, Homex's General Counsel. In the opinion, Castaneda confirms that Homex's submission to the jurisdiction of the courts of ...