4.5 Summary of the Thule Drilling Cases
When dealing with the Nordic Trustee’s title to sue, the Supreme Court found such compelling reasons that it saw no other option than to make an exception from the main rule concerning a representative’s lack of title to sue in its own name. The main line of reasoning was that: (i) the bondholders had no other viable alternative than to unite in a legal action via the Nordic Trustee, be it for claims in contract or tort, (ii) the parties have established a contractual framework to cater for the former, (iii) this framework is well regarded within the financial market nationally and internationally, and (iv) an action by the Nordic Trustee secured the equal treatment of the bondholders as well as a fair allocation of litigation costs.
It can be deduced from these rulings that the concerns raised in Rt. 1989 s. 338 (Eviction) and Rt. 2006 s. 238 (American Receiver) were considered less present when it came to an action by the Nordic Trustee, or even the IPR manager in Rt. 2010 s. 646. The need for allowing these suits was stronger than those of an ordinary representative. An ordinary representative lacks (i) the acknowledged contractual framework, and (ii) the authority to independently make dispositions with binding effect upon the principal. Nonetheless, the main rule concerning a representative’s lack of a right of action still applies, as the Thule Drilling cases only constitute an exception.
Surprisingly, the Supreme Court did not consider the Financial Collateral Act of 2004, although the Nordic Trustee presumably relied upon it in its pleadings.(1) The Nordic Trustee made this argument in the Court of Appeal case, LB-2009-96441 (n 29) By virtue of section 1 of this Act, a trustee – as security holder – may initiate enforcement proceedings based on the procedure agreed in the bond terms. It would be pointless to authorise the Nordic Trustee as a security holder, if it did not have title to sue or be sued in respect of that security or to file a petition for bankruptcy against the issuer or another obligor. Perhaps the Supreme Court did not find it necessary to point this out, or it sought to avoid having to deal with the EEA-regulation incorporated by the Financial Collateral Act.(2) Directive 2002/47/EF