Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 2 of 50

IN ARBITRATION PURSUANT TO THE RULES OF ARBITRATION

OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

______________________________________________________________________________

BETWEEN:

ANTONIO DEL VALLE RUIZ, ET AL.,

Claimants

vs.

KINGDOM OF SPAIN,

Respondent

______________________________________________________________________________

NOTICE OF ARBITRATION

Javier H. Rubinstein
Lauren F. Friedman
Lucila I. M. Hemmingsen
Pilar Colomés Iess
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: +1 212-446-6405

Counsel for Claimants

Date: August 23, 2018

 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 3 of 50

TABLE OF CONTENTS

Page

I. INTRODUCTION AND SUMMARY ............................................................................... 1

II. PARTIES TO THE ARBITRATION ................................................................................. 4
III. FACTUAL BACKGROUND............................................................................................. 6
A. Banco Popular......................................................................................................... 6

B. Claimants’ Investments in Banco Popular.............................................................. 7

C. The Spanish Government’s Traditional and Consistent Role in Actively

Supporting Spanish Banks Facing Liquidity Crises. .............................................. 8

D. Banco Popular’s Efforts to Overcome the 2008 Financial Crisis. ........................ 11

E. The EU SRM Framework and Banco Popular’s 2016 Resolution Plan. .............. 11

F. Respondent Substantially Causes the Liquidity Crisis That Led to Banco

Popular’s Demise. ................................................................................................. 15

G. Banco Popular’s Efforts to Overcome the Growing Liquidity Crisis................... 17

H. The Final Run on the Bank and Resolution of Banco Popular. ............................ 20

I. Respondent’s “Auction” and Fire Sale of Banco Popular to Santander. .............. 24

J. Respondent’s Unlawful Destruction of Claimants’ Investments.......................... 31

IV. RESPONDENT’S MULTIPLE VIOLATIONS OF THE MEXICO-SPAIN

TREATY........................................................................................................................... 35
A. Respondent Breached Its Obligation to Offer Fair and Equitable Treatment
and Full Protection and Security to Claimants’ Investments, in Violation of
Article IV of the Treaty......................................................................................... 36

B. Respondent Failed To Accord Claimants the More Favorable Fair and

Equitable Treatment Guarantees Accorded to Investors from Third States in
Other BITs, In Violation of Article III of the Treaty. ........................................... 39

C. Respondent Failed To Accord Claimants With Treatment As Favorable As

It Accorded To Its Own Investors And Investors From Third States. .................. 39

D. Respondent Expropriated Claimants’ Investments without Compensation.......... 40

V. JURISDICTION ............................................................................................................... 42
A. Claimants are Protected Investors under the Treaty. ............................................ 42

ii
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 4 of 50

B. Claimants Made Qualifying Investments Under the Treaty. ................................ 42

C. Claimants Meet all Treaty Requirements. ............................................................ 43

D. Arbitration Under the UNCITRAL Arbitration Rules is Proper. ......................... 44

VI. CONSTITUTION OF THE TRIBUNAL, SEAT, statement of claim, AND

LANGUAGE .................................................................................................................... 44
VII. CLAIMANTS’ REQUEST FOR RELIEF........................................................................ 45

iii
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 5 of 50

I. INTRODUCTION AND SUMMARY

1. Pursuant to Article 3 of the United Nations Commission on International Trade Law

(UNCITRAL) Arbitration Rules and Chapter III, Section One of the Agreement on the
Promotion and Reciprocal Protection of Investments Between the United Mexican States
and the Kingdom of Spain (Treaty), 1 a group of Mexican shareholders and bondholders in
Banco Popular Español, S.A. (collectively Claimants) hereby submit their Notice of
Arbitration against the Kingdom of Spain (Spain or Respondent).
2. The instant arbitration (UNCITRAL Arbitration) is commenced concurrently with a
second arbitration brought under the auspices of the Convention on the Settlement of
Investment Disputes between States and Nationals of other States (the ICSID Convention)
by another group of Mexican investors in Banco Popular Español, S.A. (the ICSID
Arbitration). Claimants in the instant proceeding are dual nationals holding both Mexican
and Spanish citizenship, and therefore are prevented from participating in the ICSID
Arbitration pursuant to Article 25(2)(a) of the ICSID Convention. However, in order to
promote the efficient resolution of the parallel disputes, Claimants have proposed to Spain a
consensual consolidation of the UNCITRAL Arbitration and the ICSID Arbitration to be
administered by ICSID. Claimants seek to empanel one single tribunal to consider the
parallel disputes in one single proceeding with joint filings, documents, and hearings, while
respecting the separate rules applicable to the two groups of Claimants. Should such a
consensual consolidation not be agreed between Claimants and Spain, Claimants will
communicate so to the tribunal and/or ICSID. In the event the arbitrations cannot be
consolidated, Claimants propose that ICSID serve as the appointing authority in the present
dispute and that it also provide administrative support throughout the proceedings.
3. On January 22, 2018, Claimants filed a letter of notification to submit a claim to arbitration
under the Treaty and requested that Spain engage in settlement discussions. 2 To date,
Respondent has failed to contact the Claimants or accept the invitation to discuss settlement.

1
See Agreement on the Promotion and Reciprocal Protection of Investments between the United Mexican States
and the Kingdom of Spain, dated October 10, 2006, Exhibit CRFA-1.
2
See Notice of Dispute Pursuant to Agreement on the Promotion and Reciprocal Protection of Investments between
the United Mexican States and the Kingdom of Spain sent to the President of Spain, dated 22 January 2018,
Exhibit CRFA-7.
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 6 of 50

Pursuant to Articles IX(3) and XI of the Treaty, Claimants submit this Request more than
six months after delivery of their letter of notification to Spain.
4. Claimants’ claims arise out of events that caused the destruction of Claimants’ investments
in Banco Popular Español, S.A. (Banco Popular), and Respondent’s acts and omissions
leading to the loss of their investments, all in violation of the Treaty.
5. In 2017, Banco Popular was Spain’s sixth largest bank and one of the only Spanish banks
that never requested or received state aid in the form of capital injections or asset transfers
during the financial crisis. Banco Popular did have its share of financial challenges, mostly
due to a significant number of non-performing loans dating back to 2007. Banco Popular
implemented a series of transactions and strategies thereafter to stabilize and improve its
financial condition. This included capital raises in 2013 and 2016, in which Claimants
participated, investing, in conjunction with the claimants in the UNCITRAL Arbitration,
more than € 470 million. While challenges remained, Banco Popular continued as a solvent
and valuable financial institution, with a leading position in the Spanish SME market.
6. In 2016, Respondent and other depositors started withdrawing substantial volumes of
deposits from Banco Popular, progressively weakening the bank’s liquidity position.
Concerned about these withdrawals, and particularly the government’s withdrawals of over
€ 5.5 billion in late 2016/early 2017, Banco Popular expressed its liquidity concerns to the
Spanish central bank (the Banco de España) by February 2017 and sought to arrange
liquidity assistance. In April/May 2017, deposit withdrawals continued to increase, causing
Banco Popular to fall below the required regulatory minimum liquidity threshold by May
2017.
7. Banco Popular was not the first Spanish bank to experience such problems. In fact, dozens
of Spanish banks had suffered serious liquidity and capital shortages during and after the
financial crises of 2008-2009 (worldwide financial crisis) and 2010-2012 (Spanish sovereign
bond crisis, which also affected other European countries such as Portugal, Ireland, Greece
and Italy). Throughout those periods, and even to the present day, Respondent has provided
support to Spanish banks through a combination of measures, including emergency liquidity
assistance and debt guarantees (issued in 2009 and guaranteed by the Kingdom of Spain to
support certain financial institutions). In all, Respondent provided more than € 100 billion
in financial support to Spanish banks during and after the financial crises.

2
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 7 of 50

8. Yet, in 2017, when Banco Popular faced a liquidity crisis, Respondent inexplicably refused
to provide assistance until just hours before Banco Popular’s resolution, when it was too late
and the assistance offered was far less than was required. Respondent also precipitated the
eventual run on the bank that led to Banco Popular’s demise and the destruction of
Claimants’ investments. Through its withdrawal of billions of Euros in deposits, Respondent
substantially weakened Banco Popular’s financial condition. Respondent also refused to
offer any meaningful liquidity assistance, insisting on unprecedented and unreasonable
collateral requirements. Respondent also failed to take measures to stop the growing deposit
outflows in 2017, such as public expressions of confidence in Banco Popular to depositors,
public encouragement of depositors to keep their deposits at Banco Popular, communicating
Respondent’s express support to Banco Popular, taking steps to stop Respondent’s own
continuing deposit withdrawals from Banco Popular, and other measures that Respondent
has used for other banks facing liquidity crises. In fact, Respondent itself contributed to a
further loss of depositor confidence by publicly stating it would not provide any financial
support to Banco Popular. In May 2017, the media reported statements by Spanish and EU
officials suggesting that Banco Popular was in imminent risk of being placed into resolution,
leading to an all-out run on the bank in the last week of May and first week of June, with
billions of Euros withdrawn each day. Throughout this grave liquidity crisis, Respondent
simply stood by and watched, opting to let a solvent bank fail in order to engineer the bank’s
sale to Santander or another large bank via the EU’s newly implemented resolution
framework.
9. On June 6, 2017, unable to withstand the continuing run on its deposits, Banco Popular’s
President, Emilio Saracho, informed the European Central Bank that it was running out of
cash and therefore was “likely to fail.” Banco Popular was placed into resolution within a
matter of hours, sold to Santander for € 1 through a fire sale process that Respondent already
had engineered, with Santander as the only bidder.
10. The consequences of the resolution were devastating, wiping out the investments of more
than 300,000 Banco Popular shareholders and Additional Tier 1 bondholders at a time when
Banco Popular had a net assets value of €10.8 billion. Claimants alone lost their entire
original investment, which, together with the investment of the claimants in the UNCITRAL
Arbitration, was of more than € 470 million.

3
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 8 of 50

11. Banco Popular was a solvent and valuable financial institution that never should have been
placed into resolution, and would not have been but for Respondent’s unlawful conduct in
precipitating Banco Popular’s liquidity crisis and then using it to justify the bank’s resolution
and “sale” to Santander. Respondent’s lack of active support of Banco Popular and the
facilitation of its resolution also ignored the many private solutions that would have
stabilized Banco Popular’s financial situation, averting a resolution and protecting the rights
and interests of Banco Popular investors.
12. Respondent’s acts and omissions violated Claimants’ rights under the Treaty, including its
rights to fair and equitable treatment and full protection and security (Article IV), national
treatment and most favored nation treatment (Article III), and protection against
expropriation without due process and just compensation (Article V).
13. Claimants seek to recover the damages arising from Respondent’s breaches of its obligations
under the Treaty, in an amount to be determined, together with compound interest calculated
from the date of the breach until the date of payment of the award, and the costs of this
arbitration, including, without limitation, attorney’s fees and other expenses, and any further
relief that the Tribunal deems appropriate.

II. PARTIES TO THE ARBITRATION

14. Claimants in this arbitration are 8 Mexican physical persons, who are also nationals of Spain.
Pursuant to Article X(3) of the Treaty, Claimants submit their claims individually and on
their own behalf. Proof of Claimants’ Mexican nationality is included with this Request.3
The contact information for Claimants appears below 4:

Kaluz, S.A. de C.V.

Paseo de la Reforma 365
Ciudad de México, 06500 México

DRB Abogados
Bosque de Alisos 45 A Piso 3
Col. Bosques de las Lomas
Ciudad de México, 05120 México

3
Copies of the Identity Documents of Claimants are attached hereto as Appendices CRFA-A-1 to CRFA-A-8.

4
A list of contact details for all Claimants is provided in Appendix CRFA-D.

4
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 9 of 50

Graham Abogados, S.C.

Tehuantepec 170, Torre B piso 3
Colonia Roma Sur
Ciudad de México, 06760 México

15. Claimants are represented in these proceedings by Kirkland & Ellis LLP and have authorized
their lawyers to act and sign on their behalf in these proceedings. 5 All correspondence and
notices to Claimants should be addressed to counsel for Claimants at the following address:

Javier H. Rubinstein
Lauren F. Friedman
Lucila I. M. Hemmingsen
Pilar Colomés Iess
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Tel: 212-446-4800
Fax: 212-446-4900
Email: javier.rubinstein@kirkland.com
lauren.friedman@kirkland.com
lucila.hemmingsen@kirkland.com
pilar.colomes@kirkland.com

16. Respondent is the Kingdom of Spain. Claimants understand that Respondent’s address, for
the purposes of these proceedings, is as follows:

Abogacía General del Estado – Dirección del Servicio Jurídico del Estado
Calle San Bernardo, 45
28015 Madrid
España

17. This Notice of Arbitration has been served on Respondent at each of the following addresses:

Sr. Pedro Sánchez Pérez-Castejón

Presidente del Gobierno
Gobierno de España
Complejo de La Moncloa
Avda. Puerta de Hierro s/n
28071 Madrid
España

Abogacía General del Estado – Dirección del Servicio Jurídico del Estado
Calle San Bernardo, 45

5
Copies of the Powers of Attorney of Claimants are attached hereto as Appendices CRFA-B-1 to CRFA-B-8.

5
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 10 of 50

28015 Madrid
España

III. FACTUAL BACKGROUND

A. Banco Popular

18. Banco Popular was formed in 1926 as a local bank servicing Spanish customers. Over time,
Banco Popular substantially grew and by December 2016 had become Spain’s sixth largest
bank, with total assets of approximately € 148 billion and 1,739 branches worldwide. 6
19. Historically, Banco Popular’s core business consisted of a strong Spanish retail franchise,
with a focus on lending of credit to small and medium-sized enterprises (SMEs), including
mortgages and other home loans to retail customers. Banco Popular was widely regarded
for its leading position in serving the SME segment of the economy.
20. Banco Popular played an important role in the provision of financial services to the Spanish
economy, with a leading market position and a market share of 17.7% as of December 31,
2016 (up from 14.0% in 2012). 7
21. Banco Popular was also a significant employer in Spain with 10,671 employees as of
December 31, 2016. 8 Banco Popular was listed on the Spanish Stock Exchanges (Madrid,
Barcelona, Valencia and Bilbao), was part of the IBEX35 (consisting of the 35 most liquid
and highest market capitalization companies in Spain), and was an active participant in both
Spanish and European capital markets until its resolution on June 7, 2017.

6
Banco Popular, Annual Report of 2016, http://www.grupobancopopular.com/EN/InvestorRelations/Financial
Information/Documents/2017/Annual%20Report popular2016 %20PC EN.pdf (last accessed 14 August 2018),
p. 26, 99.
7
Id. p. 35; Banco Popular, Annual Report of 2012,
http://www.grupobancopopular.com/EN/InvestorRelations/FinancialInformation/Documents/2012/Annualreport
2012.pdf (last accessed 14 August 2018), p. 34.

8
Banco Popular, Annual Report of 2016, http://www.grupobancopopular.com/EN/InvestorRelations/Financial
Information/Documents/2017/Annual%20Report popular2016 %20PC EN.pdf (last accessed 14 August 2018),
p. 11. Banco Popular branches comprised 5.5% of the total number of bank branches in Spain (i.e. 28,959), see
Statistical Bulletin from Bank of Spain, Number of branches and representative offices of credit institutions and
Banco de España, https://www.bde.es/webbde/es/estadis/infoest/a0447e.pdf (last accessed 14 August 2018),
§ 4.47.

6
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 11 of 50

B. Claimants’ Investments in Banco Popular

22. In 2013, Banco Popular executives visited Mr. Antonio del Valle Ruiz and certain other
Claimants in Mexico to propose mutual investments between Banco Popular and Mexican
bank Ve por Más, part of the Mexican financial group Grupo Financiero Ve por Más, S.A.
de C.V., which was primarily owned by the del Valle family. In late 2013, a group of
Mexican investors, including Claimants, negotiated a capital raise for Banco Popular,
expressly carried out for, and fully subscribed by, the group of Mexican investors, totaling
€ 450 million. 9 It also was agreed that Banco Popular would cross-invest € 100 million in
Ve por Más, acquiring a 24.9% stake and obtaining two seats on its board. The group of
Mexican investors, including Claimants, completed the capital raise in December 2013 at a
price of € 3.95 per share, acquiring approximately 6% of the Banco Popular’s capital (this
participation was later reduced to 4.3% as some of the group’s investors sold their shares).
In February 2014, some of the Claimants met with the Governor of the Banco de España,
Luis Linde, who thanked the Claimants for their trust in Spain and the considerable
investment made in one of its banks. Mr. Linde also stated that Banco Popular was in good
financial standing and that he trusted its management, thus confirming the Mexican
investors’ understanding of the bank’s financial condition and that Banco Popular was a
sound investment. The investment made by the Mexican group of investors, including
Claimants, was so considerable that they earned a seat on the Banco Popular Board. In April
2014, after clearance from the Spanish banking authorities, Mr. del Valle was appointed as
a member of Banco Popular’s Board of Directors, representing Claimants’ interests.
23. During the ensuing years, some of the Claimants made additional investments in Banco
Popular; many of the Claimants opted to receive the dividends paid by Banco Popular as
shares, thus reinvesting those dividends and increasing their investment.
24. On May 26, 2016, Banco Popular announced a plan to raise the bank’s capital by
€ 2.5 billion, issuing approximately two billion new shares at a price of € 1.25 euros per

9
Comisión Nacional del Mercado de Valores of Spain (“CNMV”), Relevant Fact from Banco Popular,
18 December 2013, https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed
14 August 2018).

7
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 12 of 50

share. 10 The capital raise was part of a broader plan announced in 2016, known as “Plan
2018,” the goal of which was to strengthen the bank’s balance sheet and improve its
profitability, and allow the bank to achieve a Common Equity Tier 1 (CET1) capital ratio
of 12%.
25. The group of Mexican investors, including Claimants, decided to invest in the 2016 capital
raise both to support Banco Popular’s strategic objectives and to prevent a dilution of their
ownership stake. The group of Mexican investors, including Claimants, invested
approximately € 100 million to maintain their ownership position of 4.3%.

C. The Spanish Government’s Traditional and Consistent Role in Actively

Supporting Spanish Banks Facing Liquidity Crises.

26. Starting in 2007, Spain suffered one of the most severe financial crises amongst the EU
member states. From 2009 to 2013, Spain’s gross domestic product contracted by 8.9%,
with public debt reaching a record high of 100.4% of GDP in 2014 and unemployment
peaking at 26.1% in March 2013. 11
27. The crisis heavily impacted the country’s financial industry, which had over-invested in the
real estate sector during the years leading up to 2008. By November 2012, bad debt in the
banking sector had reached a record high of € 197 billion—more than ten times higher than
the € 17 billion recorded in December 2007. 12 During this period, numerous Spanish banks
experienced solvency and liquidity problems, aggravated by increasing difficulties in
accessing wholesale funding and the drying up of short-term interbank liquidity.
28. Throughout the banking crisis, the Banco de España, consistent with the internationally
accepted role of national central banks, discharged its duties and responsibilities as the lender
of last resort in Spain, including the provision of liquidity support to solvent Spanish banks
facing liquidity crises.

10
Official Bulletin of Spanish Commercial Registry, No. 100, Announcement of Capital Raise o Banco Popular
Español. S.A., 27 May 2016, https://www.boe.es/borme/dias/2016/05/27/pdfs/BORME-C-2016-5690.pdf (last
accessed 14 August 2018).

11
World Bank Database, showing annual GDP growth for the years 2009 through 2013 was: -3.57%, +0.01%, -
1.00%, -2.93%, -1.71%; https://data.worldbank.org/country/spain (last accessed 14 August 2018). See also
Statistical Bulletin of Bank of Spain, https://www.bde.es/webbde/es/estadis/infoest/bolest.html, §§ 2.9, 24.1.

12
Id. § 4.1.

8
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 13 of 50

29. Through the Banco de España and other public entities, the Spanish government consistently
played an active role in helping to stabilize banks, enhance depositor and investor confidence
and reform its ailing savings bank sector. This was done through a combination of measures,
including state guarantees of senior debt and the strengthening of solvency rules. The Banco
de España adopted various measures to strengthen the liquidity of financial institutions,
seeking to enhance depositor and investor confidence, rescuing troubled banks, and
reforming the savings bank sector.
30. In 2009, Spain created the Fondo de Reestructuración Ordenada Bancaria (“Fund for Orderly
Bank Restructuring”) (FROB), for the purpose of overseeing mergers, acquisitions and the
orderly restructuring of failing financial institutions. In 2012, Spain created the Sociedad de
Gestión de Activos Procedentes de la Reestructuración Bancaria (Sareb), designed for
nationalized financial institutions and those being restructured to submit their non-
performing or problematic assets.
31. Between 2009 and 2012, Spain provided substantial liquidity assistance in the form of
guaranteed senior debt totaling € 110.9 billion,13 of which € 96.2 billion (86.7%) was granted
to Spanish savings banks. Five banks alone received € 72.8 billion in liquidity guarantees,
including Bankia (€ 34.8 billion), Catalunya Caixa (€ 10.8 billion), Banco Cívica (€ 10.7
billion), Banco CAM (€ 8.9 billion), and Novacaixagalicia (€ 7.6 billion). 14 Respondent
also granted liquidity support to Spanish banks outside of the Spanish Guarantee Scheme,
most notably to Bankia, Banco CAM, Caja Castilla-La Mancha, CajaSur and Banco Gallego,
totaling € 26.3 billion between 2009 and 2013. 15

13
Spanish Treasury, Liabilities guaranteed by the Spanish General State Administration under the 2008 Year
Programme, http://www.tesoro.es/en/guaranteed-issues-general-state-administration-under-2008-year-
programme (last accessed 14 August 2018); Spanish Treasury, Liabilities guaranteed by the Spanish General
State Administration under the 2009 Year Programme, http://www.tesoro.es/en/guaranteed-issues-general-state-
administration-under-2009-year-programe (last accessed 14 August 2018); Spanish Treasury, Liabilities
guaranteed by the Spanish General State Administration under the 2012 Year Programme,
http://www.tesoro.es/en/guaranteed-issues-general-state-administration-0#overlay-context=prevencion-del-
blanqueo-y-movimiento-de-efectivo (last accessed 14 August 2018).

14
Own production made from information at Spanish Treasury website,
http://www.tesoro.es/search/node/emisiones%20avaladas (last accessed 14 August 2018).
15
Bankia received €19 billion in 2012, Banco CAM, € 3 billion in 2011, Caja Castilla de la Mancha € 1.5 billion in
2009, Caja Sur € 1.98 billion between 2009 and 2012 and Banco Gallego €0.8 billion in 2013. See, EC
Competition Database Files SA.34820, SA.34255, NN61/2009, N202-2010 and SA.36500 respectively,

9
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 14 of 50

32. As of December 31, 2016, the Banco de España estimated that the total net cost of all bank
rescue measures since the beginning of the financial crisis would reach € 62.8 billion,
including the Spanish government rescues of BFA-Bankia (€ 13.2 billion), Catalunya Banc
(€ 12.7 billion), CAM (€ 11.1 billion), Novacaixagalicia (€ 9.3 billion), and Banco de
Valencia (€ 6.2 billion). 16
33. Throughout this period, the Banco de España actively and consistently fulfilled its duty as
lender of last resort in Spain, aiding banks facing liquidity crises, in line with the duties
entrusted to all national central banks globally. As investors in a Spanish bank, Claimants
reasonably expected that the Banco de España would duly and properly discharge its role as
lender of last resort if Banco Popular ever faced a liquidity crisis. After the implementation
of the EU SRM framework in 2014, the national central banks of the EU retained the
responsibility for providing liquidity assistance, which investors reasonably relied upon.
Claimants also reasonably expected that Respondent would continue to provide other forms
of supervisory and regulatory support to solvent banks facing liquidity crises, including
public expressions of support designed to reassure depositors, mitigate bank runs and assist
banks in overcoming liquidity crises in order to maintain the stability of the Spanish banking
system.
34. Claimants’ reasonable expectations regarding Respondent’s historic support of solvent
Spanish banks, including, but not limited to, the Banco de España’s role as the lender of last
resort in Spain, was reinforced by Respondent’s consistent and active support of Spanish
banks that were experiencing liquidity and solvency challenges in order to stabilize them
and protect the Spanish banking sector. Such supervisory and regulatory support was
essential to Respondent’s obligation to provide a stable, predictable and reliable legal,
regulatory and commercial environment, making it safe to invest in Spanish banks.

http://ec.europa.eu/competition/elojade/isef/index.cfm?clear=1&policy area id=3 (last accessed 14 August

2018).
16
Bank of Spain, Report on the Financial and Banking Crisis in Spain, 2008-2014,
https://www.bde.es/f/webbde/Secciones/Publicaciones/OtrasPublicaciones/Fich/InformeCrisis Completo web
en.pdf (last accessed 14 August 2018), p. 236.

10
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 15 of 50

D. Banco Popular’s Efforts to Overcome the 2008 Financial Crisis.

35. In contrast to most other Spanish banks, Banco Popular emerged from the 2008 financial
crisis on its own, without requesting or receiving any state aid in the form of capital
injections or asset transfers. Like many other European banks, Banco Popular held many
non-performing loans (NPLs) in 2008 and was minimizing the effect they had on its balance
sheet. As a result, starting in 2008, Banco Popular took a number of significant asset write-
downs.
36. To overcome the financial crisis and the growing provisions required as a result of the NPLs
and non-performing assets (NPAs), Banco Popular carried out capital raises in 2012 and
2013. In November 2012, Banco Popular raised € 2.5 billion. 17 The following year, Banco
Popular carried out the capital raise designed exclusively for the group of Mexican investors,
including the Claimants, raising € 450 million. 18
37. Notwithstanding the effect of the NPAs on Banco Popular’s financial position, Banco
Popular still did not seek or receive any state aid in the form of capital injections or asset
transfers. This again stood in sharp contrast to other troubled Spanish banks that regularly
received state aid from Respondent in multiple forms.

E. The EU SRM Framework and Banco Popular’s 2016 Resolution Plan.

38. On July 15, 2014, the EU Single Resolution Mechanism Regulation (the SRMR) was
enacted, consisting of two pillars: the Single Supervisory Mechanism (SSM) and the Single
Resolution Mechanism (SRM). 19
39. The SSM is a system of banking supervision for Europe, comprising the European Central
Bank (ECB) and the national supervisory authorities of the EU Member States. Under the
SSM, each systemically important bank in the EU (which included Banco Popular given the

17
CNMV, Relevant Fact from Banco Popular, 10 November 2012,
https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed 14 August 2018),
Relevant Fact from Banco Popular, 4 December 2012,
https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed 14 August 2018).

18
CNMV, Relevant Fact from Banco Popular, 18 December 2013,
https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed 14 August 2018).

19
The SRMR entered into force on 19 August 2016.

11
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 16 of 50

size of its balance sheet) is required to establish and maintain a resolution plan that would
guide any eventual resolution process if the bank were ever failing or likely to fail.
40. The SRM is comprised of the Single Resolution Board (SRB), a central resolution authority,
and the national resolution authorities of EU Member States. The ECB is the supervisor of
the SRM process, and plays a key role in deciding whether a bank is failing or likely to fail.
41. A resolution pursuant to the SRM involves the restructuring of a bank using a combination
of specified statutory resolution tools. Pursuant to the SRM Regulation, there are four
possible resolution tools:

a. the sale of business tool (total or partial disposal of an entity’s assets, liabilities
and/or shares to a private purchaser);
b. the bridge institution tool (transfer of part or all of the assets, liabilities and/or
shares to a controlled temporary entity);
c. the asset separation tool (transfer of assets to an asset management vehicle); and
d. the bail-in tool (write-down or conversion of equity and debt, placing the burden
on the shareholders and creditors of a bank, rather than on the public). 20

The selection of tool(s) to be used is agreed and reflected in each bank’s resolution plan.

42. In order to place an entity into resolution, the SRB must confirm that: (1) the bank is failing
or likely to fail, (2) there are no supervisory or private sector measures that can restore the
bank to viability within a reasonable timeframe, and (3) resolution is necessary for the public
interest (i.e., that resolution is preferable to normal insolvency proceedings). 21
43. On October 2, 2015, almost two years after the Claimants’ original investment in Banco
Popular, Spain ratified the Intergovernmental Agreement, which authorized implementation

20
Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform
rules and uniform procedure for the resolution of credit institutions and certain investment firms in the framework
of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010
(“SRM Regulation”), 15 July 2014, Official Journal of the European Union, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32014R0806&from=EN (last accessed 14 August 2018), Arts. 21, 22,
24-27.

21
Id. Art. 18.

12
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 17 of 50

of the SRM framework in Spain. 22 The Agreement entered into force on January 1, 2016,
the date on which the SRM became fully operational, over two years after the Claimants’
first investment in Banco Popular.
44. While systemically important banks are subject to supervision by the ECB and SRB under
the SRM, the responsibility for monitoring bank liquidity and providing emergency liquidity
assistance to such banks remained with the Member States even after the SRM went into
effect, and remains so to this day. Emergency liquidity assistance is subject to ECB approval
only when the ELA requested exceeds € 2 billion, with ECB review then limited to ensuring
that the provision of ELA would not violate ECB guidelines.
45. With respect to Spanish banks, including Banco Popular, the responsibility for monitoring
the bank’s liquidity position, considering ELA requests and providing ELA rested with
Spain’s lender of last resort, the Banco de España, not the ECB. Respondent, through the
Banco de España and other government authorities, continued to provide various forms of
assistance to Spanish banks even after the introduction of the SRM framework.
46. Member States also play a key role in the resolution process. According to the SRB
Directive, because of the consequences that failure of a financial institution may have on the
economy, including the possible need for public funds, “the Ministries of Finance and other
relevant ministries should be closely involved, at an early stage, in the process of crisis
management and resolution.” 23 As explained by the European Commission:

“National resolution authorities are closely involved in the resolution

process. They assist the Board in preparing its actions which will draw on
their expertise and experience, for example in the form of staff exchanges.
Crucially, national authorities are also in charge of implementing the
resolution decisions in line with national company and insolvency law.

22
Instrument for the ratification of the Agreement on the transfer and mutualization of contributions to the Single
Resolution Fund, 21 May 2014, Spanish Official Bulletin, https://boe.es/diario boe/txt.php?id=BOE-A-2015-
13769 (last accessed 14 August 2018).

23
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework
for the recovery and resolution of credit institutions and investment firms and amending Council Directive
82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU,
2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European
Parliament and of the Council L173/193,15 May 2014. Official Journal of the European Union, https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0059&from=en (last accessed 14 August 2018),
Whereas (16).

13
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 18 of 50

Member States are thus integrated into the mechanism in the preparatory
and implementation stage regarding banks in their jurisdiction.” 24

47. Accordingly, the Spanish government played an active and central role at every stage of the
resolution process with Banco Popular (described below). As the Chair of the SRB, Ms.
Elke König, confirmed in a public hearing of the ECON Committee of the European
Parliament, the decision to resolve Banco Popular was taken jointly by the SRB and the
Spanish government: “the SRB, together with the Spanish national authorities, unanimously
decided to take resolution action with respect to Banco Popular.” 25
48. A resolution decision is taken by the SRB Executive Committee, which includes a
representative of the Member State where the subject bank is located. 26 If a resolution
decision is taken, national resolution authorities then implement the resolution decisions at
the Member State level, in accordance with EU and local laws. 27
49. In 2016, following the implementation of the SRM framework in Spain, Banco Popular
developed and agreed a resolution plan with the SRB and Respondent to govern any future
resolution of the bank (2016 Resolution Plan). The 2016 Resolution Plan called for a
restructuring of the bank, not the sale of the bank to a third party. It also authorized Spanish
resolution authorities to “carry out additional measures during this restructuring phase in

24
European Commission, Memo, A Single Resolution Mechanism for the Banking Union - frequently asked
questions, Brussels, 15 April 2014, http://europa.eu/rapid/press-release MEMO-14-295 es htm (last accessed
14 August 2018), p. 4.

25
SRB, EP Hearing, Elke König, 4 December 2017, https://srb.europa.eu/sites/srbsite/files/2017-12-04 ep
ek speech.pdf (last accessed 14 August 2018), p. 5.
26
European Commission, Memo, A Single Resolution Mechanism for the Banking Union - frequently asked
questions, 15 April 2014, http://europa.eu/rapid/press-release MEMO-14-295 es.htm (last accessed 14 August
2018), p. 3.

27
Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform
rules and uniform procedure for the resolution of credit institutions and certain investment firms in the framework
of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010
(“SRM Regulation”), 15 July 2014, Official Journal of the European Union, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32014R0806&from=EN (last accessed 14 August 2018), Art. 29.

14
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 19 of 50

order to fully restore the group’s viability while maintaining market confidence at all
times.” 28 The 2016 Resolution Plan was finalized and adopted on December 5, 2016. 29

F. Respondent Substantially Causes the Liquidity Crisis That Led to Banco

Popular’s Demise.

50. Starting in approximately October 2016, Banco Popular faced a significant increase in
deposit withdrawals. Spanish government entities and institutions led these heavy
withdrawals. During the last quarter of 2016, Spanish public entities withdrew over 38% of
its deposits (over € 4 billion). Deposit withdrawals continued in January and February 2017,
with Banco Popular losing over € 2.6 billion in deposits. These withdrawals understandably
concerned the Board of Directors of Banco Popular, which noted in March 2017 that the
worsening liquidity situation was substantially attributable to the withdrawal of € 4 billion
by Spanish public entities. Yet, despite these continuing withdrawals, Banco Popular’s
liquidity coverage ratio (LCR) remained above 100% (the regulatory minimum was 80%)
during the first quarter of 2017.
51. Concerned about the effect of deposit withdrawals on its liquidity position, Banco Popular
established a liquidity working group in February 2017, which began implementing a
“Liquidity Action Plan” to continually monitor Banco Popular’s liquidity situation and
implement all possible measures to strengthen its liquidity position. Members of this
liquidity group sent daily reports to the ECB. Banco Popular also kept the Banco de España
regularly informed of these measures and all developments regarding its liquidity and
financial position.
52. In March 2017, Banco Popular met with the Banco de España to discuss the bank’s potential
need for liquidity assistance. While Banco Popular was still in compliance with regulatory
liquidity requirements and was actively taking measures to strengthen its liquidity position,
it became concerned that the upcoming announcement of an adjustment to its 2016 financial

28
SRB, Banco Popular Group Resolution Plan, 2016, https://srb.europa.eu/sites/srbsite/files/
resolution plan 2016.pdf (last accessed 14 August 2018), p. 23.

29
SRB, Decision of the Single Resolution Board in its Executive Session of 7 June 2017 concerning the adoption of
a resolution scheme in respect of Banco Popular Español, S.A. (the “Institution”) with a Legal Entity Identifier:
80H66LPTVDLM0P28XF25, Addressed to FROB (SRB/EES/2017/08), 7 June 2017,
https://srb.europa.eu/sites/srbsite/files/resolution decision.pdf (last accessed 14 August 2018), p. 4.

15
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 20 of 50

results at the April 2017 shareholders meeting would destabilize the market and lead to a run
on the bank’s deposits. 30
53. Starting in March 2017, Banco Popular sent the Banco de España daily information
regarding its liquidity position as well as assets that could be used as collateral for potential
emergency liquidity assistance. As of March 2017, the Banco de España was fully aware of
Banco Popular’s ongoing liquidity position, its growing need for liquidity support, and the
assets that could be used as collateral to support emergency liquidity assistance.
54. On April 3, 2017, Banco Popular publicly announced the results of an internal audit of the
bank’s 2016 financial statements, concluding that the financial statements would need to be
adjusted. The announcement triggered an acceleration in deposit withdrawals and a drop in
the stock price. On April 6 and 7, Dun & Bradstreet and Standard & Poor’s downgraded
Banco Popular’s short-term and long-term credit ratings. 31
55. On April 12, 2017, the Spanish Secretary of Economy and Support for Enterprises, Irene
Garrido, publicly stated that Banco Popular needed “private solutions” because it was a
“private bank,” thereby communicating to the market that Banco Popular would not be
receiving assistance from the Spanish government. This was repeated by Minister of
Economy Luis de Guindos on April 19, 2017. 32 On April 21, 2017, based on solvency and
creditworthiness concerns, Moody’s downgraded Banco Popular’s standalone Baseline
Credit Assessment from B1 to B3 causing a further spike in deposit withdrawal levels.
56. During the course of April 2017, Banco Popular suffered deposit outflows of over € 5.3
billion. By the end of that month, the situation was sufficiently critical that Banco Popular
initiated daily conference calls with the Banco de España to discuss its liquidity situation
and the potential need for liquidity assistance.

30
El Confidencial, Popular 'corrige' las cuentas de 2016 tras una auditoría y se desploma en bolsa un 5%, 3 April
2017, https://www.elconfidencial.com/empresas/2017-04-03/popular-corregira-las-cuentas-de-2016-de-forma-
retroactiva-tras-una-auditoria-interna_1359667/.

31
CNMV, Relevant Fact from Banco Popular, 6 April 2017,
https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed 14 August 2018);
CNMV, Relevant Fact from Banco Popular, 7 April 2017,
https://www.cnmv.es/portal/HR/ResultadoBusquedaHR.aspx?nif=A28000727 (last accessed 14 August 2018).

32
EFE Empresas, El Gobierno insiste en que el Popular es un banco privado y solvente, 19 April 2017,
https://www.youtube.com/watch?v=RZ8p1NlztN4, (last accessed 14 August 2018).

16
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 21 of 50

57. Despite Respondent’s knowledge of Banco Popular’s rapidly deteriorating liquidity position,
Respondent took no steps to help stop the escalating withdrawal of Banco Popular’s deposits.
This was in stark contrast to the proactive measures that Respondent had taken before and
after the Banco Popular resolution to assist other similarly situated Spanish banks that were
experiencing liquidity problems. For instance, Respondent failed to take steps to reassure
Banco Popular depositors that it was safe to leave their money in Banco Popular, or any
other measures to slow or stop deposit outflows. In fact, Respondent took no apparent steps
even to stop its own entities from continuing deposit withdrawals from Banco Popular.
Deposit withdrawals by Spanish public entities actually increased in mid-April 2017,
leading to a further weakening of the bank’s liquidity. These actions and omissions were
contrary to the obligations established under Spanish law requiring the government,
particularly the Banco de España, to promote the good functioning and stability of Spain’s
financial system.

G. Banco Popular’s Efforts to Overcome the Growing Liquidity Crisis.

58. Since early 2016, before the liquidity issues developed later in the year, Banco Popular
continued to implement measures to address the high levels of NPAs. As part of those
measures, Banco Popular carried out the May 2016 capital raise as part of its “Plan 2018”
discussed above. Together with the capital raise of May 2016, Banco Popular announced a
plan to improve its NPA coverage ratios, liquidity ratios, and the bank’s overall financial
health to be carried out in the ensuing years. However, the effective implementation of this
plan and related measures were hindered by the growing liquidity crisis that started in 2016
and ultimately led to Banco Popular’s resolution in June 2017.
59. Respondent was well aware of these private measures and the harm that investors would
suffer if those measures were not allowed to proceed. In December 2016, Mr. Antonio del
Valle met with Mr. Luis Linde and Mr. Fernando Restoy, the Governor and Sub-Governor
of the Banco de España, respectively. In that meeting, Banco de España officials sought Mr.
del Valle’s views regarding the future of the bank. They suggested a potential merger of
Banco Popular with a larger bank such as BBVA or Santander. Mr. del Valle expressed
significant concerns about a merger with a larger bank, indicating that such a transaction
would severely harm Banco Popular investors. Mr. del Valle insisted that the best solution

17
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 22 of 50

for Banco Popular was a capital raise; he also confirmed that Claimants and other investors
were ready to substantially participate in a fresh Banco Popular capital raise.
60. Through the combination of measures it was implementing, and despite its ongoing financial
challenges, Banco Popular continued to be a solid and valuable franchise throughout 2017,
consistently exceeding regulatory requirements and passing all solvency tests with a net asset
value of € 10.78 billion at the end of the first quarter of 2017. First quarter 2017 results also
confirmed that Banco Popular’s main business had remained profitable with a return on
tangible equity of 17.0%. 33
61. In 2017, Banco Popular continued implementing a series of measures to generate additional
capital and liquidity, including the sale of Totalbank, the sale or closure of bank branches,
sales of loans and asset portfolios, real estate sales, issuance of equity instruments, and
divestment of certain assets in Portugal.
62. As part of its plan to obtain additional capital, in April 2017, Banco Popular started the
process to initiate a capital raise. The additional capital raised would not only provide a
cushion to account for the high levels of NPAs and NPLs, but would also address the
liquidity issues the bank was facing, which by April were becoming more acute. In order to
enable a new capital raise to proceed, Banco Popular’s shareholders, at their annual meeting
on April 10, 2017, 34 voted to authorize the bank’s Board to increase share capital by up to
50% and issue fixed income securities. Following that meeting, Banco Popular immediately
commenced the process of determining how much additional capital it needed to raise.
63. Banco Popular’s capital raise generated substantial interest in the investor community. In
May 2017, Deutsche Bank recommended a € 3 billion capital infusion. Mr. del Valle
communicated with numerous investors who expressed interest in investing in Banco
Popular and participating in a capital raise, including Andrónico Luksic, a high net-worth
investor from Chile who had recently invested approximately € 100 million in Banco Popular
through the purchase of shares in the open market. Claimants and the Luksic group alone

33
Banco Popular, Quarterly Report, 1st Quarter 2017, http://www.grupobancopopular.com/ES/Accionistas
Inversores/Documents/Quarterly%20Report%201Q17.pdf (last accessed 14 August 2018), p. 27.

34
Banco Popular, Agreements adopted by BPE’s General Ordinary Shareholders Meeting, 10 April 2017,
http://www.grupobancopopular.com/ES/AccionistasInversores/GobiernoCorporativo/JuntaGeneraldeAccionista
s/Documents/Junta%20General%20Ordinaria%20(Abril%202017)/ACUERDOS%20ADOPTADOS%20JGO%
20(ABRIL%202017).pdf (last accessed 14 August 2018), p. 2.

18
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 23 of 50

were ready to commit at least 50% of the capital that Deutsche Bank had recommended. Mr.
del Valle also was in talks with other institutional and individual investors, including Allianz
and Crédit Mutuel, both of which expressed interest in participating in a plan to raise capital.
64. On June 3, 2017, Barclays sent a letter to Banco Popular offering to participate in a capital
raise, affirming that “Popular is a solid franchise” and that, following the capital raise,
“Popular has the potential to deliver return on equity levels that would be attractive to new
investors.” 35 Similarly, on June 5, 2017, Deutsche Bank sent a letter to Banco Popular
expressing its interest in securing 50% of a possible € 4 billion capital raise, noting that it
“could be accomplished to stabilize the bank.”36 PIMCO, one of the largest managers of
fixed income securities in the world, likewise confirmed its commitment to provide up to
€ 300 million in a capital raise. The main step that remained was to determine the amount
of capital needed, the calculation of which Banco Popular was set to finish by early June
2017.
65. In addition to the capital raise, Banco Popular was in the midst of selling high-value assets
such as its stakes in Banco Popular Portugal, Popular Private Banking, BX+, Allianz,
Euroautomatic Cash, Wizink and Totalbank, in order to generate additional liquidity. As of
June 2017, Banco Popular had either concluded or was in advanced stages of implementing
a series of measures to raise capital and liquidity, including:

a. Transfer of Asset Backed Securities (expected to generate over €300 million);

b. Sale of corporate loans (over €500 million);
c. Sale of leasing portfolio (over €750 million);
d. Sale of Popular Servicios Financieros (over €150 million);
e. Sale of Merlin stock (over €140 million);
f. Sale of NPLs (over €50 million euros);
g. Sale of loan portfolio (over €1 billion);
h. Sale of shares in Totalbank (sale was set to be closed beginning to mid-June for
€545 million);
i. Sale of shares in Targo Bank (closed a week before the Resolution); and

35
Letter from Barclays to Banco Popular, dated 3 June 2017, Exhibit CRFA-2.

36
Letter from Deutsche Bank to Banco Popular, dated 5 June 2017, Exhibit CRFA-5.

19
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 24 of 50

j. Sale of shares in Wizink (board approval for sale had been obtained). 37

66. In or about April 2017, Banco Popular launched a process to consider a private sale of Banco
Popular. By that point, the loss of deposits had significantly increased, making the liquidity
crisis more evident. Respondent’s acts and omissions, which exacerbated the ongoing run
on deposits, sent a clear signal to the market that it would not assist Banco Popular to avert
or stop the growing liquidity crisis. As a result, Banco Popular seriously considered the sale
of the bank as a potential measure to address its liquidity situation. In May 2017, Banco
Popular opened a data room for potentially interested buyers. Several banks, including
Bankia and Santander, visited the data room. In order to give other potential bidders more
time to consider and formulate a potential offer, Banco Popular extended the sales process
until the end of June 2017.
67. As of June 6, 2017, despite the extreme run on the bank that it was facing, Banco Popular
continued to operate as a solvent bank, with strong future prospects and multiple private
transactions underway designed to further enhance and stabilize its financial condition.

H. The Final Run on the Bank and Resolution of Banco Popular.

68. The private sale process that Banco Popular was conducting in May 2017 became
increasingly difficult due to the escalating run on the bank’s deposits.
69. As noted above at ¶¶ 11 and 66, Santander participated in this private sale process and
accessed the virtual data room that Banco Popular made available to interested buyers.
While conducting its due diligence, starting in early May, Santander developed different
valuation scenarios for Banco Popular. Santander believed it was unlikely it would be able
to acquire Banco Popular in a private sale because Santander was unwilling to offer a price
that would be sufficiently attractive to Banco Popular shareholders. Santander therefore
concluded that the best way to acquire Banco Popular would be either: (1) a government
intervention (i.e., a resolution process), which would allow Santander to “rescue” the bank
at a “symbolic” price; or (2) a share price collapse (possibly caused by negative media), after

37
Following the Banco Popular Resolution, Santander actually carried out a number of these transactions, including
the sale of Banco Popular’s real estate assets, Totalbank and Wizink, thereby confirming that the transactions
were indeed viable.

20
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 25 of 50

which a very low bid would more likely be accepted by Banco Popular’s shareholders.
Santander’s preferred solutions in fact materialized.
70. By the second week of May, Banco Popular’s liquidity crisis grew even worse because of
media reports and public statements attributed to Spanish and EU government officials. On
May 11, 2017, the press published an article called “urgent sale of Popular due to bankruptcy
risk.” The following day, Banco Popular lost € 1 billion in deposits. This marked the first
time that Banco Popular’s LCR fell below the required regulatory minimum of 80%.
71. In the meantime, throughout May, Banco Popular continued preparing a suitable portfolio
of assets to use as collateral for ELA. Banco Popular also continued its discussions with the
Banco de España to seek emergency liquidity assistance, recognizing the growing need for
liquidity assistance, particularly by the second half of May.
72. On May 18, 2017, and in line with Ms. Garrido’s April 12th statement that Banco Popular
required private solutions, Spanish Minister of Economy, Luis de Guindos, publicly stated
that the Spanish government “did not foresee injecting any public capital” to Banco
Popular 38 and that Banco Popular was being supervised by the ECB, not by local authorities,
thereby wrongly implying to the public that Banco Popular was the EU’s problem, not
Spain’s problem. 39 This public confirmation that Respondent would not support Banco
Popular further eroded depositor and investor confidence in the bank and further deepened
the run on the bank that would ultimately lead to Banco Popular’s demise and the destruction
of Claimants’ investments in Banco Popular.
73. On May 18, 2017, Banco Popular’s Board approved an action plan to bring its LCR back
above 89% by the end of the month, and established a Liquidity Monitoring Committee.
The Board also notified the ECB regarding the breach of the LCR regulatory minimum and
its plan to restore the LCR to a compliant level by the end of the month.

38
EFE Empresas, De Guindos asegura que no se prevé inyectar dinero público en el Popular, 18 May 2017,
https://www.efeempresas.com/noticia/de-guindos-inyectar-dinero-banco-popular/ (last accessed 14 August
2018); Expansión, Guindos descarta inyectar capital público en Popular, 19 May 2017,
http://www.expansion.com/empresas/banca/2017/05/18/591de69bca47410a4d8b4591.html (last accessed
14 August 2018) (“independent of the community regulations, the Government of course has no intention of
injecting public resources”). (free translation).
39
El Economista, Guindos asegura que no se va a inyectar dinero público en Banco Popular, 18 May 2017
http://www.eleconomista.es/banca-finanzas/noticias/8368092/05/17/Guindos-asegura-que-no-se-va-a-inyectar-
dinero-publico-en-banco-popular html (last accessed 14 August 2018).

21
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 26 of 50

74. By May 18, Banco Popular presented the Banco de España a portfolio of at least € 22 billion
in collateral for the provision of ELA. Despite this substantial collateral, a few days earlier,
the Banco de España informed Banco Popular that it would only provide ELA of € 700M
based on the assets it had reviewed, potentially representing only 3% of the total collateral
that Banco Popular had presented. Such a large and unprecedented haircut was tantamount
to a refusal by the Banco de España to provide any meaningful liquidity assistance, both
because such a low amount of ELA would not have been sufficient to overcome the bank
run that Banco Popular was facing, and because it would have required Banco Popular to
post an unreasonably large amount of assets as collateral, thereby precluding Banco Popular
from selling assets or pursuing other measures to obtain further liquidity.
75. On May 23, 2017, the Chair of the SRB, Elke König, publicly stated that Banco Popular was
being “watched” by the SRB, leading depositors to conclude that Banco Popular was facing
imminent resolution, predictably exacerbating the ongoing run on the bank. 40 Respondent
again made no attempt to clarify Mr. de Guindos’ or Ms. König’s statements or to instill
public confidence to stop or slow the heavy deposit withdrawals that these statements
triggered. Respondent simply stood by and watched.
76. On May 29, 2017, Banco Popular’s Board of Directors met and expressed significant
frustration and concern with the Banco de España’s apparent unwillingness to provide
meaningful liquidity assistance. The Liquidity Monitoring Committee of Banco Popular’s
Board nevertheless continued the ongoing submission of additional collateral to the Banco
de España to support its request for ELA.
77. On May 31, 2017, Reuters quoted Ms. König as warning EU officials that Banco Popular
may need to be wound down should it fail to find a buyer. The article noted that “[o]ne of
Europe’s top bank watchdogs has warned European Union officials that Spain’s Banco
Popular POP.MC may need to be wound down if it fails to find a buyer.” 41 The article
included a comment by an EU official that “König has said ... that the Single Resolution

40
Bloomberg, Single Resolution Board says EU shouldn´t be bailing out banks, https://www.bloomberg.com/
news/videos/2017-05-23/single-resolution-eu-shouldn-t-be-bailing-banks-video (last accessed 14 August 2018).
41
Reuters, Exclusive: EU warned of wind-down risk for Spain’s Banco Popular, 31 May 2017,
https://www.reuters.com/Art./us-banco-popular-m-a-eu-exclusive-idUSKBN18R25V (last accessed 14 August
2018).

22
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 27 of 50

Board is following the (Banco Popular) procedure with particular attention with a view to a
possible intervention,” adding that “the bank’s merger bid ‘may be fruitless’,” and that
“general preparations are under way although no concrete steps have yet been taken.” 42
78. That same day, the SRB issued a press release in which it said it would “not comment on
any bank-specific matters.” 43 Following these media articles, the Banco Popular stock price
plummeted even further and led to even higher deposit outflows. Between June 1 and June
5, 2017, Banco Popular suffered deposit withdrawals of approximately € 5.742 billion. The
price of Banco Popular shares on the Spanish stock exchange also fell drastically. Banco
Popular’s LCR fell to 24% by June 5.
79. On June 1, 2017, Banco Popular requested a line of ELA totaling € 2 billion from the Banco
de España, which the Banco de España later approved based on Banco Popular’s solvency
and its compliance with ECB ELA guidelines.
80. On June 2, 2017, El Economista reported that Santander was the only bank interested in
purchasing Banco Popular via the ongoing private sale process, and that Bankia was not
going to submit an offer. 44 Banco Popular stock price fell drastically immediately after the
publication of that article, leading also to a further spike in deposit withdrawals. On June 5,
2017 (the next business day), withdrawals totaled approximately € 3 billion.
81. As of June 5, 2017, Respondent still made no effort to stop the run on the bank or to help
Banco Popular stabilize its depleting liquidity with announcements of support or any other
apparent actions. To the contrary, as the Spanish Ministry of Finance later confirmed,
Spanish government withdrawals of deposits continued to escalate, further eroding the
bank’s financial condition and fueling the run on the bank. In fact, Spain’s Minister of

42
Id.

43
SRB, Press Release – Media allegations regarding a specific bank, 31 May 2017, 18:47, https://srb.europa.eu/
en/node/312 (last accessed 14 August 2018).
44
El Economista, Santander se queda solo en la puja por el Popular: Bankia no quiere sorpresas,
http://www.eleconomista.es/banca-finanzas/noticias/8402835/06/17/Santander-se-queda-solo-en-la-puja-por-el-
Popular-Bankia-no-quiere-sorpresas html (last accessed 14 August 2018).

23
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 28 of 50

Economy later admitted that approximately 30% of all withdrawals from Banco Popular
were initiated by Spanish public entities, all attributable to Respondent. 45
82. On June 5, 2017, in view of the ongoing and massive withdrawals of deposits, Banco Popular
activated its earlier request for ELA, obtaining € 1.9 billion from the Banco de España. 46
That amount, though, was no longer enough. Given the rapidly accelerating run on the bank,
Banco Popular expanded its ELA request to € 9.5 billion later the same day. However, the
Banco de España only provided an additional € 1.6 billion on June 6, resulting in a total of
€ 3.5 billion in ELA, less than one-third of the amount requested, apparently still reflecting
the unprecedented and unreasonable collateral haircut applied by the Banco de España. 47
83. On June 6, 2017, in view of the massive and continuing deposit withdrawals and the Banco
de España’s refusal to provide the ELA that Banco Popular needed to overcome the bank
run, Banco Popular was left with no choice but to inform the ECB that Banco Popular would
be unable to cover its customer deposits the following day and thus was “likely to fail.”

I. Respondent’s “Auction” and Fire Sale of Banco Popular to Santander.

84. Months before Banco Popular’s resolution, Respondent apparently decided that Banco
Popular needed to be sold to a larger bank. In mid-May, Santander informed Respondent
that it was unwilling to offer a price high enough that would likely be approved by Banco
Popular’s shareholders to purchase the bank through a private sale, but that Santander was
willing to buy Banco Popular through a resolution process that involved a nominal purchase
price. Shortly thereafter, Respondent set the resolution process in motion. Apparently
determined to achieve a sale, Respondent failed to take any steps to save Banco Popular as
an independent bank or to protect the rights and interests of Banco Popular’s existing
investors.

45
Spanish Parliament, Diary of Sessions of the House of Representatives, Plenary Session and Permanent
Deputation, No. 29, 16 January 2018, Year 2017, XII Legislature, http://www.congreso.es/
public oficiales/L12/CONG/DS/CI/DSCD-12-CI-29.PDF (last accessed 14 August 2018), p. 55.

46
La Información, El Popular esperaba un déficit de 8.000 millones, imposible de cubrir por el BCE,
https://www.lainformacion.com/empresas/banca/el-popular-esperaba-un-deficit-de-8-000-millones-imposible-
de-cubrir-por-el-bce/6343205, 1 March 2018 (last accessed 14 August 2018).
47
Id.; Economía Crítica y Crítica de la Economía, Las preguntas sin respuesta en la quiebra del Banco Popular,
http://www.economiacritica net/?p=9469, 26 June 2017 (last accessed 14 August 2018).

24
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 29 of 50

85. On or about May 14, 2017, Santander informed the Banco de España that it would not make
an offer for Banco Popular through a private sale but that Santander was still interested in a
potential transaction that would align with its preferred financial terms.
86. Two days later, on May 16, Santander sent a letter to Banco Popular communicating its
decision not to submit an offer to acquire Banco Popular on the ground that Santander was
unable to offer a purchase price that would be sufficiently attractive to Banco Popular
shareholders. That same day, the SRB and Respondent launched the process that eventually
led to the resolution of Banco Popular by commencing the tender to engage a valuation
expert.
87. On May 22, Santander’s Board of Directors formally authorized its Executive Committee to
submit a bid to purchase Banco Popular through a resolution process. The bid was
authorized under the following conditions: (1) the offer price was to be €0, with a negotiation
margin of up to €200 million; (2) a bail-in of Additional Tier 1 and Tier 2 bonds worth €2
billion; and (3) a €7 billion rights issue to follow the resolution.
88. The next day, on May 23, 2017, more than two weeks before any ‘fail or likely to fail’
(FOLTF) assessment or determination, and the same day that Ms. König publicly
announced that Banco Popular was being “observed,” the SRB and FROB instructed
Deloitte to carry out a valuation of Banco Popular, taking the first step towards the eventual
resolution of Banco Popular. The purpose of the valuation was, inter alia, “assessing the
economic value of the assets and liabilities of the entity meeting the conditions for resolution
according to Article 20(4) SRMR.” 48 Presumably aware that they had a willing resolution
buyer, the SRB and FROB instructed Deloitte to assume that the sale of business tool would
be used in Banco Popular’s resolution, 49 even though the 2016 Resolution Plan established
only six months earlier did not contemplate the use of the sale of business tool. Deloitte was
not asked to consider or evaluate any other resolution tools in order to then determine the
appropriate one to use, as was Deloitte’s responsibility pursuant to the SRM framework,

48
SRB, Decision of the Single Resolution Board in its Executive Session of 7 June 2017 concerning the adoption of
a resolution scheme in respect of Banco Popular Español, S.A. with a Legal Entity Identifier:
80H66LPTVDLM0P28XF25, Addressed to FROB (SRB/EES/2017/08), 7 June 2017, https://srb.
europa.eu/sites/srbsite/files/resolution decision.pdf, (last accessed 14 August 2018), p. 8
49
SRB, Deloitte, Hippocrates Valuation Report [Sale of Business Scenario], https://srb.europa.eu/
sites/srbsite/files/valuation 2 - main report.pdf (last accessed 14 August 2018), pp. 1, 3.

25
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 30 of 50

thereby indicating that the decision had already been made to sell Banco Popular via
resolution without any prior independent assessment supporting that decision.
89. On June 2, 2017, before Deloitte submitted its Valuation Report and again before any finding
that Banco Popular was FOLTF, the SRB and FROB initiated the sale process for Banco
Popular. That day, Banco Popular was asked to provide information about its ongoing
private sale process, including identification of potential purchasers. Upon receipt of that
information on June 3, 2017, the SRB issued its “Marketing Decision,” instructing the FROB
to commence the sale of Banco Popular. 50 According to the SRB, the marketing process
“had to be as transparent as possible,” “not unduly favour or discriminate against any
potential acquirers,” and “aim to maximize the sale price, while taking into account the need
to effect a rapid resolution plan.” 51
90. The next day, on June 4, 2017, the FROB, through its external advisors, asked potential
purchasers to sign a non-disclosure agreement, as a pre-requisite to “participate in an
eventual acquisition [of Banco Popular] within the framework of a potential resolution,”52
referred to as the “Hippocrates Project.” The letter was sent only to five Spanish banks that
had previously shown interest in Banco Popular’s still ongoing private sale process. Those
who signed the confidentiality agreement were given access to a virtual data room on
Monday, June 5. 53
91. On June 5, 2017, the FROB sent a “Process Letter” to the two banks that had signed the
confidentiality agreements, Santander and BBVA, laying out the timeline and requirements
for the auction process. On June 6, the FROB sent an amended Sale Process Letter to
Santander and BBVA, shortening the bidding deadline and requiring them to submit a
binding offer for the acquisition of Banco Popular before midnight that same day. The

50
SRB, Decision of the Executive Session of the Board of 3 June 2017 concerning the marketing of Banco Popular
Español (hereinafter the ¨Bank¨) Addressed to the Fund for Orderly Bank Restructuring (hereinafter ¨FROB¨)
(SRB/EES/2017/06), https://srb.europa.eu/sites/srbsite/files/marketing decision.pdf (last accessed 14 August
2018).

51
Id., pp. 2, 3.
52
Extracts of process letter from FROB to potential buyers, dated 4 June 2017, Exhibit CRFA-4.

53
Letter from Jefferies Arcano to potential buyers, dated 4 June 2017, Exhibit CRFA-3.

26
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 31 of 50

Revised Process Letter thus gave prospective buyers less than 24 hours to review the
information contained in the Virtual Data Room and submit their binding offers.
92. Consistent with the terms that already had been pre-approved by Santander’s Board of
Directors two weeks earlier, the FROB’s Process Letter stated that the calculation of the bid
price should consider three options, including a bail-in of all the existing shares and the
Additional Tier 1 capital instruments and a conversion of 100% of Tier 2 additional capital
instruments and issuance of shares for the value of those instruments. The FROB’s Process
Letter also required that any offers include a purchase price “equal to or greater than one
Euro,” thereby signaling to buyers that the FROB would accept offers as low as € 1 (also
consistent with Santander’s pre-approved terms). Finally, the Process Letter indicated that
prospective buyers would not necessarily receive any further information beyond what was
available in the Virtual Data Room.
93. Hours after receiving the Revised Process Letter, BBVA informed the FROB that the
information it provided was not sufficient to enable BBVA to submit a bid within the
shortened timeframe:

“In relation to the Hippocrates Project, I confirm that, given the limitations
on price and the remaining conditions required in accordance with the
process letter, as well as the insufficient information available, BBVA is not
in a position to present an offer under the terms of that process letter and
the purchase agreement (SPA) submitted today.”

BBVA also confirmed that, if it were given additional information and time, BBVA would be
interested in participating in the bidding process:

“Notwithstanding the foregoing, we also confirm that if sufficient

information was available to allow its governing bodies to properly analyze
the operation and the conditions, and if the conditions of the process could
be modified, BBVA would be interested in participating in it.” 54

94. BBVA’s request for more time and information was ignored by the FROB, leaving
Santander as the only “bidder”. In fact, Santander was the only bidder that could reasonably
been expected to submit a bid within a matter of hours since it was the only bidder that had

54
Letter from BBVA, dated 6 June 2017, Exhibit CRFA-6.

27
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 32 of 50

previously completed a due diligence process concerning Banco Popular and already had
developed its offer.
95. Although the sale process was already well underway, it was not until June 6, 2017, with
only two weeks to complete its work, that Deloitte delivered a tentative valuation report to
the SRB and the FROB. Deloitte underscored that it had “not had access to certain critical
information,” “had limited opportunity to discuss [their] conclusions with management,
auditors, supervisors and other familiar with the institution,” and had “been required to draft
[their] Report in an extremely short period of time,” noting that “[their] valuation should
therefore be regarded as highly uncertain, and provisional for the purposes of article 36
BRRD.” 55
96. Deloitte’s report also made clear that it had not carried out any analysis of whether the
conditions for resolution were met. Deloitte also confirmed that its report, as per original
instructions, “assume[d] as the resolution scenario to be considered a sale of the whole bank
through an open, fair and competitive sale process, using the sale of business tool under
article 38 of the BRRD.” Deloitte also noted that if Banco Popular was to be sold, the price
negotiated in a private sale transaction (not a fire sale via resolution) was “likely to be the
best and most reliable indication of the value of the bank.” 56
97. Deloitte’s June 6 report confirmed that Banco Popular was a solvent bank with a strong
market position. The report did not analyze Banco Popular’s liquidity position or assess
whether resolution was the proper solution to address the bank’s ongoing liquidity crisis.
98. Without a supporting valuation from Deloitte, the SRB prepared its own Valuation Report
“for the purpose of informing the determination of whether [Banco Popular] meets the
conditions for resolution or the conditions for the write down or conversion of capital
instruments.” In that report, the SRB acknowledged that there was no basis for considering
Banco Popular to be insolvent, and found “no indication” that Banco Popular had infringed
any regulatory capital requirements “or that its assets, in the near future, will be less than its

55
SRB, Deloitte, Hippocrates Valuation Report [Sale of Business Scenario], https://srb.europa.eu/
sites/srbsite/files/valuation 2 - main report.pdf (last accessed 14 August 2018), p. 3.

56
Id.

28
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 33 of 50

liabilities…” Instead, the SRB concluded that the “liquidity of the group is the key factor
that is triggering the failure of the bank.” 57
99. As of June 6, 2017, Respondent was well aware that Banco Popular was solvent and in
compliance with regulatory capital requirements. Indeed, Spain’s Minister of Economy,
Luis de Guindos, 58 and the Governor of the Banco de España, Luis Maria Linde de Castro, 59
both later confirmed this in testimony before the Spanish Parliament.
100. Despite its knowledge that Banco Popular was solvent and was primarily suffering from a
short-term liquidity crisis (substantially caused by the Spanish government itself),
Respondent continued to pursue its pre-determined plan to sell Banco Popular via resolution.
Respondent also arbitrarily continued to refuse the level of liquidity assistance that Banco
Popular needed, thereby denying Banco Popular the time necessary to implement the
transactions described above that would have stabilized the bank’s liquidity and capital
position. By refusing to take any steps to support and stabilize Banco Popular, Respondent
effectively forced Banco Popular into a resolution that never should have occurred.
101. In the early hours of June 7, 2017, Santander submitted its offer of € 1, which immediately
was accepted by the FROB, 60 even though the offer was well below Banco Popular’s fair
market value and was not obtained via a fair, transparent or competitive tender process.

57
SRB, Valuation Report for the purpose of Art. 20(5)(a) of Regulation(EU) No 806/2014 informing the
determination of whether the conditions for resolution of the conditions for the write down or conversion of
capital instruments are met (¨Valuation 1¨), https://srb.europa.eu/sites/srbsite/files/bpe valuation 1.pdf (last
accessed 14 August 2018), pp. 8, 9, 10.

58
Video of Interview to Luis de Guindos, https://www.youtube.com/watch?v=RZ8p1NlztN4 (“El Banco Popular,
cuando yo le pregunto al supervisor como está me dicen: es un banco solvente, es un banco que no tiene ningún
problema de liquidez y evidentemente pues el Ministerio de Economía y el Gobierno no tiene inspectores, los
tiene el supervisor que es el que analiza la situación de la entidad. Eso es lo que me dicen, ni problemas de
solvencia ni problemas de liquidez […]”).
59
Spanish Parliament, Diary of Sessions of the House of Representatives, Commission, No. 260, Year 2017, XII
Legislature, 20 June 2017, p. 21 http://www.congreso.es/public oficiales/L12/CONG/DS/CO/DSCD-12-CO-
260.PDF (last accessed 14 August 2018); Spanish Parliament, Diary of Sessions of the House of Representatives,
Investigative Commission, No. 9, Year 2017, XII Legislature, http://www rdmf.es/wp-
content/uploads/2017/11/julio.pdf (last accessed 14 August 2018), p. 16.

60
SRB, Decision of the Single Resolution Board in its Executive Session of 7 June 2017 concerning the adoption of
a resolution scheme in respect of Banco Popular Español, S.A. with a Legal Entity Identifier:
80H66LPTVDLM0P28XF25, Addressed to FROB (SRB/EES/2017/08), 7 June 2017, https://srb.europa.eu/
sites/srbsite/files/resolution decision.pdf (last accessed 14 August 2018).

29
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 34 of 50

102. Within hours of receiving Santander’s offer, the SRB Executive Committee issued its
Resolution Decision, declaring that Banco Popular was FOLTF, solely on the basis of Banco
Popular’s liquidity crisis. The resolution decision was taken by unanimous vote of the
Executive Committee, including Respondent’s representative.
103. Less than an hour later, in the dawn hours of June 7th, the FROB immediately implemented
the Resolution, handing Banco Popular over to Santander, without any prior notice to
investors and without any due process whatsoever. 61
104. Specifically, the FROB ordered: (i) the reduction of Banco Popular’s share capital to zero,
wiping out the billions of Euros in shares then outstanding; (ii) the conversion of the
Additional Tier 1 capital instruments to shares, then writing those shares down to 0 as well;
(iii) the conversion of all Tier 2 capital instruments into newly-issued Banco Popular shares;
and (iv) the transfer of all newly issued Banco Popular shares to Santander for 1 Euro.
105. The Resolution Decision was publicly released on June 7, 2017, without any specific
explanation as to why Banco Popular had been placed into resolution, without providing the
factual basis for the resolution decision itself, with no explanation as to why the specific
resolution tools were chosen, or how the resolution decision itself was made. The public
version of the resolution decision was heavily redacted, omitting critical information
regarding the factual basis for the SRB’s findings and the decision-making process that led
to the resolution decision. To this day, the public version of the Resolution Decision contains
no reference to the private solutions that were then underway to enhance Banco Popular’s
financial condition, including the pending capital increase and the sale of Banco Popular
assets, nor any explanation as to why the private solutions underway were not a viable
alternative to resolution. There also is no discussion of why emergency liquidity assistance

61
FROB, 7 June 2017 Resolution of the FROB Governing Committee adopting the measures required to implement
the Decision of the Single Resolution Board in its Extended Executive Session of 7 June 2017 concerning the
adoption of the resolution scheme in respect of Banco Popular Español, S.A., addressed to FROB, in accordance
with Art. 29 of Regulation (EU) No. 806/2014 of the European Parliament and of the Council of 15 July 2014
establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment
firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation
(EU) No 1093/2010, http://www.frob.es/en/Lists/Contenidos/Attachments/419/Proyectode
Acuerdoreducido EN v1.pdf (last accessed 14 August 2018).

30
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 35 of 50

or the provision of government guarantees 62 were not suitable alternatives to resolution

given that Banco Popular was solvent and only was being placed into resolution on liquidity
grounds.
106. The announcement of the Resolution Decision came as a complete shock to Claimants, who
learned of the resolution and the destruction of their Banco Popular investments by reading
of it in the media. Claimants were not given any opportunity by Respondent to be heard as
to whether resolution was necessary or whether there were any private sector solutions that
could have averted resolution, including the transactions that Claimants were personally
organizing and which they previously informed Respondent they were ready to implement.
107. Claimants and many other Banco Popular investors filed numerous requests with the SRB
and the FROB to obtain copies of the unredacted documents on which the SRB and the
FROB’s Resolution decisions were based, including the unredacted valuation reports. To
this day, more than one year after the Resolution Decision, investors’ requests have been
repeatedly rejected by Respondent. Indeed, Respondent still refuses to disclose the full,
unredacted version of the Resolution Decision and related valuation reports. 63
108. Before, during and after the Resolution Decision, Respondent acted without any degree of
transparency to investors such as Claimants, including: (1) the evaluation of potential
resolution tools and alternatives; (2) the determination of whether resolution was necessary;
(3) negotiations with Santander and other potential purchasers regarding the sale of Banco
Popular; and (4) why Respondent failed to take any action to stop the bank run and resulting
liquidity crisis that Banco Popular was facing, or to otherwise support Banco Popular.

J. Respondent’s Unlawful Destruction of Claimants’ Investments.

109. Following the announcement of the resolution, Respondent immediately declared its support
for the resolution decision, proclaiming how fortunate it was that a purchaser (Santander)

62
Spain could have granted government guarantees for senior debt newly issued by Banco Popular as an alternative
approach to ELA.
63
SRB, Deloitte, Hippocrates Valuation Report [Sale of Business Scenario], https://srb.europa.eu/
sites/srbsite/files/valuation 2 - main report.pdf (last accessed 14 August 2018), p. 2.

31
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 36 of 50

had appeared in the resolution process, 64 allowing for the process to be carried out “without
the use of public resources” and “without any spread in the sector.” 65
110. In fact, the impact of the resolution on Banco Popular’s investors was devastating, wiping
out all of the bank’s shares and Additional Tier 1 bonds and destroying the investments of
more than 300,000 investors who lost everything overnight. Claimants lost their entire
investment of, jointly with the investment of the claimants in the UNCITRAL Arbitration,
more than € 470 million.
111. Although Santander offered small investors in Banco Popular “fidelity bonds” in exchange
for giving up any litigation rights against Banco Popular’s resolution, no such opportunity
was afforded to Claimants.
112. Claimants’ losses are entirely attributable to Respondent’s acts and omissions, before, during
and after the resolution decision. As explained above, Respondent played a critical role in
the planning and implementation of the resolution of Banco Popular, and in engineering the
pre-determined sale of Banco Popular. It is highly unlikely that the resolution decision
would have been taken without Respondent’s active support, facilitation and approval.
113. It is also apparent that Banco Popular never would have or could have been placed into
resolution but for Respondent’s wrongful acts and omissions. The SRB Resolution Decision
and Marketing Decision both make clear that Banco Popular was placed into resolution
solely because of the liquidity crisis that Banco Popular faced in the weeks and months
preceding the resolution — culminating with a run on the bank that left Banco Popular in a
position where it ran out of cash and could not open its doors on June 7, 2017.
114. Banco Popular’s liquidity crisis was caused by the withdrawal of more than €17 billion in
deposits starting in December 2016, at a rate of € 1 billion per day in its final days. The
Spanish government was responsible for the withdrawal of at least 30% of those deposits,
more than any other single depositor. Yet, despite its awareness of Banco Popular’s
increasingly precarious liquidity position, Respondent did nothing to stop the continuing

64
El Confidencial, Linde admite que fue un error no nacionalizar Banco Popular en 2012, 10 April 2018,
https://www.elconfidencial.com/empresas/2018-04-10/banco-popular-quiebra-linde-saracho-culpa-
garantias 1547538/ (last accessed 14 August 2018).
65
ABC, De Guindos: La compra del Banco Popular se lleva a cabo «sin la utilización de recursos públicos, 7
June 2017, https://www.abc.es/economia/abci-guindos-compra-banco-popular-lleva-cabo-sin-utilizacion-
recursos-publicos-201706070935 noticia.html (last accessed 14 August 2018).

32
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 37 of 50

withdrawal of its own deposits. Respondent also arbitrarily failed to take any of the
multitude of measures it had previously taken and subsequently took to stabilize other banks
that were also facing liquidity problems.
115. In the weeks and months before the Banco Popular resolution, Respondent was fully aware
that the bank’s liquidity position was progressively deteriorating. By at least February 2017,
the Banco de España was receiving daily reports regarding Banco Popular’s liquidity
position and deposit withdrawals and was asked by Banco Popular to assist in helping the
bank to overcome its liquidity crisis. Charged with the supervisory responsibility to monitor
and preserve the financial condition and stability of its banks, Respondent was uniquely
positioned to help Banco Popular avoid and overcome the panic-based run on the bank that
ultimately led to its demise by helping to restore depositor confidence through public
expressions of support and reassurances to depositors.
116. For example, only a few weeks after the resolution of Banco Popular, two of the principal
banks in the province of Cataluña, Caixabank and Sabadell, were facing a threatened bank
run as a result of depositor panic caused by the potential Catalan secession. In order to quell
the bank run and restore depositor confidence, Respondent acted quickly by making public
statements of support for both banks and allowing those banks to reincorporate outside of
Cataluña. The Spanish Minister of Economy made several public statements that “there is
nothing to fear,” expressly stating that Spain would “act with the adequate instruments,”
aimed at reassuring depositors that the situation was under control. 66 These measures
quickly and successfully stopped the run on both banks.
117. Similarly, one week after the resolution of Banco Popular, another Spanish bank, Liberbank,
was threatened by speculative short-selling of shares. Respondent quickly responded by
prohibiting the short sale of Liberbank’s shares for five months, again successfully
preventing the bank’s failure. 67 As these cases demonstrate, Spain had a broad array of

66
Cinco Días, Guindos: los clientes de los bancos catalanes no deben temer por sus ahorros, 4 October 2017,
https://cincodias.elpais.com/cincodias/2017/10/04/mercados/1507103824 082370 html (last accessed 14 August
2018).

67
The prohibition was dictated on 12 June 2017, was extended two times and was finally lifted on 20 November
2017, see CNMV, La CNMV prohíbe con efectos inmediatos y por el plazo de 1 mes las ventas a corto y
operaciones similares (posiciones cortas) relacionadas con acciones de Liberbank S.A., al amparo del Artículo
20 del Reglamento No 236/2012, http://cnmv.es/Portal/HR/ResultadoBusquedaHR.aspx?nreg=253229&th=H

33
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 38 of 50

measures at its disposal to actively support and protect Spanish banks in crisis, in the
discharge of its duty to maintain the stability of the Spanish banking sector and to protect
the rights and interests of investors in that sector.
118. These measures confirm that Respondent was fully aware of the measures it could take to
restore depositor confidence, how to stabilize Spanish banks that were facing liquidity
problems, and the government’s unique responsibility to step in and to protect otherwise-
solvent banks. Respondent had done so on multiple occasions dating back to at least 2008,
utilizing a combination of measures uniquely at its disposal.
119. Yet, in the case of Banco Popular, Respondent not only failed to take the necessary measures
to help Banco Popular overcome its liquidity crisis, but then shockingly contributed actively
to Banco Popular spiraling liquidity crisis by withdrawing billions of Euros in deposits. Only
at the eleventh hour, after it was too late, did Respondent provide € 3.5 billion in ELA, by
then only a fraction of the liquidity assistance that Banco Popular requested (€ 9.5 billion)
and urgently needed. Had Respondent acted publicly and proactively to reassure Banco
Popular depositors and restore public confidence in Banco Popular, just as it had done on
other occasions with other Spanish banks, the bank run that caused Banco Popular’s demise
never would have occurred and the resolution of Banco Popular never would have been
possible.
120. To be clear, Claimants are not seeking in this arbitration to challenge the EU resolution
decision taken by the SRB, the EC, the ECB or any other EU institution. The challenge to
that decision has been filed by Claimants with the Court of Justice of the European Union.
In this case, Claimants only seek to hold Respondent responsible for its own acts and
omissions and its own unlawful conduct in directly precipitating a resolution that never
should have occurred and never would have been possible but for Respondent’s unlawful
actions.
121. Claimants seek to hold Respondent responsible for its unlawful conduct, in violation of the
Treaty, including, among other things: (a) Respondent’s arbitrary conduct in causing the
liquidity crisis that led to the resolution of Banco Popular, both by continuing to withdraw

and http://www.cnmv.es/Portal/Utilidades/BuscadorResultados.aspx?busqueda=liberbank&grupo=ZH&tb=2
(last accessed 14 August 2018).

34
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 39 of 50

government deposits from Banco Popular despite the knowledge of its spiraling liquidity
crisis and by the failure to take similar measures to the ones taken with respect to other
Spanish banks to help Banco Popular overcome its liquidity crisis; (b) Respondents’ failure
to provide a stable, reliable and predictable legal, regulatory and commercial environment
for Claimants’ investments in Banco Popular; (c) conducting a sham sale process that was
required to be conducted on a competitive basis but instead was carried out as a non-
competitive fire sale in which only one bidder was predictably able to submit an offer, armed
with guidance that encouraged the bidder to offer as little as € 1, thereby completely
disregarding the interests of Claimants and other Banco Popular investors; (d) its decision
to sell Banco Popular for € 1, far below the bank’s fair market value; (e) failing to provide
any notice or opportunity to be heard before completely depriving Claimants of their
investments in Banco Popular; (f) failing to act with any transparency regarding the decisions
and steps taken in connection with the resolution and the sale of Banco Popular to Santander;
and (g) failing to provide Claimants with any just compensation, all as required by both the
BIT and by Spanish law.

IV. RESPONDENT’S MULTIPLE VIOLATIONS OF THE MEXICO-SPAIN TREATY

122. Respondent’s acts and omissions, as summarized in Section III above, breached
Respondent’s Treaty obligations to Claimants in multiple respects, including, but not limited
to, Respondents’ failure to:

(a) Accord Claimants’ investments fair and equitable treatment as well as full
protection and security as required by Article IV of the Treaty;
(b) Accord Claimants’ investments treatment no less favorable than that given in
similar circumstances to the investments of its other investors, as required by
Article III of the Treaty, including protections offered by the State to foreign
investors under other investment treaties; and
(c) Refrain from expropriating investments directly and indirectly through measures
tantamount to expropriation except for a public purpose, in a non-discriminatory
manner, upon payment of adequate and effective compensation without delay, in
accordance with due process, and in accordance with the standards and
requirements of Article V of the Treaty.

35
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 40 of 50

A. Respondent Breached Its Obligation to Offer Fair and Equitable Treatment

and Full Protection and Security to Claimants’ Investments, in Violation of
Article IV of the Treaty.

123. Under Article IV of the Treaty, Claimants were guaranteed “treatment in accordance with
international customary law, including fair and equitable treatment, as well as full protection
and security” in connection with their investments in Banco Popular.
124. The requirement to provide “fair and equitable treatment” is widely interpreted as protecting
foreign investors against arbitrary and discriminatory treatment, thus requiring that the State
be guided by legal standards and reasoned decision-making, not arbitrary preference. “Fair
and equitable treatment” requires that the State provide a stable and predictable legal and
regulatory environment, and act in a consistent and even-handed way in accordance with
applicable laws and regulations. The guarantee of fair and equitable treatment also includes
the State’s obligation to act with transparency and openness in enacting measures that affect
protected investments.
125. The guarantee of full protection and security similarly requires the State to maintain a stable
and secure legal and commercial environment, by taking reasonable measures available to
the State to protect investments against acts that may threaten the investment.
126. As detailed above, Respondent breached the requirement to provide fair and equitable
treatment and full protection and security through a series of acts and omissions, including,
but not limited to, the following:

a. Respondent took active measures that damaged the financial condition of Banco
Popular prior to its Resolution that effectively destroyed Claimants’ investments,
including (i) its continuous and unprecedented withdrawal of billions of Euros from
Banco Popular through Spanish Government entities, thereby substantially
damaging Banco Popular’s liquidity position, despite the knowledge of Banco
Popular’s weakening liquidity position; and (ii) its unprecedented and alarming
public announcements that harmed the reputation of Banco Popular and contributed
to a lack of public confidence in Banco Popular, with no rational policy basis;
b. In sharp contrast to its consistent pattern of assisting other Spanish banks
experiencing financial difficulties, Respondent arbitrarily failed to take any
measures to stabilize Banco Popular’s liquidity position, including stopping short-

36
Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 41 of 50

sales and restoring public confidence to mitigate the run on bank deposits, despite
the fact that Respondent itself had substantially contributed to Banco Popular’s
weakened liquidity position;
c. Respondent breached its obligation to provide a secure and stable environment by
disregarding its own laws and regulations, including the disregard of the Banco de
España’s pivotal role as lender of last resort;
d. Respondent arbitrarily failed to consider alternative private sector solutions that
would have avoided the Resolution, including Claimants’ alternative plans to
enhance Banco Popular’s capital position and its liquidity position. Claimants
communicated these alternatives to Respondent, along with the fact that those
alternatives were supported by other institutional investors; Respondent also
arbitrarily failed to contact Claimants prior to the resolution in order to determine
whether there were private sector alternatives to resolution;
e. Instead of taking steps to help Banco Popular overcome the liquidity crisis that it
was facing, and to protect Claimants’ investments in Banco Popular, Respondent
actively participated in the process to engineer the pre-conceived sale of Banco
Popular via resolution. Just one day after Santander told the Banco de España that
it would “rescue” Banco Popular at zero cost, the authorities sought out an
“independent” valuation expert (Deloitte) that was then instructed to carry out its
work on the assumption that Banco Popular would be sold using the sale-of-
business tool. Respondent advocated the use of the sale-of-business tool and bail-
in, and the resultant destruction of Banco Popular’s existing shares and convertible
bonds, without any prior and independent legal or economic analysis supporting
that decision. Respondents’ decision to support the sale of Banco Popular via
resolution also was taken weeks before there was any finding that Banco Popular
was FOLTF, before the eventual run on the bank that was used to justify the
resolution had even started, and without any assessment of private sector
alternatives that could have avoided resolution, as required by the regulatory
framework. Respondent’s pre-conceived decision to sell Banco Popular via
resolution arbitrarily ignored the array of resolution tools available, including those
contemplated in the then-standing 2016 Resolution Plan. Instead of basing its

37
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 42 of 50

decisions on a neutral analysis of available alternatives, Respondent drove a

resolution process informed by backdoor conversations, disregarding the massive
losses that its decision would cause to hundreds of thousands of investors, including
Claimants;
f. Respondent provided no notification to Claimants or any opportunity to be heard
before the resolution, despite Respondents’ knowledge that Claimants had a
substantial equity ownership position in Banco Popular, had previously consulted
with Claimants regarding the financial future of Banco Popular, and that Claimants
were ready and able, working with other significant investors, to implement private
transactions to stabilize and enhance Banco Popular’s financial condition;
g. Respondent conducted a fire sale of Banco Popular in which it invited only five
buyers to consider bidding a suggested minimum bid of € 1 for Banco Popular,
along with a compressed transaction timetable and insufficient information that
prevented other bidders from participating in a meaningful and competitive sales
process altogether. Santander, having already obtained internal Board approval
following its presentation to the Banco de España, was the only buyer able to
participate in the auction. Meanwhile, foreign investors, including Claimants, were
excluded from that sales process despite their substantial equity holdings in Banco
Popular and the cross-ownership arrangements between Banco Popular and the
Mexican bank owned by a number of the Claimants, Ve por Más (Bx+); and
h. Before, during and after the resolution process, Respondent acted without any
transparency. Even now, more than one year after the resolution of Banco Popular,
Respondent still refuses to provide critical information regarding the facts and
circumstances that led to the resolution and sale of Banco Popular. Respondent has
withheld its unredacted decisions and documents reflecting the underlying legal
basis and reasoning for its conduct in facilitating the resolution of a bank that was
otherwise solvent and only facing a liquidity crisis that Respondent itself had
substantially caused in the first place.

127. Through these acts, Respondent violated the Claimants’ rights under the Treaty to fair and
equitable treatment and to full protection and security.

38
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 43 of 50

B. Respondent Failed To Accord Claimants the More Favorable Fair and

Equitable Treatment Guarantees Accorded to Investors from Third States in
Other BITs, In Violation of Article III of the Treaty.

128. Pursuant to Articles III(1) and (2) of the Treaty, Claimants were guaranteed treatment that
is “no less favourable than that given in similar circumstances” to any other investors,
including “to investors of any third State.” Tribunals have held that this guarantee requires
the host State to extend to investors the strongest investment protections granted by the State
under investment treaties with third countries, including the autonomous formulation of the
fair and equitable treatment standard.
129. As set out above, Article V of the Mexico-Spain BIT provides investors with fair and
equitable treatment protection, which tribunals have defined to provide equivalent protection
as that granted by the autonomous fair and equitable treatment standard. However, to the
extent that Article V is interpreted as providing a limited form of fair and equitable treatment
protection, Claimants invoke Article III(2) of the Mexico-Spain Treaty in order to receive
the benefit of the strongest fair and equitable treatment protection granted by Respondent to
investors in third countries.
130. In particular, Claimants invoke the fair and equitable treatment standard provided under
Article 4 of the Spain-Dominican Republic BIT, 68 Article 3 of the Spain-Libya BIT 69 and
Article IV(1) of the Spain-Turkey BIT 70 amongst others. For the same reasons set out in
Section IV.A above, Respondent’s conduct violates the fair and equitable treatment standard
required by these treaties, and therefore breaches Article III(2) of the Mexico-Spain Treaty.

C. Respondent Failed To Accord Claimants With Treatment As Favorable As It

Accorded To Its Own Investors And Investors From Third States.

131. Articles III(1) and (2) of the Treaty provide that Respondent shall give “treatment that is no
less favourable than that given in similar circumstances” to “its own investors or to investors
of any third State, whichever is more favourable to the investor.”

68
Signed 16 March 1995, in force 7 October 1996.
69
Signed 17 December 2007, in force 1 August 2009.

70
Signed 15 February 1995, in force 3 March 1998.

39
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 44 of 50

132. Respondent provided the Claimants’ investments with treatment less favorable than the
treatment it provided to other investments in its territory under similar circumstances. As
described above, in similar circumstances, Respondent regularly took steps to stabilize other
Spanish banks before and even after the Banco Popular resolution, yet arbitrarily failed to
take measures to stabilize Banco Popular’s liquidity position.
133. Respondent also only offered Spanish banks the opportunity to bid on the purchase of Banco
Popular in connection with the resolution process, but did not provide this opportunity to
foreign investors or foreign banks. Claimants, as Mexican nationals, were denied that
opportunity despite the cross-ownership between Banco Popular and Claimants’ bank, Bx+
and despite Respondent’s knowledge of Claimants’ substantial investments and their ability
to implement private transactions that could have averted a resolution. As a result of its
private communications with Respondent on or about May 14, 2017, Santander had
sufficient time to seek and obtain internal Board approval to buy Banco Popular through
resolution. Such advanced notice was critical, as the FROB later required internal Board
approval for any purchaser seeking to submit a bid for Banco Popular, and to do so in a
matter of hours. Respondent provided no such notice or opportunity to Claimants.
134. By according the Claimants’ investment worse treatment than that given to investments in
its territory in similar circumstances, Respondent breached its obligations under Articles
III(1) and (2) of the Treaty.

D. Respondent Expropriated Claimants’ Investments without Compensation.

135. Article V(1) of the Treaty provides that:

Neither of the Contracting Parties shall, directly or indirectly,

expropriate or nationalize an investment through measures
equivalent to expropriation or nationalization (“expropriation”),
unless it is: (a) for reasons of public interest; (b) on a non-
discriminatory basis; (c) in accordance with the rule of law; and (d)
upon payment of indemnification in accordance with [the Treaty
standards].

136. As described above, Respondent expropriated Claimants’ investments in Banco Popular by

destroying the value of such investments through a combination of acts and omissions.
Respondent’s conduct effectively destroyed the value of the Claimants’ investment until it
became worthless, through a combination of acts and omissions, including:

40
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 45 of 50

a. Public officials were responsible for billions of Euros in deposit withdrawals and
negative statements to the press, which eroded the value of Banco Popular and led
to its resolution—which Spanish and European authorities acknowledge was only
possible due to the liquidity crisis that Respondent substantially caused;
b. After it learned of Santander’s decision not to purchase Banco Popular through a
private sale and its willingness to take Banco Popular at no cost, Respondent
actively engineered and facilitated the sale of Banco Popular via resolution, which
foreseeably led to the destruction of Claimants’ investments in Banco Popular;
c. Respondent effectively destroyed the remaining value of Banco Popular by
conducting a sham, non-competitive auction of the bank, in which it invited five
participants to submit a bid of € 1 and created circumstances under which only
Santander would be able to submit an offer; this fire sale process, carried out by the
FROB, was never designed to achieve a fair market value price; and
d. Respondent immediately accepted Santander’s € 1 bid and proposed to the SRB
that Santander be allowed to purchase Banco Popular for € 1, an amount far below
the bank’s fair market value as established by contemporaneous, independent third
parties.

137. Respondent carried out these expropriatory acts in disregard of the requirements of the
Treaty. Among other things, Respondent provided no notice or opportunity to be heard
before depriving Claimants’ of their investment in Banco Popular, and then failed to provide
any compensation, in disregard of the Treaty requirements, Spanish law, and the rule of law.
138. Claimants reserve their right to raise additional claims of Treaty violations by Respondent,
including their right to assert new claims as and when new information is provided with
respect to Respondent’s actions and/or the circumstances that led to the resolution of Banco
Popular. Claimants also reserve their right to present additional arguments and evidence as
may be necessary to present or supplement their claims and/or to address any new
developments that may arise following the filing of this Notice of Arbitration.

41
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 46 of 50

V. JURISDICTION

139. As explained below, all jurisdictional requirements under the Treaty are satisfied. Claimants
have also complied with all procedural requirements of the Treaty and of the UNCITRAL
Arbitration Rules regarding submission of a claim to arbitration.

A. Claimants are Protected Investors under the Treaty.

140. Pursuant to Article 1(5)(a), the Treaty applies to “physical persons who are nationals of one
of the Contracting Parties.” Claimants include the following 8 physical persons who are all
nationals of Mexico:

(1) Antonio del Valle Ruiz

(2) Antonio Cosío Ariño

(3) Carlos Ruiz Sacristán

(4) Jaime Ruiz Sacristán

(5) Jorge Esteve Recolons

(6) José Manuel Fierro Von Mohr

(7) Luis de Garay Russ

(8) Rogelio Barrenechea Cuenca

141. Due to their Mexican nationality, these individuals each qualify as persons protected under
the Treaty. Their concurrent Spanish nationality does not affect their rights under the Treaty.

B. Claimants Made Qualifying Investments Under the Treaty.

142. Claimants each have made investments in Spain that are protected by the Treaty. Article
1(4) of the Treaty defines “investments” protected by the Treaty to include certain types of
“assets owned or controlled by investors of one of the Contracting Parties and established in
the territory of the other Contracting party in accordance with the legislation of the latter.”
Qualifying investments under Article 1(4) include “shares … and other forms of
participation in the capital of an enterprise” (subsection (b)).
143. Claimants directly and indirectly own assets that qualify as Spanish investments under
subsections (b) and (c) of the definition of “investment” under the Treaty, including, inter
alia, shares in Banco Popular.

42
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 47 of 50

C. Claimants Meet all Treaty Requirements.

144. Article X(3) of the Treaty allows an investor of a Party to submit to arbitration a claim that
the other Party breached an obligation under the Treaty provided that “the investor or his
investment has suffered losses or damages by virtue of the alleged violation.” Claimants’
claims concern breaches of Respondent’s obligations under the Treaty and the Claimants
have lost the entire value of their investments due to those breaches.
145. Claimants’ submission of their claims to arbitration is timely. Article X(4) of the Treaty
provides that “[a]n investor may not submit a claim…if more than three years have elapsed
from the date on which the investor had, or should have had, knowledge of the alleged
violation and of the losses or damages suffered.” Claimants’ claims are timely under the
Treaty, as no more than three years have elapsed from the date on which the Claimants knew
of the alleged violation and the losses or damages suffered.
146. Under Articles IX and XI of the Treaty, an investor must deliver to the disputing Party
written notice of the dispute more than six months before submitting the claim to
arbitration. 71 Claimants delivered their letter to the Spanish Government on January 22,
2018, which is more than six months prior to the date of this Notice of Arbitration.
147. Claimants also satisfy the conditions precedent to the submission of a claim under the Treaty.
Pursuant to Article X(5)(a) of the Treaty, Claimants consent to arbitration in accordance
with the procedures set out in the Treaty. Claimants also waive their right to initiate or
continue before any administrative or judicial tribunal in accordance with the legislation of
a Party or other dispute settlement procedures in respect of the measures by Respondent that
constitutes an alleged failure to comply with the Treaty, with the exception of procedures
requesting the application of declarative or extraordinary or precautionary measures having
a suspensive effect, which do not involve the payment of damages. The written consent and

71
“Article IX. Notification 1. Any dispute which may arise between one of the Contracting Parties and an investor
of the other Contracting Party due to alleged non-compliance with an obligation under this Agreement shall be
notified in writing by the investor to the Contracting Party receiving the investment. Article XI(1). Provided that
six months have elapsed since the notification referred to in article IX, the disputing investor may submit the
claim to arbitration in accordance with: (a) the ICSID Convention, provided that both Contracting Parties are
States party … [or] (c) the UNCITRAL Arbitration Rules…”.

43
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 48 of 50

waiver required by Article X(5)(b) is included with this Notice of Arbitration as Appendix
CRFA-C and shall be delivered to Respondent. 72

D. Arbitration Under the UNCITRAL Arbitration Rules is Proper.

148. Claimants’ submission of the proceedings to UNCITRAL Arbitration Rules is proper under
the Treaty and under the UNCITRAL Arbitration Rules.
149. Under the Treaty, Respondent provided its “unconditional consent to the submission of a
dispute to international arbitration in accordance with the procedures laid down in this
Section,” 73 including “arbitration in accordance with … the UNCITRAL Arbitration
Rules.” 74 The Treaty therefore contains Spain’s offer to arbitrate the instant dispute under
the UNCITRAL Arbitration Rules. Such offer to arbitrate satisfies the requirement
contained in the UNCITRAL Arbitration Rules that Spain agree to apply such rules in
writing. 75 The 2013 UNCITRAL Rules shall govern the present dispute given that
Claimants accepted the offer to arbitrate following the enactment of those rules.

VI. CONSTITUTION OF THE TRIBUNAL, SEAT, STATEMENT OF CLAIM, AND

LANGUAGE

150. Pursuant to Article XIII of the Treaty, and Articles 1, 3 and 7 of the UNCITRAL Arbitration
Rules, Claimants request the constitution of a Tribunal comprised of three arbitrators, with
one arbitrator appointed by each party and the third arbitrator appointed by the disputing
parties by mutual agreement. Claimants hereby nominate Professor William Park as their
party-appointed arbitrator. If the remainder of the Tribunal has not been constituted within
90 days from the date of the receipt of this Request by Respondent, the procedures set out in
Article XIII(3) of the Treaty shall apply.
151. The written submissions including the Statement of Claim shall be filed as directed by the
arbitrators in accordance with the UNCITRAL Arbitration Rules.

72
Letter of consent and waiver of rights of Claimants pursuant to Article X(5) of the Treaty is attached hereto as
Appendix CRFA-C.

73
Article XII. Consent.
74
Article XI. Referral to arbitration.

75
UNCITRAL Arbitration Rules, Article 1.

44
 Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 49 of 50

152. The Treaty is silent on the question of the language of the arbitration, and the parties have
not discussed or reached an agreement on this issue. Claimants propose English as the
language of the arbitration. Claimants also propose that exhibits and authorities in Spanish
may be submitted by the parties without translation into English, and have adopted this
practice in the present Notice of Arbitration.
153. Claimants propose Washington, D.C. as the seat of arbitration.
154. Claimants note that all procedural and substantial requirements under the Treaty and the
UNCITRAL Arbitration Rules are met.

VII. CLAIMANTS’ REQUEST FOR RELIEF

155. On the basis of the foregoing, without limitation and reserving their right to adjust the relief
requested during the course of the arbitration, Claimants respectfully request that the
Tribunal:

(a) DECLARE that this dispute and the claims asserted by Claimants fall within the
jurisdiction of the Tribunal;
(b) DECLARE that Respondent has breached:

1. Articles IV of the Treaty by failing to provide fair and equitable treatment

and full protection and security and, through incorporation via Article III(2)
of the Treaty, as guaranteed in Article 4 of the Spain-Dominican Republic
BIT and Article 3 of the Spain-Libya BIT;
2. Article III of the Treaty by failing to provide Claimants’ investments
treatment no less favorable than that given to other investors; and
3. Article V of the Treaty by unlawfully expropriating and/or taking measures
tantamount to expropriation with respect to Claimants’ investments in
Spain;

(c) ORDER Respondent to pay damages arising from Respondent’s breaches of its
obligations under the Treaty, in an amount to be determined together with
compound interest calculated from the date of the breach until the date of payment
of the award, and the costs of this arbitration, including, without limitation,
attorney’s fees and other expenses; and
(d) AWARD such other relief as the Tribunal considers appropriate.

45
Case 1:18-mc-00085-ER Document 56-2 Filed 08/23/18 Page 50 of 50