HSBC initiates legal proceedings against El Salvador, claiming Supreme Court ruling was a denial of justice and breach of El Salvador-United Kingdom Bilateral Investment Treaty

HSBC Latin American Holdings (HSBC, the Bank) initiated legal proceedings against the Republic of El Salvador for breach of its investment treaty with the United Kingdom, and seeks to recover at least $49.3 million in damages that the Bank alleges were wrongly awarded against it by the Supreme Court of El Salvador.

The arbritation case will be heard by the International Centre for Settlement of Investment Disputes (ICSID). Based in Washington, D.C., ICSID is part of the World Bank Group and supports the resolution of international investment disputes between investors and sovereign states.

The dispute arises from a case in El Salvadoran courts in which HSBC sought to recover approximately $2 million in unpaid loans to a local business. The first court to hear the case found in HSBC’s favor. The borrower appealed, and the appellate court again found in HSBC’s favor. However, the Supreme Court overturned the lower courts’ decisions, not only failing to enforce the loan agreement but also ordering HSBC to pay the defendant $49.3 million. The damages award was more than twice the $22.5 million sought by the El Salvadoran business.

“HSBC is involved in legal cases in courts around the world, and we accept the outcome of those proceedings when they are resolved according to the rule of law,” said Leopoldo Ortega, General Counsel, HSBC Latin America. “This case is effectively a judicially sanctioned denial of justice, and our decision to take it to an independent international tribunal is meant to protect both our financial interests and the rule of law in international investing.”

In its filing with the ICSID, HSBC states that the Supreme Court decision, coupled with various serious irregularities in the judicial process, resulted in a clear violation of the Bank’s fundamental rights.

Specifically, the Supreme Court decision breached El Salvador’s obligations to UK investors under the El Salvador-United Kingdom Bilateral Investment Treaty, HSBC claims. Under that treaty, which was signed by both nations and has been in force since 2000, El Salvador and the UK agree to give each other’s investors fair and equitable treatment, and to protect them against unreasonable or discriminatory measures. The court’s decision amounts to a “denial of justice”, a well-established legal principle, and fails to protect the fundamental rights of HSBC as a UK investor in El Salvador, HSBC’s arbitration filing states.

Prior to filing its case with ICSID, HSBC sought an amicable settlement, writing to the Government of El Salvador in December 2020 and offering to discuss the case. To date, the Government of El Salvador has provided no substantive response, so HSBC moved forward with the arbitration proceeding.

ICSID is a dispute resolution institution established in 1965 under the ICSID Convention – an international treaty which has been signed by 155 states, including El Salvador and the UK. ICSID tribunals consist of independent arbitrators who do not share the nationality of either party. The outcomes of its arbitration proceeds are enforceable in any of the 155 nations which have signed the ICSID Convention, including El Salvador.

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About HSBC

HSBC Holdings plc, the parent company of HSBC, is headquartered in London. HSBC serves customers worldwide from offices in 64 countries and territories in its geographical regions: Europe, Asia, North America, Latin America, and Middle East and North Africa. With assets of US$2,976bn at 30 June 2021, HSBC is one of the world’s largest banking and financial services organisations.

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