Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 113

Les fonds vautours

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bonds could be deemed to constitute a commercial activity under the FSIA. This opened the way for creditors to sue defaulting sovereigns in the U.S. 17 18 In another development, courts restricted the use of the non-statutory Act of State doctrine, which had previously been used as a shield by foreign sovereigns. 19 While courts ﬁrst accepted to refrain from reviewing or questioning actions by foreign states, in order not to become entangled in international affairs more properly left to the political branches of government, 20 they later accepted that the act of state doctrine did not bar creditors from bringing proceedings against sovereign debtors. This was justiﬁed on a legal technical basis. Courts noted that while only acts performed within the territory of the foreign sovereign debtor deserved deference under the act of state doctrine, most sovereign debt was too closely connected with the United States, notably because it was payable in US dollars and included a choice for US courts. 21 Behind this reasoning,
17. See on this development, G. R. DELAUME, “Sovereign immunity and public debt”, Festschrift in Honor of J. Gold, W.F. EBKE (eds.), Heidelberg, Recht & Wirtschaft 1990, at pp. 471 ff. In the United Kingdom, section 3(3)(b) of the 1978 State Immunities Act provides that « (b) any loan or other transaction for the provision of ﬁnance and any guarantee or indemnity in respect of any such transaction or of any other ﬁnancial obligation » constitute a « commercial transaction » for which a State does not enjoy immunity. 18. In Belgium, courts have accepted that sovereign debtors cannot claim sovereign immunity in matters of sovereign debt. This was explicitly decided by the Court of First Instance of Brussels in a dispute between the Democratic Republic of Congo and Red Mountain Finance (Ruling of the Brussels Court of First Instance, 6 March 2001, Democratic Republic of Congo v. Red Mountain Finance, reproduced in J. WOUTERS and M. VIDAL, Cases van internationaal recht, Intersentia, 2005, 544-546). The case did not concern directly the issue of immunity. Rather, the court had to decide whether a judgment issued by an English court against the Republic, could be enforced in Belgium on the basis of the Brussels I Regulation. The court noted that the claim was based on a Reﬁnancing Credit Agreement signed in March 1980 by the Republic and its Central Bank. Although the Agreement included a waiver of immunity, the Court went further and decided that the credit agreements did no signiﬁcantly differ from a loan agreement which a bank could sign with a private business or individual. According to the Court, the Republic could therefore not claim any immunity for disputes relating to the agreement. 19. In Underhill v. Hernandez, 168 U.S. 250 (1897), Chief Justice Fuller wrote that “Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of another done within its own territory (at p. 252). See for a recent application Nocula v. UGS Corp. 520 F.3d 719 (7th Cir. 2008) (the Court held that the “decision of a foreign sovereign to exercise its police power through the enforcement of its criminal laws plainly qualiﬁes as an act of state.” Id. at 728. 20. In litigation involving debts issued by banks owned by Costa Rica which had defaulted on their obligations as a consequence of exchange controls imposed by the Costa Rica Central Bank, prohibiting the servicing of obligations to foreign creditors, a district court relied on the act of state doctrine to dismiss the claim issued by the agent for a syndicate of thirty-nine commercial banks holding the debt. The court held that the act of state doctrine precluded US courts from inquiring into the validity of acts of foreign government done in its own territory (Allied Bank International v. Banco Credito Agricola de Cartago 566 F. Supp 1440 at p. 1444 (SDNY 1983)). 21. Allied Bank II, 757 F.2d 516 at 521-523 (2nd Cir. 1985). On the peculiarities of this case, which was submitted twice to the Second Circuit Court, see J. E. FISCH & C. M. GENTILE, “Vultures or Vanguards?: The Role of Litigation in Sovereign Debt Restructuring”, 53 Emory L. J. (2004), (1047), 1082-84.

Droit des affaires - Insolvabilité des États et dettes souveraines -1

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