Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 115

Les fonds vautours

109

In later cases, however, the doctrine of comity has been used against creditors. 29 At most, the doctrine of comity is therefore a volatile argument, which is “unreliable” as a defense for both the debtor and the creditors. 30 All in all, the substantial increase in the number of secondary creditors of sovereign debt 31 and changes in the legal framework laid the foundations for increased creditor activism. 32 Instead of attempting to charter all instances of creditor litigation, most of which has been extensively documented, 33 we will highlight three novel strategies of such creditor litigation. These strategies have been selected because they illustrate the rapidly changing tactics used by creditors seeking to obtain payment. 34 Gone are indeed the days when creditors limited themselves to attaching – or attempting to attach - assets belonging directly to the sovereign debtor or its instrumentalities. While creditors still attempt to attach assets of central banks, 35
29. In a case, which pitted the central bank of Brazil against a private creditor who had acquired, at large discounts, more than USD 1 billion of a special Brazilian debt, the US government ﬁled a ’Statement of Interest” urging the court to reject the claim by the creditors to accelerate the debt because of concern that “a judgment in favor of the [creditors] would encourage creditors to use the courts to gain unfair concessions from sovereign debtors” (Statement of Interest of the United States of America in Opposition to the First Amended Complaint, CIBS Bank and Trust Co (Cayman) Ltd. v. Banco Central do Brazil 886 F. Supp. 1105 (SDNY 1995)). 30. As underlined by Sturzenegger & Zetelmayer. As these authors explain, “comity considerations seem to have boiled down to a court assessment on whether the debtor’s actions could be viewed as broadly justiﬁed in light of US policies on how international debt crises ought to be resolved”. See also on this theme C. C. WHEELER and A. ATTARAN, “Declawing the Vulture Funds: Rehabilitation of a Comity Defense in Sovereign Debt Litigation”, STANFORD J. OF INT’L LAW 2003, vol. 39, 253 ff. 31. In a statement issued in a case, the US government noted the “dramatic increase in the number of secondary market purchasers of sovereign debt”, which had altered the relationship between creditors and sovereign debtors: Statement of Interest of the United States of America in Opposition to the First Amended Complaint, CIBS Bank and Trust Co (Cayman) Ltd. v. Banco Central do Brazil 886 F. Supp. 1105 (SDNY 1995). 32. Another development worth mentioning is the rather narrow approach taken by courts when dealing with a defense based on Article VIII section 2b of the IMF Articles of Agreement. Certain sovereign debtors have indeed attempted to justify their defaults by pointing to limitations they had themselves imposed on payments to foreign creditors, which made honoring an “exchange contract” impossible – in Libra Bank Ltd. v. Banco National de Costa Rica (570 F. Sup. 870 (SDNY 1983)), a district court rejected this argument, noting that the restrictions imposed by Costa Rica were not consistent with the IMF agreement. 33. The best documentary sources can be found on the website of EMTA at http://www.emta.org/ cases.aspx/ 34. There are many other instances of recent creditor litigation, see e.g. against China the proceedings brought in US courts by individual bondholders: Marvin L. Morris, Jr. v. The People’s Republic of China and Gloria Bolanos Pons and Aitor Rodriguez Soria v. The People’s Republic of China (documents available at http://www.globalsecuritieswatch.org/creditorlawsuits.html/). Other recent cases include Turkmani v. Republic of Bolivia, 193 F. Supp. 2d 165 (D.D.C. 2002); Hirshon v. Republic of Bolivia, 979 F. Supp. 908 (D.D.C. 1997). 35. This is what Red Mountain Finance did in Belgium, attempting to attach the assets of the Central Bank of the Democratic Republic of Congo – see the 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. At the same

http://www.emta.org/ http://www.globalsecuritieswatch.org/creditorlawsuits.html/

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

Table des matières de la publication Droit des affaires - Insolvabilité des États et dettes souveraines -1