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The same French bank was also attacked by another creditor in France. This time, the tool used was something close to ’procedural harassment’. According to news reports, FG Hemisphere instructed its bailiff to make at least 30 attachments on the assets of the French bank. The purpose was apparently to cause the bank to fail to comply with formal and substantial requirements applicable in case of third party garnishment. The creditor also attempted to obtain an order forcing the bank to disclose documents related to its dealings with Congo’s national oil company, SNPC – apparently in order to buttress its liability claim against the bank. 57

C. ARGENTINA: A WAR OF MANY BATTLES
The Argentine default is the largest recent sovereign default. 58 The default of December 2001 covered more than USD 85 billion of debts, represented by more than 150 separate bond issues. 59 It also attracts attention in that the sovereign debtor adopted a very aggressive stance vis-à-vis its creditors. It is therefore no wonder that these creditors massively went to courts. Reports indicate that more than 140 proceedings were launched by creditors. 60 The Argentine case is interesting in that creditors explored novel avenues to obtain judgment and payment. There were the classic proceedings in New York – with creditors ﬁrst trying to obtain a judgment ordering Argentina to pay. The attempt by EML only stands out in this respect because of the amount involved. EML obtained a judgment against the Republic of Argentina for an amount in excess of USD 700 million. 61 Enforcing the judgment proved
by Bernard CARAYON, “À armes égales”, Report to the French Prime Minister, sept. 2006, at p. 18 [available at http://www.ladocumentationfrancaise.fr/]). 57. In ﬁrst instance, the creditor obtained an injunction ordering the bank to disclose certain documents. The injunction was vacated by the Court of Appeal of Paris, which held that such an order would violate the duty of secrecy resting upon banks under French law (Court of Appeal of Paris, 14th Chamber, 1st of October 2004, N° 04/14118, SA BNP Paribas v Société FG Hemisphere Associates, Juris-data n° 2004-269749). 58. See ad generalia, S. SCHLEMMER-SCHULTE, “Sovereign Debt: the Argentine Bonds Case”, in Frieden in Freiheit. Festschrift für Michael Bothe zum 70. Geburtstag, A. FISCHER-LESCANO (ed.), Baden-Baden, Nomos, 2008, pp. 973 ff. 59. See for more details RODRIGO OLIVARES-CAMINAL, “Sovereign Bonds: a Critical Analysis of Argentina’s Debt Exchange Offer”, J. Banking Regulation (2008) 10 28-45. 60. EMTA Report Club de Paris: EMTA Preliminary Analysis of Creditor Litigation in the NonHIPC Sovereign Debt Restructuring Context, May 2009, available at http://www.clubdeparis.org/ 61. See EM Ltd. v. The Republic of Argentina, 382 F.2d 291 (2004). In ﬁrst instance, the District Court for the Southern District of New York had awarded a summary judgment to EM in the amount of USD 724,801,662.56: see EM Ltd. v. Republic of Argentina, 2003 WL 22120745 (S.D.N.Y. Sept. 12, 2003), amended by EM Ltd. v. Republic of Argentina, 2003 WL 22454934 (S.D.N.Y. Oct. 27, 2003). See also NML Capital, Ltd. v. The Republic of Argentina, 03 Civ. 8845 (TPG) USDC S.D. New York (May 11, 2006) and the proceedings brought by Lightwater: Lightwater Corporation Ltd. v. Republic of Argentina no 02 Civ. 3804, 2003 WL 1878420 (SDNY Apr. 14 2003) (granting summary judgment to the plaintiffs in respect of one bond issue and rejecting the sovereign’s request for

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

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