Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 122

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more difﬁcult. Many attempts were fruitless. 62 Creditors have, however, not stopped their search and continue to make attempts to have their claims satisﬁed. 63 In one sophisticated attempt, some creditors went after the assets held by the Central Bank of Argentina at the Federal Reserve Bank of New York, which had been earmarked by Argentina to repay its IFM debt. 64 Although a district court ﬁrst issued multiple ex parte orders of attachment and restraining orders directed to property of Argentina, including property held through the Central bank, the attachments and restraining orders were later vacated by the same district court. 65 The Second Circuit agreed with the district court that funds allocated by Argentina for the early repayment of the IMF were immune from attachment, upholding the narrow interpretation of the ’used for’ commercial-activity exception of the FSIA which had been pioneered by the 5th Circuit. It also held that the ability of the Republic to exercise some control over its central bank, did not mean that the ownership of the funds deposited with the Federal Reserve had changed to the Republic. 66 The Court further relied on the fact that the funds were likely to beneﬁt from sovereign immunity, as the relationship between the IMF and Argentina was one “peculiar to sovereigns”. 67
a stay of litigation to negotiate with creditors) and Applestein v. Republic of Argentina, no 02 Civ. 1773, 2003 WL 1990206 (S.D.N.Y. Apr. 29, 2003). 62. Panizza & Co indicate that attempts were made “to attach the representation ofﬁce of the province of Buenos Aires in New York, diplomatic facilities, U.S. accounts of Correo Argentino S.A. (the re-nationalized postal service), and — most signiﬁcantly — USD 105 million in reserves held by the Central Bank of Argentina in New York”. (U. PANIZZA, F. STURZENEGGER, and J. ZETTELMEYER, “The Economics and Law of Sovereign Debt and Default”, 2009 Journal of Economic Literature, 47(3), 651-698, at p. 18). See e.g. Michelle Colella et al. v. Republic of Argentina 2007 WL 1545204 (N.D. Cal. May 29, 2007) (attempt to attach the Argentinean presidential airplane – the court held that as the airplane was used to transport the president of Argentina, it was immune). 63. In a recent attempt, a creditor attempted to attach assets held by the Argentine social security system (’Administración Nacional de Seguridad Social’), which had been nationalized by Argentina. A district court ﬁrst allowed the creditor to attach a substantial amount held by the social security system in New York as part of a fund to meet pension obligations, holding that the waiver by Argentina of its sovereign immunity in bond documentation also applied in this case (Aurelius Capital Partners. LP v. The Republic of Argentina, 07-CIV-2715 (TPG) (S.D.N.Y. 2008)). The Second Circuit reversed and vacated the attachment, holding that the funds were immune under the FSIA, without resolving the parties’ dispute about whether the Social Security Administration was a separate agency or instrumentality of Argentina (see Aurelius Capital Partner, LP v. Republic of Argentina, 584 F.3d 120 (2d Cir. 2009), cert. denied 130 S. Ct. 1691 (2010)). See also a further attempt by Aurelius to enforce against Argentina, this time on social security funds maintained in Argentina: Aurelius Capital Partners, LP v. Republic of Argentina 2010 WL 768874 (S.D.N.Y. Mar. 5, 2010). 64. EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007) (cert. denied, 128 S. Ct. 109 (2007)). 65. EM Ltd. v. Republic of Argentina, Nos. 03 Civ. 2507, 03 Civ. 8845, 05 Civ. 2434, Order Vacating Attachments and Restraining Notices (S.D.N.Y. Jan. 24, 2006). 66. The Second Circuit Court noted that “To conclude otherwise would be to allow creditors of a foreign state to attach all of the assets of the state’s central bank any time the foreign state issues directives affecting the central bank’s reserves.” 473 F.3d 463, 475, § 34. 67. 473 F.3d 463, 482-483. Certiorari was denied in this case – 552 U.S. 818 (2007).

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

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