Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 123

Les fonds vautours

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The same creditors also targeted the major exchange operation devised by Argentina to restructure its debt. The so-called Cavalla exchange was massive: it aimed to exchange the old, defaulted debt for new bonds, issued with a substantial discount. A majority of creditors tendered its ’old’ bonds in. 68 Among the creditors who did not respond positively to the offer for exchange, some attempted to attach a number of the tendered ’old’ bonds on which Argentina had defaulted. The creditors argued that these bonds, which had been turned in by bondholders who had accepted the exchange and entrusted them with the Bank of New York, which was in charge of carrying the exchange, were the property of the Republic of Argentina. The creditors justiﬁed this claim by reference to the fact that although Argentina did not yet have control over the bonds, it was entitled to receive the bonds once the exchange was completed. The creativity of creditors did not pay off: after issuing an ex parte attachment, the district court dissolved it. 69 In another case, a creditor sought to attach collateral which Argentina held with the New York Federal Reserve Bank as part of its Brady plan. 70 The motion for attachment was denied by the district court, which found that the attachment would be moot because there was no property interest attachable. The court was also concerned that the attachment might disrupt the marketplace during Argentina’s exchange offer. 71 While other creditors also attempted to target the exchange operation, 72 another avenue was explored. It involved using the class action mechanism. A ﬁrst
68. 76 % of the creditors accepted the invitation to trade in old bonds for newly issued bonds. 69. In appeal, the Second Circuit afﬁrmed the ruling of the district court denying the attachment, noting that the district court’s order was within its reasonable discretion. The Court also noted that “If these attachments [and restraints] are still in effect, we throw into doubt, to say the least, the conclusion of the exchange offer.”: EM Ltd v. The Republic of Argentina, 131 Fed. Appx. 745 (2d Cir. 2005). See the comments of B. MAIDEN, « Argentina ruling calls halt to holdout litigation » (2005) Int’l Financial L. Rev. 6. 70. Capital Ventures Intl v. Republic of Argentina, 443 F.3d 214 (2d Cir. 2006). In 1992, Argentina negotiated the restructuring of a large part of its commercial debt using the Brady scheme: it exchanged old unsecured bonds for new bonds (the ’Brady Bonds’), which were secured by collateral owned by Argentina and held in New York (so-called ’Brady collateral’, which consisted of US Treasury and German bonds). 71. In appeal, the Second Circuit reversed and allowed the attachment, holding that there was no risk of creating any confusion since the exchange offer had been carried out. The Second Circuit court also noted that while much of the collateral the creditor sought to attach had been used to pay the tendering bondholders, the creditor still had a right to attach the remaining collateral held in New York. The creditor also attempted to obtain a judgment on the merits against Argentina, see Capital Ventures Intl v. Republic of Argentina, 280 Fed Appx. 14 (2d Cir. 2008) and Capital Ventures Intl. v. Republic of Argentina, 552 F.3d 289 (2d Cir. Jan. 13, 2009) (in this ruling, the Second Circuit Court addressed the issue of the scope of the sovereign immunity waiver inserted by Argentina in the documentation of German bonds it had issued. The Court found that to be “explicit” as required by the FSIA, a waiver of sovereign immunity need not contain a reference to the United States or a speciﬁc jurisdiction in the US, as Argentina had argued. A waiver of immunity in “any court” is sufﬁcient according to the Court). 72. See Rabbi Jacob Joseph School v. Province of Mendoza, 425 F.3d 207 (2d. Cir. 2005) (a school, which held bonds issued by the Province of Mendoza, attempted to prevent the Province

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

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