Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 124

118

Les maux

attempt to constitute a class was rejected by the courts on the ground that the class was not sufﬁciently deﬁned. 73 Subsequently the court certiﬁed a greatly reduced class. 74 Other courts also certiﬁed classes of plaintiffs in litigation brought against Argentina. 75 This led to novel questions relating among others to the possibility to certify a class while accepting that damages may have to be ascertained on an individual basis. Finally, some individual creditors undertook actions against Argentina using the investment protection mechanism offered by ICSID. Several proceedings were brought by individual bondholders before arbitration tribunals under the ICSID mechanism against Argentina. These proceedings are currently underway. 76 They offer a new challenge to the ICSID mechanism, not the least because of the number of individual investors who participate in the proceedings. 77
from accepting Argentina’s offer to exchange existing bonds for new ones). The same province was involved in similar litigation initiated by another creditor: Greylock Global Opportunity Master Fund Limited and Greylock Global Distressed Debt Master Fund Ltd. v. Province of Mendoza, 2004 WL 2290900 (S.D.N.Y.); Greylock Global Opportunity Master Fund Ltd. v. Province of Mendoza, 2004 WL 2515351 (S.D.N.Y.); Greylock Global Opportunity Master Fund Ltd. v. Province of Mendoza 2006 WL 140576 (2d. Cir. Jan. 18, 2006). 73. HW Urban v. Argentina, N 02 Civ 5699 (TPG) (SDNY). One of the issues discussed by the court was whether the class should include citizens of the Republic of Argentina. See. W. DEBEVOISE et D. ORTA, « The Class Action Threat to Sovereign Workouts », (2003) Intl. Financial L Rev., 41 and B. MAIDEN, « Class action threat recedes as Argentina completes debt swap », 24 Int’l Fin. L. Rev. 6 (2005). 74. See H.W. Urban GmbH v. Republic of Argentina, no 02 Civ. 5699, 2004 WL 307293 (S.D.N.Y. Feb. 17, 2004) (certifying a class of creditors suing the sovereign). In the same proceedings, see H.W. Urban GmbH Individually and on Behalf of All Others Similarly Situated v. Republic of Argentina 02 Civ. 5699 (TPG) USDC S.D. New York (March 11, 2004) (bringing some small changes to the class) and H.W. Urban GmbH, individually and on behalf of All Others Similarly Situated v. The Republic of Argentina, 02 Civ. 5699 (TPG) USDC SDNY (March 9, 2006) – granting in part summary judgment as sought by the plaintiffs. 75. See most notably Seijas v. Republic of Argentina, 606 F.3d 53 (2d Cir. 2010) – the Court for the Second Circuit afﬁrmed the District Court’s decision which had certiﬁed a class of plaintiffs suing Argentina over the defaulted bonds. It, however, reversed the district court’s method of calculating damages, holding that calculating the aggregate damages could lead to damage inﬂation. The Court therefore preferred individualized relief as opposed to aggregate, class-wide relief. After the District Court had entered a USD 2.2. billion judgment against Argentina, the plaintiffs attempted to attach the assets of Aerolineas Argentinas, an Argentina airline company which had been nationalized in 2008. The district court held, however, that the company was not the alter ego of Argentina and therefore denied the plaintiffs’ motion to turn over the airline’s US assets. 76. In the case of Giovanna a Beccara et al. v. Argentina (ICSID Case No. ARB/07/5), several procedural orders have already been issued. In the case of Giordano Alpi and others v. Argentine Republic (ICSID Case No. ARB/08/9), which was ﬁled in July 2008, the arbitral tribunal has likewise issued several orders on procedural issues such as production of documents. In the case of Giovanni Alemanni and others v. Argentine Republic (ICSID Case No. ARB/07/8), the proceedings were suspended in May 2010 pursuant to the parties’ agreement. 77. See in general, the comments by M. M. WAIBEL, « Opening Pandora’s Box: Sovereign Bonds in International Arbitration », Am. J. Intl L., 2007, 711-759; KAREN HALVERSON CROSS, « Arbitration as a Means of Resolving Sovereign Debt Disputes », Am Rev Intl Arbitration 2006, 335-382 and W. BURKE-WHITE, « The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System” in The Backlash against Investment Arbitration, M. WAIBEL (ed.), Kluwer, 2010.
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
