Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 128

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In order to do so, the bill ﬁrst makes it “unlawful” for all citizens and corporations established in the United States to engage in “sovereign debt proﬁteering”, a prohibition which is made hard by ﬁnes. Sovereign debt “proﬁteering” is deﬁned in the bill as the action of seeking the payment of a sovereign debt for a total which exceeds the amount paid by the creditor to acquire interest in the defaulted sovereign debt. 91 Further and more signiﬁcantly, the bill also short-circuits any attempt by sovereign debt creditors to obtain a judgment from US courts. These courts are indeed prevented from issuing judgment or allowing attachment “a purpose of which would be furthering sovereign debt proﬁteering”. 92 In order to give more teeth to this prohibition, the proposed legislation requires extensive disclosure from creditors seeking a judgment against a sovereign debtor. A key requirement is that the creditor must ﬁle an afﬁdavit under oath including a “statement of the total amount paid by all persons, directly or indirectly holding an interest in the claim against the foreign state, to acquire the interest, including the date the interest was acquired and the identity of any person from whom the interest was acquired”. 93 The bill was never discussed or adopted by Congress.

B. THE ENGLISH STRIKE: THE DEBT RELIEF (DEVELOPING COUNTRIES) ACT 2010
In England, a ﬁrst limited attempt to interfere in the relations between sovereign debt creditors and debtors was made in May 2009, when a bill was presented in Parliament the aim of which was to restrict the possibility to attach funds
91. According to Section 3-4, “The term ‘‘sovereign debt proﬁteering’’ means any act by a vulture creditor seeking, directly or indirectly, the payment of part or all of defaulted sovereign debt of a qualiﬁed poor country, in an amount that exceeds the total amount paid by the vulture creditor to acquire the interest of the vulture creditor in the defaulted sovereign debt (excluding any amount paid for attorneys’ fees or other fees and costs associated with collection), plus 6 percent simple interest per year on the total amount, calculated from the date the defaulted sovereign debt was so acquired, but the term does not include the purchase or sale of such a debt, or the acceptance of a payment in satisfaction of the debt obligation, without threat of, or recourse to, litigation.” 92. Section 5 of the bill is entitled “Prohibition on Use of Courts of the United States to Further Sovereign Debt Proﬁteering”. It reads as follows: “A court in or of the United States may not issue a summons, subpoena, writ, judgment, attachment, or execution, in aid of a claim under any theory of law or equity a purpose of which would be furthering sovereign debt proﬁteering”. 93. This language is part of Section 5(b) entitled “Disclosures Required in Actions Involving Collection of Sovereign Debt”. The same section requires other disclosures from the sovereign creditor. The latter should for example provide a statement that “written notice of the claim against the foreign state has been provided to the Department of Treasury” (section 5(b) (1). As in the proposed legislation in the UK, the Bill also requires that the creditor provides information on the identity of the persons who are behind the creditors (section 5(b)(3)(A)) and on the total amount paid by the creditor in order to acquire the interest in the sovereign debt (section 5(b)(3)(B)).
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