Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 129

Les fonds vautours

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earmarked for developing countries. 94 The Developing Country Debt (Restriction of Recovery) Bill, which was in part prompted by the outcry which followed the decision of the English Court in Donegal International Ltd. v. Republic of Zambia, 95 focused on the recovery of the defaulted sovereign debt of developing countries. Speciﬁcally, the Bill aimed to limit the maximum recoverable amount to that initially paid for the debt, plus interest or charges. It introduced reporting requirements, with institutions requiring UK courts’ permission before recovery proceedings for defaulted debt could begin. It would ﬁnally require a vulture fund to declare payments or gifts given by it or its colleagues to the developing country’s Government. This Bill was dropped by its sponsor MP. Another Bill was introduced in September 2010. Its aims were similar, i.e. target holders of sovereign distressed debt. It proceeded, however, differently to achieve this aim. The Bill, which was discussed and accepted by Parliament and became law in April 2010, focuses on countries eligible (or potentially eligible) under the Heavily Indebted Poor Countries Initiative (the ’HIPCI’). 96 The thrust of the act is that it prevents creditors from recovering an amount in excess of the amount which would be consistant with the Initiative. In order to do so, the Act reduces the amount recoverable on a debt, taking into account the relief which the foreign sovereign is or would be entitled under the Initiative. 97 This is by far the most sophisticated attempt thus far to target speciﬁcally vulture funds. The

94. The Developing Country Debt (Restriction of Recovery) Bill was introduced in the House of Commons by Sally Keeble MP on 6 May 2009. 95. Donegal v Zambia, [2007] EWHC 197 (Comm.). This involved a dispute between Donegal, a company incorporated in the British Virgin Islands, against Zambia, following the acquisition by Donegal of debt which originally arose from a US$ 15 million loan made in 1979 by Romania to Zambia to cover the purchase of agricultural equipment. Zambia had defaulted on this loan. The debt was bought for less than 20 % of its face value. After litigation was initiated by Donegal against Zambia, parties reached a settlement under which Zambia agreed to pay US$ 15 million and additional interest payments. Following Zambia’s failure to meet its obligations under this settlement agreement, Donegal instituted proceedings in England. Although it found that some provisions of the settlement agreement could be void, the High Court ordered Zambia to pay US$ 15 million. For more details on this case, see the account of ADESEGUN AKIN-OLUGBADE, “The Donegal Case and the African Legal Support Facility”, in International Monetary and Financial Law. The Global Crisis, M. GIOVANOLI and D. DEVOS (eds.), OUP, 2010, pp. 410-417. 96. The HIPC Initiative is an initiative based on proportionate burden sharing, aiming at reducing the debt of the poorest countries. See L. F. GUDER, The Administration of Debt Relief by the International Financial Institutions. A Legal Reconstruction of the HIPIC Initiative, Springer, 2009, 358 p. 97. The Act deﬁnes with great precision the “relevant proportion”, i.e. the reduction in the amount of a debtor’s obligations. This reduction is derived from the reduction achieved under the Initiative. Section 4 subsection 3 contains a rule for countries which have not yet reached the so-called ’Decision Point’ under the Initiative. For those countries, the Act requires a reduction of 33 % to be applied.

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

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