Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 136

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Les maux

creditors in case of sovereign defaults, has demonstrated that the threat of enforcement by individual creditors may be one factor in the decision making process of a sovereign facing difﬁculties. It will, however, not act as a powerful deterrent against repudiation of debt by the sovereign. Creditors cannot in other words prevent such repudiation. Other factors will in any case have much more impact than creditor’s reactions. One can refer to reputation loss, 124 loss of output, capital ﬂight, etc. It follows that limiting creditors’ rights will not necessarily increase the risk of opportunistic default by sovereign since the creditors’ rights can only remotely be compared to ’checks and balances’. If creditors cannot exercise sufﬁcient inﬂuence to prevent default, will they be able to exercise any inﬂuence to elicit a better restructuring offer when a default has occurred? If one focuses not so much on the possibility to prevent a default but on what happens after a sovereign has defaulted, it seems that the role of creditors should not be overestimated. According to Sturzenegger and Zettlemeyer, holdout creditors cannot exercise such pressure that they pose a systemic obstacle to debt restructuring. 125 In its report on collective action clauses, the G10 working group noted likewise that “disruptive legal action against sovereigns has historically not been a major barrier to restructurings...”. 126 It follows that even though creditors’ action has received a lot of attention, the role played by creditors in debt restructuring is limited. When a sovereign defaults and contemplates a restructuring of its debts, creditors may exercise some pressure on the process, without derailing it. The main lesson which can be drawn from economic theory is in fact that contract law focuses too narrowly on individual enforcement rights. Individual enforcement will solely beneﬁt the creditor who is acting. At the same time, it will reduce the ’pie’ available to all creditors. Linked to this collective action problem, actions by individual creditors also raise a free ridership issue. 127
plays a key role in such a high stake decision. Although the recent default of Ecuador in 2008 probably comes close to the ideal concept of opportunistic default - see. 124. See above. 125. F. STURZENEGGER & J. ZETTELMEYER, “Has the Legal Threat to Sovereign Debt Restructuring Become Real?”, Business School Working Papers, 2006. See also A. C. PORZECANCKI, “From Rogue Creditors to Rogue Debtors: Implications of Argentina’s Default”, Chicago J. Intl. L., 2005, vol. 6, 311 at p. 314. 126. See the Report of the G-10 Working Group on Contractual Clauses, Sept. 2002, at p. 6. 127. An argument to that effect was made by the US government, which ﬁled an amicus curiae brief in the case between Darts and Central Bank of Brazil. In its brief, the government urged the court to reject the creditor’s claim for acceleration of the principal on the ground that holdouts which have purchased debt in the secondary market should not be allowed to free ride on a debt restructuring agreed by a majority of creditors (Statement of Interest of the United States of America in Opposition to the First Amended Complaint, CIBC Bank and Trust Co. Ltd. vs. Banco Central do Brazil 886 F. Supp. 1105 (S.D.N.Y. 1995)).

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

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