Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 137

Les fonds vautours

131

At the very least, what this general review suggests is that the weight of creditors’ threat should not be overestimated. Creditors will not be able to prevent a default and their inﬂuence on the restructuring process is limited. This conclusion is conﬁrmed by two recent trends which affect the legal regime of sovereign debt restructuring. The international community has indeed adopted in recent years a new framework for sovereign debt issues, which will signiﬁcantly curtail the rights creditors may assert in case of restructuring (A). In addition, other legal evolutions will in the future limit the ability of creditors to weigh on a restructuring process (B).

A. COLLECTIVE ACTION CLAUSES AS LIMITATION ON THE IMPACT OF
INDIVIDUAL CREDITORS

Traditional sovereign debt issues were characterized by two notable features, which largely contributed to the increased creditor activism, including court action. The ﬁrst feature was the fact that bonds issues granted each individual investor the right to sue for its share of a missed payment. The second related to the exacting standard imposed on the sovereign debtor for amendment of the payment terms of the bonds and loans. It was not uncommon that such amendment was only possible with the consent of every bondholder. 128 These features helped maximize the inﬂuence sovereign creditors could exercise in case of default. Starting in 2003, sovereign issuers introduced signiﬁcant changes to the legal documentation of their international sovereign bond issues. 129 These changes are known as ’collective action clauses’. They have been discussed for quite some time. The use of collective action clauses has been heavily promoted by international authorities, in particular the G10. 130 The EU Member States also collectively committed in November 2003 to introduce such clauses in their bond issues. 131
128. On these two features, see L. C. BUCHHEIT and G. MITU GULATI, “Sovereign Bonds and the Collective Will”, Emory L. J., 2002, vol. 51, 1317 at pp. 1331. 129. Mexico was reportedly the ﬁrst major issuer to introduce such collective action clauses in a bond issue. 130. See the Report of the G-10 Working Group on Contractual Clauses, Sept. 2002, available at http://www.bis.org/publ/gten08.htm/ 131. See the press release issued after the 2537th Council meeting - Economic and Financial Affairs on 4 November 2003, in which the Ministers “reiterated their commitment to include Collective Action Clauses in all their international sovereign bond issues” (Press release 13689/03). More recently, the member of the Euro-zone have decided that standardized and identical collective action clauses will be included in the terms and conditions of all new Euro area government bonds starting in June 2013 – see the conclusions of the Heads of State or Government of the Euro Area of 11 March 2011, at p. 14. The Member States contemplate supermajority clauses and aggregation clauses, allowing all debt securities issued by a Member State to be considered together in negotiations.

http://www.bis.org/publ/gten08.htm/

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

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