Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 141

Les fonds vautours

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litigation by holdout creditors will decrease. It is impossible, however, to exclude such litigation altogether. There are very few players in the game of sovereign debt litigation. These players are highly sophisticated investors with access to vast resources. It is therefore not surprising that in many instances, counsels for the private investors have advanced unprecedented arguments or used novel devices. In some instances, these argument and devices have proven effective and led, if not to actual recovery, at least to reasonable prospects in this direction. As in all chess games, players, however, learn from their mistakes. After a ﬁrst momentary lapse when faced for the ﬁrst time with the creative device used by creditors, States have indeed reacted to the new legal strategies used by creditors in obtaining judgments against sovereign debtors and in trying to collect on them. In doing so, States have attempted to close the ’loopholes’ used by creditors in order to pressure sovereign debtors in paying. Hence, even though creditors (and most notably their counsels), have used enormous creativity to ﬁnd new targets and devise new litigation strategies, the room for effective recovery has not increased. On the contrary, the following review of the most well known devices will show that this room has effectively been reduced.

1) The Lure of Pari Passu
As already explained, in the infamous decision of the Brussels Court of Appeals, Elliott obtained a very broad reading of the pari passu clause. 144 In a bold and radical interpretation of the clause, the court found that the borrower should pay creditors on a ratable basis. 145 As Hal as noted, “this 2000 decision was the high watermark of creditor rights, albeit in a case decided by a Belgian rather than a U.S. Court.” 146 While it was unanimously decried by commentators, who expressed surprise at the interpretation accepted by the Court of Appeal, 147 the decision of the Court
144. A typical pari passu clause reads as follows: “The obligations of the Guarantor hereunder do rank and will rank at least pari passu in priority of payment with all other External Indebtedness of the Guarantor, and interest thereon.” 145. Opinion of the 8th Chamber of the Court of Appeal of Brussels at p. 3, as reported by L. C. BUCHHEIT and J. S. PAM, “The Hunt for Pari Passu”, Intl. Fin. L. Rev., 2004, (20-26), 22. 146. Paper Washington Legal Foundation at p. 10. 147. The criticism were not limited to the ’usual suspects’, i.e. lawyers and commentators from the United States and England involved in sovereign debt litigation. See e.g. PHILIP R. WOOD, « Pari Passu Clauses – What Do They Mean? », (2003) 18 JIBFL 371; LEE C. BUCHHEIT & J. S. PAM, « The Pari Passu Clause in Sovereign Debt Instrument » (2004) 53 Emory L.J. 869 ff; W. W. BRATTON, « Pari Passu and a Distressed Sovereign’s Rational Choices », (2004) 53 Emory L.J. 823. Commentators in France also expressed surprise at the interpretation accepted by the Court – see e.g. G. AFFAKI, « Du bon sens des mots et du bon sens : de la bonne interprétation de la clause pari passu », in Libre droit. Mélanges en l’honneur de Philippe Le Tourneau, Dalloz, 2007 and G. AFFAKI and J. STOUFFLET,

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

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