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alleged payment obligation. While it declined to issue the relief sought on equitable grounds, 152 the English court apparently “expressed strong reservations about the plaintiff’s pari passu arguments”. 153 The court apparently indicated that it found the precedent of Elliott “unpersuasive”. 154 The case in Belgium concerned bonds issued in 1980 by a sovereign debtor, Nicaragua, and held by LNC. 155 LNC had refused the offer made by Nicaragua in the 1990’s, to exchange the 1980 bonds for new ones representing 8% of the value of the old ones. However, more than 80% of the bondholders accepted the offer. LNC initiated various proceedings to attempt to recover the amount owed by Nicaragua. LNC obtained a judgment from a court in New York, ordering Nicaragua to pay more than USD 80 million. 156 LNC also obtained a ruling by the English High Court in February 2001, ordering Nicaragua to pay the same amount. Inspired by the example of Elliott, LNC Investments attempted to attach money circulating through the Euroclear system and meant to cover interest payments to holders of bonds issued in 1990 by Nicaragua. 157 At ﬁrst, LNC attempted to attach money in the hands of the government’s paying agent, Deutsche Bank AG, in London. In July 2003 it obtained leave to attach funds transiting through Deutsche Bank AG in London. This proved fruitless, as it later transpired that the funds were channeled through Deutsche Bank’s establishment in New York. LNC requested then, ex parte, an injunction from a court in Brussels, which would prevent Euroclear from disbursing the money to the holders of Nicaragua’s indemniﬁcation bonds. The injunction was granted ex parte. 158 Nicaragua sought to have the injunction withdrawn. 159

Means What Now?’, New York L.J., 6 March 2006. See in the same dispute, Kensington International v. Republic of Congo [2007] EWCA 1128, [2006] EWHC 1848, [2005] EWHC 2684. 152. Among other the fact that the creditor had failed to identify who it was and how much it had paid for its debt. 153. C. G. BERRY and K. H. BLAKE, “’Pari Passu’ Means What Now?’, New York L.J., 6 March 2006. 154. Idem. 155. LNC was a subsidiary of Leucadia National Corporation. It had acquired its interest in the debt from two commercial banks in 1986. 156. See LNC Investments, Inc. v. The Republic of Nicaragua, 1999 WL 92603 (S.D.N.Y. Feb. 19, 1999); LNC Investments, Inc. v. The Republic of Nicaragua, 115 F. Supp. 2D 358 (S.D.N.Y. April 26, 2000), afﬁrmed sub nom LNC Investment, Inc. v. Banco Central de Nicaragua, 228 F.3d 423 (2d. Cir. 2000). 157. These were so-called ’indemniﬁcation bonds’ (Bonos de Pago por Indemnization) issued in order to compensate the victims of expropriation under the rule of the Sandinistas. 158. Unpublished ruling of 25 July 2003 by the Vice-President of the Commercial Court in Brussels (R.R. 101/03). 159. Its request was followed by a similar request made by Euroclear.

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

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