Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 144

138

Les maux

The Commercial Court of Brussels ﬁrst refused to withdraw the injunction which had been served to Euroclear. The Court found that the behavior of Nicaragua, which had systematically neglected to make any payment on the money owed to LNC, while at the same time servicing new debt, was a violation of the pari passu clause. 160 The Court speciﬁcally referred to the pari passu clause and endorsed the interpretation which had been given by the Court of Appeal in the Elliott case. 161 In appeal, however, the ruling was overturned. 162 The Court of Appeals held that Euroclear was a third party to the contractual relationships between Nicaragua and LNC. LNC could therefore not require that Euroclear be made liable for the performance of the contract. In so far as LNC had claimed that Euroclear was liable for third party breach (‘tierce complicité’) of the pari passu clause, the Court of Appeals found that, even though Euroclear could not ignore the fact that Nicaragua made payments through its system, there was no third party liability. Liability could only arise if Nicaragua made payments on the 1990 bonds without making equivalent payments on the 1980 bonds or other debts. The mere fact that Nicaragua was using the Euroclear system to make payments, did not as such demonstrate that Nicaragua violated its contractual obligation under the pari passu agreement. The Court went further and noted that another element was missing, which was necessary in order to make a case of third party liability. The court noted that a third party could only be liable if, when entering into an agreement with one of the parties, it was aware that it lended its hands to the breach of contract. Euroclear could, however, not have been aware of the fact that Nicaragua was only servicing its 1990 bonds and neglecting the 1980 bonds, when it ﬁrst contracted with the Republic of Nicaragua to allow the latter to make payments through its system. Hence, Euroclear was not aware that Nicaragua would be violating the pari passu obligations. The Court noted that ruling otherwise and accepting that Euroclear should have been aware of the dealings of Nicaragua,

160. See ruling of the Commercial Court of Brussels, 11 September 2003, opinion unpublished, case R.K. 204/03. The ruling did not have any effect because Nicaragua apparently refrained from making any payment and hence, no money was injected in the Euroclear system. 161. Once the injunction had been served on Euroclear and Nicaragua, Euroclear informed all the participants holding bonds that it would be unable to make the payment scheduled. This forced Nicaragua to promise all holders of bonds that it would pay late interests on the money owed, for fear that the participants would call on the various acceleration clauses and claim payment of the whole capital. 162. Brussels Court of Appeals, (9th Chamber), 19 March 2004, N° 2003/KR/334 and 2004/1831, opinion unpublished, Republic of Nicaragua v. LNC Investments LLC and N.V. Euroclear Bank.

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

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