Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 150

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had argued that Argentina had a direct ownership interest in the reserves held by the central bank. 181 Recently, creditors seemed to have updated heir intelligence on management by central banks of their reserves and of the States’ funds. They have also beneﬁted from a larger recognition by courts of the doctrine of ’alter ego’. 182 In the United States, creditors managed to secure an important victory when the US District Court of New York issued a declaratory judgment that the Argentina central bank was the alter ego of its parent state. 183 The court justiﬁed its ruling by reference to actions undertaken by Argentina to control the activities of the central bank and its use of central bank resources to pay its own debts. 184

181. EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007). In rejecting the request, the Second Circuit noted that the ability of the Republic to exercise some control over its central bank, did not mean that the ownership of the funds deposited with the Federal Reserve had changed to Argentina. The Second Circuit Court added that “To conclude otherwise would be to allow creditors of a foreign state to attach all of the assets of the state’s central bank any time the foreign state issues directives affecting the central bank’s reserves.” 473 F.3d 463, at 475. The Court further refused to accept that Argentina’s ability and willingness to control the central bank could entail a “transfer of property rights sufﬁcient to give the Republic an attachable interest in the [reserves] (473 F.3d 463, at 479). 182. See in France, the decision of the Supreme Court (Cour de cassation) in the case of Société Nationale des Hydrocarbures v. Winslow B&T, 14 November 2007, Jurisdata Nr. 2007-041371. The Court held that the national oil company could be held liable for judgments against the State of Cameroon. In order to ﬁnd that the company “does not have a substantial functional independence and does not enjoy a legal and factual autonomy in respect of the State”, the Court noted that Cameroon held 100 % of its share capital, that the company was created to manage Cameroon’s oil interests, that it was controlled by the president of Cameroon. The Court also referred to the fact that the board of the company was composed of representatives of the president and that it was Cameroon which had imposed to the oil company how it was to perform under its contract with Winslow. Hence, a creditor of Cameroon was entitled to seize a debt owed by Winslow to the oil company. In Switzerland too, the Supreme Court recently loosened the requirements to pierce the veil between a State and a company or an agency. In a ruling of 15 August 2007 (Automated Air Trafﬁc Control v. Commission de surveillance des ofﬁces des poursuites et des faillites du canton de Genève, 134 ATF III 122), the Swiss Federal Tribunal ruled in the famous Noga saga that the creditor could seize tolls collected on behalf of the Russian authority for air control, held by IATA (International Air Transport Association). Based upon an examination of the statutes of the corporation, which mentioned inter alia that its assets belonged to the Russian Federation, the Court found that the Russian corporation “peut ainsi revêtir l’apparence d’une émanation de l’Etat russe” (ATF 134 III 122 at p. 127). 183. EM Ltd. and NML Capital Ltd. v. Banco Central de la Republica Argentina no 03 CIV 2507 (TPG) (S.D.N.Y April 7, 2010). The decision has been appealed. A ruling by the U.S. Court of Appeals for the Second Circuit is now expected. 184. Since it determined that the central bank of Argentina was an alter ego of the State, the district court concluded that the speciﬁc protection of central bank assets in the FSIA (section 1611(b)(1)) did not apply. In the proceedings before the Circuit Court, the Federal Reserve Bank of New York and the US Department of Justice have ﬁled amicus curiae briefs urging the court to rule that a central bank’s relative degree of independence from its parent government is irrelevant for purposes of Section 1611(b)(1) analysis.

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

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