Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 151

Les fonds vautours

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In the meantime, debtors have reportedly moved some of their assets to Switzerland, where the Bank of International Settlements is established. 185 They count on the very stringent legal framework protecting assets held by the BIS. 186 The increased importance of the doctrine of alter ego and the heightened focus of creditors on central bank assets have put a spotlight on the legal status of central bank assets. In some countries, where no statutory protection existed for assets held by foreign central banks, legislators recently intervened to adopt such protection. This happened in Spain, 187 France 188 Slovenia 189 and in Belgium recently. 190 China also adopted speciﬁc legislation aiming to protect central bank assets. 191
185. It has been reported that the BIS has emerged as a competitor for the Federal Reserve Board of New York as safe haven for exchange reserves of foreign central banks: “Note: Too Sovereign to be Sued: Immunity of Central Banks in Times of Financial Crisis”, Harvard L. Rev., vol. 124, (550), 569-570 and A. C. PORZECANCKI, “From Rogue Creditors to Rogue Debtors: Implications of Argentina’s Default”, Chicago J. Intl. L., 2005, vol. 6, 311 at p. 327. 186. Article 10 of the Constituent Charter of the BIS provides that: “The Bank, its property and assets and all deposits entrusted to it shall be immune in time of peace and in time of war from any measure such as expropriation, requisition, seizure, conﬁscation, prohibition or restrictions of gold or currency export or import, and any other similar measures.” Additional protection is afforded in the Headquarters Agreement signed between the BIS and the Swiss government on February 10, 1987 (Agreement between the Swiss Federal Council and the Bank for International Settlements to determine the Bank’s legal status in Switzerland, of 10 February 1987, as amended, available at http://www.bis.org/about/headquart-en.pdf/). 187. See the Act 22/2005 of 18 November 2005 which modiﬁes the 13/1994 Act on the Banco de Espana and incorporates a Seventh additional provision to this law. According to this new provision, in the absence of treaty provisions otherwise, “No court or administrative authority may issue an attachment order or process an execution order against goods and property rights belonging, possessed or managed by the Banco de España, when they are physically subject to the exercise of public functions or the exercise of administrative powers”. The new provision adds that “The same rules shall apply to the goods and property rights belonging, possessed or managed by foreign states or central banks in which foreign reserves are invested, and to those belonging, possessed or managed by the Bank for International Settlements”. 188. See the Act no 2005-842 of 26 July 2005 which revised Article L153-1 of the ’Code monétaire et ﬁnancier’, which extends immunity to “[...] assets of whatever kind, including exchange reserve assets, which foreign central banks or foreign monetary authorities hold or manage for their own account or on behalf of the foreign state that govern them”. 189. As explained by K. VAN RAEMDONCK, “Immunities of Central Bank Assets: Towards Greater Legal Certainty?”, Euredia, 2006, (357), 359-360. 190. Act of 24 July 2008 amending the Code of Civil Procedure with a view to grant enforcement immunity to assets of foreign central banks and international monetary authorities (published in the Ofﬁcial Gazette of 14th Aug. 2008). The Act introduced an Article 1412 quater in the Code. The adoption of this legislation was mentioned in Switzerland as an incentive to update Swiss law in relation to immunity of central bank assets (see Message concernant l’approbation et la mise en oeuvre de la Convention de l’ONU sur les immunités juridictionnelles des Etats et de leurs biens, February 2009, No. 09.024) – even though the Swiss Act on Debt Enforcement and Bankruptcy was amended in 1994 to include speciﬁc language protecting the assets belonging to “une banque centrale étrangère qui sont affectés à des tâches leur incombant comme détenteurs de la puissance publique...” (see art. 92-1-11 of the Law of 11 April 1889, as amended). 191. See the 2005 Law on Judicial Immunity from Measures of Constraint for the Property of Foreign Central Banks. According to Zhu, the main purpose behind the adoption of the Act was to “eliminate the misgivings of foreign central banks” in relation to the status of assets they held in

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

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