Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 152

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In other countries, where such legislation already existed, 192 the focus has been lately on tying up loose ends in order to ensure an effective protection for central bank assets. In the United States, where the FSIA contains speciﬁc language affording some protection to central bank assets, voices have been heard recently arguing that courts should move towards a stricter reading of the immunity granted by the FSIA. 193 All in all, professional sovereign debt holders face signiﬁcant obstacles when trying to collect from sovereign debtors. As one commentator has put it, the case law and practice of sovereign debt litigation “has begun to resemble a chess match: a move by a vulture is blocked or countered, and a new move or theory comes into vogue as another avenue to try to increase the changes of recovery”. 194

§ 2. – Limitations of creditors’ rights assessed: a “Fair Balance”?
A. THE PERILS OF MORAL JUDGMENT
The preceding section has shown that the power of creditors in general and of vulture funds in particular should not be overestimated. In practice, sovereign creditors will in most cases be able to obtain a judgment on the merits ordering
Hong Kong (LIJIANG ZHU, “State Immunity from Measures of Constraints for the Property of Foreign Central Banks: the Chinese Perspective”, 6 Chinese J. Intl. L., 2007, 67 at p. 73). In Japan, it has been argued recently that speciﬁc legislation should be adopted with a view to protect assets of foreign central banks – see TAKEHIRO NOBUMORI, “Recent Development of Sovereign Immunity Law in Japan from a Comparative Perspective of Central Banks”, 125 Banking L.J. 885. 192. This is the case in the United States, where central bank assets are protected under § 1611 of the FSIA, which immunizes property of a foreign central bank “held for its own account” - this provision was applied by the Second Circuit Court in EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007). In Australia, see FSIA section 32, read together with section 35(1). In the United Kingdom, see section 14(4) of the Foreign Sovereign Immunity Act, which provides that a central bank’s property shall not be considered as property in use or intended for use for commercial purposes – this provision was recently considered in AIG Capital Partners Inc. et al. v. Kazakhstan [2005] EWHC 2239 (Comm). In Canada, see section 12(4) of the 1982 State Immunity Act. The privileged position of central banks in London and in the US can probably be explained by the concern of both countries to keep London and NY as investment centers for foreign reserves by foreign States’ central banks (see the Australia Law Reform Commission Report No; 24 on ’Foreign State Immunity, at § 132 (1984)). For other Commonwealth countries whose law is modeled on the English Act, see HAZEL FOX, The Law of State Immunity, 2nd ed., OUP, 2008, 472. 193. See “Note: Too Sovereign to be Sued: Immunity of Central Banks in Times of Financial Crisis”, Harvard L. Rev., vol. 124, (550), 569-570. 194. J. I. BLACKMAN and R. MUKHI, “The Evolution of Modern Sovereign Debt Litigation: Vultures, Alter Egos and Other Legal Fauna”, Law & Contemp. Problems, 2010, vol. 73, (47), 61.

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

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