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Les fonds vautours

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on grounds of sovereign immunity. 211 It appears that FG Hemisphere also ﬁled proceedings in Jersey, 212 the Bahamas, Australia 213 and South Africa. 214 215 Certainly, sovereign debt litigation is not much ado about nothing. For sovereign creditors, the consequences of being dragged to court by private creditors can be dire – in particular because those creditors with sufﬁcient resources to initiate proceedings against sovereign debtors, will not hesitate to launch multiple proceedings, in several countries and to make use of the full scale of remedies and tools offered by civil procedure. Besides the annoyance and the steep costs of being dragged to court, creditor action can, if it succeeds, divert funds which, at least for the poorest countries, could also be allocated to other goals. It does not take much imagination to picture the contrast between the proﬁts which sovereign creditors could make when collecting on a debt bought at a steep discount on the secondary market and the immense needs of the population of some sovereign debtors. This type of moral argument has precisely been used to pressure governments to act. 216 The case has been made by militants in the debt forgiveness and repudiation movement – Jubilee 2000, CADTM, Eurodad, and Latindadd, which have been very vocal in arguing that the actions of ’vulture funds’ should be curtailed. They have been helped by the sovereign creditors themselves, the most aggressive of which being secretive hedge funds based in exotic jurisdictions, who purchase
211. After adopting the doctrine of restrictive immunity, which it found was part of customary international law, the Hong Kong Court of Appeal held that the Republic’s participation in an arbitration proceedings was not in itself sufﬁcient to constitute waiver of immunity from execution enjoyed by it as a sovereign State. The Court therefore remitted the case to the Court of First Instance for reexamination of the issue whether the entry fees payable to the DRC were commercial in nature. 212. See MICHAEL J. KAVANAGH, “Congo, US-Controlled Venture Lose $ 100 Million Vulture Claim”, Bloomberg 3 Nov. 2010 – reporting that the Royal Court in Jersey in the Channel Islands ordered a joint venture operating one of the biggest mines in Congo (GTL) to pay all amounts to due to one of the joint venture partners (the company Gécamines, which the court found to be “an organ of the state”) to FG Hemisphere in order to satisfy its debt. The judgment is under appeal. 213. In December 2010, the New South Wales Supreme Court ruled that FG Hemisphere’s claims could be pursued in Australia. 214. In 2008, a South African court ruled that FG Hemisphere could seize payments for Congolese electricity sold to South Africa. See the Report of the independent expert on the effects of foreign debt and other related international ﬁnancial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, UN Human Rights Council, 29 April 2010, A/HRC/14/21, at p. 8, § 19. 215. This is not the only instance where the DRC has faced with a creditor. Kensington has also proven a very tenacious creditor. See the account of the many proceedings between Congo and Kensington in MICHAEL D. GOLDHABER, “Vulture Culture - Kensington International litigated around the world to collect on bad debt from the Congo Republic”, The American Lawyer, September 1, 2008. 216. See recently the Op-Ed by R. VIVIEN, “Nouvelle victoire d’un fonds vautour contre la RDC, que fait la Belgique?”, published in Le Soir (a daily published in Belgium), 20 December 2010.

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

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