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heavily discounted claims on the secondary market and launch aggressive litigation campaigns against very poor countries. The balance of morality is, however, difﬁcult to establish. Identifying the ’good and the ’bad’ is less straightforward if one remembers that sovereign defaults are declared by the debtor himself. This is a rare case of a debtor who by its own initiative, can refuse to pay its debts, without being immediately subject to a legally organized restructuring procedure and while remaining in principle in full possession of all its assets. The sovereign debtor’s assets may indeed not be taken away. Even when a default is declared, these assets enjoy in principle some form of immunity, making it more difﬁcult for the creditors to obtain payment. Even taking into account the recent limitations to sovereign immunity, sovereign debtors still enjoy considerable advantages, when compared with corporate debtors. What is more, the battle between sovereign debtors and creditors does not always resemble the case of the impoverished widow unable to pay the heating bill in wintertime. Without going as far as calling some sovereign debtors ’rogue debtors’, 217 it is clear that some sovereign debtors have adopted tactics which make full use of all possibilities offered by the law and the market structure. 218 This is particularly evident when one contemplates the latest restructuring by Ecuador in 2008. Not only did Ecuador’s default by all appearances come very close was to a case of opportunistic default. Ecuador also played the full scale of available means in order to conduct the restructuring. 219 The plight of Argentina, assailed by court proceedings in many forms, has already been mentioned. One should, however, not forget that Argentina took a very aggressive stance when it defaulted on its debt in 2001. Argentina indeed refused to engage in any dialogue with its creditors while steadfastly pursuing its goal of setting up its massive exchange operation. The picture is even more blurred on the moral ground if one considers who are the creditors holding sovereign debt. Not all creditors are highly specialized
217. As Porzecanski does – Mr. Porzecanski has been very vocal in making a case against sovereign debtors in several recent publications - see ARTURO C. PORZECANSKI, “When Bad Things Happen to Good Sovereign Debt Contracts: the Case of Ecuador”, MPRA Paper N 20857 February 2010 and “From Rogue Creditors to Rogue Debtors: Implications of Argentina’s Default”, Chicago J. Intl. L., 2005, vol. 6, 311-332. 218. Some sovereign creditors have gone further and denounced acts of corruption and personal enrichment committed by government ofﬁcials of debtor countries. This has made for an unlikely alliance between NGO’s ﬁghting for transparency of government and combating corruption and counsel for sovereign creditors. See the submission by Dechert LLP, HM Treasury consultation, ’Ensuring effective debt relief for poor countries’, February 2010, at §§ 79-87 - with examples drawn from Chad and the Republic of Congo) and the account of a battle between Kensington and ofﬁcials of the Congo Republic in R. FRIEDMAN, “Judge: Vulture fund leaked documents to human rights group”, August 21, 2007, http://features.blogs.fortune.cnn.com/category/privacy/ 219. For more details, see LEE C. BUCHHEIT and G. MITU, “The Coroner’s inquest”, Intl. Financial L. Rev., 2009, vol. 27, at pp. 22-25.

http://features.blogs.fortune.cnn.com/category/privacy/

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

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