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Les fonds vautours

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investment boutiques set up to prey on distressed sovereign debt. Even if one only takes into account those creditors who have launched litigation against sovereign debtors, it has been shown that at least some of these are in fact the original creditors who have done business with the State in the ﬁrst place. 220 The market for sovereign debt is in fact very diverse. How should one recognize and identify those creditors whose behavior is so repugnant that they must be punished? ’Rogue’ creditors have attracted the ire of many, from national Parliaments to civil society involved in debt reduction. The focus of the public debate is mostly on the ’fat’ rewards that distressed debt funds have (supposedly) reaped from collecting on sovereign debts they have bought for a penny the pound. It is submitted that one should not start from the assumption that one will recognize a ’vulture’ fund when one sees it, as Justice Stewart so famously wrote in relation to “adult movies”. 221 One should, on the contrary, take into account the growing heterogeneity of holders of sovereign debt. 222 In the case of Argentina, the largest restructuring in recent years, reports suggest that there were many thousands of creditors in various jurisdictions. Looking at these creditors, one can distinguish the institutional investors (commercial banks and investment banks), from the small, retail investors who could be scattered all over the world. If one looks more closely, even these categories could be reﬁned if one takes into account the method of acquisition. Some of these investors may have bought Argentinian paper ﬁrst hand, when it was issued. Other may have bought it on the secondary market. And looking at the latter category, some creditors may have bought papers at a substantial discount. Among those, some may have made an investment, hoping to be repaid in full at face value. Other, who may have bought when the default was forthcoming, may have sought to make a proﬁt in case of restructuring, hoping that the ’haircut’ would be
220. See the submission EMTA, HM Treasury consultation, ’Ensuring effective debt relief for poor countries’, February 2010, at p. 6 – the ﬁgures demonstrate that of all creditors bringing litigation against sovereign debtors, a substantial portion are ’trade creditors’ and ’original lenders”. 221. “I shall not today attempt further to deﬁne the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [Emphasis added.]” (Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.) 222. In the Nicaragua case, a court in Belgium refused to accept that LNC was a “vulture fund”, as claimed by the State of Nicaragua. The Court noted that “LNC est une respectable société d’investissements détenue à 100% par la société Leucadia National Corporation. Leucadia est une société côtée en bourse à New York dont les actifs cumulés s’élèvent à plus de USD 1 milliard et qui exerce diverses activités au travers de ses ﬁliales telles que la promotion immobilière, la fourniture de services ﬁnanciers, de services de télécommunication etc., et qui, en effet, contrairement à ce qu’afﬁrme la République du Nicaragua, n’est nullement un fond vautour “spécalisé dans le rachat de créances de débiteurs insolvables dans le but de réaliser des plus-values considérables” - see ruling of the Commercial Court of Brussels, 11 September 2003, opinion unpublished, case R.K. 204/03, at p. 9.

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

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