Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 161

Les fonds vautours

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collect from sovereign debtors. The two legislations are quite different. The Belgian version of the ’Anti-Vulture Act’ is a very narrow one, as it is conﬁned to making attachments of some assets impossible. It only seeks to protect funds earmarked for development aid. Whatever one thinks about partnerships between rich and poor countries and the efﬁciency of development aid, it remains a fundamental gesture of solidarity whose existence it is difﬁcult to call in question. The English version of the Act goes much further: it targets not so much the possibility for creditors to collect their dues, but the very source of creditors’ rights by making it impossible to obtain a title. At the same time, the Act is very focused, as it only applies to the sovereign debtor which has been found to meet the requirements of the HIPC Initiative. The operation of the Act is further limited by a series of requirements and caveats. What both legislations have in common, is that they do not speciﬁcally target certain categories of creditors. 226 In contrast with the French attempt, which sought to extend the reach of the Champerty statute by targeting creditors who have bought sovereign debt with a view to speculate on possible litigation, 227 both the English and the Belgian Act do not distinguish between creditors on the basis of their (presumed) intention. 228 To take the example of the Belgian Act, the prohibition on attaching certain assets it introduces, is applicable to all creditors, whatever their status. Bona ﬁde creditors – whatever this concept may mean in
in voluntary debt resolution procedures. To that end, the government explained that “although the United States advocates negotiations to effect debt reduction and continued lending to defaulting foreign sovereigns, it maintains that creditor participation in such negotiations should be on a strictly voluntary basis. It also requires that debts remain enforceable throughout the negotiations” See Allied Bank Int’l II, 757 F.2d at 519. 226. The same can be said of Collective Action Clauses, which apply to all creditors holding a particular issue of sovereign debt. 227. The ﬁrst part of the Bill put to the French Parliament did not make such a distinction and was deemed to be applicable to any creditor of a foreign sovereign. 228. It is submitted that the approach adopted by the French legislator is bound to create additional litigation. It may indeed prove very difﬁcult to ascertain what was the intention of the holder of sovereign debt when it acquired the debt. The Bill which was submitted to the US Congress introduced a more objective criteria, as it deﬁned the concept of ’vulture creditor’ as “any person who directly or indirectly acquires defaulted sovereign debt at a discount to the face value of the obligation so acquired” (section 3.1.). The only exclusion is that selected public bodies are not deemed to act as ’vulture funds’ even though they may have purchased sovereign debt at a discount. The deﬁnition excludes the “Government of the United States or any agency of the Government of the United States, any foreign state, or any international ﬁnancial institution (as deﬁned in section 1701(c)(2) of the International Financial Institutions Act). The Bill purported to prohibit ’sovereign debt proﬁteering’, which was deﬁned as the activity of such ’vulture creditor’ seeking payment of a defaulted sovereign debt in an amount that exceeds the total amount paid by the vulture creditor to acquire the debt (section 3.4). It is submitted that this very broad provision could have an adverse impact on the secondary market of sovereign debt as it would touch any investor buying sovereign debt for less than its nominal value.

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

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