Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 165

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with the peaceful enjoyment of possessions. 244 Noting the Court’s disinclination to specify the relevant rule into which an interference falls to be considered, it may be accepted that “the identiﬁcation of the type of interference is less important to the outcome of a case than is the process involved in the application of the ’fair balance’ test”. 245 Once it is accepted that the Debt Relief Act leads to deprivation of property enjoyed by sovereign creditors, it must be asked whether this deprivation can be justiﬁed under Article 1 of Protocol 1. 246 There is no doubt that the measure is in accordance with the conditions provided for by national law. The Debt Relief Act makes very detailed provisions. It has been adopted after a public debate during which representatives of sovereign creditors intervened at length. 247 The Debt Relief Act does not leave much room for discretion to courts. 248 It must therefore be accepted that the Act is a sufﬁciently precise and foreseeable legal basis. This is even more so since the business model of many of the creditors targeted already incorporate the need to seek sophisticated legal advice. As far as primary creditors are concerned, it does not seem unreasonable to expect that a company dealing with a sovereign counterpart will seek specialist advice. 249 Can it be said that the deprivation of the sovereign creditor’s property is in the interest of the public? The Debt Relief Act seeks to protect the process of debt relief undertaken under the HIPC Initiative and guarantee that the affected sovereign debtors will be able to freely access the amounts freed up by the process. This goal is not peculiar to the United Kingdom. In fact the goal of poverty alleviation through debt forgiveness and debt reduction is shared by the international community at large, as is demonstrated by the HIPC initiative itself, which
244. In the context of the Debt Relief Act, the judgment of the Court in the Stran Greek Reﬁneries is relevant: in that case, the Court decided that a legislation which declared void and unenforceable an arbitral award which had been issued by an arbitral tribunal in favor of the applicant, was an interference with the general rule of Article 1, rather than a de facto deprivation (Stran Greek Reﬁneries and Stratis Andreadis v. Greece, Series A, no 301-B (1994) 19 EHRR 293 (ECtHR 9 Dec. 1994), at § 66 and 67). 245. As noted by D. HARRIS, M. O’BOYLE et al. in Harris, O’Boyle and Warbric Law of the European Convention on Human Rights, 2nd ed., OUP, 2009, at p. 668. 246. There does not seem to be any doubt that the prohibition of attachment of certain assets introduced by the Belgian Act is Convention compliant. The limitation imposed by the Act is at most a very limited threat to creditors and should not bother them too much. Given the very narrow scope of the legislation, which seeks to protect only designated amounts, it is submitted that it is very unlikely that the legislation would be run afoul of Article 1 Protocol 1. 247. See the various submissions published in Ensuring Effective Debt Relief for Poor Countries: Consultation Responses Received, February 2010. 248. During the consultation process, the Treasury contemplated the idea of granting the court some discretion to grant more relief if it is found to be just and equitable to do so, see question 9 in HM Treasury, Ensuring effective debt relief for poor countries: a consultation on legislation, July 2009, at p. 27. 249. The Court has taken into account the possibility for the victim of an interference to seek and obtain information about the law, in deciding whether the law was accessible and foreseeable.

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

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