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enjoys the support of many states and international organizations. This makes it a very strong aim to which the restriction may be linked. 250 It may well be that the United Kingdom will not directly beneﬁt from the Debt Relief Act. In effect, with this legislation, the United Kingdom is seeking to further the interests of other, less privileged nations. This does not seem to be an impediment to the existence of a public interest. Could the existence of such a legitimate aim be questioned by pointing to the doubts as to the effectiveness of the debt reduction scheme? Some sovereign creditors have attempted to shed doubt as to the effectiveness of the Debt Relief Act, by pointing out that it was not certain that HIPC countries will use all the proceeds from debt reduction or forgiveness for poverty reduction measures, especially since money is fungible. 251 It is true that questions may be raised as to the ﬁnal beneﬁts of the debt forgiveness program. Although the HIPC initiative rests upon a very detailed scheme in which the accuracy of claims is tested, it is difﬁcult, if not impossible to pretend that all amounts forgiven will necessarily and directly be used for poverty reduction purposes. The same applies, in general, for the effectiveness of development aid. However, once the international community has decided that certain countries deserve, on account of their very difﬁcult situation, debt forgiveness, and has adopted measures which are necessary to reach this goal, it is difﬁcult to see how this political decision may be questioned under Article 1 Protocol 1. The practice of the European Court has indeed been to start from a presumption that a national measure is in the public interest. 252 The Court’s scrutiny is therefore very limited. The Court will apparently only intervene in the most egregious cases, where the
250. This was recognized by Jonathan Nash, QC and Peter Ratcliffe (both of 3 Verulam’s Building) in their response to the consultation on the Debt Relief Act (submission by Jonathan Nash, QC and Peter Ratcliffe, HM Treasury consultation, ’Ensuring effective debt relief for poor countries’, February 2010, at § 11). 251. In its response to the UK government’s consultation, EMTA stated that “We also question the assumption in the Legislative Proposal that amounts not paid to litigating creditors would necessarily be devoted to development and poverty reduction” (submission by EMTA, HM Treasury consultation, ’Ensuring effective debt relief for poor countries’, February 2010, at p. 7, note 29). Dechert went further: it stated that “the notion that whatever debt relief would be deliverable would translate into poverty reduction is naïve in the extreme...” (submission by Dechert LLP, HM Treasury consultation, ’Ensuring effective debt relief for poor countries’, February 2010, at § 103.1). 252. The ECtHR indeed grants a wide margin of appreciation to States when it reviews their actions under Article 1 Protocol 1. See e.g. James v United Kingdom, Series A no 98 (1986) 8 EHRR 123 at § 46 (ECtHR 21 Feb. 1986) and more recently, Broniowski v Poland (2005) 40 EHRR 495 (ECtHR 22 June 2004) at § 149 – where the Court noted that “the notion of ’public interest’ is necessarily extensive. In particular, the decision to enact laws expropriating property or affording publicly funded compensation for expropriated property will commonly involve considerations of political, economic and social issues. The Court has declared that, ﬁnding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, it will respect the legislature’s judgment as to what is ’in the public interest’ unless that judgment is manifestly without reasonable foundation”.
Droit des affaires - Insolvabilité des États et dettes souveraines -1

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