Les actions judiciaires des spéculateurs sur les dettes souveraines : réglementer les activités des fonds dits « vautours » dans un souci de soutenabilité
(2021)
Files
Manuscritdoctoral-JustinVanderschuren.pdf
Closed Access - Adobe PDF
- 5.51 MB
Details
- Authors
- Supervisors
- van Drooghenbroeck, Jean-François
- Abstract
- This doctoral dissertation deals with distressed sovereign debts. It analyzes the regulation of the so-called “vulture funds”, and proposes a new judicial approach in order to better address their activities. The actions of some state creditors have been debated over the last decades. Speculative funds acquire on the secondary market debts owed by states that have difficulties paying them back. As the UN expert Cephas Lumina explains, sovereign debts can be bought by these entities at a reduced price relative to their face value. Indeed, primary creditors prefer to collect this price rather than initiating lengthy proceedings and taking the risk of eventually failing to get reimbursed. Thereafter, these funds often attempt through litigation to seek repayment of the full face value of the repurchased debts together with interest, penalties, and legal fees. Speculative funds call upon worldwide jurisdictions to condemn their sovereign debtors and to seize their assets. Incidentally, they refuse to take part in debt restructurings. The most famous case that reflects this phenomenon is Republic of Argentina v. NML Capital, Ltd., an entity that had bought a large part of the country’s debt. The financial issues raised by the covid crisis will certainly increase the occurrence of sovereign indebtedness. This situation calls for special attention. Despite legal actions filed by speculative funds being legally compliant, as they are based on the pacta sunt servanda rule which means that contracts have to be honored, there are increasing concerns, mainly from the civil society, about the morality and ethics of such proceedings. The nature of secondary market debts makes heavily indebted states particularly vulnerable to the reviewed profiteering. The speculative funds are often criticized for crippling human rights since they deprive states and their population of needed resources. Moreover, their speculative activities disturb debt restructurings. Conversely, the funds argue that their operations ensure the liquidity of sovereign debts and reduce the cost of the borrowed money. Furthermore, these funds scrutinize effective debt management. Consequently, the regulation of the phenomenon calls for cautiousness and balance. After examining two responses involving the regulation of restructurings and the inclusion of collective action clauses in debt covenants, we assess the outright solutions enacted in different countries, i.e. the United Kingdom, Belgium, and France. Even if existing domestic laws are innovative and constrain speculative activities, there remain loopholes. Adjustments are necessary to further mitigate the negative impact of speculation. Thus, a novel judicial solution that could balance the interests of debtors and creditors is brought forward in the last portion of this doctoral dissertation.
- Affiliations
Citations
Vanderschuren, J. (2021). Les actions judiciaires des spéculateurs sur les dettes souveraines : réglementer les activités des fonds dits « vautours » dans un souci de soutenabilité. https://hdl.handle.net/2078.5/113238