Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 82

Negotiations are nowadays a kind of state of the art for the settlement of a sovereign default. But since there are no rules with particular regard to the private sector50 and since there are more often than not political implications involved, it is rarely the case that one case is treated like the other. Accordingly, ad hoc-solutions prevail. In order to overcome this kind of political gambling, NGOs started as early as in the 80s of the 20th century to advocate for the introduction of a sort of orderly insolvency proceeding for states51. They received a powerful backing by Pope John Paul II when he, in his speech urbi et orbi on 1 January 2000 referred to the tradition of the Jubilee Year52 and demanded a complete cancelation of the Third World Debt. It came as a big surprise when –in the wake of the then (again) topical Argentina debt crisis– the IMF proposed in late 2001 the enactment of a sovereign debt restructuring mechanism (SDRM)53 which was supposed to provide a regulatory framework on how to deal with sovereign debt crises. This approach which, at the end of the day, did not find sufficient support was characterized as statutory; since it was intended to become enacted and adopted through legislative measures54.

The counterpart is the contractual approach which, as of today, is the prevailing path to go. Rather than enacting statutes which set up institutions or at least rules for the treatment of defaulting states, does this approach confine its rule-setting to contractual clauses which are (to be) included in the relevant debt instruments. These clauses are known as collective action clauses (CACs)55 as they describe the procedural steps to be taken in cases of a default. Before describing their evolution, a critical observation seems to be in place, though.

When looking at the debtor-creditor relationship as a power-game56, it is somewhat unfortunate – to put it mildly – that the creditors are those who set the rules. After all, one of the most eminent peace-making mechanisms invented by lawyers in human history is to proceduralize disputes between the two antagonists (debtor and creditor) by transferring the decision duty to an un-conflicted third party, the judge. Moreover, to the degree that CACs are usually included primarily in bond issuances57 the patchwork just gets enlarged; depending on the categories of creditors (states, banks, multilaterals, private sector), different instruments and institutions are in charge. Even their intended and promised mutual cross-consideration cannot prevent discrepancies which appear to be inappropriate when seen from a burden sharing angle like the commercial insolvency approach of the pari passu principle (par condicio creditorum)58.

Even though a considerable number of proposals have been submitted59 as to how a state default should be best dealt with and despite the fact that the UN General Assembly has accepted Basic Principles on a Sovereign Debt Restructuring Process60 and that UNCTAD has published its Principles on Promoting Responsible Sovereign Lending and Borrowing61, CACs are seen as the present state of the art. Art. 12 par. 3 of the ESM-Treaty, for instance, makes their inclusion in practically all of Euro denominated bonds obligatory62.