Abstract
States’ financial instability and debt restructuring could be impaired by predatory behaviors of private creditors, including entities that buy distressed sovereign bonds with the aim of litigating and recovering inflated sums. Scholars have suggested a wide-range of normative solutions to alleviate these problems, including the creation of a multilateral international sovereign bankruptcy framework and the institution of dedicated arbitral tribunals or international courts. Conciliation could provide an alternative to judicial and investor-state dispute settlement (ISDS) proceedings to solve disputes involving sovereign debt between private creditors and debtor States because of its procedural and practical benefits. The flexibility of the procedure, the reduced amount of time and costs, the recourse to equity and legal principles favour such mechanism over other dispute resolution procedures. It is therefore proposed to create a compulsory “conciliation scheme” managed by the United Nations Conference on Trade and Development (UNCTAD) Sovereign Debt Workout Institution in order to create a reliable system for the resolution of sovereign debt disputes.
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Notes
- 1.
Palmisano (2019) p. 112.
- 2.
Institut de Droit International, International Conciliation, Sec. 1- Definition of Conciliation, in Annuaire de l’Institut de Droit International, 1961, p. 275, (hereinafter, 1961 Resolution). The exact wording is: “conciliation means a method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or on an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the Parties, with a view to its settlement, such aid as they may have requested”.
- 3.
Notorious examples are the establishment of the “Chaco Commission” by Bolivia and Paraguay in 1929 to solve disputes following armed activities in the area surrounding the border between the two countries and the disputes between Siam and France regarding the status of certain territories during 1947. For an analysis of early cases of conciliation, see Steiger (2020).
- 4.
Cot (2006).
- 5.
See United Nations, Human Rights Council, Activities of vulture funds and their impact on human rights. Final report of the Human Rights Council Advisory Committee, A/HRC/41/51, 7 May 2019, paras. 65–71. A 2007 study focusing on debt servicing demonstrated that several countries have spent more than 20% of their public expenditure in debt servicing, surpassing the amount used for health and education: Lebanon, for example, allocated 52.1% of its annual budget to debt servicing, while expenditures in social services amounted to 23.1%, see the report by The New Economics Foundation, Debt relief as if justice mattered. A framework for a comprehensive approach to debt relief that works, 2008, p. 3. In literature, see Lumina (2018), pp. 169–170. See also United Nations, Consolidation of Findings of the High-Level Task Force on the Implementation of the Right to Development, UN Doc A/HRC/15/WG.2/TF/2/Add.1, 25 March 2010, para. 87.
- 6.
See United Nations, Human Rights Council, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Independent Expert on the Effects of Foreign Debt and other Related International Financial Obligations of States on the Full Enjoyment of all Human Rights, Particularly Economic, Social and Cultural Rights, Cephas Lumina, A/HRC/14/21, 29 April 2010, para. 8 (hereinafter, Report of the Independent Expert 2010), that defines vulture funds as “private commercial entities […] acquire, for purchase, sale or other form of transaction, insolvent or bad debts, or even effective judgments, in order to obtain a high return”.
- 7.
Malawi constitutes an example of how debt repayments may impact negatively Government’s policies. In 2002, following a poor harvest, seven million people out of a population of eleven million faced a serious food shortage because the Government was forced to sell the maize from its National Food Reserve Agency to raise funds to repay its debt, see United Nations, Human Rights Council, Report of the independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, A/HRC/11/10, 3 April 2009, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/128/05/PDF/G0912805.pdf?OpenElement, para. 30.
- 8.
See the report by Fitch, Sovereign Default Set to Hit Record in 2020, 12 May 2020, available at https://www.fitchratings.com/research/sovereigns/sovereign-defaults-set-to-hit-record-in-2020-12-05-2020-1.
- 9.
The main forum for debt restructuring at multilateral level is the Paris Club, which represents 22 countries with a large exposure to other States and certain International Organizations. Restructuring procedures involving debt owed to commercial banks are instead negotiated through ad hoc Bank Advisory Committees (BACs, also labelled “London Club”). Both Clubs operates on a case-by-case informal approach, discussing and creating procedures for debt restructuring that normally consist in rescheduling or postponing the due dates or, in some cases, in reducing or even erasing the debt servicing. See Viterbo (2020a, b); Mauro (2019), pp. 440–448.
- 10.
The relative doctrine of State immunity prescribes that immunity should be denied to foreign States engaged in commercial activities (jure gestionis) as opposed to actions carried out in their sovereign capacity (jure imperii). Such principle, considered to have customary character, is embedded in the UN Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 in New York by UN General Assembly resolution A/59/38, not yet into force. The issuance of sovereign debt bonds, which includes also the re-financing of the debt in case of default, is considered a commercial activity that bans the State from claiming sovereign immunity, as recognized by the US Supreme Court in the case Republic of Argentina et al. v. Weltover, Inc, et al., 12 June 1992.
- 11.
See US District Court for the Central District of California, NML Capital Ltd v. Spacefort Systems International and the Republic of Argentina, 25 April 2011, 788 F. Supp. 2d 1111, 1124 (2011).
- 12.
See Cour de Cassation, Société NML Capital Ltd v. La République Argentine, arrêts N° 394, 395, 396, 28 March 2013, and Cour de Cassation, NML Capital Ltd v. La République Argentine, arrêt N° 867, 28 September 2011.
- 13.
This order was issued by the Supreme Court of Ghana at the request of a vulture fund while the ship was in Tema (Ghana), see High Court of Justice (Commercial Division), NML Capital Limited v. The Republic of Argentina, 11 October 2012, Suit No. RPC/343/12, The dispute was finally settled 77 days after the attachment of the Frigate with a ruling entered into by the International Tribunal for the Law of the Sea, which established that the ship was State’s property, thus exempted from execution, and ordered its immediate release, see International Tribunal for the Law of the Sea, The Ara Libertad Case, Argentina v Ghana, 15 December 2012, Case No. 20, Provisional Measures, Order, available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/published/C20_Order_151212.pdf.
- 14.
Claims by Italian bondholders against Argentina were upheld at the jurisdictional stage in three different arbitrations, see Abaclat and others v. Argentine Republic, ICSID Case No. ARB/07/05, Decision on Jurisdiction and Admissibility, 4 August 2011; Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013; Giovanni Alemanni and others v. Argentine Republic, ICSID Case No. ARB/07/8, Decision on Jurisdiction and Admissibility, 14 November 2014. Tribunals, however, never rendered a decision on the merits, since the case were settled or discontinued. Contrariwise, see Poštová Banka, a.s. and Istrokapital SE v. Hellenic Republic, ICSID Case No. ARB/13/8, Award, 9 April 2015, were the arbitral tribunal unanimously decided that bonds were not a covered investment under the applicable BIT.
- 15.
Creditors normally target the poorest countries of the world. See African Development Bank, Vulture Funds in the Sovereign Debt Context, available at http://www.afdb.org/en/topics-and-sectors/initiatives-partnerships/african-legal-support-facility/vulture-funds-in-the-sovereign-debt-context/, that states that almost two thirds of HIPCs State were hit by vulture funds’ activities. In practical terms, “Vulture fund litigation prevents heavily indebted poor countries from using resources freed up by debt relief for their development and poverty reduction programmes, and therefore diminishes the capacity of these countries to create the conditions necessary for the realization of human rights for their people. Money that is earmarked for poverty reduction and basic social services, such as health and education, is diverted to settling the substantial claims of vulture funds. In short, vulture funds erode the gains from debt relief for poor countries and jeopardize the fulfilment of these countries’ human rights obligations”, See Report of the Independent Expert 2010, par. 33.
- 16.
UN bodies have directed several legal instruments to the challenges posed by sovereign debt and its related problems: first, the United Nations Conference on Trade and Development (UNCTAD) formulated the Principles on Promoting Responsible Sovereign Lending and Borrowing, Geneva, 10 January 2012 (hereinafter UNCTAD Principles). Such rules aim at preventing irresponsible financing and its consequences, halting non-cooperative or abusive behaviours by creditors and sovereign debtors, proposing responsibilities for both lenders and borrowers. Some provisions seek to address vultures’ activities, suggesting that, once a debtor has opted for restructuring, it is empowered to stay its debt service and litigation and enforcement activities during the whole duration of the process and to limit the amount recoverable by litigating creditors. Also, courts should refrain from granting full contractual remedies to uncooperative creditors, but only a fraction of their claims in comparable treatment with creditors who accept the restructuring. Following this initiative, in 2015 the UN General Assembly endorsed its Basic Principles on Sovereign Debt Restructuring by resolution 69/319, a soft law instrument to be applied in sovereign debt restructuring, which share similar content with the UNCTAD Principles.
- 17.
- 18.
This political obligation was translated into a binding provision with the inclusion of Article 12(3) in the European Stability Mechanism (ESM) Treaty, ratified by all 19 Euro area Member States, stipulating the mandatory inclusion of CACs in any bond issued from 1 January 2013, see Grosse Steffen et al. (2019).
- 19.
Law No. 4050/2012 of 23 February 2013, Government Gazzette A 36/2012. According to its provisions, any amendment to the existing bonds decided with the participation of a majority of bondholders was deemed effective for any bondholder, including holdouts.
- 20.
See Debt Relief (Developing Countries) Act, 2010 Chapter 22, 8 April 2010, available at http://www.legislation.gov.uk/ukpga/2010/22/introduction (hereinafter, DRA): following the adoption of the statute in the United Kingdom, parallel provisions were adopted also in self-governing dependencies of the Isle of Man and Jersey See, respectively, the Heavily Indebted Poor Countries (Limitation on Debt Recovery) Bill 2012, 11 December 2012, available at http://www.tynwald.org.im/business/bills/Bills/HEAVILY_INDEBTED_POOR_COUNTRIES_(LIMITATION_ON_DEBT_RECOVERY)_BILL_2012.pdf, and the Debt Relief (Developing Countries) Law 2013, 1 March 2013, available at https://www.jerseylaw.je/laws/revised/Pages/17.200.aspx#_Toc355967644. France followed the legislative efforts and recently, introduced relevant provisions in the Loi relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique (Loi n. 2016-1691, 9 December 2016, available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000033558528&categorieLien=id, Loi Sapin II.
- 21.
Article 2, Loi relative à la lutte contre les activités des fonds vautours, 2018040447, 12 July 2015. See Vivien R (2019), Analyse de la loi belge du 12 juillet 2015 contre les fonds vautours et de sa conformité au droit de l’UE, available at https://www.cadtm.org/Analyse-de-la-loi-belge-du-12-juillet-2015-contre-les-fonds-vautours-et-de-sa, and Wozny 2017.
- 22.
See Human Rights Council, Activities of vulture funds and their impact on human rights, Final report of the Human Rights Council Advisory Committee, A/HRC/41/51, 7 May 2019, paras. 28–32; and Schumacher et al. (2018).
- 23.
Osborn Krueger (2002).
- 24.
At the heart of the SDRM was the creation of a Sovereign Debt Dispute Resolution Forum (SDDRF). This Forum was the ultimate decision maker in relation to any debt settlement under the SDRM, while, however, any “group” of creditors would have to consent to the proposal. The Forum itself would be established out of a pool of arbitrators, identified by the IMF board or, according to a later version, by the Managing Director and a selection panel identified by him, see Report of the Managing Director to the International Monetary and Financial Committee on a Statutory Sovereign Debt Restructuring Mechanism, 8 April 2003, available at http://www.imf.org/external/np/omd/2003/040803.htm.
- 25.
See Paulus and Kargman (2008).
- 26.
- 27.
Sudborough (2019).
- 28.
See United Nations, United Nations Conference on Trade and Development, Sovereign Debt Workouts, Guide, pp. 62–63.
- 29.
Mediation is defined by the 2018 United Nations Convention on International Settlement Agreements Resulting from Mediation, A/RES/73/198, UN C.N.155.2019, as “[…] a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the dispute”. The practice to use the terms “conciliation” and “mediation” as synonyms is confirmed also by the work of the UNCITRAL, see Draft Guide to Enactment and Use of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018), A/CN.9/1025, 1 April 2020, paras. 8–9: “In its previously adopted texts, including the 2002 Model Law and relevant documents, UNCITRAL used the term “conciliation” with the understanding that the terms “conciliation” and “mediation” were interchangeable. In preparing the amendment to the Model Law, the Commission decided to use the term “mediation” instead in an effort to adapt its terminology to the actual and practical use of the terms and with the expectation that this change will facilitate the promotion and heighten the visibility of the Model Law. This change in terminology does not have any substantive or conceptual implications. In practice, proceedings in which the parties are assisted by a third person to settle a dispute are referred to by expressions such as mediation, conciliation, neutral evaluation, mini-trial or similar terms. The Model Law uses the term “mediation” to encompass all such procedures”.
- 30.
Sudborough (2019), p. 228.
- 31.
Born (2012), p. 5.
- 32.
See the BIT concluded between Hong Kong and the United Arab Emirates, whose art. 8 provides for a three-levels dispute resolution clause that requires the exhaustion of a prior consultation for an amicable settlement. If the dispute cannot be settled amicably within 6 months from the date of receipt of the written notice for consultation, it shall be submitted to conciliation. In case of failure of the conciliation proceeding, the investor can request the establishment of an arbitral tribunal. Similarly, see the Indonesia- Australia Comprehensive Economic Partnership Agreement, Ch. 14, sec. B, art. 14.23.
- 33.
Such system is frequently present in inter-State conciliation, as in the case of the Convention on Conciliation and Arbitration within the Conference on Security and Cooperation in Europe (1992 Stockholm Convention), arts. 20–22.
- 34.
See PCA Optional Conciliation Rules, 1 July 1996, available at https://docs.pca-cpa.org/2016/01/Permanent-Court-of-Arbitration-Optional-Conciliation-Rules.pdf;, art. 3; 2018 UNCITRAL Model Law, art. 6.
- 35.
Vienna Convention on the Law on the Treaties (VCLT), 23 May 1969, UNTS vol. 1155, p. 331, whose Annex I designated the UN Secretary General as appointing authority in case of default of the procedure.
- 36.
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), 18 March 1965, 575 UNTS 159, Arts. 12–16, that allow Member States to designate for a renewable term of 6 years four persons to each Panel (of Arbitrators and of Conciliators). Also, the Chairman of the Centre may designate ten persons to each Panel.
- 37.
Specific codes regarding the conducts of mediators have been adopted by, ex pluribus, the Singapore International Arbitration Centre, SIAC Code of Ethics for an Arbitrator, available at https://www.siac.org.sg/images/stories/articles/rules/Code_of_Ethics_Oct2015.pdf; by the Milan Chamber of Arbitration, Code of Ethics, available at https://www.camera-arbitrale.it/en/arbitration/arbitration-rules/code-of-ethics.php?id=104.
- 38.
In May 2020, the ICSID Secretariat and UNCITRAL endorsed a Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement to provide applicable principles and provisions addressing matters such as independence and impartiality, and the duty to conduct proceedings with integrity, fairness, efficiency and civility. The Draft Code is based on a comparative review of canons and standards found in codes of conduct in investment treaties, arbitration rules applicable to ISDS, and of international courts: it might therefore constitute a model for other frameworks, as conciliation proceedings.
- 39.
See, in relation to mediators, Sudborough (2019), pp. 137–138.
- 40.
Forlati (2020).
- 41.
PCA Optional Conciliation Rules, art. 14; 2018 UNCITRAL Model Law, art. 10.
- 42.
ICSID Conciliation Rules, 25 September 1967, available at http://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/parte-chap01.htm. The current Conciliation Rules were approved by written vote of the Administrative Council in 2006 and were effective from April 10, 2006. In addition, several arbitral centres opted for mediation facilities for investment and commercial disputes, as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the Milan Chamber of Arbitration (CAM).
- 43.
See art. 9, 1961 Resolution: “If any of the Parties do not accept the settlement and the Commission decides that no purpose will be served by attempting to reach an agreement between the Parties on the terms of a different settlement, a procès-verbal will be drawn up as provided above, stating, without setting forth the terms of the proposed settlement, that the Parties were unable to accept the conciliation proposal”.
- 44.
Palmisano (2019), pp. 131–135.
- 45.
See the seven Locarno Treaties concluded between Belgium, France, Germany, Great Britain, Italy, Czechoslovakia, and Poland in 1925. First examples of this practice are resembled by the Bryan Treaties, a series of bilateral agreements negotiated by US Secretary of State W. Jennings Bryan and concluded with various other countries before World War I aiming to defer all disputes which cannot be settled by arbitration or diplomatic means for investigation by a previously established international commission in charge to determine the facts in dispute but also to advise on ways for the peaceful settlement of a dispute. See Villani (1989).
- 46.
Charter of the United Nations, 26 June 1945, available at https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf, Art. 33. It should be noted that in 1995, with A/RES/50/50, the UN General Assembly adopted the United Nations Model Rules for the Conciliation of Disputes between States in order to substantiate the conduct of conciliation proceedings between States.
- 47.
VCLT, art. 66 and Annex I.
- 48.
Apparently, no cases were submitted to conciliation following the provisions contained in the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, the 1978 Vienna Convention on Succession of States in Respect of Treaties, the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, the 1985 Vienna Convention on the Protection of the Ozone Layer, the 1992 Convention on Biological Diversity. All texts are available at https://treaties.un.org/. Also, Annex V and Arts. 297 and 298 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982, UNTS 1833, p. 3, calls for conciliation for the settlement of certain specific disputes, see Virzo (2008), pp. 22–35: notably, the UNCLOS provisions were activated only recently by the compulsory non-binding conciliation initiated by Timor-Leste on 11 April 2016 under Annex V of UNCLOS on its maritime boundary dispute with Australia in the Timor Sea.
- 49.
Reinisch (2017), p. 130.
- 50.
Art. 5, para. 1, of Dispute Settlement Understanding (DSU), Annex 2 of the Agreement Establishing the World Trade Organization, 15 April 1994, available at https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm, explicitly refers to conciliation as a method for dispute settlement that can be resorted before or during the WTO panel process.
- 51.
On 2002, UNCITRAL adopted the Model Law on International Commercial Conciliation, UN Doc A/RES/57/17, superseded and amended by the 2018 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, UN Doc A/RES/73/17.
- 52.
See https://icsid.worldbank.org/cases/case-database. See Titi and Fach Gomez (2019).
- 53.
- 54.
See ICSID Convention, Art. 33: “Any conciliation proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Conciliation Rules in effect on the date on which the parties consented to conciliation. If any question of procedure arises which is not covered by this Section or the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the question”.
- 55.
ICSID conciliation practice slightly differs, since most cases were rapidly settled before the constitution of the commission or during the proceedings: an overview of the cases is available at https://icsid.worldbank.org/cases/case-database. As an additional example, the average duration of an ICC mediation is 4 months.
- 56.
Sudborough (2019), p. 229.
- 57.
See PCA Optional Conciliation Rules, art. 7.
- 58.
Forlati (2020), pp. 190–191.
- 59.
Sovereign bonds are normally graded by rating agency: the rating indicates the State’s credit quality, namely its ability to pay a bond’s principal and interest in timely fashion. The grade therefore influences both bond pricing and interest rates. On this issue, see Cervone (2015); Pernazza (2014).
- 60.
In 2014 the United Nations Convention on Transparency in Treaty-Based Investor State Arbitration (Mauritius Convention), available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/transparency-convention-e.pdf, was adopted in the effort to create an universal obligation of publicity during arbitral proceedings: the Convention, however, was signed by 23 States and ratified by 9. States, therefore, inserted transparency provisions in IIAs and BITs, as in the case of the Comprehensive Economic Partnerhsip Agreeement (CETA) concluded between the European Union and Canada in 2016. Art. 8.36 is titled “Transaprency of proceedings” and establishes that all the requests, agreements, notices, decisions and documents connected with an investment dispute shall be made public. Similarly, the Central American Free Trade Agreement (CAFTA), art. 20:10, stipulates publicity of documents and hearings, also to facilitate the participation of non-disputing third parties.
- 61.
See UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, 1 April 2014, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/rules-on-transparency-e.pdf.
- 62.
- 63.
Magraw and Amerasinghe (2009), pp. 337–360. It must be stressed that the UNCTAD Principle 11 provides for an obligation of disclosure by the sovereign borrower, that must unveil all the information regarding its economic and financial situation, also in restructuring proceedings.
- 64.
Waibel et al. (2010).
- 65.
Zeller (2019).
- 66.
ICSID Convention, Art. 54.
- 67.
Convention on the Recognition and Enforcement of Foreign Arbitral Award (New York Convention), 6 July 1958, available at http://www.newyorkconvention.org/11165/web/files/original/1/5/15432.pdf.
- 68.
The United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”), A/RES/73/198, 20 December 2018, entered into force on 12 September 2020.
- 69.
Waibel (2011), p. 168.
- 70.
See UNCTAD, Sovereign Debt Workouts: Going Forward Roadmap and Guide, April 2015, available at https://unctad.org/system/files/official-document/gdsddf2015misc1_en.pdf, pp. 62–63.
- 71.
Ibid.
- 72.
The proposed restructuring terms, indeed, should be tailored to the specific situation of the debtor country, as well as to the potential effects of the restructuring on financial markets and other States, see UNCTAD, Sovereign Debt Workouts: Going Forward Roadmap and Guide, April 2015, available at https://unctad.org/system/files/official-document/gdsddf2015misc1_en.pdf, p. 54.
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Pauciulo, D. (2022). Conciliation as Method to Solve Sovereign Debt Disputes Between States and Private Creditors. In: Bäumler, J., et al. European Yearbook of International Economic Law 2021. European Yearbook of International Economic Law, vol 12. Springer, Cham. https://doi.org/10.1007/8165_2021_80
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DOI: https://doi.org/10.1007/8165_2021_80
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