Listen to our "friend" buchheit from CGSH and Gulati (see attached)
Even the relatively mild step of facilitating a debt restructuring
through the passage of a Mopping-Up Law of some kind, however, could
draw a legal challenge. In the case of Greece, such a challenge could come
from three possible sources.
through the passage of a Mopping-Up Law of some kind, however, could
draw a legal challenge. In the case of Greece, such a challenge could come
from three possible sources.
The first is Article 17 of the Greek Constitution.
That Article declares that no one shall be deprived of property “except for
public benefit” and conditional upon payment of full compensation
corresponding to the value of the expropriated property. The question, it
seems to us (non-Greek lawyers that we are), is whether a mandatory
alteration of the payment terms of a local law Greek bond in the context of a
generalized debt restructuring could be said to impair the value of that bond;
an instrument that, in the absence of a successful restructuring, would have
in any event been highly impaired in value. Also of possible relevance may
be Article 106 of the Greek Constitution which gives the State broad powers
to “consolidate social peace and protect the general interest.”
That Article declares that no one shall be deprived of property “except for
public benefit” and conditional upon payment of full compensation
corresponding to the value of the expropriated property. The question, it
seems to us (non-Greek lawyers that we are), is whether a mandatory
alteration of the payment terms of a local law Greek bond in the context of a
generalized debt restructuring could be said to impair the value of that bond;
an instrument that, in the absence of a successful restructuring, would have
in any event been highly impaired in value. Also of possible relevance may
be Article 106 of the Greek Constitution which gives the State broad powers
to “consolidate social peace and protect the general interest.”
A second source of possible legal concern might lie in the
European Convention on Human Rights and its Protocols. Article 1 of
Protocol No. 1 protects the right to the “peaceful enjoyment of possessions”.
This right may be restricted only in the public interest and only through
measures that do not impose an individual and excessive burden on the
private party. That said, Article 15 of the Convention permits measures,
otherwise inconsistent with the Convention, to deal with a “public emergency
threatening the life of the nation”.
European Convention on Human Rights and its Protocols. Article 1 of
Protocol No. 1 protects the right to the “peaceful enjoyment of possessions”.
This right may be restricted only in the public interest and only through
measures that do not impose an individual and excessive burden on the
private party. That said, Article 15 of the Convention permits measures,
otherwise inconsistent with the Convention, to deal with a “public emergency
threatening the life of the nation”.
Finally, foreign holders of local law-governed Greek bonds
subject to the Mopping-Up Law might look to Greece’s Bilateral Investment
Treaties for redress. BITs protect against expropriation without
compensation, as well as unfair and inequitable treatment. It appears that
Greece has signed more than 40 BITs with bilateral partners.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1603304
Keine Kommentare:
Kommentar veröffentlichen