Similarly, in the Gold Clause Cases,142 the Supreme Court deferred to the federal
government’s interest in regulating the nation’s monetary policy. In 1933, Congress
passed a joint resolution declaring that all clauses that stipulated payment in gold in public
and private contracts were against public policy.143 This effectively forced all payments on
contract obligations to be made in devalued currency, regardless of the terms of the
contract.144 The Court concluded that Congress’s comprehensive power over monetary
policy, especially in a financial crisis, outweighed any fairness concerns.145 Most relevant
to the immediate inquiry is the particular Gold Clause Case of Perry v. United States,146
which concerned government bonds. The Court held that the joint resolution as it applied
to government bonds was unconstitutional, as the government was impairing its own
obligations.147 However, in determining actual loss, the Court concluded that the nation’s
economic conditions must be taken into account.148 Because the damages would be
“nominal,”149 the plaintiff “fail[ed] to show a cause of action for actual damages.”150 This
would be similar to a court finding that the Mopping-Up Law was, in fact, expropriatory,
but that any economic loss would be considered de minimis and therefore not
recoverable.151
die Fussnoten:
142 Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 (1935); Nortz v. United States, 294 U.S.
317 (1935); and Perry v. United States, 294 U.S. 330 (1935).
143 Norman, 294 U.S. at 291–92.
144 Id. at 292–93. For a modern analog, see New Law Limits Claims by Vulture Funds, REUTERS, Apr.
8, 2010, http://uk.reuters.com/article/2010/04/08/uk-britain-debt-idUKTRE63748920100408 (discussing
how the U.K. enacted legislative measures—with no successful legal challenges—in placing restrictions on
the recovery of heavily discounted debts).
145 Id. at 316.
146 294 U.S. 330 (1935).
147 Id. at 350–51 (1935) (“There is a clear distinction between the power of the Congress to control or
interdict the contracts of private parties when they interfere with the exercise of its constitutional authority
and the power of the Congress to alter or repudiate the substance of its own engagements when it has
borrowed money under the authority which the Constitution confers.”).
148 Id. at 355 (1935) (“The question of actual loss cannot fairly be determined without considering the
economic situation at the time the government offered to pay . . . the face of his bond, in legal tender
currency.”).
149 Id.
150 Id. at 358.
151 See supra note 114 and accompanying text.
aus:
RESTRUCTURING SOVEREIGN DEBT UNDER LOCAL LAW:
ARE RETROFIT COLLECTIVE ACTION CLAUSES EXPROPRIATORY?
Melissa A. Boudreau*
The European sovereign debt crisis has generated a number of controversial restructuring
proposals that would have seemed appropriate only for emerging markets just a few years
ago, but now are among the few options available to sustain the Eurozone. The leading
proposal involves legislation that would mandate collective action clauses in untendered
bonds governed under local law. This Note evaluates whether enacting this legislation
and utilizing it in a debt restructuring would engender successful investor claims of invalid
expropriation against the sovereign in American courts, and concludes that a successful
claim of invalid expropriation is unlikely.
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