ausgesprochen interessant: laut Glinavos (Waibel) sind sogar bei den foreign law bonds von GRI mit eingebetteten CAC die zu Mehrheitsbeschlüssen in den Bondholdermeetings geführt haben sind die holdouts berechtigt nach den BITs beim ICSID auf volle Bedienung ihrer Claims zu dringen

© Ioannis Glinavos 2012 i.glinavos@reading.ac.uk investors v greece_4.odt

Collective Action Clauses
It appears that CACs do not provide adequate protection for sovereign debtors in the context of
BITs. On the surface, CACs would appear to prevent holdouts of sovereign bonds and vulture funds
from filing claims under BITs. Yet even if the bondholders of a particular issuance voted against
litigation through a minority clause or agreed to the terms of a restructuring under a majority clause,
such actions under a CAC would not prevent an investor from filing an arbitral claim. According to
Waibel (2007), CACs cover contractual rights of enforcement and are not designed to deal with
treaty claims. Thus even if a CAC was activated, holdout bondholders could file a treaty claim
arguing that the terms of a treaty have been violated (Waibel, 2007:715). The prima facie limited
coverage of CACs—their questionable ability to include investment treaty arbitration—opens up a
new window of opportunity for holdout litigation. The importance of this potential loophole for
sovereign debt markets cannot be overemphasized if a BIT, like the Greece-Germany one, defines
investment in terms broad enough to include purchasers of sovereign bonds. If ICSID tribunals
hear treaty claims concerning sovereign bonds despite the legitimate exercise of CACs, then such
clauses would become ineffective in binding non-participating creditors. If CACs were to leave
treaty claims untouched, then they would bar only contractual causes of action originating in the
bond contract. Bondholders might be able to obtain compensation even though the contractually
prescribed majority of bondholders accepted the sovereign debt restructuring. Recourse to ICSID
arbitration could thus create a legal gap in the international community’s collective action policy
(Waibel, 2007:736) with the result that investors suffering losses due to the Greek 'haircut' will
spend a decade pursuing claims in Arbitral tribunals, pretty much like their Italian counterparts in
the case of Argentina.
S 10/11

hier nochmal Klartext:

Even if a bond issuance with a CAC has had a bondholders’ meeting whereby a supermajority has agreed to accept the restructuring and f there was no minimum enforcement vote of 25 percent of bondholders to litigate, under an umbrella clause holdouts may still be able to resort to investor-state arbitration.