CHOICE OF FORUM IN INTERNATIONAL HUMAN RIGHTS ADJUDICATION AND THE UNITY/FRAGMENTATION DEBATE: IS PLURALITY THE WAY FORWARD?

Abstract

In recent times private creditors have increasingly begun to resort to litigation against States in case of sovereign debt default. One of the most complex recent cases concerns the legal proceedings brought against Argentina by NML Capital Limited before the courts of the United States (US). The plaintiffs are primarily “vulture funds”, seeking profit by buying heavily discounted distressed debt, that have rejected the restructuring terms accepted by the majority of Argentina’s creditors. There are two main questions at the heart of the present dispute: sovereign immunity and the alleged breach of the US Foreign Sovereign Immunities Act (FSIA), and the interpretation of the pari passu clause. The US Supreme Court held that the FSIA does not limit the scope of discovery against foreign sovereign assets and rejected Argentina’s petition for certiorari to review the Second Circuit decision upholding the injunction orders that required Argentina to pay NML Capital and the other plaintiffs whenever it pays the holders of its restructured debt. This comment assesses the approach of the US courts in relation to discovery and their interpretation of the pari passu provision. In particular, it argues that the outcome of this legal battle threatens future sovereign debt restructurings and confirms the gravity of the lack of a binding central restructuring mechanism.