d'accordissimo vedrò di fare delle riunioni con degli studi legali e sentire quali sono gli spunti. forse prima o poi dovremmo costituirci in comitato e magari organizzare una riunione che ne dite?
Ci organizzeremo in tal senso. Quale ulteriore spunto ripropongo gli ultimi paragrafi del famigerato white-paper sull'how-to ristrutturare il debito greco, opera dei consulenti alla ristrutturazione del governo greco:
Such a law, let’s call it a “Mopping-Up Law”, would thus operate in the manner of a contractual collective action clause in a syndicated debt instrument. Once the supermajority of creditors is persuaded to support an amendment to the payment terms of the instrument, their decision automatically binds any dissident minority.
...
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. 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.”
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”.
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.
Assuming some version of a Mopping-Up Law could survive any legal challenge, however, it could have significant tactical implications for a Greek debt restructuring. More than 90% of Greek bonds are governed by local law. If, to use our example, holders of 75% of all eligible bonds (local law and foreign law) were to support a restructuring, our version of a Mopping-Up Law should operate to ensure that more than 90% of the debt stock will be covered by the restructuring. The Mopping-Up Law would not affect holders of foreign law bonds. Participation by those holders would need to be encouraged by moral suasion and the use of contractual collective action clauses in the relevant bonds.
