In 2000 Argentine issued bonds to be paid in 2020 and 2030, but the
Republic became bankrupt already in 2001. Argentine signed a Fiscal Agency
Agreement providing that it renounced its sovereign immunity as a State, and
that in a case of its default at least 25 % of the total amount of debt were
immediately payable. Under the Fiscal Agency Agreement the judicial competence
was transferred to the United States District Court for the Southern District
of New York.
Deptee company NML Capital from Caiman Islands obtained an order from
the latter New York obliging Argentina to refund and compensate $ 284 184
632.30 (§ 7). After this, NML Capital addressed the French Courts in order to
arrest the funds of Argentina’s diplomatic missions in Paris.
The French Cassation Court agreed with the validity of the New York
judgment, however refused to order arrest of Argentina’s funds in France due to
sovereign immunity.
It is quite natural to think that after the Cassation Court you have
exhausted all internal remedies, and NML Capital attacked it before the
European Court of Human Rights. However on 13/01/2015 the Strasbourg judges decided that NML
Capital had to attack the French Republic before the French administrative courts for
“breach of equality in terms of public burdens” (“rupture de l'égalité devant les charges
publiques”, § 19).
“Breach of equality in terms of public burdens” is a procedure absolutely
similar to the Köbler procedure of the EU Court of Justice. It is interesting
to note that the European Court of Human Rights already several times
interpreted that the Köbler procedure is not a requirement within any
obligatory meaning of Strasbourg procedures.
After Strasbourg, there is an appeal open to the UN Human Rights
Committee. This UN jurisdiction does not accept complaints from legal persons.
It is interesting to know that many UN States do not recognize Caiman Islands
companies as legal persons. Could NML Capital act as a natural person then?
