B Explanatory memorandum, by Mr Wille
1 Definition
1. “Vulture funds” are investment funds which purchase
at a cheap price the borrowings of often the most indebted and poorest
countries, then bring court proceedings to wear them down and compel
them to pay the nominal value (the initial amount owing) of these
debts at the time when the loans were issued, together with the
interest on arrears. These funds, initially developed in the United
States, belong mainly to the English-speaking world and are often
domiciled in tax havens (for example the Cayman Islands). Their
names are, most notably: Debt Advisory International,
Note Donegal International,
Note Elliot Associates L.P,
Note F.G. Hemisphere Associates
Note and
Kensington International Ltd.
2. According to Oxfam International, to date the investment funds
have brought at least 40 actions against this class of Third World
countries deepest in debt, called “heavily indebted poor countries
(HIPCs)”. According to the International Monetary Fund (IMF), the
“vulture funds” have already extracted almost US$2 billion from these
HIPCs.
2 Issues
2.1 Immorality of the
funds
3. “Vulture funds” make use of a huge legal arsenal,
often bringing debtors to their knees. They are comparable to extortions
of funds from the economies of poor countries, while remaining strictly
legal as there is no obstacle at present in international law to
their obtaining satisfaction before certain courts (principally
in the English-speaking world).
4. In fact these funds get round the international conventions
on debt reduction, while Western governments for their part work
to secure debt reduction and remission. While international fund
providers grant debt remissions for persistent debts, these funds
take over the benefits of the programmes, thus jeopardising the
United Nations Millennium Development Goals (MDGs). Some “vulture
funds” do not hesitate to interfere with the debt rescheduling programmes
set up for the poorest developing countries – the HIPCs.
5. These funds take advantage of opportunities arising from debt
waivers granted by creditor countries or succeed in worldwide blocking
of the assets of the countries concerned and in threatening them
with inevitable bankruptcy. Such practices are morally wrong and
imperil the efforts made by the international community to achieve
the MDGs. The present United Kingdom Prime Minister, Mr Gordon Brown,
publicly condemned these acts in an address to the United Nations
in 2002: “We particularly condemn the perversity where “vulture
funds” purchase debt at a reduced price and make a profit from suing
the debtor country to recover the full amount owed – a morally outrageous
outcome”.
2.2 Threat to financial
aid and debt remission
6. The example of Zambia is typical of the problem presented
by “vulture funds”. In 2005 this country had its US$1.92 billion
debt waived by the Paris Club as part of a special aid scheme for
HIPCs. After regaining a somewhat more tenable financial situation,
Zambia was sued by the Donegal International fund. Donegal demanded
a sum of US$55 million from Zambia. The London High Court ruling
of 24 April 2007 finally ordered Zambia to pay Donegal US$15.7 million
in respect of a debt bought up in 1999 for only US$3.3 million (it
was a debt of US$30 million contracted in 1979 by Zambia towards
Romania).
7. This judgment delivered by the British High Court has two
major repercussions. Firstly it scores a direct hit on Zambia’s
possibilities for using its resources on behalf of its population.
Secondly, it hampers the international community’s efforts in support
of Zambia under a targeted debt reduction programme.
8. Another example concerns Belgium, victim of the Kensington
fund which bought up US$1.8 million worth of Congolese debts and
now claims over US$120 million from Congo-Brazzaville. And indeed
on two occasions it has secured the attachment of nearly €12 million
derived from Belgian development co-operation in Congo-Brazzaville.
9. While this is not a new phenomenon – back in 2000, Peru was
compelled to discharge a debt of US$55 million bought by a “vulture
fund” for US$11 million – it is becoming widespread with the cancellations of
debts granted by the rich countries (Paris Club) and the international
fund providers (IMF, World Bank).
2.3 Risk for the development
of the poorest countries
10. In the hope of alleviating the problems of indebtedness
of poorer countries, the international community (IMF, World Bank)
set up in 1996 the Initiative for the Heavily Indebted Poor Countries
(HIPCs), followed by its reinforced version in 1999, then the Multilateral
Debt Relief Initiative (MDRI) in 2005. The initiative seeks to adjust
the scale and the conditions of debt relief as closely as possible
to the needs of the HIPCs and thereby speed up progress towards
the United Nations’ MDGs.
11. For their part, the HIPCs have endeavoured to negotiate the
most favourable possible terms in order to attain a tolerable level
of indebtedness. Thus in 1998 they availed themselves of the Heavily
Indebted Poor Countries Capacity Building Programme (HIPC CBP) to
pool information on the best negotiating terms and strategies. Thanks
to the CBP, these countries were able to obtain substantial increases
in their debt relief, which enabled them to release additional resources
allocated to their national development goals and to the MDGs.
12. Unfortunately the action of the “vulture funds” poses an intolerable
risk to the HIPCs by denying them all possibility of development
and extrication from poverty, since these funds prey on their debt
rescheduling programmes.
13. As early as 2002 Mr Francis Mer, then French Minister for
the Economy, Finance and Industry, stressed in a statement to the
International Monetary and Financial Committee of the IMF the dangers
which “vulture funds” represented for the development of indebted
poor countries: “I would also like to see efforts continued to involve
all creditors, in keeping with the universal scope of the HIPC initiative.
The lawsuits that ‘vulture funds’ have initiated against HIPCs are
very disturbing in this respect”.
3 Recent developments
3.1 Initiatives in
the national parliaments
14. Some creditor countries have reacted to this scourge
by trying to find a suitable answer at the national level for averting
or prohibiting the legal actions that may be instituted by “vulture
funds” to secure the acknowledgement and validation of debts bought
in complete legality but in a thoroughly immoral manner.
15. In the Netherlands for instance, several initiatives were
taken in 2007 to mobilise the NGOs active in the field of debt relief,
in order to raise the awareness of Dutch parliamentarians. In that
regard, attention should be drawn to the initiative by MP Waalkens
who on 15 May 2007 questioned the government about the action of
“vulture funds” and the possibilities for offering legal aid to
the countries wronged by the funds. The Netherlands Government moreover
undertook to institute awareness-raising campaigns for private and bilateral
creditors, so that debts would no longer be sold on to “vulture
funds” like Donegal International.
16. France for its part, currently chairing and providing the
general secretariat of the Paris Club, has decided to act at the
national level and in the various international forums to raise
the awareness of the other creditors, whether public or private,
and to identify concrete measures for tackling the problem. Of significance
in this context is the bill of 2 August 2007 to combat the action
of the “vulture funds” through very strict regulation of the possibilities
for recovery of debts by a French court.
17. Belgium has also made moves by adopting a bill (passed by
the Belgian Senate on 31 January 2008) to prevent the attachment
or transfer, by the “vulture funds” method, of public monies intended
for international co-operation. The bill forms a sequel to a resolution
adopted by the Belgian Senate in March 2007, asking the government
to arrange an audit concerning the “reprehensible” character of
Belgian claims on the developing countries.
18. In the United Kingdom, Mr Gordon Brown, then Chancellor of
the Exchequer, announced on 10 May 2007 a series of measures to
contain the damage done by “vulture funds” to the poorer countries
(voluntary code of conduct for private creditors, legal aid to the
HIPCs and optimised management of their debt).
3.2 Initiatives in
the context of international forums
19. States having taken measures at the national level
have committed themselves to pursuing their action in the context
of various international forums in which they participate (IMF,
World Bank, G8, Paris Club and other bodies).
20. The Paris Club creditors were thus the first to react by publishing
on 22 May 2007 a press release in which they confirm that they are
“committed to the full implementation of the HIPC initiative” and
“urge all official and commercial creditors and HIPCs to take the
necessary steps to implement this initiative”. They further confirm
that they are “committed to avoid selling their claims on HIPC countries
to other creditors who do not intend to provide debt relief under
the HIPC initiative, and urge other creditors to follow suit”.
21. At the level of the Bretton Woods institutions (IMF and World
Bank), which are behind the debt relief initiative on behalf of
the HIPCs, the countries most deeply committed to fighting the “vulture
funds” act in order that these two institutions may render legal
aid to the poorest countries for their defence before the courts
when sued. It is also their wish that the member countries of the
IMF and the World Bank, which are public creditors too, undertake
to refrain from any further sale on second markets of debts in their
possession against HIPCs. That would be a way of making the supply
of easy victims for the vultures dry up.
22. Finally, note the initiative taken by the Organization for
Security and Co-operation in Europe (OSCE) Parliamentary Assembly
which at its 17th annual session in July 2008 in Astana (Kazakhstan)
adopted a resolution on “urging adoption of the Paris Club commitment”
regarding “vulture funds”, particularly by encouraging “all OSCE
participating states to formally adopt and implement policies equivalent
to the Paris Club commitment, and formally commit not to sell on
their claims on HIPC creditors to creditors who do not intend to
provide debt relief”.
3.3 New hazards linked
with the international financial crisis
23. The current financial crisis presents “vulture funds”
with wider scope for action. Indeed, “vulture funds” are likely
to respond to the mobilisation of the developing countries’ creditors
by attempting to take advantage of the prevailing distress. They
could purchase the claims held by states or enterprises in difficulties
in order to sell them at a higher value as soon as the situation
is back to normal, or they could use them to take over companies
incapable of meeting these maturities.
24. Banks and finance companies, themselves severely affected
by the crisis, become targets! However, because buying out banks,
unlike business undertakings, raises acute regulatory problems,
the interest of “vulture funds” in banks should happily be limited.
Conversely, they might be interested in securities backed by real
estate loans or in certain property portfolios left ownerless by
the bankruptcy of the proprietor company or financial institution.
25. The financial crisis could also affect aid payments by fund
providers. It is true that many creditor countries are suffering
the full throes of the financial system's problems and their economic
consequences. As a result traditional providers of funds could become
more hesitant about granting new facilities (assistance or debt
remission) to the poorest countries.
26. In this connection, the conclusions the Council of the European
Union adopted at its session on 11 November 2008 concerning guidelines
for EU participation in the International Conference on Financing
for Development, held in Doha from 29 November to 2 December 2008,
are to be welcomed. On behalf of the European Union the Council
will "ensure that Official Development Assistance (ODA) commitments
are not curtailed" and that "all measures taken at the global level
to improve the financial situation take full account of the situation
and needs of developing countries, especially the poorest and most
fragile."
4 Conclusion
27. The solutions will be hard to put in place, so it
is important that the international community takes every opportunity
available to it for sounding the alarm in order to deter lenders
from selling their claims on their debtors to “vulture funds”: “naming
and shaming” as it is expressed in English.
28. However, countries experiencing structural difficulties must
also be more transparent in managing their revenue and public accounts,
particularly when their situation has improved as a result of debt
reduction or cancellation. The fight against the action of “vulture
funds” should not serve as an excuse for leaders to use funds received
for purposes other than those originally intended, that is, reducing
poverty and improving citizens’ living conditions, so that they
end up, via front companies, in Western bank accounts or tax havens.
29. That is why I would like the Parliamentary Assembly to ask
the governments of the Council of Europe member states to align
their positions at the national level by adopting exact rules aimed
at curbing the action of “vulture funds” (for example, contractual
clauses on non-transferability that would void contracts of assistance
to developing countries if not complied with); to afford the countries
victimised by “vulture funds” legal aid; to offer technical assistance
in the area of debt policy and management, as well as in setting
up national plans against corruption; and also to support all initiatives
at the international level for aiding and protecting the most heavily
indebted countries and preventing the trade in claims on them.
Reporting committee: Committee
on Economic Affairs and Development.
Reference to committee: Reference
3467 of 27 June 2008.
Draft recommendation adopted
by the committee on 11 March 2009.
Members of the committee: Mr
Márton Braun (Chairperson),
Mr Robert Walter (Vice-Chairperson) (alternate: Baroness Detta O’Cathain), Mrs Doris Barnett
(Vice-Chairperson), Mrs Antigoni Papadopoulos (Vice-Chairperson),
Mr Ruhi Açikgöz, Mr Ulrich
Adam, Mr Pedro Agramunt Font de Mora,
Mr Roberto Antonione, Mr Robert Arrigo (alternate: Mrs Marie-Louise Coleiro Preca), Mr Zigmantas Balčytis,
Mrs Veronika Bellmann, Mr Radu Mircea Berceanu, Mr Vidar Bjørnstad, Mr Luuk Blom, Mr Pedrag
Bošković, Mrs Maryvonne Blondin, Mr Patrick Breen (alternate: Mr
Frank Fahey), Mr Erol Aslan Cebeci, Mrs Elvira Cortajarena Iturrioz, Mr Valeriu
Cosarciuc, Mr Joan Albert Farré Santuré, Mr Relu Fenechiu, Mr Guiorgui Gabashvili, Mr Marco Gatti, Mr
Zahari Georgiev, Mr Paolo Giaretta,
Mr Francis Grignon, Mrs Arlette Grosskost (alternate: Mr Michel Hunault), Mrs Azra Hadžiahmetović,
Mrs Karin Hakl, Mr Norbert Haupert,
Mr Stanislaw Huskowski, Mr Ivan Nikolaev Ivanov, Mr Igor Ivanovski,
Mr Miloš Jevtić, Mrs Nataša Jovanović, Mr Antti Kaikkonen, Mr Emmanouil Kefaloyiannis, Mr Serhiy Klyuev,
Mr Albrecht Konečný, Mr Bronislaw Korfanty,
Mr Anatoliy Korobeynikov, Mr
Ertuğrul Kumcuoğlu, Mr Flemming Damgaard Larsen, Mr Bob Laxton,
Mr Harald Leibrecht, Mrs Anna Lilliehöök,
Mr Arthur Loepfe, Mr Denis MacShane, Mr Yevhen Marmazov, Mr Jean-Pierre
Masseret, Mr Miloš Melčák,
Mr José Mendes Bota, Mr Attila
Mesterházy, Mr Alejandro Muñoz Alonso (alternate: Mr Pedro María Azpiazu Uriarte), Mrs Olga Nachtmannová,
Mrs Hermine Naghdalyan, Mr Gebhard Negele, Mrs Miroslawa Nykiel, Mr Mark Oaten, Mrs Ganira
Pashayeva, Mrs Marija Pejčinović-Burić, Mr Viktor Pleskachevskiy, Mr Jakob Presečnik,
Mr Maximilian Reimann, Mr Andrea Rigoni, Mrs Maria de Belém Roseira
(alternate: Mr Maximiano Martins),
Mr Giuseppe Saro, Mr Samad Seyidov, Mr Steingrímur J. Sigfússon,
Mr Leonid Slutsky (alternate: Mrs Natalia Burykina),
Mr Serhiy Sobolev, Mr Christophe
Steiner, Mr Vyacheslav Timchenko(alternate: Mr Yury Isaev),
Mrs Arenca Trashani, Mrs Ester Tuiksoo, Mr Oldřich Vojíř, Mr Konstantinos Vrettos, Mr Harm Evert Waalkens,
Mr Paul Wille, Mrs Maryam
Yazdanfar.
NB: The names of the members who took part in the meeting
are printed in bold.
Secretariat of the committee: Mr
Newman, Mr de Buyer and Mr Chahbazian.
