Vulture funds, also known as ‘litigating creditors’ or ‘predatory funds’, are private financial entities that are often located in tax havens and that “acquire the defaulted sovereign debt of poor countries,
on the secondary market at a price far less than its face value and then attempt, through litigation, seizure of assets or political pressure, to seek repayment of the full face value of the debt together with interest, penalties and legal fees” (Cephas Luminas, see A/HRC/14/21, para. 8). To achieve their aim, “vulture funds may resort not only to court proceedings but also to lobbying and other pressure tactics, which can range from attempting to attach the debtor State’s assets to organizing discrediting press campaigns with a view to forcing the Government to pay” (page 4, note5).

The profits they obtain through such harassment are exorbitant since “vulture funds have achieved, on average, recovery rates of some 3 to 20 times their investment, equivalent to returns of 300 to 2,000 per cent” (page 5, (f))

Unsurprisingly, these profits, that are derived from an obvious disproportion between the price at which debts were acquired and the payment they managed to obtain, are detrimental to the targeted governments and thus to the populations. The report includes several case studies of countries attacked by vulture funds, namely the Democratic Republic of the Congo, Zambia and Argentina. Zambia offers a telling illustration. “In 2006, only months before Zambia was due to receive debt cancellation under the HIPC Initiative, [Donegal International, a vulture fund] sued the country in the United Kingdom courts for a total amount of $55 million. Donegal obtained a favourable ruling, obtaining a 370 percent return, nearly 17 times the value of the original debt. The Government of Zambia reportedly recognized the judgment and allocated about 65 percent of the amount received, already earmarked for health programmes, to service the debt [...] As a result of this litigation, vulture funds took away from the country almost 15 percent of its total social welfare expenditure, funds that could have been channelled instead towards education, health care and poverty alleviation. (page 6, items 12 and 13)

Fortunately, the report goes beyond a description of vulture funds’ strategy and their deleterious impact on the populations of countries under attack since it also develops several measures governments could immediately implement such as (quite simply) have laws voted at national level to prevent courts from complying with the demands of vulture funds. It now appears as urgent and necessary to act in the legal field to change ‘the rules of the game’. Indeed, “statistics show that lawsuits and attempted attachments are increasingly becoming a common way of solving sovereign debt disputes, entailing costly and protracted judicial processes for the State that has defaulted. The trend has grown since the 1990s from 10 to almost 50 percent of such disputes.” (page 10, item 29)

To enact laws that counter vulture funds, States do not start from scratch. Belgium, the United Kingdom and quite recently France provide models to be emulated, particularly the law adopted in Belgium in 2015 that the report sets up as an example. “The Advisory Committee recommends to Member States that they (a) Enact legislation aimed at curtailing the predatory activities of vulture funds within their jurisdiction. Domestic laws should not be limited to HIPCs but should cover a broader group of countries and apply to commercial creditors that refuse to negotiate any restructuring of the debt. Claims that are manifestly disproportionate to the amount initially paid to purchase the sovereign debt should not be considered. (b) Adopt measures aimed at limiting disruptive litigation by vulture funds in their jurisdiction. National courts or judges should not give effect to foreign judgments or conduct enforcement procedures in favour of vulture funds that are pursuing a disproportionate profit. It is a good practice to limit the value of vulture funds’ claims to the discounted price originally paid for the bonds.” (page 23, item 87)

This is exactly what the Belgian federal Parliament did when on 12 July 2015, with the encouragement of the CADTM and of the CNCD-11.11.11, it enacted a law that makes it possible for a Belgian magistrate to rule that no more should be paid to a vulture fund than what it paid to purchase the debt in the first place. [2]

The report occurs at a historical juncture for two main reasons. First, this very Belgian law is currently being attacked by one of the most powerful vulture funds at a global level, namely NML Capital, which belongs to billionaire Paul Singer, one of the largest donors to the US Republican Party. NML had also successfully attacked Argentina and is now asking the Belgian Constitutional Court to nullify the law, which in itself is evidence of its efficiency. Second, States find it more and more difficult to repay their sovereign debts (especially in Africa, which is the most harassed continent with an average of eight lawsuits a year against African States). Facing the possibility of several countries’ defaulting, current creditors might feel tempted to sell off their debts, which vulture funds can then buy at a much lower rate than their face values.

In the face of such an emergency, immediate measures need to be taken, such as laws against vulture funds to prevent the situation from further deteriorating, but also moratoriums on payment of all unsustainable debts while debt audits are carried out so as to identify and then unconditionally cancel odious, illegitimate and illegal debts.

As recalled in the Ziegler report, the State’s first duty is to guarantee people’s economic and social rights, and this duty has precedence over its obligations to repay its debts. Many other texts say the same, yet still without concrete effects since governments still give priority to repaying their debts. We can mention here the Independent Expert’s report on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, which state in no uncertain terms that if “excessive or disproportionate debt servicing . . . takes away financial resources meant for the realization of human rights [it] should be adjusted or modified accordingly to reflect the primacy of human rights. Debtor States’ budgetary allocations should reflect the priority of human rights-related expenditures.”  [3]

There is no longer any time to wait for some international framework of debt restructuring under the aegis of the UN, especially since major creditor states, as well as the IMF and the World Bank, have hampered its existence for years. Let us use the legal tools that are already available, such as the right to suspend debt payment and audit debts, to repeal those that were contracted against the population’s interests.

Translated by Christine Pagnoulle and Snake Arbusto