Barbacoa
07/05/11 16:13
Ha respondido al tema Grecia, Irlanda y Portugal amenazan con el uso de la soberanía para salir del euro Los mercados ya descuentan un
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Gracias por la referencia, Knownuthing. Es un artículo muy interesante para conocer las cuestiones jurídicas relativas a un posible abandono de la UE y del EMU por un Estado. Pero en lo referente a la deuda no profundiza nada; en la frase que mencionas se limita a reconocer que afecta a complejas cuestiones jurídicas cuya solución satisfactoria requiere cooperación mutua. La nota de dicha frase remite a un autor, Charles Proctor, del que he encontrado en internet un artículo muy adecuado:
http://www.twobirds.com/English/News/Articles/Pages/Greece_and_euro_currency_risk.Aspx
Copio y pego la parte final del artículo:
"The creation of a new currency
When the establishment of the euro first came under serious consideration in the 1990s, there was much legal debate about the consequences of the new currency and its impact on commercial contracts. But, in truth, much of this discussion was misplaced and unnecessary. The currencies of the participating Member States would simply cease to exist and the euro would become the single currency of the entire zone. Legacy currency contracts had to be translated into the euro at the prescribed substitution rates. There was nowhere else to go, and it was plain that the courts would have enforced financial and monetary obligations in the new currency in accordance with the conversion rates.
A move from diversity to unity was thus, at least in legal terms, conceptually straightforward; there is only one option and a single solution. But a move in the opposite direction involves a splintering of monetary arrangements. What happens then?
In the event of a Greek departure from the eurozone:
(a) the euro would clearly continue to exist as a monetary unit and would remain the lawful currency of the continuing eurozone Member States; but
(b) Greece would have to create a new domestic currency, and its new national currency law will have to provide a conversion rate at which euro-denominated obligations will be converted into the new currency.
Implications for creditors
The crucial question for the creditor in this type of situation will be the financial and contractual implications of the Greek departure from the eurozone. In particular:
(a) do the Greek bonds or other instruments held by him remain denominated and payable in euro; or
(b) are those obligations translated into the newly-created Greek currency at the conversion rate which will be prescribed by the new Greek monetary law?
In the first situation, a continuing Greek crisis would no doubt involve financial risks for the bondholder. But he is not burdened with new currency risks. On the other hand, the second situation could be catastrophic for the creditor. He will be left in possession of an obligation which would be converted into the new Greek currency at a conversion rate prescribed by law. But, depending on the circumstances of withdrawal, the market value of that currency may fall very significantly against the euro, and the creditor is unlikely to have a claim for damages to recover the resultant exchange losses.
How, then, would the courts determine the currency in which an obligation was to be settled post-withdrawal from the eurozone? It is fair to say that this is a difficult question, especially given the absence of any meaningful precedent. In addition, the answer may differ accordingly to the court in which the question arises.
In broad terms, the following analysis should be applied:
(a) Where the affected bond or other obligation is governed by English law, it will remain outstanding in euro regardless of the terms of the new Greek monetary law. This follows from the general principle that a contractual obligation governed by the laws of one country cannot be altered or varied by the laws of another. The same proposition will apply to bonds governed by New York law (or any other, non-Greek law);
(b) Where the relevant obligation is governed by the laws of Greece, then a Greek court would have to interpret the new currency law to determine its effect. That law would not necessarily convert all euro obligations into the new currency. For example, the new law might not be intended to apply where the debtor is established or incorporated outside Greece. All would depend on the interpretation and scope of the Greek currency law which, for the present, remains entirely a matter of speculation. But the working assumption must be that the Greek courts would hold that financial obligations are converted into the new currency at the prescribed substitution rate; and
(c) Where an English court has to consider the currency of obligation for debts governed by Greek law, then the staring point would be that the new Greek monetary law should be applied in accordance with its terms and the obligation is payable in the new Greek unit. The obligation would be payable in the new Greek unit if that was the effect of the Greek currency law. However, there may be exceptions to this rate. For example if Greece has withdrawn from the eurozone on a unilateral basis (i.e. in breach of the Treaty), then the English courts might decline to recognise the Greek currency law on public policy grounds and, so far as English law is concerned, the obligation would thus remain payable in euro.
In general terms, therefore, a creditor holding bonds or other obligations owing by a Greek debtor should be insulated from any new currency risk, provided that the debts in question are governed by English law. Such obligations will remain payable in euro, notwithstanding the Greek departure from the eurozone. Currency risk flowing from such a departure is thus likely to be borne principally by domestic (as opposed to international) creditors."
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Según esto, me parece que, en la deuda pública que emite el Estado griego (la privada habría que examinarla caso por caso), sometida a la ley griega, habrá que estar a lo que disponga la nueva ley griega de establecimiento de la nueva moneda (y que, es de suponer, la convertirá en su mayoría a la nueva moneda), sin perjuicio de que Tribunales extranjeros podrían negarse a aceptar esa conversión obligatoria.