Patrick Wautelet

Belgium: Foreign Law in Belgian Courts – From Theory to Practice

The present contribution attempts to critically describe the status of foreign law in Belgian courts. Because this status is intrinsically linked to that of conflict of laws rules, the position of the latter is also taken into consideration. An attempt is made to go beyond the mere description of principles to explain how the rules are applied in practice by courts and practitioners. The main lesson to be learned from this overview is that the status of foreign law in Belgian courts is subject to contradictory policies: on the one hand, courts and the legislator have adopted a highly ambitious policy whereby the position of foreign law is aligned with that of local law, with the consequence that it falls upon courts to determine the content of foreign law and that courts should strive to read and construe foreign law as it would be applied by foreign courts. On the other hand, Belgium has failed to adopt any mechanism to assist courts coping with this ambitious principle. This great divide between theory and practice casts a long shadow over the viability of the whole system.

The Greek Debt Restructuring and Property Rights. A Greek Tragedy for Investors

This paper examines the position of investors holding Greek sovereign bonds after the restructuring (PSI) which took place in 2012. After briefly reviewing the main features of the PSI, the paper undertakes to verify whether investors could challenge the operation on the basis of their property rights, as protected by Article 1 of the First Protocol to the ECHR. On the basis of this review, the paper concludes that there does not seem to be any room for a single answer on the Greek restructuring case. Whether or not Greece fell short of the standard of protection afforded by Article 1 of the First Protocol, depends much on the particulars of the case and specifically on the nature of the bonds and the circumstances in which they were acquired by investors. Those investors who came in at a late stage on the Greek debt market will find it much more difficult to allege that the restructuring amounted to an unlawful repudiation. On the other hand, investors who bought the bonds when they were issued and held bonds with short maturity, will be able to make a more credible case that Article of the First Protocol was not respected.