Federal Supreme Court: No Jurisdiction Over Greek Bond Litigation

von Peter Bert

As we mentioned before, the Greek debt crisis has reached the Federal Supreme Court (Bundesgerichtshof). In a decision today, the court ruled that claims brought by German holders of Greek bonds in German courts against the Hellenic Republic were inadmissible. The bondholders had sued for damages they suffered as a result of the Greek debt restructuring.

The bonds that the claimants had acquired – in Germany and through German Banks where governed by Greek law. They did not contain collective action clauses. This notwithstanding, the terms of the bonds were subsequently amended by a majority vote of the bondholders and these amendments were declared binding upon all bondholders by laws passed by the Greek parliament. The measures that were implemented contained both a 53.5% haircut and an extension of the duration of the bonds.

Today, the Federal Supreme Court dismissed the actions as inadmissible (unzulässig). The Hellenic Republic was protected by the principle of sovereign immunity against these lawsuits in Germany. Raising capital by issuing bonds, according to the court, is per se not itself an sovereign act (nicht-hoheitliches Handeln; acta iure gestionis). However, whether the Hellenic Republic was protected by sovereign immunity was not only determined by the legal nature of the relationship between the parties, but also by the nature of the acts of state which are in dispute between the parties.

Accordingly, in the case at hand, it is not the issuance of bonds or the contractual relationship between the bondholders and Greece which is relevant for decision on immunity, but the legal nature of the acts that Greece took in order to restructure its debt ...

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