Stúdentablaðið - 01.02.2010, Side 35

because time and again our leaders have said publically
that we will take on obligations because of those
accounts in the UK and the Netherlands. The parliament
has made three decision in the matter, in December 2008,
August 2009 and towards the end of December 2009.
It is my opinion that it would be difficult for us politically
to now back out and say we won't pay until there is a
court decision in the matter. Even though there would be
legal grounds for it. A court decision would have been an
option to begin with, and we lawyers generally prefer that
option, that people don't take on any obligations unless
there's been a court decision.
There are also those who believe that even though we
ought to take on some obligations, they are too great
according to the present deal; that this matter could be
resolved in a way that makes our burden lighter. In that
regard, people often allude to the legislation passed in
August. The conditions in the August deal go further than
the conditions in the present law. The laws from August
contained no declaration that the state guarantee would
be applicable past 2024. Another thing was also changed
in the latest legislation, that during certain economic
difficulties there would be no payments made, neither
installments nor interest. The new law, however, stipulates
that even during economic difficulties we will always pay
the interest on the loan, but installments will be delayed.
The new law also backs down on legal conditions. First of
all there was the dedaration that if a legal party stated we
were not obliged to pay, our obligation to pay the loan
would be cancelled and thus the payment of the loan. The
other condition, the one named after Ragnar H. Hall, was
put more directly in the older law. The new law, however,
assumes that a judgment be made by the EFTA Court and
the decision of lcelandic courts may not be in opposition
to its advisory opinion."
In general, do you consider the EU's courts to be
impartial and independent?
"The EU runs these courts which employ judges that are
supposed to be independent and impartial. I don't doubt
the judges are, but however, the European Court has had
a tendency to make judgments in the EU's favour, because
that is one of the things that the judges are required to
keep in mind; that is, the unity of the union and a regard
for common aims. This may influence the court's decision
and in that sense it isn't as independent and impartial
when it comes to nations outside the EU."
The next steps
"It is my opinion that it would be difficult for us politically
to now back out and say we won't pay until there is a
court decision in the matter. The direct implication of
that would be to take the case to the lcelandic courts,
because there is no other international court available
except with the agreement of all parties. The British and
Dutch could however possibly take their case to court
somewhere the lcelandic state has assets and at least
attempt to have their claim recognised. I also believe that
if the law is rejected during the national vote we will
need to seek an agreement on the issue. That is precisely
what people need to evalute; is it likely that we will get a
better deal after a rejection than we have now, or could a
rejection mean that no deal would be reached and create
uncertainty? Then there's also the question of how other
states and the IMF will react to that situation."
Maria Elvira Mendez Pinedo,
Reader in European Law
Arguments for:
Economic. "The possible cost of not agreeing to the deal,
with regard to the currency, shortage of loans etc."
Political. "The EU wants us to honour our commitments
and be part of European society."
Arguments against:
Legal. "First of all, the legal uncertainty surrounding
this dispute is great. The biggest factors of uncertainty
have to do with state guarantee and a possible case
of discrimination when it comes to the emergency
legislation. From a legal point of view, those arguments
could go both ways because of the economic collapse in
lceland."
There could be a better flow of information
"It appears to me that due to economic and political
reasons, the decision was made in October 2008 that
lceland should pay. No legal reasons lay behind that
decision. The economic argument can be strong, and
it may be best to accept the lcesave deal. However, the
government and the administration have yet to present a
proper explanation of the economic and political reasons.
There is a certain lack of a bigger picture, which would
show you what the real consequences would be for our
society. I believe in Prime Minister Jóhanna Sigurðardóttir
and Finance Minister Steingrímur J. Sigfússon when they
say there are no other ways out of this situation; however,
the legal uncertainty is very great."
Should never have happened
"The EU's legislatory framework is powerless when it
comes to lcesave because an issue of this kind was never
supposed to happen. There were no appropriate rules
and therefore one can say that this has fallen through
the cracks. What's now happening is that two countries
{the UK and the Netherlands) are interpreting European
law in their favour. Those countries do not have legal
power to do so, that power rests with the European
Court for EU countries, or the EFTA Court for EFTA
countries. The European Commission could also send out
an interpretation which would have legal value. State
guarantee is not a given in European law, the specific
situation matters. It isn't stated anywhere in the law that
when the deposits of the DIGF run out, the state should
pay."
Is this the future we want?
"In order to gain a better understanding of the matter,
it is important to look at a report issued by the Central
Bank of Europe in 2009. One might point out that several
government said they would only bail out banks that
were solvent. Ireland was also made responsible for saving
banks that had a systematic connection to the country's
economy. There's a certain degree of discrimination in
that. In 2010, it unfortunately seems to me that this case
might be outside of EU jurisdiction and there could be
some incongruity within the EU when it comes to this. I
therefore ask, since we haven't been given a chance to
make a legal argument for our case, is this the future we
want for European nations, that big and powerful nations
can control the smaller ones? Whether it is possible to
change course and get a better deal, I just don't know.
That's something these nation states should be discussing
with each other."
Do you consider the EU to be impartial when it
comes to this case?
"To me, the EU has been too impartial because this is
a delicate matter and I feel as if they've decided to stay
out of it. But it's entirely inappropriate that a European
country which has been part of EU agreements for 16
years have all its legal rights taken away. It's not for me
to say whether lcelanders have put up enough protest.
In my opinion, this confirms that the EU does not have
the power to put in place rules for the resurrection of a
nation's economy following a bank collapse."
Do you feel the IMF is impartial in matters
concerning their member states?
"They claim to be, but if you read the criticism of Joseph
Stieglitz and Amartya Sen on modern economies and IMF
projects you might begin to doubt that. Nobody l've met
so far has said that those academics' books contain errors.
I had no particular view on the IMF but after doing some
further reading l've become concerned. So I would prefer
to borrow money from European countries or from the EU
than from the IMF. I highly encourage people to read up
on it because the world will not be the same once you've
read the criticism put forward by these academics."
Kristján Andri Jóhannsson
STÚDENTABLAÐIÐ 35