3 NML CAPITAL, et al.,
4 Plaintiffs,
v. 08 CV 6978(TPG)
5
6
THE REPUBLIC OF ARGENTINA,
7
Defendant.
8
------------------------------x
9 New York, N.Y.
May 30, 2014
10 4:15 p.m.
11 Before:
12 HON. THOMAS P. GRIESA
13 District Judge
14 APPEARANCES
DECHERT LLP
15 Attorneys for Plaintiffs
BY: ROBERT A. COHEN
16 DENNIS H. HRANITZKY
-and-
17 FRIEDMAN KAPLAN SEILER & ADELMAN LLP
BY: EDWARD A. FRIEDMAN
18 DANIEL B. RAPPORT
-and-
19 GOODWIN PROCTER LLP
BY: ROBERT D. CARROLL
20
CLEARY GOTTLIEB STEEN & HAMILTON LLP
21 Attorneys for The Republic of Argentina
BY: CARMINE D. BOCCUZZI
22 MICHAEL BRENNAN
CARMEN CORRALES
23
DAVIS POLK & WARDWELL LLP
24 Attorneys for Citibank
BY: KAREN E. WAGNER
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
2
E5UUNMLC
1 (Case called)
2 THE COURT: What is the problem that you have?
3 MR. COHEN: Your Honor, Robert Cohen from Dechert for
4 NML.
5 Your Honor, we have a motion seeking an order.
6 THE COURT: What is the problem?
7 MR. COHEN: The problem, your Honor, is something that
8 we think is a clear violation of your Honor's orders
9 prohibiting Argentina from evading your equal treatment
10 injunction has occurred.
11 On May 23rd, we became aware -- our client became
12 aware of the publication in Argentina on our web site of a
13 memorandum that appears from Cleary Gottlieb authored by Mr.
14 Blackman, Mr. Boccuzzi and another attorney at that firm to its
15 client, a ministry of Argentina, in which, according to the
16 excerpt published, Cleary Gottlieb is counseling Argentina
17 about a plan as to how to evade the U.S. Court's jurisdiction
18 and restructure the bonds in the event --
19 THE COURT: You mean the exchange bonds?
20 MR. COHEN: The exchange bonds, your Honor.
21 -- the Supreme Court denies certiorari. We think that
22 requires the immediate attention of the Court, both because we
23 have an ethical obligation to bring to your attention what we
24 think are frauds on the Court and, also, because the Supreme
25 Court may decide the petition for certiorari as early as June
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3
E5UUNMLC
1 16th, and we need to know what those plans are in order to be
2 able to take steps to stop them by June 30th, which is the next
3 interest on the exchange bonds. The information that we have
4 is now widely disseminated on the Internet and in the Financial
5 Times, newspapers in Argentina. It is well known --
6 THE COURT: What is that information? I have gotten
7 some papers in the last few minutes which I really have not had
8 a chance to absorb in any way. So what is the information?
9 MR. COHEN: The information, your Honor, is that a
10 memorandum, a confidential memorandum, perhaps an
11 attorney-client memorandum -- I shouldn't say "perhaps," I
12 think it was intended to be attorney-client communication
13 between Cleary and Argentina dated May 2nd of this year in
14 which Argentina is given advice with respect to its options
15 should the Supreme Court deny certiorari. And among the advice
16 that appears to have been given is that they should restructure
17 the bonds outside of the jurisdiction of this Court so that the
18 equal treatment injunction cannot be enforced.
19 Now, we have been very careful not to put into the
20 public domain the full text of that memorandum. We have it and
21 we have a translation, but we think that the dissemination of
22 the information is so far in the public domain about the
23 description of it and the fact that, if we are right, that it
24 is a real memorandum, the crime-fraud exception to the
25 attorney-client privilege doctrine would clearly apply to that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
4
E5UUNMLC
1 kind of communication.
2 So we are asking your Honor to find that that document
3 is not privileged, that the advice that it gives is in
4 violation of your Honor's anti-evasion order and that Argentina
5 be compelled to tell us within 72 hours what its plans are.
6 Your Honor, we also have some language in the proposed
7 order that re-enforces and reiterates the prohibitions on the
8 conduct that Argentina is entitled to engage in, the planning
9 of a mechanism to avoid these courts. So we are asking for an
10 order that includes all of those things for the reason that we
11 have now got what may be the smoking gun.
12 You may remember, your Honor, we were here in November
13 and I was asking for discovery because after the Second Circuit
14 had affirmed your order, Argentina said they were going to
15 evade and I said, they must have a plan, the President of
16 Argentina has said that she is going to restructure these bonds
17 and have them issued out of Argentina, and I said that they
18 must have a plan.
19 And Mr. Boccuzzi and Mr. Blackman said, there is no
20 such plan. And they said, if there was such a plan, Mr. Cohen
21 would bring it to this Court.
22 And I am here today, your Honor, with that plan. And
23 I think that we are entitled to this relief. I think that the
24 conduct, if it is true, is simply outrageous.
25 THE COURT: Mr. Boccuzzi.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
5
E5UUNMLC
1 MR. BOCCUZZI: There is no smoking gun and there is no
2 plan. The Supreme Court has our cert petition and our reply
3 cert petition and is expected to issue some ruling on July 16.
4 In our reply cert petition, we make very clear that the
5 Republic will comply with the pari passu orders, but what that
6 means, given the fact that the Republic does not have the
7 resources to pay all of the holdouts is that there will likely
8 be a default, an across-the-board default. That is what we
9 have said. That is what is going on. But there is no plan to
10 evade. The status quo remains in effect.
11 In terms of this memorandum that he is talking about,
12 there is a memorandum authored by Cleary Gottlieb. It was not
13 voluntarily waived as to privilege by the Republic of
14 Argentina. It is not clear how some unauthorized individual
15 was able to get it on to a web site somewhere in Argentina, but
16 if I am allowed I would like -- and if the plaintiffs are going
17 to push this issue -- the opportunity to brief the
18 attorney-client portion of this motion. I think the privilege
19 remains in place and that is privileged material.
20 But the important thing is that the status quo which
21 your Honor was worried about was that, pending the appeals
22 here, Argentina would figure out some other way to pay the
23 performing debt so that if your Honor's orders were ultimately
24 affirmed, it would be able to keep pay the performing debt and
25 not pay the defaulted bondholders -- that has nowhere been
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
6
E5UUNMLC
1 said. There is no plan to do that. I am not sure a plan could
2 exist to do that.
3 THE COURT: There is nothing that has been said except
4 that Mr. Blackman in addressing the Court of Appeals said that.
5 He said that the Republic would not comply, and that quotation
6 is in the latest ruling of the Second Circuit.
7 MR. BOCCUZZI: But that statement which the Second
8 Circuit put in the ruling in the context of also staying to
9 give the Supreme Court an opportunity to hear our case, that
10 statement, he was saying, we would not comply by paying these
11 people, preferring them over everybody else.
12 THE COURT: It was not qualified in that way.
13 MR. BOCCUZZI: He was clear in other parts of the
14 argument, your Honor, that there would be a cataclysmic result
15 from the affirmance of the orders, i.e., a nonpayment of
16 everybody. That was part of the grounds in which the Second
17 Circuit affirmed the pari passu injunctions and found that
18 there was no Foreign Sovereign Immunities Act problem, which
19 they said, these orders don't compel the payment to any
20 bondholder.
21 THE COURT: Let's get to basics.
22 If the Republic of Argentina, indeed, is in a
23 financial condition that it cannot pay all of these
24 obligations, what does anybody in good faith do? They come to
25 the Court and there is some negotiation. Nothing like that has
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
7
E5UUNMLC
1 ever been offered. Nothing like that has ever been suggested.
2 All that has ever been done by the Republic is to refuse to pay
3 its just obligations. Obviously, there is no need to talk
4 about catastrophe. There is no need for any such talk -- I am
5 repeating myself.
6 If the Republic would turn around and act in good
7 faith, there could be a negotiation of any such issue. It is
8 done every day in the courts of this land. And that is the way
9 it can be done here. And so there is no need to talk about the
10 kind of thing you are talking about.
11 MR. BOCCUZZI: But the key point, your Honor, is that
12 there is nothing surreptitious going on. There is no secret
13 plan to evade. We have been very upfront in our public filings
14 with the courts and including, most recently, with the Supreme
15 Court, saying what our position is and what our economic
16 condition is.
17 We are still hopeful that the Supreme Court will grant
18 cert. There have been many parties supporting the grant of
19 cert, but we make clear that the consequences -- and that is
20 part of the review of the orders -- if cert is denied, that we
21 simply cannot pay everybody across the board, and we point out
22 that the result of that is a very likely imminent default.
23 So that is out there, your Honor. But what is not in
24 existence is a scheme to evade by just ignoring what this Court
25 has said and saying, fine, exchange bondholders, you want to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
8
E5UUNMLC
1 get paid, here is your money, and we are just not going to pay
2 these folks. That is not what has appeared anywhere. That is
3 not what is even in their briefs.
4 THE COURT: Isn't that suggested by this memorandum?
5 MR. BOCCUZZI: No, your Honor. Again, I really don't
6 want to end up waiving the attorney-client privilege because I
7 don't think it's been waived. But to be clear, that is not the
8 upshot of the memo. The memo goes through different scenarios
9 of what could happen, including possible settlement
10 scenarios -- the things your Honor was talking about -- and
11 then also points out, when one has a default, then one may have
12 to face an attempt to restructure those defaulted obligations
13 and to query whether that can be done consistent with the
14 outstanding pari passu orders. But there is no -- and there
15 has never been and we have never advised a client just to turn
16 their nose up to the Court's orders and to evade them.
17 And I think the proof is in the last few years, your
18 Honor's anti-evasion injunction has been in place since 2012,
19 for two years. And for two years, everybody has been status
20 quo. And why that would suddenly change at the very end when
21 we are waiting to see what the Supreme Court will do is just
22 not happening. And as your Honor said --
23 THE COURT: It will be a very important development if
24 the Supreme Court denies cert. Then, presumably, the stay
25 issued by the Second Circuit will be vacated and the matter
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
9
E5UUNMLC
1 will be back in the District Court regarding enforcement --
2 something which Mr. Blackman told the Second Circuit would not
3 be carried out. Now, if you don't think that is a problem,
4 then you don't know what the English language says.
5 Now, as far as doing anything today -- even if you
6 take the memo at its full value, what is discussed would come
7 about if the Supreme Court denied cert -- there is no way this
8 afternoon that I can have the ability to sign any order.
9 What I will do is to take the proposed orders home and
10 try to look at them. And if Cleary Gottlieb wants to give my
11 office anything, I will take a package of things home. I will
12 be home beginning Monday, but home is New York City not
13 anywhere else, but I can't do anything this afternoon.
14 MR. BOCCUZZI: Thank you, your Honor.
15 MR. COHEN: Your Honor, would you like to see the full
16 text of the memo?
17 MR. BOCCUZZI: Your Honor, I would like to be able to
18 brief the issue surrounding the memo, including the propriety
19 of in camera inspection and the like. And I can get a letter
20 brief to your Honor on this point if you would give me at least
21 so I have more than just the weekend, maybe until Tuesday, to
22 brief that issue and to provide some context, otherwise, we are
23 going to be in open court talking about the contents of a memo
24 which I believe should be treated as privileged and which also
25 doesn't support the very broad and unnecessary relief that they
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
10
E5UUNMLC
1 are seeking.
2 MR. COHEN: I am not suggesting that it be discussed
3 in open court, your Honor, just that you have it as you
4 consider the proposed order over the weekend. I think that you
5 will find it, based on its description --
6 THE COURT: I will take home what you have filed. I
7 will not go beyond that.
8 MR. BOCCUZZI: Thank you, your Honor.
9 THE COURT: Let's leave it at that.
10
11 o 0 o
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
Samstag, 31. Mai 2014
Your Honor, we have a motion seeking an order. 6 THE COURT: What is the problem? 7 MR. COHEN: The problem, your Honor, is something that 8 we think is a clear violation of your Honor's orders 9 prohibiting Argentina from evading your equal treatment 10 injunction has occurred. 11 On May 23rd, we became aware -- our client became 12 aware of the publication in Argentina on our web site of a 13 memorandum that appears from Cleary Gottlieb authored by Mr. 14 Blackman, Mr. Boccuzzi and another attorney at that firm to its 15 client, a ministry of Argentina, in which, according to the 16 excerpt published, Cleary Gottlieb is counseling Argentina 17 about a plan as to how to evade the U.S. Court's jurisdiction 18 and restructure the bonds in the event --
CLEARY GOTTLIEB STEEN & HAMILTON LLP May 2, 2014 MEMORANDUM FOR THE MINISTER OF ECONOMY AND PUBLIC FINANCE Re: Possible results of the certiorari petition and related issues regarding the debt agreement
CLEARY GOTTLIEB STEEN & HAMILTON LLP May 2, 2014 MEMORANDUM FOR THE MINISTER OF ECONOMY AND PUBLIC FINANCE Re: Possible results of the certiorari petition and related issues regarding the debt agreement
CLEARY GOTTLIEB STEEN & HAMILTON LLP
May 2, 2014
MEMORANDUM FOR THE MINISTER OF ECONOMY AND PUBLIC FINANCE
Re: Possible results of the certiorari petition and related issues regarding the debt agreement
You have solicited a memo from us that deals with (i) the possible results of the cert petition of the Republic of Argentina pending before the US Supreme Court in which a review of the Second Circuit decision is requested, (ii) the options in the event that the petition is denied, and (iii) the legal questions related to a potential settlement of the defaulted debt outside of the legal process.
I. Possible results of the certiorari petition
As you know, on February 18, 2014, the Republic presented its certiorari petition in the pari passu case. NML solicited and obtained an extension of the deadline to present its brief in opposition from March 24 to May 7, 2014.[FN 1]. The rules of the court do not impose a deadline for the presentation of the briefs in response, but for such briefs to be effective, it's necessary that the Justices and the clerks have them when they are considering the petition. The Republic's cert petition will be circulated among the Justices on May 27, 2014, so we will present our response that day or just before. The Justices will consider the petition in an internal conference, probably June 12, 2014. In the conference, the judges will vote over whether to (i) grant the petition, (ii) solicit the opinion of the Solicitor General, or (iii) deny the petition. [FN 2]. If the SC grants the petition, the Court could announce their decision during the day of the conference. If not, the Court would release an order with their decision the following Monday that, in the event of a conference on June 12, would be June 16. In the event that the Court grants the petition, shortly thereafter it would set a timeline for the presentation of briefs so that the case would be heard the following Court session, which opens October 2014. In this case, the Court would be issuing a decision in roughly June 2015.
If the Court solicits the SG's opinion, the case would essentially be suspended until he presents his brief. The SG does not have a formal deadline for submitting his brief, but they usually submit such briefs in August, December, and May, so as to fit the Court's schedule. It would seem most likely in this event that the brief be submitted in August or December. Once the US has submitted its brief, and assuming it does so in support of the Republic (which would be consistent with its position in the Second Circuit), the litigants would have a brief period in which to submit their brief in response before the cert petition is circulated for another conference at the Court. After that, it is likely that in a short time the Court would release a final decision on the cert petition. If the SG presents his brief in December or before and the Court grants the Republic's petition, the oral hearings would be set for 2014 or early 2015, and it would be likely that the Court would issue a final decision about the substance of the case in June 2015. lf the SG submits his brief in May 2015, we would have a decision over the cert petition in June 2015, but the decision over the substance of the case would occur in the following Court session.
If the Court denies the cert petition, this would essentially end the appeal. As we have recently discussed in the reunions we have held, it seems to Paul Clement and to us that a denial of the cert petition in the first opportunity that the Court has to deal with the case is the least likely scenario, but it is not impossible. If the Court denies, we could present a petition for a rehearing before the Court
emphasizing that the next debt payment is nearing, which would give the Court a final clear opportunity to avoid triggering a default These requests are virtually always denied. If we were to present such a petition, the deadline to do so would be 25 days after the date the cert petition is denied, but we would probably have to present before then because our adversaries would certainly run to Judge Griesa and argue that the stay (the order by the Second Circuit suspending the effects of the pari passu decision) should be lifted so that the Republic must pay them in their totality when they make the next debt service payment on the restructured debt on June 30. In response to this, we could argue that the stay is still valid in virtue of the petition for rehearing by the Republic. In the past, Judge Griesa has in some cases showed restraint in dealing with questions that are still in process before higher courts.
ln the event that Judge Griesa determines that the stay is no longer valid, we could also request that Griesa and/or the Second Circuit delay the execution of the pari passu order until after the June 30 debt payment has passed. Such a petition would have to be accompanied by demonstrations by the Republic that it needs additional time to comply with the pari passu orders and pay the debtors or to be able to carry on with settlement negotiations with them. If the Republic does not offer enough evidence on this issue, the most likely result is that Judge Griesa and the Second Circuit would take the posture that the pari passu orders should enter into effect because they stay became no longer valid when the cert petition was denied.
II. Options if the certiorari petition is denied
If the cert petition is denied, the Republic will have only three options:
The first option would be to pay the debt held by the holdouts entirely before the next deadline for payment of the restructured debt. Although the pari passu order would be technically satisfied if the total was paid only to NML, Aurelius, and the other litigants for whom the orders were issued, it is highly likely that the majority or all of the other litigants would immediately solicit and obtain similar orders as soon as the SC denies the cert petition. Furthermore, the legal reasoning of the Second Circuit to confirm the pari passu orders would require the Republic to pay all of the accumulated debt in default at the same time it pays NML, Aurelius, etc. Even beyond the policy of the Republic of not giving preferential treatment to the holdouts, we understand that the Republic does not in any event have the necessary resources to handle these payments at the same time it makes the payments on the restructured debt.
The second option would be to try to reach a settlement with NML and other holdouts. Keeping in mind the probable time periods between the denial of cert and the scheduled date for the next payment of restructured debt (June 30), it's difficult to predict if the time that it would take to lift the stay would allow the Republic to make the payments on restructured debt so that it has enough time to negotiate a deal. Of course, it is not clear what terms would be acceptable for the other side in this situation, and it's likely that they would demand an extremely high percentage of their claim, whether the funds for an agreement come from the Republic, the holders of restructured debt, or both. Furthermore, keeping in mind that the reasoning of the Second Circuit in their pari passu decision gives every holdout the right to veto the payment to any of the other holdouts, it's likely that, unless the settlement is struck with all of the creditors at the same time, any settlement with a given creditor would create a floor, above which the other creditors would demand greater benefits, without any mechanism requiring the creditor to accept anything less than 100 percent. In Section II below, we
consider some of the legal questions that could emerge in the context of the various settlement scenarios.
The third option would be not paying the holdouts nor the holders of restructured debt, triggering a default ordered by the courts. After such a default, the Republic would not face any legal restriction that prohibits it from restructuring all of the debt in default, both the old and the new debt, and there are ways that this could be done which would not violate the pari passu clause as interpreted by the Second Circuit.
III. Legal issues related to the potential settlement of the defaulted debt
You have informed us that various creditors and investment banks seeking to have a role in the resolution of the pari passu litigation have approached the Republic. We do not know the specific details of such a proposal. Nevertheless, we understand that they are based on the following models.
(i) the so-called "Gramercy Proposal'. In this model, a group of creditors would negotiate with NML a settlement so as to arrive at a haircut that is acceptable to them. Gramercy would then lead the process to amend the bonds issued in the swaps in 2005 and 2010 so that the holders of performing debt would cede part of the value of their bonds to NML (and presumably other holdouts) so that they receive the sum they demand under a new agreement. It has been suggested that it would be necessary for the Republic to "sweeten" the deal so that an entity of the Republic indirectly contributes funds. Then the government would carry out a swap offer consistent with the 2010 swap, so that the sum of the debt offered by the holders of restructured debt, plus the funds that the government entity and the "package'' from the 2010 swap, would be enough to reach a deal with NML and the other holdouts, and
(ii) the "intermediary" proposal through which an investment bank would help the Republic negotiate a settlement.
What follows is an analysis of the issues presented by each of these models.
A. The Gramercy Proposal
It would seem that the Gramercy Proposal would be more difficult to execute successfully. The premise that the bondholders would renounce part of the value of their bonds so that others desist in their litigation has never been put to the test. Furthermore, to arrive a value that would resolve all of the litigation that is currently pending, it would seem that funds would have to be obtained beyond the ceded bonds of current bondholders. If the funds came from an entity controlled by the Republic, it is likely that this would become public and the creditors of the Republic would make claims of alter ego and of a lack of consistency in its previously adopted postures. Finally, and most importantly, it's difficult to reach the threshold of 75 percent of the pending sums of each bond to amend every series of bonds and the 85 percent of all the total pending sums plus 66.6 percent of each corresponding bond to make possible a "cramdown'' through an aggregated vote.
We also note that although we are not familiar with the particular details of how the Gramercy Proposal would be implemented, it would present a very challenging structure. At a minimum, Argentina would have to carry out an international restructuring issue. This would mean in practical terms having to register an issue in the US, Europe, and Japan. Although this could be done, it's likely to take time and it
implies responding to disclosure requirements by the regulators, which would be challenging given the political position of Argentina.
As far as the litigation strategy, Paul Clement has suggested that if the Court in any way suspects that the pari passu problem could be easily remediated through a creditor solution, it's possible that the Court would refuse to take the case. For that reason, the Republic must be extremely about not giving the public impression that it is working on a solution between creditors before the Court resolves the cert petition.
B. Intermediary proposal
Although we are not up to speed on the details, we understand that various institutions have offered to negotiate with NML and other creditors. There are at least two important factors to keep in mind in any intermediary arrangement based on bonds. First of all, carrying out a swap offer in terms that are better than those in 2005 and 2010 could violate the RUFO clause (Rights Upon Future Offers) of the bonds already issued. The Republic could complete a judicial settlement based on bonds, but in this case we should consider if the intermediaries think they could bring the bondholders to the agreement, or if they would have to in any way "go out and sell" the deal. Second, even if the agreement issuccessful in terms of achieving the acceptance of a majority of the Republic's creditors, any creditor that remains outside the deal would have the possibility initiating a new pari passu case and obtaining an injunction impeding the payment of all of the current external debt.
For this reason – that is, that any deal that is reached, no matter how successful it is, will allow creditors outside the process to use the Second Circuit's pari passu precedent to obtain an injunction that interferes with performing debt – it would currently seem that any type of deal would not modify the problem that NML has set off.
It's for that reason that we think that, without having a the Supreme Court accept a review of the lower court's decision, the best option for the Republic could be to permit the Supreme Court to force a default and then immediately restructure all of the external bonds so that the payment mechanism and the other related elements are outside of the reach of American courts.
Argentina wants to continue paying its restructured debt. The Courts, nevertheless, have placed it in a terrible position. In a position that, unless it is reviewed by the Supreme Court, would seem to be obligating Argentina to default, because none of the intermediate agreement options resolve the dilemma created by the courts when they gave each one of the holdouts the right to interrupt payment to the rest.
We hope that the above will be useful. Please do not hesitate to contact us with any question or comment on the issues we have analyzed.
Carmen Amalia Corrales
Carmine D. Boccuzzi
Jonathan I. Blackman
May 2, 2014
MEMORANDUM FOR THE MINISTER OF ECONOMY AND PUBLIC FINANCE
Re: Possible results of the certiorari petition and related issues regarding the debt agreement
You have solicited a memo from us that deals with (i) the possible results of the cert petition of the Republic of Argentina pending before the US Supreme Court in which a review of the Second Circuit decision is requested, (ii) the options in the event that the petition is denied, and (iii) the legal questions related to a potential settlement of the defaulted debt outside of the legal process.
I. Possible results of the certiorari petition
As you know, on February 18, 2014, the Republic presented its certiorari petition in the pari passu case. NML solicited and obtained an extension of the deadline to present its brief in opposition from March 24 to May 7, 2014.[FN 1]. The rules of the court do not impose a deadline for the presentation of the briefs in response, but for such briefs to be effective, it's necessary that the Justices and the clerks have them when they are considering the petition. The Republic's cert petition will be circulated among the Justices on May 27, 2014, so we will present our response that day or just before. The Justices will consider the petition in an internal conference, probably June 12, 2014
If the Court solicits the SG's opinion, the case would essentially be suspended until he presents his brief. The SG does not have a formal deadline for submitting his brief, but they usually submit such briefs in August, December, and May, so as to fit the Court's schedule. It would seem most likely in this event that the brief be submitted in August or December. Once the US has submitted its brief, and assuming it does so in support of the Republic (which would be consistent with its position in the Second Circuit), the litigants would have a brief period in which to submit their brief in response before the cert petition is circulated for another conference at the Court. After that, it is likely that in a short time the Court would release a final decision on the cert petition. If the SG presents his brief in December or before and the Court grants the Republic's petition, the oral hearings would be set for 2014 or early 2015, and it would be likely that the Court would issue a final decision about the substance of the case in June 2015. lf the SG submits his brief in May 2015, we would have a decision over the cert petition in June 2015, but the decision over the substance of the case would occur in the following Court session.
If the Court denies the cert petition, this would essentially end the appeal. As we have recently discussed in the reunions we have held, it seems to Paul Clement and to us that a denial of the cert petition in the first opportunity that the Court has to deal with the case is the least likely scenario, but it is not impossible. If the Court denies, we could present a petition for a rehearing before the Court
emphasizing that the next debt payment is nearing, which would give the Court a final clear opportunity to avoid triggering a default These requests are virtually always denied. If we were to present such a petition, the deadline to do so would be 25 days after the date the cert petition is denied, but we would probably have to present before then because our adversaries would certainly run to Judge Griesa and argue that the stay (the order by the Second Circuit suspending the effects of the pari passu decision) should be lifted so that the Republic must pay them in their totality when they make the next debt service payment on the restructured debt on June 30.
ln the event that Judge Griesa determines that the stay is no longer valid, we could also request that Griesa and/or the Second Circuit delay the execution of the pari passu order until after the June 30
II. Options if the certiorari petition is denied
If the cert petition is denied, the Republic will have only three options:
The first option would be to pay the debt held by the holdouts entirely before the next deadline for payment of the restructured debt. Although the pari passu order would be technically satisfied if the total was paid only to NML, Aurelius, and the other litigants for whom the orders were issued, it is highly likely that the majority or all of the other litigants would immediately solicit and obtain similar orders as soon as the SC denies the cert petition. Furthermore, the legal reasoning of the Second Circuit to confirm the pari passu orders would require the Republic to pay all of the accumulated debt in default at the same time it pays NML, Aurelius, etc. Even beyond the policy of the Republic of not giving preferential treatment to the holdouts, we understand that the Republic does not in any event have the necessary resources to handle these payments at the same time it makes the payments on the restructured debt.
The second option would be to try to reach a settlement with NML and other holdouts. Keeping in mind the probable time periods between the denial of cert and the scheduled date for the next payment of restructured debt (June 30
consider some of the legal questions that could emerge in the context of the various settlement scenarios.
The third option would be not paying the holdouts nor the holders of restructured debt, triggering a default ordered by the courts. After such a default, the Republic would not face any legal restriction that prohibits it from restructuring all of the debt in default, both the old and the new debt, and there are ways that this could be done which would not violate the pari passu clause as interpreted by the Second Circuit.
III. Legal issues related to the potential settlement of the defaulted debt
You have informed us that various creditors and investment banks seeking to have a role in the resolution of the pari passu litigation have approached the Republic. We do not know the specific details of such a proposal. Nevertheless, we understand that they are based on the following models.
(i) the so-called "Gramercy Proposal'. In this model, a group of creditors would negotiate with NML a settlement so as to arrive at a haircut that is acceptable to them. Gramercy would then lead the process to amend the bonds issued in the swaps in 2005 and 2010 so that the holders of performing debt would cede part of the value of their bonds to NML (and presumably other holdouts) so that they receive the sum they demand under a new agreement. It has been suggested that it would be necessary for the Republic to "sweeten" the deal so that an entity of the Republic indirectly contributes funds. Then the government would carry out a swap offer consistent with the 2010 swap, so that the sum of the debt offered by the holders of restructured debt, plus the funds that the government entity and the "package'' from the 2010 swap, would be enough to reach a deal with NML and the other holdouts, and
(ii) the "intermediary" proposal through which an investment bank would help the Republic negotiate a settlement.
What follows is an analysis of the issues presented by each of these models.
A. The Gramercy Proposal
It would seem that the Gramercy Proposal would be more difficult to execute successfully. The premise that the bondholders would renounce part of the value of their bonds so that others desist in their litigation has never been put to the test. Furthermore, to arrive a value that would resolve all of the litigation that is currently pending, it would seem that funds would have to be obtained beyond the ceded bonds of current bondholders. If the funds came from an entity controlled by the Republic, it is likely that this would become public and the creditors of the Republic would make claims of alter ego and of a lack of consistency in its previously adopted postures. Finally, and most importantly, it's difficult to reach the threshold of 75 percent of the pending sums of each bond to amend every series of bonds and the 85 percent of all the total pending sums plus 66.6 percent of each corresponding bond to make possible a "cramdown'' through an aggregated vote.
We also note that although we are not familiar with the particular details of how the Gramercy Proposal would be implemented, it would present a very challenging structure. At a minimum, Argentina would have to carry out an international restructuring issue. This would mean in practical terms having to register an issue in the US, Europe, and Japan. Although this could be done, it's likely to take time and it
implies responding to disclosure requirements by the regulators, which would be challenging given the political position of Argentina.
As far as the litigation strategy, Paul Clement has suggested that if the Court in any way suspects that the pari passu problem could be easily remediated through a creditor solution, it's possible that the Court would refuse to take the case. For that reason, the Republic must be extremely about not giving the public impression that it is working on a solution between creditors before the Court resolves the cert petition.
B. Intermediary proposal
Although we are not up to speed on the details, we understand that various institutions have offered to negotiate with NML and other creditors. There are at least two important factors to keep in mind in any intermediary arrangement based on bonds. First of all, carrying out a swap offer in terms that are better than those in 2005 and 2010 could violate the RUFO clause (Rights Upon Future Offers) of the bonds already issued. The Republic could complete a judicial settlement based on bonds, but in this case we should consider if the intermediaries think they could bring the bondholders to the agreement, or if they would have to in any way "go out and sell" the deal. Second, even if the agreement issuccessful in terms of achieving the acceptance of a majority of the Republic's creditors, any creditor that remains outside the deal would have the possibility initiating a new pari passu case and obtaining an injunction impeding the payment of all of the current external debt.
For this reason – that is, that any deal that is reached, no matter how successful it is, will allow creditors outside the process to use the Second Circuit's pari passu precedent to obtain an injunction that interferes with performing debt – it would currently seem that any type of deal would not modify the problem that NML has set off.
It's for that reason that we think that, without having a the Supreme Court accept a review of the lower court's decision, the best option for the Republic could be to permit the Supreme Court to force a default and then immediately restructure all of the external bonds so that the payment mechanism and the other related elements are outside of the reach of American courts.
Argentina wants to continue paying its restructured debt. The Courts, nevertheless, have placed it in a terrible position. In a position that, unless it is reviewed by the Supreme Court, would seem to be obligating Argentina to default, because none of the intermediate agreement options resolve the dilemma created by the courts when they gave each one of the holdouts the right to interrupt payment to the rest.
We hope that the above will be useful. Please do not hesitate to contact us with any question or comment on the issues we have analyzed.
Carmen Amalia Corrales
Carmine D. Boccuzzi
Jonathan I. Blackman
Donnerstag, 29. Mai 2014
Deutsche Botschaft Buenos Aires Datenblatt 27.02.2014 Republik Argentinien / República Argentina 2011 2012 2013
Deutsche Botschaft Buenos Aires Datenblatt 27.02.2014
Republik Argentinien / República Argentina 2011 2012 2013
1. Bevölkerung
Einwohner in Mio 40,5 41,0 41,4
Bevölkerungsdichte (Einw./km2
ohne Antarktis) 14,5 14,7 14,8
2. Bruttoinlandsprodukt (BIP)
BIP insgesamt (zu Marktpreisen in Mrd. USD) 445,7 475,4 534,7 vorläufiger Wert
BIP p/Kopf der Bevölkerung (zu Marktpreisen USD) 11.005 11.596 12.912
reales Wachstum in v.H. (zu Festpreisen 1993) 8,9 *) 1,9 *) 3,0
Inflationsrate Verbraucherpreise (in %) 9,2 **) 10,8 **) 10,9 **)
Arbeitslosenquote (in %) 6,7 6,9 6,4
3. Staatshaushalt
Einnahmen in Mrd. USD 2) 109,4 111,9 81,0 ***) Stand 3. Q. 2013
Ausgaben in Mrd. USD 2) 108,2 123,2 84,4 ***) Stand 3. Q. 2013
Haushaltsüberschuß in Mrd. USD 2) 1,2 -11,3 -3,4 ***) Stand 3. Q. 2013
Primärüberschuss (einschl.Provinzen) in Mrd. USD 2) 1,1 -0,9 1,1 ***) Stand 3. Q. 2013
Primärüberschuß (einschl.Provinzen) in v.H. des BIP 0,3 -0,2
4. Zahlungsbilanz in Mrd. USD 1)
Leistungsbilanz in Mrd. USD -1,57 0,5 -2,9 ***) Stand 3. Q. 2013
davon Handelsbilanz in Mrd. USD 10,01 12,7 9,0
Export von Gütern (FOB) 84,0 80,9 83,0
Import von Gütern (CIF) 73,9 68,5 74,0
davon Dienstleistungsbilanz in Mrd. USD -2,2 -3,5 -3,9 ***) Stand 3. Q. 2013
davon Erwerbs-u. Vermögenseinkommen (Saldo) Mrd. USD -12,0 -11,3 -8,4 ***) Stand 3. Q. 2013
Kapitalbilanz in Mrd. USD -0,9 -3,4 -3,0 ***) Stand 3. Q. 2013
Devisenreserven in Mrd. USD 2) 46,4 43,3 30,6
Bestandsveränderung der Devisenreserven in Mrd. USD -6,11 -3,31 12,69
5. Verschuldung in Mrd. USD 2)
Bruttoverschuldung in Mrd. USD 179,0 197,5 196,1 ***) Stand 3. Q. 2013
Bruttoverschuldung in v.H. des BIP 40,2 44,9 43,6 ***) Stand 3. Q. 2013
Außenverschuldung in Mrd. USD (öff. und privat) 139,7 141,9 133,7
Außenverschuldung in v.H. BIP (öff. und privat) 31,3 29,8 25,0
6. Bilaterale Beziehungen
Außenhandel mit Deutschland:
Einfuhren (gem. Stat. B-Amt) in Mrd. Euro 2,256 1,943 1,675
Ausfuhren (gem. Stat.B-Amt) in Mrd. Euro 2,682 2,710 2,849
Stellenwert des Handels:
Deutschland: Positionen Import / Export 43/45 46/45 51/45
Argentinien: Positionen Import / Export 4/6 4/9 4/9
Dt. Direktinvestitionen (Saldo Kapitalexport) in Mio. Euro -218,0 -401,0 noch nicht verfügbar
Länderklassifizierung für dt. Exportkreditgarantien Kategorie 7 Kategorie 7 Kategorie 7
Finanzbeziehungen (FZ/TZ) - - - - - -
Länderrisiko per Jahresende 926 1.002 808
7. Währung
1) Jahresdurchschnittskurs ARS/USD (gem. Bundesbank) 4,13 4,55 5,48
2) Kurs per Jahresende ARS/USD (gem. Bundesbank) 4,30 4,92 6,52
Investitionsschutzvertrag vom 09.04.1991, in Kraft seit 08.11.1993
Doppelbesteuerungsabkommen vom 13.07.1978, in Kraft seit 25.11.1979
*)
**)
***)
Quellen: DEU: Stat. Bundesamt, Bundesbank / ARG: INDEC, BCRA, MECON
Bis einschl. 2012 gehen die Berechnungen der Regierung deultich von denen privater Wirtscahftsforscher auseinander. (2012: Regierung +1,9%, Private max. +1% bis
leichtes Minuswachstum; 2011: Regierung 8,9%, priv. Schätzungen ca. 7%; 2010: Regierung +9,2%, priv. Schätzungen ca. 8,1%).
Seit 2007 liegen offizielle Angaben und private Schätzungen weit auseinander. Nach privaten Schätzungen beträg
http://www.auswaertiges-amt.de/cae/servlet/contentblob/619158/publicationFile/191500/Wirtschaftsdatenblatt_pdf.pdf
Republik Argentinien / República Argentina 2011 2012 2013
1. Bevölkerung
Einwohner in Mio 40,5 41,0 41,4
Bevölkerungsdichte (Einw./km2
ohne Antarktis) 14,5 14,7 14,8
2. Bruttoinlandsprodukt (BIP)
BIP insgesamt (zu Marktpreisen in Mrd. USD) 445,7 475,4 534,7 vorläufiger Wert
BIP p/Kopf der Bevölkerung (zu Marktpreisen USD) 11.005 11.596 12.912
reales Wachstum in v.H. (zu Festpreisen 1993) 8,9 *) 1,9 *) 3,0
Inflationsrate Verbraucherpreise (in %) 9,2 **) 10,8 **) 10,9 **)
Arbeitslosenquote (in %) 6,7 6,9 6,4
3. Staatshaushalt
Einnahmen in Mrd. USD 2) 109,4 111,9 81,0 ***) Stand 3. Q. 2013
Ausgaben in Mrd. USD 2) 108,2 123,2 84,4 ***) Stand 3. Q. 2013
Haushaltsüberschuß in Mrd. USD 2) 1,2 -11,3 -3,4 ***) Stand 3. Q. 2013
Primärüberschuss (einschl.Provinzen) in Mrd. USD 2) 1,1 -0,9 1,1 ***) Stand 3. Q. 2013
Primärüberschuß (einschl.Provinzen) in v.H. des BIP 0,3 -0,2
4. Zahlungsbilanz in Mrd. USD 1)
Leistungsbilanz in Mrd. USD -1,57 0,5 -2,9 ***) Stand 3. Q. 2013
davon Handelsbilanz in Mrd. USD 10,01 12,7 9,0
Export von Gütern (FOB) 84,0 80,9 83,0
Import von Gütern (CIF) 73,9 68,5 74,0
davon Dienstleistungsbilanz in Mrd. USD -2,2 -3,5 -3,9 ***) Stand 3. Q. 2013
davon Erwerbs-u. Vermögenseinkommen (Saldo) Mrd. USD -12,0 -11,3 -8,4 ***) Stand 3. Q. 2013
Kapitalbilanz in Mrd. USD -0,9 -3,4 -3,0 ***) Stand 3. Q. 2013
Devisenreserven in Mrd. USD 2) 46,4 43,3 30,6
Bestandsveränderung der Devisenreserven in Mrd. USD -6,11 -3,31 12,69
5. Verschuldung in Mrd. USD 2)
Bruttoverschuldung in Mrd. USD 179,0 197,5 196,1 ***) Stand 3. Q. 2013
Bruttoverschuldung in v.H. des BIP 40,2 44,9 43,6 ***) Stand 3. Q. 2013
Außenverschuldung in Mrd. USD (öff. und privat) 139,7 141,9 133,7
Außenverschuldung in v.H. BIP (öff. und privat) 31,3 29,8 25,0
6. Bilaterale Beziehungen
Außenhandel mit Deutschland:
Einfuhren (gem. Stat. B-Amt) in Mrd. Euro 2,256 1,943 1,675
Ausfuhren (gem. Stat.B-Amt) in Mrd. Euro 2,682 2,710 2,849
Stellenwert des Handels:
Deutschland: Positionen Import / Export 43/45 46/45 51/45
Argentinien: Positionen Import / Export 4/6 4/9 4/9
Dt. Direktinvestitionen (Saldo Kapitalexport) in Mio. Euro -218,0 -401,0 noch nicht verfügbar
Länderklassifizierung für dt. Exportkreditgarantien Kategorie 7 Kategorie 7 Kategorie 7
Finanzbeziehungen (FZ/TZ) - - - - - -
Länderrisiko per Jahresende 926 1.002 808
7. Währung
1) Jahresdurchschnittskurs ARS/USD (gem. Bundesbank) 4,13 4,55 5,48
2) Kurs per Jahresende ARS/USD (gem. Bundesbank) 4,30 4,92 6,52
Investitionsschutzvertrag vom 09.04.1991, in Kraft seit 08.11.1993
Doppelbesteuerungsabkommen vom 13.07.1978, in Kraft seit 25.11.1979
*)
**)
***)
Quellen: DEU: Stat. Bundesamt, Bundesbank / ARG: INDEC, BCRA, MECON
Bis einschl. 2012 gehen die Berechnungen der Regierung deultich von denen privater Wirtscahftsforscher auseinander. (2012: Regierung +1,9%, Private max. +1% bis
leichtes Minuswachstum; 2011: Regierung 8,9%, priv. Schätzungen ca. 7%; 2010: Regierung +9,2%, priv. Schätzungen ca. 8,1%).
Seit 2007 liegen offizielle Angaben und private Schätzungen weit auseinander. Nach privaten Schätzungen beträg
http://www.auswaertiges-amt.de/cae/servlet/contentblob/619158/publicationFile/191500/Wirtschaftsdatenblatt_pdf.pdf
Argentina to Repay Paris Club Debt 13 Years After Record Default
Argentina to Repay Paris Club Debt 13 Years After Record Default
Save
THE PARIS CLUB AND THE ARGENTINE REPUBLIC AGREE TO A RESUMPTION OF PAYMENTS AND TO CLEARANCE OF ALL ARREARS
THE PARIS CLUB AND THE ARGENTINE REPUBLIC AGREE TO A RESUMPTION OF PAYMENTS AND TO CLEARANCE OF ALL ARREARS
THE PARIS CLUB AND THE ARGENTINE REPUBLIC AGREE TO A RESUMPTION OF PAYMENTS AND TO CLEARANCE OF ALL ARREARS
The representatives of Paris Club creditors and of the Government of the Argentine Republic met on 28 and 29 May 2014 and agreed on an arrangement to clear debt in arrears due to Paris Club creditors over a five year period.
The scheme offers a framework for a sustainable and definitive solution to the question of arrears due by the Argentine Republic to Paris Club creditors, covering a total stock of arrears of USD 9.7 billion, as of 30 April 2014. It provides a flexible structure for clearance of arrears within five years including a minimum of USD 1150 million to be paid by May 2015, the following payment being due in May 2016.
During the meeting, the delegation of the Argentine Republic provided a description of the economic and financial situation of its country and presented the measures implemented by the Argentine Government aimed at enhancing inclusive growth and strengthening resilience to external shocks.
Paris Club creditors welcomed progress made by the Argentine Republic towards the normalization of its relations with creditors, the international financial community and institutions, following the 2001 crisis.
Realization of initial payment under a formal commitment of Argentina to fully clear its arrears is a necessary and important step for the normalization of financial relationships between Paris Club creditors and Argentina. Paris Club members' export credit agencies that wish to do so will resume their export credit activities.
Background notes
1. The Paris Club was formed in 1956. It is an informal group of creditor governments from major industrialized countries.
2. The members of the Paris Club which participated in the Joint Declaration were representatives of the governments of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland, the United Kingdom, and the United States of America. Israel also participated in this Joint Declaration.
Observers at the meeting were representatives of the governments of Australia, Norway, the Russian Federation, as well as the World Bank, the Inter-American Development Bank, the European Commission and UNCTAD, who did not participate in the negotiations.
3. The delegation of the Republic of Argentina was headed by Dr. Axel Kicillof, Minister of Economy and Public Finance. The meeting was chaired by Mr. Ramon Fernandez, Chairman of the Paris Club.
The representatives of Paris Club creditors and of the Government of the Argentine Republic met on 28 and 29 May 2014 and agreed on an arrangement to clear debt in arrears due to Paris Club creditors over a five year period.
The scheme offers a framework for a sustainable and definitive solution to the question of arrears due by the Argentine Republic to Paris Club creditors, covering a total stock of arrears of USD 9.7 billion, as of 30 April 2014. It provides a flexible structure for clearance of arrears within five years including a minimum of USD 1150 million to be paid by May 2015, the following payment being due in May 2016.
During the meeting, the delegation of the Argentine Republic provided a description of the economic and financial situation of its country and presented the measures implemented by the Argentine Government aimed at enhancing inclusive growth and strengthening resilience to external shocks.
Paris Club creditors welcomed progress made by the Argentine Republic towards the normalization of its relations with creditors, the international financial community and institutions, following the 2001 crisis.
Realization of initial payment under a formal commitment of Argentina to fully clear its arrears is a necessary and important step for the normalization of financial relationships between Paris Club creditors and Argentina. Paris Club members' export credit agencies that wish to do so will resume their export credit activities.
Background notes
1. The Paris Club was formed in 1956. It is an informal group of creditor governments from major industrialized countries.
2. The members of the Paris Club which participated in the Joint Declaration were representatives of the governments of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland, the United Kingdom, and the United States of America. Israel also participated in this Joint Declaration.
Observers at the meeting were representatives of the governments of Australia, Norway, the Russian Federation, as well as the World Bank, the Inter-American Development Bank, the European Commission and UNCTAD, who did not participate in the negotiations.
3. The delegation of the Republic of Argentina was headed by Dr. Axel Kicillof, Minister of Economy and Public Finance. The meeting was chaired by Mr. Ramon Fernandez, Chairman of the Paris Club.
Mittwoch, 28. Mai 2014
While the borrower is yet to make an official announcement, BNP Paribas and Citigroup are thought to have been mandated on the deal after arranging meetings with investors in Europe and the US over the past month.
While the borrower is yet to make an official announcement, BNP Paribas and Citigroup are thought to have been mandated on the deal after arranging meetings with investors in Europe and the US over the past month.
ShareFreitag, 9. Mai 2014
Holdouts add ‘amicus’ against Argentina in the U.S. Courts
Holdouts add ‘amicus’ against Argentina in the U.S. Courts
El Cronista
May 8, 2014
The holdouts yesterday asked the U.S. Supreme Court to reject the main proceedings against Argentina and uphold the ruling that orders the country to pay 100% of the debt in default in cash, in a brief filed with the Court. The investment fund NML Capital, of Paul Singer, accompanied its brief with a weighty amicus curiae, like the former Attorney General under the presidency of George W. Bush.
It is the main case that pits the country against the holdouts, known as pari passu. NML Capital is calling for "equal treatment" from the country and demands collection on bonds in default for US$ 1.5 billion, between principal and punitive interests. It has a ruling in its favor from New York Judge Thomas Griesa, upheld by the Appeals Court of the Second District of that State. The rulings require the country to pay and that obligation extends to agents for the normalized debt, such as Bank of America: if Argentina does not pay, the court demands that the bonds in default be settled from the payments sent for the swap bonds, which would leave the country in technical default.
Argentina appealed to the Supreme Court on the grounds that such rulings violate federal laws such as the law of sovereign immunity. The Argentine position was supported by firm amicus curiae, like from the French government. Also supporting the country were Brazil and Mexico. The United States anticipated that, in this case, it will support the arguments of the Argentine government.
Yesterday it was the turn of the holdouts to present their arguments. NML Capital insisted that the case should be settled in the New York courts, since that is the law which Argentina submitted to in its bonds, and that the judgments in their favor do not violate federal law. This was backed by the former Attorney General of United States from the Bush era, Michael Mukasey, and five former Federal judges.
The Supreme Court, which heard from both sides in a related case known as Discovery in late April, has not decided whether it will accept the case yet. The chances for Argentina, according to experts, are minimal. If the Court takes the case, the country will gain months in time and can reach next year with a decision in abeyance. That is the best of all possible worlds for the moment.
With that perspective on the horizon, the government began a series of reserved negotiations with the vulture funds, through third parties. The most notorious was the one led by the “friendly” investment funds Gramercy and Fintech, which proposed to Singer that they would hand over part of their debt as a plus to the reopening of the swap, still suspended. For the moment, no negotiations succeeded.
Consulted in this regard, Cabinet Chief Jorge Capitanich didn’t deny negotiations with the holdouts. "It is not timely or convenient or prudent to issue value judgments or opinions with respect to a matter that is being tried in court,” he said. "Any communication by the Republic of Argentina is done through the lawyers who are handling the case or through official communications of the Economy Ministry," he continued.
Holdouts suman ‘amicus’ contra Argentina en la Corte de Estados Unidos
El Cronista
May 8, 2014
The holdouts yesterday asked the U.S. Supreme Court to reject the main proceedings against Argentina and uphold the ruling that orders the country to pay 100% of the debt in default in cash, in a brief filed with the Court. The investment fund NML Capital, of Paul Singer, accompanied its brief with a weighty amicus curiae, like the former Attorney General under the presidency of George W. Bush.
It is the main case that pits the country against the holdouts, known as pari passu. NML Capital is calling for "equal treatment" from the country and demands collection on bonds in default for US$ 1.5 billion, between principal and punitive interests. It has a ruling in its favor from New York Judge Thomas Griesa, upheld by the Appeals Court of the Second District of that State. The rulings require the country to pay and that obligation extends to agents for the normalized debt, such as Bank of America: if Argentina does not pay, the court demands that the bonds in default be settled from the payments sent for the swap bonds, which would leave the country in technical default.
Argentina appealed to the Supreme Court on the grounds that such rulings violate federal laws such as the law of sovereign immunity. The Argentine position was supported by firm amicus curiae, like from the French government. Also supporting the country were Brazil and Mexico. The United States anticipated that, in this case, it will support the arguments of the Argentine government.
Yesterday it was the turn of the holdouts to present their arguments. NML Capital insisted that the case should be settled in the New York courts, since that is the law which Argentina submitted to in its bonds, and that the judgments in their favor do not violate federal law. This was backed by the former Attorney General of United States from the Bush era, Michael Mukasey, and five former Federal judges.
The Supreme Court, which heard from both sides in a related case known as Discovery in late April, has not decided whether it will accept the case yet. The chances for Argentina, according to experts, are minimal. If the Court takes the case, the country will gain months in time and can reach next year with a decision in abeyance. That is the best of all possible worlds for the moment.
With that perspective on the horizon, the government began a series of reserved negotiations with the vulture funds, through third parties. The most notorious was the one led by the “friendly” investment funds Gramercy and Fintech, which proposed to Singer that they would hand over part of their debt as a plus to the reopening of the swap, still suspended. For the moment, no negotiations succeeded.
Consulted in this regard, Cabinet Chief Jorge Capitanich didn’t deny negotiations with the holdouts. "It is not timely or convenient or prudent to issue value judgments or opinions with respect to a matter that is being tried in court,” he said. "Any communication by the Republic of Argentina is done through the lawyers who are handling the case or through official communications of the Economy Ministry," he continued.
Holdouts suman ‘amicus’ contra Argentina en la Corte de Estados Unidos
Mittwoch, 7. Mai 2014
new details of a high-profile "friend-of-the-court" brief, expected to be filed Wednesday by former Attorney General Michael B. Mukasey and five other former federal judges.
|
Ambito Financiero said Argentina is taking proposals from UBS AG, Goldman Sachs Group Inc. and HSBC Holdings Plc to settle with creditors, which may include swapping the bonds for new notes and buying the untendered debt from the holdouts.
Elliott Bemoans ‘Radio Silence’ as Bonds Soar: Argentina Credit
Save
Abonnieren
Posts (Atom)