The U.S. Supreme Court must soon decide whether to review a series of lower-court decisions against the Republic of Argentina, and it has begun to ask the Obama administration for its views.
In Case You Missed It: The Huffington Post Argentina's Defiance By Robert Raben, Executive Director of American Task Force Argentina April 22, 2013 The U.S. Supreme Court must soon decide whether to review a series of lower-court decisions against the Republic of Argentina, and it has begun to ask the Obama administration for its views. As a former assistant attorney general, I am familiar with the struggles and the balancing involved in weighing various legal and policy questions and deciding whether to ask the Supreme Court to review a case. But in this case, the correct call is clear: The Argentine government's behavior toward U.S. courts and U.S. judges has gone beyond contempt, and its ongoing defiance of our legal system must come to an end. Simply put, the Argentine government emphatically does not deserve the support of the U.S. government before the highest court in our land. The legal cases in question stem from a decade-long effort by the Argentine government to avoid paying its debts. In the 1990s, Argentina's democratic government borrowed billions in the international capital markets. To entice prospective lenders, Argentina issued its debt under New York law, irrevocably promising to waive its sovereign immunity and submit to the judgments of U.S. courts. These inducements were necessary, because Argentina has a long and storied history of failing to pay its obligations. In 2001, Argentina defaulted again - this time on $80 billion, which at that time was the largest sovereign default in history. But instead of engaging in the kind of good-faith negotiations that guide most sovereign-debt workouts, Argentina offered bondholders a derisory take-it-or-leave-it "exchange" amounting to dimes on the dollar. Approximately half of Argentina's foreign bondholders rejected its proposal. Since then, except for a temporary reopening of the same exchange, Argentina has steadfastly refused to pay any remaining creditors, going so far as to pass a law formally repudiating the debt. But having prospered during the last decade thanks to a commodity boom, there is no doubt that Argentina has the means to pay its unpaid creditors - its leaders simply refuse to do so. The only recourse left to Argentina's creditors was to seek enforcement in U.S. courts - and to date, those courts have handed down over 100 judgments in the creditors' favor. But Argentina's leaders have simply elected to defy these judgments. Argentina's defiance of these rulings recently crossed into the realm of the unprecedented. At a hearing last month before the Second Circuit Court of Appeals, Argentina's lawyer boorishly and openly vowed that his client "would not voluntarily obey" the court's orders. In a stunning act of public hostage-taking, the same lawyer threatened that if the court were to rule against Argentina again, then "nobody gets paid," because Argentina would simply stop paying those creditors who accepted its exchange offer. Finally, in an extraordinary insult to the judges and the United States itself, Argentina's attorney then asserted that the Argentine government would no sooner comply with a U.S. court order than the U.S. government would comply with an Iranian court order - as if the United States would ever raise money under Iranian law. Argentina's leaders have been no less defiant in their public pronouncements. Argentina's finance minister recently announced that Argentina would refuse to pay its debts "despite any ruling that could come out of any jurisdiction, in this case New York." And just days after the last court hearing, Argentine President Cristina Fernández de Kirchner thundered that the government's unpaid creditors would get "not one dollar," no matter what. Throughout, U.S. judges have stalwartly upheld the principle that our laws as written should apply equally to all who willingly submit themselves to our courts - even powerful sovereign governments. By contrast, the U.S. executive branch made the disappointing and unfortunate decision to support Argentina at the lower-court level, on the unsubstantiated grounds that holding Argentina accountable would somehow undermine the vague U.S. foreign-policy goal of promoting the orderly restructuring of defaulted sovereign debt. This misses the point: The real threat to international order and stability is Argentina's rogue behavior and the encouragement it provides to other sovereigns. Just recently, one of Portugal's leading elder statesmen cited Argentina as an example to emulate in calling on Portugal's leaders to default abruptly and leave the euro. This support for Argentina in court also works at cross-purposes to other actions taken by the federal government. For example, the administration has taken the commendable step of opposing new development loans for Argentina as an expression of disapproval for Argentina's outrageous behavior. But how can such actions be truly effective when the Kirchner administration can claim, as it has, that U.S. court filings have "validated . the general strategy of the Argentine government"? It would be downright dangerous for the Department of Justice to maintain its support for Argentina after its disgraceful displays of disrespect for the U.S. judicial system. Litigants who threaten to pick and choose the rulings they will obey threaten the rule of law itself. The administration should not give Argentina the chance to thumb its nose at our legal system on its grandest stage. Instead, it should unify its policy toward Argentina to ensure that our legal system remains the most stable and respected in the world. READ MORE (Argentina's Defiance)Robert Raben is Former Assistant Attorney General for Legislative Affairs |
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