Clarin Reopening of the swap: denunciation against Boudou is expanded

Clarin

Reopening of the swap: denunciation against Boudou is expanded

 

Wednesday, June 12, 2013

 

Proyecto Sur deputy and Senate candidate Fernando “Pino” Solanas yesterday widened his denunciation before federal Judge Ariel Lijo against Vice President Amado Boudou for influence peddling and dishonoring the duties of a public official.

 

It is a complaint that Solanas had filed in May against the ex-Economy minister over ties between the Arcadia consulting firm and the government in the debt swap and restructuring of the Brady Plan.

 

According to what the deputy put forth in his filing, that consulting firm, owned by economist Emilio Ocampo and attorney Marcelo Etchebarne Mihanovich, was constituted with meager funds and only as an effect of the debt swap of 2010 and only with these persons as members.

 

The candidate for Senate of the Proyecto Sur (and ally of Elisa Carrio), asked, also, for a series of discovery measures to identify the participating bondholders and all the documentation in the possession of the banks Barclays, Citibank and Deutsche about the operation.

 

Solanas’ complaint is complemented by the one filed by Deputy Claudio Lozano of the Union Popular, an economist.

 

Boudou is implicated in the legal case in which it is being investigated if he committed the crime of influence trafficking to benefit the owners of debt bonds: the suspicion is based on the role in this operation of the Arcadia company and its ties to Boudou and other government officials.

 

Boudou’s actions in this case, according to Solanas, are centered on Articles 248 and 265 of the Nation’s Penal Code.  He said that the Vice President, when he was Economy minister, had committed these crimes because:

 

• There was an infraction of the legal and regulatory norms, specifically on the missions and functions of the Board of Research and Economic Statistics of the BCRA.  

 

• There were omissions in the performance of his functions and there is evidence of bungling or carelessness in that performance.

 

• The actions and omissions by Amado Boudou reveal a dishonoring of the duties of a public official, conforming to the principal elements of the proper activity of those who occupy the Directorate-General of Legal Affairs of the Economy sub-secretariat.

 

• There were irregular actions and infractions to legal and regulatory norms.

 

The external debt lacks economic, financial and administrative justification.

 

The complaints in the case could be considered proven.

 

Authorities at the BCRA repeatedly departed from institutional, legal and regulatory norms.

 

There was a diversion of funds in the debt operations of YPF.

 

There was omission from the BCRA as the state’s financial agent.

 

 

La Nacion

Argentina faces another lawsuit from a privatized company in the United States

 

Wednesday, June 12, 2013

 

by Martín Kanenguiser | LA NACION

 

The U.S. Supreme Court yesterday accepted review of a complaint that the company British Gas filed against Argentina for the pesification of debts and tariffs of Metrogas in 2002, after an arbitration tribunal of the United Nations granted it US$185 million in damages, which was then revoked by an appeals court in Washington.

 

The high court will receive briefs between August and September from third parties to decide if the arbitration ruling is sufficient to concede the money to the company that managed Metrogas until 2012, or if, as the judges found last year, the question should be studied by federal court.  The Supreme Court’s acceptance of the case is a negative signal for the government, because it could have denied consideration in an immediate form.  The Planning Ministry didn’t give details on the issue when asked by LA NACION.  

 

One of the attorneys representing BG, Alexander Yanos, of the firm of Freshfields Bruckhaus Deringer, confirmed to LA NACION from New York that the Supreme Court will take the case and will listen to arguments from both sides.

 

Armed with the bilateral treaty on protection of investments, BG went in 2008 to UNCITRAL, the arbitration tribunal of the UN, to settle the controversy over the measures adopted five years earlier during the Argentine crisis.  And while BG was asking for US$223 million, it was granted US$185 million.

 

In 2010, a lower court judge and then, in 2012, the appeals court in Washington, reversed this decision, finding that these kinds of cases must be settled before judges and not arbitration tribunals.  In particular, the court found that BG should have run out all legal recourses in Argentina and, 18 months after a final decision, go to arbitration. However, the British group argued that to fight in local courts would have been useless because of the firm decision of the government (backed by various judges) to not penalize the state in its lawsuits against foreign investors over measures adopted during the country’s crisis.

 

Then, BG filed a request for “certiorari” before the Supreme Court, which yesterday was accepted.  Also, the tribunal accepted that the American Association of Arbitrators, the Association of Arbitration Law Professors and Practitioners, the AWG group and the U.S. Council for International Business can file respective briefs as “friends of the court” in the coming months.

 

The American government has already filed its own brief last month, in which it upheld its position contrary to the arbitration ruling, which was not listened to by the court in accepting the case.

 

Attorney Marcelo Etchebarne, expert in debt issues, told LA NACION that “the U.S. Supreme Court, contrary to what the Solicitor General requested, and who also issued an opinion in favor of Argentina in the paris passu case, granted the appeal to British Gas for the ruling in favor of UNCITRAL; it isn’t surprising that the court is interested in an issue of international arbitration that involves sovereigns.”

 

On websites dedicated to juridical questions in the United States, yesterday the discussion among experts turned on the reach that the decision of the high court could have, as the court will clearly go beyond this litigation in particular, since it is ruling on the degree of legitimacy of arbitration tribunals.

 

Those that defend the authority of the UNCITRAL (here few cases of conflict with Argentina are concentrated, different from what happened at ICSID, the World Bank tribunal) affirmed that if the court doesn’t uphold the decision of the lower court, it will harm the validity of any other resolution through that avenue.  Also, they said that in the majority of cases reviewed by the American courts, arbitration decisions were upheld without greater formality.

 

From the other side, the American government argued that this case will not have a “systemic” effect, because the Argentine-British treaty has particular characteristics.  As such, it asked that the judges be the ones that rule on the BG complaint.  A similar discussion surrounds the case of Argentina against the holdouts in New York, which has to be decided by the court of appeals.