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Cert granted in that *other* Argentina case

posted by Mark Weidemaier

As Argentina-watchers know, the pari passu saga is only one aspect of the broader kerfuffle between Argentina and NML. On Friday, the U.S. Supreme Court agreed to hear Argentina's appeal of another Second Circuit decision, this one allowing NML and other judgment creditors to take broad post-judgment discovery into the country's assets. As Anna Gelpern and I have written elsewhere, creditors probably can't seize much in the way of sovereign assets, but they can use a money judgment to impose an embargo on the sovereign's commercial and financial transactions. The more you know about those transactions, the tighter and more effective the embargo.

The outcome of this case is unlikely to change the fundamental dynamic between Argentina and NML - at least not any time soon. But it offers the Supreme Court a chance to clarify the scope of a sovereign's immunity after a judgment has been rendered against it. The basic question - on which the courts of appeals have disagreed - is whether creditors must target their discovery towards identified assets that are plausibly subject to seizure. The dilemma for creditors is apparent: Without discovery, how can you identify assets that satisfy this criterion?

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