postings by Anna Gelpern

Central Bank Immunity - Don't Miss

posted by Anna Gelpern

This is an important intervention about a massively important topic that comes up over and over again in sovereign restructurings, and will come up in more and more interesting ways in the next few years.

Short version here.

Alter Ego and Alter Id, Venezuela Edition

posted by Anna Gelpern

Venezuela is really really careening sideways into chaotic default. We know this not just because it has been missing payments and the ISDA Determinations Committee said so, but also because the government seems to be in a hurry to hand out what assets it might have to what claimants might show up on its doorstep with a credible threat to do ... something. ... or just to make them go away and buy another five minutes of delusional gambling for resurrection.

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If I Were a Holdout ...

posted by Anna Gelpern

Bond pricing has always been a puzzle to me, so I leave it to Mitu. But one thing has bugged me for more than a year. Ever since Venezuela has joined the ranks of the walking dead, market participants have differentiated among its bond contracts in a way that might seem sensible--even sophisticated--to those who think that investors do (or should) occasionally read the small print. In particular, Venezuelan bonds that require 100% of the holders to consent to an amendment of financial terms have fetched a higher price than comparable bonds with so-called collective action clauses, or CACs, which can be amended by either 85% or 75% of the holders, depending on the bond issue. The 100% bonds also have relatively more enforcement-friendly pari passu clauses, which could make it easier to replicate the fabulously successful holdout strategy in Argentina. The price premium must reflect rational investors on the eve of default paying for the power to veto a restructuring or drop out and get paid in full, right? Not quite. As you read the bond documents, the 100>85 reasoning unravels, and the 100% bond starts looking like a pretty fishy holdout vehicle.

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Your Friendly Neighborhood Sanctions Running Strategy

posted by Anna Gelpern

We are about to hit an anniversary of sorts, a year since Venezuela was surely going to default on its debt ... except that it still hasn't, so the U.S. government has decided to nudge it along. Retroactive debt sanctions imposed on August 25 prohibit, among other things, extending new credit to the government of Venezuela and its state oil company PDVSA beyond 30 days and 90 days, respectively, as well as any transactions in previously issued government debt, and, separately, any direct or indirect, old or new bond-buying from the Venezuelan government. The sanctions are a big headache for U.S. bank compliance departments, but they also got some glorious creative juices running. Mark & Mitu offer a contrarian reading of the sanctions order and one of the general licenses issued by the Treasury's Office of Foreign Assets Control (OFAC) as part of its implementation. As M&M read it, Venezuela cannot restructure all its debt in a debt swap (that would require issuing new bonds), but it could amend some of its old bonds using collective action clauses (CACs), and gain breathing room until oil prices recover, things change, or pigs fly. 

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Venezuela Is Like ... (Part II)

posted by Anna Gelpern

Last time on Super-Sad Updates, I speculated (i) that the Venezuelan people could be in for more suffering and bondholders for more coupon payments (see Romania), (ii) that Venezuela’s complex debt stock was prone to shell games and inter-creditor conflicts, which could delay a workout (see Puerto Rico), and (iii) that a bet on PDVSA bonds over sovereign bonds today required too many assumptions to hold my shrinking attention span (but see Turkmenistan … or not). Now I try to imagine what might happen if the government did decide to restructure. It brings back memories of …

Continue reading "Venezuela Is Like ... (Part II)" »

Venezuela Is Like ... (Part I)

posted by Anna Gelpern

Market and civil society observers have taken Venezuelan debt restructuring as a certainty for more than two years, putting it in contention for the world’s slowest train wreck and quite possibly the messiest. Designs abound, but even after last weekend’s vote followed by new U.S. sanctions, too many variables remain too far up in the air to start laying the yellow brick pavers quite yet.

Depending on where you sit and how long you stare, Venezuela can present as some, none, or all of many past sovereign debt crises. The tour that starts below with broad-brush analogies is not exhaustive, but still plenty depressing.

Continue reading "Venezuela Is Like ... (Part I)" »

Puerto Rico: Just Another Deadline or the Big One?

posted by Anna Gelpern

Midnight came and went with no news of a debt deal in Puerto Rico, and no extension of a stay on creditor enforcement under PROMESA. It sure looks like we are careening into an actual sovereign-ish bankruptcy-ish filing under Title III of the law.

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Ukraine's Loss: A Skid, Not a Crash

posted by Anna Gelpern

Mark posted a lucid analysis of Ukraine's loss to Russia in London yesterday (full 107-pp opinion here). The case will surely be appealed, and will drag on for a while, alongside the many other legal, political and military disputes between Russia and Ukraine. It will settle, if ever, as part of a grand-ish bargain between the two countries. For now, neither has any reason to fold, so I am not holding my breath for quick resolution.

While we wait, I wanted to think about what this ruling might mean for sovereign debt workouts, and for Ukraine's recently-restructured bonds.

Continue reading "Ukraine's Loss: A Skid, Not a Crash" »

Puerto Rico: Colonial Chickens, Structural Priority, and Contingent Debt

posted by Anna Gelpern

It has been a humbling torrent of creativity, and I am honored to chip in a tuppence at the eleventh hour. After an existential preface, I consider how one might use (or resist using) federal credit enhancement in the inevitable debt exchange.

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Pari Passu Closing Ceremonies Quote Parade

posted by Anna Gelpern

Supplementing Mark's post, here are the many magic words, in order of their appearance in the Order ... reliving the saga like it was yesterday.

In 1994, the Republic began issuing bonds pursuant to a Fiscal Agency Agreement (“FAA”), which contains the famed pari passu clause...

Hey, it's not "equal treatment clause" anymore!

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Love and Exhaustion in Argentina

posted by Anna Gelpern

Further to Mark's post on the settlement negotiations, we now have an order from Judge Griesa that brings more love from New York to Argentina than it has seen in a decade, maybe ever.

The order, granted near-instantly on the Republic's request, tells the remaining holdouts (call them hyper-holdouts for short), to show the court by February 18 why it should not lift the pari passu injunctions. It turns the question, "Why should the court help Argentina?" into "Why not?"

Continue reading "Love and Exhaustion in Argentina" »

Puerto Rico: A Flash of Federal Ambition

posted by Anna Gelpern

After months of fielding criticism for standing idly by while Puerto Rico sank under a $72 billion debt heap, the Obama Administration is getting creative. On October 21, the U.S. Treasury, the Department of Health and Human Services, and the National Economic Council released a joint proposal for federal bankruptcy legislation to restructure all of Puerto Rico’s debts. Debt relief would come in exchange for fairly intrusive federal oversight, combined with Medicaid reform and federal tax relief to help mend the island’s fraying social safety net.

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Thoughts on the Greek Referendum and the Democracy Mismatch in Public Debt Crises

posted by Anna Gelpern

Today's Greek referendum might look like a high point for democratic accountability, but it is not. When Greek citizens vote on the demands of their government’s international creditors, the outcome will bind Greek politicians, but not the creditors that have prescribed economic policy for Greece since 2010. Instead, the European institutions and the IMF answer to a complex tangle of constituents outside Greece, including taxpayers in other countries that stand to lose money if Greece fails to pay its debts, and those who would suffer shock-waves from Greece abandoning the euro as its currency.

This democracy mismatch can lead to over-lending and over-borrowing based on flawed policies and improbable assumptions, which might have been rejected if the creditors had a more direct stake in the consequences of their prescriptions for Greece from the start. Tying a small portion of debt repayment to policy outcomes would improve accountability and help align incentives for the borrowing government and its creditors alike.

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More on AIG: Between Hysteria and Complacency

posted by Anna Gelpern

I agree with Adam about all that post-Starr hyperventilation. No, it does not mean that bailouts are over, that the Fed has been slapped down, or any of that lurid stuff. (Though tabloidness does feel strangely gratifying in financial journalism.) Nevertheless, we should be careful not to dismiss the AIG decision as a realist vignette. Its implications for crisis management will become clearer over time, and may well turn out to be important.

At first blush, Starr feels like a stock crisis move by the Court of Claims, evoking the Gold Clause cases in 1935, where the U.S. Supreme Court held that the Congress violated the 14th amendment when it stripped gold clauses from U.S. Government debt, but denied Court of Claims jurisdiction because the creditors suffered no damages. Had they gotten the gold, they would have had to hand it right over to the Feds. And if you measured the creditors' suffering in purchasing power terms, getting their nominal dollars back still put them way ahead of where they had been in 1918 thanks to all the deflation.

Putting this history together with Starr, I wonder about two implications. First, it would have to be awfully hard for a firm getting federal rescue funds in a systemic crisis to prove damages. See also the car bailout stuff. By definition, the firm's best case is the gray zone between illiquidity and insolvency (I called it "illiquency" back then). If you accept that a court is unlikely to enjoin a caper like AIG in the middle of a crisis, this gives the government a fair amount of scope to act, even if it turns out to be off on authority after the fact.

Second, the Greek mess makes me think that the real concern in crisis is not with ex ante constraints on bailouts working as planned, but rather with accidental institutional malfunction. At some point (not yet), all the sand in the wheels will create enough friction that policy makers will not be able to respond to a tail event in a sensible way. No institution would have the authority to do "whatever it takes," and no decision-maker would be willing to take the risk. Maybe this is as it should be, but it does give me pause. 

Ukraine's Bond Restructuring: Surgery, Conspiracy, and Campaign

posted by Anna Gelpern

Debt restructuring is the second largest source of outside financing for Ukraine’s new IMF program. The Fund itself brings $17.5 billion over four years; $9.6 billion comes from governments and other multilaterals (including Europe, the United States, and most recently, China), leaving $15.3 billion for the "debt operation." The jargon makes debt restructuring sound like a mix of surgery, conspiracy, and military campaign, which together pretty much sum up Ukraine's challenge.

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Russia's Bond: It's Official! (... and Private ... and Anything Else It Wants to Be ...)

posted by Anna Gelpern

Ukraine's bond restructuring talks are in high gear, and, as ever, Russia is trouble du jour. Not only is it threatening to hold out in the bond deal and take Ukraine to arbitration, Russia also seems poised to block IMF disbursements to Ukraine using an arcane Fund policy on "lending into arrears." My hunch is that this last risk is overblown, and in any event should not drive IMF policy or Ukraine's restructuring strategy. 

Continue reading "Russia's Bond: It's Official! (... and Private ... and Anything Else It Wants to Be ...)" »

Fifty Lashes and Hobson's Choice, Argentina Edition

posted by Anna Gelpern

Big day in sovereign debt. After months of kicking the can down the road and a couple of anticlimactic decisions from English courts that made no practical difference in the pari passu injunction, a giant big shoe has just dropped in the Southern District of New York. Judge Griesa ruled that Argentina's dollar-denominated local law bonds were covered by his injunction just the same as New York and English law bonds. In the process, he defined (or redefined?) the injunction super-broadly, effectively blocked Argentina from issuing new foreign currency debt under its own law, potentially expanded the reach of the pari passu clause for other sovereigns, told Argentina that it was all out of comity, and told Citi to choose between New York and Cristina Fernandez de Kirchner.

Continue reading "Fifty Lashes and Hobson's Choice, Argentina Edition" »

Ukraine: One Debt Tea Leaf in the IMF Program

posted by Anna Gelpern

The IMF has approved a new 4-year $17.5 billion program for Ukraine, with an immediate disbursement of $5 billion. This is a big economic, institutional, and geopolitical deal. I will comment on one small piece of one small piece: the treatment of Russia's $3 billion loan to the last Ukrainian government, about which I have written at various levels of weediness herehere, and here.

The IMF program is approved under the Fund's existing "exceptional access" (huge $$) policy, which has been interpreted to require debt restructuring unless the country's debt is "sustainable with high probability" (for some of the back-and-forth on the reform proposals, see here, or watch here and here). The Ukraine program therefore expressly hinges on a government and government-guaranteed debt "operation" to achieve sustainability, plus rolling over most of the debts owed by Ukrainian banks and corporations (lots of it to Russia). Brilliant minds are crunching the numbers now to figure out whether Ukraine's bondholders might get by without principal reduction, and without suspending interest payments, based on any realistic set of assumptions.

I am struck by one bit of arithmetic: Ukraine has about $7.7 billion in external sovereign debt payments due in 2015, of which $5.8 billion is principal, of which $3 billion is to Russia  (see p. 138). The IMF document contemplates $5.2 billion in financing from the "debt operation" in 2015 (see p. 12). Since 7.7-5.2=2.5, and since 2.5<3, Russia does not seem to be getting its $3 billion repayment in December. The fact that the IMF board, which includes Russia, approved this scenario, seems important. But (a) the details are super-foggy and (b) I may be missing something, like a big guarantee payment.

The IMF press release says that the debt operation must have "high participation" and be successfully concluded by the first program review, scheduled for June 15. If participation is not high, it would have to be ocean-deep. Since Russia and Franklin Templeton together likely hold more than half of the debt, a deal without both seems inconceivable. On the other hand, the top two creditors also presumably have blocking positions in lots (if not all) bonds for purposes of a restructuring vote--though other creditors could also coordinate to block votes. This will be one fascinating "voluntary" "operation."

To its credit, the IMF document highlights a slew of risks to the program and the debt restructuring operation, all of which seem scary-plausible, especially considering the optimistic gloss that must go with program approval. Buckle up. 

Sheep, Goats, and Government Debts - Happy Lunar New Year, 1937 Edition

posted by Anna Gelpern

Sheep & Goat 1Like many others, I have been struggling to figure out whether the new lunar year is a Sheep or a Goat. I found the answer last week in the archives of the League of Nations Committee for the Study of International Loan Contracts, which spent four years from 1935 to 1939 investigating why sovereign debt was so screwed up, and what to do about it. During these four years, committee notables and their experts managed to foresee just about every 21st century sovereign debt controversy, from pari passu and feckless trustees to the epic and tiresome battle between contractual and statutory sovereign bankruptcy. The 1937 meeting minutes below also show a solid grasp of Odious Debt and sovereign lemons. Some governments might walk away from their debts just because, others have good economic or moral reasons not to pay, but the creditors cannot tell the two apart. The committee saw this as a problem of "telling the sheep from the goats," and ultimately concluded that there was not much to be done about it -- but not before considering contract reforms to let creditors monitor whether loan proceeds were used for the benefit of the country.

Bottom line: you cannot tell a sovereign sheep from a sovereign goat. And 1937 was the year of the [Ram] OX (aaargh!!! How many horned animals are there ...).

Continue reading "Sheep, Goats, and Government Debts - Happy Lunar New Year, 1937 Edition" »

ICMA CACs, New York Edition - Vietnam! - and More Un-Boilerplate

posted by Anna Gelpern

Mexico's public offering with New York-style ICMA CACs is a huge deal. But it turns out that Vietnam's exempt offering on November 6, also under New York law, was there first. Since it is not a public offering, the disclosure document is not public, and the one press article describing it is behind a paywall. Here are a few bits that struck me as interesting about the three adoptions so far.

The Clause Formerly Known as Pari Passu:

Like Kazakhstan and Mexico, Vietnam fixes the pari passu clause to exclude the ratable payment interpretation. Funnily enough, the three seem to do it in slightly different ways:

Kazakhstan:

The Notes will at all times rank pari passu without preference among themselves and at least pari passu in right of payment, with all other unsecured External Indebtedness of the Issuer from time to time outstanding, provided, however, that the Issuer shall have no obligation to effect equal or rateable payment(s) at any time with respect to the Notes or any other External Indebtedness and, in particular, shall have no obligation to pay other External Indebtedness at the same time or as a condition of paying sums due on the Notes and vice versa.

Vietnam:

The Notes shall at all times rank without any preference among themselves and equally with all other present and future unsecured and unsubordinated External Indebtedness (subject to Condition 11 below [Negative Pledge]) provided, however, consistent with similar provisions in the Government’s other External Indebtedness, that this provision shall not be construed so as to oblige the Government to effect equal or rateable payment(s) at any time with respect to any such other External Indebtedness and, in particular, it shall not be construed so as to oblige the Government to pay other External Indebtedness at the same time or as a condition of paying sums due on the Notes and vice versa.

Mexico:

The debt securities rank and will rank without any preference among themselves and equally with all other unsubordinated public external indebtedness of Mexico. It is understood that this provision shall not be construed so as to require Mexico to make payments under the debt securities ratably with payments being made under any other public external indebtedness.

Majority Voting:

In substance, all three are the same as the ICMA model. They allow series-by-series, two-tier aggregated, and stock-wide aggregated votes at the option of the issuer--though they are drafted differently. Kazakhstan and Vietnam mostly use the ICMA language. Mexico is in line with its existing New York documentation, more pared down -- but really a matter of style. The voting thresholds are the same: 75% of outstanding for individual series and stock-wide votes, 66 2/3% of each series + 50% of stock for two-tier aggregated votes. In a stock-wide vote, the output must be uniformly applicable (same instrument or same menu for all).

Collective Representation and Majority Enforcement:

Kazakhstan and Vietnam have fiscal agency agreements; Mexico has a trust indenture. All three require a creditor vote of 25% to accelerate. Kazakhstan provides for a noteholder committee if bad things happen; Vietnam and Mexico do not. ICMA has recommended contract clauses on committees since 2004; some issuers in London have taken up the call, but virtually none in New York have. Note that you do not need a contract clause ex ante to form a committee ex post; in contrast, you cannot have majority voting, ranking, or trustees unless your contract provides for them in advance.

ICMA CACs v. 2.0: Mexico Moves in New York

posted by Anna Gelpern

Mexican-flag-300x225Mexico has just filed a registration statement with the SEC for New York-law bonds with a version of ICMA collective action clauses (CACs), cheered here just a few months ago, among other refinements. This is a big deal for three reasons: Mexico, New York, and the clauses. Bottom line -- a classy, confident move.

In 2003, Mexico led the market shift from unanimous consent to majority modification in New York. Once Mexico issued with CACs, everyone else followed. This time around, some expressed doubts that Kazakhstan, which adopted ICMA CACs in English-law bonds hot off the press in early October, could exert a comparable gravitational pull, especially in New York. As if to prove the point, a few Latin American issuers have issued in New York since Kazakhstan with revised pari passu clauses, but no new CACs. Mexico fixed both pari passu and CACs, and has a track record of bringing the market along.

New York is a big deal because all these contract reforms respond, at least in part, to U.S. court rulings, which (a) interpreted Argentina's pari passu clause as requiring ratable payment to holdout creditors, (b) said that CACs could cure the common cold, and (c) told market participants that they could avoid Argentina's fate by fixing their contracts. From this perspective, fixing English-law contracts is prudent; fixing New York-law contracts is imperative.

Mexico's refurbished contracts are notable in three ways.

  1. The new bonds would be issued under an indenture, with its attendant collective enforcement provisions. Holdouts would have to get 25% of their series to instruct and indemnify the trustee before bringing a lawsuit for accelerated principal. Not very mavericky.
  2. The pari passu clause has been stripped of all Latin, and disavows the ratable payment construction.
  3. ICMA majority modification terms march on in substance, but in sparser (New Yorkier?) language. Modification of key terms can now happen 

(a) with a 75% vote of each series (as in the traditional English or post-2003 New York CACs),

(b) with a 2/3 vote of the aggregated bond stock or subset, *plus* a 50% vote of each modified series (as in Uruguay et al post 2003 and in the Euro area post 2013), or

(c) with a single 75% vote of the aggregated bond stock or subset. Here the outcome must be "uniformly applicable" -- ie, everyone gets the same instrument or the same menu.

 So -- if you are into sovereign debt contracts, this is your iPhone 6. Behold the un-boilerplate.

IMF and Kazakhstan, Fixing Sovereign Debt in Unison

posted by Anna Gelpern

The IMF released its long-awaited paper on sovereign debt contract reform, advocating single-tier aggregated collective action (majority amendment) clauses and a clarification of the pari passu clause to preclude its future use to block payments on restrutured bonds, a la NML v. Argentina. An accessible summary of key points per IMF GC Sean Hagan is here. The recommendations were coordinated with ICMA (whose reform proposal is discussed here and here), as well as wealthy and emerging market governments.

Somewhat miraculously, Kazakhstan just issued a bond where it adopted the bulk of ICMA recommendations, which also puts it in line with the IMF's hot-off-the-press policy. The miracle is both in the issuer and in the timing. Kazakhstan's bond had been stop-and-go for some time (not the place one might expect experimentation). Moreover, the last time the IMF and its major shareholders advocated contract reform, it took YEARS for the first mover to emerge (Mexico). To be sure, first mover is no market shift, but a huge deal nonetheless.

I will have more on the whole subject of debt restructuring reform later, but for now, I just wonder why it was so hard the last time, and so not-nearly-as-hard this time. Is it that the market finally learned that CACs are an innocuous voting device, not the Trojan Horse of default? Is it that the Argentina mess has finally focused the minds? Is it that Kazakhstan balanced the new CACs with concessions to the creditors? Is it that none of it matters? Or that the relevant characters--government debtors, government creditors, market participants, lawyers, international organizations, and trade groups--have finally figured out how to work together?

Still thinking about the possibilities, but in all, indubitably a good thing.

Contract Exuberance

posted by Anna Gelpern

Ding Dong! The Witch is Dead! We have a contract fix against holdouts in sovereign debt restructuring. Here are my two cents on the proposed reforms, as of last Friday. Bottom line is way positive. In my admittedly biased opinion, this is unusually meaningful change. That said, after three days of celebrating in the press and debt relief circles, it is time for a bit of perspective.

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Argentina and the Swap Puzzle

posted by Anna Gelpern

President Cristina Fernandez de Kirchner has proposed a law authorizing the executive to reroute payments on the restructured bonds out of New York, and to offer all bondholders local-law bonds on 2010 exchange terms. All the buzz has been about the swap. But there is no swap on the table, no capacity to execute a swap, and no more details about the swap than there have been in the press for months. We have even had a hearing about this swap (no, Judge Griesa did not like the idea--though he will have more to say soon, I am sure).

Even if Argentina put a real proposal on the table and figured out a way to execute a swap without the help of any of the mainstream intermediaries worried about New York court orders, any new FX bonds issued in that swap would likely be covered by the same injunction that threatens Argentine-law FX bonds paid through Citi, pending appeal. (Would a swap announcement help or hurt the appeal? Hmmm....) In other words, miles to go from here to there, and nothing to act on for the bondholders just now.

On the other hand, Argentina has the capacity on its own to deposit the next bond payment at Banco Nacion. Sure, this would violate the various court orders and the indenture, but if you are a bondholder and want to get paid, you might just have a real choice come September. I still think few people will show up, for many of the same reasons that would gum up a swap--but there is a high probability of an action-forcing event here.

More to the point, any attempt at firing Bank of New York Mellon and unilateral action in contempt of court would present a real problem for BNYM, the various clearing houses, paying agents and advisers involved. I suspect more lawsuits and resignations will come before any swap is launched.

... which makes me think, again, that this was more about the 40-page retelling of the history and the politics of it all. Escalation is the message.

Escalating to Nowhere?

posted by Anna Gelpern

Here is the proposed law rerouting payments under the restructured, now-defaulted Argentine bonds away from New York. Contrary to reports, the big news is not the swap, but the unilateral attempt at firing Bank of New York Mellon and substituting Banco Nacion in Buenos Aires (or an alternative, if voted by the bondholders). Bondholders could then show up in Buenos Aires or wherever Nacion sends their money to get paid. The proposal would also reopen the 2010 swap to the restructured bondholders and the remaining holdouts.(HT Vladimir WerningKatia Porzecanski) *Correction/Clarification*: Everyone would be invited to go into the swap on 2010 terms under Argentine law and jurisdiction. Since 2010 terms are old news and local law FX bonds are subject to the injunction pending appeals, I am not sure how this helps ... not to mention the transaction costs.

Although the ultimate beneficial holders are not bound by the court orders, it is hard to see how most would get their hands on the FX without the help of entities that would either be clearly bound by or worried about New York court orders (banks, payment and clearing systems with a presence in New York). Some might show up in BA, but I am not holding my breath for a large turnout.

The move is obviously a violation of the court orders (so I guess that would be double contempt?), and not exactly in line with the indenture, which requires any replacement trustee to be a New York financial institution. But this is unremarkable--Argentina's actions so far have not exactly been about clever ways to comply (see full-page ads and ICJ lawsuit).

To me, the tone of the legislative proposal is much more remarkable than the content. It takes 40 pages to tell Argentina's version of the events, including the ways in which the U.S. court system and others have failed it. As an aggrieved sovereign, it has no choice but ...

If ever there was a U.S. strategy, it is no more. Not now, not in January. I am not holding my breath for a RUFO sunrise. For now, I am watching Bank of New York Mellon (still sitting on $539 million in limbo from the June payment) and other agents and advisers in New York. One big mess just got messier.

Twisted Logic Contagion, WaPo Edition

posted by Anna Gelpern

From today's Washington Post editorial:

And the battle between Argentina and the hedgies has certainly clarified U.S. law, to wit: If you borrow money, sooner or later, you have to pay it back.

Continue reading "Twisted Logic Contagion, WaPo Edition" »

Injunction Math: Acceleration and the Incredible Shrinking Payment Percentage

posted by Anna Gelpern

If some or all of Argentina's Exchange Bond holders accelerate their bonds after last night's default, the amount Argentina owes NML et al. under the terms of Judge Griesa's injunction could plummet.

Continue reading "Injunction Math: Acceleration and the Incredible Shrinking Payment Percentage" »

It Depends, Argentina Edition

posted by Anna Gelpern

The phrase "it depends" was invented 130 year ago by a small group of drunk lawyers from London and New York for the sole purpose of annoying first-year law students, nonlawyers, and people from civil law jurisdictions. Like all things annoying, "it depends" is enjoying a surge in popularity as tensions spike in the Argentine debt saga."It depends" is a magically useful phrase because it can cover up ignorance, describe uncertainty, or assign probabilities in a risky situation. If you are camping out in front of the Special Master's office in New York and hear "it depends" in response to a basic question, you might reasonably wonder which one it is. Here is a mini-guide: 

Continue reading "It Depends, Argentina Edition" »

Pari Passu Poignancy

posted by Anna Gelpern

It is too easy to miss poignant moments in the news avalanche of Argentina debt litigation. Here is one from Judge Griesa's monologue at the July 22 hearing:

I can't remember whether it was 2010 or 2011, but thereabouts, the attorneys for the plaintiffs requested the Court to recognize a provision which had been in the contractual documents all along but had not been relied on, and that is the pari passu provisions, essentially meaning if the republic paid certain kinds of debts, there had to be a recognition -- and I'm not trying to get into the arithmetic -- there had to be a recognition of the rights of people with judgments under the pari passu clauses, whatever they were.

Whatever they were indeed.

Argentina: The RUFO Crazy

posted by Anna Gelpern

Kudos to Joseph Cotterill at FTAlphaville for an excellent post on the obsession with the Rights-Upon-Future-Offers (RUFO) clause in Argentina's restructured bonds, which seems to be driving Argentina to a payment default on those very bonds. Judge Griesa is not buying it, though --  at a hearing on July 22, he again denied the Republic's request for a stay of his orders blocking restructured bond payments, unless Argentina pays the holdouts pro rata. He also deferred the hugely consequential decisions on paying creditors under English and Argentine-law bonds; that mess is for another post.

Continue reading "Argentina: The RUFO Crazy" »

Missed Payment Date Musings - Offshore Openings, Free Riding the Free Riders, and Argentina's "Uniqueness"

posted by Anna Gelpern

Extra! Extra!  Today is just another day in Argentina's bond saga. It may well come and go with no payments either to the NML plaintiffs or to the restructured bondholders. However, a Sunday filing by Argentina's Euro-denominated exchange bond holders might lead to substantive developments eclipsing the purely symbolic significance of a missed payment date and the start of a 30-day contractual grace period.  The Euro bond holders' move is a good place to start thinking about the next steps and beyond.

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After Argentina

posted by Anna Gelpern

It's done!  As Mark has chronicled, the U.S. Supreme Court has drawn the curtain on the pari passu drama, and separately has rejected Argentina's appeal to limit the scope of discovery by creditors with judgments against it. I am still undecided about how much I will miss it all. Meanwhile, here are two lists -- so-what and what-next.

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Ukraine's Russian Bonds - A Gazprom Clause?

posted by Anna Gelpern

About a month ago, smart folks zeroed in on a single clause in Russia's two-year $3 billion loan to Ukraine. The December 2013 loan was documented as an ordinary-looking eurobond, apart from a promise by Ukraine to keep its debt under 60% of its GDP. No other Ukrainian bond had the debt/GDP clause, which naturally looked awkward when the sole bondholder started hacking at the denominator of the debt/GDP fraction (Crimea, about 3% of GDP; east and south, about 45%).

Since then, I have communed a bit with Ukrainian bond prospectuses, and stumbled on another clause only found in the Russian bond. All of Ukraine's state and state-guaranteed foreign bonds cross-default to one another: if Ukraine skips a bond payment due in 2014, holders of the bond due in 2021 can accelerate. However, the Russian bond also cross-defaults to "any indebtedness ... owed to the Noteholder or to any entity controlled or majority-owned by the Noteholder". Compare the cross-default provision in this Ukrainian bond to this one  (search "Events of Default", "Indebtedness of Ukraine" and "Relevant Indebtedness").

One wonders whether they were thinking of Gazprom, majority-owned by the Russian government, and perennially claiming billions in arrears from Ukraine's Naftogaz. If Ukraine is late with its gas bills, Russia can accelerate its $3 billion. Since, according to Russia, Ukraine was already in gas arrears at the time the $3 billion bond was issued, that bond might have been callable at will all along.

Continue reading "Ukraine's Russian Bonds - A Gazprom Clause?" »

Pari Passu VIPs and Mexico's CAC Gravitas

posted by Anna Gelpern

Today is the day for filing amicus briefs with the U.S. Supreme Court in NML v. Argentina (pari passu case). Brazil, France, Mexico, the Jubilee Network and Nobel Laureate Joseph Stiglitz are all asking the court to take the case. Others will doubtless come in on all sides; then the court might ask for the United States to say something ... it's a long story; stay tuned.

For now, I only highlight Mexico's priceless intervention against the courts' misuse of Collective Action Clauses (CACs)  in the pari passu argument. Recall that according to the Second Circuit, NML v. Argentina has no policy significance because CACs can be used since 2003 to bind holdouts in a sovereign debt restructuring. No holdouts, no lawsuits, no pari passu. This happens to be completely wrong because CACs specifically provide for dissent and mechanisms to hold out, and because not all debt instruments have CACs.

It is one thing for me to rant about it--but Mexico has unique credibility on CACs. In February 2003, Mexico spearheaded the very market shift in New York on which the court relies to make its totally wrong statement. And this amicus is not shy about its special status:

Mexico is thus well positioned to disagree with a stated foundation for the Court’s reasoning: that contract provisions in sovereign debt instruments known as “collective action clauses,” or “CACs,” will limit the decision’s ramifications to Argentina alone. CACs permit a specified majority of bondholders to adjust the terms of sovereign bonds. While Mexico adopted CACs for its own external debt instruments in 2003, and was the first nation to do so in the modern era, Mexico also understands that CACs have clear limitations and will not eliminate the threat to orderly debt restructuring engendered by the decision below. In addition, Mexico—like other nations—has legacy debt obligations with no CAC protection at all.

Preach.

Now, whether any of this adds up to review and reversal is another story ...

My Crimean Summers and Ukraine's Odious Debts

posted by Anna Gelpern

Crimea Every elementary school summer I was shipped out of Leningrad on a two-day train journey to the Black Sea, where a succession of family members would make me eat tomatoes and roast in the sun for three months to store vitamins for the winter. A human conserve. My Soviet engineer parents would rent a room in someone's rickety dacha on the outskirts of Sevastopol--one rouble per bed, except for the high-end place with lace-trimmed pillowcases that went for one-fifty. The fellow to the right  was our landlord, already chocolate-brown in early June, sleeping it off next to his sandy-brown boxer, when we were still fresh-from-the-north gray-green (photo courtesy dad). Sevastopol was a "closed" military city then, but to me, it was one happy, sleepy, dusty morning walk to the beach, trying to spy a poppy flower, sand, salt, sand, and sleepier afternoons under the sour cherry tree, trying to spy the landlady's grandson. Bleached, salty brown with a spot of red.

Continue reading "My Crimean Summers and Ukraine's Odious Debts" »

Another Run at SCOTUS for Argentina, ISO Friends

posted by Anna Gelpern

Lascaux_01Earlier today Argentina filed its petition for Superme Court review of the Second Circuit decision in the pari passu case. You may recall that its last request was rebuffed without explanation, perhaps because it was premature -- the Second Circuit had not quite finished ruling against Argentina. Now the appeals judges are all done, and Argentina has filed the the real thing. The new petition is notable for raising a broader range of issues than the first.

This need not reflect a view that the new "question presented" on contract interpretation is a big winner. The Foreign Sovereign Immunities Act may still be Argentina's best chance for review. However, having Argentina raise the contract point hould make it easier for more would-be friends of the court to chime in on the different things they care about. France might have company this time. Mark your calendars for the last week of March. Another year, another party.

Meanwhile, Mitu Gulati and friends keep digging up more cool pari passu history. Next thing you know, those Paleolithic cave pictures will turn out to have been all about pari passu bison hunting.

OMG! SOS! SDRM! ... LOL ... (wherein we uncover the Sovereign Debt Restructuring Conspiracy)

posted by Anna Gelpern

You may have read about those radical plans by the International Monetary Fund (IMF) to force governments to default on their debts as a condition of IMF support. Debates over the place of sovereign debt restructuring in a financial crisis are getting more muddled and acrimonious, in no small part because no one wants to face the underlying governance challenge: political pressure to lend public money to contain the crisis, even if it means paying private creditors in full and adding to a sky-high pile of sovereign debt. As this year of public debt drama draws to a close, it is useful to separate fact from fiction before considering the way forward.

Continue reading "OMG! SOS! SDRM! ... LOL ... (wherein we uncover the Sovereign Debt Restructuring Conspiracy)" »

I'll See Your Pari Passu and Raise You Absolute Priority!

posted by Anna Gelpern

As a special treat for the Imperial China Bond of 1898Argentina-Is-Unique contingent, Mitu Gulati shows the way to get rich quick off recent developments in sovereign debt litigation. Bring him your tattered, your fading, your just-bought-on-eBay bonds that matured a century ago, and he will guide you to a happy retirement via the latest doctrinal shifts in sovereign immunity, statute of limitations, and intercreditor equity.

His example is especially attractive because it involves more than a promise of equal treatment, but a promise of absolute priority by the Chinese Imperial Government. If you had bought this baby, you'd be first in line. No Latin mumbo jumbo to hide behind, just a straight up problem of sovereign payment prioritization, familiar by now to all ye debt ceiling geeks (see Chapter 6).

Ah, sovereign debt -- irresistable, unenforceable, immortal.

Argentina Gets No SCOTUS Review - Yet (Yawn)

posted by Anna Gelpern

To the surprise of nobody, the Supreme Court rejected Argentina's June 2013 request to review the Second Circuit's October 2012 decision that it violated the pari passu clause in its defaulted bonds. The court gave no reason, which is normal.

The August 2013 Second Circuit decision has not yet been appealed. The 90 day clock for Argentina to file starts running after the Second Circuit rejects its en banc review petition (who knows when, but soon).

This Supreme Court rejection of the June appeal was widely expected, especially since the Second Circuit itself snarkily observed in footnote 6  of its August decision that Argentina should have waited. All it means is that the saga continues.

Argentina is not precluded from raising the issues it raised in June when it appeals the whole case again sometime later this year -- or next -- depending on how long it takes for the remaining process in the Second Circuit to run. More interestingly, as my colleague Amanda Frost has observed, SCOTUS is free to raise issues on its own if and when it were to take the case.

So please do go back to your morning coffee--the end is not in sight.

More interesting to me are the non-participation of Justice Sotomayor, and the implications from President Cristina Fernandez de Kirchner's illness. But those are for another day.

Pari Passu Wishful Thinking (Settlement Thought for the Day)

posted by Anna Gelpern

With little to add to Mark's wonderful analysis of the Second Circuit decision in NML v. Argentina and the ensuing crazy, my thoughts drift to settlement. Until recently, my entire view of this case had been premised on the two sides locked in a mortal battle, driven by factors far beyond the law and economics of the transactions at hand. I had assumed that for Argentina, it was primarily about anti-vulture politics, publicly defined as not paying NML more than the rest--while for NML, it was primarily about finding a superior enforcement path, defined as getting paid demonstrably more than the rest. By definition, neither can live while the other survives.

Contemplating recent events while cut off from civilization, something felt different.

Continue reading "Pari Passu Wishful Thinking (Settlement Thought for the Day)" »

Un-Denouement

posted by Anna Gelpern

With about 30 seconds of wi-fi, here are my two cents on top of Mark's and Stephen's. This feels weirdly like a pox-on-all-your-houses decision.

Continue reading "Un-Denouement" »

Pari Passu's Caribbean Detour

posted by Anna Gelpern

I wonder if this is how late night comedians feel about Anthony Weiner. He is, surely, the biggest gift that keeps on giving to their profession. On the other hand, it is summer, a time to relax and tell some knock-knock jokes ... but some people just cannot help themselves.

And so it is with pari passu. On the one hand, I will never have to look for content again. On the other hand, I do wish we could use the hiatus before the Second Circuit rules against Argentina to learn macrame or the Volcker Rule. But no. Another federal district judge in New York refused to dissmiss another pari passu case yesterday, and sent it full steam ahead to media frenzy.

Continue reading "Pari Passu's Caribbean Detour" »

France is Man Enough to Pari Passu (updated with link to the brief)

posted by Anna Gelpern

Just when you thought the world's economic leaders were a bunch of spineless, viewless appeasers who would sell their nearest and dearest to mollify the scary monsters who would eat them anyway ...  France saves the day! Confirming rumors that have been floating around for some weeks, the French press reports that France has filed an amicus brief with the U.S. Supreme Court urging review of the Second Circuit decision in NML v. Argentina.

The French filing is more significant now that the United States decided not to file uninvited, and dragged the IMF back with it (breaking a lot of china in the process).  With France in, the chances of the United States being asked to express its views go way up. With the United States in, the logic of holding back the IMF disappears.

The substance of the brief is, ironically, less important. The bulk goes to policy, premised on France's role chairing the Paris Club of government-to-government creditors. Like the United States and the IMF, the Paris Club is mad-mad-mad at Argentina for failing to repay billions of dollars, but France is evidently more worried about the impact of the Second Circuit decision on debt restructuring and the rest of the Paris Club business. If France sticks with it--and the Finance Minister himself sounds pretty committed--stay tuned for a wild ride!

HT Isabelle Couet (Les Echos)

Pari Passu Whiplash

posted by Anna Gelpern

The IMF will not ask the U.S. Supreme Court to review lower court decisions in the pari passu litigation--for now. This would not have been news if the IMF's intent to file an amicus brief had not been announced last week, causing a rally in Argentina's bonds. 

By all press accounts, the brief was written and ready to go until U.S. opposition killed it in a Board meeting Tuesday morning. U.S. opposition would not have been news either, had the United States not filed briefs in the case itself--twice--saying everything that the IMF was going to say, and much more. Besides, there is just no way that the brief would have been written and scheduled for Board discussion without U.S. approval. What changed?

Continue reading "Pari Passu Whiplash" »

Everyone's Got Supreme Court News - Argentina Edition

posted by Anna Gelpern

In a stunning upset of nobody's expectations, Argenitna is seeking Supreme Court review of the October 26, 2012 Second Circuit decision that it cannot pay its restructured debt unless it also pays the holdouts. Argentina has long promised to appeal all the way to the Supreme Court, and did so on the eve of the first deadline for such an appeal. No news here.

The most interesting thing about the filing is what it does not do: it does not ask the Court to overturn the Second Circuit's interpretation of Argentina's pari passu clause, only the injunction based on that interpretation. Argentina's lawyers must have made the tactical decision to focus the intervention on federal law issues of the sort SCOTUS tends to review--the Foreign Sovereign Immunities Act (FSIA)--and avoid distracting it with state law contract interpretation issues of the sort it does not. The result is that even if the Court agreed to review the case (unlikely), and Argentina prevailed (way unlikely), the interpretation of "rank payment obligations equally" as "pay ratably" would remain. This particular injunction against Argentina would fall away as impermissibly extraterritorial (restraining sovereign property outside the United States), but there would still be room to play around with the ratable payment remedy going forward, notably for other debtors, in other restructurings, maybe in other jurisdictions.

To be sure, Argentina will have another go at the Supreme Court after the Second Circuit decides the remainder of the case on the precise scope and effect of the remedy, but by then it could hardly reopen the question of what the clause means.

Otherwise, the petition reiterates the argument Argentina and the United States have made many times before, that telling Argentina to pay or not to pay someone in New York effectively constrains what it does with its treasury funds in Buenos Aires, and contravenes the express intention of FSIA to leave some judgments against sovereigns unenforced. No news here.

 

The IMF is Not/Not - NOT- Reviving Its Sovereign Bankruptcy Proposal

posted by Anna Gelpern

For all the hopers, dreamers, and scaredy-cats out there--Relax. The long-awaited IMF overview paper on sovereign debt restructuring is here, the first since 2005. And it does not revive the Sovereign Debt Restructuring Mechanism (SDRM) proposal, which died in 2003 at the hands of the United States and the big emerging markets (or more politely, "failed to command the majority needed ... due to the members' reluctance to surrender ... sovereignty"). The new paper takes great pains to establish that the core political reality has not changed, even though SDRM would have solved many of the problems with sovereign debt restructuring that have arisen in the interim. O well.

Within its crystal-clear political constraints, the Fund goes on a measured march across sovereign debt restructurings from 2005 to 2012, or from Argentina to Greece, through Belize, Jamaica, St. Kitts and Nevis. I came away thinking that the paper was not particularly radical, generally constructive, and refreshingly precise.  But it does point to potential changes.

Continue reading "The IMF is Not/Not - NOT- Reviving Its Sovereign Bankruptcy Proposal" »

Harry's Here! -- Everyone Wants a Piece of NML's Pari Passu Pie [Updated]

posted by Anna Gelpern

Just two sunny weekend days after NML et al. filed their rejection of Argentina's offer, a new batch of defaulted bond holders have come to ask the court for their piece of Argentina's pari passu distribution. The Duane Morris Individual Plaintiffs apparently believe that

[T]he only sensible resolution is a lump-sum payment of all interest and principal that has accrued and become due and payable in eleven years to all the current holders of the holdout bonds ... . Such a payment would be directed through an order for specific performance, which this Court has endorsed as the appropriate remedial device. NML Capital Ltd., 699 F.3d at 261-262.4B. [Emphasis in the original.]

NML et al. disagree and urge the court to reject the proposed amicus brief:

[T]his Court’s March 1 Order directed Argentina to state what it is prepared to pay Appellees specifically, not what it is willing to pay adversaries in other cases.

No, they are not talking about adversaries suing Argentina for unpaid paperclips -- but other bondholders under the very same 1994 Fiscal Agency Agreement that laid the golden ratable payment egg for the plaintiffs-appellees. 

Argentina, Fintech, and two groups of restructured bond holders don't want the court to friend Duane Morris either, but there is more than a whiff of we-told-you-so in their filings:

[T]he Motion demonstrates that the present appeal does not concern “only” the $1.47 billion demanded by NML and the other plaintiffs-appellees ..., but potentially the entire amount of outstanding defaulted Republic debt subject to a pari passu clause. ... [A]cceptance of the district court’s “ratable payment” formula could open the floodgates for over $15 billion in similar pari passu claims.

In retrospect, one wonders why it took Harry as long as it did to join Tom and Dick at the pari passu party. And when will Sally, Sue and Fred wake up?

UPDATE: Things happen quickly in the pari passu world. Apparently convinced that no one wanted Duane Morris at the party, the Second Circuit denied their motion to file an amicus brief earlier today. Hat-tip to Joseph Cotterill at FTAlphaville, who posts the order here.

Pay Dick, Ditch Harry: More on 'Ratable Payment' and Its Implications

posted by Anna Gelpern

Creditors owed identical amounts under identical defaulted Argentine bonds, including identical pari passu clauses, could get very different recoveries under the plaintiffs' theory of ratable payment--unless all such creditors are corralled into a mandatory class action that divvies up Argentina's surplus among them under equitable supervision of the courts.

Continue reading "Pay Dick, Ditch Harry: More on 'Ratable Payment' and Its Implications" »

NML et al Decline Argentina's Offer ... and Ratable, Elaborated

posted by Anna Gelpern

Surprise, surprise -- NML and colleagues would just as soon pass on Argentina's offer of 2010 restructuring terms. Plaintiffs' submission (ahead of schedule) is full of the sort of language I love to learn in this case and deploy on disobedient children: "plainly believes rule of law does not apply to it ... predictably and characteristically defiant ... fails completely ... astoundingly ... has the temerity to claim ... manifests yet again its contempt ... unyielding disregard for the law ..." All this in the first few pages of the filing.

Nothing astounding about this rejection. But one point in the filing is quite intriguing: the plaintiffs explain how one should deal with the prospect of future plaintiffs with the same rights as these coming to claim their own ratable payment, but finding the till empty:

Accordingly, the only amount Argentina would pay as a result of this Court affirming the district court’s Injunction is $1.47 billion, which is a mere fraction of what Argentina paid to the Exchange Bondholders in December 2012 alone. If holders of other defaulted indebtedness later bring equal treatment claims of their own, Argentina will have ample opportunity both to litigate the merits (taking into account any factors that may distinguish those bonds from the ones at issue here, including different contractual language and governing law) and to make a showing of financial need, based on circumstances then prevailing, for the district court to consider in shaping a remedy. [Emphasis in the original.]

In other words, if a sovereign borrower from Tom, Dick, and Harry pays Tom and is sued by Dick on the ratable payment theory, the borrower has to pay Tom and Dick ratably. If Harry happens to be asleep and forgets to sue, that is Harry's loss--especially so if by the time Harry wakes up, the borrower is out of money. There you have it, equitable debt collection outside bankruptcy.

Italy's Pari Passu Scrubbing

posted by Anna Gelpern

Italy does not do things half-way. Of all the pari passu clauses on the planet, it had the one that most definitely, unambiguously, no-two-ways-about-it promised ratable payment to its bondholders. In English. Just search for "ratably" here. This got Italy some bloggy grief.

After the Second Circuit interpreted Argentina's pari passu clause to mean ratable payment, some governments chose to ponder the impact of the decision in the Risk Factors section of their securities disclosure. Heads up, investors--future restructurings might be tricky!--they said. Though apparently not tricky enough to change their own contracts.

In contrast, Belize made the radical move to "clarify" its already-narrow pari passu clause to exclude the ratable payment interpretation. A new domestic law limited the government's capacity to promise ratable payment. Belize then explained in its offering documents that it understood the pari passu clause to mean ranking-only, and had no authority to agree otherwise. Even if a creditor were to tell a court later that she had meant "ratable payment," the court would know that Belize had meant ranking, and that creditors had been on notice. Contract interpretation rules frown on parties who try to enforce their private meanings when they know that the other side means something completely different.

Meanwhile, Italy quietly took the most vulnerable pari passu clause ever, deleted the ratable payment language, and added an exception for seniority conferred by treaty:

The Securities are the direct, unconditional and general and …unsecured obligations of Italy and will rank equally with all other evidences of indebtedness issued in accordance with the Fiscal Agency Agreement and with all other unsecured and unsubordinated general obligations of Italy for money borrowed, except for such obligations as may be preferred by mandatory provisions of international treaties and similar obligations to which Italy is a party. … Amounts payable in respect of principal of (and interest on) the Securities will be charged upon and be payable out of the [Treasury of Italy], equally and ratably with all other amounts so charged and amounts payable in respect of all other general loan obligations of Italy.

The new Fiscal Agency Agreement and Form of Note are here. I wonder if that treaty they are thinking about might be found here. And talked about here.

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