Saturday, December 29, 2012 12:11 pm
Argentina to court: revert order on debt holdouts
The Associated Press
Argentine government lawyers said in papers filed late Friday that the order violates the country's sovereignty. The lawyers said the order also threatens service on at least $24 billion of the county's restructured sovereign debt, impairs the rights of third parties and puts global debt markets at risk.
"The Amended Injunctions have no basis in law, are inequitable, and threaten to wreak havoc on countless innocent third parties, which have already suffered losses due to the plunge in their bonds' value provoked by the insecurity that the Amended Injunctions have created in the market for Argentina's New York law-governed bonds," the briefing said.
"This harm to private and sovereign creditors, as well as to New York law and New York as a place to do business, will only grow if the Amended Injunctions are affirmed. "
The U.S. 2nd Circuit Court of Appeals in New York ordered the country on Oct. 26 to pay the holdouts an equal amount whenever it makes payments on other debt that has been restructured since the country's economic collapse 11 years ago.
It agreed with U.S. District Judge Thomas Griesa, who ruled that with more than $40 billion in foreign reserves, Argentina can afford to pay. The ruling gave Argentina a difficult choice: pay all bondholders equally, or pay none of them and risk going into default.
The court then returned the case to Griesa who ordered Argentina to pay the $1.33 billion into escrow for holders of its defaulted debt and banned banks and other third parties from intervening. Griesa based his ruling on the principle of "pari passu," or equal footing, which says debtors can't pick and choose between creditors.
President Cristina Fernandez called Griesa's ruling "judicial colonialism," and Argentina sidestepped the impending economic chaos when the order was suspended by the appeals court on Nov. 28.
But just the threat of the payment deadline set by Griesa had harsh outcomes. In the week after he issued his order, the cost of maintaining Argentina's overall debt soared in trading on U.S. and European bond markets and the cost of insuring those debts spiked.
"A court can arguably enjoin a foreign state from engaging in a commercial activity within the United States. But it cannot issue an order to force or preclude a foreign sovereign to act or not act within the limits of that sovereign's own territory," Argentina's brief said.
"By dictating to Argentina that it cannot pay moneys it owes to the exchange bondholders in a funds transfer in its own country, and commanding that it make a payment (including via escrow) to holdout creditors that it is precluded from paying under its own laws, the Amended Injunctions violate this fundamental principle."
Argentina, however, said it's willing to make concessions. To end the lengthy dispute, government lawyers said the country is willing to ask Congress to give holdout creditors the same treatment as those who joined a 2010 debt swap.
"The only definitive and equitable solution to pari passu claims that would bring legal and economic certainty is to treat plaintiffs and all other similarly situated claimants equitably on the same terms as participants in (Argentina's) 2010 Exchange Offer," the brief said.
The new arguments are part of the final stage of Argentina's legal battle with NML Capital Ltd., the investment fund that brought the case and that specializes in suing over unpaid sovereign debts.
The US government filed an "amicus," or friends of the court brief, late Friday backing Argentina's request for a rehearing in the case citing that the appeals court order affects US-Argentina relations, threatens the solution of future debt crises and blocks the legal immunity given to a sovereign country. It also says that it potentially blemishes the role of New York as financial center.
Argentina tarnished its reputation worldwide by engaging in the biggest sovereign debt default in history a decade ago. Since then, the government has restructured about 92 percent of its world record $95 billion debt default.
But Fernandez refuses to pay the holdouts calling NML Capital and others "vulture funds" for buying debt for pennies on the dollar in 2002, when Argentina's economy was in ruins and now wanting to collect in full.
The fiery, center-left leader says it was their loss for refusing two opportunities to swap defaulted bonds for new, less valuable bonds that the state has reliably paid since 2005.
NML Capital fund, run by billionaire Paul Singer and other plaintiffs, slammed Argentina's arguments late on Friday.
"With more than $43 billion in foreign currency reserves and tens of billions of dollars in additional resources, Argentina has the overwhelming capacity to pay the $1.3 billion it owes in this matter," Peter Truell, spokesman for NML's parent company Elliott Management Corp., told the Associated Press in e-mail.
"Today's filing by the Republic once again demonstrates Argentina's irrational persistence in evading its contractual obligations and the orders of US courts."
Oral arguments in the case are scheduled for Feb. 27 before the U.S. 2nd Circuit Court of Appeals in New York.
Associated Press writer Luis Andres Henao in Santiago, Chile contributed to this report.
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