Clauses & Controversies

Why Do We Care Who is Behind HRB’s Sri Lankan Lawsuit? The Hamilton Bank litigation against Sri Lanka appears to be reaching the end. Or is it? The stays that were granted during restructuring talks have implications for future sovereign debt restructurings, we think. Especially Venezuela’s restructuring, which is going to be a huge undertaking. And then, there may be more drama to come in the HRB...

Greece’s (Ratings) Rise From the Ashes – Wow, but also How? We study sovereign restructurings, which means we primarily study countries going into and struggling to get out of crisis. Serial defaulters such as Argentina and Ecuador are frequent topics on our podcasts. And given how bad things were a decade ago, and its history of frequent defaults before that, we might have expected that Greece wo...

Getting "J. Screwed" Sounds Better than Getting "Argentina'd" In the world of corporate debt, everyone seems to be talking about "Liability Management Exercises," where a borrower, with a subset of creditors, exploits loose loan covenants in ways that leave other creditors screaming mad. Even better, these LME techniques have clever names: "trap doors," getting "J. Screwed," etc. And while the wor...

Is Sri Lanka’s Loss Reinstatement Provision a Penalty? Two of our favorite things to talk about are innovative contract clauses and ancient illogical contract doctrines that unexpectedly bite in the ass. A few weeks ago, we walked through the Loss Reinstatement provisions for Ghana and Zambia. We asked the question of whether those provisions might run afoul of the antiquated and bizarre (to us) a...

Sri Lanka's New MFC Clause — Have "Contorts" Arrived in Sovereign Debt? The doctrine of tortious interference with contracts is one of several that sits at the intersection of tort and contract law. These "contorts" confuse law students — lawyers and law professors too! — but can be important in practice. If not anticipated, they can create problems for unsuspecting parties and lawyers. Has Sri La...

YPF and Argentina’s Contributions to International Law Argentina owes over $16 billion in connection with its nationalization of state oil company YPF. A federal judge in the Southern District of New York is considering whether to order Argentina to hand over its shares in YPF — technically located outside the United States — to pay part of the judgment. Can it do that? Paul Stephan (Virginia) joi...

The Penalty Doctrine in Contract Law We've never been fans of the contract law rule against penalties. Why can't parties (sophisticated ones at least) agree to suffer a penalty in the event of breach? We’d ordinarily avoid this topic, because the doctrine makes little sense and the issue doesn’t come up much in the sovereign debt world. But recently, a couple of sovereign restructurings (Ghana and...

A New Competition For Law (and Jurisdiction)? Jurisdictions famously compete for businesses to use their corporate law. Less discussed is the competition for having one’s law chosen to govern contracts. But it happens. Sovereign debt lawyers in England and New York can, if they have a few drinks in them, can be quite entertaining in their sniping at each other about whether English or New York law...

An Execution Sale is Not a Receivership. (Right?) Creditors of Venezuela and PDVSA, its state oil company, have forced an execution sale of PDVSA's only US asset – which happens to be the ultimate parent company of CITGO. The federal judge overseeing the process has tried to keep things orderly, but the inter-creditor fighting is getting juicy. Some lower priority creditors have filed new lawsuits...

Hamilton Bank v. Sri Lanka: What the $@#$ ? Accusations that Hamilton Bank is a giant fraudster stealing depositor funds, bizarro requests from Hamilton to the court that other creditors be constrained in using their contract rights against it, an amicus intervention in the case to say nothing at all . . . and on and on. This case gets more and more bizarre, which makes us suspect that whatever is...

Zambia’s Restructuring: A Post-Mortem Zambia’s recently concluded restructuring seemed to drag on forever, debilitated by conflicts among the various creditor groups. Why did these different groups think the others were being unreasonable in their demands? And what can we learn from what happened? Our guest is one of the keenest observers in the sovereign debt world, who followed this restructurin...

The Champerty Show Ah, Champerty. Perpetual runner-up, to the doctrine of consideration, in the Stupidest Legal Rule pageant. Why do directly (e.g., via the abuse of process claim) what you can do clumsily and indirectly (by limiting an injured party’s access to finance)? But what do we know? Actually, not much. We do know that Venezuela/PDVSA won a very interesting Champerty case in the Southern...

IMF Rescues Pakistan From the Brink of Default (Again) Pakistan looks to be in the process of finalizing yet another IMF program. Yet again, it has been rescued from the brink of default with a bailout justified by some heroic assumptions about how a state of sustainability will magically materialize. Why? Our guest, Zohra Ahmed, of Boston University Law School, has a theory: that these bailouts (...

A Better Way to Freeze (and Seize?) Russian Assets? Ever since Russia invaded Ukraine in 2022, there has been talk of what international law doctrines might be utilized to induce Russia to back off. One of those doctrines that has been whispered about is now, thanks to a wonderful new article by our guest, international law guru and Yale Law professor, Oona Hathaway, is that of Countermeasures. Oo...

Cambodia’s Debts to the US: How “Dirty” Are They? Roughly a half century ago, in the 1970s, the US infamously bombed Cambodia. Less known is that the US, through a “Food for Peace” program, made a series of loans to the somewhat dodgy government of General Lon Nol. The loans were made, at least in part, to assist Cambodians displaced by the bombings. Fast forward a few decades, the US government p...

Ukraine's Preliminary Debt Restructuring Deal Ukraine reportedly has reached terms with a subset of its bondholders, agreeing to restructure the country's roughly $24 billion in bond debt. What to make of the deal? It seems (to our view) to be premised on the IMF's entirely unrealistic assumptions about Ukraine's future debt repayment capacity. The reports we have seen about deal terms also don't...

Tortious Interference and Inter-Creditor Duties Creditors in sovereign debt restructurings often complain about other creditors. And creditors often try to limit what other creditors get (at least indirectly, via most favored nations clauses, comparability of treatment, etc.). Can these efforts sometimes create a risk of liability? Does that risk even extend to official creditors? In the recent Za...

El Salvador’s Warrants: Bukele’s Folly? El Salvador has issued a new bond, using part of the proceeds to buy back some bonds that mature in the relatively near term. The issuance includes a detachable warrant that pays up to an additional 4% if El Salvador does not get an IMF program in place soon (or achieve a higher credit rating). The issuance has been characterized as a way to convince investo...

The Latest in the Argentine GDP Warrant Saga: Drafting Goof or Sneaky Drafting? There are so many intriguing aspects of the latest installment of the Argentine GDP Warrant Saga. This time, from Judge Preska in the SDNY, Argentina scores a big, and for us, totally unexpected victory. Argentina’s lawyers, at a very late stage, discovered a magic bullet that no one seems to have realized was there. M...

Lessons from the 1980s Debt Crisis The 1980s debt crisis began in Mexico and engulfed countries around the world, leading, via the Brady Plan, to the revival of the bond markets. Beyond that, we confess to relatively little knowledge about this fundamental episode in sovereign debt history. For so many of the leading lights of the contemporary sovereign debt world, the Latin American debt crisis w...

A Way to Use Frozen Russian Assets to Help Ukraine? There has been much chatter lately about a proposal from Lee Buchheit, Daleep Singh and Hugo Dixon to address concerns in Western nations about using frozen Russian assets to get Ukraine much needed war financing. One might ask why these nations are so concerned about confiscating Russian assets when they have already frozen the assets, seemingly...

Ukrenergo Confusion Rumor has it that holders of bonds issued by Ukrenergo, the state-owned corporation that runs Ukraine's electricity distribution system, expect to get better treatment in a debt restructuring, even though their bonds are guaranteed by the state and at least arguably can be forced to vote alongside holders of Ukrainian sovereign bonds (whose votes could swamp those of the Ukrene...

Who Benefits from Lifting Sanctions on Buying Venezuelan Bonds? Banning U.S. parties from buying Venezuelan bonds was probably a bad idea. But was it a good idea to lift the ban last fall? Investors apparently sold the Biden administration on the idea that lifting the ban would yield big benefits: bonds had migrated into the hands of parties acting as proxies for U.S. adversaries like Russia. Lift...

The Last Sovereign Bond in New York Due to litigation over the PDVSA 2020 bond, all future issues of sovereign bonds in New York have been canceled, effective immediately. (PDVSA is quasi-sovereign, but whatever...) You may have heard that New York’s highest court has ruled that investors cannot enforce sovereign bonds, period. Well, maybe that's not quite what it held – okay, not even remotely –...

Something Black in the Lentils at Ukrenegro A few weeks ago, there was an announcement that some of the creditors of the Ukrainian electric company, Ukrenegro, wanted their debt restructuring talks to be separate from any broader Ukrainian debt restructuring. And the prices of the Ukrenegro bonds (backed by a sovereign guarantee) shot up. This intrigued us. Why did the market suddenly see new valu...