Time is running out for Argentina — and for the hedge funds suing it, led by Elliott Management Corp.’s NML Capital. The South American nation must submit a proposal to the U.S. Court of Appeals for the Second Circuit before the end of March on how it plans to repay an estimated $1.33 billion of defaulted bonds.
除了纽约州埃利特管理外，对阵阿根廷诉讼的债券均值包括Aurelius资本管理，也包括纽约的资金，以及对个人的骚动。
虽然对冲基金来说并不是违反其债务的国家，但事实上，Elliott Management已经成功地完成了一个以上的机会 - 阿根廷拒绝同意解决它的结算。该国总统CristinaFernándezdekirchner发誓，从来没有支付她称之为秃鹫基金。
案件提出了关于美国法院是否会强迫另一个国家来履行其债券义务的重要问题。传统的智慧是君主偿还债务不是因为他们担心诉讼，而是因为他们希望在国际市场上保留他们的身体，或者因为在大学的助理法教授W. Mark Weidemaier的说法，他们有一些其他动力这样做。在教堂山的北卡罗来纳州。“NML资本与阿根廷的持续案例有可能破坏这一共识，”威达尔说。
As recently as last week, Paul Singer’s Elliott Management tried, after numerous failed attempts, to broach settlement talks with Argentina, but the firm was rebuffed, says a source familiar with the situation. Argentina’s response, the source says, came from the top echelons of government: “They basically said, ‘Sorry, but we’re going to win.’”
Many of those who attended a Second Circuit hearing in Manhattan on February 27 believed differently. No sooner had lawyers for Argentina concluded their arguments than murmurs arose in the crowded gallery that the three-judge panel, comprising justices Reena Raggi, Rosemary Pooler and Barrington Parker, was not buying Argentina’s reasons for withholding the payments. Indeed, the judges openly criticized the country’s stance that it would rather default on its sovereign debt than pay the litigants.
This month brought an unexpected twist. Soon after the hearing, the judges reopened discussions with Argentina, asking it to explain how, exactly, it planned to repay the funds and the other bondholders, who so far have received nothing. By doing so, the judges appeared to be allowing Argentina one last chance to propose a resolution to its debt bind before the court hands down a ruling.
2005年和2010年的阿根廷债券的91％以上的持有人交换了他们的原始债券，以便为重组或没有支付的风险。他们现在收到急剧减少的付款。少数持责任不同意交易所的条款，仍在等待支付。
The judges’ order, issued March 1, noted that during the February 27 hearing Argentina hinted it was “prepared to abide by a different formula for repaying debt owed on both the original and exchange bonds at issue in this litigation.” The panel asked Argentina to specify “the precise terms” of “any alternative payment formula” by March 29, as “neither the parameters of Argentina’s proposal nor its commitment to abide by it is clear from the record.”
这是法院早期职位的转变，可能旨在测试阿根廷绘制的线条。2月份，同一法院表示，它将秉承债券的“帕里卡杜条款” - 一种拉丁语短语意思是“具有平等的阶梯” - 法律迫使阿根廷支付所有债券持有人，而不仅仅是同意减少付款的交易债券持有人。
3月1日首次下降明显地扔了每个人的循环。“这种情况充满了惊喜，”美国大学华盛顿法学院教授Anna Gelpern说，他专门从事国际金融。“每一个占主导地位预测都是错误的。每一个共识视图都没有证明是正确的。实际上它几乎是幽默的。“
Gelpern, who has been following the case closely, is hard-pressed to glean what the order means. “The court is probably trying to offer Argentina a chance to put something forth,” she says, “but whatever Argentina proposes, I don’t think it will be good enough.”
在纽约的基于乐观资产对冲基金公司中押注的一项高管在案件的结果中投注，“我们没有看到这个命令作为阿根廷拯救自己的机会;我们将其视为法院给阿根廷一些绳索挂起。“
为了确定，对冲基金的股份很高，这面临重大赌注，这是一个持续十年以上的大赌注，而且对于阿根廷，自2001年违约以来已经努力重新获得全球金融市场的立场。
“Argentina is the world’s leading exemplar of how a sovereign should not treat its creditors,” asserts Mark Brodsky, CEO of $3.4 billion Aurelius Capital. “The global financial system is placed at risk by rewarding such behavior.”
交换债券均特别反对对冲基金的诉讼，因为这意味着他们可能会发现自己的付款。有些人甚至建议基金的胜利可能会阻碍未来的主权债务重组，并显着破坏全球金融。
Brodsky finds these arguments disingenuous. “Our adversaries resort to fear-mongering,” he explains. “They keep repeating the unsubstantiated claim that sovereign debt restructurings will screech to a halt if [the court’s decision] is upheld.”
Brodsky说，所有以前的证据都在包括最近的希腊和伯利兹的重组，违背了这一点。“在阿根廷案中提出的情况是如此异常，他们几乎不可能复制，”他补充道。
In the 1990s, Peru went through a similarly protracted battle with Elliott Management but ultimately settled with the hedge fund manager. Elliott Management declined to comment for this story, as did attorneys representing Argentina.
All hinges on the Second Circuit’s interpretation of the pari passu clause, which maintains that Argentina must honor the exact terms of the original bonds owned by Elliott, Aurelius and other holdouts just as it does the exact terms of the exchange bondholders’ arrangements.
“阿根廷可以选择，与平等付款治疗一致，通过支付任何人来对待每个人，”纽约律师事务所Shearman＆Sterling的合作伙伴斯蒂芬马雷肯说，他专门从事国际民事诉讼和上诉。“这是纽约对推动一切的Pari Passu条款的解释。这是这种情况的linchpin。“
已被埋葬在债券交易的精细印刷中的Pari Passu条款长期以来一直被视为过时和偶然。在这种情况下不是那么帕里帕队携带一对一的命运，创造了法院的决定将进入一个可能将阿根廷违约的事件和所有债券持有人造成违约的事件的情况。
Though Argentina has said it is prepared to take the case all the way to the U.S. Supreme Court, the final stop after the Second Circuit, Marzen, who has argued six cases before the high court, does not think the Supreme Court will take the case. “Even though it is the main event, the pari passu provision is a question of New York State law, not federal law,” says Marzen, whose firm is not involved in the case. “The Supreme Court generally resolves conflicts among the lower courts about federal law.”
The federal question Argentina may try to bring to the Supreme Court, Marzen notes, is whether the court order to treat all bondholders the same constitutes a violation of Argentina’s rights under the Foreign Sovereign Immunities Act. “The problem is that the one section of the act they might try to use only prevents the taking of a foreign sovereign’s property,” explains Marzen. “The order for equal treatment of bondholders doesn’t take any property. Instead, it puts a condition on Argentina’s use of its property — the condition being not to pay one set of bondholders over another. It’s going to be pretty challenging to equate a condition with a taking.”
The options of the hedge funds are no less costly. “If Argentina decides not to pay them, the hedge funds would be left to pursue assets within the existing judgments, and so far they have not had much relief there,” says Marzen. “Argentina is very well advised and has managed to mostly avoid asset seizure for the better part of 11 years. It does not leave assets around to be snatched.” (That is, with the noteworthy exception of one Argentinean ship briefly seized last year in Ghana.)
Still, Argentina’s plea last month to the Second Circuit to be allowed to continue payments to the exchange bondholders suggests that the Kirchner government believes nonpayment would come at a price. “For the past several years, Argentina has worked hard to keep current on payments to the exchange bondholders and has been on the path to becoming an honorable citizen,” Marzen says. “Like Johnny Cash, they’ve been walking the line, and if they default on these bonds after paying them for years, I don’t think they’re going to be too happy about it.”
With Argentina already in default on the bond payments it still owes the hedge funds, further default on the exchange bonds likely wouldn’t send shock waves through the global financial system, traders say. “The fallout will hurt Argentina and roil the markets that are linked with it, but it will be contained, not systemic,” one London-based trader says.
阿根廷的另一个违约可能是由美国法院命令而不是无法支付的。尽管如此，Sebastian Broiozzo，标准普尔的Buenos Aires总监拉丁美洲的标准普西州Buenos Aires总监，仍然不会赢得信用代理人的任何兴趣。
“Whether it is a technical default does not matter,” says Briozzo. “If they don’t pay, it is no longer a matter of opinion; it is a matter of fact. We rate the country based on whether they pay in accordance with the bonds’ agreed-upon terms and conditions.” S&P rates Argentina at B–, or junk, with a negative outlook.
由于阿根廷自2001年以来尚未试图发行债券，因此默认可能不会改变国家利用资本市场的能力，增加了拖把。
Instead, Argentina would need to be more concerned about its standing with global lenders such as the Inter-American Development Bank and the World Bank. “If Argentina were to default on its debt again, this could hurt its borrowings and disbursements,” Briozzo says.
For Elliott Management, which has remained tight-lipped about how it would deal with an Argentinean default, the end game is even murkier. “Elliott is not going to take this lying down,” American University’s Gelpern predicts. “These funds have a lot at stake, including their business models. They can’t be seen settling for pennies after almost 12 years of waiting.”
目前,观察家们不禁想那t the hedge fund firm, which has made a name for itself by investing in the bonds of financially strapped sovereign nations and then suing them for failing to make payments, has finally met its match. As David Tawil, co-founder of Maglan Capital, a distressed-asset fund in New York, puts it, “You have to love the fact they have met their ultimate opponent in Argentina, an opponent that is as willing to fight and as stubborn as they are.”