Argentine debt restructuring

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1998–2002 Argentine great depression

Economy of Argentina
Peso (currency)
Currency Board
2001 riots
Debt restructuring


Argentina began a process of debt restructuring on January 14, 2005, that allowed it to resume payment on the majority of the USD82 billion in sovereign bonds that defaulted in 2002 at the depth of the worst economic crisis in the country's history. A second debt restructuring in 2010 brought the percentage of bonds out of default to 93%, though ongoing disputes with holdout vulture funds remained.[1][2] Bondholders who participated in the restructuring have been paid punctually and have seen the value of their bonds rise.[3][4][5]

While New York Law (which has jurisdiction over this case), makes it a crime to buy bonds with the intent of suing for more later,[6] most bondholders' payments were stopped in July 2014 at the behest of vulture funds by Lower Manhattan District Court Judge Thomas P. Griesa,[7] leading to what has been referred to in the Financial Times and elsewhere, as a "Griefault."[8] Bonds issued under Argentine Law, paid through Citibank Argentina, were not affected.[9]


The recession that resulted in the crisis lasted between 1999 and 2002; of the USD82 billion in defaulted bonds, 51% were issued during that period.[10] Argentina defaulted on a total of USD93 billion of its external debt on December 26, 2001. Foreign investment fled the country, and capital flow toward Argentina ceased almost completely during 2002 and 2003. The currency exchange rate (formerly a fixed 1-to-1 parity between the Argentine peso and the U.S. dollar) was floated, and the peso devalued quickly to nearly 4-to-1, producing a sudden rise in inflation to over 40% and a fall in real GDP of 11% in 2002.[1]

Large-scale debt restructuring was needed urgently, since the high-interest bonds had become unpayable. The Argentine government met severe challenges trying to refinance its debt, however. Creditors, which included both hedge funds and private citizens in Europe, Japan, the U.S., and elsewhere, denounced the default. This included bondholders from Argentina itself, estimated to compose about a fourth of affected bondholders.[11] Refinancing efforts were further undermined by the George W. Bush administration policy of vetoing proposals to create a mechanism for sovereign debt restructuring.[12]

Economic recovery eventually allowed Argentina to offer large-scale debt swaps in 2005 and 2010; the first brought 76% of bonds out of default and the second, 93%. The terms of the debt exchanges were not accepted by all private bondholders, and these became "holdouts."[1]

Holdout problem[edit]

Individual bondholders worldwide, who initially represented about one third of holdouts, mobilized to seek repayment; the IMF initially lobbied for the holdouts until Argentina's lump-sum repayment to it in January 2006. Among the most prominent were Task Force Argentina, an Italian retail bondholder association; Mark Botsford, a private U.S. retail bondholder; and Kenneth Dart, who unsuccessfully sued in 2003 to be paid USD724 million for bonds purchased in 2001 for USD120 million.[13] Dart renounced his U.S. citizenship in 1994 for tax avoidance purposes, and his interests in Argentina became the focus of tax evasion charges in 2013.[14] Italian nationals had become the largest group of foreign retail investors in Argentine bonds when during the 1990s, banks in their country purchased USD14 billion in bonds and then resold them to nearly half a million investors; the vast majority rejected the first swap but accepted the second.[15]

Vulture funds[edit]

Most initial Holdouts accepted bond swaps by 2010, but the remainder retained a total of USD4 billion in bonds.[16][17] Vulture funds, which claimed USD1.5 billion of this total including interest,[18] sued to be repaid at 100% of face value for bonds purchased not from Argentina but on the secondary market for cents on the dollar after the 2002 default,[19] filing injunctions to attach future payments to other bondholders by way of forcing Argentina to settle.[2][20][21][22][23] Vulture funds, moreover, own a large quantity of credit default swaps (CDS) against Argentine bonds, creating a further incentive to not only trigger a default against Argentina; but also to undermine the value of the bonds themselves, as the CDS would pay out at a higher rate if the defaulted bonds decline to extremely low values.[19] Meeting vulture funds' full face-value demands is problematic for Argentina, because although bonds held by vulture funds are a small share of the total (1.6%), such a settlement would lead to lawsuits from other bondholders demanding to be paid on similar terms and thereby create a liability of up to USD120 billion.[24]

A similar strategy had been successfully pursued by vulture funds against Peru and a number of African nations,[23][25] as well as against corporations in the U.S. itself such as Delphi Automotive, which was forced to pay Paul Singer's Elliott Management Corporation a return of over 3,000% on corporate bonds defaulted during the 2008 recession.[26]

Singer's Cayman Islands-based vulture fund, NML Capital Limited, became the principal litigant against Argentina after paying USD49 million in the secondary market in 2008 for bonds worth USD832 million by 2014.[27] Its lobbying group, American Task Force Argentina, is the most prominent and best financed opponent of Argentine bond restructuring efforts, spending over $7 million lobbying U.S. Congressmen and becoming the top campaign contributor to a number of these; the most prominent, former Western Hemisphere Subcommittee Chair Connie Mack IV (R-FL), became the main sponsor of a bill in 2012 designed to force Argentina to pay NML nearly $2 billion before losing his Senate bid that year.[21] Singer's lobbying campaign also extends to Argentina, where NML Capital finances an NGO led by Laura Alonso, a Congresswoman affiliated with the right-wing PRO party.[28]

Argentina has still not been able to raise finance on the international debt markets for fear that any bonds would be impounded by holdout lawsuits; Section 489 of New York Judiciary Law (which has jurisdiction over most of these bonds) makes it a crime to buy debt with the intent and for the purpose of bringing legal action or proceeding thereon, but court rulings in the U.S. have repeatedly endorsed this practice.[6] Their country risk borrowing cost premiums remain over 10%, much higher than comparable countries. Consequently, Argentina has been paying debt from Central Bank reserves, has banned most retail purchases of dollars, limited imports, and ordered companies to repatriate money held abroad. Nevertheless, between 2003 and 2012 Argentina met debt service payments totaling USD173.7 billion, of which 81.5 billion was collected by bondholders, 51.2 billion by multilateral lenders such as the IMF and World Bank, and 41 billion by Argentine government agencies. Public external debt denominated in foreign currencies (mainly in dollars and euros) accordingly fell from 150% of GDP in 2002 to 8.3% in 2013.[10]

A Belgian court in June 2013 declined to issue judgment in favor of the creditors to distrain Argentine diplomatic bank accounts.[29] A German court ruled in favor of Argentina in July on the basis of the pari passu (equal treatment) clause.[30] The French government filed an amicus brief in favor of the Argentine position at the U.S. Supreme Court as well,[31] and while the IMF declined to intervene, both it and the World Bank have came out against NML's case, arguing that it could endanger the debt restructuring they oversee around the world.[27] The Government of Argentina lost an U.S. appeals court case in August 2013, and the U.S. Supreme Court declined to hear its appeal the following June.[32] A possible third debt restructuring offer to remaining holdouts on similar terms to the 2010 swap was announced on August 27, 2013.[5]

Disindebtment policy[edit]

First restructuring (2005)[edit]

President Néstor Kirchner and Economy Minister Roberto Lavagna, who presented the first debt restructuring offer in 2005

The Argentine Government, led in its negotiations by Gustavo Ferraro, kept a firm stance, and in January 2005 offered the first debt restructuring to affected bondholders; nearly 76% of the defaulted bonds (USD62.5 billion) were thus exchanged and brought out of default. The exchange offered longer term par, cuasi-par, and discount bonds - the latter with a much lower nominal value (25–35% of the original). The majority of the Argentine bond market thereafter became based on GDP-linked bonds, and investors, both foreign and domestic, netted record yields amid renewed growth.[33] One of the largest single investors in Argentine bonds following these developments was Venezuela, which bought a total of more than USD5 billion in restructured Argentine bonds from 2005 to 2007.[34]

Argentina re-opens debt exchange in 2010[edit]

On April 15, 2010, the debt exchange was re-opened to bondholders who rejected the 2005 swap; 67% of these latter accepted the swap, leaving 7% as holdouts.[1] Holdouts continued to put pressure on the government by attempting to seize Argentine assets abroad,[35] and by suing to attach future Argentine payments on restructured debt to receive better treatment than cooperating creditors.[2][22][36]

A total of approximately USD12.86 billion of eligible debt was tendered into the exchange launched in April 2010; this represented 69.5% of outstanding bonds still held by holdouts.[37] A total of 152 types of bonds in seven different currencies under eight distinct jurisdictions were issued during the two debt exchanges.[16] The 2010 re-opening thus brought the total amount of debt restructured to 92.6% (the original 2005 debt exchange restructured 76.2% of Argentine government debt in default since 2001). The final settlement of the 2010 debt exchange took place on August 11, for bondholders that didn't participate in the early tranche that closed on May 14 and settled on May 17.[1]

Repayment in full to the IMF[edit]

During the restructuring process, the International Monetary Fund was considered a "privileged creditor", that is, all debt was recognized and paid in full. During 2005 Argentina shifted from a policy of constant negotiation and refinancing with the IMF to payment in full, taking advantage of a large and growing fiscal surplus due to rising commodity prices and economic output, with the acknowledged intention of gaining financial independence from the IMF.[38]

President Néstor Kirchner on December 15, 2005, announced his intention of liquidating all the remaining debt to the IMF, in a single payment of USD9.81 billion, initially planned to take place before the end of the year (a similar move had been announced by Brazil two days before, and it is understood that the two measures were to be coordinated).[39]

Argentina under the Kirchner administration had already reduced its debt to the IMF from USD15.5 billion in 2003[23] to USD 10.5 billion at the time of this announcement.[39] The last and largest remaining share of the IMF debt, about USD9.5 billion, was paid on January 3, 2006. The debt was in fact denominated in special drawing rights (SDR; a unit employed by the IMF and calculated over a basket of currencies). The Argentine Central Bank called on the Bank for International Settlements in Basel, Switzerland, where a part of its currency reserves were deposited, to act as its agent. The BIS bought 3.78 billion SDR (equivalent to about USD5.4 billion) from 16 central banks and ordered their transfer to the IMF. The rest (2.874 billion SDR or USD4.1 billion) was transferred from Argentina's account in the IMF, deposited in the U.S. Federal Reserve.[40]

The payment served to cancel the debt installments that were to be paid in 2006 (USD5.1 billion), 2007 (USD4.6 billion), and 2008 (USD432 million). This disbursement represented 8.8% of the total Argentine public debt and decreased the Central Bank's reserves by one third (from USD28 billion to USD18.6 billion). According to the official announcement, it also saved about a billion dollars in interest, though the actual savings amounted to USD842 million (since the reserves that were in the BIS were until then receiving interest payments).[39] One of the largest single investors in Argentine bonds following these Venezuela bought a total of more than USD5 billion in restructured Argentine bonds from 2005 to 2007.[34]

The initial announcement was made in a surprise press conference. President Kirchner said that, with this payment, "we bury an ignominious past of eternal, infinite indebtment." Many of those present later called the decision "historic". The head of the IMF, Rodrigo Rato, saluted it, though remarking that Argentina "faces important challenges ahead". United States Secretary of the Treasury John W. Snow said that this move "shows good faith" on the part of the Argentine government.[39] Nobel Economics Prize laureate Joseph Stiglitz repeatedly criticized the IMF and supported the Argentine strategies on the debt restructuring, but opposed the disindebtment policy, suggesting instead that the IMF should receive the same treatment as the other creditors. Local criticism of the IMF debt paydown centered around the cost, which made funds unavailable for productive purposes within Argentina or to come to terms with outstanding creditors; and second, that the government traded cheap IMF credits for new emissions of public debt at much higher interest rates.[40] Following the initial surprise and mixed reactions local markets rallied, with the MERVAL index growing more in January 2006 than in all of 2005.[41]

The Ministry of Economy reported in June 2005 that the total official Argentine public debt was down by USD63.5 billion from the first semester to USD126.5 billion as a result of the restructuring process; of this, 46% was denominated in dollars, 36% in pesos, and 11% in euros and other currencies. Due to the full payment of the IMF debt and several other adjustments, as of January 2006 the total figure decreased further to USD124.3 billion; bonds not exchanged in 2005 accounted for USD23.4 billion, of which 12.7 billion were already overdue. The Central Bank's reserves surpassed their pre-payment levels on September 27, 2006.[42]

A similar agreement was reached eight years later with the Paris Club of creditor nations (the last remaining Argentine debt still in default besides bonds held by holdouts) on debt repayment totaling USD9 billion including penalties and interest.[43]



A dispute between Argentina and holdouts has been ongoing since at least the 2005 debt restructuring.[2][36] Holdout portfolios represented of 6% of the debt (USD 4 billion) in 2013;[17] of the USD4 billion in bonds owned by holdouts in 2013, USD1.3bn were held by Cayman Islands-based NML Capital Limited and U.S.-based hedge funds Aurelius Capital Management and Blue Angel.[2][5][17] Bondholders who instead accepted the 2005 swap (three out of four did so) saw the value of their bonds rise 90% by 2012,[3] and these continued to rise strongly during 2013.[5]

Vulture funds that rejected the 2005 and 2010 offers to exchange their defaulted bonds resorted instead to lawsuits to block payments to other bondholders and attempts to seize Argentine government assets abroad – notably Central Bank deposits in the Federal Reserve Bank of New York,[44] the presidential airplane, and the ARA Libertad.[35] The Libertad, an Argentine Navy training frigate, was seized at the behest of NML Capital for ten weeks in late 2012 in the port of Tema, Ghana, until the International Tribunal for the Law of the Sea ruled unanimously that it be released.[45] The dispute limited Argentina's access to foreign credit markets as well; in October 2012 Argentina's theoretical borrowing costs were 10.7%, double the average for developing countries.[17] Although Argentina has not raised money on the money markets since the default, the state-owned oil company YPF has already placed debt in the financial markets to finance its investment program in years to come.[46]

Lower Manhattan District Court Judge Thomas P. Griesa, who ruled in 2012 and 2014 that most bondholders' payments must be stopped if holdout hedge funds weren't paid USD1.5 billion on bonds they bought at a steep discount,[47] refused to grant Argentina a stay while negotiations were ongoing,[48] triggering a court-ordered default on July 31, 2014, against bonds issued out of New York[49] (bonds issued under Argentine Law were not affected).[9] The Argentine government maintains it has not defaulted because it made a required interest payment to a bank intermediary on one of its bonds. But the New York judge blocked that deposit in June 2014, saying it violated his ruling that Argentina settle its dispute with holdout investors first. As a result, holders of exchanged Argentine bonds did not receive the interest coupon payment by a July 30 deadline. A 15-member committee, which includes Singer's Elliott hedge fund, facilitated by the International Swaps and Derivatives Association (ISDA) voted unanimously to call the missed coupon payment a "credit event." The move triggers a payout process for holders of insurance on Argentine debt, which analysts estimate could amount to roughly USD1 billion.[50]

NML Capital[edit]

NML Capital Limited, a Cayman Islands-based offshore unit of Paul Singer's Elliott Management Corporation, purchased the majority of their holdings in 2008, paying an estimated USD49 million for one series of bonds whose face value was over USD220 million;[22] with the subsequent boom in Argentine bond values, this face value grew to USD832 million by 2014.[27] They in turn established the American Task Force Argentina lobbying group against Argentine bond restructuring efforts,[21] and sued to attach Argentina's ongoing payments to the bondholders who had participated in the earlier restructurings.[2]

During the 2000s, Singer's lawyers initially obtained several large judgments against Argentina (all of which were affirmed on appeal), but soon discovered that due to a number of sovereign immunity laws, it was impossible to actually enforce those judgments against the handful of Argentine assets still within the reach of U.S. jurisdiction. They then reexamined their strategy and decided to attach Argentina's ongoing payments to the bondholders who had participated in the 2005 and 2010 restructurings.[9]

The basis of this new strategy arose from a strategic error on Argentina's part which was rooted in its history. Because Argentina was historically so unstable, it would have been difficult for it to solicit investors to buy bonds in Buenos Aires under Argentine jurisdiction, as few external investors trusted Argentina courts to enforce bonds against their own government. This consideration led Argentina to transfer the issue of bonds to New York, under United States law, on April 20, 1976, as were most subsequent bond issues.[51] Bonds were thus under a special kind of bond contract, a "Fiscal Agency Agreement" which was drafted by its American attorneys under New York law. The FAA stipulated that the repayments on the bonds were to be made by Argentina through a trustee based in New York (meaning that the U.S. courts did have jurisdiction to order injunctive relief over bonds issued under New York Law).[18]

In the Fiscal Agency Agreement, Argentina's attorneys included a boilerplate pari passu clause, but neglected to include a collective action clause. As a result, Argentina could not force NML Capital or the other holdouts to participate in the 2005 or 2010 restructurings. Even worse, the pari passu clause was interpreted by U.S. courts as meaning that Argentina could either pay all its bondholders or none, but could not pay only those who cooperated with the 2005 restructuring and ignore the rest. This was considered to be fair by the U.S. courts because Argentina was bound by its attorneys' actions; having enjoyed access to New York capital markets, they reasoned, it now had to bear the burden. No formal mechanism for sovereign debt restructuring exists in the U.S. (whose jurisdiction governs Argentine bond payments);[12][52] but Section 489 of New York Judiciary Law makes it a crime to buy debt with the intent and for the purpose of bringing legal action or proceeding thereon.[6]

Judicial rulings[edit]

Following adverse decisions by Lower Manhattan District Court Judge Thomas P. Griesa which would require full face-value payment by Argentina to NML Capital, at 15% interest,[53] the case went before the United States Court of Appeals for the Second Circuit (New York).[54] The decision of the appeals court was adverse and a motion for rehearing by a full panel was denied on March 26.[55]

Large banks, investors, and the U.S. Treasury Department objected to the judge’s order, expressing concern over losses that would be incurred by bondholders and others, as well over disruption in the bond markets. Vladimir Werning, executive director for Latin American research at JPMorgan Chase, observed that vulture funds "are trying to block the payments system" in the U.S. itself, something "unprecedented in the New York jurisdiction." Kevin Heine, a spokesman for Bank of New York Mellon, which handles Argentina's international bond payments, said the ruling "will create unrest in the credit markets and result in cascades of litigation, which is precisely the opposite effect that an injunction should have."[2] The American Bankers Association agreed, noting that "permitting injunctions that preclude pre-existing obligations whenever expedient to enforce a judgment against the debtor will have significantly adverse consequences for the financial system."[20] Argentina was given until March 29, 2013, to present a payment plan;[56] but despite offering the holdouts significant returns (284% in the case of NML), the new repayment plan offered by Argentina was not acceptable to the New York court.[57] The payment formula proposed by the district court would imply a 1380% return for NML.[22]

On August 23, 2013, the Court of Appeals for the Second Circuit affirmed the lower court's verdict and dismissed said plan.[58] The ruling determined that holdouts should be repaid the full face value,[32] and on highly unequal terms to the 93% who had accepted the 2005 and 2010 swaps at a 70%-75% discount.[36] A court in Germany has backed Argentina on the basis of the equal terms clause.[59]

The United States Supreme Court on October 7 declined to hear a preliminary appeal filed by Argentina following the Second Circuit ruling, though this in effect maintained the stay against the adverse Griesa ruling due to related litigation in the lower courts;[60] a further Supreme Court appeal was declined on June 16, 2014.[61] President Fernández de Kirchner stated after the appeals denial that her country had an obligation to pay its creditors, but not to become the victims of extortion by speculators; even if Argentina can't use the U.S. financial system to do so, she said, teams of experts are working on ways to avoid such a default and keep Argentina's promises.[62]

The decision was likewise rejected by among others the United Nations,[63] the Organization of American States,[64] the G-77 (133 nations),[65] and the Council on Foreign Relations,[66] as well as bondholders whose payments were stopped by the Griesa court.[67][68]

The Griesa ruling creates the precedent of overturning the Foreign Sovereign Immunities Act by forcing a default of 93% of the holders of a debt issue for the sake of ensuring the payment to holdouts.[69] The lack of legal certainty in U.S. courts prompted Argentine officials to propose placing the restructured bonds in question under Argentine law, while concurrently announcing a possible renewed bond swap offer in the near future.[5] Current bondholders felt the first effects of this ruling on June 30, when USD900 million in interest payments were stopped by the Griesa court. The statutory grace period on interest payments delayed a technical default for 30 days, allowing Argentina to remit bondholders' payments to its intermediary, the Bank of New York Mellon.[70] Most bondholders' payments remained blocked by Griesa at the end of the 30-day grace period, however,[7] leading to a technical default referred to in the Argentine media and elsewhere, such as the Financial Times, as a "Griefault."[8] Bonds issued under Argentine Law, paid through Citibank Argentina, were not affected.[9]

The expiration of Rights Upon Future Offers (RUFO) in December 2014 will preclude other bondholders from suing for better terms should the Argentine Government and the vulture funds settle, making such a settlement all the more likely after that date should the dispute continue.[51] A consortium of Argentine banks, led by Argentine Banking Association (Adeba) President Jorge Brito, presented their own settlement offer on July 30, by which all vulture fund bond holdings in dispute would be purchased in installments for a total of USD1.4 billion, but the offer was refused; Citibank, JP Morgan Chase, and HSBC joined efforts to repurchase vulture fund holdings on August 1.[71] The ISDA, of which Singer's Elliott hedge fund is one of 15 bank members, granted Singer a CDS insurance payout of USD1 billion on August 1; Argentine stock and bond prices had declined over the previous two days, but began to recover that afternoon.[24]

Beyond Argentina[edit]

The possibility that holdout creditors can attach future payments on restructured debt and receive better treatment than cooperating creditors distorts incentives, can derail efforts for a cooperative restructuring,[36] and may ultimately lead to the U.S. no longer being viewed as a safe place to issue sovereign debt.[12] While recent court rulings in the U.S. have repeatedly upheld this practice, purchasing bonds with the intent of later bringing legal action remains illegal under New York Law (which has jurisdiction over these cases);[6] the United Kingdom, however, permanently banned the use of its courts for vulture suits in 2011.[72] Currently 70% of the world's sovereign bonds are issued in New York, and 22% in London.[53]

This case is likely to be of particular importance in cases in which the creditors are being asked to accept substantial debt and debt service reduction, though it is unclear given the special circumstances of the Elliot/NML case whether it will be broadly applicable to holdouts in other restructurings.[73] The American Bankers Association warned that the district court’s interpretation of the equal terms provision could enable a single creditor to thwart the implementation of an internationally supported restructuring plan, and thereby undermine the decades of effort the United States has expended to encourage a system of cooperative resolution of sovereign debt crises.[22]

The Center for Economic and Policy Research reported on the special meeting of Organization of American States foreign ministry officials, which was held July 3, 2014, in Washington, D.C. to discuss the situation with Argentina and the vulture funds. The meeting passed a resolution expressing:

1. Its support to the Argentine Republic so that it can continue to meet its obligations, pay its debt, honor its financial commitments and through dialogue arrive at a fair, equitable and legal arrangement with 100% of its creditors.

2. That it is essential for the stability and predictability of the international financial architecture to ensure that agreements reached between debtors and creditors in the context of sovereign debt-restructuring processes are respected by allowing that payment flows are distributed to cooperative creditors in accordance with the agreement reached with them in the process of consensual readjusting of the debt.

3. Its full support to achieving a solution that seeks to facilitate the broad Argentine sovereign debt-process.

All OAS member states supported the resolution with the exception of the U.S. and Canada.[64]


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