Argentina to Texas: The Value of Exchange

Latin American Studie

Rogue Trends in Sovereign Debt: Argentina, Vulture Funds, and Pari Passu Under New York Law

Coined the “trial of the century” in sovereign debt litigation, NML v. Argentina (NML) involves a radical departure from the traditional unenforceability of sovereign debt contracts in favor of the opposite extreme: enforcement through potent injunctive remedies applicable to third parties. Problems with the NML precedent could extend far beyond Argentina’s immediate situation. NML is the latest landmark in a trend that creates serious uncertainties for sovereign debt markets—a major concern for sovereigns, their creditors, and financial institutions around the world. This Article argues that NML creates “bad law” by overcompensating for unenforceability problems with an ambitious reading of the pari passu clause and supercharged injunctive remedies. As a practical matter, the milk is spilled; “rogue” precedent now exists. But until broader solutions for problems in sovereign debt are available, there are compelling grounds for other courts to apply the NML precedent as narrowly as possible. In addition to the extraordinary factual circumstances of NML, the Second Circuit provided a starting point for distinguishing NML from future cases

Rogue Trends in Sovereign Debt: Argentina, Vulture Funds, and Pari Passu Under New York Law

Coined the “trial of the century” in sovereign debt litigation, NML v. Argentina (NML) involves a radical departure from the traditional unenforceability of sovereign debt contracts in favor of the opposite extreme: enforcement through potent injunctive remedies applicable to third parties. Problems with the NML precedent could extend far beyond Argentina’s immediate situation. NML is the latest landmark in a trend that creates serious uncertainties for sovereign debt markets—a major concern for sovereigns, their creditors, and financial institutions around the world. This Article argues that NML creates “bad law” by overcompensating for unenforceability problems with an ambitious reading of the pari passu clause and supercharged injunctive remedies. As a practical matter, the milk is spilled; “rogue” precedent now exists. But until broader solutions for problems in sovereign debt are available, there are compelling grounds for other courts to apply the NML precedent as narrowly as possible. In addition to the extraordinary factual circumstances of NML, the Second Circuit provided a starting point for distinguishing NML from future cases

Tribunalizing Sovereign Debt: Argentina\u27s Experience with Investor-State Dispute Settlement

The global sovereign debt market, lacking a formal bankruptcy regime or binding regulatory oversight, is fundamentally shaped by the specter of conflicts between debtors that refuse to pay and holdout creditors that refuse to settle. Never was this more evident than in Argentina\u27s most recent sovereign debt crisis, which spurred daring, innovative, and often controversial legal strategies. This Article focuses on one of the legacies of Argentina\u27s sovereign debt crisis: the use of investor-state arbitration under international investment law to enforce sovereign bond contracts. Following Argentina\u27s financial collapse in 2001, private creditors brought dozens of cases against Argentina before the International Center for the Settlement of Investment Disputes (ICSID). Among these ICSID cases was Abaclat and Others v. The Argentine Republic, which marked the first time that an arbitral tribunal ruled that it had jurisdiction to rule on a sovereign debt default and restructuring under international investment law. With the proliferation of investor-state dispute settlement (ISDS) mechanisms in bilateral investment treaties (BITs) and other international investment agreements, this remedy will likely grow in importance. In light of Abaclat and subsequent ICSID cases, this Article analyzes Argentina\u27s experience with sovereign debt claims under BITs in the broader context of sovereign debt disputes and ongoing measures undertaken by sovereigns in response to tribunalization. Looking forward, this Article assesses the systemic implications of ISDS for the exercise of sovereign authority in sovereign debt finance

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, legislative responses vary among the states, underscoring the longstanding tension between uniformity and state-centric regulation of insurance in the United States. Some states have imposed DMF search requirements on a prospective basis. Others have attempted to apply such requirements on a retroactive basis, affecting both new and existing policies. Emerging legislation on unclaimed life insurance has significant implications for consumers, insurance markets, and even state finances. This Article focuses on the crucial question of retroactive versus prospective applicability of legislation on unclaimed life insurance benefits. In considering the financial implications and legal dimensions of this question, this Article concludes in favor of prospective applicability. Though presumably well intentioned, the downsides of retroactive legislation on unclaimed life insurance benefits outweigh the upsides

Soft balancing in the Americas : Latin American opposition to U.S. intervention, 1898–1936

In the aftermath of the 2003 U.S.-led invasion of Iraq, scholars of international relations debated how to best characterize the rising tide of global opposition. The concept of “soft balancing” emerged as an influential, though contested, explanation of a new phenomenon in a unipolar world: states seeking to constrain the ability of the United States to deploy military force by using multinational organizations, international law, and coalition building. Soft balancing can also be observed in regional unipolar systems. Multinational archival research reveals how Argentina, Mexico, and other Latin American countries responded to expanding U.S. power and military assertiveness in the early twentieth century through coordinated diplomatic maneuvering that provides a strong example of soft balancing. Examination of this earlier case makes an empirical contribution to the emerging soft-balancing literature and suggests that soft balancing need not lead to hard balancing or open conflict

Membrane fluidity matters: Hyperthermia from the aspects of lipids and membranes

Hyperthermia is a promising treatment modality for cancer in combination both with radio- and chemotherapy. In spite of its great therapeutic potential, the underlying molecular mechanisms still remain to be clarified. Due to lipid imbalances and 'membrane defects' most of the tumour cells possess elevated membrane fluidity. However, further increasing membrane fluidity to sensitise to chemo-or radiotherapy could have some other effects. In fact, hyperfluidisation of cell membrane induced by membrane fluidiser initiates a stress response as the heat shock protein response, which may modulate positively or negatively apoptotic cell death. Overviewing some recent findings based on a technology allowing direct imaging of lipid rafts in live cells and lipidomics, novel aspects of the intimate relationship between the 'membrane stress' of tumour cells and the cellular heat shock response will be highlighted. Our findings lend support to both the importance of membrane remodelling and the release of lipid signals initiating stress protein response, which can operate in tandem to control the extent of the ultimate cellular thermosensitivity. Overall, we suggest that the fluidity variable of membranes should be used as an independent factor for predicting the efficacy of combinational cancer therapies

International investment arbitration and the necessity defense : rulings and application from Argentina ; and, Of silence and defiance : a case study of the Argentine press during the Proceso of 1976-1983

textThis study examines the evolution of the modern necessity defenses in ICSID arbitration claims against Argentina arising from the 2001/2 economic crisis. To date, ICSID tribunals have been fractured in their approaches to Argentina’s necessity defenses. The high degree of inconsistency among the tribunals has provoked criticism and threatens to tarnish the legitimacy of the ICSID system, especially in Latin America. Recent developments indicate that a more coherent and legally sound alternative is emerging with a “two-step” approach that is moving away from reliance on customary international law and towards language in the bilateral investment treaty (BIT) between the Argentina and the United States. The BIT-based “two-step” approach is superior to the other two approaches available in terms of legal justifications and policy implications. Adherence to the “two-step” approach in future tribunals will allow for greater consistency, predictability, and stability for states and investors. Abstract: This study suggests that a weak press establishment was key among factors that enabled the excesses of the government’s response to domestic terrorism during Argentina’s most recent military dictatorship, the Proceso of 1976-1983, which resulted in gross human rights violations. The paper examines the role of the Buenos Aires Herald, which played an exceptional role in reporting violence during the Proceso and was the only major Argentine daily to take a confrontational editorial posture vis-à- vis the government. In researching this topic, the author used the archives of the Herald, primary source documents and press clips from the era, interviews with key figures in Argentine journalism, and a variety of academic sources on the issue. The paper considers political and historical factors as they shaped the Argentine media and set the stage for the events of the Proceso.Latin American StudiesLa

Settling Sovereign Debt\u27s Trial of the Century

With NML v. Argentina finally poised for settlement negotiations, the authors analyze a subset of the key economic and legal factors underlying this litigation, with a particular emphasis on issues relevant to a potential settlement. This Article documents the wide heterogeneity of holdout rates across Argentina\u27s 150 defaulted bonds and focus the analysis on the seven most held-out bonds. This Article also assesses the returns that investors would have obtained by purchasing the seven-bond basket at different times since 2002. This analysis offers a framework for potential settlement negotiations. However, with so many holdouts unaccounted for, a settlement with the NML litigants exposes Argentina to the tyranny of the next litigant as long as the current injunctions remain in place. There is a benefit of modifying or lifting these injunctions as Argentina begins negotiating in good faith to reach a reasonable settlement with its holdout creditors