adopted the broader interpretation of the pari passu clause, which could potentially affect the way that other non-litigating creditors of Argentina are paid and the way that the payment intermediaries conduct their business.

EMTA is pleased to present a Special Seminar on “Argentina and Its Pari Passu Clause”.

This Seminar will be held on Wednesday, April 18, 2012, at 360 Madison Avenue (on 45th St. between Madison and 5th Aves.), 17th Floor in New York City.

Registration is at 11:15 a.m.

Discussion will begin at 11:30 a.m. (and end at 1:30 p.m.)

Lunch will be served.

Argentina has been the subject of a number of court decisions, most recently the December 2011 and February 2012 Orders, in which Judge Griesa has seemingly adopted the broader interpretation of the pari passu clause, which could potentially affect the way that other non-litigating creditors of Argentina are paid and the way that the payment intermediaries conduct their business. Without re-litigating these decisions, EMTA’s panel will explore some of the issues raised by the plaintiffs, the defendant and various amici in these cases (including differing interpretations of the pari passu clause, as well as appropriate remedies for breaches of sovereign obligations).

James Kerr (Davis Polk) and Whitney Debevoise (Arnold & Porter) will lead the discussion.

Recent litigation involving Argentina can be found in the Argentina area of EMTA’s website: http://www.emta.org/template.aspx?id=5015.

This presentation is part of a continuing series of panels and presentations that EMTA is pleased to sponsor on various topics of interest to Emerging Markets investors and other market participants, and is part of EMTA’s Legal & Compliance Seminars. CLE credit for NY attorneys is pending. This seminar is non-transitional and appropriate for experienced attorneys only. Please click here or details on EMTA’s Financial Hardship Policy.

Views expressed by panelists and presenters are their own and do not necessarily reflect those of EMTA or of any of its member firms.

Attendance

Attendance for EMTA members is US$50 / Non-members is US$495.

Registration

To register, please CLICK HERE if you have previously registered for an EMTA event or you are an EMTA member with login credentials.

Or, if you have never before registered for an EMTA event or you are an EMTA member without login credentials, please CLICK HERE.

Cancellation

Cancellations must be received by 11:30 a.m. (EST), Tuesday, April 17, 2012, or you will be charged the full amount. Substitute delegates may be sent at no additional charge. Please contact Suzette Ortiz at sortiz@emta.org.

For more information, please contact Aviva Werner at EMTA at +1 (646) 289-5412 or by email at awerner@emta.org.

EMTA offers a wide range of Emerging Markets information. Please see our website at: http://www.emta.org.

This e-mail was sent from EMTA, Trade Association For The Emerging Markets (sortiz@emta.org) to rolfjkoch@web.de.

es gab schon mal (und nicht erst beim Appeal auf Judge Griesas Urteil vom 23.2.2012) 3 amici curiae in Sachen pari passu / pro rata payment

34.  In the US statement of interests, it was stressed that “[a] novel reading of the pari passu clause, however, that would prohibit sovereign debtors from making payments to third party creditors or require sovereign debtors to make simultaneous, ratable payments to all creditors would undermine [a] well understood established framework .. .” (see Statement of Interest of the United States at 14; Macrotecnic Int’l Corp. v. Republic of Argentina, No. 02 CV 5932 (TPG) (S.D.N.Y. Jan. 12, 2004); EM Ltd. v. Republic of Argentina, No. 03 CV 2507 (TPG) (S.D.N.Y. Jan.
12,    2004).

35.     The Federal Reserve Bank of New York urged the court to interpret the pari passu clause narrowly “so as to discourage the terrorism of payments and settlement systems, and to encourage parties to compromise in sovereign debt restructurings” (see Memorandum of Law of Amicus Curiae Federal Reserve Bank of New York in Support of Defendant’s Motion for an Order Pursuant to CPLR § 5240 Denying Plaintiffs the Use of Injunctive Relief to Prevent Payments to Other Creditors at
13,    Macrotecnic Int’l Corp. v. Republic of Argentina, No. 02 CV 5932 (TPG) (S.D.N.Y. Jan. 12, 2004); EM Ltd. v. Republic of Argentina, No. 03 CV 2507 (TPG) (S.D.N.Y. Jan. 12, 2004).

36.     The New York Clearing House Association L.L.C. stated that its members “have long understood [the pari passu] clause . . .to prohibit a debtor from creating unsecured debt that ranks senior in legal rights of payment to the payment obligations the debtor has.” See Memorandum of Amicus Curiae the New York Clearing House Association L.L.C. in Support of Motion Pursuant to CPLR § 5240 to Preclude Plaintiff Judgment Creditors from Interfering with Payments to Other Creditors at page 2, Macrotecnic Int’l Corp. v. Republic of Argentina, No. 02 CV 5932 (TPG) (S.D.N.Y. Jan. 12, 2004); EM Ltd. v. Republic of Argentina, No. 03 CV 2507 (TPG) (S.D.N.Y. Jan. 12, 2004).

S 753 / 2009 zitiert nach:
To Rank PARI PASSU or not to Rank PARI PASSU: That is the Question in Sovereign Bonds after the Latest Episode of the Argentine Saga
Dr. Rodrigo Olivares-Caminal

die Formulierung der pari passu clause im FAA von 1994 asl Grundlage für Griesas neusten Urteilen

Agreement (.“FAA.”).

2. Paragraph 1(c) of the FAA provides, among other things, that:

The Securities [i.e., the bonds] will constitute . . . direct,

unconditional, unsecured and unsubordinated obligations of the

Republic and shall at all times rank pari passu and without any

preference among themselves. The payment obligations of the

Republic under the Securities shall at all times rank at least

equally with all its other present and future unsecured and

- 2 -

unsubordinated External Indebtedness (as defined in this

Agreement).

3. The bonds issued pursuant to the FAA contain the following

clause, as quoted in EM Ltd. v. The Republic of Argentina, 720 F.Supp.2d 273,

zitiert aus

Case 1:08-cv-06978-TPG Document 353 Filed 12/07/11 Page 1 of 5

folgen der pari passu / pro rata Entscheidung von Griesa vom 23.2 // Breakingviews: Argentina case puts bite in holdout hedgies' bark

Breakingviews: Argentina case puts bite in holdout hedgies' bark

4/9/2012COMMENTS (0)

NEW YORK, April 9 (Reuters Breakingviews) - An Argentina debt case has put bite in the bark of holdout creditors. Hedge fund Elliott Associates spurned the nation's debt swap but may still get paid in full, thanks to a U.S. judge's plan for blocking payouts to other bondholders. If upheld on appeal, the ruling might muddle sovereign lending and workouts. But it should also reassure creditors that a deal is still a deal.
Elliott affiliate NML Capital has been owed money for a decade but, like many holders of defaulted sovereign debt, hasn't been able to collect. In fact, Argentina passed laws barring payments to the hedgie and other bond-exchange holdouts. Judge Thomas Griesa said those laws violated the obligation of South America's second biggest economy to treat bondholders equally, and he ordered the country not to pay holders of the exchange bonds without also paying NML. The breakthrough is that the order can be enforced against the New York-based trustee that actually makes the payments.
It's similar to a 2000 Belgian court edict that Elliott used to stop settlement service Euroclear from paying on Peruvian bonds. The latest decision carries much more precedential weight, not least because it comes from a U.S. district court. But together, the orders offer creditors a potentially powerful way to enforce debtor nations' obligations.
Courts might still disagree. Griesa's ruling could violate the U.S. law that shields foreign countries from most lawsuits. It could also undermine debt restructurings, the bond-payment system and, if Argentina ignores it, the credibility of U.S. courts. And it's possible that the judge misinterpreted bondholders' right to equal treatment.
The U.S. government made similar arguments in a brief filed last week, and judges listen closely to Uncle Sam on these matters. Other lawyers say the concerns are overblown, because Argentina is a uniquely defiant deadbeat whose case won't translate easily to other countries.
Either way, Elliott and Judge Griesa may have already had an impact. They've shown it's possible to win against debtor nations, perhaps emboldening tenacious holdouts in, say, the Greek debt swap. That might gum up restructurings but, more important, it should encourage future lending by giving sovereign contracts teeth.
(Reynolds Holding is a Reuters Breakingviews columnist. The opinions expressed are his own.)
Follow us on Twitter: @ReutersLegal

http://newsandinsight.thomsonreuters.com/Securities/News/2012/04_-_April/Breakingviews__Argentina_case_puts_bite_in_holdout_hedgies__bark/

U.S. walks dangerous line to support Argentina in bond cases // sehr lesenswert zu 2. pari passu runde in NY

U.S. walks dangerous line to support Argentina in bond cases // sehr lesenswert zu 2. pari passu runde in NY

U.S. walks dangerous line to support Argentina in bond cases

4/9/2012COMMENTS (0)

Distressed debt investors don't have much credence as victims. These are, after all, hedge funds that buy up bonds in or near default, typically at a steep discount, in the hope they'll be able to boost the value of the debt through the bankruptcy process or litigation in U.S. courts. Right now, for instance, distressed bond funds are preparing for battle over billions of dollars worth of Greek sovereign debt that they snatched up in anticipation of that country's default in March. Distressed debt funds quite literally feed off the flesh of moribund companies and foreign economies, which is why they're frequently called vulture funds. Vultures flanked by crafty lawyers aren't entitled to a whole lot of sympathy.
But they earned some from me when I read the Justice Department's new amicus brief, filed last week at the 2nd Circuit Court of Appeals in the long-running battle between The Republic of Argentina and NML Capital, Aurelius, and other holders of defaulted Argentine bonds. The brief suggests that the Justice Department believes the foreign policy objectives of the executive branch trump the obligations of a foreign sovereign to comply with U.S. court directives. That's an argument the government clearly feels conflicted about, based on the brief. And its support of Argentina, at the expense of the power of the U.S. court system, could roil the vulture-dominated secondary market for distressed sovereign debt in the midst of the Eurozone crisis.
Usually, the United States wouldn't get involved in a dispute over contract interpretation, which is at the heart of the cases at the 2nd Circuit. But the Justice Department believes Argentina's appeal implicates a "cornerstone" foreign economic policy. Last December, U.S. District Judge Thomas Griesa of federal court in Manhattan issued a series of orders in various bondholder cases against Argentina concluding that under the standard contract provision known as pari passu (or "equal footing"), Argentina must pay the vulture funds in full before making payments to investors who agreed to participate in two rounds of restructurings that followed Argentina's 2002 bond default. In February, Griesa issued injunctions based on those orders, which meant that Argentina could not make any payment to investors who were issued new debt in the 2005 and 2010 restructurings until it paid the holdouts everything it owes them.
Those injunctions, according to the Justice Department, are based on a misreading of pari passu precedent that endows holdout investors with too much power and interferes with the ability of sovereign nations to restructure their debt. The amicus brief, as well as Argentina's appellate brief, argued that Griesa's ruling offers investors little reason to participate in a foreign sovereign's efforts to resolve its debt crisis -- and every incentive to disrupt restructuring for their own selfish purposes. The briefs claimed that the judge disregarded the bond market's understanding of boilerplate language on the relative footing of debt holders and gave too much weight to the handful of cases cited by the vulture funds. (Argentina went so far as to assert that the trial-court judge -- who has been overseeing the Argentina bond litigation for almost a decade -- entered the injunctions merely to force Argentina to pay off the vulture funds and end the litigation.)
"The district court's interpretation of the pari passu 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," the U.S. amicus brief said.
As you might expect, the vulture funds don't think the market's understanding of pari passu clauses is as straightforward as the United States and Argentina contend. Nor is legal precedent, according to them. The bondholders haven't yet submitted their response briefs at the 2nd Circuit, but before Griesa, they pointed to a 2000 Belgian court ruling in a case involving Peruvian bonds as well as a California federal-court injunction against the Republic of Congo in a situation analogous to their case against Argentina. (Among the firms representing bondholders are Dechert and Gibson, Dunn & Crutcher for NML; MoloLamken; Simpson Thacher & Bartlett; andFriedman Kaplan Seiler & Adelman for Aurelius; and Milberg for individual investors.)
More fundamentally, the holdout bondholders say that Argentina is engaged in unprecedented disregard for U.S. court judgments. There hasn't been a final judgment entered on the $1.2 billion at issue in the cases now at the 2nd Circuit, although the bondholders have won summary rulings on Argentina's liability. They also have between $6 and $8 billion in final judgments against Argentina in related cases. Argentina has nevertheless not only refused to honor those judgments but has strenuously fought every bondholder attempt to get hold of Argentine assets in this country. For the most part, the 2nd Circuit has sided with Argentina on Foreign Sovereign Immunity Act grounds, turning back rulings that would have granted the vulture funds rights to money Argentina held at the Federal Reserve and money held in U.S. banks on behalf of Argentina's social security system. (The appeals court has affirmed two other attachments, but they add up to less than $100 million.)
Argentina has been so recalcitrant about owning up to its obligations that last month Griesa explicitly chided the foreign sovereign, even though he denied another creative attachment motion by the vulture funds. "This is yet another situation growing out of the Republic's continued intransigence in failing to honor its lawful judgment debts," the judge wrote. "The plaintiffs in these cases, in seeking to vindicate their legal rights, are not able to do so by any regular and clear-cut devices."

http://newsandinsight.thomsonreuters.com/Legal/News/2012/04_-_April/U_S__walks_dangerous_line_to_support_Argentina_in_bond_cases/

Lesevorschlag: Origin Myths, Contracts, and the Hunt for Pari Passu // der amicus curiae der US-Regierung nimmt bezug darauf

Origin Myths, Contracts, and the Hunt for Pari Passu
Mark C. Weidemaier
University of North Carolina (UNC) at Chapel Hill - School of Law
Robert E. Scott
Columbia University - Law School
G. Mitu Gulati
Duke University - School of Law

March 25, 2011
UNC Legal Studies Research Paper No. 1633439
5th Annual Conference on Empirical Legal Studies Paper

Abstract:    
Sovereign loans involve complex but largely standardized contracts, and these include some terms that no one understands. Lawyers often account for the existence of these terms through origin myths. Focusing on one contract term, the pari passu clause, this article explores two puzzling aspects of these myths. First, it demonstrates that the myths are inaccurate as to both the clause’s origin and the role of lawyers in contract drafting. Second, the myths often are unflattering, inaccurately portraying lawyers as engaged in little more than rote copying. The article probes this disjunction between the myths and lawyers’ actual practices and explores why contracts origin myths might hold such appeal for this elite segment of the bar.
Number of Pages in PDF File: 55
Keywords: contracts, sovereign debt, pari passu, sovereign bonds, lawyers
Working Paper Series
Date posted: July 17, 2010 ; Last revised: March 27, 2011
Suggested Citation
Weidemaier, Mark C., Scott, Robert E. and Gulati, G. Mitu, Origin Myths, Contracts, and the Hunt for Pari Passu (March 25, 2011). UNC Legal Studies Research Paper No. 1633439; 5th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=1633439 or http://dx.doi.org/10.2139/ssrn.1633439

    Export to: Export Citation What's this?
Contact Information
Mark C. Weidemaier (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919.843.4373 (Phone)

Robert E. Scott
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10027
United States
212-854-0072 (Phone)

Gaurang Mitu Gulati
Duke University - School of Law ( email )
Box 90360
Durham, NC 27708

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633439

The Bank of New York (the trustee for the Exchange Bondholders) and Cede & Company (the registered Exchange Bondholder)— / damit hat Judge Griesa den Anfang der Zahlungskette nach Europa/Deutschland im Griff (oder salopp: im Sack).. Von den Bank of NY geht das Geld zur BoNY Luxemburg und von dort zu Clearstream Luxemburg und bis zum hinterletztem BBDler

Plaintiffs and the district court in the hearing at which the Injunction was signed

indicated that the Injunction was intended to reach both entities with a

designated role in the payment to bondholders—such as The Bank of New York

(the trustee for the Exchange Bondholders) and Cede & Company (the

registered Exchange Bondholder)—and unspecified “banks” and

“intermediaries” who might participate in making payments to Exchange

Bondholders.

E.g., A-2296–97 (Feb. 23, 2012 Tr. 7:22-8:2 (“THE COURT:

The banks wouldn’t be aiding and abetting [a violation of an order directed only

at Argentina]. The banks only pay the exchange offer people. That's what they

do. Now, if I entered this order, this would impose an obligation on the banks

and it might impose an impediment upon the banks with respect to the exchange

offer people which does not exist now.”);

see also A-2293, 2295-97, 2329 (id.

at 4:12-19, 4:23, 6:13-15, 7:10, 8:17-24, 40:15-17) (referring to effect of order

on “banks” and “intermediaries”).

amicus curiae the clearinghouse S 4

-----------------------------
näheres zu Cede & Co // http://www.dict.cc/?s=cede   cede = abtreten, überlassen

Stocks held by DTC are kept in the name of its partnership nominee, Cede & Co.[2] Not all securities are eligible to be settled through DTC ("DTC-eligible").

http://en.wikipedia.org/wiki/Depository_Trust_%26_Clearing_Corporation

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017206

die auswirkungen der pari passu clause in ihrer ratable payment interpretation: to permit an unpaid creditor to interfere withpayments to other creditors

On December 7 and 13, 2011, the district court entered orders thatadopted a markedly different, broader interpretation of this clause: that it alsoserves to prevent a debtor from paying certain of its unsecured, unsubordinatedcreditors without making a “Ratable Payment” to each of its other unsecured,unsubordinated creditors, and to permit an unpaid creditor to interfere withpayments to other creditors

aus dem amicus curiae des clearinghauses vom 4.4.2012

die injunctions vom 7. und 13. dez 2011 sind von allergrösster bedeutung (natürlich nur wenn sie in der berufung bestand haben) und nach deutschland transferierbar sind.

das bedeutet, dass dem BBDler von nebenan die zinszahlung angegriffen werden kann oder im schlimmsten fall sogar abgenommen werden kan.

 hier nochmals die passage:

to permit an unpaid creditor to interfere withpayments to other creditors.

das Thema Investitionsschutz- und Förderverträge (BIT / ICSID) ist so komplex und umfangreich, dass ich ein eigenes Blog dazu aufgesetzt habe

http://rolfsbiticsidblog.blogspot.com/

GGB (greek government bond) unter english law: With respect to the pari passu clause, some courts have interpreted this language to require debtors not yet in bankruptcy to pay debts to all creditors pari passu.[vii] Although this interpretation has been disputed, it may provide a contractual basis for asserting a right to payment on the bonds.

English law-governed bonds

A significant percentage of Greek bonds governed by English law have not been tendered into the exchange offer. One reason that many holders of these bonds have elected not to participate in the exchange is that these bonds have more extensive remedies than the Greek law-governed bonds (and were not subject to the amendments effected by the Greek Bondholder Law). The English law-governed bonds contain a negative pledge and a pari passu clause, and, in certain of those bonds, events of default that include a cross-default triggered by a default by the Greek government on “external indebtedness” in excess of a certain threshold. In addition, English law-governed bonds issued after 2004 contain a collective action clause (CAC), which permits holders of a specified percentage of the principal amount of bonds to declare a default and accelerate the maturity date of the bonds upon the occurrence of an event of default.

With respect to the pari passu clause, some courts have interpreted this language to require debtors not yet in bankruptcy to pay debts to all creditors pari passu.^[vii] Although this interpretation has been disputed, it may provide a contractual basis for asserting a right to payment on the bonds.

Upon the occurrence of an “event of default,” as defined under the governing documents of the English law bonds, bondholders have the right, subject to the CAC, to declare a default, accelerate the maturity date of the bonds, and seek to enforce their right to payment through enforcement proceeding brought in English courts, under English law.

The English law-governed bonds that we have examined include some or all of the following events of default:

• failure to pay interest or principal in respect of the bonds which remains uncured by payment thereof within 30 days from the due date for such payment
• failure to perform any other covenant, condition or provision of the bonds which continues for 30 days after written notice thereof
• any government order, decree or enactment which prevents the observation and performance of the obligations of the bond
• external indebtedness in an amount equal to or exceeding US$25 million (or its equivalent) is accelerated so that it becomes due and payable prior to the stated maturity thereof as a result of a default thereunder, and such acceleration has not been rescinded or annulled; or any payment obligation under such indebtedness is not paid as and when due (including any applicable grace period) and
• general moratorium is declared by Greece or the Bank of Greece in respect of its external indebtedness; or Greece or the Bank of Greece announces its inability to pay its external indebtedness as it matures

In bond documents executed after 2004, the right of the holders of the English law-governed bonds to accelerate the maturity date of the bonds upon the occurrence of an Event of Default is conditioned upon compliance with the requirements of the CAC. In the case of the English law-governed bond documents that we have reviewed, the CACs require that the bondholders who wish to declare a default hold at least 25 percent of the aggregate outstanding principal amount of the issue. Those bondholders may then enforce their remedies by accelerating the bonds, and, if the bonds are not paid in full, bringing an action in court to enforce payment, and seeking attachment of assets of Greece in order to secure payment following a favorable judgment.

Those bondholders who have elected not to participate in the exchange offer have certain rights and remedies to obtain payment on their bonds, above and beyond the payments offered under the terms of the exchange. However, realizing those rights is likely to be difficult, time-consuming and expensive, in terms of legal fees.

Nonetheless, there are certain remedies available to the holders of English law-governed bonds who have chosen not to participate in the exchange. These holders have the option to accelerate their bonds, provided they can satisfy the specified percentage in the applicable CAC. Once the bonds have been accelerated, it is unlikely that the Greek government will be able to pay the accelerated bonds. The affected holders may then bring legal action against the Greek government to enforce their right to payment, either in London or in US federal court, subject to their ability to establish an exception to immunity under the Foreign Sovereign Immunities Act (FSIA).

In order for any bondholder to bring an action against the Greek government in the courts of the United States, they will have to overcome the protections afforded to Greece by the FSIA, which provides a foreign state immunity from suit in American courts. In order to overcome the FSIA protections, bondholders will need to illustrate (A) that Greece has explicitly or implicitly waived its immunity; or (B) that the action is based upon a commercial activity carried on in the US by the foreign state, or upon an act performed in the US in connection with a commercial activity of the foreign state elsewhere, or upon an act outside the territory of the US in connection with a commercial activity of the foreign state elsewhere that causes a direct effect in the US.^[viii] Upon the determination that a US court has jurisdiction over Greece, a breach of contract claim may be brought by dissenting bondholders upon a Greek default or an unfavorable exchange offer.

^[vii] _{A decision issued by the Court of Appeals of Brussels, in Elliott Associates., L.P., General Docket No. 2000/QR/92, introduced a novel interpretation of the meaning of the pari passu language. Elliott brought suit against the Government of Peru and a Peruvian bank arising from Elliott’s ownership of Peruvian debt after the Peruvian government had defaulted on its bond debt and attempted to restructure its debt. Elliot refused to accept the restructuring and based its claim for payment on a unique interpretation of the language of the pari passu clause in the governing bond documents – that, as a holder of Peruvian bonds, Elliot was entitled to a pro rata payment any time the government made payments to other creditors. The court determined that an issuer of debt governed by a pari passu clause is restricted from making any payment to any unsecured creditor without making a pro rata payment to all other creditors of the same class. In support of its judgment, the court explained that since the pari passu language in question required equal treatment of creditors in bankruptcy, such language necessarily required equal treatment of creditors whenever payment to any such creditor was made. However, holdouts have had limited success in replicating the success represented by the Elliott decision. See C. Berry and K. Blake, “Pari Passu Means What Now?, Corporate Restructuring and Bankruptcy,” New York Law Journal (March 6, 2006).}

oben stehende Fussnote ist schwer lesbar. Hier eine besser lesbare Version:

[vii] A decision issued by the Court of Appeals of Brussels, in Elliott Associates., L.P., General Docket No. 2000/QR/92, introduced a novel interpretation of the meaning of the pari passu language. Elliott brought suit against the Government of Peru and a Peruvian bank arising from Elliott’s ownership of Peruvian debt after the Peruvian government had defaulted on its bond debt and attempted to restructure its debt.  Elliot refused to accept the restructuring and based its claim for payment on a unique interpretation of the language of the pari passu clause in the governing bond documents – that, as a holder of Peruvian bonds, Elliot was entitled to a pro rata payment any time the government made payments to other creditors.  The court determined that an issuer of debt governed by a pari passu clause is restricted from making any payment to any unsecured creditor without making a pro rata payment to all other creditors of the same class.  In support of its judgment, the court explained that since the pari passu language in question required equal treatment of creditors in bankruptcy, such language necessarily required equal treatment of creditors whenever payment to any such creditor was made.  However, holdouts have had limited success in replicating the success represented by the Elliott decision. See C. Berry and K. Blake, “Pari Passu Means What Now?, Corporate Restructuring and Bankruptcy,” New York Law Journal (March 6, 2006).

 

^[viii] _{28 U.S.C. § 1605(a).}

http://www.dlapiper.com/a-greek-odyssey-greeces-sovereign-debt-restructuring-and-its-impact-on-holders-of-greek-bonds/#_ednref7

für alle die sich ein wenig einlesen wollen in die pari passu / pro rata Problematik wie sie jetzt beim Court of Appeals diskutiert wird / als osterprojekt....vieles ist im internet auffindbar

Quellenverzeichnis Berufungsschrift Court of Appeals (Griesa 23.2.2012), Amicus Curiae US-Regierung und Clearinghaus New York

Berufungsschrift

Other Authorities

American Heritage Dictionary (3d ed. 2000) ................................................. 31-32

Black’s Law Dictionary (7th ed. 1999) ........................................................... 31, 32, 47

Edwin Borchard, 1 State Insolvency and Foreign Bondholders (1951) ......... 12

Lee C. Buchheit & Ralph Reisner, The Effect of the Sovereign Debt

Restructuring Process on Inter-Creditor Relationships,

1988 Univ. Ill. Law Rev. 493 ......................................................................... 10-11, 26, 35

Lee C. Buchheit & Jeremiah S. Pam, The Pari Passu Clause in Sovereign

Debt Instruments, Working Paper, Harvard Law School Program on

International Financial Systems (2003) .......................................................... 11-12

Ross P. Buckley, The Bankruptcy of Nations: An Idea Whose Time Has

Come, 43 Int’l Law. 1189 (2009) .................................................................... 13-14

Stephen J. Choi and G. Mitu Gulati, Contract as Statute,

104 Mich. L. Rev. 1129 (2006) ....................................................................... 33

G. Mitu Gulati & Kenneth N. Klee, Sovereign Piracy,

56 Bus. Law. 635 (2001) ................................................................................. 12, 15

H.R. Rep. No. 94-1487 (1976) reprinted in 1976 U.S.C.A.A.N. 6604 .......... 30

Rodrigo Olivares-Caminal, Legal Aspects of Sovereign

Debt Restructuring (Sweet & Maxwell 2009) ................................................ 44

United Nations Centre on Transnational Corporations, Advisory Studies,

No. 4, Series B, International Debt Restructuring: Substantive Issues and

Techniques (1989) ........................................................................................... 10

Christopher Whittall, et al., Vulture Funds Prepare to Battle Greek Default,

Int’l Fin. Rev. (Feb. 16, 2012) ........................................................................ 24

Philip R. Wood, Pari Passu Clauses – What Do They Mean?,

Butterworths J. of Int’l Banking and Fin. L. 371 (2003) ............................... passim

Philip R. Wood, Sovereign State Restructurings and Credit Default Swaps,

Butterworths J. of Int’l Banking & Fin. L. 559 (2011) ................................. 46

Amicus Curiae US-Regierung

Department of State, Foreign Operations, and

Related Programs Appropriations Act, 2012,

div. I, Pub. L. No. 112-74, § 7071(b), 125 Stat.

786.1254 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Legislative History:

Foreign Sovereign Immunities Act of 1976,

House Report No. 94-1487, 5 U.S.C.A.A.N.

6604 (Sept. 9, 1976) .. . . . . . . . . . . . . . . . . . 22, 24

Miscellaneous:

Edwin Borchard, 1 State Insolvency and Foreign

Bondholders (1951) . . . . . . . . . . . . . . . . . . . . . . 13

Michael H. Bradley, James D. Cox & Mitu Gulati,

The Market Reaction to Legal Shocks and Their

Antidotes: Lessons from the Sovereign Debt

Market, 39 J. Legal Studies 289 (2010) . . . 14, 15

Lee C. Buchheit & Jeremiah S. Pam, The Pari

Passu Clause in Sovereign Debt Instruments,

53 Emory L.J. 869 (2004) .. . . . . . . . . . . 11, 12, 14

Lee C. Buchheit & Ralph Reisner, The Effect of the

Sovereign Debt Restructuring Process on Inter-

Creditor Relationships,

1988 U. Ill. L. Rev. 493 (1988) .. . . . . . . . . . . . . 12

Financial Markets Law Committee, Pari Passu

Clauses: Analysis of the Role, Use and Meaning

of Pari Passu Clauses in Sovereign Debt

Obligations as a Matter of English Law

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 19

H. Fox, “International Law and the Restraints on

the Exercise of Jurisdiction by National Courts

of States,” in M. Evans, ed., International Law,

364 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

G. Mitu Gulati & Kenneth N. Klee, Sovereign

Piracy, 56 Bus. Law. 635 (2001) . . . . . . . . . 15, 16

John W. Head, Suspension of Debtor Countries’

Voting Rights in the IMF: An Assessment of the

Third Amendment to the IMF Charter,

33 Va. J. of Int’l Law 591 (1993) . . . . . . . . . . . . 20

Matthew H. Hurlock, New Approaches to

Economic Development: The World Bank, the

EBRD, and the Negative Pledge Clause,

35 Harv. Int'l L. J. 345 (1994) . . . . . . . . . . . . . . 21

Rodrigo Olivares-Caminal, To Rank Pari Passu or

Not to Rank Pari Passu: That is the Question in

Sovereign Bonds After the Latest Episode of the

Argentine Saga, 15 Law and Business Review of

the Americas 745 (2009) . . . . . . . . . . . . . . . . . . 14

Rodrigo Olivares-Caminal, Understanding the Pari

Passu Clause in Sovereign Debt Instruments:

A Complex Quest,

43 Int’l Law. 1217 (Fall 2009) . . . . . . . 11, 13, 18

Mark Weidemaier, Robert Scott & G. Mitu Gulati,

Origin Myths, Contracts and the Hunt for Pari

Passu, UNC Legal Studies Research

Paper No. 1633439 (2011).. . . . . . . . . . . . . . . . . 14

Philip R. Wood, Pari Passu Clauses—What Do They

Mean?, 18 Butterworths J. of Int'l Banking and

Financial L. 371 (2003) . . . . . . . . . . . . . . . . . . . 11

Amicus Curiae Clearinghouse  New York

2 PHILIP R.WOOD, LAW AND PRACTICE OF INTERNATIONAL FINANCE § 6.03

(1990)..................................................................................................................10

3 COLLIER BANKRUPTCY PRACTICE GUIDE ¶ 55.07 (Alan Resnick & Henry J.

Sommer ed. 2011)...............................................................................................10

Ad Hoc Comm. For Revision of the 1983 Model Simplified Indenture, Am.

Bar Ass’n, Revised Model Simplified Indenture, 55 BUS. LAW. 1115

(2000)..................................................................................................................14

Debra J. Schnebel, Intercreditor and Subordination Agreements – A

Practical Guide, 118 BANKING L.J. 48 (2001) ...................................................10

Edward Luce, Pakistan a warning for bondholders, FIN. TIMES, Feb. 18,

1999, at 6.............................................................................................................15

Elliott Assocs., L.P. v. Banco de la Nacion, Hof van Beroep [HvB]

[Court of Appeal] Brussel, 8e Kamer, Sept. 26, 2000, A.R. Nr.

2000/QR/92 (Belg.) ........................................................................................5, 11

Financial Markets Law Committee, Issue 79 – Pari Passu Clauses

(Mar. 2005) .........................................................................................................13

G. Mitu Gulati & Kenneth N. Klee, Sovereign Piracy,

56 BUS. LAW. 635 (2001)....................................................................................11

International Bank for Reconstruction and Development, GENERAL

CONDITIONS APPLICABLE TO LOAN AND GUARANTEE AGREEMENTS FOR

SINGLE CURRENCY LOANS § 9.03 (1995)............................................................15

Kensington International Ltd. v. Republic of the Congo,

2002 No. 1088 (Eng. Commercial Ct. Apr. 16, 2003) .......................................11

Lee C. Buchheit, HOW TO NEGOTIATE EUROCURRENCY LOAN AGREEMENTS

(2d ed. 2004) .......................................................................................................12

Lee C. Buchheit & Jeremiah S. Pam, The Pari Passu Clause in Sovereign

Debt Instruments, 53 EMORY L.J. 869 (2004) ....................................................10

LNC Inv. LLC v. Republic of Nicaragua, Rechtbanken van Koophandel

[Kh.] [Commercial Court] Brussel, Sept. 11, 2003, R.K. 240/03 (Belg.)............5

Memorandum of Amicus Curiae The New York Clearing House Ass’n

L.L.C., Macrotecnic Int’l Corp. v. Republic of Argentina, No. 02 Civ.

5932 (TPG) (S.D.N.Y. Jan. 12, 2004) ..................................................................8

Memorandum of Law of Amicus Curiae Federal Reserve Bank of New

York, Macrotecnic International Corp. v. Republic of Argentina,

No. 02 Civ. 5932 (TPG) (S.D.N.Y. Jan. 12, 2004) .................................. 8, 22-23

Permanent Editorial Bd. for the Uniform Commercial Code, PEB

Commentary No. 16: Sections 4A-502(d) and 4A-503 (July 1, 2009) ..............24

Philip R. Wood, Pari Passu Clauses – What Do They Mean?,

BUTTERWORTHS J. INT’L BANKING &FIN. L. 371 (2003) ...................................11

Statement of Interest of the United States, Macrotecnic International Corp.

v. Republic of Argentina,

No. 02 Civ. 5932 (TPG) (S.D.N.Y. Jan. 12, 2004) ..............................................8

William Tudor John, Sovereign Risk and Immunity Under English Law and

Practice, 1 INTERNATIONAL FINANCIAL LAW 79 (2d ed. R. Rendell ed.

1983) ...................................................................................................................10

Working Group on International Financial Crises, REPORT OF THE WORKING

GROUP ON INTERNATIONAL FINANCIAL CRISES (1998) .......................................14

Inhaltsverzeichnis der Berufungsschrift von Argentinien

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii􀀃
PRELIMINARY STATEMENT ............................................................................... 1􀀃
JURISDICTIONAL STATEMENT .......................................................................... 5􀀃
ISSUES PRESENTED ............................................................................................... 6􀀃
STATEMENT OF THE CASE .................................................................................. 8􀀃
STATEMENT OF FACTS ........................................................................................ 9􀀃
A.􀀃 The Pari Passu Clause ................................................................. 9􀀃
B.􀀃 NML’s Previous Attempt To Create A New Meaning For
The Pari Passu Clause ............................................................... 12􀀃
C.􀀃 After Six-Year Delay, NML Moves For Injunctive Relief
Pursuant To The Pari Passu Clause .......................................... 16􀀃
D.􀀃 The District Court Enters The Permanent Injunctions
Requiring Full Payment To Plaintiffs And Purporting To
Restrain Payments To Other Bondholders ................................ 20􀀃
E.􀀃 The “Me Too” Plaintiffs ........................................................... 23􀀃
STANDARD OF REVIEW ..................................................................................... 24􀀃
SUMMARY OF ARGUMENT ............................................................................... 25􀀃
ARGUMENT ........................................................................................................... 29􀀃
I.􀀃 THE ORDERS BELOW MUST BE VACATED BECAUSE
NML’S READING OF THE PARI PASSU CLAUSE IS
WRONG .............................................................................................. 30􀀃
A.􀀃 The Pari Passu Clause Does Not Require Simultaneous “Pro
Rata” Payments Or Proportional Distribution Of Payment
Amounts .................................................................................... 31􀀃
1.􀀃 The Plain Meaning Of The Pari Passu Clause Deals
With The Formal Ranking Of Creditor Claims .............. 31􀀃
2.􀀃 The Impropriety Of NML’s Interpretation Of The
Pari Passu Clause Is Further Demonstrated By
Canons Of Contract Interpretation And The Fact That
It Leads To Absurd Results ............................................ 37􀀃
ii
Page
B.􀀃 The 2005 “Lock Law” And Law 26,547 Did Not Violate
The Pari Passu Clause ............................................................... 45􀀃
C.􀀃 The Remedy For Breach Of The Pari Passu Clause Is
Acceleration .............................................................................. 48􀀃
II.􀀃 THE PERMANENT INJUNCTIONS VIOLATE THE FSIA ............ 49􀀃
III.􀀃 THE PERMANENT INJUNCTIONS PURPORT TO RESTRAIN
PROPERTY IN WHICH NEITHER PLAINTIFFS NOR THE
REPUBLIC HAVE ANY INTEREST ................................................ 53􀀃
IV.􀀃 PLAINTIFFS HAVE NOT SUFFERED IRREPARABLE HARM ... 56􀀃
V.􀀃 THE PERMANENT INJUNCTIONS ARE CONTRARY TO
THE PUBLIC INTEREST AND THE BALANCE OF
HARDSHIPS MILITATES TOWARDS THEIR DENIAL ............... 60􀀃
VI.􀀃 PLAINTIFFS’ PARI PASSU CLAIMS ARE BARRED BY
LACHES ............................................................................................. 65􀀃
A.􀀃 Plaintiffs Knew Of The Alleged Pari Passu “Breach” Years
Before Bringing Their Claims, And Inexcusably Delayed In
Bringing Them .......................................................................... 65􀀃
B.􀀃 The Republic, Its Citizens And Third Party Creditors Will
Suffer Prejudice As A Result Of Plaintiffs’ Inexcusable
Delay ......................................................................................... 68􀀃
VII.􀀃 THE PRELIMINARY INJUNCTION MUST BE VACATED ......... 70􀀃
CONCLUSION ........................................................................................................ 72􀀃

Inhaltsangabe des amicus curiae der US-Regierung

TABLE OF CONTENTS
PAGE
Interest of the United States . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
POINT I—THIS COURT SHOULD REJECT THE DISTRICT
COURT’S INTERPRETATION OF THE PARI PASSU
CLAUSE IN SOVEREIGN DEBT INSTRUMENTS .. . . . 6
A. The United States Has Long Promoted
Consensual, Orderly Sovereign Debt
Restructuring Efforts Within a Framework of
Contractual Certainty . . . . . . . . . . . . . . . . . 6
B. The District Court’s Interpretation of the
Pari Passu Clause Disrupts Settled
Expectations, and Is Incorrect as a Matter of
Law and Adverse to the United States’ Policy
Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. The Ratable Payment Interpretation of
the Pari Passu Clause Is Incorrect and
Creates Uncertainty in Sovereign
Contractual Relationships . . . . . . . . . . 10
a. Longstanding Market Practice
Supports a Narrow Reading of the
Pari Passu Clause . . . . . . . . . . . . . 11
b. The Ratable Payment Interpretation
of the Pari Passu Clause Deviates
From This Settled Market
Understanding .. . . . . . . . . . . . . . . 13
2. The Ratable Payment Interpretation of
the Pari Passu Clause Would Disrupt the
Orderly Resolution of Sovereign Debt
Crises . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. The Ratable Payment Interpretation of
the Pari Passu Clause Could Prevent
Sovereign Debtors From Servicing Debts
to International Financial
Institutions .. . . . . . . . . . . . . . . . . . . . . 19
POINT II—THE DISTRICT COURT’S ORDERS ARE
IMPERMISSIBLY BROAD . . . . . . . . . . . . . . . . . . . . 21
A. The Orders Contravene the Purpose and
Structure of the FSIA . . . . . . . . . . . . . . . . . 22
B. The Orders Are Harmful to the United
States’ Foreign Relations . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Inhaltsangabe des amicus curiae des newyorker Clearinghauses

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT OF INTEREST OF AMICUS CURIAE.............................................6
ARGUMENT.............................................................................................................9
I. INTERPRETING THE PARI PASSU CLAUSE TO
REQUIRE RATABLE PAYMENTS TO UNSECURED
CREDITORS IS INCONSISTENT WITH THE
LANGUAGE OF THE CLAUSE, OTHER PROVISIONS
OF THE CONTRACT, AND MARKET PRACTICE AND
UNDERSTANDING.............................................................................9
A. Interpreting and Understanding Pari Passu Clauses. .................9
B. Reading the Pari Passu Clause in the Context of the
Entire FAA Confirms That the Lower Court’s
Interpretation is Erroneous........................................................11
II. INTERPRETING THE PARI PASSU CLAUSE TO
REQUIRE RATABLE PAYMENT TO UNSECURED
CREDITORS, AND THE INJUNCTION BASED UPON
THAT INTERPRETATION, THREATENS THE
ORDERLY FUNCTIONING OF THE PAYMENT
SYSTEMS AND CREDIT MARKETS..............................................17
A. The Injunction Would Place Undue Burdens on the
Payment Systems That Are Inconsistent with New York
Law and This Court’s Precedents. ............................................17
B. The Orders Threaten the Proper Functioning of Credit
Markets and the Certainty of Necessary Negotiated
Workouts and Debt Restructurings...........................................24
CONCLUSION........................................................................................................27

In a document named “Amicus Curiae” the US Goverment said that Griesa’s interpretation of a contract clause “would allow a sole creditor to frustrate the application of reestructuration plan

US backs Argentina in fight against vulture funds

President Cristina Fernández de Kirchner and US President Barack Obama

The US government requested a Court of Appeals to reverse the ruling of Judge Thomas Griesa in favor of a vulture fund, which forced Argentina last February to pay the interest on the debt of bonds exchanges carried out 2005 and 2010, sources said.
In a document named “Amicus Curiae” the US Goverment said that Griesa’s interpretation of a contract clause “would allow a sole creditor to frustrate the application of reestructuration plan that has international support and would thus undermine decades of US efforts to sponsor a system of cooperation to solve the crisis of sovereign debt.
Thus, Barack Obama’s administration backed Argentina in its fight against vulture funds in US courts and particularly against Judge’s Griesa’s February 23rd ruling which favoured bondholders NML, Elliot and Aurelius.
Griesa’s ruling not is effective yet as US attorneys filed an apeal against the ruling.

http://www.buenosairesherald.com/article/97476/us-backs-argentina-in-fight-against-vulture-funds

The U.S. has sided with Argentina and asked a federal appeals court to reverse lower-court rulings stemming from bond holders’ attempts to collect on judgments against the republic.

U.S. Seeks Reversal of Lower Court Argentine Bond Rulings

By Patricia Hurtado and Drew Benson - Apr 6, 2012 12:57 AM GMT+0200

The U.S. has sided with Argentina and asked a federal appeals court to reverse lower-court rulings stemming from bond holders’ attempts to collect on judgments against the republic.
The government yesterday urged the U.S. Circuit Court of Appeals in New York to reverse rulings directing Argentina to make payments to Elliott Management Corp.’s NML Capital Fund before it makes payments to others on bonds the republic issued in its 2005 and 2010 debt restructurings. U.S. District Judge Thomas P. Griesa in December and February issued the rulings that the U.S. now seeks to reverse.
The U.S. government said in a legal brief that Griesa’s interpretation of a contract clause “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.”
The litigation stems from efforts by creditors to collect on bonds following Argentina’s 2001 default. Since then, Argentina hasn’t made payments on the bonds and instead restructured approximately 92 percent of its debt in exchanges in 2005 and 2010. Litigating creditors have rejected both offers.
The U.S. says in its friend-of-the-court brief that it doesn’t “condone or excuse” Argentina’s failure to make the payments. Still, the orders issued by Judge Griesa are “impermissibly broad” and harmful to U.S. foreign relations, the brief says.
The case is NML Capital Ltd, Aurelius Capital Mater Ltd, 12-105, U.S. Court of Appeals for the Second Circuit (Manhattan).
To contact the reporters on this story: Patricia Hurtado in New York at pathurtado@bloomberg.net; Drew Benson in New York at abenson9@bloomberg.net
To contact the editor responsible for this story: Andrew Dunn at adunn8@bloomberg.net

http://www.bloomberg.com/news/2012-04-05/u-s-seeks-reversal-of-lower-court-argentine-bond-rulings-1-.html