Page content
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 involves a radical departure from the traditional unenforceability of sovereign debt in favor of the opposite extreme: potent injunctive remedies applicable to third parties. Problems with the NML precedent extend far beyond Argentina’s immediate situation. NML is a landmark case in a trend that threatens destabilizing consequences for sovereign debt restructuring — a major concern for sovereigns as well as their creditors — and creates serious uncertainties for financial institutions. Argentina’s default in 2001 led to the most exceptional sovereign debt situation in modern history. Although the Second Circuit partially recognized Argentina’s outlier status as a “recalcitrant” debtor, Argentina’s exceptionalism extends to virtually all phases of sovereign debt. Accordingly, NML represents an unsuitable point of departure for creating precedent in a critical area of law. This article contents that if the Supreme Court does not overturn the Second Circuit’s approach to pari passu, the “equal footing” covenant, other courts should consider the NML precedent narrowly until broader solutions for sovereign insolvency are implemented.