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When Contractual Rights are Better than Constitutional Rights: Addressing Puerto Rico's Debt Crisis Through Constitutional Amendment
Constitutional rights are commonly considered the most fundamental, most protective of rights. Yet, in the context of public debt, there is a critical difference between constitutional provisions and contractual promises: who wields the power to amend. It generally takes mutual consent for parties to amend a contract, but the Constitution of Puerto Rico can be amended by the people of Puerto Rico by referendum, without creditors’ consent. Creditors understand that local law is subject to change. Creditors who do not want to assume that risk negotiate for explicit contractual protections and insist that another jurisdiction’s law govern the debt. For instance, Puerto Rico’s latest bonds, issued in 2014, are protected by explicit priority and remedy provisions in the language of the contract and are governed by New York law (hereinafter “NY law bonds”). The NY law bonds account for only about $3.5 billion of Puerto Rico’s $17 billion in general obligation (“GO”) debt. Accordingly, if Puerto Rico amended its Constitution it could reprioritize public spending over the significant majority of its general obligation bonds, those governed by Puerto Rican law (“PR bonds”). [...]