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Salmon: Argentina's Desperate Exchange Proposal

NEW YORK ( Reuters Blogs) -- Argentina has done as the Second Circuit Court of Appeals ordered, and has now formally put forward its proposal for paying off Elliott Associates and the other bondholders suing it in New York court.

You could be excused for not entirely understanding what Argentina is proposing, in this 22-page filing: It's not particularly easy to understand. But the upshot is simple, and pretty much as everybody expected: Argentina is offering to give Elliott pretty much exactly the same deal as it gave all the other holders of its defaulted bonds. In practice, that means that Elliott would swap into new Discount bonds with a present market value of roughly $120 million; if settling the case in that way helped Argentina's bonds to rally back to where they were trading in October, then the market value would rise to about $176 million.

Argentina is at pains to point out that “this proposal is a voluntary option”: They’re not proposing that the court force Elliott to accept the deal. But at the same time, Argentina knows full well that the chances of Elliott voluntarily accepting this deal are exactly zero. Elliott is suing for a total of $720 million, and while it might be willing to settle at a modest discount to that sum, there’s no way it’s going to accept the same kind of 70% haircut that it has consistently rejected all along.

Indeed, it's entirely improbable that any of the current plaintiffs, having rejected two previous exchange offers and having spent many millions of dollars in legal fees, would be remotely inclined to accept this offer were it put to them. Which makes it really hard for the court to accept this proposal as a good-faith attempt to pay the plaintiffs what they're owed.

The court specifically asked Argentina how it was going to make current the obligations of the original bonds; and/or how it might repay those original obligations going forwards. Argentina, in response, has proposed doing neither. Instead, it is proposing to give the plaintiffs the 70% haircut, on those original bonds, which they have consistently rejected.

The AP's Michael Warren says that Argentina’s proposal is “creative,” but I don’t see much evidence of creativity here: Instead, I see a lot of the failed rhetoric that helped bring Argentina to this fraught position in the first place. “Plaintiffs cannot use the pari passu clause,” writes Argentina’s lawyer, Jonathan Blackman, “to compel payment on terms better than those received by the vast majority of creditors who experienced precisely the same default as plaintiffs.” But of course they can do that, or at least they’re trying to, and so far, New York’s courts have ruled quite consistently that they have every right to do so.

There are signs of real desperation in Argentina's filing: It spends a lot of time, for instance, talking about the price at which Elliott bought its debt, and the profit that Elliott would make if it got the full $720 million it's asking for. It's an incredibly weak argument: For one thing, there's no law against making money in the markets, and for another, it ignores all the judgment debt that Elliott holds, and isn't getting paid on, and isn't litigating in this case.

Indeed, it's far from obvious whether Argentina is extending this offer to judgment creditors, who make up the vast majority of the country’s holdouts. But one thing is clear: Everything in this filing is entirely consistent with the behavior that has already been found to be “contumacious.” Argentina is a sovereign nation, and it’s staring down the court, here, daring it to go through with its dangerous plan. And frankly it's very hard to imagine that at this point, because of this filing, the court is finally going to blink.

I've been largely sympathetic to Argentina's position in this case all along, but in the wake of the various rulings that have already been handed down, Argentina doesn't really have a legal leg to stand on any more. That's why it's resorting to desperate measures like saying that Elliott is going to make an unconscionable amount of money if it wins: Where legal reasoning has failed, all that's left is an attempt to bypass the law and attempt to scramble onto the moral high ground. The problem, of course, is that it's really hard for the contumacious Argentines to occupy any kind of moral high ground at all, even when their opponent is a notorious vulture fund.

As far as I know, Argentina has not hired any kind of bankers to run this proposed exchange offer. Which is further evidence, if any were needed, that it will never see the light of day. You've heard of giving someone an offer they can't refuse: This is an offer the plaintiffs can't accept, and Argentina knows it. I find it extremely hard to believe that the New York courts, having come as far as they have, will consider it a remotely adequate remedy.

-- Written by Felix Salmon in New York.

Read more of Felix's blogs at Reuters.

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