Due documenti sempre degli stessi autori, Lee C. Buchheit y Mitu Gulati.
"Conclusion
Until the scope of the Second Circuit’s decisions in the NML case are fully clarified, the architects of sovereign debt restructurings under New York law will need to find some way of assuring those creditors who elect to participate in a restructuring that payments under the New Bonds they receive in the workout will not later become the object of an NML-style pari passu injunction. If such an assurance cannot be given, the prospects for a successful debt restructuring will be diminished."
"Conclusion
Napoleon’s invasion of Russia in 1812 was a large undertaking. Restructuring Venezuela’s public sector debt will be a very large undertaking.
Venezuela will not be able to view the prospect of holdout creditors with the same equanimity that Argentina showed in 2005 at the time of that country’s bond restructuring. The mischief that litigating holdout creditors can cause in Venezuela is considerably greater than Argentina ever faced. The trick will be in finding ways to discourage prospective holdouts from holding out and to defang the legal threat posed by those who persist in declining an offer to restructure.
Even if the holdout creditor threat can be defused, there are a number of other thorny issues to be addressed in a restructuring of Venezuela’s public debt. What can be done with the non-debt claims such as the ICSID arbitration awards or blocked Bolivar deposits? What treatment will be given to bonds placed in the market at a very heavy original issue discount or warehoused with a state-owned entity and then purportedly resold in a secondary market transaction at a large discount? What weight, if any, should be given to the assertion that some transactions were undertaken in the absence of local legislative approval? Let us hope that the analogy to Napoleon’s Russian adventure in 1812 will stop at the size of the undertaking and will not extend to its outcome."
The markets have long debated whether the Venezuelan authorities
would or could attempt to restructure Republic bonds while leaving PDVSA
securities untouched. (No cross-default clauses link the bonds of each obligor with
the other.) The argument supporting this view has focused on two factors.11 First,
Venezuelan oil is sold by PDVSA and its subsidiaries. The legal enforcement risks
associated with a bond default would therefore fall more immediately, and more
heavily, on PDVSA. Second, most series of Republic bonds contain collective action
clauses that permit a super-majority of holders (75% or 85%) to agree to a
restructuring with that decision binding all holders of the series. The absence of
collective action clauses in PDVSA bonds have led some investors to conclude that a
restructuring of PDVSA bonds would inevitably be a messier affair, potentially
threatening the lifeblood of an economy that derives 95% of its trade revenue from
the sale of oil. This, the argument goes, is something the Venezuelan authorities
would consider only as a last resort.
Our view is to the contrary. For the reasons discussed below, we
believe that restructuring PDVSA bonds may actually be easier, and less prone to
holdout behavior, than a similar exercise for Republic bonds.