Don’t Cry For Me Argentine Bondholders: Avoiding Supreme (Court) Confusion

Author:Mr Henry Weisburg, Antonia E. Stolper, Stephen J. Marzen and Patrick Clancy
Profession:Shearman & Sterling LLP
 
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Argentina is in hot pursuit of multiple audiences before the Supreme Court: two petitions for writs of certiorari filed by Argentina are pending in the NML v. Argentina cases, and another is almost certainly on the way. In addition, a writ of certiorari has already been issued in another case against Argentina. With so much action involving Argentina in the high court, there is the potential for confusion between these multiple proceedings, which we clarify in this alert.

The opinions and other papers relating to these cases, as well as our many prior client notes, are all available on our Argentine Sovereign Debt webpage: www.shearman.com/argentine-sovereign-debt.

NML Capital, Ltd. v. Argentina (Supreme Court Docket No. 12-1494): Review of the Second Circuit's October 26, 2012 Decision (Pari Passu)

On June 24, 2013, Argentina filed a certiorari petition with respect to the Second Circuit's October 26, 2012 decision, in which the Second Court affirmed Judge Griesa's interpretation of the pari passu clause, his determination that the plaintiffs were entitled to a "Ratable Payment," and his conclusion that the Injunction did not violate the Foreign Sovereign Immunities Act ("FSIA"). However, the Court remanded the case to Judge Griesa to address certain issues relating to the operation of its Injunction.

As discussed in our June 27, 2013 note, we assess the likelihood that this petition will be granted as very low. Further, in its August 23 decision (as discussed in our August 27, 2013 note, at page 6), the Second Circuit expressed its view that this petition was premature, stating, "Apparently, Argentina filed a petition for certiorari in this matter on June 24, 2013, notwithstanding that, as of that date, no final order had yet issued in this case. See Supreme Court Dkt. 12-1494." We continue to be of the view that this petition will not be granted.

The Supreme Court is scheduled to consider this petition at its internal conference among the Justices that begins on September 30. Should the certiorari petition be denied (or granted), it will appear in an order of the Court shortly thereafter. (The Court's orders can be found on the Supreme Court's website, at www.supremecourt.gov.) It is possible that the Court will simply defer a decision pending the filing of the next certiorari petition in this case, discussed immediately below.

NML Capital, Ltd. v. Argentina: Review of the Second Circuit's August 23, 2013 Decision (Pari Passu)

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