Clauses & Controversies

Mitu Gulati & Mark Weidemaier
  • 4.9 (47)
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Clauses & Controversies

Clauses and Controversies: A Podcast about International Finance, Contract Clauses and the Controversies Surrounding These Clauses

  1. Ep 151 ft. Sarah Carlson & Elena Duggar

    5 DAYS AGO

    Ep 151 ft. Sarah Carlson & Elena Duggar

    Greece’s (Ratings) Rise From the Ashes – Wow, but also How? We study sovereign restructurings, which means we primarily study countries going into and struggling to get out of crisis. Serial defaulters such as Argentina and Ecuador are frequent topics on our podcasts. And given how bad things were a decade ago, and its history of frequent defaults before that, we might have expected that Greece would join Argentina and Ecuador as among our more frequent podcast topics. And, indeed, Greece is back. But not because it is back in crisis. Instead, it is because it has had a remarkable rise from the ashes to almost investment grade. To discuss this rise, our two good friends from Moodys Ratings, Sarah Carlson and Elena Duggar, join us. Check out an overview of Moodys Sovereign Methodology here: https://ratings.moodys.io/sovereign-methodology Producer: Leanna Doty

    39 min
  2. Ep 150 ft. Andrew Kissner

    FEB 3

    Ep 150 ft. Andrew Kissner

    Getting "J. Screwed" Sounds Better than Getting "Argentina'd" In the world of corporate debt, everyone seems to be talking about "Liability Management Exercises," where a borrower, with a subset of creditors, exploits loose loan covenants in ways that leave other creditors screaming mad. Even better, these LME techniques have clever names: "trap doors," getting "J. Screwed," etc. And while the worlds of sovereign and corporate debt don't overlap all that much, we wonder if litigation over LMEs can tell us anything about sovereign debt restructurings. Alas, we don't know much about corporate debt. Thankfully, Andrew Kissner (Morrison Foerster) joins us to dispel our confusion. Producer: Leanna Doty

    47 min
  3. Ep 149 ft. Mitu & Mark

    JAN 20

    Ep 149 ft. Mitu & Mark

    Is Sri Lanka’s Loss Reinstatement Provision a Penalty? Two of our favorite things to talk about are innovative contract clauses and ancient illogical contract doctrines that unexpectedly bite in the ass. A few weeks ago, we walked through the Loss Reinstatement provisions for Ghana and Zambia. We asked the question of whether those provisions might run afoul of the antiquated and bizarre (to us) anti-penalty doctrines under English and New York law. English law having recently become more permissive with regards to permitting penalty type clauses – if they have a legitimate business purpose -- we speculated about whether the Zambia/Ghana clauses might pass muster. Maybe. But Sri Lanka’s version of the clauses is under New York law. And New York law on this matter is still stuck in the dark ages, best we can tell. So, does the Loss Reinstatement provision for Sri Lanka run afoul of the penalty doctrine? Producer: Leanna Doty

    44 min
  4. Ep 148 ft. Mitu & Mark

    JAN 6

    Ep 148 ft. Mitu & Mark

    Sri Lanka's New MFC Clause — Have "Contorts" Arrived in Sovereign Debt? The doctrine of tortious interference with contracts is one of several that sits at the intersection of tort and contract law. These "contorts" confuse law students — lawyers and law professors too! — but can be important in practice. If not anticipated, they can create problems for unsuspecting parties and lawyers. Has Sri Lanka’s novel Most Favored Creditor clause created problems for creditors who participated in the country's restructuring? The MFC clause is confusing in places. It simultaneously seems to contemplate Sri Lanka striking a deal with holdouts (after litigation ends) and to quite aggressively try to prevent such a deal from happening. We discuss whether this creates risks for restructuring creditors and wonder why such an aggressive clause was viewed as necessary. Producer: Leanna Doty "Shades of Spring" Kevin MacLeod (incompetech.com) Licensed under Creative Commons: By Attribution 4.0 License creativecommons.org/licenses/by/4.0/

    50 min
  5. Ep 147 ft. Paul Stephan

    12/01/2024

    Ep 147 ft. Paul Stephan

    YPF and Argentina’s Contributions to International Law Argentina owes over $16 billion in connection with its nationalization of state oil company YPF. A federal judge in the Southern District of New York is considering whether to order Argentina to hand over its shares in YPF — technically located outside the United States — to pay part of the judgment. Can it do that? Paul Stephan (Virginia) joins to talk about how foreign state property located outside the United States is (and is not) protected by the law of foreign sovereign immunity, residual common law protections, and doctrines like comity. Producer: Leanna Doty "Shades of Spring" Kevin MacLeod (incompetech.com) Licensed under Creative Commons: By Attribution 4.0 License http://creativecommons.org/licenses/by/4.0/

    48 min
  6. Ep 146 ft. Mitu & Mark

    11/04/2024

    Ep 146 ft. Mitu & Mark

    The Penalty Doctrine in Contract Law We've never been fans of the contract law rule against penalties. Why can't parties (sophisticated ones at least) agree to suffer a penalty in the event of breach? We’d ordinarily avoid this topic, because the doctrine makes little sense and the issue doesn’t come up much in the sovereign debt world. But recently, a couple of sovereign restructurings (Ghana and Zambia) have used “Loss Reinstatement Provisions.” At least on their face, these provisions seem vulnerable to challenge under the penalty doctrine, since, if the sovereign defaults on the restructured deal, they impose a loss that seems untethered to the injury creditors have suffered. Would these new clauses be enforced if challenged? The contracts in question are both under English law, which we don't know much about. But that does not stop us from speculating and arguing. Producer: Leanna Doty

    37 min
  7. Ep 145 ft. Mitu & Mark

    10/07/2024

    Ep 145 ft. Mitu & Mark

    A New Competition For Law (and Jurisdiction)? Jurisdictions famously compete for businesses to use their corporate law. Less discussed is the competition for having one’s law chosen to govern contracts. But it happens. Sovereign debt lawyers in England and New York can, if they have a few drinks in them, can be quite entertaining in their sniping at each other about whether English or New York law is better for sovereign issuers. And the sovereigns for their part, seem to only care about what they have done in the past, regardless of what the lawyers say or what court decisions come down (remember pari passu and Judge Griesa in New York – nothing changed). But recently, as a result of the attempts of a few members of the New York legislature to try and mess with sovereign restructuring framework (“improve”, some would say – but not us), a couple of issuers have put in place provisions that allow them to choose to switch governing law (but not jurisdiction?) mid stream, in the event that New York actually passes some daft legislation. We think this is all great fun to talk about. Angry emails about how we should take these matters more seriously should all be sent to the address of Hamilton Bank in Nevis. Producer: Leanna Doty

    31 min
  8. Ep 144 ft. Nate Oman

    09/30/2024

    Ep 144 ft. Nate Oman

    An Execution Sale is Not a Receivership. (Right?) Creditors of Venezuela and PDVSA, its state oil company, have forced an execution sale of PDVSA's only US asset – which happens to be the ultimate parent company of CITGO. The federal judge overseeing the process has tried to keep things orderly, but the inter-creditor fighting is getting juicy. Some lower priority creditors have filed new lawsuits in an apparent attempt to jump the queue. Now the special master overseeing the execution sale process wants the court to enjoin these lawsuits. Which strikes as us a reach – almost as if the execution sale process is some kind of receivership. So we asked Nate Oman, who has written about the potential use of receiverships to solve sovereign debt problems, to help us figure out what is going on. Producer: Leanna Doty

    35 min
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Ratings & Reviews

4.9
out of 5
47 Ratings

About

Clauses and Controversies: A Podcast about International Finance, Contract Clauses and the Controversies Surrounding These Clauses

Information

  • Creator
    Mitu Gulati & Mark Weidemaier
  • Years Active
    2020 - 2025
  • Episodes
    151
  • Rating
    Clean
  • Copyright
    © All rights reserved
  • Show Website
    Clauses & Controversies

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