Clauses & Controversies

Mitu Gulati & Mark Weidemaier
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Clauses & Controversies

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

  1. Ep 146 ft. Mitu & Mark

    ٢ جمادى الأولى

    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

    ٣٧ من الدقائق
  2. Ep 145 ft. Mitu & Mark

    ٤ ربيع الآخر

    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

    ٣١ من الدقائق
  3. Ep 144 ft. Nate Oman

    ٢٧ ربيع الأول

    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

    ٣٥ من الدقائق
  4. Ep 143 ft. Mitu & Mark

    ٢٠ ربيع الأول

    Ep 143 ft. Mitu & Mark

    Hamilton Bank v. Sri Lanka: What the $@#$ ? Accusations that Hamilton Bank is a giant fraudster stealing depositor funds, bizarro requests from Hamilton to the court that other creditors be constrained in using their contract rights against it, an amicus intervention in the case to say nothing at all . . . and on and on. This case gets more and more bizarre, which makes us suspect that whatever is going on under the surface is even weirder than the (already weird) stuff that is visible to outsiders like us. What no one is discussing, though, is the “unconditional rights” provision in the trust indenture document that arguably gives minority bondholders protection against any attempt to do a cram down. Producer: Leanna Doty

    ٣٦ من الدقائق
  5. Ep 142 ft. Theo Maret

    ٦ ربيع الأول

    Ep 142 ft. Theo Maret

    Zambia’s Restructuring: A Post-Mortem Zambia’s recently concluded restructuring seemed to drag on forever, debilitated by conflicts among the various creditor groups. Why did these different groups think the others were being unreasonable in their demands? And what can we learn from what happened? Our guest is one of the keenest observers in the sovereign debt world, who followed this restructuring at the ground level, Theo Maret. Producer: Leanna Doty

    ٤٠ من الدقائق
  6. Ep 141 ft. Mitu & Mark

    ٢٩ صفر

    Ep 141 ft. Mitu & Mark

    The Champerty Show Ah, Champerty. Perpetual runner-up, to the doctrine of consideration, in the Stupidest Legal Rule pageant. Why do directly (e.g., via the abuse of process claim) what you can do clumsily and indirectly (by limiting an injured party’s access to finance)? But what do we know? Actually, not much. We do know that Venezuela/PDVSA won a very interesting Champerty case in the Southern District of New York. And while we know very little about Champerty, we know enough to know we don’t like the doctrine very much, even if the outcome seems defensible. Producer: Leanna Doty

    ٣٦ من الدقائق
  7. Ep 140 ft. Zohra Ahmed

    ٢٢ صفر

    Ep 140 ft. Zohra Ahmed

    IMF Rescues Pakistan From the Brink of Default (Again) Pakistan looks to be in the process of finalizing yet another IMF program. Yet again, it has been rescued from the brink of default with a bailout justified by some heroic assumptions about how a state of sustainability will magically materialize. Why? Our guest, Zohra Ahmed, of Boston University Law School, has a theory: that these bailouts (that ultimately hurt Pakistan because true economic reform never happens) are the price of consent. Specifically, consent by Pakistan to cooperate with US military interests. We discuss with Zohra both her theory and the evidence for it. Producer: Leanna Doty

    ٣٦ من الدقائق
  8. Ep 139 ft. Oona Hathaway

    ١٥ صفر

    Ep 139 ft. Oona Hathaway

    A Better Way to Freeze (and Seize?) Russian Assets? Ever since Russia invaded Ukraine in 2022, there has been talk of what international law doctrines might be utilized to induce Russia to back off. One of those doctrines that has been whispered about is now, thanks to a wonderful new article by our guest, international law guru and Yale Law professor, Oona Hathaway, is that of Countermeasures. Oona and her co authors not only explain the law of countermeasures, but argue that these legal principles naturally extend into a doctrine of “collective countermeasures”. We ask Oona about these doctrines and their scope, particularly in the context of Russia and Ukraine. She argues that the doctrine, properly understood and applied, is (and should be) narrow. To quote Spider Man (maybe), “With Great Power Comes Great Responsibility”. Producer: Leanna Doty

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

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    Mitu Gulati & Mark Weidemaier
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    Clauses & Controversies

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