Explore the fierce rivalry in sovereign debt law between England and New York, where lawyers trade barbs over jurisdiction. Discover how issuers are now able to switch governing laws midstream in response to questionable New York legislation. Delve into the complexities of sovereign bond restructuring with fascinating insights on Suriname and Sri Lanka, and unpack the implications of innovative restructuring models. With humor and sharp commentary, the hosts tackle the evolving landscape of contract law and investor rights.
The competition for governing law in sovereign debt deals highlights a shift away from traditional New York law towards more favorable jurisdictions.
Recent contractual innovations, like investor-controlled law changes, reveal significant risks and strategic developments in sovereign debt negotiations.
Deep dives
Confusion Over Choice of Law Clauses
The discussion revolves around the rising concerns regarding choice of law clauses in sovereign debt deals, particularly as investors contemplate moving away from New York law. Investors have shown mixed reactions to these developments, with some seeing them as beneficial options while others view them as problematic due to potential public policy violations. The hosts express both confusion and interest in the theoretical aspects of choosing jurisdiction, highlighting a market reaction against perceived unwise legislative decisions in New York. This legislative environment has led to bond deals where jurisdictions such as California, Texas, and Delaware may soon be favored, leading to possible competitive advantages for investors.
Suriname's Risky Clause Explained
The analysis of a specific clause from a Suriname bond deal reveals significant risks associated with changing governing law provisions. It was crafted to allow investors to change the governing law with a simpler voting threshold, however, this could inadvertently expose them to coercive restructuring tactics by the issuer. The hosts note that such provisions might seem clever initially, but they overlook the larger implications that could disadvantage investors. The conversation emphasizes the importance of understanding the contractual nuances, highlighting the need for vigilance when adapting boilerplate terms in legal agreements.
Sri Lanka's Strategic Approach to Law Change
In contrast to the Suriname situation, the discussion also delves into a recent announcement regarding Sri Lanka's bond deals, which suggest a more strategic approach towards governing law. These agreements may allow investors to change the governing law without issuer consent, possibly creating a more favorable environment for them. The specifics remain unclear, but initial indications suggest provisions that could limit jurisdiction to investor-friendly laws, mitigating risks associated with local jurisdictional biases. This emerging trend may signal an evolution in how sovereign debt markets negotiate governing law clauses, potentially reflecting a shift away from the traditional dominance of New York law.
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
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