Third Parties Get Face Time With Court In Argentina-Elliott Battle

Feb 13 2013 | 12:07pm ET

This month's federal appeals court hearing of the dispute between Elliott Associates and Argentina will feature more than just a rematch of one of the most historic U.S. Supreme Court cases in history.

The main antagonists remain Theodore Olson and David Boies, who argued the Bush v. Gore case that decided the 2000 presidential election. Olson represents Elliott affiliate NML Capital while Boies will plead for Argentina. But the Second Circuit Court of Appeals this week gave two other groups the chance to make their case at the Feb. 27 hearing.

Argentina has appealed a lower-court ruling that it must pay $1.3 billion in escrow to Elliott and other holdouts from its 2001 default before it pays the more than 90% of bondholders who accepted its debt exchanges in 2005 and 2010. The Second Circuit has already rejected Argentina's appeal in the main case; this hearing will determine whether the lower-court judge was correct to lift an injunction allowing Argentina to continue paying the exchange bondholders while it seeks further appeals.

Joining Argentina in the fight against Elliott will be lawyers for the exchange bondholders and for Bank of New York Mellon Corp., the trustee for the exchange bondholders. Both have complained that the lifting of the injunction is unfair, with BNY Mellon noting that it could be put into legal jeopardy by it.

The two will have seven minutes each before the court. To counter them, Olson will get an extra five minutes, giving him 20, while Argentina will remain limited to 15 minutes.

Separately, the lower-court judge whose rulings Argentina is seeking to overturn issued another decision that will rile the country. U.S. District Judge Thomas Griesa ordered the Banco de la Nacion Argentina to produce documents "relating to any assets or accounts maintained at BNA by Argentina or for Argentina's benefit, any debts owed by BNA to Argentina and transfers into or out of Argentina's accounts." NML has the right to understand Argentina's "financial circulatory system" as it seeks to seize the country's assets.

Griesa, who has made clear he is not happy with Argentina's behavior during the case, rejected BNA's argument that his order would violate the laws of Argentina, Bolizia, Brazil, the Cayman Islands, Chile, Panama, Paraguay and Spain. To begin with, he denied that the order would violate the laws of all but one of those countries. But even if it did, he made clear, he would not care.

"The court finds that with the exception of Uruguay, complying with this court's orders would not violate the various countries' laws," Griesa wrote. "However, even if disclosure violated the foreign countries' laws, as in the case of Uruguay, this court still orders disclosure."


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