BUENOS AIRES, Argentina – Argentina is running out of wiggle room in a billion-dollar showdown over foreign debts left unpaid since the country's world-record default a decade ago, and the stakes couldn't be higher for President Cristina Fernandez.
She risks triggering another historic debt default if she doesn't agree to pay the so-called "vulture funds" she blames for much of Argentina's troubles.
Fed up with Argentina's refusal to honor its debts despite losing in appellate court, U.S. District Judge Thomas Griesa in New York said he is determined to make Argentina pay at least something to the plaintiffs.
His idea is to tap into the money Argentina already pays to other bondholders, by making banks that process the payments divert some of the money to the plaintiffs. U.S. financial institutions would become his enforcers, either helping to satisfy the judgment or "aiding and abetting" a crime.
The unprecedented idea was broadly upheld on appeal last month and Griesa tried to push the case closer to resolution late Wednesday by lifting a legal stay, and issuing an order directing Argentina to make a first round of payments into an escrow account on Dec. 15, when the country is scheduled to make payments to the other bondholders.
The idea has sent jitters through the legal departments of the most powerful financial institutions in the United States.
The U.S. Federal Reserve and the Clearing House, a trade group representing the world's largest commercial banks, warned that Griesa's remedy could have severe consequences for the backbone of the U.S. financial system, which automatically moves an average of $2.6 trillion a day in half a million transfers between more than 7,000 banks.
The Federal Reserve's legal brief, filed Sunday, said the entire system depends on transfers being "immediate, final and irrevocable" when processed. Requiring intermediaries to identify, stop and divert payments according to court orders "would impede the use of rapid electronic funds transfers in commerce by causing delays and driving up costs."
The plaintiffs dismissed the concerns, saying that the only bank at risk would be Argentina's "paying agent," the Bank of New York Mellon, which should be held responsible by the court if it doesn't guarantee compliance.
Still, the Federal Reserve's filing pleased Fernandez so much that she cited it in a speech Monday night.
"When an Argentine says something, the President of the Argentines or the economy minister, well, everyone comes out to criticize them, but now it's (Federal Reserve Chairman Ben) Bernanke talking, honey, and everyone shuts their little mouth," she said.
As with so many other things involving Argentina, these debts date back to the bloody dictatorship that ruled from 1976-1983. The military junta tripled the country's foreign debts. By 2001, the burden had become unsustainable and the economy collapsed. Argentina's $95 billion default still stands as a world record.
Sovereign debt is supposed to be paid no matter who runs a country, but Fernandez has always considered this defaulted debt to be illegitimate, forced onto the Argentines by dictators acting in concert with international financial speculators. She and her late husband and predecessor Nestor Kirchner, who took office in 2003, have never made any payments on the defaulted bonds.
Instead, they offered new bonds paying less than 30 cents for each dollar owed in default, and by 2010, 93 percent of the original bondholders agreed to the swaps. The debt relief granted by these "exchange bondholders" enabled Argentina to climb out of a deep economic crisis, and many analysts have described it as a model for Greece and other debt-burdened countries to consider.
Hold-outs led by NML Capital Ltd., an investment fund owned by U.S. billionaire Paul Singer, refused the swaps, insisting on payment in full plus interest, even though some bought the defaulted debt for pennies on the dollar after Argentina's economy collapsed. Singer's lawyers have traveled the world since then seeking to embargo Argentine assets, even getting its navy ship Libertad seized in Ghana as collateral. But they have never collected.
The judge's solution to all this is to force Argentina to pay the holdouts an equal amount each time it makes a payment to the exchange bondholders.
This prompted an outcry from a group of exchange bondholders who collectively own $20 billion in the restructured Argentine debt. They said they "already suffered tens of billions of dollars in losses," and that it's not fair to harm their already diminished returns so that a few holdouts can earn up to 200 percent on their original investments.
If allowed to stand, this kind of remedy will make it impossible for other countries to get critical debt relief, they argued.
The holdouts' response: "Those parties made a business judgment to accept assurances of prompt payment rather than being forced to litigate against the Republic around the world, as the plaintiffs have been forced to do at tremendous expense."
Argentina, meanwhile, has told the judge that its responsibility ends once it delivers the cash to the Bank of New York Mellon, which in turn pays the exchange bondholders. This bank, in turn, said it would suffer lawsuits from all sides if it did anything other than process the payments as intended.
There was no immediate indication from Argentina's government late Wednesday about how it would respond to Griesa's ruling.
The judge said he was taking the action precisely because of "inflammatory declarations" made by Argentine officials, who have vowed not to pay a cent to NML Capital Ltd.
"It is the view of the District Court that these threats of defiance cannot go by unheeded, and that action is called for," Griesa wrote.
Argentina is running out of options. Anything short of full payments could trigger holders of all sorts of Argentine bonds to demand immediate payment in full.
"In reality, what I think they're looking for is to provoke a technical default," the president said Monday night. "What's a technical default? It's when you pay, but not in the right time, or manner, or place. For example, you don't pay in New York so that they don't seize the money."
The exchange bondholders warned that if this happens, "the injunction will have turned a relatively minor default into a cataclysmic default that will further unsettle the already fragile global economy."
Fernandez sought to calm matters, noting that Argentina has $45.3 billion in reserves and a much lighter debt burden than it did years ago.
But if Argentina pays the plaintiffs the $1.43 billion they are demanding, Moody's Investors Service said it could set a legal precedent for other holdouts who together claim nearly $12 billion in unpaid debts.
A default, meanwhile, could put more pressure on an economy already suffering from capital flight and dangerously high inflation. Argentine debt is already rated by Moody's as junk, so the government has few other places to turn for financing.
The holdouts blamed all this "emergency litigation and anxiety" on Argentina's "unrelenting bad faith," and predicted that if it is finally given no other alternative, it will submit to the courts' will.
"There is no reason to believe — and common sense rejects — the notion that Argentina would harm its reputation and credit, and unnecessarily allow tens of billions of dollars of debt to accelerate, simply to avoid paying the plaintiffs $1.43 billion," they said.