High court rules that financiers are more sovereign than Argentina

The victory handed to speculators by the United States Supreme Court over one of the world’s larger countries provides a lesson in where power actually lies. It is not in a government building.

Two June 16 decisions by the U.S. Supreme Court elevates the “right” of hedge-fund speculators to massive windfall profits above all other human considerations. That ruling is consistent with rulings handed down by the secret tribunals used to arbitrate disputes between corporations and national governments that arise under “free trade” agreements that elevate “investors’ rights” above environmental and labor laws.

Between these Supreme Court decisions, most of the attention has focused on the ruling that federal courts in the U.S. can order sovereign countries to hand over information on their assets to speculators. In other words, the U.S. legal system has formally declared it has jurisdiction over other countries. Arrogant as that ruling is, the more dramatic development was the court refusing to hear an appeal of lower-court rulings directing Argentina to pay $1.3 billion to holdout speculators that refused to accept terms agreed to by a large majority of bond holders.

Simply put, the U.S. legal system not only declares U.S. law applies around the world, but that it will be applied to benefit the most aggressively greedy.

The Puerto Madero district of Buenos Aires. (Photo by Juan Ignacio Iglesias)

The Puerto Madero district of Buenos Aires. (Photo by Juan Ignacio Iglesias)

Much of the commentary on this case has attempted to reduce it to a simple morality tale of a debtor being obligated to pay back its creditors. The lead speculator in this affair, hedge-funder Paul Singer, who is trying to be paid the full value of bonds on which he paid pennies on the dollar, has tried to paint it that way.

Reality, of course, is far more complex. So first it is useful to understand the odious nature of Argentina’s debt.

Military junta uses dirty war to impose austerity

Prior to the 1976 military seizure of power, Argentina was an industrialized country with active union and left-wing movements, a sizable middle class and large tracts of arable land. But the Argentine economic elite and the multinational corporations that operated there wanted Argentina turned into a low-wage haven. Only extreme violence would be able to achieve that goal.

Upon seizing power, the military handed over economic policy to a well-connected industrialist, José Alfredo Martínez de Hoz, who ruthlessly implemented a severe neoliberal program of shock therapy, backed by a savage campaign of torture, “disappearances” and killings waged by the military and two allied fascist groups. The CGT union federation was abolished, strikes outlawed, prices raised, wages tightly controlled and social programs cut. As a result, real wages fell by 50 percent within a year. Because of the collapse of internal consumption caused by this austerity, ten percent of Argentina’s workforce was laid off in 1976 alone.

Tariffs were reduced deeply, leaving the country wide open to imports and foreign speculation, causing considerable local industry to shut. High interest rates led to more foreign speculation and an overvalued currency, further hurting national production. Against this backdrop, the dirty war was intensified — initially targeting leftists, the régime quickly began to eliminate students, lawyers, journalists and trade unionists.

This was the régime of which David Rockefeller, whose loans helped finance it, famously said, “I have the impression that Argentina has a regime which understands the private enterprise system.” Further economic contraction occurred, and for the last five years of the military junta, 1978 to 1983, Argentina’s foreign debt increased to US$43 billion from $8 billion, while the share of wages in national income fell to 22 percent from 43 percent.

Civilian control and formal democracy was re-established following the collapse of the junta, but the debt did not go away.

A civilian president, Carlos Menem, imposed an austerity program in the early 1990s in conjunction with selling off state enterprises at below-market prices. This fire sale yielded $23 billion, but the proceeds went to pay foreign debt mostly accumulated by the military dictatorship — after completing these sales, Argentina’s foreign debt had actually grown. The newly privatized companies then imposed massive layoffs and raised consumer prices.

By 1997, about 85 percent of Argentines were unable to meet their basic needs with their income. During this period, Argentina’s debt steadily mounted, leading to a scheme under which the debt would be refinanced. A brief pause in the payment schedule was granted in exchange for higher interest payments — Argentina’s debt increased under the deal, but the investment bank that arranged this restructuring racked up a fee of $100 million, the latest in a series of financial maneuvers that shipped a billion dollars to investment banks in ten years.

It all finally imploded at the end of 2001, when the government froze bank accounts and the country experienced so much unrest that it had five presidents in two weeks. The last of these presidents, Néstor Kirchner, suspended debt payments. Had Argentina resumed scheduled payments in 2005, interest payment alone on the debt would have consumed 35 percent of total government spending. Kirchner announced that Argentina intended to pay only 25 percent of what was owed and any group that refused negotiations would get nothing; in the end, Argentina paid 30 percent to bondholders who agreed to talk.

Vulture capitalist seeks extortionist gains

Approximately 93 percent of bondholders agreed to accept 30 percent of the face value — 30 percent is better than zero. Argentina has repaid these on a steady schedule and Argentine law forbids giving the holdouts a better deal. Some of the bonds held by the original holdouts were bought by NML Capital, a subsidiary of Paul Singer’s Elliot Capital Management, and another hedge fund, Aurelius Capital Management. These were the two whose lawsuits reached the U.S. Supreme Court.

Including interest, the holdouts would walk off with $1.5 billion if paid in full. NML Capital, Argentine President Cristina Fernández said, would see a gain of 1,600 percent for bonds it bought for $48.7 million. “I don’t even think that in organized crime there is a return rate of 1,608 per cent in such a short time,” she said in a national address following the U.S. Supreme Court decisions, in which she said Argentina would not “submit to such extortion.”

Mr. Singer, the type of character for which the term “vulture capitalist” was coined, certainly has been persistent in attempting to collect the full face value of bonds for which he paid a small fraction of that value. In November 2012, he had an Argentine naval ship impounded in Ghana after earlier plotting to seize the presidential plane and artworks that were to have been shown at a Frankfurt book fair.

Among other exploits, he has demanded $400 million from the Republic of the Congo for bonds he bought for less than $10 million and compelled the government of Peru to pay him a 400 percent profit on the debt of two Peruvian banks he bought four years earlier. His specialty is buying debt at a small fraction of the face value and demanding full payment, regardless of the cost to others, and has become a billionaire through doing so.

In the imperialist crosshairs

A series of one-sided rulings in a federal trial court, upheld by the U.S. Court of Appeals for the Second Circuit, favored the hedge funds over Argentina. When the appeals reached the Supreme Court, the bond holders who agreed to accept 30 percent (a “haircut” in financial parlance) backed Argentina, fearing that there would be no money for them should Argentina be forced to pay off the holdouts at full face value. The U.S. government also sided with Argentina, fearing a precedent that could be used to enable it to be sued.

The Foreign Sovereign Immunities Act of 1976 is supposed to bar lawsuits in U.S. courts against non-U.S. governments, but a 7-1 bipartisan majority of the Supreme Court decided that the law is malleable when not convenient. The Argentine bonds were sold with a provision that New York law would be used to settle disputes related to them, which gave U.S. courts the excuse needed to extend U.S. law to Argentina.

Under New York law, investors must be treated equally. That provision could have been interpreted to mean the holdouts would get the same 30 percent payment in installments — which the Argentine government would have agreed to had they been willing to negotiate — but instead it was used as an opportunity to give more rights to speculators.

The practical effect of these rulings is that “investors” — hedge funds with the well-earned sobriquet of “vultures” — have been elevated above a national government. This is perfectly consistent with the decisions handed down by secret tribunals like the World Bank-affiliated International Centre for Settlement of Investment Disputes when “investors” sue governments under “free-trade” agreements such as the North American Free Trade Agreement.

The hedge funds can leverage the U.S. legal system to enforce their will over Argentina in this case because the U.S. financial system is used to make payments to the bondholders who negotiated the 30 percent agreement with the South American country. Argentina could only continue to make those payments, while simultaneously refusing to pay anything to the holdouts, by doing so completely outside the U.S. financial system, which is possible but very difficult due to the system’s global reach. Moreover, those payees within the reach of the U.S. legal system would be susceptible to being sued by the holdouts.

Argentina has consistently said it has does not have the money to pay the holdouts and continue to meet its continuing obligations to the bondholders it has been paying, another reason for those bondholders to side with Argentina against the holdouts. The next payment is due June 30 — on that date, Argentina would be in defiance of the U.S. Supreme Court should it not pay the full face value of the holdouts’ bonds. But if it does so, or simply agrees to pay more than 30 percent, the holdouts would likely demand to re-negotiate to get the same deal.

Immediate conflict doesn’t negate larger interests

What to do? One possibility is to up the ante. That is the recommendation of Argentina’s counsel at the New York corporate law firm Cleary Gottlieb Steen & Hamilton in a memorandum dated May 2, 2014:

“[T]he best option for the Republic could be to permit the Supreme Court to force a default and then immediately restructure all of the external bonds so that the payment mechanism and the other related elements are outside of the reach of American courts. Argentina wants to continue paying its restructured debt. The Courts, nevertheless, have placed it in a terrible position.”

Courts do not act in a vacuum, but ultimately express the interests of the most powerful industrialists and financiers similar to any other component of a government in the capitalist system. It is certainly true that those interests are in conflict in this matter. Such a conflict is not unusual. The victory for one particular set of speculators here, however, serves to tighten the screws of austerity by further codifying the dominance of the most ruthless capitalists within the capitalist legal system.

Should the end result of this case be that all parties agree to a payment level higher than 30 percent, would the speculators on the losing side be crestfallen? Regardless of the outcome, the precedent set here provides additional leverage for speculators in future financial deals. Not even the opinion of the U.S. government, the ultimate protector of corporate interests through its intelligence and military apparatuses and “free trade” agreements, was allowed to interfere with a bid to further tighten corporate power. That is what was at stake here, not the short-term interests of this or that speculator.

For Argentina, or any other subaltern country, to rid itself of odious debt and re-orient itself toward the greater good of its citizenry rather than the profiteering of speculators, will require entirely new structures in a different economic system.

In show of power, financiers impose will on Argentina’s Navy

We know that finance capital is powerful, but that a hedge fund can impound the navy of the world’s eighth largest country is nonetheless startling.

Financiers the world over have fumed over Argentina escaping their clutches a decade ago — the example of a country refusing to acknowledge the maximization of bank profits as the central organizing principle of civilization is too scary to contemplate — but most have made their peace. Accepting that something is better than nothing, at least for now, almost all of Argentina’s creditors accepted 30 percent of the face value of the country’s sovereign debt.

Much of that debt is odious, accumulated by Argentina’s military dictatorship as it killed, tortured, “disappeared” or forced into exile Argentines by the hundreds of thousands as it imposed the Pinochet/Chicago School economic model. The rest of the debt came courtesy of the the country’s neoliberal rulers following the end of military rule, as it followed International Monetary Fund instructions into a crisis that culminated with economic crisis at the end of 2001. When Néstor Kirchner became Argentina’s fifth president in two weeks, he put an end to austerity and defaulted on the debt, ultimately agreeing to pay 30 percent to those willing to negotiate a settlement but refusing to pay anything to holdouts.

Many of Argentina’s creditors are not the financial institutions that originally made the loans; much of the debt was sold to speculators. Two of those speculators, the hedge funds Elliott Capital Management and Aurelius Capital Management, are among the seven percent of creditors who refused to agree, instead demanding full payment of the face value of the debt that they bought for pennies on the dollar. The key speculator here is Paul Singer, the type of character for which the term “vulture capitalist” was coined. Mr. Singer’s hedge fund is Elliott Capital and one of the fund’s subsidiaries is NML Capital.

The eyes of a billionaire

To all appearances, the billionaire Mr. Singer is determined to squeeze every dollar out of every “investment,” and he has the means at his disposal to bring this about. Using the Internet, his NML Capital tracked a ship used as a training vessel for the Argentine Navy. Calculating its chances, NML Capital waited for the ship to dock in Ghana, then quickly went to a local court, where it successfully obtained an order impounding the ship. The ship remains stranded in Ghana’s main port, and the Argentine government had to resort to chartering a flight to bring most of the crew home; it couldn’t use an Argentine airplane under fear that the plane, too, would be impounded.

Mr. Singer has long used such tactics, according to a report in Forbes magazine, and he purposely waited for the ship to dock in Ghana because he believed it was the country among the ship’s ports of call that would most likely grant his wishes. Forbes reports that Elliott Capital had sought in 2007 to seize the Argentine presidential plane when it was scheduled for maintenance in the United States (the plan was foiled when Argentina was tipped off) and two years later plotted to seize Argentine assets at the Frankfurt Book Fair, forcing the government to withhold showing works of art.

That having the ship stranded in port might have negative effects on Ghana, a poor country, does not seem to have been of concern. The ship’s presence has greatly slowed down the ability of cargo ships to use the port, causing dozens of vessels to wait offshore in a lengthening queue, according to The Financial Times. Such delays are also costing the shipping companies and others considerable money.

But what could be more important than a speculator trading on other people’s misfortune scooping up windfall profits?

Buying (very) low, demanding (very) high

There is nothing out of character for Mr. Singer to be using such hardball tactics. In fact, his hedge fund’s strategy is to buy outstanding debt at a tiny fraction of its value and then demand to be paid in full. A report on him and the other billionaires with whom he plays, including David and Charles Koch, on the ThinkProgress blog reports:

“Singer, manager of a $17 billion hedge fund, earned the moniker ‘vulture capitalist’ for buying the debt of Third World countries for pennies on the dollar, then using his political and legal connections to extract massive judgements to force collection — even from nations suffering from starvation and violent conflicts. Singer and his partners have used such tactics in Panama, Ecuador, Poland, Cote d’Ivoire, Turkmenistan, and the Democratic Republic of Congo. In addition to squeezing impoverished countries with sovereign debt schemes, Singer speculates in the oil markets, a practice which can lead to gasoline price hikes.”

Among his other exploits, Mr. Singer is the chairman of the Manhattan Institute, an extreme Right “think tank” that specializes in promoting neoliberal ideology.

That affiliation is evidentially not a coincidence. Investigative journalist Greg Palast, writing for Truthout, provides some of the details of the speculator’s previous efforts to “collect” his debts:

“Singer’s modus operandi is to find some forgotten tiny debt owed by a very poor nation (Peru and Congo were on his menu). He waits for the United States and European taxpayers to forgive the poor nations’ debts, then waits a bit longer for offers of food aid, medicine and investment loans. Then Singer pounces, legally grabbing at every resource and all the money going to the desperate country. Trade stops, funds freeze and an entire economy is effectively held hostage.

Singer then demands aid-giving nations pay monstrous ransoms to let trade resume. … Singer demanded $400 million from the Congo for a debt he picked up for less than $10 million. If he doesn’t get his 4,000 percent profit, he can effectively starve the nation. I don’t mean that figuratively — I mean starve as in no food. In Congo-Brazzaville last year, one-fourth of all deaths of children under five were caused by malnutrition.”

The financier war on Argentina

The billionaire speculator has also been attempting to get many pounds of flesh out of Argentina courtesy of the U.S. federal court system. The latest in a series of thundering rulings by a senior U.S. district judge, Thomas Griesa, earlier this month ordered Argentina to pay US$1.3 billion to Elliott Capital Management and Aurelius Capital Management, the two main holdouts who refused to agree to the 30 percent deal with Argentina.

The Argentine government appealed to a higher court on November 25. That is a routine the government is already familiar with, after the same judge last year issued a ruling that the two hedge funds could seize Argentina’s deposits with the Federal Reserve. Yes, it has come to the point where even the world’s most powerful central bank can be seen as a mere piggy bank to be raided at will by financiers. Well, almost, because that ruling was too much even for the U.S. government — it joined an appeal to a higher court, which threw out the ruling on the basis of sovereign immunity.

The Federal Reserve holds money and gold owned by many of the world’s governments, and has an interest in maintaining a shield that protects those holdings from private seizure.

This was a matter of the principal of sovereignty — the U.S. doesn’t want its overseas assets seized, either — so let us hold off from celebrating the appeals court reversal too joyously. The various bilateral and multilateral “free trade” agreements that elevate corporate profit above all other human considerations, and the arbitration bodies such as the International Centre for Settlement of Investment Disputes that improvise ever harsher rulings that become precedents for future cases, quietly lurk in the background. Not that long ago the idea that a regulation against pollution that threatens human health would be illegal because it hurts profits would have been bizarre. Yet it is now routine international trade law.

A billionaire speculator seizing a military vessel is bizarre; the billionaire’s tactics are sufficiently outlandish that, in this case, other financiers oppose his insistence on being paid in full if only because they are afraid they would not receive their own payments if Argentina has to pay him. President Cristina Fernández has repeatedly said there will be insufficient money available to continue to pay back the creditors who accepted the 30 percent deal nor for domestic social programs if full payments are made to the holdouts Elliott Capital and Aurelius Capital.

But if the holdout hedge funds’ tactics ultimately work, what is outlandish will become accepted. What will be seized next? A country’s food supply?

Financiers love to portray themselves as the lubricants of the modern economy, enabling capital to be distributed to where investment is needed. They can believe that if they wish, but there is no reason for the rest of us not to see financiers as what they are: parasites.