If you read my post last week on cases on review at the Supreme Court, you may be wondering what happened in Republic of Argentina v. NML Capital, the other case discussed at the Court’s April 12 conference. The Court deferred a decision on Argentina’s request for review and invited the Solicitor General to give the views of the United States. This is sensible, as the case implicates US foreign relations to some extent. So there is no news, really, to report—I will keep you posted.
Tag Archives | Argentina
Both of my “Cert. Pending” cases to watch are to be discussed at the Justices’ conference this Friday, April 12. And both have made SCOTUSBlog’s “petitions to watch” list, which means that in Tom Goldstein’s view, both “have a reasonable chance of being granted.” Under the Supreme Court’s ordinary practice, we can expect orders in both cases on April 15, though sometimes the Court defers a decision to a later date. So we can expect next week to be a big week in international judicial assistance at the high court, one way or another!
The two cases are:
- Moloney v. United States. This is the Belfast Project case. As Ed Moloney and Anthony McIntyre frame the issues, the case is about whether the lower courts denied them an opportunity to be heard on their objections to the government’s subpoenas to Boston College and whether the lower court applied the correct legal standard in deciding whether to issue the subpoena.
- Republic of Argentina v. NML Capital. This case asks whether a judgment creditor can take post-judgment general asset discovery against a foreign sovereign debtor under FRCP 69 in light of the FSIA.
I have said it before—I am not in the Supreme Court prediction business. So here are my predictions. I think the Court is somewhat likely to grant Argentina’s petition, because there is a true circuit split that needs resolving between the Second and Seventh Circuits and because the issue is not just academic in light of the Argentine bond litigation. I think the Court is unlikely to grant M&M’s petition, because I do not think there is a real split of authority and because I think their arguments are not too strong. But I have been wrong before, and the Court will do what it will do.
On March 29, as ordered by the Second Circuit, Argentina submitted its offer to its creditors who have been unwilling to exchange their securities for new securities Argentina issued after its default. I have to say that I don’t really understand the offer. As I read the document, Argentina is offering to exchange the old debt for its new, restructured debt on pretty much the same terms that plaintiffs such as NML Capital have already rejected. 1 Why would NML surrender now, when it seems to be doing well in the US courts? And isn’t there a risk that the Second Circuit will get its dander up on account Argentina’s new show of intransigence in the face of Judge Griesa’s injunction?