Felix Salmon

It’s long — at some 4,500 words — but I can highly recommend the debate between George Soros and Hans-Werner Sinn about what Soros calls The German Question.

The debate is profound, and the two stake out radically different positions, even though they end up at pretty much the same place. Soros says that Germany should make a simple choice: either sign on to Eurobonds, where the euro zone as a whole would issue low-yielding debt to the benefit of all, or else leave the euro zone entirely. Either way, he says, Europe would win — either from reducing the fiscal burden of the various national debts, or else from seeing the euro devalue against the new Deutschmark.

Sinn agrees with Soros that Germany would be making a huge mistake were it to leave the euro zone; he disagrees vehemently, however, on the subject of Eurobonds. But both men are clear that given political realities in Germany, neither of Soros’s two choices is going to happen. Germany is going to stay in the euro zone, and Eurobonds aren’t going to happen.

That, says Soros, is a tragedy:

Europe would be infinitely better off if Germany made a definitive choice between Eurobonds and a eurozone exit, regardless of the outcome; indeed, Germany would be better off as well. The situation is deteriorating, and, in the longer term, it is bound to become unsustainable…

There is no escaping the conclusion that current policies are ill-conceived. They do not even serve Germany’s narrow national self-interest, because the results are politically and humanly intolerable; eventually they will not be tolerated. There is a real danger that the euro will destroy the EU and leave Europe seething with resentments and unsettled claims. The danger may not be imminent, but the later it happens the worse the consequences. That is not in Germany’s interest.

And even though Sinn thinks that Soros is wrong, his prognosis seems just as grim, filled with painful austerity and sovereign default:

The only remaining option, as unpleasant as it may be for some countries, is to tighten budget constraints in the eurozone. After years of easy money, a way back to reality must be found. If a country is bankrupt, it must let its creditors know that it cannot repay its debts.

My sympathies in this debate are with Soros, although Sinn does make a good point about the unintended consequences of Alexander Hamilton mutualizing state debts in 1791. (There really aren’t a lot of precedents for the kind of Eurobonds Soros envisages.) The overarching message from both of them, however, is that, as Soros puts it, “the current state of affairs is intolerable”. The only question is whether there’s a better alternative; Soros says there is, while Sinn says there isn’t.

The conclusion from them both, then, would seem to be that Europe as a whole is doomed to misery for as far as the eye can see, and that things are going to get worse before they get worse. I really hope they’re wrong. But so long as Europe’s future generations remain jobless, it’s hard to see a silver lining to this cloud.

CMA is out with its quarterly Global Sovereign Debt Credit Risk Report, which includes this league table:

CPD stands for cumulative probability of default, which means that according to the market, Argentina has an 84.5% chance of defaulting at some point in the next five years. Calculating these probabilities is more art than science: Thomson Reuters puts the 5-year default probability at 71%, but both TR and S&P agree that the one-year default probability is about 50%.

How can that be, in a world where it seems all but certain that Argentina is going to default this year?

Well, for one thing, life is never as sure as bloggers make it out to be. But also, all the standard default probabilities assume that if Argentina defaults, bondholders will get back only 25 cents on the dollar. Which is improbably low. Argentina has both the ability and the willingness to pay its debts; it just doesn’t want to pay holdouts, and is likely to be forced into technical default as a result. This is a long way from the kind of outright debt repudiation that we’ve recently seen in countries like Ecuador, and it’s fair to assume that if and when it defaults, Argentina will try its hardest to ensure that its bondholders (holdouts excepted, of course) get repaid in full on everything they’re owed.

So let’s look at the 1-year CDS, which is currently trading at about 38 points up front. That means that if you want to insure $100 of Argentine debt, you need to pay $38 to do so. On top of that, if Argentina does default, you’re going to need to deliver a bond in order to get your $100 back. The way that default probabilities are calculated, they assume that defaulted bonds are going to cost about $25 each. So if you buy protection for $38, and then spend another $25 on the bond you have to deliver, you’re paying $63 in order to get your $100 payout, for a profit of $37. On the other hand, if Argentina doesn’t default within a year, you lose your $38 insurance policy, for a loss of $38. Since the profit and the loss are roughly equal, that means the probability of default is roughly 50%.

What happens, however, if the price of the defaulted bonds doesn’t fall to $25? Right now the cheapest-to-deliver bond is trading at about $33, and I doubt that it’ll fall much further than that, even if Argentina doest default. In that case, the profit to someone who bought protection drops to $29, while the loss if Argentina fails to default within a year remains $38. You wouldn’t take that trade if the probability of default was only 50%: the implied probability of default now rises to something more like 60%. And remember too that the price of the cheapest-to-deliver bond could conceivably rise post-default, depending on the actions of the Argentine government and how it decided to intervene in the markets. After all, the Argentines have a strong political interest in minimizing the profits of those who have bet against them.

The fact is that the markets know full well that countries like Argentina can and will default occasionally, despite the fact that standard CDS calculations always think of defaults as one-off events. (Just look at the presence on the league table of Argentina, Pakistan, Ukraine, and Iraq, all of which have defaulted in recent years and seem to be reasonably likely to do so again within the next half-decade.)

In a fascinating new paper, for the Deutsche Bundesbank, Klaus Adam and Michael Grill try to calculate an optimum sovereign default strategy: they try to work out when it makes sense for a sovereign to default, and when it doesn’t. And it all comes down to what they call λ, a variable which measures the cost of default to a country. They write:

We first consider — for benchmark purposes — a setting without default costs (λ=0). As we show, the full repayment assumption is then suboptimal under commitment and sovereign default is optimal for virtually all productivity realizations. This holds true independently of the country’s net foreign asset position. We then show for “prohibitive” default cost levels with λ≥1, default is never optimal.

The thing to remember, as you read this, is that λ is a variable, even though for the purposes of the paper it’s treated as though it doesn’t change. And while λ might well be relatively high for a country like Germany, the more that a country defaults, the lower it becomes. After all, a lot of the cost of default is related to the lack of market access, and countries like Argentina have precious little market access even if they don’t default.

What we’re seeing in countries like Argentina and Ecuador, I think, is a rational response to λ falling to levels very close to zero. When that happens, such countries will default quite often — and that frequent default will be baked in to bond prices no matter how healthy the country’s broader economy. As a result, the “official” default probabilities for serial defaulters like Argentina are almost always going to be understated. Although I still think that buying 1-year protection on Argentina right at current levels is probably quite a good bet.

Argentina has done as the Second Circuit Court of Appeals ordered, and has now formally put forward its proposal for paying off Elliott Associates and the other bondholders suing it in New York court.

You could be excused for not entirely understanding what Argentina is proposing, in this 22-page filing: it’s not particularly easy to understand. But the upshot is simple, and pretty much as everybody expected: Argentina is offering to give Elliott pretty much exactly the same deal as it gave all the other holders of its defaulted bonds. In practice, that means that Elliott would swap into new Discount bonds with a present market value of roughly $120 million; if settling the case in that way helped Argentina’s bonds to rally back to where they were trading in October, then the market value would rise to about $176 million.

Argentina is at pains to point out that “this proposal is a voluntary option”: they’re not proposing that the court force Elliott to accept the deal. But at the same time, Argentina knows full well that the chances of Elliott voluntarily accepting this deal are exactly zero. Elliott is suing for a total of $720 million, and while it might be willing to settle at a modest discount to that sum, there’s no way it’s going to accept the same kind of 70% haircut that it has consistently rejected all along.

Indeed, it’s entirely improbable that any of the current plaintiffs, having rejected two previous exchange offers and having spent many millions of dollars in legal fees, would be remotely inclined to accept this offer were it put to them. Which makes it really hard for the court to accept this proposal as a good-faith attempt to pay the plaintiffs what they’re owed.

The court specifically asked Argentina how it was going to make current the obligations of the original bonds; and/or how it might repay those original obligations going forwards. Argentina, in response, has proposed doing neither. Instead, it is proposing to give the plaintiffs the 70% haircut, on those original bonds, which they have consistently rejected.

The AP’s Michael Warren says that Argentina’s proposal is “creative”, but I don’t see much evidence of creativity here: instead, I see a lot of the failed rhetoric which helped bring Argentina to this fraught position in the first place. “Plaintiffs cannot use the pari passu clause,” writes Argentina’s lawyer, Jonathan Blackman, “to compel payment on terms better than those received by the vast majority of creditors who experienced precisely the same default as plaintiffs”. But of course they can do that, or at least they’re trying to, and so far, New York’s courts have ruled quite consistently that they have every right to do so.

There are signs of real desperation in Argentina’s filing: it spends a lot of time, for instance, talking about the price at which Elliott bought its debt, and the profit that Elliott would make if it got the full $720 million it’s asking for. It’s an incredibly weak argument: for one thing, there’s no law against making money in the markets, and for another, it ignores all the judgment debt that Elliott holds, and isn’t getting paid on, and isn’t litigating in this case.

Indeed, it’s far from obvious whether Argentina is extending this offer to judgment creditors, who make up the vast majority of the country’s holdouts. But one thing is clear: everything in this filing is entirely consistent with the behavior which has already been found to be “contumacious”. Argentina is a sovereign nation, and it’s staring down the court, here, daring it to go through with its dangerous plan. And frankly it’s very hard to imagine that at this point, because of this filing, the court is finally going to blink.

I’ve been largely sympathetic to Argentina’s position in this case all along, but in the wake of the various rulings which have already been handed down, Argentina doesn’t really have a legal leg to stand on any more. That’s why it’s resorting to desperate measures like saying that Elliott is going to make an unconscionable amount of money if it wins: where legal reasoning has failed, all that’s left is an attempt to bypass the law and attempt to scramble onto the moral high ground. The problem, of course, is that it’s really hard for the contumacious Argentines to occupy any kind of moral high ground at all, even when their opponent is a notorious vulture fund.

As far as I know, Argentina has not hired any kind of bankers to run this proposed exchange offer. Which is further evidence, if any were needed, that it will never see the light of day. You’ve heard of giving someone an offer they can’t refuse: this is an offer the plaintiffs can’t accept, and Argentina knows it. I find it extremely hard to believe that the New York courts, having come as far as they have, will consider it a remotely adequate remedy.

When it comes to financial negotiation, lenders nearly always have more power than borrowers — and the smaller the borrower, the more that’s true. Which is why Cyprus’s rejection of the EU bailout proposal was always dangerous. If they couldn’t come up with a Plan B, then there was always a risk of the worst-case scenario as spelled out by Cypriot president Nicos Anastasiades: the ECB would stop propping up Cyprus’s banks, which would immediately fail, causing 8,000 families to lose their income, 60% losses for bank depositors, bankruptcy for thousands of small Cypriot businesses, and probably (although Anastasiades didn’t spell this out explicitly) exit from the euro.

Well, now the ECB has brought Cyprus one step closer to Anastasiades’s “catastrophic scenario”: it has said that absent an EU/IMF deal which can recapitalize Cyprus’s banks, it’s going to stop lending to Cyprus on Monday.

Politically speaking, this places everybody concerned in a really tough position. The Cypriots aren’t getting anywhere with the Russians, who in any case can’t deliver an EU/IMF deal on their own. And the Eurocrats seem to be losing patience too:

The European Commission said Wednesday it was now up to Cyprus to put forward an alternative rescue plan after its lawmakers voted down a proposed bail-out package agreed by the Mediterranean island and its euro-zone partners last Saturday.

“It is now for the Cypriot authorities to offer an alternative scenario respective of the debt sustainability criteria and of the financing parameters,” Olivier Bailly, a commission spokesman said… “The ball is now in Cyprus’ court,” Mr Bailly told reporters in Brussels.

The problem with this is that the EU has two big conditions before it will sign on to any Cypriot plan. The first is clear and pretty much accepted by all: the EU and IMF will lend no more than €10 billion. But the second is actually more problematic: the stated reason why Europe won’t lend more than €10 billion is that Europe refuses to allow Cyprus’s debt level rise above a certain level.

As a result, even if Cyprus gets its €5 billion loan from Moscow, that wouldn’t actually help: in the eyes of Brussels, you don’t solve a debt problem by managing to find more debt. Similarly, borrowing billions of dollars from Cypriot pension funds wouldn’t help much either. The EU position is clear: we’ll give you the maximum amount of debt that you can handle. The extra billions need to be in the form of cash, which never needs to be repaid; the money can’t come in the form of loans.

So long as the EU sticks hard to that principle, Cyprus would seem to have precious few options; certainly the Buchheit-Gulati option wouldn’t help, since, as Joseph Cotterill notes, it keeps Cypriot liabilities at an unacceptably-elevated level. (Unacceptable to the EU, that is, and they’re the people who matter here.)

Cypriot negotiators have lots of perfectly sensible things they can tell the European purse-string holders about why this obsesssion with debt sustainability is silly. They can point to future natural-gas revenues, for instance, which give Cyprus the potential ability to pay of debts which seem huge right now. They can also point to the denominator here: if failure to reach a deal results in GDP collapsing, then the debt-to-GDP ratio will soar even if the debt level doesn’t rise at all. But the Europeans aren’t acting like impartial judges: by all indications, they’ve made up their mind.

Which leaves Cyprus in a very, very tough position. It can accept the idea of taxing bank deposits — or it can find itself tossed unceremoniously into the Mediterranean, left to fend for itself. Essentially, the EU is telling Cyprus that it can come up with any plan it likes, so long as the plan involves nothing but fiddling around with the Breakingviews deposit-tax calculator. You want to preserve all insured deposits? Fine, raise the tax on uninsured deposits to something over 15%.

Such a plan would mark the end of Cyprus as an offshore banking sector — but then again, so would the alternative. Cyprus’s banks are insolvent, thanks to the haircut they were forced to take on their Greek government bonds. And so if the island wants any kind of banking system at all, it is going to need to be able to continue to draw on emergency assistance from the ECB. Which means taxing deposits and generally doing as it is told by the EU.

But there’s a niggling problem here: Cyprus is a sovereign nation, and nothing is going to happen unless and until a law is passed by the Cypriot parliament — which has already rejected a deposit tax once, and which doesn’t seem any closer to accepting such a thing now.

Paul Krugman has a great post today on what he calls “the Sum of All FUBAR”: all the different things which have gone wrong in the past, and which are certain to get worse in the future, with respect to Cyprus. But Peter Coy sums the whole thing up best:

In retrospect, most or all of this could have been avoided if Cypriot banks had been prevented from lending so heavily to Greece. Once it was clear that the Central Bank of Cyprus was underregulating, the European Central Bank should have made noise, even though at the time it lacked authority to dictate terms. When the halloumi hit the fan, the EU, ECB, and IMF should have stood by Cyprus unconditionally. The time for tough love is before the crisis, not during it.

In other words, the only real solution to this crisis is for the EU to go back in time and stop it from happening in the first place. And the next-best solution would be for the EU to stop being so self-defeatingly stubborn on debt ratios. But if that doesn’t happen, the Cypriot parliament is going to face an unbelievably tough vote at some point in the next few days. Will they essentially cede their sovereignty to unelected Eurocrats, and rubber-stamp a deal which looks very similar to the one they’ve already rejected once? Or, standing on principle, will they consign themselves to utter chaos and a very high probability of leaving the Eurozone altogether? Such decisions are not always made rationally. Which means that if I were Joe Weisenthal, I’d be pretty worried right now about losing my $1,000.

Cyprus has said όχι to the idea of taxing deposits: good for them. And the parliament did so decisively, as well: 36 “no” votes, 19 abstentions, and zero “yes” votes. Even the president, who initially said that Cyprus had no choice but to say yes, was already moving on to Plan B before the vote was even taken, although no one yet is entirely clear what exactly Plan B entails.

One very big hint comes from the fact that the Cypriot finance minister, Michael Sarris, is in Moscow today (where he’s denying via text message reports that he has resigned). Russia accounts for the lion’s share of Cyprus’s uninsured deposits, and president Vladimir Putin has said that even a 9.9% tax on those deposits would be “unjust, unprofessional and dangerous”. Given that the only way that Cypriot president Nicos Anastasiades kept the tax to below 10% was by taxing the insured depositors at an unacceptable 6.75%, there is obviously a lot of appetite within Russia to help Cyprus find a way out of this mess.

One way to do that would be for Gazprom, the Russian energy giant, to spend a few billion euros on rights to Cyprus’s natural gas resources; another would be for the Russians to buy a bank or two, leaving Cyprus to raid local pension schemes for extra liquidity until natural-gas revenues come on stream. Or, of course, there’s always the Buchheit-Gulati option. The thing they all have in common is the idea that they’re basically trying to provide a bridge to the point at which Cyprus starts getting lots of money from its natural gas. Of course, the gas might not exist at all, or it might take a decade before it actually starts seeing revenues, so there’s risk here. But the point is that in Cyprus, uniquely, kicking the can down the road actually makes sense: if you get far enough down the road, there’s a real chance that everybody could end up being paid off in full, or making a substantial profit.

It’s not clear that Greece’s parliament will grok the distinction, however, which makes this particular game very dangerous for the Eurogroup. For the time being, the EU and IMF — and, crucially, the ECB — are keeping the lines open to Nicosia: the idea seems to be that so long as they don’t need to cough up any more than the €10 billion they’ve already agreed to, they’ll let Cyprus find the balance of the needed cash any way it wants. But here’s the rub: if Cyprus gets to reject the Troika and largely set its own terms, then everybody else (read: the Greek parliament) will want to be able to do that as well. And no one in Europe’s centers of power really wants the Mediterranean periphery getting too uppity.

The best-case scenario here is that the vote by the Cypriot parliament is a “phoney war”, in Dan Davies’s words: “A vote on which the government abstains is like opening with two hearts at bridge. It’s a bidding convention, not a serious plan.” Cyprus and the EU will go back for another round of negotiations, with Cyprus trying to front that it has a great offer from the Russians, and the two sides will come to a compromise which doesn’t involve taxing insured depositors. The banks will then reopen, the Russians will pull a large chunk of their remaining money out of the country, the ECB will provide all the liquidity that the Cypriot banks need, and Cyprus will muddle through in an austere kind of way.

The worst-case scenario — call it #CypriOut — is that talks just break down entirely, with no plan acceptable to both the Eurogroup and the Cypriot parliament, while the Russians ultimately decide that they don’t want to throw good money after bad. In that event, Cyprus ends up with a chaotic default and devaluation — think Argentina 2002, only on an island which is already fractured along intractable ethnic lines.

The cost of CypriOut to the ECB and to Europe as a whole would be substantial, both in euros and in precedent. If you think that taxing deposits is a bad precedent, just wait until you see what happens when the world learns that a country can leave the eurozone after all. So a lot of people are going to spend a lot of effort trying to avoid it. And judging by recent European history, some last-minute deal will manage to get cobbled together somehow. But this whole situation is horribly messy — it reminds me of the Argentine political chaos in March 2001, a few months before the country finally defaulted.

The big problem here is that there’s no overarching strategy on the part of the EU. An interviewer from Greek TV asked me yesterday whether the agreement with Cyprus represented an important change in the Eurogroup’s attitude towards peripheral countries. I had to say that it didn’t, just because that would imply that the Eurogroup has an attitude towards peripheral countries, which can change. Instead, it’s all tactic and no strategy, and the tactic is a dreadful one: wait until the last possible minute, and then do whatever’s most politically expedient at the time. It’ll probably work, somehow, in Cyprus. But it won’t work forever.

Andrew Ross Sorkin defends the Cyprus deal today, on the grounds that (a) Cyprus is “tiny”, and “largely irrelevant to the global economy”; (b) Cyprus is a genuinely unique case; (c) it would be grossly unfair not to bail in Russian depositors, who are generally losing less than they’ve made in interest over the past few years; and (d) the Greek alternative “will not work in Cyprus”, and that therefore (this last bit is only implied, never stated outright) the current plan is really the only option.

Notably, Sorkin doesn’t attempt to defend the most indefensible part of the plan — the confiscation of wealth from depositors with sovereign deposit guarantees. While hedge-fund bondholders will get paid their full $1.4 billion on June 3, the date of Cyprus’s next coupon payment, small depositors with just a few hundred or a few thousand euros in savings will lose money which the Cypriot government had promised them was safe. Why is the government’s promise to foreign hedge funds more important than its promise to its own citizens? Sorkin never attempts an answer to that one.

And even if Cyprus is tiny and irrelevant to Andrew Ross Sorkin, it most certainly isn’t tiny and irrelevant to the hundreds of thousands of people who live there, and deserve for their government to deliver the best possible plan it can.

Which raises the single biggest question facing the Cypriot parliament as it prepares to vote today: should it accept the deal on the table, or should it hold out for something better? And if it chooses the latter option — as seems likely — should it simply fiddle with the tax-rate percentages, much as one might fiddle with the Breakingviews Cyprus calculator, or should it try to build something which is more different and more fair? Most importantly, what alternatives does Cyprus’s parliament have?

This is where Sorkin’s column is (at least in its implication) wrong: there is an alternative. It is clearly better, in every regard, than the option currently on the table. And it most emphatically is workable. We know that it’s workable because it has been put forward by none other than Lee Buchheit, the godfather of sovereign debt restructuring, and for decades, in dozens of sovereign contexts, every time that Lee Buchheit has said something can be done, he’s been absolutely right.

Here’s the short, three-page paper: it’s called Walking Back from Cyprus, and it’s authored by Buchheit and his frequent collaborator, Mitu Gulati of Duke University. Their plan is simple:

First, leave all deposits under €100,000 untouched. Hitting those deposits was by far the biggest mistake of the Cyprus plan as originally envisaged, and everybody would be extremely happy if guaranteed depositors could be kept whole.

Second, term out everybody else by five years, or ten if they prefer.

That’s it! That’s the whole plan, and it’s kinda genius. If you have bank deposits of more than €100,000, they will be converted into bank CDs, with a maturity of either five years or 10 years — your choice. If you pick the longer maturity, then your CD will be secured by future Cypriot gas revenues, which could amount to hundreds of billions of dollars.

And if you have sovereign bonds, they too will be termed out by five years, giving Cyprus a bit of breathing room to get its act together.

Do that, say Buchheit and Gulati, and you manage to reduce the size of the needed bailout by more than the €5.8 billion that Cyprus is currently planning to raise with its tax on bank deposits — and you don’t touch anybody’s principal at all. To be sure, the new CDs, which would be tradable, would surely trade at less than par: there would be a present-value haircut on deposits over €100,000. But that’s going to happen anyway. And at least in this case patient depositors will have a chance of getting all their money back in full — with interest. And, most importantly, guaranteed depositors will remain unscathed.

This is the deal that no one had the imagination to put on the table during all-night negotiations last week, and it makes a lot more sense than what we’re looking at right now. In the first round of negotiations, the Germans had the upper hand, presenting Cyprus with a take-it-or-leave-it deal. Buchheit and Gulati have now given the Cypriot parliament the opportunity to turn the tables: pass a bill along these lines, and tell the Germans to take it or leave it.

The Buchheit/Gulati plan would cost Germany no more than the current plan, so the Germans would have no good reason to veto. But if the Germans did veto, then the result would be a sovereign nation being forced to exit the Eurozone: the worst possible outcome of all. Given that kind of ultimatum, I suspect the Germans would sign on to the Cypriot plan.

The ball is in the Cypriot parliament’s court today, and most observers are expecting the current plan to go through, with a tweak here or there to the tax rates and the points at which they kick in. But Buchheit and Gulati have now given Cyprus’s parliament a clear Plan B. If the lawmakers want to reject the Eurogroup’s plan, they know what they must do.

I stuck my neck out in January, saying that Cyprus was “certain” to default. After all, the Europeans weren’t willing to come up with the €17 billion needed to bail the country out, and EU economics commissioner Olli Rehn told the WSJ’s Stephen Fidler that Cyprus would have to restructure its debt. But now the bailout has arrived, and — in something of a shocker — there’s no default. Instead, €5.8 billion of the bailout is going to come directly from depositors in Cyprus’s banks, in the form of what the EU is calling an “upfront one-off stability levy”.

Don’t for a minute believe that this decision is part of some deeply-considered long-term strategy which was worked out in constructive consultations between the EU, the IMF, and the new Cypriot government. Instead, it’s a last-resort desperation move, born of an unholy combination of procrastination, blackmail, and sleep-deprived gamesmanship.

The details aren’t entirely clear yet: we’re told that deposits of more than €100,000 are going to have to pay a tax of 9.9%, for instance, but it’s not obvious whether that applies to all of the large deposit or just to the amount over €100,000. And there’s still a real chance that the Cypriot parliament could scupper the whole deal. But for the time being, everybody’s going on the assumption that the deal will go through, that Cyprus will get its €10 billion bailout from the EU, and that everybody with a Cypriot bank account in Cyprus (a group which includes members of the UK military) will see their accounts taxed by at least 6.75%.

In January, I said this wouldn’t happen:

The last thing that Cyprus or any other country needs is a bank run, which will leave the national balance sheet in the classic pinch where “on the left, nothing’s right, and on the right, nothing’s left”. What’s more, in many ways the precedent of forcing depositors to take a haircut would be even more damaging than the precedent of imposing a haircut on Greek bondholders: at that point there would be really no reason at all to have deposits in any Mediterranean country.

It might seem a little bit like shutting the stable door after the horse has bolted, but the lines in front of broken ATMs certainly suggest that there will indeed be a substantial bank run out of Cypriot banks when they reopen on Tuesday morning. (Cyprus’s loss, here, is likely to be Latvia’s gain.) Cyprus has been relying up until now on its status as an offshore financial center, especially for Russians. That has bloated its banks with deposits, and if the deposit bubble bursts, the government has no money at all to bail out the banks. Cyprus’s president, Nicos Anastasiades, said today that he was forced to choose this path because the only alternative was the collapse of Cyprus’s two major banks, with “catastrophic” consequences. What he didn’t say is that those banks aren’t remotely safe yet — not with the prospect of a massive bank run hanging over their heads.

And of course it’s not only Cyprus where a bank run is a very real fear. If bank deposits can be seized in Cyprus, they can be seized in other EU countries as well. Ed Conway has a fantastic post explaining exactly why this is a horrible idea:

Given that this policy was not merely rubber-stamped but engineered by Eurozone finance ministers and the IMF (indeed, the IMF wanted an even deeper cut of deposits), it sends a disquieting message to anyone with deposits in a euro area bank. Although the ministers were quick to insist that this is a one-off and is “exceptional”, anyone even vaguely acquainted with the initial Greek bail-outs will remember precisely how long such exceptions last.

“The best the rest of the world can hope for,” says Neil Irwin, “is that Cyprus’s case is sufficiently unique that it won’t spark panic in Athens and Madrid (or in Lisbon, Dublin and Rome).” But his post is headlined “Why today’s Cyprus bailout could be the start of the next financial crisis”, which gives a reasonably good idea of how optimistic he is that any bank run in Cyprus will be contained.

And Europe won’t be home dry even if depositors in Portugal do decide to keep their money in their home country on Monday morning. That might make this bailout look like a brilliant wheeze. But the consequences of this choice are permanent: countries like Ireland and Portugal might not be at risk of a deposit tax right now, but they’re still getting bailed out on a continuous basis, and the more fraught the bailout negotiations become, the more likely it is that the EU will insist on bailing in depositors. It’s an option on the table, now, and as a result a deposit run is surely more likely to happen whenever a Eurozone country finds itself in need of a bailout. Which, of course, is always the worst possible time for a bank run.

From a drily technocratic perspective, this move can be seen as simply being part of a standard Euro-austerity program: the EU wants tax hikes and spending cuts, and this is a kind of tax: “a one-off wealth tax”, as Matt Yglesias puts it. Other taxes would raise less money, or if they didn’t they would be more harmful to the Cypriot population, since much of this one is going to be paid by Russians. Cypriots are sadly going to have to pay somehow, and although this is an unpleasant way of forcing them to do that, it’s also extremely effective and almost impossible to replicate by any other means.

But there’s something sacred about bank deposits, and especially about insured bank deposits. The one part of this scheme that no one is defending is the 6.75% tax on deposits less than €100,000 — the level to which Cyprus guarantees all deposits. As Nick Malkoutzis puts it,

Anastasiades also has to explain to Cypriots why small-time depositors have to pay a similar levy to the one some eurozone countries supposedly demanded so alleged Russian oligarchs would be forced to pay for bailing out the island’s banking system. Furthermore, he has to inform them why the Cypriot government’s pledge to guarantee deposits up to 100,000 euros – supposedly even in the most extreme circumstances – is not even worth the paper it was written on.

What we’re seeing here is the Cypriot government being forced to break one of its most important promises — the promise that if you put your money in the bank, and your deposits total less than €100,000, then they will be safe. What’s more, there’s no good reason for insured deposits to be hit in this manner: the same amount of money could be raised just by taxing the uninsured deposits at a slightly higher rate. The insured depositors are being hit, it seems, just so that the uninsured depositors can be taxed at single-digit rather than at a double-digit rate.

Meanwhile, people who deserve to lose money here, won’t. If you lent money to Cyprus’s banks by buying their debt rather than by depositing money, you will suffer no losses at all. And if you lent money to the insolvent Cypriot government, then you too will be paid off at 100 cents on the euro.

This is more by accident than by design. As Joseph Cotterill explains, Europe dragged its feet on Cyprus for so long that it effectively missed the deadline for doing a bond restructuring. It takes time to put that kind of a deal together, and there simply isn’t enough time between now and Cyprus’s next big coupon payment to do that. As a result, the EU found itself with a massively reduced menu of options: either fund the bailout itself, in full — an option which the Germans were adamant would never happen — or force a haircut on Cyprus’s depositors. Given the balance of power in the Eurozone, it comes as no surprise that in this battle, Germany won and Cyprus lost.

They won dirty, too: by forcing a tough all-night negotiating session in which Anastasiades was given what you might call an offer he couldn’t refuse. Either confiscate deposits wholesale, or see those deposits rendered even more worthless when the ECB cuts off its funding to Cypriot banks, a decision which would — through devaluation and insolvency — lead to depositors losing as much as 60% of their money.

The big winner here is the ECB, which has extended a lot of credit to dubiously-solvent Cypriot banks and which is taking no losses at all. And although they might wake up bruised, the big Russian depositors are probably winners too, given that they risked losing everything and will end up losing just 10%. Finally, of course, there are all the hedge funds who have been betting that the Cypriot government won’t default: they’re all popping Champagne right now.

The big loser are working-class Cypriots, whose elected government has proved powerless in the face of decisions driven by Germany, and who are now edging towards fury. The Eurozone has always had a democratic deficit: monetary union was imposed by the elite on unthankful and unwilling citizens. Now the citizens are revolting: just look at Beppe Grillo. Across the continent, they’ve lost their democratic right to determine their own fate at the ballot box, and instead they’re being instructed what to do by Germans. Now, in Cyprus, they’re simply and directly losing their money.

Someone with €8,000 of life savings in the bank can ill afford to lose an arbitrary €540, but that’s exactly what is going to happen. The Cypriot parliament is probably not going to revolt this weekend, but any politician who votes for this bill is going to have a very, very hard time getting re-elected. This decision is important not only because of the precedent it sets with regard to bank depositors, but also because of the way in which it points up just how powerless all the Mediterranean countries (plus Ireland) have become. More than ever before, it’s Germany’s Europe. That’s bad for Cyprus — and it’s not even particularly good for Germany.

On Friday, the Second Circuit court of appeals issued an order, aimed at Argentina. The order is worth quoting in full, because it helps to explain the reasoning by which the Second Circuit is going to end up pushing Argentina into default:

At oral argument on Wednesday, February 27, 2013, counsel for the Republic of Argentina appeared to propose that, in lieu of the ratable payment formula ordered by the district court in its injunction and accompanying opinion of November 21, 2012, Argentina was prepared to abide by a different formula for repaying debt owed on both the original and exchange bonds at issue in this litigation. Because neither the parameters of Argentina’s proposal nor its commitment to abide by it is clear from the record, it is hereby ordered that, on or before March 29, 2013, Argentina submit in writing to the court the precise terms of any alternative payment formula and schedule to which it is prepared to commit.

The court directs that, among the terms specified, Argentina indicate: (1) how and when it proposes to make current those debt obligations on the original bonds that have gone unpaid over the last 11 years; (2) the rate at which it proposes to repay debt obligations on the original bonds going forward; and (3) what assurances, if any, it can provide that the official government action necessary to implement its proposal will be taken, and the timetable for such action.

A bit of background here: at the big hearing last week, Argentina complained that it had never been given an opportunity to propose terms on which it might be willing to pay Elliott Associates, the plaintiff in the case. This is the first paragraph of the Second Circuit’s response: OK then, tell us what your proposed terms might be. And then the second paragraph contains the punch: those terms had better explain how you intend “to make current those debt obligations on the original bonds that have gone unpaid over the last 11 years”.

Argentina, of course, has no such intention. When it files its response at the end of this month, it will almost certainly propose what is essentially a second reopening of the 2005 bond exchange: it will allow Elliott to swap its old defaulted debt into new, performing bonds on more or less the same terms — including a 70% haircut — that everybody else got. In no event will it allow Elliott to be paid off in full — to be “made current” — on the original terms of its bonds.

The Second Circuit, on the other hand, clearly sees its job as being to enforce the original bond contract, which has been in default for 11 years. When Argentina proposes something roughly 4,000 days late and a billion dollars short, that’s all the provocation the Second Circuit will need to bring down the hammer and uphold the district court’s orders.

Those orders are tough indeed. Commenter “paripassuwatch”, on my original post, notes that the court’s injunctive remedy is “the most powerful enforcement mechanism in the realm of sovereign debt since the era of ‘gunboat diplomacy’. Blocking access both to the world payment system and world capital markets is as close one can get to blocking access to trade and customs duties”.

These days, as Don Henley famously said, a man with a briefcase can steal more money than any man with a gun — and the Second Circuit is going to hand over to Elliott Associates one of the most powerful briefcase-based weapons the world has ever seen. That doesn’t mean Elliott’s going to get paid, of course. But it does mean that that the hedge fund can essentially turn Argentina into a global economic outcast unless and until that happens.

The consequences for Argentina could well be very real and very painful. All governments need to fund themselves, and Argentina is no exception: what’s more, all governments borrow money from foreign investors, by issuing either foreign or domestic debt to those investors. Again, Argentina is no exception — foreign investors have long been a large part of the investor base for Argentine domestic debt. So in theory, losing access to US capital markets might be no big deal: Argentina could simply move all of its funding operations to Buenos Aires.

In practice, however, as DanielKoehler, another commenter, says, things are more complicated than that. Foreign investors tend to want dollar-denominated debt, and whenever you’re dealing in dollars, various intermediaries are going to be transferring those dollars into a US bank account. Similarly, Bank of New York, as the trustee for the bondholders who are receiving interest payments right now, would have to be involved somehow in any attempt to exchange those bonds for new domestic bonds. In both cases, US institutions could find themselves at risk of being found in contempt of court in New York, and might well refuse to cooperate with Argentina.

Just finding a bank willing to lead-manage any exchange offer would be difficult, for Argentina, given the legal and reputational risks associated with such a mandate. The New York courts are being very clear: if Argentina wants to be able to pay its current bondholders, it’s going to have to pay off its holdouts at the same time. (Or, conversely: if Argentina wants to remain in default on the holdouts, it’s going to have to default on everyone.) No one knows how this whole thing is going to play out, but New York’s jurists aren’t stupid, and are good at closing all the obvious loopholes. Argentina has very good and very expensive lawyers, but there’s no particular reason to believe that they’re going to be able to conjure up some clever mechanism which allows the country to continue paying the bondholders it wants to pay, while keeping Elliott out in the cold.

That said, the New York courts are playing a very risky game here. If Argentina does end up defaulting on everybody, it’s only going to be a matter of time before it unveils some kind of exchange offer, which would probably be open to holders of all defaulted bonds. Most likely the bondholders who are currently receiving interest payments — the exchange bondholders represented in court by David Boies — would be offered 100 cents, or maybe even slightly more than that, on the dollar, while the holdouts, like Elliott, would be offered maybe 70 cents on the face value of their claims. (Elliott is asking the court for roughly 300 cents on the dollar, thanks to the wonders of past-due compound interest.)

Such an exchange offer could easily be presented by Argentina as a good-faith effort to cure a default which was forced on it by hostile American courts. And David Boies would certainly be arguing vociferously for the right of bondholders to decide whether they wanted to accept Argentina’s offer or not. At that point, what would Judge Griesa, and/or the Second Circuit, do? They could stand firm, and essentially block the entire exchange offer — thereby keeping Argentina in default against its own will. But while they’re sworn to uphold the sanctity of contracts, they also have to have at least one eye on the ability of New York’s financial markets to function effectively. And it’s hard to see how they can do that if they’re preventing a sovereign nation’s best attempt to extricate itself from default.

So while the current situation is certainly very bad for Argentina, it could wind up being just as bad for the Southern District, and for New York’s status as an international financial capital. Which is why the Second Circuit is going to have to think very hard indeed before handing down any particularly draconian decision.

Some countries default on their performing debt because they no longer have the ability to pay it. Other countries default on their performing debt because they no longer have the willingness to pay it. Argentina has been in both situations: something of a serial defaulter, it defaulted on or restructured its obligations in 1828, 1890, 1982, 1989, 2001, and 2005.

And it’s going to default once again in 2013.

This time, however, is a little bit different. Argentina has both the willingness and the ability to pay its performing debt. It’s adamant, however, that it’s not going to pay $1.4 billion to Elliott Associates, a hedge fund which has been prosecuting a highly-aggressive litigation strategy against the country, based on the fact that it holds defaulted debt and refused to exchange that debt for performing bonds. Depending on where you sit, Argentina’s refusal to pay off Elliott is either noble or foolish. But after two and a half hours of highly contentious oral testimony in federal appeals court today, it’s pretty clear that the US courts aren’t going to allow Argentina to stay current on its performing debt — not unless the country also writes a ten-figure check to Elliott. Which means that we’re headed straight for default, with almost no realistic chance of avoiding it.

You didn’t really need me to tell you that: one look at Argentina’s 12-month credit default swap (current spread: 5,266bp) will tell you everything you need to know. But this is a pretty big deal all the same — not least because the Second Circuit seems certain to hand down a judgment which is pretty bad law.

That’s nothing new: in its first decision, the Second Circuit happily ignored lots of settled law about sovereign immunity, among other things, and was downright wrong about pari passu. This time around, the law preventing the Second Circuit from upholding the lower court’s orders is much weaker, and mainly comprises something called Rule 65(d)(2)(C), which is even more obscure than pari passu. Essentially, the Second Circuit has proved itself more than capable of taking a steamroller to formidable legal obstacles; this one should present no real problems at all, by comparison.

The questioning was led, aggressively, by Judge Reena Raggi, who barely let a sentence get finished and who made it clear from the very beginning that she is if anything even more fed up with Argentina’s antics than the district court judge, Thomas Griesa, whose verdict was being appealed. The fact that Argentina’s vice president and economy minister were sitting right in front of her didn’t faze her for one second: this was her courtroom, she was in charge, and it took her no time at all to accuse Argentina of being “contumacious”. (Which is fair enough, even Argentina’s counsel didn’t really disagree on that front.) In Raggi’s eyes, clearly, there’s nothing worse than a contumacious defendant: it doesn’t matter how many footnotes you have or how much precedent you cite, if you’re thumbing your nose at her she’ll find against you.

What’s more, Raggi really doesn’t like being blackmailed. Both Argentina and David Boies, acting on behalf of the bondholders who are currently being paid by Argentina, made the point multiple times that if Griesa’s order was upheld, the certain result would be another Argentine default, a whole new set of cases on Griesa’s docket, and, essentially, a loss for everybody, including Elliott Associates, which still wouldn’t actually get paid. Raggi was unimpressed: “Is that really this court’s concern?” she asked Boies, saying that it was not her job to wonder about “whatever the market might do” as a result of her ruling.

Boies, in truth, was unimpressive: he never seemed entirely on top of his brief, and there was one excruciating episode where he had to go scurrying off to ask Bank of New York’s lawyer to find out the answer to a question which everybody else in the courtroom knew the answer to. Argentina’s tactic today was to spend less time arguing its own case, and to outsource the job of fighting Elliott to Bank of New York and to David Boies, in the hope that they would be more sympathetic and less contumacious. But Raggi made mincemeat both of BoNY’s lawyer — telling him in as many words at one point that he was giving very bad advice to his client — and of Boies, who was clearly out of his depth. Remarked one lawyer, observing the proceedings: “If you’re going to bring in a hired gun, at least make sure it’s fully loaded.”

Argentina’s own lawyer, Jonathan Blackman, started off rockily yet actually finished quite strongly, warning of the practical consequences of what everybody in the courtroom could quite clearly see coming at that point. “You’re making it worse!” he said. “Do no harm!” It was an argument with no legal weight, and it won’t change the final result. But he did give Argentina the use of a “don’t say we didn’t warn you” card at any time the US or anybody else criticizes it for defaulting yet again.

But the clear winner was Ted Olson, representing Elliott, who stayed calm and masterful throughout. In contrast to Boies, he knew exactly what he was talking about, was sure of the merits of his own case, and didn’t feel the need to appeal to Learned Hand precedent every few minutes. In front of more impartial judges, he might have had a harder time of it. But oral arguments aren’t the time or the place for jurisprudential nit-picking: that’s what detailed briefs are for. Rather, Olson’s job was to reassure the three appeals-court judges that they should feel perfectly comfortable upholding their colleague’s decision and standing up for legal rights enshrined in New York-law documentation. And he did that extremely well.

Or maybe the real winner was pretty much everybody in the courtroom, since the one thing that seems certain is that the amount of litigation and dealmaking surrounding Argentine sovereign debt — which has already been enormous — is going to become positively stratospheric. It’s hard to look too far into the future, here, but one likely scenario is that the appeals court will uphold Griesa’s decision at some point in April or May, forcing a big default in June. At that point, Argentina will probably launch an exchange offer under Argentine law, under which anybody holding currently-performing bonds would be able to swap them into bonds with substantially identical terms, just payable in Buenos Aires rather than New York. Given that Argentine-law bonds have been trading at tighter spreads then US-law bonds for some months now, one can assume that nearly all bondholders would jump at the opportunity to keep on getting their coupons.

Argentina might even take the opportunity to give its holdouts a third bite at the cherry, offering them some kind of option to take a haircut and get performing Argentine-law bonds in exchange for their defaulted debt. But many holdouts would still remain, and will surely continue to pester New York courts for the foreseeable future.

All of which helps explain why Argentina’s credit default swaps are trading so much wider than Argentina’s bonds. The bonds will probably default, but bondholders are unlikely to suffer huge losses if they just have a bit of patience for a couple of months — eventually, Argentina will surely give them the opportunity to swap their debt into a slightly different instrument, one which is less susceptible to New York jurists. That said, the credit default swaps will be triggered, and Argentina will probably drop out of key emerging-market indices like JP Morgan’s EMBI.

This is emphatically not what Argentina hoped for when it entered into its exchange offers in 2005 and 2010. Back then, the idea was that it could cure its default, mop up its holdouts somehow, or at least render them irrelevant, and ultimately make it back into the good graces of the international capital markets. Instead, Argentina remains a capital-markets pariah, it can’t really do business anywhere in the world without worrying that Elliott or someone like it is going to attach its property, and pretty soon it will probably have to give up on issuing any foreign debt at all, retreating instead to its own small South American world.

Argentina is a unique and special case on many levels: the failure of its 2005 and 2010 debt restructurings does not mean that debt restructurings in general don’t work, or that we need to resuscitate the idea of a sovereign bankruptcy regime. Still, the precedent being set here is not a happy one — not for international bondholders, probably not even for Elliott Associates, which is still a long way from getting paid, and definitely not for Argentina. This is looking very much like one of those court cases which absolutely everybody ends up losing.

Update: There is one way that Argentina can prevent a default in 2013: by prepaying all its 2013 coupons now, before the ruling comes down. Don’t rule it out: in this case, anything is possible.

Many congratulations to Stephen Fidler, who has managed to get some actual news in Davos: EU economics commissioner Olli Rehn went on the record telling him that Cyprus is going to have to restructure its debt — just two weeks after ruling such a thing out.

That might come as little surprise, given that Cypriot banks were loaded up to the gills with Greek debt, and Greek debt suffered a 70% haircut. Cyprus is tiny, and could never afford the €17 billion needed to bail out the banks and the government — especially since that would bring the country’s debt load up to more than 140% of GDP.

Still, after the EU forced Greece to default, it drew a line in the sand: no more sovereign defaults, it said, since Greece was “unique and exceptional”. So this does go to show that you can’t really trust Europe’s promises. What’s more, Cyprus’s now-certain restructuring is going to be significantly messier than Greece’s was.

Greece’s debt restructuring was essentially unstoppable for one main reason: most of its debt was issued under domestic law, rather than foreign law. A tweak to domestic law, and suddenly the vast majority of Greece’s creditors were bailed in to any deal, whether they voted for it or not. Cyprus, in contrast, doesn’t have that luxury: its bonds are mostly issued under foreign law. And that means any restructuring is going to be much more difficult.

Lee Buchheit and Mitu Gulati have a potential solution to that problem, which involves amending the treaty governing the European Stability Mechanism. But the other big problem in Cyprus will still loom: the question of the country’s bank deposits.

In a country like Cyprus (or Iceland, or Switzerland), where the banking sector is many multiples of national GDP, there’s very little distinction between rescuing the banks and rescuing the country. And if the asset side of the banks’ balance sheet is full of Greek sovereign debt, the liability side is equally dodgy: Cyprus is a notorious center of dodgy offshore banking, especially for Russians. If Cyprus is going to restructure its liabilities, it’s going to have to face one huge question: will those restructured liabilities include Russian and other foreign deposits?

If there’s any hint that Cyprus might force foreign depositors to take some kind of haircut, of course, there will be a massive run for the exits, and Cyprus’s current solvency problem will become a much more serious and immediate liquidity problem. The last thing that Cyprus or any other country needs is a bank run, which will leave the national balance sheet in the classic pinch where “on the left, nothing’s right, and on the right, nothing’s left”. What’s more, in many ways the precedent of forcing depositors to take a haircut would be even more damaging than the precedent of imposing a haircut on Greek bondholders: at that point there would be really no reason at all to have deposits in any Mediterranean country.

That said, foreign deposits in Cyprus amount to some €30 billion: the opportunity cost of protecting them in full, while imposing a substantial haircut on Cyprus’s bonded creditors, would be huge.

So even if Europe has made its first big decision — to force Cyprus to default — it still faces many more. Should it amend the ESM treaty to make any restructuring easier? Should it impose a haircut on Cyprus’s uninsured depositors? And how can it structure the process to minimize the chances of a messy bank run, default, and possibly even exit from the euro? It’s easy to dismiss Cyprus as too small to worry about. But it’s still an important sovereign state. And if the EU missteps on Cyprus, that would bode very ill for any similar problems in bigger eurozone countries in the future.

If you want to stay on top of what’s going on in the case of Elliott vs Argentina, here’s your one-stop shop: Shearman & Sterling’s invaluable page on the subject, with links to all the briefs and filings you could possibly ever want to read on the subject, plus Shearman’s own detailed and useful summaries of what they say and mean.

The latest news in the case is quite important. A group of Argentine bondholders — real bondholders, not the vultures holding defaulted debt — were understandably unhappy at the Second Circuit’s interpretation of the pari passu clause in New York law bond documentation. That interpretation is, for the time being, the last word on what the pari passu clause means — but the problem is that a majority of observers, including myself, don’t actually believe that the pari passu clause means what the Second Circuit says it means.

So Argentina’s creditors had a bright idea. New York courts are the ones in charge of determining what contracts mean when they’re written under New York state law. So they asked the appeals court to send the case over to the New York Court of Appeals, for a new ruling on the meaning of the pari passu clause.

They lost: the appeals court just said no to that idea. As a result, the world has already changed dramatically: from here on in, settled law is going to say that pari passu boilerplate can and should be read to mean that debtors should make a “ratable payment” to all equally-ranking creditors, and that they can’t pay Peter without paying Paul. This is an important precedent in the world of sovereign debt, and is almost certain to make debt restructurings that much more difficult, at the margin. Indeed, the FT ran an article last week saying that the ruling is so important we should maybe try to resuscitate the IMF’s doomed Sovereign Debt Restructuring Mechanism proposal from 2002. Please, anything but that.

The Second Circuit’s ruling is almost certainly here to stay; there are a couple of appeals going on, one to the whole circuit sitting en banc, and the other to the Supreme Court. But the chances of either appeal succeeding are vanishingly slim. But let’s not overemphasize the importance of the precedent here. There is a very real chance that Argentina could wind up in technical default as a result of this ruling, but it’s far from clear that the ruling is going to prove particularly important to any country that’s not called Argentina.

The reason is that the Second Circuit’s interpretation of the pari passu clause ultimately boils down to “hey Argentina, if you’re paying these guys, then you have to pay those guys too”. But there was never any doubt that Argentina had a legal obligation to pay those guys. Even Argentina itself doesn’t dispute that. Anybody holding defaulted Argentine bonds can very easily go to just about any court they like, and get a judgment saying that they have to be paid, whether or not anybody else is being paid at the same time.

So really, the interpretation of the pari passu clause is neither here nor there. What’s important — what’s absolutely crucial, in this case — is the remedy that Judge Griesa has come up with in retaliation against Argentina for not paying NML Capital (a/k/a Elliott). I explained that remedy using Lego last month; the important thing is that Griesa isn’t just delivering judgments against Argentina, but that he’s also binding intermediaries like Bank of New York Mellon and generally the entire financial clearing system.

That’s what all the briefs in front of the Second Circuit are now litigating: not the meaning of the pari passu clause, but rather what courts can and can’t do if they determine that the clause has been breached.

There’s a huge spectrum of possible rulings from the Second Circuit on that front, ranging from a full affirmation of everything that Griesa has done, all the way to a declaration that while Argentina has indeed violated the law, innocent third parties can’t be enjoined or punished for its actions. But whatever the Second Circuit rules, the ruling will only affect Argentina, and won’t be a particularly useful or important precedent for anybody else: remedies aren’t precedents in the same way that rulings are. In future, any judge finding a debtor guilty of violating a pari passu clause will still have full discretion in terms of the remedies she can impose, and will never be impelled to follow in Griesa’s footsteps. And even Griesa only started getting this harsh on Argentina after a full decade of Argentina cocking its sovereign nose at his court.

So while a lot of sovereign-restructuring geeks will breathe easier if the Second Circuit strikes down the most extreme part of Griesa’s ruling, nothing the court can do would be enough to justify broad-based panic about sovereign restructurings more generally, and very few investors would consider an Elliott victory here to be a green light encouraging them to try the same tactics in future restructurings. The Argentina case is unique on many levels, and is likely to stay that way — no matter how the Second Circuit rules.

Greece’s bond buyback has succeeded, after a fashion. There weren’t enough bids by the original deadline of Friday, but then the offer was extended and two things happened. First, Greece’s banks bowed to the inevitable and tendered all of their bonds, rather than just most of them. And second, the Greek government made its most explicit default threat yet:

Stelios Papadopoulos, the head of the Public Debt Management Agency, stated “We have decided to extend the Invitation to offer Designated Securities for exchange to 11 December 2012. Holders that have not tendered so far can still take advantage of the liquidity opportunity offered by the Invitation. Investors should bear in mind that even if Greece accepts all bonds tendered in the Invitation, it will continue to engage with its official sector creditors in considering further steps to put its debt on a sustainable path. Future measures may not involve an opportunity to exit investments in Designated Securities at the levels offered for this buy back.”

In English: you can hold on to your bonds and hope to get paid out in full, if you want — rather than accepting 33 cents on the dollar right now. But be aware: Greece has to do what its official-sector paymasters tell it to do. And if it takes “further steps to put its debt on a sustainable path”, who knows how much money you might end up with when it’s all over. Are you sure you don’t want to just take those 33 cents?

Joseph Cotterill makes a good point: with the Greek banks now having been taken out of their bonds, the low-lying fruit for any future restructuring offer is now gone, which means that in any future restructuring, Greece is going to be dealing with hard-nosed hedge funds rather than complaisant domestic banks. That said, Greece might conceivably now have a nuclear option in its back pocket: the comments to Cotterill’s post are full of speculation that Greece might be able to find a way not to cancel the bonds its buying back. In which case it could use its new supermajority vote to cram down a very bad deal indeed on any holdouts.

All of which is to say that this buyback deal is increasingly feeling a lot like a second default, just months after the first one. It’s good for the optics of Greece’s debt-to-GDP ratio, and it doesn’t seem to be triggering any CDS. But it’s a useful lesson for any other European countries (Ireland and Portugal are the obvious next candidates) who are thinking about restructuring their private debts. You don’t necessarily need to do the whole deal at once: especially if you are clever in your use of collective action clauses, you can start with a small and insufficient haircut, and then follow it up with a second restructuring a bit further down the road. If your creditors are largely domestic banks, that could work out much better than socking them with one-off monster losses.

When S&P downgraded Greece to Default on Wednesday, I thought it was a bit silly. After all, here’s a chart of the benchmark 2042 bond, since issue: although it’s trading at just about 30 cents on the dollar, that represents an all-time high, and the price has trebled since the end of May. When an issuer’s bonds were trading at 10.65 in May and are 30.63 today, that’s not the kind of price action you expect from a defaulting entity.

When one of the big two ratings agencies says that an issuer is in default, that’s an important determination. But S&P doesn’t seem to be keen to own it: the stated reasons read a bit like “we’re only following rules, there’s nothing else we can do”. The logic goes like this: Greece is buying back its debt at a substantial discount to face value — and when investors “receive less value than the promise of the original securities”, that counts as a default, as far as S&P is concerned.

Now the analysts at S&P are human, so they’re allowed to make a reasonable determination as to what that means in practice. Specifically, what was “the promise of the original securities”, and are the investors who tender into the exchange getting less than that? One way to make that determination is to simply look at the face value of the bonds, but that’s silly. A long-dated zero-coupon bond, for instance, will always trade at a big discount to its face value, but that doesn’t mean it’s distressed, or delivering any less than was promised. And the 2042 bond I’m charting above, for instance, has a very low 2% coupon, so of course it’s going to trade well below par.

So instead, it’s worth looking at the yield on the bonds — in this case, it’s about 11.5%. That’s high, but I don’t think it necessarily enters into “distressed” territory. In any case, we know exactly what the promise of the original securities was: when they were fresh off the securities-creation machine, they were worth about 24% of face value, and now they’re worth about 30%. So investors are getting substantially more than the promise of the original securities, if you use the market as your measuring stick.

Judging by S&P’s own criteria, then, I’m not a huge fan of the decision to brand Greece as being in default. Certainly the credit default swaps aren’t going to be triggered, and on its face this deal doesn’t feel like a default: the tender offer is a voluntary one, it improves the value of the bonds rather than destroying value, and at the margin it means that the bonds are more likely, rather than less likely, to pay out in full and on time.

But then I saw this:

Banking sources told Kathimerini that Greece’s four main banks – National, Eurobank, Alpha and Piraeus – submitted all their bonds, with a nominal value of 11.5 billion euros, to the buyback process…

Sources said local banks are hopeful that investors’ take-up of the offer from the Greek government, which had set a price range of between 30.2 and 40.1 percent of the principal amount, was big enough to allow lenders to eventually hold on to some of the bonds they submitted.

Greek banks were hoping to keep 20 to 30 percent of their bond holdings to minimize their losses.

As far as Greece’s banks are concerned, then, this is not a voluntary deal after all. They don’t want to tender all their bonds, but they are tendering all of their bonds, and they’re hoping to be able to keep at least some of them. Why would they do something they don’t want to do? Because the alternative is that they risk Greece failing to get enough tenders, which would cause the offer to fail, which in turn would be disastrous for the economy. Technically, the banks have a choice here, but in practice they don’t. And when you’re being coerced to give up your bonds at 30 cents on the dollar, that feels like a default.

From the point of view of the Greek banks, then, I can see why this might be considered a default. On the other hand, from the point of view of any independent investor, including all the hedge funds who have made very good money on these instruments in recent months, the exchange isn’t a default at all. Independent investors really do have the voluntary choice of whether or not to tender into the exchange, and in fact they love the fact that the exchange is happening: it’s providing a healthy bid for their paper.

So, is Greece defaulting on its bonds again? My feeling is that the answer is no. You can make the argument that this is a coercive distressed exchange, and that coercive distressed exchanges are one way of defaulting. But default is a fraught word, and I don’t think it should be used lightly. In this case, when the exchange is genuinely voluntary for all but the Greek banks, it seems weird to call it a default. Especially when the bonds are trading at their all-time highs.

Finally, the mainstream press is getting around to trying to explain what on earth is going on in the case of Elliott vs Argentina. I like Steven Davidoff’s summation, even though it was written before the appeals court came down with its emergency stay (which Davidoff also covered, very well). But the coverage from the likes of Reuters and Bloomberg  has been seriously lacking when it comes to video explanations featuring Transformers, toy trains, and a toilet-shaped coffee mug. So, here you are. Enjoy!

(One minor correction: at about 2:40, I say that Argentina has been effectively ignoring the US district court for about ten years, and then I add that the exchange bondholders have been collecting their coupons for that long as well. Which isn’t true, the bond exchange only happened in 2005.)

This is the best news that Argentina could possibly have hoped for: the Second Circuit Court of Appeals — the same three judges which upheld Judge Griesa’s decision last time around — has decided that this time, he’s gone too far. Here’s their order:

If you recall, the big thing that Griesa did last week was to not put a stay on his order, forcing a showdown on December 15, when Argentina is due to make a $3 billion payment to its exchange bondholders. If Argentina made that payment, said Griesa, it would also have to pay its holdouts in full.

The Second Circuit, here, has said that Griesa was too hasty: it wants time to think a bit over what he’s done, and whether it’s just. So everything is “stayed pending further order” of the Second Circuit, and nothing is going to be decided for a while — at least until after February 27, when oral arguments will be heard. (Expect a packed-to-the rafters courtroom for that one.)

As a result, Argentina has three months’ breathing room — and every interested party in this case, which includes the US government and lots of people representing the hidden plumbing of the markets, will file an amicus brief.

What’s more, the Second Circuit also recognized the exchange bondholders as “interested non-parties” in the case, who can themselves appeal Griesa’s judgment — thereby setting up a Boies vs Olson showdown in February, with Argentina very much on the same side as David Boies, who’s representing the exchange bondholders, and against Ted Olson, who’s representing Elliott Associates.

At this point, handicapping the ultimate outcome is anybody’s guess, although whatever the Second Circuit decides you can be pretty sure that one side or the other will appeal it to the whole circuit, sitting en banc. As a result, don’t expect those Argentine credit default swaps to trigger any time soon: this case is going to be caught up in the law courts well into 2013.

My hope is that somewhere up the chain, principles of national sovereignty and smoothly-functioning markets will prevail, and Griesa will be overruled. But I have no idea where or when that might happen, or how likely it is. All I know for sure is that a lot of lawyers are going to be making an absolutely enormous amount of money in the next few months.