The Penalty Doctrine in Contract Law

We've never been fans of the contract law rule against penalties. Why can't parties (sophisticated ones at least) agree to suffer a penalty in the event of breach? We’d ordinarily avoid this topic, because the doctrine makes little sense and the issue doesn’t come up much in the sovereign debt world. But recently, a couple of sovereign restructurings (Ghana and Zambia) have used “Loss Reinstatement Provisions.” At least on their face, these provisions seem vulnerable to challenge under the penalty doctrine, since, if the sovereign defaults on the restructured deal, they impose a loss that seems untethered to the injury creditors have suffered. Would these new clauses be enforced if challenged? The contracts in question are both under English law, which we don't know much about. But that does not stop us from speculating and arguing.

Producer: Leanna Doty

Ep 146 ft. Mitu & Mark

Greece’s (Ratings) Rise From the Ashes – Wow, but also How?

We study sovereign restructurings, which means we primarily study countries going into and struggling to get out of crisis. Serial defaulters such as Argentina and Ecuador are frequent topics on our podcasts. And given how bad things were a decade ago, and its history of frequent defaults before that, we might have expected that Greece would join Argentina and Ecuador as among our more frequent podcast topics. And, indeed, Greece is back. But not because it is back in crisis. Instead, it is because it has had a remarkable rise from the ashes to almost investment grade. To discuss this rise, our two good friends from Moodys Ratings, Sarah Carlson and Elena Duggar, join us.

Check out an overview of Moodys Sovereign Methodology here: https://ratings.moodys.io/sovereign-methodology

Producer: Leanna Doty

Ep 151 ft. Sarah Carlson & Elena Duggar

Why Do We Care Who is Behind HRB’s Sri Lankan Lawsuit?

The Hamilton Bank litigation against Sri Lanka appears to be reaching the end. Or is it? The stays that were granted during restructuring talks have implications for future sovereign debt restructurings, we think. Especially Venezuela’s restructuring, which is going to be a huge undertaking. And then, there may be more drama to come in the HRB lawsuit itself. Sri Lanka says it needs more discovery, apparently to dig into whoever might be behind the lawsuit. Why?

Producer: Leanna Doty

Ep 152 ft. Mitu & Mark

User Fees on the US Treasury Strategic Gold Crypto Reserve

Trump plans to reduce the US debt. We are missing some of the steps, but here are the ones we have identified so far:

1. Golden passports
2. Tariffs
3. Maybe not tariffs
4. Okay, tariffs
5. Something about gold
6. User fee on treasuries
7. Crypto
8. ???

We speculate about what we are missing. Maybe it’s a red Tesla?

Producer: Leanna Doty


Ep 153 ft. Mitu & Mark

What Might a Syrian Debt Restructuring (Eventually) Look Like?

There is little doubt that Syria needs to restructure its debt, among other reasons to pave the way for rebuilding after a long and brutal civil war. It strikes us as too early to envision what that process will look like, but we can identify some of the key issues. The country owes a lot to official creditors, especially Iran and Russia. Much of this was off-books and was used for the military or otherwise to support former President Bashar al-Assad's repressive regime. Not surprisingly, we are already hearing the term "odious debt" raised to suggest these debts need not be repaid; there may be a separate doctrine allowing repudiation of certain war-related debts. We talk about whether these (arguable) doctrines of international law have any relevance here and about the potential role of the U.S. in a debt restructuring.

Producer: Leanna Doty

Ep 154 ft. Mitu & Mark

What if Trump Discovers that Unpaid UK (and French) Debt From WWI?

The current administration has tossed concepts such as “special relationships” with allies out the window. The administration seems willing to apply just about any leverage it has to obtain concessions from allies, including concessions that might reduce the US debt. Seen in that light, what will happen when Trump and the Musketeers discover that the UK and France have hundred-year old unpaid debts? With interest, that unpaid debt would now amount to a few trillion dollars.  Enforcing these debts would be near impossible, except that the UK and France own a whole bunch of US Treasuries. Could the administration try to force a swap of those Treasuries into  longer term obligations? Or try to use the US government's claims against the UK and France as a setoff, reducing payments on US debt held by those governments? Seems loony. But loony is normal these days.

Producer: Leanna Doty

Ep 155 ft. Mitu & Mark

Is There Any Law of State Succession? Syria, Ukraine and Greenland.

The law of state succession to obligations comes mostly from a different era, when war and conquest were legal and borders changed with some frequency. Today, we are faced with multiple situations where borders might change due to war. Does the law tell us what happens to the debts attributable to the acquired territory? And how do we translate legal rules that evolved in the 18th and 19th centuries into the modern era? Paul Stephan (Virginia), one of the foremost international law experts, joins us to discuss.

Producer: Leanna Doty

Ep 156 ft. Paul Stephan

Sovereign Debt Odd & Ends
 
An odds and ends podcast about unrelated sovereign debt topics. First up, Venezuela. Most investors have been sitting around waiting for an eventual restructuring and lifting of US sanctions. But a handful of funds sued early, got judgments, and have spent years trying unsuccessfully to collect. If they had succeeded, they would have recovered much more than similarly-situated creditors who waited around for a restructuring deal. But they failed and, in a bizarre twist, have asked the court to vacate their judgments, effectively returning them to the creditor queue. We cry foul. Next up, another fiscally-irresponsible and increasingly author ... well, it's the United States. We discuss the crazy (and terrifying) idea that the US might unilaterally extend the maturities of government debt. 

Producer: Leanna Doty

Ep 157 ft. Mitu & Mark

Some Questions, Now That it's About 3 Years Since Russia’s Default
 
It has now been around 3 years since Russia’s invasion of Ukraine, which prompted EU and US sanctions and a default on Russia’s external bonds. The prescription clause in these bonds says that Russia’s obligations become void unless investors make claims within three years of the date payment is due. What does it mean to “make” a “claim”? Filing a lawsuit would do the trick. What about an email requesting payment? An automated message, which the depository sends out every payment date? Should bondholders have sought an agreement tolling the prescription period? Since they didn't, does Russia now have what amounts to an option to pay past due amounts? And what about interest on unpaid amounts? Does Russia owe interest on payments that were impossible to make due to sanctions? 

Producer: Leanna Doty

Ep 158 ft. Mitu & Mark

The Greek GDP Warrant Drama

Greece’s debt situation has improved remarkably, from default status in 2012 to investment grade in 2025. A few weeks ago though, Bloomberg reported on a brewing drama with the GDP warrants that were offered to investors in the brutal 2012 restructuring. Apparently, Greece has elected to exercise its right to call the warrants, and holders are yelling bloody murder at the low price at which Greece says it is entitled to buy. Every side has lawyered up and claims the other side is acting unreasonably. We speculate wildly on what might actually be going on and what is likely to happen.

Producer: Leanna Doty

Ep 159 ft. Mitu & Mark

Ukraine's Expansive "Fiscal Laws" Clause
 
International sovereign bonds, and particularly those issued under English law, often include a clause providing that payments are subject to the applicable "fiscal and other laws." Usually, the clause makes clear this refers to fiscal laws in the “place of payment” (e.g., Luxembourg). Separately, international bonds also provide that, if the issuer imposes any taxes on bond payments, it must "gross up" payments to foreign investors, so the tax does not reduce their payments. Together, the two clauses usually immunize foreign investors from taxes imposed by the issuer but leave room for taxes imposed by the place of payment. Ukraine's bonds are different. They seem to leave room for Ukraine to impose its own "fiscal" law on payments. Arguably, they leave investors subject even to local laws that aren't fiscal in nature. Might this be a source of leverage for the country in its negotiations with GDP warrant holders, who have so far refused to make concessions in restructuring talks?

Producer: Leanna Doty

Ep 160 ft. Mitu & Mark

Clauses and Controversies: A Podcast about International Finance, Contract Clauses and the Controversies Surrounding These Clauses

Ep 146 ft. Mitu & Mark

Clauses & Controversies

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