Burford open to Argentine bonds for US$16-billion judgement

Investors who won a US$16-billion judgement against Argentina over its nationalisation of energy firm YPF SA more than a decade ago are open to receiving payment in bonds instead of cash, according to people familiar with the matter. 

Burford Capital, a litigation funder that’s the biggest stakeholder in the case, would accept sovereign bonds or other marketable securities, considering the Argentine Central Bank’s depleted foreign reserves, the people noted, asking not to be identified because the discussions are private. It acquired rights to the lawsuit in 2015 for US$16.6 million from former YPF shareholders and stands to make at least US$6.2 billion if the full judgement is paid. 

The fund’s more flexible stance on repayment could mark an olive branch in a dispute that’s dragged on Argentina’s attempts to emerge from decades of financial debacles. Talks between Burford representatives and government officials have gone nowhere despite meetings in recent weeks, the people said. The lack of meaningful progress under President Javier Milei, who took office last December, comes more than a year since a US federal judge ruled in Burford’s favour. 

Argentina’s Economy Ministry and Milei’s chief spokesperson didn’t respond to requests for comment. Milei remarked several months ago on the possibility of selling a “perpetual bond” to pay down the YPF case, but no concrete strategy emerged. The Central Bank has more liabilities than assets, an impediment to cash payments known as net negative reserves. 

Wall Street has warmed up to Argentine dollar bonds as Milei implements strict austerity measures while he passes business-friendly reforms through Congress. Sovereign notes, which were deep in distressed territory a year ago, are now the best performers in emerging markets so far in 2024. 

Having defaulted three times in the last 24 years — the last of which was in 2020 — Argentina’s access to capital markets is still restricted. While Caputo has outlined plans to sell bonds, some investors have cast doubt Argentina could pull that off.

Argentina’s history of reneging on its sovereign debt would lend a note of irony to Burford receiving them as payment. In the case most frequently compared to the YPF one, Paul Singer’s Elliott Management sued the Argentine government over its 2001 default and waged a 15-year court fight to collect on sovereign debt it held. Argentina settled with Singer and other investors for US$4.7 billion in 2016.

The dispute comes against the backdrop of another severe recession in Argentina marked by 200 percent inflation and Milei’s bid to shore up the nation’s reputation abroad. On top of the YPF case, the libertarian must also manage a US$44-billion programme with the International Monetary Fund as well as a $US$1.5-billion case in the United Kingdom and payments to the nation’s current bondholders due in January. 

The lawsuit in US courts stems from Argentina’s seizure of YPF in 2012. US District Judge Loretta Preska ruled in 2023 that the nationalisation of YPF violated the company’s bylaws that required the energy firm to make a tender offer to all shareholders.  

Argentina is appealing Preska’s collection judgement, but failed to post security during the appeal. That led Preska to rule in January that the judgement — the biggest ever ordered by the federal court in Manhattan — was subject to immediate collection, before the appeal is decided. 

The most recent wrinkle in the case came Wednesday when the US Department of Justice sent Preska a letter asking she not allow Burford and others to seize YPF’s US-listed shares. The US Justice Department said allowing a private litigant to seize foreign assets on US soil poses risks to US foreign policy interests and reciprocity abroad. 

The stakes are high for Argentina not just in this case, but also as a litmus test in Milei’s bid to attract foreign investment. The president’s new reforms meant to bring in large foreign investments specifically allow companies to resolve potential legal disputes outside Argentina should a project go awry there. 

The case is Petersen Energia Inversora SAU v. Argentine Republic, 15-cv-02739, US District Court, Southern District of New York (Manhattan).