International Debt Workouts (LAW-884-001)
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Cross-border lending has grown exponentially in recent decades, especially with the opening of new markets in emerging economies and further integration of financial markets globally.
A natural consequence is the invariable need to restructure cross-border financing. Such restructurings or “workouts” can occur individually with a troubled debtor or on a broader level in systemic crises (e.g. the debt crises involving Asia, Russia, and Mexico in the late nineties, Argentina in the last decade, and the ongoing global financial crisis affecting the United States and Europe). In this course we will simulate, from an international lender’s perspective, the out-of-court debt workout of a corporation in distress. The simulation of this hypothetical workout will have role-play and extensive class interaction: we will be members of the restructuring and insolvency practice of an international law firm.
Our client will be an international commercial bank with a troubled loan to a company in a developing country. Our job will be to provide legal advice and services to our client throughout the loan workout process. During the semester we will also have practitioners on sovereign debt restructuring as guest speakers. Our work will include conducting due diligence, recommending a legal strategy, coordinating the creditor group, establishing negotiation strategies (and leverage) for our client, structuring the transaction documents, and closing the deal.
The objectives of this simulation are to help students: (1) understand the legal framework governing cross-border insolvency and restructuring; (2) debate legal issues affecting cross-border debt restructurings; (3) grasp the principles and best practices of international debt restructurings and insolvency from a practical perspective; (4) develop legal risk-analysis and problem-solving skills in the context of a troubled international financial transaction; and (5) gain experience with relevant document structuring and cross-border negotiation strategies.
Issues that will be addressed in the course include: choice of law and jurisdiction, enforcement of creditors’ rights in foreign courts, corporate governance, holdout creditors, moral hazard, distress signs in a company, cultural sensitivities, and cross-border negotiation techniques.
Textbooks and Other Materials
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The course lectures and simulation will refer to various concepts derived from the books below regarding negotiations, power dynamics and team development.
Greene, Robert: The 48 Laws of Power, Penguin Books, New York, 2000.
Fisher, Roger et al., Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, New York, 2011.
Katzenbach, Jon R. et al., HBR’s 10 Must Reads On Teams, Harvard Business Review Press, Brighton, MA, 2013.
First Class Readings
Buljevich, Esteban: Cross-Border Debt Restructurings – Chapter 1 (minus INSOL Principles) and Chapter 2;
INSOL Principles – download online at: http://www.insol.org/pdf/Lenders.pdf: and
Wessels, Bob: Cross-Border Insolvency – – pages 1-16; 268-282; and 607-609.
Draft UNCITRAL Notes on Cooperation, Communication and Coordination in Cross Border Insolvency Proceedings.
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