Tracy Alloway: Hello and welcome to another episode of the OddLotss podcast. I'm Tracy Aloway

Joe Weisenthal: and I'm Joe Weisenthal.

Tracy Alloway: Joe Venezuela.

Joe Weisenthal: Venezuela week.

Tracy Alloway: So we've done the oil market. Yeah, we got to do the debt market.

Joe Weisenthal: We got to do the debt market. I don't know anything about this stuff, so we got to do it.

Tracy Alloway: One of the reasons that I really like covering the debt market, bonds, is because I think we're used to thinking of bonds as contracts.

Joe Weisenthal: Yeah.

Tracy Alloway: But I always like to think of them more as stories.

Joe Weisenthal: Yeah. Yeah.

Tracy Alloway: So, they're full of all these narratives and embedded values and history. And there's actually a great quote from Margaret Atwood. She wrote this whole book called Payback on Debt. and she describes it as a story or a memory of who owes what and why.

Joe Weisenthal: Yeah.

Tracy Alloway: And of course, if you're talking about a story or a narrative, those can change over time, right?

Joe Weisenthal: Absolutely. I mean, so one thing I know is that just since Saturday morning and the early trading, I think the existing defaulted Venezuelan debt that's out there, I think it's rallied. I think it's gone up. Oh, yeah. But I don't understand like, you know, you're trying to get the economy going again. You're going to make everybody pay for this money that was borrowed by someone who the international community regards to be legitimate as a dictator. If anything, shouldn't the creditors that facilitated his ongoing rise, shouldn't they have to pay? Not only should they not get paid back, shouldn't they pay the people of Venezuela extra for having subsidized someone that is widely regarded to be a criminal? We're calling this guy a narot terrorist and yet so it's like shouldn't we punish the people who lent to him?

Tracy Alloway: Maybe you should be on the restructuring team joke. No, but it's true. So this is the debate. So you're right. Bonds have rallied. So there's Venezuelan sovereign debt. There's also debt issued by PVESA and those have gone from like 5 cents on the dollar a few years ago to more than 30 cents. So people are already making money. And the bet here is that there is going to be some sort of restructuring and they're going to get more money. And of course, the creditors, the investors always want more. Meanwhile, there's a strong argument that the Venezuelan people should have their debt load alleviated in some way.

Joe Weisenthal: Yeah, I'm in favor of a negative recovery.

Tracy Alloway: Okay. All right. Well, we really do have the perfect guest to talk about all of this. Uh someone we've had on the show before, but it's been a while. We're going to be speaking with Lee Bukhite. He is a retired lawyer now. He's had a 40-year legal career, worked on more than two dozen sovereign debt restructurings, including Greece and Iraq, and that's going to be relevant to this conversation. So, really the perfect guest. Lee, welcome back to the show.

Lee Bukhite: Thank you, Tracy and Joe. Good to be back. Maybe just to begin, can you sort of set out the scene of the creditors and the debt that Venezuela actually owes? Who owns those bonds and how much debt are we talking about?

Lee Bukhite: In total, probably now the Venezuelan debt is someplace between 150 and 170 billion. Not all of that is bombs. And that's one of the issues that we should discuss. The bonds that we're talking about are principally Republic of Venezuela and Pedabvesa bonds roughly split 5050. They were issued during the Chavez and early Maduro periods. They went into default all of them in the fall of 2017. You remember Mr. Trump in his first term imposed sanctions on Venezuela in August of 2017. The response was to have the bonds go into default and they have remained in default since then. One of the difficulties that Venezuela will face in restructuring its what I call legacy debt stock is that there are all kinds of other liabilities that are not in the form of bonds. So there are unpaid trade creditors, there are holders of arbitration awards, chunky arbitration awards, there are people with blocked deposits in Venezuela. And so the restructuring when and if it comes will not be the simple homogeneous kind of restructuring that we're used to where there are bonds or in the old days bank loans. This is going to be a much more diverse creditor group.

Joe Weisenthal: Is there a formal hierarchy that exists either in written law or in norms that sort of establish who comes first when we have these multitude of instruments or is it the type of thing where the conditions of each country depending on what they are etc. And maybe the conventions, not necessarily written down the same way in formal law, will help sort of determine that waterfall. I suppose

Lee Bukhite: nothing in law, but in convention, debts extended by the multilateral institutions, the IMF, the World Bank, the Interamerican Development Bank, that sort of thing are treated as preferred creditors. So they will not be restructured in a formal sense. Once you come down from that level then you have government debts. So you know debts extended by France, Germany, the United States typically for export encouragement and then commercial debts and that can be bonds, bank loans and these various other sorts of things they all rank equally.

Joe Weisenthal: Okay. Now, the government creditors would like you to believe that they have some kind of intermediate seniority, but in fact, they don't.

Tracy Alloway: So, Joe touched on this in his emotional intro, but

Joe Weisenthal: I wasn't expecting to get so agitated, but it's like, we're calling this guy a narot terrorist and we they have to pay back his debts. It's ridiculous.

Tracy Alloway: There's an inconsistency there. Sure. Lee, what about the old odious debt argument? this idea that if debt is issued by I guess an odious regime or an illegitimate regime of some sort then maybe you don't have to pay it back at all.

Lee Bukhite: Yeah, this is a very sensitive area Tracy. International law is very strict in saying that governments succeed to inherit the obligations of their predecessors. No matter how different in political philosophy one administration may be from another. So the boleviks take over from the zar in 1917. International law says the boleviks have got to honor the debt. Napoleon Bonapart honored the debts of the bourbon monarchs that he followed. The exception there are very limited exceptions to that. One of them that was first talked about in the early part of the 20th century was odious debts. In its original formulation, that meant a debt incurred by a dictatorial regime where the proceeds were not used for the benefit of the citizenry of the debtor country and where the creditor knew or should have known

Joe Weisenthal: that the dictator was going to steal the money. So, it was a pretty narrow category. It was resurrected in 2003 in the context of Saddam's Iraq and there was a push there by among others many in the George W. Bush administration who wished to have Saddam's debts disavowed on the basis that they were odious.

Lee Bukhite: My view at the time was that that was ill- advised. That the doctrine of odius debt is sufficiently gauzy that it is not something that the international community could have endorsed because once you start down that road there are a lot of sketchy characters out there whose debt you might want to disavow. So my view at that time was that Iraq would be able to achieve very significant debt relief without unfurling the banner of odious debt.

Tracy Alloway: Can you explain a little bit more what you see as the negative consequences of this notion of odious debt? Because I think a lot of people just maybe their heartstrings they're like yes we should start using this principle. Saddam bad the lenders to him probably had a reason to think he was a bad guy. What do you see as the cost of introducing this concept into sort of sovereign debt law or norms?

Lee Bukhite: Yeah, Joe, I entirely understand the emotional argument. It strikes most people as reprehensible.

Joe Weisenthal: Yeah.

Lee Bukhite: That you could have a dictatorial kleptomaniacal regime that signs a contract on behalf of the Republic of Roritania. And when that son of a bachelor exits the stage, the poor people of Ruran, you've got to repay that debt. That's the emotional argument. The other side of it is what constitutes an odious debt. You can have an odious regime that borrows money to build a children's cancer hospital. On the other hand, you can have a democratically elected regime that borrows money to finance a terrorist organization. What happened in the Iraq situation was the Bush team really would have defined it as any debt incurred by an odious regime. Okay, even if you take that, tell me what is an odious regime? Is it one that makes war on its neighbors? Yes, probably. Is it one that is insufficiently attuned to environmental factors? Is it one that misprices women? Tell me what's odious. And once you start down that road, pretty hard to find a regime that would to everyone's satisfaction be regarded as virtuous.

Tracy Alloway: talk a little bit more about the Iraq restructuring because this seems to be the previous sovereign debt restructuring that people are drawing a lot of parallels to uh with Venezuela. So you have an oil producing country operating as we've been discussing under an authoritarian regime to put it mildly

Joe Weisenthal: an alleged narotist.

Tracy Alloway: Yeah. Okay. Well, Saddam Hussein was never a naroterrorist, was he?

Joe Weisenthal: I don't know. He pro I don't know. I don't

Tracy Alloway: I don't remember. I was only like I was like 11.

Lee Bukhite: Naroterrorism is probably one of the few sins that Saddam did not commit.

Tracy Alloway: Yeah. Yeah. Okay. A point in his favor. Talk about the parallels here. Can we look at the Iraq sovereign debt restructuring, which I think ended up being something like 10 cents on the dollar for creditors. Is that the guiding light here? Would you expect Venezuela to follow a similar path?

Lee Bukhite: No. No. Iraq was unusual for this reason. You remember that George W. Bush, George II, put together a coalition of 40some countries. Saddam was ousted after a full invasion of the country. So the country was run by the coalition provisional authority largely led by the United States but the Brits were there and there were some others. They really did run the country not in the way Donald Trump says he runs Venezuela at that point. The coalition provisional authority really did run it. The Bush team really wanted that experiment to succeed. They wanted a stable, democratic Iraq right in the middle of the Middle East.

Lee Bukhite: Someone that would support Israel when that became necessary. They wanted a bull work against Iran. And they really wanted it to succeed. And their perception at the time, this is now 20034, was that this myasmic cloud of debt that Saddam had accumulated and ceased paying, by the way, in 1990 when the Security Council put sanctions on him, that debt stock would effectively keep anyone from investing in Iraq, lending it money, and so forth. So it was viewed by the Bush people as a major obstacle to the economic recovery of Iraq and and so they issued the mandate deal with that debt stock in the most expeditious way possible. And as far as they were more of Joe's view that they didn't like Saddam Hussein and they didn't like anyone who lent money to Saddam Hussein. So they had little sympathy for the creditors. The United States had a very limited exposure. So this was a relatively harmless position for the US government to take. But their initial proposal was to go and and say the debt is odious. Let's write off 100% of it. And we went to the Paris Club, the group that negotiates governmental intergovernmental debt, I think with a proposal to write off 95% of it. In the end, 80% of it was written off. And that was absolutely extraordinary for a middle inome country that sits on the fourth largest oil reserves in the world. But that was the mindset of the Bush people. I don't see Donald Trump having any particular solicitude for the citizens of Venezuela. His solicitude seems to be for the oil companies and perhaps for the US government itself.

Joe Weisenthal: That's interesting. I mean, who are we, I suppose, to speculate into Donald Trump's mind? Because on the other hand, you know, it's like oil's at $57 a barrel. Do the oil companies want to spend tens of billions of dollars rebuilding this? Do they want even cheaper oil right now, which would presumably happen if the taps turn on in Venezuela? Unclear. Setting all that aside, and maybe we'll get a little bit more towards Donald Trump mind reading in a moment. What do we know about the holders of Venezuelan debt or pedesa debt, are we able to tell what type of institutions or entities are currently holding it?

Lee Bukhite: Joe, there's a function on the terminal called HDS, which stands for holdings, and you can look it up.

Joe Weisenthal: Okay. Well, but I'll leave it to leave.

Tracy Alloway: Yeah, Lever is the terminal.

Lee Bukhite: No, no. It's mostly traded into the hands of hedge funds. Okay. In January of 2019, Mr. Bush in his first term imposed a restriction that prevented US residents from buying Venezuelan debt or even selling it to themselves. They could sell it overseas. And so some of it was sold off. But as Tracy said in her introductory remarks, in those days this debt was trading 7 8 9 cents on the dollar. But as with most sovereign debt restructurings, when the debt is in the form of bonds, freely tradable bonds, you don't actually know who owns it until such time as you make an offer to restructure it.

Joe Weisenthal: Just real quickly as a followup, does it matter? Okay, maybe people don't have a lot of sympathy for hedge funds that are picking up distress debt at two cents or 5 cents on the dollar or maybe people feel differently about some entity that I don't know is man just conservatively managing sovereign debt for widows and orphans so to speak. But from the perspective of international law or New York law or sovereign debt restructuring law, does the composition of the creditor group bear into this at all?

Lee Bukhite: No. The claim is the claim.

Joe Weisenthal: Okay.

Lee Bukhite: Where it is relevant, Joe, is in the negotiation of the debt. If I sit across from someone who paid 10 cents for their claim, Yeah.

Joe Weisenthal: and I offer them 20 cents, I'm a hero. But if I sit across from a in the old days a banker

Lee Bukhite: Yeah.

Lee Bukhite: who lent a hundred cents and I offer him 20 cents. I'm a heel. And so it plays into the negotiation in that sense.

Tracy Alloway: Would you expect the US Treasury to be heavily involved in these negotiations just in terms of the actual process, the legal process?

Lee Bukhite: Not nearly as much as George Bush's Treasury was back in 2004 and five. The US Treasury has always had an interest since 1982 when Mexico began the modern era of sovereign debt workouts. US Treasury has always had an interest in seeing these problems dealt with in a consensual negotiated way. So I would expect if and when the time comes they would encourage both the Venezuelan administration and the holders of Venezuela's debts to negotiate them in a consensual way.

Joe Weisenthal: Well, actually, let me back up. I mean, we're talking about these negotiations and the market is clearly reflecting some expectations of a change, but does the arrest, the rendition of um Maduro make that inevitable? Does this have to happen or is it possible that again because his vice president is currently

Lee Bukhite: It's the same regime. It's the same regime, which seems to be Trump seems to be okay with because for whatever reason, uh, we can only speculate what kind of conversations they've had in the background and so forth. But is there an inevitability to these negotiations? Is there a formal starting gun? Is there a reason that they ever have to happen? Or could Venezuela just stay on default and sort of muddle through without any resolution to the debt question? I don't think they can stay in default indefinitely, but there is no starting gun. As a matter of fact, what has prevented a restructuring of Venezuela's debt since 2017 has been the sanctions imposed by the US government.

Joe Weisenthal: Oh, yeah. This is funny. So, you can't even sit down and begin to talk about a restructuring because you'd be in violation of of sanctions.

Lee Bukhite: Yeah. And so, those sanctions would have to be relaxed. And that decision ultimately sits with Mr. Trump and he may or may not decide that the removal of Maduro is a sufficient basis on which to begin relaxing sanctions, but I don't think so. On the current path, he will want to see a complacent regime in Caracus. He has said as much. the president of Venezuela has got to be someone who follows the orders of Donald John Trump. And he's he's said that if they are sufficiently complacent, then perhaps he will begin relaxing sanctions, perhaps allowing a debt restructuring to go forward. What has changed and what will be different this time is if you listen to the president's speech last weekend, he didn't talk about democracy. He made a passing reference to wanting to see Venezuela made great again. But his principal focus was on the oil companies. He wants them pumping oil and to that end in effect said, "We will make sure that your claims for expropriation which occurred in the Chavez era are getting paid." And if he is true to what he said back when George Bush was in Iraq, Donald Trump criticized Bush for not having taken Iraqi oil to pay for the costs of the invasion.

Lee Bukhite: And so I expect he will say this time that Uncle Sam is entitled to be recompensed for the cost of keeping that naval armada in the Caribbean. So in a restructuring the waterfall which is normally a squabble between the citizens of the country and the creditors of the country. In this case there may be people at the top and maybe US government is at the very top and oil companies come next and then the squabble between citizens and creditors.

Tracy Alloway: One thing I've learned in my life and job is that lawyers are nothing if not creative. So, I'm wondering, is there some sort of creative solution that could at least help perhaps on the margin the Venezuelan debt load while I guess preserving the goodwill, so to speak, of investors. So, I'm thinking, you know, maybe maybe they get an extension instead of a haircut. Or maybe you have something like the Mexico situation where you have new loans but those fall under different treatment to the older debt. Something like that.

Lee Bukhite: Yeah. Look, a couple of things. First, the oil infrastructure in this country has been badly degraded. It's going to take two to five years, I think, of significant investment to bring that infrastructure up to the point where Venezuela is pumping what it was pumping say back in 2016, maybe 3 million barrels a day. So, this is not going to happen overnight that there's a huge influx of revenues. Second point, if Mr. Trump is true to his word, first dibs on those revenues will go to the oil companies who are making these investments.

Lee Bukhite: Third, some money is going to have to be used to have a discernable improvement in the lives of Venezuelan citizens. Otherwise, the regime that's in power will be very fragile. So, you're talking about years in which most of this money is going to have to go places other than into the pockets of legacy bond holders. What I would expect therefore is that the bond holders will ask for what is generically called a value recovery instrument. This is a country that deres 95% of its foreign currency earnings from the sale of a commodity oil. So the logical thing would be for the bond holders to say give us an instrument that is a play on the oil market.

Lee Bukhite: That was done by the way in the early 90s during the so-called Brady initiative. You had oil exporters, Mexico, Venezuela, Nigeria, and they sweetened their Brady restructurings by giving oil warrants that would pay off if oil exceeded a certain strike price in the future. Mexico's issued in 1990 had the strike price set at the enormous level of $14 a barrel, but I would expect that that will be the fudge factor in a Venezuelan restructuring. You're right that most payments will have to be deferred for quite a long time, but an oil instrument is likely to be part of the mix.

Joe Weisenthal: When we're talking about international law with respect to sovereign debt, what law are we actually talking about? Because I know often they talk about New York law where a lot of bonds actually get issued or they go through the banks there, whatever. So when you talk about okay international law says this that or whatever about what corpus of law are we actually talking about here and what law is relevant to the Venezuelan debt.

Lee Bukhite: Yeah. The debt instruments themselves will be issued under the law of a municipal jurisdiction. 95% of sovereign emerging market sovereign debt is issued under the law of either New York or England.

Joe Weisenthal: Okay. In Venezuela's case, it's all New York law.

Lee Bukhite: Okay.

Lee Bukhite: When I say international law, that's not the law applicable to the contract. That's really the law applicable to the governments that form part of the international okay

Joe Weisenthal: system. So it will be New York law in the case of Venezuela. But just on this note, I know there's been chatter for a long time now about creating some sort of common framework when it comes to sovereign debt restructurings. Is that at all realistic at this point in time or is it still sort of pie in the sky thinking? That idea was first broached back at the time of the Argentine default in December of 2001 and it was actually promoted by the IMF. They called it the sovereign debt restructuring mechanism. They reasoned as follows. In corporate debt workouts, under bankruptcy, municipal bankruptcy laws, if a super majority of the creditors agree to a restructuring, their decision binds any dissenting minority.

Lee Bukhite: Right?

Lee Bukhite: Sovereigns are not subject to a bankruptcy law. And so, sovereign debt workouts have been characterized by holdout creditors. that is creditors that do not join a voluntary debt restructuring and seek to pursue their legal remedies. Argentina knows all about this.

Joe Weisenthal: Yes, they do.

Lee Bukhite: So, the IMF reasoned, well, what we need is a chapter 11 for sovereigns. That idea died a political death because the Americans did not support it. But it continues to have some vitality and bills have been introduced over the last few years into the New York legislature.

Lee Bukhite: One of them suggesting that perhaps New York, whose law governs many of these dead instruments, should itself put in place a kind of chapter 11 process. It hasn't gotten much traction. I don't think that that will

Joe Weisenthal: why not?

Lee Bukhite: Uh for a bunch of reasons. There are aspects of sovereign debt workouts that differ materially from corporate debt workouts. Among other things, the court does not control the foreign sovereign. Cannot

Joe Weisenthal: foreign sovereign. We're going to liquidate you. We're going to take the keys to Well, I mean, keys to Venezuela kind of doing it.

Lee Bukhite: Exactly. They can't say we're going to replace the management. Sovereigns are sovereign. And that has always been the principal feature of sovereign debt workouts is that you're dealing with debtors who are not subject to any institutionalized bankruptcy regime. Therefore, we've had to rely on consensual workouts. But I'm not going to put too fine a point on the word consensual. Sometimes there's been encouragement.

Tracy Alloway: All right, we we're going to have to leave it there, but it's been so good to catch up with you. Really the perfect guest for this particular topic. So, thank you so much.

Lee Bukhite: Okay, guys. Thank you.

Joe Weisenthal: Thanks, Lee. That was fantastic.

Tracy Alloway: So good. Thank you, Lee.

Lee Bukhite: Byebye.

Tracy Alloway: Joe, I really enjoyed that conversation. Lee has an incredible talent for explaining things in very very clear language. But, you know, the thing that stuck out to me is, I guess, the contrast between sovereign versus corporate debt.

Joe Weisenthal: Yeah.

Tracy Alloway: You know, he talked about it at the end. this idea that you can't really have a sort of standardized bankruptcy process for a sovereign as you do with a corporate because sovereigns are sovereign.

Joe Weisenthal: You can't have like a new equity. It's like oh and now the and now the country goes to the equity holders, right? Because that's what happens in a company, right? So it's like oh all the you know what oh the debtors get a haircut and there's a new they become equity holders, right? the debtors be what what would that even mean in the sovereign concept for the debtors to become equity holders except to some extent to his point which I thought was interesting was like okay you could have an oil linked instrument but not every country that gets into trouble is going to have like a very easily salailable commodity such as oil

Tracy Alloway: yeah and also just I talked about this in the intro but the idea of debt is a human construct like it doesn't actually exist except in our minds And so

Joe Weisenthal: and on the pages of the terminal

Tracy Alloway: and on the pages of the terminal of course. So it can change over time and there are all these values embedded in it and one man's legitimate regime is another man's or another investor's dictatorship and it seems very hard to litigate that in a public court.

Joe Weisenthal: Totally. How you define odius how do you define an odious regime? How do you define what are appropriate proceeds and inappropriate proceeds? clearly extremely difficult and of course sure maybe the US government right now will say Maduro narot terrorists etc but that is just the perspective of the department of justice which has uh which has filed charges against Maduro whatever whether that's some objective reality difficult by the way I love that episode

Tracy Alloway: I would have rather not asked any questions and just listen to Lee talk for the for the whole time

Joe Weisenthal: that's the perfect radio voice we're going to get him to narrate something. I think now that he's retired, he has some time. He can narrate our next long form episode.

Tracy Alloway: Yeah, maybe we should do like a three-part series on sovereign debt and it just be

Joe Weisenthal: just have Lee tell stories about, you know, being across the table from various creditors.

Tracy Alloway: I love that. Representing various failed governments or postfailed governments or unsavory car. Yes, that sounds great.

Joe Weisenthal: All right. Uh shall we leave it there?

Tracy Alloway: Let's leave it there.

Tracy Alloway: This has been another episode of the Odd Thoughts podcast. I'm Tracy Aloway. You can follow me at Tracy Aloway

Joe Weisenthal: and I'm Joe Weisenthal. You can follow me at the stalwart. Follow our producers Carmen Rodriguez at Carmen Arman Bennett at D-bot and Kalebrooks at Kalebrooks. For more OddLots content, go to bloomberg.com/odlots with a daily newsletter and all of our episodes. And you can chat about all these topics 24/7 in our Discord, discord.gg/odlots. And if you enjoy OddLotss, if you want us to have Lee come back and talk for three hours by himself, then please leave us a positive review on your favorite podcast platform. And remember, if you are a Bloomberg subscriber, you can listen to all of our episodes absolutely adree. All you need to do is find the Bloomberg channel on Apple Podcast and follow the instructions there. Thanks for listening.