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Argentina's Curse, Venezuela's Blessing: How to Restructure Venezuela's Debt Using Pari Passu

Given the escalation of Venezuela’s crisis, many fear that the government and the state-owned oil company Petroleos de Venezuela, S.A. (PDVSA) are on the brink of insolvency. In this paper, we introduce a debt-restructuring plan that would allow Venezuela to restructure its debt in an orderly manner. We propose that Venezuela restructure both PDVSA debt and its own external debt via the use of Exchange Offers. To minimize the number of holdout creditors, we suggest that Venezuela primarily utilize the pari passu provisions in PDVSA and Venezuelan bonds that can be read as allowing the subordination of the notes according to Venezuelan law. In restructuring PDVSA bonds, this tactic can be supplemented by the use of exit consents, while in the case of the majority of Venezuelan bonds it can be supplemented by the use of Collective Action Clauses (CACs). The fact that debt subordination according to local (Venezuelan) law has been contracted for makes its use more legitimate than in past sovereign restructurings. While there are risks associated with this technique – especially because the particular pari passu language has not been tested in court – a creditor who chooses to holdout from a restructuring nonetheless faces a possibility of non-payment that is credible and contractually induced. This legitimate fear of non-payment may be sufficient to encourage large creditor participation and mitigate an expected holdout problem. Ironically, the pari passu clause that condemned Argentina might be the one to save Venezuela.