Disputable means: Pragmatic knowledge practices in sovereign debt agreements. Reflections on the argentinian case

Abstract

This essay follows an interest in socio-legal studies in taking on the legal technicalities (e.g., legal instrumentalism, managerialism, procedures) as a subject of inquiry (Riles A, Buffalo Law Rev 53:392–405, 2005, Collateral knowledge. Legal reasoning in global financial markets. University of Chicago Press, Chicago, 2011; Valverde M, PoLAR 26(2):86–108, 2003, Soc Leg Stud 18(2):139–158, 2009). Accordingly, it focuses on the means to end relationship embedded in legal techniques to elaborate on the “pragmatic knowledge practices” (Valverde M, PoLAR 26(2):86–108, 2003) they further. The study draws on a concrete case of sovereign debt litigation in US courts: NML Capital, Ltd. v. Republic of Argentina that came out of this country’s foreign debt default in 2001 (following a larger economic crisis) and debt restructurings in 2005 and 2010. Rather than focusing on the effects of the court’s rulings on the parties in the case, third interested parties (namely payment and clearing institutions), or even on the alleged impacts upon the sovereign debt world (Gelpern A, Houston Law Rev 50 1095–1127, 2013, 2014), the case becomes in this essay a venue to engage in a context-based analysis of the use of some legal formulas or terms which became routinized knowledge practices in foreign debt agreements. Consequently, the study moves beyond the question of judicial interpretation of contractual terms to look at the function that those legal devices are thought to perform in the contexts in which they are placed, represented, appropriated, negotiated, and even anticipated by the agents. In this vein, the piece seeks to assess the political spin of legal technicalities by looking into their constitution as mere vehicles of pragmatism while serving a disputable ideological agenda; and thus, they are means to multiple ends.