“Notwithstanding anything to the contrary hereunder, Holders of this Security shall not be entitled to receive any payment pursuant to this Security in respect of any Reference Year unless (i) Actual Real GDP for such Reference Year is greater than Base Case GDP for such Reference Year [the GDP Level Condition], (ii) Actual Real GDP Growth for such Reference Year is greater than Base Case GDP Growth for such Reference Year [the Performance Condition], and (iii) the aggregate amount of all payments made by the Republic hereunder, when added to the amount of such payment, does not exceed the Payment Cap [the Aggregate Payments Condition].”
“…Provided that if the Year of Base Prices employed by INDEC for determining Actual Real GDP shall at any time be a calendar year other than the year 1993, then the Base Case GDP for each Reference Year shall be adjusted to reflect any such change in the Year of Base prices by multiplying the Base Case GDP for such Reference Year (as set forth in the chart above) by a fraction, the numerator of which shall be the Actual Real GDP for such Reference Year measured in constant prices of the Year of Base Prices, and the denominator of which shall be the Actual Real GDP for such Reference Year as measured in constant 1993 prices.”
“Since the February 2013 Board meeting, the authorities have shared with staff an updated work schedule for improving GDP data. The updated plan envisages that a revised GDP series from 2004 with an updated base year will be published on the INDEC website by March 2014.”
“… it is not required to make payments during 2014 in connection with the GDP-linked Securities issued in 2005 and 2010 debt exchanges. The annual growth in Actual Real GDP (as such term is defined in terms and conditions of GDP-linked Securities) for 2013 did not exceed the growth rate in Base Case GDP (as such term is defined …) for that year; therefore, one of the conditions required for payment under the terms of the GDP-linked Securities was not met.”
“it is not required to make payments ... The annual growth in Actual Real GDP … for 2013 did not exceed the growth rate in Base Case GDP …; therefore, one of the conditions required for payment under the terms of the GDP-linked Securities was not met”
“both to decide whether a payment amount is due, …but also in determining what if any payment amount is due”
“The calculations which are challenged by the Claimants’ claim all ultimately go to the question of whether a payment amount was due and, if so, in what amount." Or in closing: “…the question [is]: is a payment due and, if so, in what amount?”
“Words of exception may be simply a way of delineating the scope of the primary obligation.”
“it is actually slightly patronising to the sort of sophisticated people who invest in these securities. They well understand the way in which different growth rates and years of base prices work and the securities opted for an approach which adjusts each year to produces the fairest and most accurate result rather than a simplistic approach that Mr Valentin contends for .. it is particularly ironic to advance a case based on everyone knowing where they stand in a situation where the Republic has rebased mid-year with the effect it says of moving the goalposts. …The Republic’s construction is that you can rebase midyear, refuse to apply the adjustment provision and thus avoid paying. So to say that that construction gives investors certainty is arrant nonsense …”
“185. It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”
“The claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty”
“He was also not dealing with the familiar case in which a claimant makes an ostensibly sustainable allegation but acknowledges that the process of disclosure is necessary to make the case stronger or to have it investigated properly. It is a familiar state of affairs that a claimant is ultimately reliant on disclosure from the other side in order to bring his case home, particularly in cases where the nature of the wrong is such that the defendant's activities were covert so that, if the case is good, the defendant is likely to have a substantial amount of material in its hands with no equivalent in the hands of the claimant. Unless the prospects of getting disclosure are “fanciful”, the claimant is generally entitled to maintain its case in those circumstances. That is not to say that claimants are entitled to embark on speculative cases in the hope that disclosure will throw up something useful. The claimant must have more than that to start with, but the inability to make a full case without disclosure is not, in my view, a bar to starting the litigation in the first place… Provided that there is enough to prevent them falling into the category of the purely speculative, the nature of the wrong alleged is such that the claimants will or may have little knowledge and evidence of their own at this stage and will need the benefits of pre-trial procedures in order to add to their case. There is nothing wrong with this. It is what disclosure (among other steps) is for. The alleged activities in this case were covert and, of their very nature, would be activities of which the victims would know little or nothing. Better evidence of what happened would lie with the defendant. There is nothing wrong with pleading a starting point, on an appropriate basis, and then expecting the case to become clearer after pleading and disclosure (if not the extraction of further information pursuant to a request).”