Indiana Jones, Contracts Originalist

Capital Markets Law Journal, 2014, Forthcoming

UNC Legal Studies Research Paper No. 2430547

6 Pages Posted: 30 Apr 2014 Last revised: 29 May 2014

See all articles by Mark C. Weidemaier

Mark C. Weidemaier

University of North Carolina School of Law

Date Written: April 28, 2014

Abstract

The process of drafting a contract can be routine, almost automated. Over a long enough time, lawyers may stop paying attention to contract language or even forget why it is there. The problem is acute with standard-form contracts and perhaps especially so when the contract is itself a commodity, as with securities. How should courts interpret a clause when neither the parties, nor their lawyers, nor any other relevant player in the market can credibly explain what it does? This essay addresses this question in the context of one of the most contested interpretive questions in modern international finance: the meaning of the pari passu clause in sovereign bonds. In "Santa Anna and His Black Eagle," Ben Chabot and Mitu Gulati document the first (known) use of the clause in connection with a sovereign bond issue - by Mexico in 1843 - and invite speculation as to whether this origin story might inform the modern interpretation of the clause. In this essay, I consider this proposal - essentially an originalist approach to contract interpretation - both in general and in the context of the debate over the meaning of the pari passu clause.

Keywords: sovereign debt, pari passu, contracts, contract interpretation, NML

Suggested Citation

Weidemaier, Mark C., Indiana Jones, Contracts Originalist (April 28, 2014). Capital Markets Law Journal, 2014, Forthcoming; UNC Legal Studies Research Paper No. 2430547. Available at SSRN: https://ssrn.com/abstract=2430547

Mark C. Weidemaier (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919.843.4373 (Phone)

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