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Mittwoch, 20. Februar 2019

A New Development on the CAC v. No-CAC Question in Euro Area Sovereign Bonds

A New Development on the CAC v. No-CAC Question in Euro Area Sovereign Bonds

posted by Mark Weidemaier
Mitu Gulati and Mark Weidemaier
We have previously discussed how Euro area sovereign bonds with Collective Action Clauses or CACs (issued after Jan 1, 2013) and without CACs (issued prior to Jan 1, 2013) potentially differ in their vulnerability to debt restructuring. For anyone trying to draw up plans to tackle a future Euro area sovereign debt crisis (e.g., in Italy), it will be crucial to decide whether the CAC and no-CAC bonds are in fact different from a restructuring perspective. Conversely, for investors trying to predict which bonds to avoid and which to buy, the matter is equally important – and indeed, should be reflected in prices (for recent empirical papers, see herehere and here).
Last week, a research note by two Dutch researchers made its way to our desks (via reporters who found the claims intriguing). These researchers, looking into investment treaties entered into by the EU with Singapore, Canada and Vietnam, were concerned about two aspects relevant to future sovereign debt restructurings (among other things). To quote their abstract:
On the eve of the vote in the European parliament on the new investment treaty between Singapore and the European Union, SOMO publishes an analysis on the risks for managing government bonds and money flows. The analysis explains how the EU-Singapore Investment Protection Agreement (IPA) negatively impacts the policy space the EU, EU member states and Singapore have to manage financial instability and prevent financial crises.
(Note:  As per the Dutch research note, the EU-Singapore Investment Agreement has not been ratified by the EU parliamentary authorities yet). The issues of concern were:
First, the treaty seemed to include government bonds within its ambit (which is not the case in all such bilateral investment treaties).
Second, the treaty has specific vote requirements that differ from other treaties (e.g., 75% in the EU- Singapore agreement; 66.67% in the EU-Canada one) and that, if not followed, allow investors to bring treaty-based claims.
One concern raised by the report is that such treaties – perhaps inadvertently, perhaps intentionally – can make future restructurings of Euro area sovereign bonds harder by granting investors in certain countries additional rights that could enable them to block restructuring attempts.
Here are our preliminary thoughts, focusing on the EU-Singapore treaty:
The Dutch researchers are right in flagging the treaty as important to future European sovereign debt restructurings. The reason for this is that the treaty gives a claim to investors harmed by a restructuring, but not in cases of "negotiated restructuring." That term includes restructurings conducted via the treaty's voting procedure. It also includes any restructuring that satisfies the following two criteria: (1) a Euro area sovereign restructures bonds that were issued with CACs and (2) the sovereign in fact uses the CAC to accomplish the restructuring. This exception plainly follows from the broad definition of "negotiated restructuring," which also includes any restructuring or rescheduling "effected through a modification or amendment of debt instruments, as provided for under their terms, including their governing law." (E.g., Annex 4 of the EU-Singapore treaty; Provision 3 (i)). So, if a bond has a Euro CAC pre-specified, with all its bells and whistles, a restructuring accomplished via that clause is a "negotiated restructuring" that does not run afoul of the treaty. 
So far, so good. But what if the sovereign decides it does not want to use the CACs to do the restructuring? That the CAC is too constraining? For example, what if it wished to engineer the restructuring by imposing a unilateral withholding tax on payments due on the bonds? Or by redenominating the currency? (The list of Reserved Matters in the Euro CACs includes some provisions that might be interpreted to forbid such acts, but we do not think that is the only way to interpret the bonds.) If we stipulate that the CACs themselves do not prevent such restructuring techniques, then it seems to us that the treaty may contain a significant new limitation—i.e., forbidding any technique that does not use the CAC or the treaty's voting procedures. If so, this is a big deal.
But is that really the effect of the treaty? To think this through, let’s consider the effect of the treaty on the no-CAC bonds (e.g., pre-Jan 1, 2013 Euro area sovereign issuances under local law). The definition of "negotiated restructuring" is quite ambiguous. Recall that the term includes a restructuring effected "through a modification or amendment of debt instruments, as provided for under their terms, including their governing law.” No-CAC (and many CAC) bonds are issued under local law. What if, say, the sovereign changes that law to include a Greek-style retrofit CAC, with a restructuring vote requirement lower than that specified in the treaty (e.g., 50%)? That would be a relatively standard use of the “local law advantage.” The treaty does not clearly forbid such an act. Indeed, it quite literally conforms to the definition of a "negotiated restructuring." And if that’s true, then perhaps other creative uses of local law advantage—like those we mentioned earlier in connection with CAC bonds—are also allowed.
Arguably, it wouldn’t make much sense for the treaty to allow such uses of local law advantage. The argument proceeds by implication from the fact that the treaty specifies an alternative voting threshold for cases where there is no pre-specified mechanism for a "negotiated" restructuring. Perhaps the implication is that the only permissible alternative to the treaty-based voting mechanism is a similar, contract-based voting mechanism (i.e., a CAC). On the other hand, that reading seems quite narrow given the fact that the treaties also allow modifications pursuant to the contract’s “governing law.”
So: we are confused. This seems an important ambiguity. Perhaps it was intentional—a way, in effect, to kick the can down the road, since there remains a great deal of uncertainty about the extent to which Euro area governments are constrained in their ability to exploit the local law advantage. But if the treaty in fact means to allow investors to assert claims in the wake of a government’s use of its local law advantage to restructure the debt, then the Dutch researchers were right in ringing the alarm bells. Kudos to them for flagging this – Myriam Vander Stichele and Bart-Jaap Verbeek.

Comments

This seems like an interesting, if narrow, stopgap measure. I still have a question though: would the treaty apply to EU Citizens holding a bond, or does it only apply in the case of citizens of Singapour/Canada who hold EU bonds?
From what I understand, this treaty governs foreign (non-EU) creditors who own EU bonds. If this understanding is correct, then it would govern a small percentage of EU debt (based on my understanding of the percentage of debt owned domestically). However, if it applies too any series of bonds that are purchased by even one citizen of Singapour/Canada, then the treaty's alternative minimum voting requirement would apply. The latter seems like a very broad interpretation...
I wonder how this treaty would affect a potential restructuring of a country with a large proportion of domestic law-governed and domestic currency-denominated bonds mostly held by domestic investors (e.g. Italy). This treaty probably doesn't allow EU residents to take advantage over what effectively counts as a retroactive CAC provision under the treaty. And I can't imagine how domestic creditors could get a similar retroactive CAC as Singapore, Canada and Vietnam investors under the BIT. Even assuming that the BIT effectively adds CACs to pre-2013 debt, I doubt countries like Italy would be affected very much.
At the end of the day, the treaty says what it says--the drafters had to have had Greece, retrofitted CACs, and the local law advantage in the background when drafting this. If this is the case, it seems like the alternative voting threshold for the cases without a pre-specified mechanism for negotiated restructuring acts as a sort of backstop to any other actions by the sovereign.
I think Mark and Mitu are right in pointing out that this is an important issue. My reading is the following.
Annex 4(3)(i) of the EU-Singapore FTA alludes to Euro CAC restructuring (which can have a voting threshold as low as 66.67%).
Annex 4(3)(ii) seeks to limit CAC retrofits of some kind (but is more creditor-friendly with the 75% voting threshold).
I am not sure that the "including their governing law" reference in Annex 4(3)(i) has any meaning beyond reflecting that CACs are now also included in local law EA bonds (which is not the case anywhere else in the world and owed to the particularities of the euro area).
I would be very surprised if the drafters had the local law advantage in mind. Still an intelectually very interesting debate and one that some actors in the debt markets might revert to when the tough gets going.
I read "negotiated restructuring" as something the drafters intended to distinguish from shock-the-conscience scenarios, and that ambiguity reads more defensively to me than something intended to fundamentally alter the paradigm in favor of creditors.
I agree with the authors' second theory here, that this is an attempt to establish conformity among the CAC & no-CAC bonds. The ambiguous reference to "governing law" looks more like an oversight, although even if true that doesn't discount its potential significance.

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Sonntag, 3. Februar 2019

Euro Area Sovereign Bonds: CACs or no-CACs?

Euro Area Sovereign Bonds: CACs or no-CACs?

posted by Mark Weidemaier
Mitu Gulati and Mark Weidemaier
Beginning January 1, 2013, Euro Area authorities required member countries to include “collective action clauses,” or “CACs,” in sovereign bonds with a maturity over one year. CACs are a voting mechanism by which a bondholder supermajority (e.g., 66.67% or 75%) can restructure bond terms in a vote that binds dissenters. Before 2013, the vast majority of sovereign bonds issued by Euro area countries not only lacked CACs; they essentially said nothing about restructuring. For much more on CACs, European and otherwise, see herehere and here.
Because of this policy change in 2013, almost every Euro Area sovereign has two sets of bonds outstanding: CAC bonds and no-CAC bonds. Is either type of bond safer for investors to hold in the event of a restructuring?
Italy just slipped into recession and has a gargantuan debt stock. Lorenzo Codogno, former chief economist at the Italian finance ministry, sees a crisis around the corner. To quote him (via the Guardian):
“All the leading indicators suggest the first quarter of the year will be as bad as the last, and the second quarter will be flat. It’s likely things will pick up from there, but even then, it will mean the economy finishes the year in a weak position”
If Italy or another Euro Area country needs to restructure, the difference between CAC and no-CAC bonds will become important. As an initial matter, it is tempting to think that the no-CAC bonds protect investors from restructuring, because these bonds implicitly give each bondholder the right to veto a restructuring of the bond. To be clear, the no-CAC bonds don’t actually say that investors have this right--the bonds say nothing at all--but this isn’t an unreasonable interpretation. But even if so interpreted, it isn’t clear that the no-CAC bonds really offer more protection. The reason is that almost all of the bonds—CAC and no-CAC—are governed by the local law of the issuing sovereign. And the sovereign can change that law to facilitate a restructuring. (For discussions of the local-law advantage, see here and here.)
The crucial question, then, is whether CAC and no-CAC bonds differ in terms of the protection they offer investors against changes to local law. It seems to us that this question depends on the answer to a number of other, subsidiary questions:
First, when the bond is governed by the issuing sovereign’s law, to what extent do CACs protect investors against adverse changes to this law? We previously wrote about this question when considering the risk of currency redenomination. Our question then was whether CAC bonds, which also require a super-majority vote to change the currency of payment (see the definition of “reserved matter”), protect against redenomination risk. This question may prove important in the event that Italy’s financial situation worsens. To broaden our focus beyond redenomination, perhaps CAC bonds give investors some meaningful protection--though hardly complete immunity--from changes to the governing law.
Second, when a bond includes a CAC, must the issuing government use it? Or can the government restructure via some other method (such as imposing a restructuring by fiat via a change to local law)? If the former, CACs would offer investors more protection. We’d expect CAC bonds to trade at higher prices (lower yields) than no-CAC bonds, because they are safer.
 Third, do no-CAC bonds in fact give each investor the right to veto a restructuring that would affect their bond? As noted above, we think this is a reasonable interpretation, but there is no clear answer as yet. We suspect this is how many investors understand the bonds, and it corresponds to what many Euro Area policy makers thought about the mandate. (For reports on interviews, see here.)
Euro Area authorities have said very little about how the new CACs will work in a restructuring. Perhaps they do not want to give any indication that another restructuring is in the works. (The official line is mostly that there will never be another debt restructuring in the Euro Area and any question that implies otherwise is terribly stupid.)
Several research papers recently examine the CAC vs. no-CAC question in the context of local-law Euro Area bonds. The papers are by a group of researchers at the ESM, (Picarelli, Erce & Jiang - here), a group from the ECB and the Central Bank of France (Steffen, Grund & Schumacher -- here), and by a group of academics (Carletti, Colla, Ongena & Gulati - here). The papers all use somewhat different datasets and empirical strategies. But the bottom line is the same every time. CAC bonds are viewed by the market as less risky.
These studies, however, don’t give a definitive answer as to whether CAC bonds are safer, and they certainly don’t explain why they would be safer. Leaving aside suspicions about whether markets price legal risk efficiently, we are still looking for a coherent legal theory to explain why local-law CAC bonds offer more protection than local-law no-CAC bonds. If there is an Italian debt restructuring, this question will play a central role.

Erinnert ihr die Proteste bei Volkszählungen ? Dort wurde euch der Schutz der Daten zugesagt. Jetzt springen sie jedem von uns an in Form der Grundsteuer die insbesondere von den Mietern zu zahlen ist !!!


Diese Pipeline ist ein schwerer strategischer Fehler

Diese Pipeline ist ein schwerer strategischer Fehler