Professor Braga initiated the dialogue by drawing attention to Argentina’s ongoing experience. It had defaulted twice on its sovereign debt since 2001: in December 2001 it defaulted on its sovereign debt of $81 billion; and in July 2014 it failed to honor the restructured bonds issued as part of the process to resolve its first default. Professor Braga asked whether this situation was exceptional and applied only to Argentina or whether there might be more substantial systemic implications due to the unusual interpretation of the pari passu clause. Also, was it time to revisit the sovereign debt restructuring mechanism, which had last been raised by Anne Krueger, deputy managing director of the IMF, in the early 2000s?
Statutory institutionalized approach or ad-hoc, market-based machinery?
Many observers argue that new restructuring instruments are needed. Collective action problems could be overcome via two basic approaches: (1) a Sovereign Debt Restructuring Mechanism (SDRM) based on a statutory approach; and (2) Collective Action Clauses (CACs), which are part of an evolving market-based approach.
Professor Blommestein was skeptical about the effectiveness of statutory mechanisms: “Why would a statutory mechanism work when, in many debt restructuring cases, it is not that the countries’ capacity to pay is impaired; rather, many restructuring cases are better classified as unwilling to pay back.” According to him, a financial market place that is open and subject to rapid structural changes (including financial innovations) does not square well with a relatively inflexible, institutionalized approach. New statutory institutions such as an international bankruptcy court for sovereigns would not be effective. Instead, a market-based approach with CACs designed to align creditors toward a restructuring proposal would work better. However, the operation of CACs could be weakened or prevented by holdout creditors, so a pragmatic solution would be to make CACs immune to holdouts and amend the pari passu clause to preclude interpretations such as those reached by the US Courts.
A court ruling mandating that a country must always fully repay its debt – and give equal payment rights to holdouts (or “vulture funds” as the Argentine government calls them) and the holders of the restructured paper – implicitly implies that sovereign risk does not “exist.” This in turn means that market indicators such as yield spreads, sovereign CDS prices, credit ratings etc. are meaningless because creditors ought to always be fully paid. This would also negate debt restructuring proposals that link the probability of sovereign default to the country risk premium. Professor Blommestein argued that Argentina’s new default did not a priori signify an increase in sovereign risk or the country risk premium, as illustrated, for example, by the fact that the Buenos Aires stock market did not crash. Instead, the index was close to its record high. He highlighted a recent framework proposed by the International Capital Market Association (ICMA)1 for dealing more smoothly with sovereign defaults as a good example of a market-based approach.
Professor Bris also advocated a market-based mechanism, arguing that market decisions would generate the most efficient and least expensive outcome. It is virtually impossible to coordinate the interest of countries and investors in a statutory way because parties can always find a way to circumvent legal or regulatory mechanisms ex-post. He proposed focusing on market-driven solutions for Argentina to ensure all parties are willing to negotiate without any external intervention. He explained his viewpoint by referring to the general tendency to “like” the market only when itplays in one’s favor. “Whenever the market goes against us, we require a mechanism,” he rejoined. Argentina’s global market competitiveness ranking, based on IMD World Competitiveness Center measures such as cost of capital, transparency, legal frameworks and regulatory compliance, ranged between 57th and 60th place (in a ranking of 60 countries). In practice, this meant that it was difficult for Argentina to raise money within its own country and, as a result, the country had to go to international markets, particularly the US (which ranked 5th to 21st on the same measures). When Argentina approached the market to raise funds at a lower cost – with the protection of the US system – it was playing by the market rules. However, in case of a problem, market rules mandated resolution by district courts. When matters reached such a break point in terms of restructured debt payment, Argentina about-faced and sought yet another mechanism to escape. “If we live in the market then we must trust it and not play in it only when it is convenient for us,” Professor Bris asserted.
The solution, offered Professor Bris, is a mechanism similar to the US pre-pack system, which is increasingly being chosen by companies unable to make required payments to their creditors. It involves an out-of-court restructuring mechanism whereby creditors and companies come together and reach an agreement, usually intermediated by a trustee or an independent member. This system is the most efficient and does not involve judges or lawyers. A case in point is Enron, which has been paying $1 million a month in legal fees since 2001, and their bankruptcy case is still open.
Professor Panizza took the opposite viewpoint by supporting the creation of a statutory mechanism for resolving sovereign debt crises as this would make the international financial architecture more robust and limit situations like the Argentine default crisis. The discussion so far had mostly focused on creditors’ coordination and holdout problems but professor Panizza stated, “I would argue that a structured system is needed even if this problem were fully solved.”
Besides creditors’ coordination, he listed the following problems with the existing systems for sovereign debt resolution:
- The nature of debt renegotiations, which is complex, time-consuming, uncertain in outcome and generally ineffective in restoring debt sustainability
- Lack of private interim financing
- Over-borrowing due to debt dilution
- Delayed defaults.
Professor Panizza’s research indicates that the problem is not that countries are tempted to default too much and too early, but rather that they seem to default too late. So if debt restructuring were made easier it is unlikely that sovereign risk would increase or that creditors would ask for even higher interest rates. Delayed defaults are costly because in the periods immediately preceding a default there is a climate of uncertainty, which limits investment and amplifies the recession. As a result, the crisis deepens and everyone is worse off: creditors because of the diminishing capacity to repay, and debtors because of the collapsing economy. Recently, the IMF also agreed that countries tend to default too late, adding to the negative externalities of sovereign debt crises. Professor Panizza countered the objections to a structured approach.
Should sovereign states have a statutory insolvency framework similar to corporate companies?
Professors Blommestein and Panizza agreed that similar frameworks could not be applied to countries and corporates. Sovereign states can take certain actions that are beyond the scope of corporates. For example, countries can raise taxes or mobilize assets for the debt restructuring process. A corporation typically goes bankrupt when its liabilities are valued higher than its assets, which does not make sense for countries because their assets will always worth more than their liabilities. When Greece defaulted on $500 billion of debt, its assets were clearly worth more. At the national level, it is tough for sovereign leaders to push the envelope because a social contract dictates that governments would rather default on people who lend money than risk social conflict by not paying for education, healthcare, pensions and so on. Conversely, the point at which a corporation stops paying and declares bankruptcy is clear. Professor Blommestein, quoting Walter Wriston, former chairman and CEO of Citicorp, said, “Countries don’t go bankrupt!”
Professor Bris agreed that countries cannot go bust because they cannot be liquidated. But other than that, the same mechanisms could be applied. US courts, for example, have a regulatory mechanism for municipalities called Chapter 9, which means that states and municipalities can go bankrupt in the same way as companies. “Why should anything that is possible for a company as big as Lehman Brothers not be possible for a country like Argentina?” he probed.
For whom should we cry?
All the speakers agreed that Argentina’s citizens faced further destabilization of the economy due to lower growth, job losses, higher inflation, more capital flight and lack of access to international financial markets. The threat of litigation by holdouts has prevented Argentina from selling bonds abroad since 2001. Professor Blommestein stressed that 152 months have elapsed since Argentina’s first default and, despite the debt swaps in 2005 and 2010, when around 91% of the bonds were restructured, Argentina has not managed to re-access the international capital markets. This situation contrasted sharply with the experience of several OECD countries in Europe that lost and regained access to long-term funding markets much faster (Iceland: 56 months; Greece: currently standing at around 48 months; Ireland: 22 months; Portugal: 32 months2). These countries had made significant adjustments to their economic policies. Greece perhaps offers the most relevant lessons on complicated default cases like Argentina. Indeed, the only way to emerge from the overhang of debt in a sustained manner is through persistent, nominal GDP growth, but for Argentina this growth avenue remains difficult. Holders of Argentinian sovereign exchange bonds were in a bad fix, which added insult to injury.
Professor Braga closed the dialogue by sharing his insights on cases in which market mechanisms did not work. Most of the debts of heavily indebted poor countries are with official creditors and institutions like the World Bank, the IMF and regional development banks. Due to the governance of these institutions and concerns about the implications of debt-relief for their credit rating, up until the 1990s, there was strong resistance to the idea that these institutions should provide debt relief to such countries. It was only through political pressure and the creation of restructuring mechanisms that significant debt relief of more than $100 billion was given over a period of time. “Although I am a big believer in markets, in some situations, you need institutional mechanisms to facilitate the operation of markets and address market failures,” he stated.
According to the results of the audience survey at the event, the collective opinion was that it was indeed time to revisit the sovereign debt restructuring mechanism. Opinions were more divided on the Argentine crisis and whether Argentina’s attempts to bypass the American jurisdiction would work: 34% believed that it was very likely to succeed, 32% felt exactly the opposite. This contrasted with the outcome of the web-based survey of the Evian Group (TEG) community, where 49% of respondents believed that Argentine attempts were unlikely to succeed. Returning to Professor Braga’s first question on the possibility of systemic implications, 65% of the audience agreed that it was not just about Argentina and that a substantially wider impact would certainly be felt.