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Alternative Approaches to Sovereign Debt Restructuring
By Jack Boorman
Introduction
Serious gaps exist in the means available to deal with sovereign debt crises. In recent cases of sovereign default, both the debtor country and its creditors have paid large costs, in terms of lost economic activity and income and lost value of claims. Some people see these costs as necessary to discipline debtors to avoid default. Bankruptcy should be messy, they say. In the view of many, however, the costs incurred under the current international financial architecture are unnecessarily large, to the detriment of both the debtor and its creditors. Some in the private sector also point to the fact that they have been able to conclude agreements with countries that have accumulated unsustainable debt and have defaulted. They point to Ecuador as completed, and express confidence that Argentina can be dealt with when the Argentine authorities finally approach them for serious negotiations. But this is not good enough. The losses to the Ecuadoran and Argentine economies from the processes available in those two cases have been huge and, arguably, unnecessary. Thus, doing nothing should not be considered an option.
What then are the relevant alternatives for dealing with sovereign debt crises? There are essentially three:
A statutory approach to establish a universal legal framework to facilitate negotiations and to empower a supermajority of creditors to approve a debt restructuring agreement with a debtor country that would bind in minority dissenting creditors. This is the sovereign debt restructuring mechanism (SDRM) proposal of Anne Krueger, the first deputy managing director of the IMF. Although based on statute, this approach relies on decisions by creditors and is, in that sense, a market-oriented approach.
A broadening of the kind of collective action clauses (CACs) that are already included in some (mostly British law) sovereign bond issues and their incorporation into a wider array of debt instruments, possibly to include bank loans. These new and innovative contingency clauses would, inter alia, describe as precisely as possible the procedures by which holders of a specific debt instrument would interact with the sovereign debtor and among themselves in the case of a request by the sovereign for a restructuring of those claims. These proposals were first made by John Taylor, under secretary for international affairs at the U.S. Treasury.
A two-step process proposed by Ed Bartholomew and Ernie Stern of J. P. Morgan. In step one, creditors would effectively exchange outstanding debt for claims that include collective action clauses, which could then be used, in step two, to facilitate a restructuring agreement between a sovereign debtor and those creditors.
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