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Begin New Search Topic Debt Publishing Institution Centre for International Governance Innovation Author Gregory Makoff

1. Making Enhanced CACs the Rule: A Proposed Amendment of the Foreign Sovereign Immunities Act

Author:
Gregory Makoff
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
The recent rise in sovereign debt litigation in the US Federal Court System is an unintended consequence of the US Foreign Sovereign Immunities Act of 1976 related to an unanticipated shift of the international sovereign debt market from a narrow loan market to a global bond market. Collective action clauses (CACs) — developed in 2003 and “enhanced” in 2014 — are, in theory, an effective contract-based tool to facilitate orderly debt restructurings and control the holdout creditor problem. However, compliance by countries is voluntary and may not be sustained. To assure sustained compliance and to reduce the future incidence of holdout creditor litigation, the US Foreign Sovereign Immunities Act should be amended to provide that only bonds with enhanced CACs will be subject to suit and enforcement in the US courts.
Topic:
Debt, Legal Theory, Credit, and Global Bond Market
Political Geography:
United States and North America

2. Sovereign Bond Contract Reform: Implementing the New ICMA Pari Passu and Collective Action Clauses

Author:
Gregory Makoff and Robert Kahn
Publication Date:
02-2015
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
In August 2014, following an extensive consultative process, the International Capital Market Association (ICMA) published proposed standard terms for new, aggregated collective action clauses (CACs). Concurrently, ICMA released new model wording for the pari passu clause typically included in international sovereign bond contracts. These announcements and the commencement of issuance of bonds with these clauses are an important turning point in the evolution of sovereign bond markets. The new CACs will make it much harder for holdout creditors to disrupt future bond restructurings or to be paid in full after the other bondholders receive haircuts. Under the new contractual form, a supermajority of bondholders can vote to force non-participating creditors into a restructuring, subject to strong protections against the abuse of minority creditors by the majority. At the same time, the new pari passu clause is designed to prevent the kind of rulings that lead to a disruption in payments to investors, as was the recent case with Argentina. Neutralizing holdout creditors in this fashion is of immense economic importance. It should facilitate more predictable outcomes for debtors and creditors, and fairer outcomes among creditors in situations that require debt restructuring. However, even with the rapid issuance of bonds under the new ICMA framework, the potential for disorderly debt restructurings will remain until the vast majority of old bonds, already in the stock of debt of sovereign borrowers, have been converted to bonds that include the new clauses. This may take more than a decade. A strong case exists for the establishment of a coordinated public-private initiative that is focused on converting existing stocks of debt to the new format. While benefits to issuers and investors should provide a market force to drive the rapid uptake of the new clauses, the Group of Twenty (G20), working closely with the International Monetary Fund (IMF) and creditor groups, is uniquely positioned to give legitimacy to discussions of accelerated adoption of the new clauses, as well as discussions of further mechanisms to facilitate orderly debt restructuring. This paper discusses the ICMA consultative process to develop the new clauses, explains the workings of CACs and the history of their adoption, analyzes the effect of the new clauses in reducing holdout activity and discusses the use of bondholder meetings and exchange offers to accelerate the conversion of outstanding debt stocks into the new format.
Topic:
Debt and International Monetary Fund
Political Geography:
Argentina

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