Clauses & Controversies

What Motivates China's Overseas Lending? Including lending by state owned enterprises, China appears to be the world’s biggest official creditor. Critics emphasize its lack of loan transparency. Some accuse China of using loans as tools to gain political or even territorial control. Are such criticisms fair? And what really motivates China's overseas lending. Pippa Morgan (Duke Kunshan)is a specialist in the political economy of China's foreign economic relations and joins us to talk about these questions. Producer: Leanna Doty

Do Investors Care About Odious Debts? The Tsarist Russian government used borrowed funds to repress domestic political movements. Vichy France borrowed while collaborating with the Nazis. King Leopold used borrowed funds to engage in horrific exploitation and repression in the Congo Free State, and these debts were later assumed by Belgium. There are nearly endless examples of truly odious sovereign debts. Do investors care about any of this? And if so, why? Our guest Kim Oosterlinck (Universite Libre de Bruxelles; Solvay Brussels School of Econ. & Mgmt.) is perhaps the foremost expert on such questions. We talk with Kim about odious debt, with a sidebar on efforts to recover looted art. Producer: Leanna Doty

Haiti’s Odious "Independence Debt" In 1825, France imposed on Haiti an indemnity obligation of 150 million francs, ostensibly to compensate French plantation owners for Haitians having fought for and won their freedom in the revolution two decades prior. Haiti assumed this vast debt with French gunboats lurking just offshore, and all parties understood that it could not be repaid without massive borrowing from French (and later U.S.) banks. It would be well into the 20th century before Haiti retired these debts. The Haitian independence debt was odious and unjust. But was it illegal at the time? And if so, does Haiti have an avenue to recover from France? We discuss these questions, and legal history more generally, with legal historian Julia Rudolph of North Carolina State University. Producer: Leanna Doty

Covid (and Other) Contingencies We close out 2020 with all-star guests Lee Buchheit, Joyce Chang, and Jeromin Zettelmeyer to discuss contingent debt instruments. Many economists extol the virtues of GDP-linked bonds, but investors are wary. Is caution appropriate? And what about the biggest modern contingency: the risk that COVID-19 will cause more economic harm than expected? Even in normal times, governments often receive less debt relief than they need, leading to multiple rounds of restructuring. We talk about the "COVID codicil" as a potential solution to this problem. Should investors fear or welcome it? Producer: Leanna Doty

Restructuring Uncle Sam's Debt All together now (in a smarmy drawl): "Families must balance their budget, why not countries?" Okay, that's a stupid thing to say (although politicians love to say it). It's especially stupid to say about rich countries that borrow in their own currency. But this doesn't mean these countries can't or won't default, as the United States itself has demonstrated. We talk with Julia Mahoney and Ed Kitch (Virginia), whose recent article (link below) covers the history of U.S. debt default and argues provocatively that a debt restructuring might be needed, perhaps surprisingly soon. And no, the 14th Amendment doesn't prohibit this. Julia and Ed explain why. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3492085 Producer: Leanna Doty

Best Crisis Management in HISTORY! Felix Salmon (Axios; Slate Money) knows more about financial markets than pretty much anyone we know. He joins us to talk about the U.S. government's engagement (or lack thereof) with debt issues in emerging markets and with multilateral institutions like the IMF. Will things be different under a Biden administration? Also: what just happened with that lawsuit against Guatemala?

Trees. Wrong. Barking Up. Jeromin Zettelmeyer has done foundational research on the economics and the law of sovereign debt. We discuss the G-20's "Common Framework," recently released to lay out a mechanism for coordinating debt relief to poor nations. Jeromin explains why Mitu and Mark are critical of the wrong aspects of the Common Framework and highlights the significance of the G-20's announcement. Producer: Leanna Doty

A View From the Sell Side Our guest Siobhan Morden is one of the most respected and widely-read sell-side analysts in the sovereign debt markets. We ask Siobhan about the process of assessing country risk and for insight about what to expect given the continuing economic fallout of the pandemic. Producer: Leanna Doty

Why Not Use GDP-Linked Bonds? Yannis Manuelides heads Allen & Overy’s Sovereigns and International Institutions practice group and has played a key role in shaping the legal terms of sovereign loan contracts, including the template for GDP-linked bonds. We talk with Yannis about why governments have been reluctant to use GDP-linked bonds and about different drafting practices in London and New York. We also chat (skeptically) about the so-called “common framework” to deal with the Covid-induced crisis in the sovereign debt world. Producer: Leanna Doty

Judgments 1, CACs 0 If a bondholder sues and gets a judgment before a sovereign can restructure its debt, does the bondholder escape the restructuring? If so, will countries like Venezuela--which can't restructure any time soon and is increasingly a target of litigation in U.S. courts--be left without restructuring tools? Federal courts guru Andy Hessick (UNC Law) patiently explains why a restructuring vote under a collective action clause has no effect on a judgment. But governments needn't worry. There are plenty of other tools at their disposal. Producer: Leanna Doty

Will Asking For Covid Assistance Cause a Ratings Downgrade? Earlier this year, the Official Sector put in place a debt relief program for the poorest nations so that they would be able to utilize their scarce resources to ameliorate the havoc being caused by the pandemic. Some countries, however, have been concerned that asking for assistance will cause a ratings downgrade. But would it? What if the country needs this assistance to put it on a better path to economic recovery? What factors go into a ratings determination? Do contract terms make a difference? On this episode, we ask our good friend, ratings guru Elena Duggar, to help us understand the answers to these questions. Producer: Leanna Doty

Pricing Those Pesky CACs Do the legal provisions in a bond affect its price? If law matters then, at least in an efficient market, one would think the answer would be yes. Weirdly, lawyers often scoff at this idea, even though they are implicitly suggesting their work does not matter. But the empirical question remains. There has been extensive research on the pricing impact of Collective Action Clauses (CACs), with conflicting findings. We talk to financial economists Elena Carletti, Paolo Colla, and Steven Ongena about their recent studies of CAC pricing with one of us. Link to recent paper below. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817041 Producer: Leanna Doty

What Lies Ahead? Italy can borrow for free in the middle of a pandemic and one of the worst economic crises on record. What’s going on? Have massive infusions of central bank cash put us in a permanent state of easy money? Or are investors a bit too over-confident? We talk to Robin Wigglesworth, global finance guru and correspondent for the Financial Times, about what lies ahead in sovereign debt markets and about index funds and other key players who will shape the market in the coming years. Producer: Leanna Doty

What's Your Damage? When a sovereign defaults on its debt, what should investors recover in damages? It seems to us that the conventional answer to this question is just wrong. We think. Pretty sure, actually. Well, probably. Two contracts professors who study sovereign debt discuss how they don't understand contracts damages. In sovereign debt cases. Producer: Leanna Doty

What if we hit Another Sudden Stop? The sovereign debt markets hit a sudden stop in March 2020, where new funding to emerging market sovereigns ceased and, instead, capital rushed out. There was a very real risk of multiple sovereign defaults. Thanks to the steps taken by institutions like the US Fed and the ECB to flood the markets with money, funding for many emerging market sovereigns has resumed. But real economic activity continues to slow and the prospect of another sudden stop is real. To discuss what might be done to mitigate the cost if this were to happen, our guests are financial and international economics gurus Patrick Bolton and Ugo Panizza, of Columbia University (NY) and the Graduate Institute (Geneva) respectively. Producer: Leanna Doty

This Episode Will Become Void in 3...2...1 Prescription clauses say bondholder claims are "void" or "prescribed" unless presented for payment within some period of time. Six months ago, we barely knew these clauses existed. Now, dueling contenders to represent the Venezuelan government are publicly arguing about what the clauses mean. We talk about Venezuela's very unusual prescription clauses. What do they mean? Actually, do the clauses even exist? No guest this episode. The report mentioned in this episode can be found here: https://tinyurl.com/y5z2kbzu Producer: Leanna Doty

State Guarantees That Bite One in the Backside Our guest is legendary financial reporter, Joseph Cotterill, who famously chronicled the Pari Passu Saga for FT Alphaville in a previous incarnation. Joseph is now the Africa correspondent for the FT and we ask him about the corruption infused Tuna Bonds of Mozambique and South Africa’s tottering utility giant Eskom. In both situations, the largely unexamined problem of off balance sheet state borrowing via guarantees seems to have played a key role in the creation of the debt problems these countries face. Producer: Leanna Doty

Contracting for Disaster(s) Borrowers must pay. Period. Even a natural disaster probably won't excuse non-payment. And while loan contracts can provide a wider range of excuses, they almost never do. Contract innovation is rare in sovereign debt markets. Except, sometimes, it happens. Jim Ho is part of the team that designed the Natural Disaster Clause for Barbados. We talk with Jim about this innovation, its origins in Grenada's hurricane clause, and about whether the clause could be expanded to cover pandemics and other disasters. Producer: Leanna Doty

The Sovereign Debt Seating Chart Needs Bigger Chairs Big investors have been the dominant force on the investor side in recent restructurings. Rather than litigious hedge funds, big “real money” investors seem to be in charge. Has there been a fundamental shift in restructuring dynamics in sovereign debt cases? We talk with Anna Szymanski (Reuters Breakingviews) about this shift and what it might portend for the next wave of sovereign restructurings. Also: Is there any hope for Lebanon? We tap into Anna’s deep expertise about the serious crisis in that country. Producer: Leanna Doty

Would you rather date Ecuador or Argentina? Neither can pay their debts. But one brings your parents flowers while the other gets drunk at your Mom’s party and rides a Harley. That’s our understanding, anyway, of why investors are so sweet on Ecuador and so mad at Argentina after both countries conducted similar debt restructurings. We talk with Colby Smith, the extraordinary financial markets reporter at the Financial Times, about whether we might be missing some important aspects of this story. Producer: Leanna Doty

How Did We Get the Crappy CAC? Argentina made a lot of investors mad by proposing (threatening?) to pursue a divide-and-conquer strategy in its ongoing debt restructuring. The proposal added new jargon to the already-bewildering sovereign debt lexicon. Redesignation! Pac-Man! But what did Argentina really do? It all comes down to the collective action clause, or CAC. We talk with the brilliant Anna Gelpern about these clauses, about whether Argentina or its creditors were being ill-behaved, and about how Argentina could have avoided all this drama if it had just used a slightly different CAC, one that is already in widespread use. Basically, Argentina got the crappy CAC. Producer: Leanna Doty

Why all the Sturm and Drang Over Force Majuere? Recently, thanks to COVID-19, there has been much talk about the otherwise generally obscure civil law concept of force majeure. Our dear friend, the incomparable Eric Posner, tells us how this concept tends to play out in the US context and why every major law firm in the country seems to be writing client memos on it. Of greatest interest to us is the question of whether sovereign debtors can invoke the international law version (at least a close cousin) of it – the doctrine of economic necessity – to obtain temporary relief from their debt obligations today so as to divert resources to fight the pandemic. Eric kindly engages in a discussion of the complexities that would be involved. Producer: Leanna Doty

Where Did All the Secured Loans Go? Once upon a time, many governments could borrow in foreign markets only if they pledged assets to back the loan. Today, sovereigns almost never do this, although it happens in other debt markets. In Episode Four, we talk with Noel Maurer (George Washington University) about property rights and revenue pledges. Sovereigns used to promise creditors priority to customs duties, specific taxes, etc. Creditors (or their home governments) even appointed agents to manage the borrower’s revenue institutions. For the most part, these pledges have disappeared from modern sovereign lending—a transition documented in Noel’s terrific book, The Empire Trap. We talk with Noel about why this might be. Also, Donald Trump’s willingness to buy and sell sovereign territory. (Remember the Greenland drama?) We ask whether Donald Trump would pledge parts of the U.S. if he thought it would lower borrowing costs. Producer: Leanna Doty

Gold Clause Mumbo Jumbo We love to talk about the Gold Clause Cases from the 1930s and wonder why our colleagues are less enthusiastic. In this episode, we talk with constitutional law expert Gerard Magliocca (Indiana) about the cases, which are the subject of Gerard’s wonderful article, The Gold Clause Cases and Constitutional Necessity. The basic plot is that, in the 1930s, the U.S. needed to devalue the currency but feared that this would bankrupt private borrowers and magnify the government’s own debt burden. The reason? Loan contracts called for repayment in gold dollars indexed to their pre-devaluation value. So the government abrogated these clauses, and the Supreme Court looked the other way. We talk with Gerard about the Court’s motivations, how it dodged a constitutional crisis, the baffling (to us, anyway) reasoning underlying the Perry decision, and the potential relevance of the case to today’s covid-19 crisis. Producer: Leanna Doty

Imperial Chinese Bonds: Are They Coming Back to Life in 2020? Bloomberg’s Tracy Alloway, financial reporter extraordinaire, and sovereign debt guru Lee Buchheit join us for a discussion of zombie sovereign bonds. Over the last year, there have been stories in Bloomberg, the Financial Times and on NPR on the possible resuscitation of claims against China for non-payment of bonds that were issued over a century ago by the Imperial Government. The driving force for these stories has been the efforts of a group of supporters of President Trump who apparently hold a big bunch of these antique bonds and want President Trump to negotiate a settlement for them as part of his trade talks with China. Producer: Leanna Doty

Venezuela’s Oil Company is Up For Grabs – and the Absence of Ten Words in its Governing Law Clause May Decide Who Gets it The governing law clause is perhaps the most basic provision in every contract. Yet, it is so routine that few pay attention to it. Failure to pay attention to its precise wording though can bite one in the backside as the ongoing litigation between investors in Venezuelan bonds and the government-in-exile of that country demonstrates. Mark and Mitu discuss the Venezuelan governing law clause drama, as well as a number of other similar situations that have cropped up in recent years, including with Ukraine, Puerto Rico, and Mozambique. Producer: Leanna Doty