Toward A Statutory Approach To Sovereign Debt Restructuring

This paper provides an overview of key elements of Corporate Bankruptcy Codes and Practice around the world that are relevant to the debate on Sovereign Debt Restructuring. It highlights four components common to most bankruptcy reorganization institutions: a stay on debt collection efforts to prevent a costly run for the assets, broad enforcement of absolute priority, majority voting among creditors on the proposed reorganization plan, and new higher priority financing to keep the firm going while its liabilities are restructured. The paper argues that these components ought to be present in any sovereign debt restructuring procedure.

In recent years there has been extensive discussion inside and outside the IMF on the need to develop a new approach to sovereign debt restructuring. Exploring ways to improve the sovereign debt restructuring process is a key part of the international community’s efforts to strengthen the architecture of the global financial system. This pamphlet by IMF First Deputy Managing Director Anne O.Krueger draws together the latest IMF thinking on the controversial issue in a single publication.

The paper discusses key incentive-related issues of the sovereign debt restructuring mechanism recently outlined by the IMF First Deputy Managing Director. The structure of incentives in the mechanism should be consistent with the principle of favoring market-oriented, voluntary solutions to financial crises. The paper frames the mechanism in the context of involving the private sector in financial crisis resolution (PSI), and identifies the conditions for setting up an appropriate incentive structure. The paper explores issues relating to the functioning of the mechanism, including access policy on IMF resources; the power to activate the mechanism; its relation with intermediate PSI instruments; and its impact on investment in emerging markets.

This paper provides a comprehensive survey of pertinent issues on sovereign debt restructurings, based on a newly constructed database. This is the first complete dataset of sovereign restructuring cases, covering the six decades from 1950–2010; it includes 186 debt exchanges with foreign banks and bondholders, and 447 bilateral debt agreements with the Paris Club. We present new stylized facts on the outcome and process of debt restructurings, including on the size of haircuts, creditor participation, and legal aspects. In addition, the paper summarizes the relevant empirical literature, analyzes recent restructuring episodes, and discusses ongoing debates on crisis resolution mechanisms, credit default swaps, and the role of collective action clauses.

The insolvency of sovereign debtors is a virtually timeless phenomenon and yet the existing international financial architecture does not provide any legal framework to deal with this issue. Following an overview of the main proposals as to how to bridge this gap, this study analyses the extent to which public international law can be used as a source for the establishment of a reorganisation system for sovereign debt. While there is no adequate customary international law relating to sovereign insolvencies, reference can instead be made to the growing body of general principles of law. This is illustrated by a comparison of the systems of corporate financial reorganisation in insolvency in six representatively selected countries - Argentina, England, France, Germany, Indonesia and the U.S. Due to the inherent lack of enforceability with regard to sovereign debtors, in order to be able to provide a basis for a reorganisation system for sovereign debt, these principles need to be complemented with a compliance control mechanism. This study suggests how such a system could be constructed and implemented.

Unresolved sovereign debt problems and disruptive litigation are hurting debtor nations and their citizens, as well as their creditors. A default can also pose a serious systemic threat to the international financial system. Yet the existing “contractual” approach to sovereign debt restructuring, including the use of so-called collective action clauses, is insufficient to solve the holdout problem; recent empirical research indeed shows a drastic rise in sovereign debt litigation by holdout creditors. And the political economy of treaty-making makes a multilateral “statutory” approach highly unlikely to succeed in the near future.This article, prepared at the invitation of the United Nations Commission on International Trade Law (UNCITRAL) for presentation at its 50th Anniversary Congress, shows why a model-law approach to sovereign debt restructuring should be realistic and effective. Nations and even subnational jurisdictions could individually enact a model law as their internal law, and contracts governed by that law would thereby become governed by the model law. Choice of law thus gives a model-law approach a powerful multiplier effect. A model-law approach could also solve the problem of pari passu clauses and address the critical need for a financially troubled nation to obtain liquidity during its restructuring process.The article proposes a form of Sovereign Debt Restructuring Model Law, which has been vetted in discussions with leading experts worldwide and also embraces the Basic Principles on Sovereign Debt Restructuring Processes adopted by the United Nations General Assembly in 2015. At the very least, pursuing the Model Law in parallel to other approaches would help to develop norms for a sovereign debt restructuring legal framework that goes beyond mere contracting.

This paper follows up on the Executive Board’s December 2002 discussion of the design of the Sovereign Debt Restructuring Mechanism and seeks to make further progress on the formulation of a concrete proposal for a statutory sovereign debt restructuring mechanism.