Private creditors have often argued that the government plans to bring to participate in solving the crisis is counterproductive. As stated by the Association of Brokers in Emerging Markets in September 1999, “Although in principle the participation of the private sector in the distribution of the load is acceptable, the forced restructuring of the bonds will drive away from emerging markets to investors and to deprive countries that need access to bond markets. ”
In practice this has not happened. The gross flow of private financing to emerging markets have been recovering, albeit unstable, since its low point reached following the crisis in late 1998. Many private sector participants now seem to accept the need to encourage (or in extreme cases) requires their participation. The main complaint is that at the moment seems to be no “rules” that explain when and how private sector participation.
This concern is exacerbated by the feeling among private creditors that they are asking for concessions which they called the “Paris Club” formed by official creditors is unwilling to offer. Some private creditors believe that the IMF has actively encouraged the countries to stop paying and that, contrary to the policy that states, the IMF stands ready to lend to countries with arrears to private creditors face even when not negotiate in good faith.
That is practical and desirable to establish clear rules of the game is something that IMF member countries have discussed. Some argue that it should automatically ask the private sector where the use of IMF resources that the country exceeds a predetermined level, eg 300% of quota. Supporters of the rules clearly state that would be well to investors and lenders a greater incentive and ability to manage risk sensibly.
Others have argued that the rules would limit the flexibility with which the officer may respond to future crises. Countries in crisis are very different and a simple, free of nuance, it is not practical. Inflexible rules which would cause losses to creditors in circumstances could also make private creditors are less willing to make loans or provide new resources voluntarily. An overly rigid approach could also lead to breaches disordered, which could limit long-term access of a country to capital resources and would jeopardize the access of other countries.
The middle path between these two views would be to establish a framework with predetermined objectives and then adjust the measures taken to achieve these objectives in light of the circumstances of each case. Under this framework, and in cases where agreement on a program of economic adjustment and financial backing of the IMF is not sufficient to restore the country’s access to private funding, the country would have to go to its creditors for a period of transition until the corrective actions were effective. In extreme cases, where creditors were not willing to voluntarily provide such support, it may be necessary to require restraint so that the country could return to a sustainable repayment profile of debt.
Constructive engagement
There is general agreement that better communication between debtor countries, private creditors and international financial institutions can help prevent crises and also to facilitate their management and resolution when inevitably arise. You need this “constructive engagement” on two levels, namely in relation to the whole international financial system and, separately, with the countries themselves.
To promote the constructive engagement across the system, the IMF has established a Consultative Group on Capital Markets (CMCG) in which representatives of leading private sector financial institutions will meet regularly with management and the IMF staff to discuss issues common interest. The first group meeting was held in September 2000. Topics will include the evolution of capital flows and financial markets which are large for the system and also the impact of measures taken by the IMF or the international community broadly. However, it does not address operational issues related to a particular country or group of countries, or to facilitate private sector members privileged access to restricted information. The dialogue that will encourage the group to clarify the private sector which is the approach being taken by the official sector for private sector participation, although this approach can not be codified through formal rules.
There is no universal model to indicate how best to engage constructively in a given country. Mexico is often cited as an example of best practice. Mexican authorities regularly meet with creditors and investors, and the relationship intensifies each time it is preparing a major international bond issuance. They also travel frequently to major financial centers to address recent developments and prospects. This approach can reduce borrowing by reducing the risk premium demanded by investors for uncertainty. You can also ensure that investors are not as prone to overreact to economic conditions or to give in a herd behavior. In the event of a crisis arises, it may also help to coordinate the response of voluntary creditors of the country.
However, the approach has to save several barriers. These include: lack of preparation and experience in public relations by some borrowers, unwillingness to communicate confidential information, some investors’ preference for an individualized treatment with the authorities and the desire of some holders of the bonds to keep the anonymity. These factors may help explain why many market participants were reluctant enthusiast with the standing committees of creditors and debtors.
CACs
Constructive engagement in the relations between a debtor and its creditors should mean that in the event of a crisis negotiation easier. But it would be naive to assume that improved communication will be sufficient to eliminate the problem of collective action, especially if some of the debt holders have little interest in maintaining a long term relationship with the country you have. One way to facilitate the restructuring in these circumstances is that the contracts include clauses that limit the ability of dissident creditors to block a deal. Those provisions include:
* Provisions on majority and under which conditions the restructuring agreed by a majority of holders of bonds are binding on the minority.
* Sharing clauses, under which the funds that a holder of bonds has been obtained through recourse to the courts is shared with other owners in proportion to the holdings of each.
* Collective representation clauses, under which it is easier to assemble a majority to allow trustees and other persons representing holders of the bonds in the meetings of the holders.
The bonds are issued under English law typically include such clauses. But only about a quarter of all international bond issues and Brady of emerging market countries do. Most are subject to the jurisdiction of the courts of New York, which does not include these features in favor of renegotiation, and pursuant to which all holders of the bonds have to agree to any modification of the terms of payment.
The existence of collective action clauses may have marginally contributed to facilitating the recent restructuring of bond debt issued by Ukraine and Pakistan, although participants in the financial markets do not seem to be convinced that truly influence the prospects of achieving or not debt restructuring. Major industrial countries have called on emerging market economies to adopt collective action clauses, and United Kingdom, Germany and Canada have given examples in the emissions of its own bonds. However, we understand that many emerging market countries to feel nervous about the decision for fear of the reaction of investors. At first glance, the appeal to the consent of output, which has no precedent for the restructuring of Ecuador’s debt would mean that collective action clauses do not appear to be so necessary but, nevertheless, is likely to offer a consent predictable mechanism for moderation of creditors will be equally attractive to investors and public sector.
One argument against collective action clauses is that, by facilitating the restructuring could encourage countries to reject the compromise. This would bring to emerging market countries will be more expensive to raise funds by issuing bonds, because they are considered less secure. The tests are divided. Suggest that collective action clauses do not affect the cost of obtaining loans in countries with good credit rating, but the more expensive for countries whose rating is low. Some argue that this is not bad, will serve as incentive for countries to adopt the kind of measures that lead to improve their credit rating.
There is no doubt that collective action clauses contribute to the restructuring of the bond is easier. But do not eliminate the incentive to the holders of the debt is rushing to divest quickly, anticipating that corporate vulture creditors or other dissidents come to form a blocking minority.
Suspension with official approval
If a company is in trouble, there is an incentive for creditors to seek to acquire assets as quickly as possible. For this reason, almost all national bankruptcy legislation includes provisions to temporarily protect businesses against creditors (that is, for example, the provisions of Title 11 of U.S. law). But when is a country that is in trouble, there is no international law that provides bankruptcy protection.
Nobody expected to be derived at some stage an international code of these features, but some argue that there may be scope for the international community to adopt the de facto equivalent to a temporary suspension of debt payments in a country where in the public interest. In a sense, the IMF and gives moral support to some suspensions to be willing to extend credit to countries that face arrears to private creditors, provided that they are negotiating in good faith with the creditors to reach a collaborative agreement .
However, that does not give moral support to a legal protection against creditors. Some have suggested that could be done by amending Section 2 b) of Article VIII of the IMF Articles of Agreement, ie the charter of the institution. The IMF already has the authority to adopt capital controls (to prohibit certain payments abroad) and foreign exchange controls (which limit the availability of foreign exchange for these payments). The amendment would be needed to clarify that the IMF’s jurisdiction extends to the controls placed in support of a suspension.
The views on this subject among IMF member countries are strongly divided, and the obstacles that stand in the way of an amendment of this nature are considerable. Experience shows that doubts remain about the meaning and effectiveness of the IMF’s jurisdiction in this area. There is also the problem of ratification of the amendment. Require the support of more than half of IMF member countries, with at least 85% of the total number of votes. The amendment would then be incorporated into the law of the countries, either through explicit modification of the laws or by an interpretation of national courts that sit jurisprudence. In all likelihood, many countries appear very reluctant to restrict the freedom of its citizens to have recourse to justice in order to collect what they owe.
Leaving aside these obstacles, it is unclear precisely what would be the effect of a suspension with official approval on the behavior of lenders and investors. The threat forced a suspension would encourage creditors to cooperate voluntarily, but could also encourage them to seek the nearest exit long before they would have done in the absence of such suspension. Impose a suspension in one country may also encourage creditors to sell its assets, or to require the repayment of loans in other countries, which export instability and balance of payments problems. As for future capital flows, the suspensions with official approval could lead investors to be prepared to leave quickly (through loans with shorter maturities) and ask for the loan guarantees as the right to export earnings or surety other assets. These actions mean that in the long run, the solution of a crisis would be much harder, not easier.