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.

The problem of collective action

In most cases, the IMF can help countries overcome balance of payments problems that arise without the pressure on creditors to act against their will. The financial agreement for a moderate and a convincing program of economic adjustment and reform often enough so that private lenders and investors regain confidence, and thus able to restore the country’s access to private capital abroad. The program recently agreed with Mexico, Bulgaria and the Baltic countries are a good example of this “catalyst”. In these cases the private sector contributes to the solution of the crisis on a voluntary basis, simply defending their own interests.

But what if the country needs in the short term a significant amount of foreign currency (which goes beyond what the IMF and other official lenders are willing to provide) and are unlikely to get quickly through the private sector ? In that case may need to ask the creditors to limit their demands for repayment. Knowing when to do so is not easy. For example, in the cases of Brazil and Korea, the economic policy programs supported by the IMF initially failed to restore the confidence of creditors. The banks that had granted loans did not feel safe and continued asking the repayment of their loans. The central banks of industrial countries and the authorities later persuaded them to moderate their demands and renewed loans.

The creditors will also limit the demands of repayment if the country faces a debt burden truly unsustainable, ie an insolvency crisis rather than a lack of liquidity in the short term. In these cases will ultimately inevitable restructuring of the debt of a country.

As in situations of failure of one entity, creditors tend to judge that they should collectively contribute to solving the financial crisis to exercise restraint in their demands for payment. The reason for that might be involved, the official sector to encourage or require such restraint is in-you want to avoid the “problem of collective action”, namely that for each creditor separately provides the incentive to charge as soon as possible or to try to block a plan to restructure the debt, and thus take advantage at the expense of other creditors. Some private institutions, to which is known as “vultures” – they specialize in precisely this tactic of blocking. The problem of collective action could worsen because, individually, it is likely that creditors have very imperfect information about the real intentions and other creditors who are in the same situation.

The problem of collective action is clearly manifested in the 1998 film entitled Waking Ned Devine, as Steven Schwarcz, Faculty of Law, Duke University. In the story, a man without heirs named Ned wins ? 6.7 million in the Irish national lottery and died because of the emotion received. Its 52 neighbors in the village where he lived decide which one of them was run by Ned, copper and share the prize with all the ? 130,000 that would apply to each. For the money, all you have to do is say to the administration of the fake lottery winner is Ned. Unfortunately, a woman of the people want greater involvement and threatens to uncover fraud if you do not give you more money.

Another dimension of the problem of collective action is the incentive that is submitted to creditors to act as “stowaways”. An agreement for the restructuring will improve a country’s ability to service that part of the debt whose original conditions remain unchanged. Consequently, there is an incentive for creditors to refrain from participating in the agreement and simply take advantage of the best prospects for repayment.

So, in practice, what is done to limit the actions of creditors that they are free or to persuade them to act with restraint? The approach has varied depending on the case and was caused by several factors. A crucial aspect is the type of debt and creditor.

Bank debt

In cases where the debt is bank loans, the method of creditors to provide a concerted often facilitated by the fact that it is a rather small number of creditors. For example, in early 1999 was relatively easy to get the banks to agree to maintain open lines of credit to borrowers in Brazil, after the announcement of a program negotiated with the IMF initially fail to halt the outflow of capital. The lenders were interested in cooperating in order not to jeopardize trade relations with long-established Brazil. But those circumstances may not occur in other countries.

In late 1997 it took a much tougher approach in the case of Korea. The country’s official reserves were almost exhausted after being used to pay loans from Korean banks abroad. Planning the threat of imminent default. The authorities of the major industrial countries that make up the Group of Ten pressured banks in their countries to renew the debt against the Korean banks, instead of demanding its cancellation. The maneuver worked, but the Group of Ten was willing to employ this method only because of the potential impact of a Korean default on the stability of the global financial system. It is doubtful that the initiative was repeated in the case of a country less important for the system. It could also be dangerous to use this method regularly, as banks were forced to keep open lines of credit in a country could decide to rebalance their loan portfolios and request the cancellation of debts in other countries. The only fear of being subjected to such pressure could be enough to encourage them to request cancellation.

Sovereign bonds

The most visible trend of international capital flows in recent years, apart from the rapid pace of growth has been the advance of the issuance of bonds versus bank loans. Since 1980, the gross issuance of bonds by emerging market countries has grown as a source in an average of 25% annually, four times the rate recorded by syndicated bank loans. This means that private creditors have become increasingly numerous, anonymous and difficult to coordinate. It is also less likely to maintain commercial relations with the countries they lend. However, that said, recent experience with regard to the restructuring of its debt by issuing bonds has been less difficult than many expected.

Following the Russian moratorium in 1998 and although it had reached agreement on an economic program with IMF, Ukraine was unable to raise funds from private investors while the repayment profile of its debt was highly concentrated. Several of the payments falling due in 1998 and 1999 were rescheduled slowly before he could reach an agreement in early 2000 for the restructuring of government bonds. Three of the emissions that are not restructured widely dispersed, so it was relatively easy to reach a collaborative dialogue with the owners. One of the investors the possibility of litigation to demand the full repayment, but others felt that the offer of exchange of securities was attractive enough to be accepted. So the swap was completed successfully and there was no dispute.

Pakistan also reached an agreement for the restructuring of its foreign debt in early 2000. Previously, in late 1998, there was an acute liquidity crisis when the increase in short-term debt coincided with the collapse of the flow of foreign officials because of the nuclear tests that began the country. The restructured debt include deposits held in financial institutions Pakistanis, bonds issued by national authorities and bank lending to government and public corporations. Pakistani bonds were largely held by financial institutions and individuals in the Middle East. The authorities were able to contact the owners of 40% of the debt and negotiated an acceptable offer of redemption.

In the case of Ukraine as for Pakistan, the prognosis for restructuring the bond debt would be frustrated by disruptive litigation was too pessimistic. This might be due to several factors: extensive informal contact between creditors and debtors; credible threat of failure if no agreement was reached; clear understanding that the countries facing serious balance of payments problems and foreign exchange shortages, and assurances that IMF was insisting on significant economic reforms. Marginally, can that many clauses in the contracts signed for the bond issue, which limited the extent that dissenting creditors might prevent an agreement, have helped to avoid litigation. Ukraine is used in such clauses, but not in Pakistan.

When Ecuador experienced difficulties in 1999, the prospects for restructuring seemed much less promising. In September of that year, Ecuador was the first country that failed to pay Brady bonds, some titles created to restructure the bank loans to non-payment of the eighties. Attempts to normalize relations with creditors Ecuador were largely hampered by the confusion of political events. But in May 2000, the Ecuadorian authorities announced they were willing to restructure the whole of the U.S. $ 6650 million of international bonds and Brady, and stressed that no agreements with separate groups of creditors.

The exchange offer for new bonds to 30 and 12 years was launched on July 27, requiring a 85% acceptance for its entry into force. The announcement led to a rise in the price of Ecuadorean debt on the secondary market, indicating that the market believed that the offer was relatively good. In the end, 98% of bond holders accepted the offer. In this case, litigation can be avoided partly due to innovative use of the so-called “exit consent”. This allows, by simple majority of the holders of the bonds, modifying the terms of the original bond not directly related to the refund. It is therefore less attractive for creditors to keep dissidents titles.

This does not necessarily mean that the threat of disruptive litigation is no longer a problem. Peru has recently had to pay a company to “vulture”, Elliott Associates, because the company had achieved in June 2000 a Brussels court issued an order that would have meant that Peru fails to pay interest on the Brady bonds, leading to company to a costly bankruptcy. The legal basis on which Elliott Associates defended his controversial case, but the success forced Peru to pay might encourage other holders of bonds to withstand future restructuring.

In recent years, one of the most notable manifestations of globalization has been the rapid growth of international private capital flows, ie loans and investments from one country to another. These flows have produced great economic benefits, but have also exposed countries to periodic crises of confidence when the capital inflows have become suddenly exits.

These crises can impose a considerable economic and social cost. Thus, international financial institutions and member governments, which face a double challenge: preventing the crisis as far as possible and contribute to their solution when you need it. The “constructive engagement” of borrowers, creditors and international financial institutions during periods of normality can significantly contribute to achieving both goals. Opening and maintaining channels of communication and cooperation among these partners are needed at home and across the entire international financial system.

The IMF encourages countries to do everything in their power to be less vulnerable to crisis, for example, maintaining the level of public debt, fighting inflation and avoid unsustainable exchange rate regimes, accountability debt and strengthening domestic financial systems.

To achieve this, the IMF has intensified the work of regular scrutiny of the economic policy of member countries, by conducting assessments of national financial systems in cooperation with the World Bank, and also offering precautionary credit lines to countries that put in place measures crisis prevention but, nevertheless, continue to feel vulnerable. Together with other agencies, the IMF encourages countries to adhere to the rules and codes of good practice in a wide range of economic measures.

However, the crises have not disappeared. When there, government institutions lack sufficient resources to bear all the burden of financing needs of a country. It would also be desirable to have that level of resources. It is therefore important to encourage the participation of private sector creditors in resolving the crisis, reaching cooperative solutions to payment problems. If the effort to agree to a voluntary approach would not result, creditors may have to accept some limitation to their immediate demands for repayment, and to bear some losses.

The international community has sought the participation of private sector creditors in resolving financial crises in several countries in recent years. The specific mechanism has evolved on a case by case, depending on the nature of the crisis and the characteristics of the creditors. There are now several important questions: Can you clearly identify the “rules of the game” for private sector involvement? How can private sector involvement in resolving a crisis is less painful and more efficient? The answer to these questions is one of the most difficult challenges facing the global community when it comes to reforming the international financial architecture.