G. Mitu Gulati

The Greek Debt Restructuring: An Autopsy

The Greek debt restructuring of 2012 stands out in the history of sovereign defaults. It achieved very large debt relief – over 50 per cent of 2012 GDP – with minimal financial disruption, using a combination of new legal techniques, exceptionally large cash incentives, and official sector pressure on key creditors. But it did so at a cost. The timing and design of the restructuring left money on the table from the perspective of Greece, created a large risk for European taxpayers, and set precedents – particularly in its very generous treatment of holdout creditors – that are likely to make future debt restructurings in Europe more difficult.

Why Are There So Few Black Lawyers in Corporate Law Firms An Institutional Analysis

Introduction ..................................................................................... 496 I. Defining the Problem ................................................................. 501 A. Are Blacks Underrepresented in Corporate Firms? ........ . .. .. .. 502 B. Why Study Institutions and Incentives? .................. . . . . . . . . . . . . . . 506 1. Differential Abilities ...................................................... 506 2. Lack of Interest ............................................................. 508

Race to the Top of the Corporate Ladder: What Minorities Do When They Get There

Racing to the top of the corporate hierarchy is difficult, no matter how qualified or capable the candidate. Producing more widgets than ones competitors is not enough. Negotiating the political landscape of the institution is also required. More specifically, individual corporate officers have to be appeased, powerful interest groups have to be co-opted and made allies, and competitors have to be undermined or eliminated. The more bureaucratic the organization and the more opaque the promotion process, the more important this institutional game to climbing the corporate ladder. This chapter identifies the kind of racial minorities or racial types who are likely to play this game well and, consequently, race to the top of the corporation. It then explains why these racial types might not have the racial commitment, or feel institutionally empowered, to lift other people of color as they climb the corporate ladder.

Public Symbol in Private Contract: A Case Study

This article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial crises; many said it was simply unimportant. They explained their own participation in the shift as a mix of symbolic gesture and political maneuver, designed to achieve goals apart from solving the technical problems for which the new contract terms offered a fix. Contract terms were adopted for what they said, instead of or in addition to what they did.

Political Risk and Sovereign Debt Contracts

Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using creditors’ money; and debtors and creditors may attempt to externalize costs on the taxpayers of other countries. We support this argument with an empirical overview of the development of sovereign bond terms from 1960 to the present.

Pricing Terms in Sovereign Debt Contracts: A Greek Case Study with Implications for the European Crisis Resolution Mechanism

Conventional wisdom holds that boilerplate contract terms are ignored by parties, and thus are not priced into contracts. We test this view by comparing Greek sovereign bonds that have Greek choice-of-law terms and Greek sovereign bonds that have English choice-of-law terms. Because Greece can change the terms of Greek-law bonds unilaterally by changing Greek Law, and cannot change the terms of English-law bonds, Greek-law bonds should be riskier, with higher yields and lower prices. The spread between the two types of bonds should increase when the probability of Greek default increases. Recent events allow us to test this hypothesis, and the data are consistent with it. We suggest that sovereigns, like private entities, minimize their cost of credit by offering investors with different risk preferences bonds with different levels of risk, which is reflected in their terms, including choice-of-law clauses. The market understands this practice. This finding has implications for the design of the European Crisis Resolution Mechanism (ECRM), which is currently being debated. To the extent the goal of the new restructuring mechanism is to force private investors to take better precautions, ex ante, the restructuring authorities would be well advised to abandon the past practice of largely ignoring variations in the boilerplate of sovereign debt contracts and giving equal treatment to different types of debt.

The Market Reaction to Legal Shocks and Their Antidotes: Lessons from the Sovereign Debt Market

In September 2000, a Brussels court ruled in favor of a hedge fund that held an unpaid debt claim against the Republic of Peru. The decision was based on a novel interpretation of the common pari passu clause. Policy makers and practitioners suggested that this decision signaled a paradigm shift that caused a significant increase in the risk of holdout litigation faced by sovereign debtors. Over the ensuing years, multiple reform solutions were implemented including the revision of certain contractual terms, the filing of amicus briefs in a key New York case, and the passage of legislation in Belgium. This article investigates whether the markets perceived an increase in risk in sovereign debt in the wake of the Brussels court decision. And, to the extent the markets reacted to the increase in legal risk, did any of the antidotes that were implemented to reduce the supposed increased holdout risk work?

How to Restructure Greek Debt

Plan A for addressing the Greek debt crisis has taken the form of a €110 billion financial support package for Greece announced by the European Union and the International Monetary Fund on May 2, 2010. A significant part of that €110 billion, if and when it is disbursed, will be used to repay maturing Greek debt obligations, in full and on time. The success of Plan A is not inevitable; among other things, it will require the Greeks to accept - and to stick to - a harsh fiscal adjustment program for several years.If Plan A does not prosper, what are the alternatives? And how quickly could a Plan B be mobilized and executed?This paper outlines the elements of one possible Plan B, a restructuring of Greece’s roughly €300 billion of government debt. Prior sovereign debt restructurings provide considerable guidance for how such a restructuring might be shaped. But several key features of the Greek debt stock could make this operation significantly different from any previous sovereign debt workouts.To be sure, a restructuring of Greek debt will not relieve the country from the painful prospect of significant fiscal adjustment, nor will it displace the need for financial support from the official sector. But it may change how some of those funds are spent (for example, backstopping the domestic banking system as opposed to paying off maturing debt in full).This paper does not speculate about whether a restructuring of Greek debt will in fact become necessary or politically feasible. It focuses only on the how, not the whether or the when, of such a debt restructuring.

The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design

Theory tells us that the lawyers who draft standard-form contracts will respond to an erroneous court interpretation of a boilerplate contract term by revising the standard formulation of the clause or otherwise clarifying the ambiguity. This is so because lawyers, it is assumed, have the incentive to protect clients from the risk that other courts may adopt the disfavored interpretation or that the apparent ambiguity will, in any event, produce future costly litigation. As many scholars have observed, the reality is often different. Boilerplate terms in standard contracts are sticky. Many of the theories explaining why standard contract terms are resistant to innovation focus on the efficiency benefits of market-wide standardization. Others look to economic or psychological factors that deter the production of innovative terms. In this book, we use both qualitative and quantitative data to explore the reasons for the phenomenon of stickiness in sovereign bond contracts. We focus on a novel judicial interpretation of an obscure clause in cross-border financial contracts – the pari passu clause – that rattled the chandeliers of international finance. One might have expected the practicing bar to quickly clarify their forms before the heresy could spread and gain traction. But that didn’t happen. In over 90% of the contracts subsequently issued, no attempt was made to clarify the imprecise language of the clause. None of the extant theories of stickiness explain what we find. Rather, the story that emerges is about the modern big law firm: the financial pressure on big firms to maintain a high volume of transactions contributes to an array of conflicts that that deter innovation and are largely hidden from the individual lawyers charged with drafting responsibility – conflicts that are hidden in part by the myths that the members of this legal community collectively tell themselves about the origins of boilerplate terms whose meaning has been lost in time.

Collective Action Clauses for the Eurozone: An Empirical Analysis

One of the primary policy initiatives instituted in response to the Eurozone sovereign debt crisis is a requirement that all Eurozone sovereign bonds issued after January 1, 2013 include provisions referred to as Collective Action Clauses or CACs. These CACs are intended to enable an orderly restructuring of distressed sovereign debt by allowing for a super-majority of creditors to impose restructuring terms on minority holdouts. This paper assesses the likely effect of this proposal on the borrowing costs of Eurozone countries. Economic theory makes ambiguous predictions: on the one hand, making debt easier (cheaper) to restructure could increase the propensity of governments to borrow irresponsibly, which would increase the cost of capital; on the other hand, if restructurings proceed more smoothly, creditors will receive a settlement more quickly, which would reduce the cost of capital. Since this is ultimately an empirical issue, we have assembled a database consisting of over 900 sovereign bonds, issued by more than 75 countries, from 1990 through 2010. Relying on this database we demonstrate that the majority of the existing literature is based on inadequate or inappropriate data, which has led researchers to conclude that the inclusion of a CAC either has no effect or increases the cost of capital for weaker nations and decreases the cost of capital for stronger ones. In contrast, we find that the presence of CACs leads to a lower, not higher, cost of capital, especially for below-investment grade bonds.