This speech was presented on October 25 to the University of San Diego Law School by Robert P. Smith:
Bill has been in the belly of the Russian bear and lived to tell about it. I knew a journalist who was murdered for doing things less provocative of the Russian business establishment than Bill has done. Allow me to express my great admiration for his courage!
What is my business? I buy, trade and invest in bonds and trade obligations issued by some of the most risky countries in the world. Countries like Zambia, Nigeria, Iraq, Bolivia, and El Salvador and of course Russia.
In my book, “Riches Among the Ruins: Adventures in the Dark Corners of the Global Economy”, I describe how in the late 1970s I was working as an attorney in Boston trying to collect international claims to support my growing family. I was highly motivated to find something more rewarding than collecting corporate receivables. This is how I stumbled into the sovereign debt trading business, which was then a tiny niche business. I was able to use my legal education to make a career very different from that of my law school classmates. Perhaps those of you who are students will also come across such an opportunity to take your legal training in a novel direction.
In the 1970s, before the advent of an active market for emerging market debt, my business required a lot of travel to exotic locations and a lot of shoe leather as I made the business and government contacts needed to buy and sell the bonds of governments in the developing world. In the early days, this was a very esoteric financial niche and trades totaled less than $100 million per year. Today, it’s a $9.2 trillion dollar a year business conducted at computer terminals in brokerage firms from New York to Nairobi, most of it in local currency.
The principal point of my talk today is that lending to countries, either directly or through the purchase of their debt instruments, is becoming riskier due to the convergence of a number of factors
.
These factors include:
- the securitization of emerging market debt
- the advent of bond funds as holders of EM debt
- the unprecedented demand for bonds due to:
- easy money,
- baby boomer demand for bonds and, more recently,
- fear of the stock market’s volatility
- the rise of highly skilled legal representation of defaulting countries
- the emergence of the recalcitrant debtors: Argentina & Russia,
and
the inclusion of collective action clauses in debt documentation
Let’s look at each of these in turn.
(1) First, securitization.
Perhaps the most important factor that has contributed to the erosion of the position of creditors has been the trend towards securitization of debt. This is not so much securitization in the form of complex structures like those we saw in the subprime crisis, although they have shown up in emerging market debt as well, but the mere fact of countries borrowing by issuing bonds (securities), rather than borrowing from banks.
Back in the 1970s the only people willing to lend to emerging market countries were the commercial banks which formed loan syndicates led by the large American institutions, the money-center banks as they were then called. When countries got into trouble these big players were able to present a united front in dealing with the distressed debtor. The borrowing countries needed the banks for trade credit lines and other types of financing so they had a lot of incentive to maintain good relations with the banks by repaying their loans on time This made the negotiations between the banks and the borrowing countries mostly collegial.
Now, with sovereign debt principally in the form of bonds as opposed to syndicated loans, the creditors are a widely dispersed group of institutions and individuals so it is much harder for creditors to find leverage or to act in concert to force repayment when things get dicey. Believe me, a half dozen big banks such as Citibank and J.P. Morgan have a lot more leverage than a thousand dentists in Beligium or Italy who are holding Russian bonds! So, my first point to you is that the mere shift from bank loans to the securitization of sovereign debt as the principal means by which countries borrow money has had a profound impact on the risks associated with being a creditor to a foreign country, especially those in the emerging markets.
(2) The second factor that has changed this market is the rise of the Bond Funds.
The largest holders of sovereign debt are now the bond funds, not the banks. You might think that these funds, often managed by large financial firms would, like banks, have a lot of leverage, but it’s not the case. Why? Because the way funds deal with troubled borrowers is very different from the way banks deal with them. If a borrower is showing signs of distress, banks take steps to “work-out” the troubled credit in their portfolio. They may use covenants to push the borrower in the direction of more sustainable operation or organize a restructuring of the debt with other creditors. The bond funds, however, take a much more detached approach to a troubled borrower: they simply sell their holdings of such bonds. They kick the can down the road so to speak.
Why?
Because these funds are required to value their holdings at market prices. So, when the value of a particular bond heads south, it’s immediately reflected in the NAV (net asset value) of the fund. Unless the fund manager has good reason to believe the price will bounce back, it’s easy to just sell the asset. He or she doesn’t enter into workout discussions with the issuing country. Unlike the banks, the funds have no relationship to protect. They’re just buying and selling.
Think of it this way: the banks were married to their borrowers. The fund managers are just dating. Banks, therefore, have incentives to hold on to the weakening credits and try to work them out because they have much more leeway than funds in marking their portfolios to current market prices, and thus can pretend that the weakening of the credit has not reduced the value of their portfolios. Marking to market, as this process of valuing the portfolio at market prices is called, makes bond funds unlikely to get involved in the painstaking, and frequently rewarding, process of working out their bad credits, for which the funds are not properly staffed. If a fund fails to sell a deteriorating credit ahead of a default, it will be tempted to take whatever terms the debtor offers in a restructuring as happened with the highly unfavorable terms accepted back in 2005 by most fund holders of Argentine defaulted debt.
The rise of the individual bond investor and the bond funds as holders of sovereign debt and the inability of these investors to put effective pressure on defaulting borrowers created a niche for funds specializing in buying the defaulted debt of countries. These funds, dubbed vulture funds by their detractors, do the essential work of holding irresponsible sovereign borrowers to account. These unsung heroes include Kenneth Dart and Elliott Management, along with a few smaller groups. My company, Turan Corporation, has participated in some of these transactions.
To paraphrase Frank Borman, astronaut and airline CEO, in his quote about bankruptcy and capitalism, a bond market without vulture funds, is like Christianity without hell. The vulture funds cut though all the rationalizations defaulting countries have for their situation by seeking creative ways under the law to receive payment for the debt they acquire. They provide the incentive for wavering debtors to service their debt or to restructure it responsibly with the consent of the creditors.
(3) The third factor increasing the risk of investing in sovereign debt is Easy Money.
Easy money, in the form of low interest rates and high availability of credit, makes lenders irrational.
When there is a lot of cash lying around to be lent it makes lenders fight with each other over marginal borrowers. Low interest rates make even dodgy borrowers seem like plausible credits.
Can you figure out why large banks would lend to Zambia, Tanzania, Nicaragua, Bolivia, etc? Back in the 1970s big American banks were awash in cash deposited by the oil-exporting countries that were reaping the benefits of much higher oil prices. Interest rates were relatively low. This combination was the principal catalyst in causing the banks to lend with abandon to countries with very spotty histories of repaying their debt. The banks spent the 1980s regretting and working out their folly.
The current monetary policy of near zero short-term interest rates makes bond investors look for returns in all the wrong places.
Some have crept out further on the yield curve by accepting longer maturities in order to achieve higher yields. The best example is the buyers of a one hundred year bond with a fixed 5.75% coupon issued by Mexico. Fixed coupon bonds get ravaged by inflation. Consider that the US dollar has lost over 86% of its value to inflation since John F. Kennedy was elected president 50 years ago. Imagine how much value this bond could lose in a hundred years?
Other bond buyers venture out to local currency obligations, such as Peru’s 27 year bonds recently issued at 6.9% in new sols, a currency whose predecessor was wiped out by hyperinflation.
We are witnessing again the stupefying effect of high liquidity and low interest rates on lenders.
Easy money interacts with other factors to make creditors even more prone to bad decisions. The aging of baby boomers and the volatility we have witnessed in the stock market in the past years have led large numbers of investors to avoid stocks and to buy bonds, which are supposedly safer.
Since the supposedly safe 10 year US Treasury now yields an investor only 2.36%, our yield hungry boomer investor will look for the Russian 10 year bond which yields an extravagant 4.37%.
Talking about seeing investing mirages on the Russian steppe, let me share a story from my book, “Riches Among the Ruins”. In June of 1998, during the era of irrational exuberance and easy money, I was invited, along with a large group of Western investors, on what I came to call my “Magical Mystery Tour” of Russia. The trip was sponsored by one of the most dynamic of Russian banks, MFK Renaissance. I was impressed by Russia’s immensity (it spans ten time zones) its vast mineral and oil wealth, and its educated population. This Russia of vast potential was also the Russia with a large overhang of short-term local currency debt it had to keep rolling over all the time with foreign investors. Never in my wildest dreams did I think the world would let Russia, a country with a vast nuclear arsenal, default. Russia was too nuclear, too unpredictable. The whole world would rescue them; the IMF, the US the European Community. Everyone wanted this experiment of transition from command economy to market economy to succeed. Russia was too big too fail. As soon as I got home from my trip, I invested another $ 5 million on top of the $ 15 million of Russian I had already bought prior to my trip.
A couple of months later, on August 17, 1998, Russia began to default on most of its debt and devalued the ruble. Overnight the value of my personal holdings of Russian bonds plummeted by $15 million dollars. It was not one of my better days.
The day before the default, a close friend had asked me for investment advice, and I had told him to buy Russian bonds— Russia is too big to fail. We are still friends but he doesn’t ask me for my investment advice anymore. Too big to fail, we have all seen this recently in the United States: General Motors, Chrysler, AIG, Fannie Mae, Freddie Mac.
This story should remind us that all the sovereign lending now being made under the influence of high liquidity and low interest rates will some day prove very hard to collect, even for the so-called vulture funds.
(4) Another factor contributing to the risk for investors in sovereign debt is the emergence of highly skilled legal representation of defaulting countries.
Certain major law firms have taken up the defense of defaulting countries such as Russia and Argentina and have made a significant difference in eroding the ability of creditors to secure judgments against defaulting countries and to enforce judgments.
(5) Now let’s move to the so-called Recalcitrant Debtors: Russia & Argentina.
Russia inherited most of its foreign debt from the Soviet Union, although all of the local currency debt at the core of its 1998 default was incurred by the new Russia. One creditor of the Soviet Union, a Swiss company named Noga, made ingenious attempts to attach assets of the Russian government ranging from enriched uranium held at a facility in Paducah, Kentucky, to the tall ship Sedov, to the jet fighters that might have attended the Farnborough Air Show in England.
Along the way, these attempts resulted in legal precedents that significantly moved courts in the US away from holding central banks of countries responsible for their commercial actions.
Russia broke new ground in dodging creditors by creating a private entity where it could hide its reserves in off-shore accounts out of the reach of creditors. This highly unorthodox scheme was audited by PriceWaterhouse, and blessed by the IMF, creating another bad precedent for dubious behavior by sovereign debtors.
Russia, now an investment grade bond issuer, was warmly received in its return to the Eurobond market this year. The bond market, made irrational by walls of investor money seeking yield, has conveniently forgotten how poorly Russia treated its bank lenders, trade creditors, and bond holders. Russia used a brief drop in oil prices during 1998 to extract deep concessions from its bank creditors, that resulted in much Soviet-era debt being reduced by about 37%. Despite the fact that oil prices tripled the next year, Russia held its creditors to their concessions ignoring its vastly improved financial situation, and restructured its debt in early 2000.
Trade creditors of the Soviet Union were forced into this same deal, but had to wait years for Russia to actually keep its part of the bargain. They were put at the mercy of the Russian bureaucracy supposedly to “reconcile” the amounts owed. The process of “reconciling” the trade debt took nearly a decade after the bank deal of 2000 to arrive at some type of conclusion, but there are still trade claims pending.
We had the strange experience of being called about claims we had presented to entities of the Russian government by private parties seeking to buy them. The interested buyers had details about the claims that could only have come from Russian official sources.
War ravaged Iraq, by comparison, managed to reconcile all its trade claims in a matter of months. Yet, the bond market views Russia as a fine credit.
Argentina’s default in 2000/2001 broke a record for size, nearly 100 billion US dollars. Argentina also stands out as a naughty debtor for having defaulted on debt to the World Bank, a concessional lender nobody in his right mind would default on. After its $ 100 billion default, Argentina let creditors wait until 2005 and then presented them with a highly coercive deal worth somewhere around 25 cents on the dollar. It told creditors, participate or your debt will be worth nothing because our legislature has passed a law forbidding any deal with creditors who do not participate in this one. 76% of creditors accepted the exchange in 2005.
Some of the outraged holdouts from 2005 took legal action against Argentina in US federal court. The court issued numerous judgments against Argentina. However, the judgments awarded to Argentina’s long-suffering lenders have proven nearly impossible to enforce. The country has, using the advice of its sophisticated attorneys, hidden its assets in places not accessible to creditors. The tacit cooperation of international entities such as the Bank for International Settlements (the central bank for central banks) with Argentina has also made recoveries difficult.
Hoping to get into the good graces of the international bond market, Argentina, in 2010, made another offer to exchange its defaulted debt under terms equivalent to the 2005 exchange. The latest exchange was accepted by 66% of the holdouts. Many of the remaining holdouts continue to press their legal cases.
It should not surprise you to hear that Argentina, despite having terribly mistreated its creditors, hopes to return to international bond markets in the near future; it should surprise you even less that the bond market, desperately seeking yields, would welcome it back.
Finally, let’s spend just a moment on Collective Action Clauses.
These are provisions in bond indentures or loan agreements that allow a supermajority of creditors, say 75%, to force a restructuring on dissenting creditors. Such clauses make it impossible for holdout creditors to seek a separate deal with the borrower.
Collective action clauses make it much easier to reach a restructuring deal with the defaulting borrower. The borrower needs to offer a deal good enough to satisfy only a supermajority of holders to protect itself from the threat of litigation. The result, typically, are restructurings that are, on the whole, more favorable to borrowers.
These clauses are thought to create a moral hazard by tempting weaker borrowers to default, safe in the knowledge that they will be able to cut a nice deal with the apathetic majority of creditors and not have to bother with the troublesome minority. So, if you invest in sovereign debt, beware the collective action clause!
In closing, I want to remind you that the weakening of the ability of creditors to enforce their claims is rarely an issue in good times, but when the bad times come and borrowers like Argentina or Russia decide to deal unfairly with its creditors, all bets are off.


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