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2014-07-02    来源:网络    【      美国外教 在线口语培训

Not far from the London offices of the Financial Times was the Marshalsea prison where debtors used to be sent. In the 18th century, more than half of London’s prisoners were incarcerated for the undischarged debt. The moral hazard Taliban of the day insisted that such harsh penalties were necessary. Then, in 1869, imprisonment for debt was abolished and bankruptcy introduced. Both economy and society survived.

Things sometimes go wrong. Sometimes this is due to bad luck and sometimes to irresponsibility. But society needs a way to allow people to start over again. This is why we have bankruptcy. Indeed, we allow the most important private actors in our economies – companies – to enjoy limited liability. This lets shareholders walk away from their companies’ debts unscathed. That idea, too, was condemned as a licence to irresponsibility when introduced. Limited liability does bring problems, notably in highly-leveraged businesses (such as banking). The ease with which US corporations can walk away from their creditors is breathtaking. But this is better than unlimited liability.

A similar logic applies to countries. Sometimes their governments borrow more than they turn out to be able to afford. If they have borrowed in domestic currency, they can inflate their debt away. But if they have borrowed in foreign currency, that possibility disappears. Usually, it is countries with a history of fiscal irresponsibility that find themselves obliged to borrow in foreign currencies. The eurozone has put its members in the same position: for each government, the euro is close to being a foreign currency. When the costs of servicing such debts become too high, then restructuring – default – becomes necessary. As Carmen Reinhart and Kenneth Rogoff of Harvard University showed in This Time is Different, this is an old story.
国家也适用同样的逻辑。有时政府借款过多,最终发现无力偿还。如果借入本币债务,政府可以通过通胀减轻债务负担。如果借入外币债务,这么做就不可能了。通常情况下,正是那些有着财政不负责纪录的国家,发现自己不得不借入外币债务。欧元区已将自己的成员国置于同样境地:对每个政府而言,欧元都近乎是一种外币。当偿债成本过高时,重组,也就是违约,就变得必要了。正如哈佛大学(Harvard University)的卡门•莱因哈特(Carmen Reinhart)和肯尼思•罗格夫(Kenneth Rogoff)在《这次不一样》(This Time is Different)中所展示的,这是经常发生的事。

As I argued at the time, Argentina found itself in this position at the turn of the century. It was difficult to feel much sympathy for the country, which suffered from chronic mismanagement before its default in December 2001 and was to suffer yet more thereafter. But it had become impossible to service its public debt of $132bn at tolerable cost. Moreover, creditors had been rewarded for the possibility of default. Even at its lowest point, in September 1997, the spread of Argentine dollar bonds over US Treasuries was close to three percentage points. A creditor compensated for the risk of a default cannot be surprised by it. The solution is portfolio diversification.

While the principle of sovereign debt restructuring is compelling, in practice it is difficult. No court can seize and then liquidate a country’s entire assets. This legal limbo creates two opposing dangers: the first is that it is too easy for a country to walk away from its debts; the second is that it is too hard. The Argentine story illustrates both: confronted with an intransigent government, holders of 93 per cent of defaulted debt accepted exchanges for debt with a hugely reduced face value; but “holdouts”, who reject such an exchange, have blocked a clean resolution. The mess has lasted more than 12 years from the default.

As first deputy managing director of the International Monetary Fund, Anne Krueger advanced a proposal for a sovereign debt restructuring mechanism in 2002. She argued that the restructuring process could be delayed or blocked if some creditors were able to hold out for full payment.
作为国际货币基金组织(IMF)第一副总裁,安妮•克鲁格(Anne Krueger)于2002年提出了一份有关主权债务重组机制的建议。她提出,如果部分债权人能一直坚持要求获得全额偿付,那么重组过程可能被延迟或阻止。

Her ideas were more supranational than governments – above all, the US – could bear. But “collective action clauses” were at least introduced. Yet such clauses might not have prevented the success of holdouts over Argentina, led by Paul Singer of Elliott Management. As the IMF recently noted , these clauses “typically only bind holders of the same issuance”. A holdout creditor can “neutralise the operation of such clauses” if they secure a blocking position, normally more than 25 per cent.
她的超国家观点超过了各国政府(特别是美国政府)所能容忍的限度。但起码引入了“集体行动条款”。但这样的条款可能无法阻止以埃利奥特资本管理公司(Elliott Management)的保罗•辛格(Paul Singer)为首的不合作者打赢官司。正如IMF最近所指出的,此类条款“典型情况下只能约束同一只债券的持有人”。不合作的债权人如果争取到阻挡头寸(通常是高于25%的持有比例),就可以“令这样的条款失效”。

Moreover, adds the IMF, US courts have interpreted a “boiler plate provision” of these contracts (the so-called pari passu clause) as requiring a sovereign debtor to make full payment on a defaulted claim if it makes any payments on restructured bonds. In addition, the US courts will force financial intermediaries to help creditors obtain hold of the sovereign’s assets. All this will make restructurings harder. Why should creditors accept an exchange for instruments with reduced value in future?
另外,IMF补充,美国法院已把这些合同的一项标准条款,即所谓的“同等权益条款”(pari passu clause)解读为,一个主权债务人只要对重组后债券作出任何偿付,就必须全额支付违约索赔金额。此外,美国法院将迫使金融中介机构帮助债权人留置主权资产。这一切都将使重组更难执行。未来的债权人为何要同意把原有债券置换为另一种贬值的债券?

I am no lawyer, but to me the idea of equal treatment means treating like cases in the same way. Yet creditors who have accepted exchanges and holdouts are not like cases. To force debtors to treat them equally seems wrong. Moreover, the argument that holdouts are helping Argentines by punishing government corruption is absurd. It is up to Argentines to choose the government they desire. Worse, if Argentina is forced to pay holdouts in full, the price will be borne by Argentines. This is extortion backed by the US judiciary.

The immediate issue is how Argentina might settle these cases. The options – paying the holdouts, reaching a deal with them, transferring restructured debt into domestic law and outright default – look costly, humiliating, difficult or damaging. Worse are the longer-term implications for debt restructurings.

One possibility is to eliminate the pari passu clause. Another is to introduce stronger collective action clauses, particularly ones that cover all outstanding instruments. Another is to shift issuance from New York. But all three would apply only in future. Another possibility would be to amend US law. A final possibility, as José Antonio Ocampo of Columbia University notes, is to revive the idea of a global mechanism. These last two options look very unlikely.
一种可能性是取消同等权益条款。另一个是引入更强大的集体行动条款,尤其是使其覆盖所有未偿清债务工具。再有就是将发行地点从纽约转移到别处。但这三种可能性只适用于未来。还有一个可能,就是修订美国法律。最后一种可能是按照美国哥伦比亚大学(Columbia University)何塞•安东尼奥•奥坎波(José Antonio Ocampo)的提议,重提建立一种全球机制的想法。最后两个选项看来不太可能。

Yet in a world of global capital flows, a workable mechanism for restructuring sovereign debt is not an optional extra. It is possible that Argentina is an exceptional case. It is more likely that the interpretation of the pari passu clause and the ability to pursue assets will now make it more difficult to restructure debt. A world in which the choice for sovereigns and their creditors is between full payment and absolute non-payment would be as bad as one in which debtors had to choose between starvation and prison. A better way must now be found.

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