by Stephen J. Choi, Mitu Gulati & Ugo Panizza — FT.com (Financial times) Daily Digest — Stephen Choi and Mitu Gulati are on the law faculties at New York University and the University of Virginia, respectively. Ugo Panizza is a professor of economics at the Geneva Graduate Institute. Lebanon’s debt crisis is a slow moving train wreck. For three years it has been unable to implement reforms necessary for an IMF program — including a requirement to make progress in debt negotiations with private creditors. And when it does move ahead with creditor talks, it faces a heightened risk of holdouts.
Lebanon’s holdout risk derives from its confusing choice to not use Aggregated Collective Action Clauses, or CACs. These clauses, created to ameliorate the problem of holdout creditors, were widely adopted by sovereign debtors starting roughly a decade ago. The innovation allows a debtor to conduct a single aggregated vote across all of its bonds that will be binding, even for dissenters. Holdouts would be deterred, it was thought, because the size of the position needed to hold out would be large. But rather than adopting Aggregated CACs, Lebanon stuck with its old non-aggregated clauses. The end result: Lebanon’s international bonds require the approval of 75 per cent of the holders, in principal amount, for each bond series before key terms can be modified. Those single-series CACs, combined with the fact that Lebanon’s foreign currency bonds are trading at less than ten cents on the dollar, are blood in the water for specialist distressed-debt sharks (see here, here, here and here). But maybe not. Buried in the typical sovereign bond contract is a “manifest error” clause. This section doesn’t get much attention because it covers technical corrections; matters so minor that the debtor and the agents can fix them without approval from the creditors.
To protect against its misuse, the manifest error clause normally comes with two conditions:
1) The changes may not adversely affect the interests of any creditor.
2) The fiscal agent/trustee has to approve the change. Having a trustee who is agent for the bondholders, as opposed to a fiscal agent, is better for the creditors, but that’s not relevant here as we will see.