Droit des affaires - Insolvabilité des États et dettes souveraines -1 - 135

Les fonds vautours

129

rights, and market access. 121 The latter idea presumes that if a sovereign defaults, it may ﬁnd it difﬁcult to regain access to primary capital markets in order to obtain ’new’ money. 122 The limitations imposed to sovereign creditors primarily concern the ﬁrst element, that of litigation. The focus will therefore be on litigation as element of debtors’ discipline. A review of recent literature teaches that the classic picture of creditors’ rights as necessary to balance (opportunistic) defaults by sovereign debtors should be nuanced. 123 Recent research related to the role played and inﬂuence exercised by
121. Among the other possible reasons why sovereigns pay their debts, the use of force (so-called ’gunboat diplomacy’) only has historical value – see J. BASDEVANT, « L’action coercitive anglogermano-italienne contre le Vénézuela », Rev. gén. dr. int. public, 1904, 362-458. Other explanatory models include the fear of capital ﬂight and associated output losses, which may be so severe that it triggers a sovereign to pay its debts – see P. GAIA, S. HAYES & H. S. SHIN, « Crisis costs and debtor discipline: the efﬁcacy of public policy in sovereign debt crises », J. Intl Economics, 2004, vol. 62, 245-262. 122. This is the ’reputational sanction’, whose role has been stressed by Eaton and Gersovitz in their seminal paper (J. EATON and M. GERSOVITZ, “Debt with Potential Repudiation: Theoretical and Empirical Analysis”, Rev. Economic Studies, 1981, vol. 48(2), 289-309). Commentators have since long demonstrated that the analysis of Eaton and Gersovitz suffered from certain ﬂaws. Eaton and Gersovitz started for example from the assumption that a sovereign debtor could be excluded permanently from ﬁnancial markets, an assumption which ignored the beneﬁts which both the sovereign debtor and potential creditors could derive from providing the debtor with new money, even after a default. As noted by Panizza & Co., “a lending equilibrium sustained by the threat of a permanent embargo on future lending is not renegotiation-proof, in the sense that after a default both parties potentially beneﬁt from reaching a new agreement involving positive lending” (U. PANIZZA, F. STURZENEGGER, and J. ZETTELMEYER, “The Economics and Law of Sovereign Debt and Default”, 2009 Journal of Economic Literature, 47(3), 651-698). Studies have further shown that the threat of barring access to ﬁnancial markets has proven a weak one. This is in the ﬁrst place because a sovereign debtor could ﬁnd other means to respond to the needs it cannot satisfy by calling on the ﬁnancial markets. A sovereign could for example purchase insurance or invest a portion of its wealth abroad so that it can be used in difﬁcult times (for more details on these solutions, see the analysis by U. PANIZZA, F. STURZENEGGER, and J. ZETTELMEYER, “The Economics and Law of Sovereign Debt and Default”, 2009 Journal of Economic Literature, 47(3), 651-698). Practice has further shown that sovereign debtors can count on international organizations such as the IMF in case of need. Finally, sovereigns which have defaulted, appear not to have been denied the possibility to access the markets and the interest rate penalties are minimal (see L. ALFARO and F. KANCZUK, “Sovereign Debt as a Contingent Claim: A Quantitative Approach,” J. Intl. Econ. 65, no 2 (2005): 297-314 – this study shows that the interest rate penalties imposed following default are not substantial enough to cause sovereigns to repay their obligations. It also ﬁnds that additional output costs of defaulting are in line with what is necessary to sustain the debt levels observed in emerging markets even in a model of contingent services). It seems that the traditional weapon or sanction which could be used by creditors, i.e. deny sovereign debtors access to ﬁnancial markets in case of default, is not being used. There are several examples of sovereign debtors paying very low post-swap sovereign spreads in secondary markets for its existing debts. Another major assumption of the sovereign debt market is that the market itself is a constraint, since sovereign debtors fear market exclusion and will not default lightly in order to avoid losing access to new money. This has been proved wrong in several instances. For a thorough review of the literature on the objections to the threat of exclusion from ﬁnancial markets, see U. PANIZZA, F. STURZENEGGER, and J. ZETTELMEYER, “The Economics and Law of Sovereign Debt and Default”, 2009 Journal of Economic Literature, 47(3), 651-698. 123. A ﬁrst point of contention relate to the concept itself of opportunistic default. Economists indeed seem to agree that the problem of so-called opportunistic default should not be exaggerated. There are many reasons why a sovereign could default on its debt. It will be rare that pure opportunism

Droit des affaires - Insolvabilité des États et dettes souveraines -1

Table des matières de la publication Droit des affaires - Insolvabilité des États et dettes souveraines -1