2002年-BIS国际清算银行__Report_of_the_G-10_Working_Group_on_Contractual_Clauses_19页_73kb

G-10 Working Group on Contractual Clauses Summary

Core Content

The G-10 Working Group on Contractual Clauses was established in June 2002 to develop contractual provisions for sovereign bonds that would facilitate more orderly and expeditious resolution of debt crises. The group aimed to create a consistent framework across jurisdictions and ensure that both debtors and creditors benefit from the proposed changes. The report outlines key recommendations for contractual clauses that promote early dialogue, collective action, and the prevention of disruptive legal actions.

Main Objectives

The Working Group identified three key objectives:

1. Foster early dialogue, coordination, and communication between the sovereign debtor and its creditors.
2. Ensure effective re-contracting mechanisms that prevent a minority of creditors from obstructing restructuring efforts.
3. Prevent disruptive legal actions by individual creditors while protecting the collective interests of the creditor group.

Key Recommendations

1. Early Dialogue and Communication

• Bondholder Representative: The Working Group recommends the appointment of a bondholder representative for the life of the bond to act as an interlocutor between the sovereign and its creditors.
  • In common law jurisdictions (e.g., England and New York), this could be achieved through a trust structure.
  • In civil law jurisdictions (e.g., Germany and Japan), alternative structures may be used.
• Meeting of Holders: A mechanism is proposed for convening a meeting of bondholders, which can be initiated by the issuer, the bondholder representative, or holders of not less than 10% of the outstanding principal.
• Information Covenant: A covenant is recommended requiring the sovereign to provide timely and relevant financial information to bondholders, both during the bond's life and following an event of default.

2. Collective Action Clauses

• Majority Amendment Clause: A supermajority (75%) of bondholders must approve any amendment to payment terms, ensuring that a minority cannot block restructuring.
• Exchange of Bonds: A provision allows a supermajority of bondholders to accept an exchange of bonds for new debt instruments, which is considered a common method of restructuring.
• Thresholds for Amendments:
  • For payment terms, a 75% threshold is recommended.
  • For non-payment terms, a 66⅔% threshold is suggested.
  • The Working Group advises against thresholds above 75% to avoid deadlock and ensure market acceptability.

3. Disruptive Legal Action Prevention

• Acceleration and Rescission:
  • A 25% majority of bondholders can instruct the Trustee to accelerate the maturity of bonds.
  • A 66⅔% majority can rescind an acceleration, provided all events of default have been resolved.
• Concentration of Litigation Power:
  • Power to initiate litigation is concentrated in a single entity (e.g., bondholder representative).
  • This is consistent with English law but a new feature for New York or Japanese law.
• Pro Rata Distribution:
  • A trust structure or equivalent mechanism ensures that recovery proceeds are distributed proportionally among bondholders.
  • This discourages disruptive litigation by individual creditors.

4. Jurisdictional Implementation

• The proposed clauses are applicable to sovereign bonds governed by English, French, and New York law.
• Japanese law requires some modifications.
• German law is open to implementation under certain conditions.
• The Working Group recommends further analysis for jurisdictions not covered in this report.

Model Clauses and Legal Framework

• A set of model clauses was developed for sovereign bonds governed by U.S. law, and can be adapted for use in other jurisdictions.
• These clauses aim to reflect existing market practices and market acceptability, particularly under English law.
• The clauses are not binding and must be tailored to the specific legal framework of each jurisdiction.

Conclusion

The G-10 Working Group emphasizes the importance of flexibility, coordination, and legal consistency in sovereign debt contracts. By incorporating these provisions, the Working Group seeks to improve the efficiency and fairness of debt restructuring processes, reduce the risk of litigation, and enhance the collective action capacity of creditors. The recommended clauses are to be considered as a package, with the understanding that they interact to achieve the desired outcomes.