Sovereign Debt Restructuring: A Model-Law Approach

Authors

Steven L. Schwarcz, Duke Law SchoolFollow

Document Type

Article

Publication Date

2016

Abstract

The existing contractual framework for sovereign debt restructuring is sorely inadequate. Whether or not their fault, nations sometimes take on debt burdens that become unsustainable. Until resolved, the resulting sovereign debt problem hurts not only those nations (such as Greece) but also their citizens, their creditors, and—by posing serious systemic risks to the international financial system—the wider economic community. The existing contractual framework functions poorly to resolve the problem because it often leaves little alternative between a sovereign debt bailout, which is costly and creates moral hazard, and a default, which raises the specter of systemic financial contagion.

Most observers therefore want to strengthen the legal framework for resolving sovereign debt problems. International organizations, including the United Nations, have been contemplating strengthening that framework through treaties. The political economy of treaty-making, however, makes that approach highly unlikely to succeed in the near future.

This article argues, in contrast, that a model-law approach should not only strengthen that legal framework but also should be politically and economically feasible. Model laws have long been used in cross-border lawmaking, but they are different than treaties. Unlike a treaty, a model law would not require general acceptance for its implementation. Only one or two jurisdictions, for example, need enact the text of this article’s proposed model law for it to become widely effective. Once that occurs, a debtor-state whose debt contracts are governed by those jurisdictions’ laws, or by its own laws, could restructure that debt without needing to amend any of those contracts.

A model-law approach should also be desirable. This article’s model law, for example, would reduce uncertainty and should also achieve significant cost advantages—both to debtor-states and to their creditors—over the sovereign-debt-restructuring status quo. Because it would require only a ministerial supervisory process, the model law would not interfere with the exercise of a sovereign’s political discretion. Moreover, the model law provides incentives to motivate fair bargaining on behalf of debtor-states and their creditors, while restricting rent-seeking holdouts. It also enables the type of interim funding of day-to-day debts that a debtor-state needs during its debt restructuring.

Debtor-states should therefore want (and creditors, other than rent-seeking holdouts, should want them) to enact into law this article’s proposed model-law text. Regardless of whether that enactment occurs, however, the article should serve its underlying purpose: to provide a conceptual and legal analysis of how a model law could be structured and how a model-law approach could be used to solve the problem of unsustainable sovereign debt burdens, and to help develop the norms required to facilitate those goals.

Citation

Steven L. Schwarcz, Sovereign Debt Restructuring: A Model-Law ApproachJournal of Globalization & Development 1-29 (2016)