Duke Law Scholarship Repository

Title

CDS Zombies

Authors

Anna Gelpern
Mitu Gulati, Duke Law SchoolFollow

Document Type

Article

Publication Date

2012

Keywords

sovereign debt, Greece, International Swaps and Derivatives Association, ISDA, debt restructuring, default, CACs, Collective Action Clause, creditors, bondholders, debt restructuring

Abstract

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. The authors argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. The authors pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political demands from state regulators and its market constituents. They describe categories of contracts susceptible to such political demands, and consider when and why textualism might be the preferred response.

Citation

Anna Gelpern and Mitu Gulati, CDS Zombies, 13 European Business Organization Law Review 347-390 (2012)