The Gathering Storm: Contingent Liabilities in a Sovereign Debt Restructuring
Lee C. Buchheit
Cleary Gottlieb Steen & Hamilton LLP - New York Office
G. Mitu Gulati
Duke University School of Law
August 21, 2013
The contingent liabilities of a sovereign, such as guarantees of the debts of third parties, can normally be kept off the balance sheet of the sovereign guarantor. That is their charm. As the debt to GDP ratios of many developed countries approach red-zone levels, contingent liabilities are increasingly being favored over direct, on-the-balance-sheet, borrowings.
But what happens if a country carrying large contingent liabilities needs to restructure its debt? The borrower dare not leave its contingent claims out of the restructuring. To do so would risk undermining the financial predicates of the sovereign’s economic recovery program should the beneficiaries of the guarantees demand payment in full after the restructuring closes.
Attempting to shoehorn sovereign contingent liabilities into a debt restructuring, however, is a particularly challenging task. There are few precedents for how to do so, and no good precedents. The explosion in the size of contingent sovereign obligations since the financial crisis began in 2008 inevitably means that these issues will need to be confronted sooner or later, probably sooner.
Number of Pages in PDF File: 20
Date posted: July 17, 2013 ; Last revised: December 25, 2014