The Importance of Being Standard

European Central Bank 2016 Annual Legal Department Conference Proceedings ISBN 978-92-899-2640-9 (January 2017)

29 Pages Posted: 6 May 2017

See all articles by Anna Gelpern

Anna Gelpern

Georgetown University Law Center

Date Written: January 2017

Abstract

Contract standardisation in the sovereign debt market saves time and money in preparing documents and endows widely-used terms with a shared public meaning, which in turn saves investors the costs of acquiring information, facilitates secondary market trading and reduces the scope for mistakes in the judicial interpretation of contract terms. Sovereign debt issuers and investors claim to value standardisation and list it as an important contractual objective. Issuers generally insist that their bond contracts are standard and reflect market practice. Variations from past practice and market norm must be explained in disclosure documents and through market outreach. Standardisation is not just part of the fabric of market expectations: international policy initiatives to prevent and manage financial crises rest on the assumption that sovereign debt contracts follow a generally accepted standard. Such initiatives would make no sense in the absence of standardisation.

On closer examination, however, it turns out that sovereign bond contracts are not nearly as standardised as market participants and policy makers seem to suggest. It is common to see a handful of negotiated terms embedded in a mish-mash of different generation industry models, sprinkled with bits of creative expression that no one can explain, usually attributed to some long-forgotten lawyers. At least some of the variation appears to be deliberate. But to the extent that it is inadvertent, variation can be costly. For example, it can make contracts internally inconsistent, vulnerable to opportunistic lawsuits and errors of judicial interpretation. Variation could also make debt instruments less liquid, especially during periods of market stress. In this essay, I argue that the problem of inadvertent variation would diminish substantially if sovereign debt markets were to adopt a more centralised, modular approach to contracting, whereby a subset of widely-used non-financial terms would be produced by an authoritative third party (a public, private, or public-private body) and incorporated by reference in individual transactions.

Keywords: sovereign debt, boilerplate, contract standardization, private ordering, derivatives, modular contracts, collective action clause, pari passu, IMF, ISDA, ICMA

JEL Classification: D86, F30, F34, G15, G28, G38, H63, H81, K12

Suggested Citation

Gelpern, Anna, The Importance of Being Standard (January 2017). European Central Bank 2016 Annual Legal Department Conference Proceedings ISBN 978-92-899-2640-9 (January 2017). Available at SSRN: https://ssrn.com/abstract=2963333

Anna Gelpern (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
71
Abstract Views
851
rank
322,760
PlumX Metrics