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Innovation after the revolution: foreign sovereign bond contracts since 2003

Capital Markets Law Journal, Vol. 4, No. 1 Anna Gelpern and Mitu Gulati* Key points  In 2003, under official pressure, amendment provisions in standard form New York law sovereign bond contracts shifted to resemble English law boilerplate.  Market participants and officials expected contracts in New York and London to converge around a common formulation.  Contrary to expectations, the shift away from old boilerplate did not lead to convergence around new boilerplate.  Issuers in London, and to a lesser degree in New York, are experimenting with diverse terms and institutional arrangements.  Amendment provisions in recent issues have used hybrid formulations, permitting holders to vote in person or by written consent, with different approval thresholds.  More issuers are using trust structures.  Creditor committees are making a qualified comeback, though the adoption and formulation of committee provisons does not appear to track issuers’ credit quality.  Not all issuers agree to pay committee expenses.  Some issuers have agreed to require unanimous creditor consent to amend litigation-related terms, even as financial terms can still be amended by qualified creditor majorities.  None of these variations conform to traditional theoretical explanations for boilerplate change, which http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Capital Markets Law Journal Oxford University Press

Innovation after the revolution: foreign sovereign bond contracts since 2003

Abstract

Capital Markets Law Journal, Vol. 4, No. 1 Anna Gelpern and Mitu Gulati* Key points  In 2003, under official pressure, amendment provisions in standard form New York law sovereign bond contracts shifted to resemble English law boilerplate.  Market participants and officials expected contracts in New York and London to converge around a common formulation.  Contrary to expectations, the shift away from old boilerplate did not lead to convergence around new boilerplate.  Issuers in London, and to a lesser degree in New York, are experimenting with diverse terms and institutional arrangements.  Amendment provisions in recent issues have used hybrid formulations, permitting holders to vote in person or by written consent, with different approval thresholds.  More issuers are using trust structures.  Creditor committees are making a qualified comeback, though the adoption and formulation of committee provisons does not appear to track issuers’ credit quality.  Not all issuers agree to pay committee expenses.  Some issuers have agreed to require unanimous creditor consent to amend litigation-related terms, even as financial terms can still be amended by qualified creditor majorities.  None of these variations conform to traditional theoretical explanations for boilerplate change, which
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