To ring-fence the ECB in Greece… or not
There was a nice line in the FT’s 
latest story on Greece’s debt restructuring:
Questions are also being raised about the ECB’s estimated  €45bn of Greek sovereign holdings. Collective action clauses are likely  to be introduced into Greek bonds by the PSI deal, leaving the ECB –  which has said it will not participate in the voluntary restructuring –  potentially in an uncomfortable position in the future. “The ECB’s holding will be the story to watch in the next few months,” a person close to bondholders said.
And when you add 
this on Monday, from Matina Stevis of Dow Jones…
According to [a] troika official, Greece will retrofit the bonds with CACs to gain leverage but will not necessarily use them to bind in bondholders resisting the ongoing restructuring negotiations…
…You potentially have a legally, and politically, explosive  precedent. All of it centred around the ECB’s (technically, the  Eurosystem’s) €40bn-plus of Greek bonds. Excuse us if we go into some  length here, but we’ve written on this topic
 before and the ramifications aren’t getting through…
 We 
do mean explosive, although the issue’s a bit obscure if  you haven’t been following the ins and outs of Greek PSI. You might know  this bit quite well: the ECB is now the largest single investor in  Greek bonds. But – oops – the ECB has excluded its holdings of Greek  debt (largely acquired from its bond-buying programme) from the bond  swap. This operation would have seen it forced to take an economic loss  of some 50 or 60 per cent.
 The ECB won’t take part, most analysts don’t even count its holdings  in the numbers they crank out for the effects of PSI on debt reduction,  the other bondholders simmer about how unfair this is (it 
is  unfair), and so on. It’s also about the ECB not being seen to legitimate  sovereign debt restructuring in the eurozone through its involvement,  we suspect.
 Thus, the ECB is missing out on having its bonds converted to English  law – a key creditor protection given out in the PSI in return for  investors agreeing to take losses. So the ECB will join those who refuse  the offer and keep their old Greek-law bonds. No problem!… or so you  might think. It’s not like Greece will stop servicing these debts.  (Unlike PSI exercises in other countries, where sometimes there is a  preference to service restructured debt over old debt.) About the same  time though, Greece is arming itself with the means to “discourage”  holdouts by changing Greek law through a legislative act (the “retrofit”  CACs), making Greek law bonds easier to restructure later on. Greek law  bonds, such as those held by the ECB.
 That — at length — is the problem here.
 Anyway, if you’re not sure what CACs are or how they arrived in the  Greek PSI debate, we’ve done a quick catch-up primer – otherwise keep  scrolling down…
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A CAC primer — skip if you’re already a Greek PSI nerd…
 Collective action clauses basically allow a bond’s terms to be  changed if a large (usually at least two-thirds) majority of the holders  vote in favour. Bonds are usually either issued with CACs already in  them or not — so a retroactive CAC, inserted via changing the entire  over-arching governing law of the bonds, is a little bit controversial  to say the least.
 Nevertheless the idea was 
thought up  by top sovereign debt lawyer (and legal adviser to Greece) Lee C.  Buchheit and G. Mitu Gulati as a clean way to deal with restructuring  Greece’s debt. After all, the funny thing about Greek debt is that most  of it is governed under Greek law (so amenable to dedicated legislation  by the Greek parliament). The IMF 
gave its benediction to retro-CACs in its last review of Greece’s bailout, so it’s no surprise that they are now policy of the day.
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OK, onto the juicy bit — the ECB’s role
 Best to do this if you pretend you’re a bondholder faced with Greek PSI.
 If you volunteer to restructure your bonds as part of the PSI, the  new bonds you receive will be governed under English law instead of  Greek law. 
You will also find CACs inserted into the new bonds  (ergo, you are exposed to future restructuring) but Greece won’t be able  to alter or add to this clause, because of the English law provision. A  general point which is important to note: CACs can be structured  differently from bond to bond — for example, they can have different  voting thresholds (66 per cent? 75 per cent?) or they might only apply  to certain terms. Naturally we have to wait for the final publication of  Greece’s PSI terms for total clarity on any of these points.
 If you don’t volunteer, you’re now left with the same old Greek-law  bonds you were holding in the first place. The PSI goes ahead while the  Greek parliament prepares to draw up and vote on the retro-CAC law. As a  holdout seeking to be paid back in full on your Greek bond holdings,  you have a few options to boost your negotiating power:
 
- Increase your position, eventually holding enough  of the particular bond or bonds in which you’re interested to defeat  even a super-majority vote triggered by the CAC. Hope the Greek  government doesn’t change the rules and pass another law to change the  bonds’ terms directly (or be ready to sue if they do. See below for  drawbacks here)
- Claim the retro-CAC impairs your legal rights, sue Greece and seek  to have the courts give you an effective remedy. Prepare to go to lots  of courts and to devote years of your life to the case
- Hold the Greek banking system to ransom, by controlling its supply  of both normal and emergency central bank liquidity, and thus ultimately  presenting Greek officials with the choice of staying in the euro, or  saving their banks
 You can imagine which route is uniquely open to the ECB here. Hence  why we would be interested to see if there is a push to “carve out” the  ECB’s holdings from a Greek retro CAC.
 From your perspective (as a bondholder), the ECB’s holdings make  formulating a strategy considerably difficult since the exact bond  issues that the central bank holds is not known. If there isn’t a carve  out, then a substantial holding of a given issue by the ECB might mean a  block on any future restructuring efforts, should the central bank take  its usual stance of refusing to be involved in any whiff of PSI.
 The ECB itself,
 in the abstract, does has considerable  leverage (see point three above).  But in the context of Greek, European  Union, or even European human rights law, it’s however difficult to see  how a carve-out would be legally defensible or even practicable.
 But on the other hand, it was originally difficult to see how the ECB  could square buying billions of euros of Greek bonds with the default  risk they presented. Even so, the ECB carried on and became the largest  single holder anyway. Throughout the same period, ECB liquidity has  become indispensable to keeping Greek banks alive.
 Certainly, Greek bond write-down losses to the ECB would be huge.  Barclays Capital analysts estimated on Tuesday that the central bank is  sitting on over €20bn of Greek bond losses — 
if the holdings  were marked to market. In fact they aren’t. But the ECB would face this  kind of loss if it accepted the PSI or waited for CACs to trigger  further down the line. Maybe it can absorb this through its more than  €80bn capital and reserves (or through its reserves revaluation accounts  of more than €300bn, though these do not normally absorb credit  losses). Ultimately the ramifications are much wider though.
 If the ECB resisted insertion of CACs into its own holdings  successfully, that would suggest the central bank was indistinguishable  from a senior creditor to Greece. Peripheral sovereigns, and the buyers  of their debt, may well take note in the possible implicit move in  seniority…
 And that is the sort of contagion risk, in fact, that the ECB likes to sermonise about.
FT Alphaville  To ring-fence the ECB in Greece… or not