How to restructure the Venezuelan debt
"The most advisable thing would be for the government and the opposition to reach a political agreement that allows any restructuring to have the backing of the National Assembly, as well as the other instances that the government considers necessary," said the chief economist of Torino. Capital, Francisco Rodríguez
Updated on November 12, 2017 2:36 PM
El Universal
How to restructure the Venezuelan debt
Caracas.- When the bondholders of the Republic and PDVSA meet on Monday with representatives of the Venezuelan government, the big question on the table will be how to make viable a restructuring from the financial and legal point of view. Representatives from both sides face a difficult task: the options available are very limited, not only because of the economic difficulties facing the country, but also because of financial limitations derived from US sanctions.
The first point that is essential to recognize is that the problem of the Venezuelan debt can not be separated from the general framework of economic policy. Countries do not accumulate excessive levels of debt by chance; they do so as a result of policies that become unsustainable over time. If a government seeks creditors to agree to renegotiate the terms of its debt, it must at the same time show them an economic strategy through which the nation proposes to improve its payment capacity, and thus effectively take advantage of the respite it is obtaining as a result of the renegotiation.
In fact, Venezuela, rather than a debt problem per se, has a problem with economic policies. If Venezuela had the average Gross Domestic Product (GDP) per capita of Latin America (seven thousand dollars per inhabitant), it would have a GDP of $ 221 billion and a weight of external debt of the public sector in its GDP of 62%, which would be within of a pretty normal range for developing countries. However, due in large part to economic policy mistakes made in the past, the country today has a per capita income of less than four thousand dollars, and a public sector external debt that reaches 123% of GDP.
But Venezuela also faces special obstacles to a restructuring process that have to do with the idiosyncratic nature of its economy. Venezuela is an atypical debtor, in that its State is at the same time the direct source of almost all of the nation's foreign exchange earnings. This puts him in a situation of special vulnerability. If the Argentine government goes into default, its creditors can not seize the income from Argentine beef exports because they belong to the Argentine private sector. But in the Venezuelan case, the creditors can seize Pdvsa's export revenues to force the Venezuelan state, which is the owner of PDVSA, to answer for its debts.
This problem is exacerbated because 45% of Venezuela's external debt has been issued by PDVSA. The legal principle of sovereign immunity protects states from the seizure of their assets, but explicitly excludes the assets of corporations, such as PDVSA, that engage in commercial activities. To protect itself from the possible seizures of assets and oil bills, PDVSA would have to appeal to one of two options: it may try to resort to a bankruptcy process in the United States, or it may try to transfer its assets to other entities. Both options are highly risky. If they fail and the creditors are successful in the seizure of assets and oil bills, the resulting decrease in the country's export earnings could be greater than any savings in debt service.
For this reason, it is most advisable that the government completely separate the debt problem of PDVSA from that of the Republic. PDVSA has just finished making a series of important debt payments and has a relatively low payment schedule over the next two years. Furthermore, for an oil corporation of its size, PDVSA's debt is not particularly high, especially if the company designs and communicates a strategy to recover its production: PDVSA has just 10 cents of financial debt for each reserve barrel, compared to an average of $ 5 per barrel for the top 25 oil companies in the world. In this strategy, the nation could propose a plan to renegotiate the debt bonds issued by the central government, while PDVSA is committed to continuing to honor its payments. Keeping PDVSA up to date would allow the country to protect itself from the direct risk of seizure of oil assets and invoices, while proceeding to restructure its debts based on the principle of sovereign immunity.
The restructuring of the Republic's debt has an advantage: the vast majority of the bonds issued by the Venezuelan government - unlike those of PDVSA - have collective action clauses. These are the clauses that make a restructuring of the debt agreed by a qualified majority of the creditors - in most cases 75% - be made binding for the rest. Therefore, they prevent a small group of creditors from deciding to take litigation against the country, as happened in the case of Argentina.
When the bonds are modified using collective action clauses, it is not necessary to issue a new obligation. This is because a new liability is not being created, but rather the terms of an existing one are being modified. Mitu Gulati and Mark Weidemaier have argued that, since a new financial instrument is not being issued, the restructuring using collective action clauses is within the framework of the activities permitted by US financial sanctions.
Another legal debate revolves around whether this issue requires authorization from the National Assembly of Venezuela. The Organic Law of Financial Administration allows the Republic to carry out refinancing or restructuring operations that improve credit conditions - extending, for example, the payment term - without the approval of the National Assembly. However, these operations must be framed within the limit of indebtedness fixed by the Legislative Power for the fiscal year. Surely, if this option is proposed, a political debate will be generated around the legality of refinancing debt without the Parliament having set a debt limit for the current year.
This debate can be extremely damaging to the prospects for the success of the operation, since creditors will feel that an obligation not endorsed by the opposition would carry a very high risk of being repudiated in the future. Therefore, the most advisable thing would be for the government and the opposition to reach a political agreement that allows any restructuring to have the backing of the National Assembly, as well as the other instances that the government considers necessary.
One way to promote such an agreement would be for the authorities to offer guarantees that the resources to be released as a result of the refinancing of the debt are destined exclusively for imports of basic goods. This initiative would also help ensure that the operation remains within the framework of what is allowed by the US sanctions, given that they do not apply to financing imports for food and medicine. And - definitely the most important thing - it would provide greater security to the country that the resources coming from the refinancing will be used to satisfy the most urgent needs of Venezuelans.
Francisco Rodríguez is the Chief Economist of Torino Capital. Between 2008 and 2011, he was the Chief of Investigations of the Office of the Human Development Report of UNDP.