Innovation after the Revolution: Foreign Sovereign Bond Contracts Since 2003
Anna Gelpern
Rutgers Law School - Newark
G. Mitu Gulati
Duke University - School of Law
Capital Markets Law Journal, Vol. 4, 2009
Rutgers School of Law-Newark Research Papers No. 024
Abstract:
For over a decade, contracts literature has focused on standardization. Scholars asked how terms become standard, and why they change so rarely. This line of inquiry painted a world where a standard term persists until it is dislodged by another standard term, perhaps after a brief window of ferment before the second term takes hold. It also overshadowed the early insights of boilerplate theories, which described contracts as a mix of standard and customized terms, and asked why the mix might be suboptimal. This article brings the focus back to the mix. It examines the development of selected provisions in sovereign bond contracts after a widely publicized boilerplate shift in 2003. The adoption of collective action clauses in sovereign bonds five years ago moved the documentation standard in New York closer to the prevailing practice in London. However, contrary to expectations, the shift away from old boilerplate did not lead to convergence around new boilerplate. Issuers in London and, to a lesser extent, in New York, have been experimenting with diverse formulations and institutional arrangements, including trustees and creditor committees. The contracts we study, as well as our interviews with practitioners and officials, suggest that standardization may be a matter of degree, that the degree of standardization may vary across different markets, and that a shock of the sort that led the 2003 shift may dislodge a previously standard term without replacing it with a new standard - erstwhile boilerplate becomes a platform for customization.
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