Distressed securities fund
A distressed securities fund, also commonly known as a vulture fund, is a hedge fund or private equity fund that invests in debt considered to be very weak or in imminent default, known as distressed securities. Investors in the fund profit by buying debt at a discounted price on a secondary market and then suing the debtor for a larger amount than the purchasing price. Debtors can include companies, countries, or individuals.
Distressed securities funds have had success in bringing attachment and recovery actions against sovereign debtor governments, usually settling with them before realizing the attachments in forced sales. In one instance involving Peru, such a seizure threatened payments to other creditors of the sovereign obliger. Settlements typically are made at a discount in hard or local currency or in the form of new debt issuance.
Sovereign debt collection was rare until the 1950s when sovereign immunity of government issuers was restricted. This trend developed from the long history of sovereign defaulting on commercial creditors with impunity. Accordingly, sovereign debt collection actions began in the 1950s. One example was the freezing of Brazil's gold reserves held by the Federal Reserve.
Investment in sovereign debt with the intent to recover was also restricted due to the laws of champerty and maintenance and by the fact that most sovereign debt was syndicated. Under the Doctrines of Champerty, it was illegal in England and the United States to purchase a debt with the sole intent of litigating it. The distinction was made that if the debt was purchased to effect a recovery or facilitate investment, the doctrine was not a bar. Most jurisdictions have now eliminated the doctrine as archaic.
Similarly, sovereign debt owed to commercial creditors in the late 1980s was principally held by bank syndicates. This was the result of the petrodollar crisis of the 1970s when oil earnings were recycled into bank loans. The syndication of debt among banks made recovery impractical, as a fund intending to litigate had to buy out the entire syndicate of holders or risk having the proceeds of litigation attached pursuant to sharing clauses in the loan agreements.
As the 1980s progressed, debt rescheduling efforts in Latin America created many new and easily traded instruments such as Brady bonds that brought new players into the market, including banks and hedge funds. The original creditors then wrote down their positions and sold the debt into the secondary market, which is a market consisting of banks and investment funds focused on buying at discounts to achieve above market returns on their investment.
In this process, much debt was repurchased and converted into local currency by the sovereign country issuers in official debt conversion programs designed to attract investment, and in severely indebted countries through World Bank funded buy-backs. The result is that the old syndicates were broken up and many unreconstructed syndicate "tails" were available for purchase at discounts exceeding 80% of the principal face value. That pricing encouraged funds to invest in recovery actions, which would not otherwise make financial sense due to their length and cost.
Corporation law and theory of finance
Corporations are legally fictional people invented by the state. Businesses which need more capital than generally their founders can raise by personal contacts are enabled by this legal method of attracting investors to buy a portion of the business. Owners would invest capital and obtain common stock or equity in exchange for invested cash or other property like machines, factories, warehouses, patents or other interests. Then the owners would raise additional capital by borrowing from lenders in capital markets by selling bonds. In Corporation Law, the owners of these bonds come first in line for repayment so that if there is not sufficient funds to repay the debt-holders, the stock-holders get wiped out. The bond-holders step into the shoes of the former share-holders. The share-holders own nothing because they, the owners could not fully repay all the contractual promises or loans. Thus like a bank which had lent cash to a home buyer and became a mortgagee and is not repaid and then takes possession of the security, the home, the bond-holders of a bankrupt corporation takes possession of the business from the former owners of the corporation. Thus when shareholders cannot repay bondholders, in principle, bondholders become the new shareholders. In practice, it's more complicated.
In financial markets, the bonds of troubled public companies trade in a manner similar to common stock of solvent companies.
Term "vulture fund"
The term "vulture fund" is a metaphor used to compare distressed securities funds to the fund to the behavior of vulture birds “preying” on debtors in financial distress by purchasing the now-cheap credit on a secondary market to make a large monetary gain, in many cases leaving the debtor in a worse state. The term is often used to criticize the fund for strategically profiting off of debtors that are in financial distress, and thus is frequently considered derogatory. However financiers dealing with vulture funds argue that "their lawsuits force accountability for national borrowing, without which credit markets would shrivel, and that their pursuit of unpaid commercial debt uncovers public corruption." A related term is "vulture investing", where certain stocks in near bankrupt companies are purchased upon anticipation of asset divestiture or successful reorganization.
In 2009, bipartisan legislation in the US Congress was introduced aimed to prevent distressed securities funds from profiting on defaulted sovereign debt by capping the amount of profit that a secondary creditor can win through litigation based on those debts. The Stop VULTURE Funds Act was supported by Rep. Maxine Waters (D-CA), Rep. Spencer Bachus (R-AL), Rep. Barney Frank (D-MA) and Rep. Judy Biggert (R-IL). A non-profit financial reform organization, Jubilee USA Network, supported the legislation citing the impact that vulture funds have on poor countries. Similar legislation was introduced in the United Kingdom, Belgium, Jersey, the Isle of Man, Australia, and Guernsey.
International financial institutions
See also: Argentine debt restructuring
The International Monetary Fund and World Bank noted that distressed securities funds endanger the gains made by debt relief to poorest countries. "The Bank has already delivered more than $40 billion in debt relief to 30 of these countries...thanks to this, countries like Ghana can provide micro-credit to farmers, build classrooms for their children, and fund water and sanitation projects for the poor," wrote World Bank Vice President Danny Leipziger in 2007. "Yet the activities of vulture funds threaten to undermine such efforts... the strategies adopted by vulture funds divert much needed debt relief away from the poorest countries on earth and into the bank accounts of the wealthy."
In 2002, the British Chancellor (and later Prime Minister) Gordon Brown told the United Nations that when distressed securities funds purchase debt at a reduced price, and make a profit from suing the debtor country to recover the full amount owed, the outcome is "morally outrageous".
- Blackman, Jonathan I.; Mukhi, Rahul (2010). "The Evolution of Modern Sovereign Debt Litigation: Vultures, Alter Egos, and Other Legal Fauna". Law and Contemporary Problems 73: 47–61. Retrieved 2014-07-19.
- Ebrahimi, Helia; Blackden, Richard (2011-04-24). "Paul Singer's Elliott Management takes the fight to National Express". The Daily Telegraph. Retrieved 2014-07-21.
- "A victory by default?". The Economist. 3 March 2005. Retrieved 4 March 2013.
- Choi, Stephen; Mitu Gulati; Eric Posner (31). "The Evolution of Contractual Terms in Sovereign Bonds". Journal of Legal Analysis 4 (1): 131–179. Retrieved 4 March 2013.
- Szulu, Tad (15 July 1957). "HARD CURRENCIES SHORT IN BRAZIL; Nation Is Nearly Out of Such Reserves--Coffee Crop May Replenish Funds Debt Payments Due Reserves Were Low". The New York Times. Retrieved 4 March 2013.
- FEI NG, JERN. "The Role of the Doctrines of". Chartered Institute of Arbitors. Retrieved 4 March 2013.
- Huang, Peter; Knoll, Michael (2000). "Corporate Finance, Corporate Law and Finance Theory". Retrieved 3 August 2014.
- Tirole, Jean (2006). "The Theory of Corporate Finance". Retrieved 3 August 2014.
- Pesendorfer, Dieter. (2012). "Good-Bye Neoliberalism? Contested Policy Responses to Uncertain Consequences of the 2007-2009 Financial Crisis". In Alexander, Kern; Dhumale, Rahul. Research Handbook on International Financial Regulation. Cheltenham: Edward Elgar. p. 426. Retrieved 2014-07-19.
- Moles, Peter; Terry, Nicholas (June 10, 1999). The Handbook of International Financial Terms. Oxford University Press. ISBN 9780191727245. Retrieved 21 July 2014.
- Cone, Sydney (Fall 2010). "The International Review". New York Law School 13 (1): 17. Retrieved 22 July 2014.
- Moore, Jina (22 March 2014). "The end of vulture funds?". AlJazeera. Retrieved 19 July 2014.
- "The Stop VULTURE Funds Act". Govtrack.us. 2008-08-01. Retrieved 2014-07-28.
- "Vulture Funds: A Threat to the Poorest Countries and U.S. Foreign Assistance". Jubilee USA. June 2009. Retrieved 23 July 2014.
- Wray, Richard (8 April 2010). "Bill to stop vulture funds using UK courts gets royal assent". The Guardian (London).
- Wray, Richard (11 April 2010). "Parliament's last virtuous act: to stop vulture funds picking off the poor". The Guardian (London).
- "Jersey law to stop 'vulture funds' comes into force". BBC News. 1 March 2013.
- [dead link]
- 11:06 (2012-06-25). "ParlInfo - Federation Chamber : PRIVATE MEMBERS' BUSINESS : Heavily Indebted Poor Countries Initiative". Parlinfo.aph.gov.au. Retrieved 2014-07-28.
- "Guernsey government targets 'vulture funds'". BBC News. 20 October 2012.
- "Fonds vautours contre pays pauvres : 26 June 2007". Dannyleipziger.com. Retrieved 2013-10-15.
- "[ARCHIVED CONTENT] Speech by the Chancellor of the Exchequer, Gordon Brown, at the United Nations General Assembly Special Session on children, New York - HM Treasury". Webarchive.nationalarchives.gov.uk. Retrieved 2013-10-15.
- Complicating the Morality Play on Vulture Funds (Corrected Story), Christopher Faille, Senior Financial Correspondent, Hedgeworld News, Monday, February 4, 2008
- Distressed Debt Returns to the Spotlight FTfm, July 30, 2007
- Cerebral Fund
- Africa Action Campaign to Stop Vulture Funds US
- Jubilee Debt Campaign action on vulture funds
- Investopedia: vulture fund
- Should Countries like Argentina be able to Declare Themselves Bankrupt?, by Anne Krueger
- Economics of Vulture Funds -Ft.com
- August 2003, Manmohan Singh, IMF Working Paper WP/03/161; "Recovery Rates from Distressed Debt - Empirical Evidence from Chapter 11 Filings, International Litigation and Recent Sovereign Debt Restructurings"
- Investigative Journalist Greg Palast Tracks Vulture Funds Preying on African Debt - video report by Democracy Now!