ISDA®

INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.

NEWS RELEASE

For Immediate Release, Thursday, December 17, 2009

For More Information, Please Contact:

Cesaltine Gregorio, ISDA New York, +1 212-901-6019, cgregorio@isda.org
Deirdre Leahy, ISDA New York, +1 212-901-6021, dleahy@isda.org

Donna Chan, ISDA Hong Kong, +852 2200 5906, dchan@isda.org

ISDA Research Notes Analyzes "Empty Creditor" Hypothesis

NEW YORK, Thursday, December 17, 2009 – The International Swaps and Derivatives Association, Inc. (ISDA) today published a detailed analysis of the issues and implications raised by the “empty creditor” hypothesis. The analysis is contained in the quarterly ISDA Research Notes, authored by David Mengle, PhD, ISDA Head of Research.

The empty creditor hypothesis relates to the effect of hedging credit risk on the behavior of creditors of distressed institutions. It posits that creditors who hedge their exposures using credit default swaps (CDS) are indifferent to a firm’s survival. Others have extended the hypothesis to suggest hedged creditors might benefit from a distressed firm’s failure and prefer that such firms file for bankruptcy rather than engage in a work-out while remaining solvent.  

“The empty creditor hypothesis has generated significant interest in the press and among legal practitioners,” said Dr Mengle. “Because it could influence future regulatory policy, it is important to analyze both the logic and the evidence in support of and against it. The hypothesis is not consistent with the way CDS work or with observed behavior in debt markets.”

The Research Note states that although hedging might affect behavior because it changes one’s risk exposure, it also involves a foregone opportunity to maximize the upside of an investment. Only if such hedging could lead to systematic opportunities that might distort economic behavior or the functioning of legal institutions should it be treated as a cause for concern.

The Note segments the hypothesis into three specific and operational hypotheses:

• Exercise of contractual rights prior to bankruptcy. The hypothesis implies that hedged creditors are less likely to approve an out-of-court restructuring than unhedged creditors.
  
  If the ability to hedge using CDS tends to make restructurings less likely than when the hedge was not available, the number of restructurings as a percentage of credit defaults should be lower when CDS are available than when they are not. The data shows this figure at about 9 percent over the entire sample period from 1984-2009. But restricting the data to the period of liquid CDS markets from 2003, restructurings as a percentage of credit defaults jumps to 90 percent, which does not support the hypothesis.

• Exercise of legal rights within bankruptcy. According to the hypothesis, hedged creditors are indifferent to the value of the firm after bankruptcy, which leads to inefficient decisions on restructuring vs. liquidation.
  
  This hypothesis seems implausible. After settlement of CDS contracts, hedged creditors have been compensated for their losses and have the choice of either selling the defaulted bonds at the current price or retaining the bonds and engaging in the bankruptcy process. Rational bondholders in this case have incentives to maximize recovery values.

• Negative economic ownership. The hypothesis implies that prior to bankruptcy, hedged creditors will not only be indifferent to the value of the distressed firm, but might even benefit from failure by building up CDS hedges for which the face amount exceeds the face amount owned.
  
  The Note states that it is not possible to determine from available data whether overhedging is a significant activity, or indeed if it occurs at all. But the paper presents actual examples that demonstrate the high expense and low returns that such a strategy would generate, from which it is reasonable to question the plausibility of this hypothesis.

ISDA Research Notes began publication in December 2008. The Notes, which discuss public policy issues and market trends related to the privately negotiated derivatives industry, are published by ISDA’s Research Department in New York. Dr Mengle, who heads the Research Department, also teaches at the Fordham University Graduate School of Business.

ISDA Research Notes are available at www.isda.org/researchnotes/isdaresearch.html.

About ISDA

ISDA, which represents participants in the privately negotiated derivatives industry, is among the world’s largest global financial trade associations as measured by number of member firms. ISDA was chartered in 1985, and today has over 830 member institutions from 58 countries on six continents. These members include most of the world’s major institutions that deal in privately negotiated derivatives, as well as many of the businesses, governmental entities and other end users that rely on over-the-counter derivatives to manage efficiently the financial market risks inherent in their core economic activities.  Information about ISDA and its activities is available on the Association's web site: www.isda.org.

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