Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 80

The aforementioned three categories of potential state creditors have in common that there are certain rules to be applied when and if the borrowing state encounters difficulties in complying with the repayment duties or slides outright in a default. Though not legally binding in the strict sense of dogmatics, the said procedural rules give guidance as to how to proceed and help, thus, to structure a situation which, at least for the debtor state (in a case like the recent Greek one for the entire currency zone) tends to be a chaotic one. When salary cannot be paid, when the daily indispensable infrastructure collapses, when hospitals shut down due to interrupted delivery of medicine, when the unemployment rate skyrockets etc., it is quite evident that the general public and politics turn into a sort of chaos. All the more, since experience teaches and research confirms that in these situations i.a. the general health deterioration increases dramatically and the suicide rate grows exponentially.

All this leads to the question which has often been posed and which still seems not yet to be satisfyingly answered41: why do states pay back? The legally obvious answer “because they are contractually obliged to do so” loses persuasion in sight of the difficulties to sue a state, let alone to execute against it and in sight of the non-exiting threat of an insolvency proceeding. The more likely reason, thus, is foresight: it will be difficult to borrow money in the future when lenders have experienced non-payment in the past. All the more so, as the rating agencies serve here, too, as a kind of institutionalized memory of the capital market. The downgrading of a country is connected with a dramatic increase of prices. To the degree that a credit relationship is based –at least to a certain degree– on trust, it is here like in all trust relationships: to build up trust takes a long time, to delete it just a moment.

When and if these few remarks give an indication as to why states tend to comply with their repayment duties it becomes explicable why we have finally to look at a fourth category of creditors, the so-called private sector. Though being quite prominent as lenders for now something like four decades42 the persons and institutions which form that private sector are listed here at the end because for them there are no rules foreseen in case of a default43. This is where the discussion about establishing an insolvency –better: resolvency– proceeding has its starting point. I will come back to this in a moment (below at II).

But to begin with the private sector’s prominence: To borrow from other states comes with the cost of at least some influence –so there is a downside to this option. To borrow from banks is fine– but the recent example of, for instance, Italy with its three collapsing banks in the Veneto region due to an overload of non-performing loans (NPLs44) teaches that there are downsides, too; moreover, banks might not be entirely happy with bearing the default risk of their home state. All the more so as they still can earn some rather risk-free income by acting as mere intermediaries between state and third parties by selling bonds to the general capital market. For the states, the pleasant side of such bonds is that there is no big negotiation deal necessary when they are sold by the banks. Depending on the promised interest rates, this looks for all like a win-win situation and has gained, therefore, enormous attractivity. As recent examples have shown, the interest rates can even be negative and are still seen as good and attractive. This is due to an inherent risk-assessment by the investor; when and if, for instance, obliged by law to invest in gilt-edged assets, a trustee or the like might assess risk-freeness as more precious than a possible future income that is grounded on uncertain (if not risky) assumptions.

The private sector is, thus, a generic term for all those actors on the capital market who are neither states nor banks or multilaterals; it is just the rest. Which is, as a matter of fact, a huge rest; included is the “ordinary man on the street” as well as the super-rich insurance fund and everyone in-between. They all invest, at least pursuant to a decision of the International Center for the Settlement of Investment Disputes (ICSID)45 in a state by buying bonds and similar securities or by entering in other lending transactions.