Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 86

The third step in that evolution followed suit just a few months later or so. Since the battle against hold-outs (or vultures, for that matter) was not yet over. A determined creditor could still rather easily undermine the blocking effect of CACs by acquiring 25% of a particular bond issuance. The weakness of that generation of CACs namely was that the voting was foreseen on a bond-by-bond basis. Thus, when the qualified majority requirement was 75%, the holder of a 25% minority in any single bond issuance was in the position to block the majority vote. Therefore, the third step was executed by Uruguay which included in its newly issued bonds a so called “aggregation clause” thereby permitting a vote aggregation over multiple series of bonds.

However, the Uruguayan bond drafters had foreseen a problem which is commonly labeled as “ganging up”: i.e., the majority has all of the sudden the power to unfairly burden the minority. Buchheit and Gulati present the following example73: “Assume ten series of bonds, each linked with an aggregated collective action clause. The issuer proposes to restructure series 1 through 9 on very generous term while forcing series 10, and only series 10, to write off 90% of the principal of the bonds of that series. The many can thus gang up on the few by outvoting them.” To prevent this unfairness the bonds in question provided for what is called a “two limb” voting process: limb one is an affirmative voting of all series with the threshold of 85% of the outstanding principal and limb two is a vote with a threshold of 662/3 % in each of the affected series74. However, the improvement of this type of clauses as compared with step 2-clauses is that it takes now a 34% threshold to block the minority from agreeing to a binding majority vote. This quorum is not easy to achieve but not impossible.