Between Mandate and Market: Contract Transition in the Shadow of the International Order
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Boilerplate in sovereign debt contracts issued in the United States has long dictated the unanimous consent of bondholders to any debt restructuring. This requirement persisted for decades, notwithstanding wide consensus that such unanimous action provisions increased transaction costs, produced inefficient delays in debt restructuring, enhanced the moral hazards of the sovereign debt market, and otherwise encouraged collective action failures. Yet the sovereign debt markets has recently made an about-face, replacing the unanimity requirement for debt restructuring with a less demanding provision for collective, or majority, action by creditors. Completed over the course of just a few months in 2003, this unexpected and dramatic shift offers a natural experiment of sorts: Why might contract boilerplate not respond to apparent efficiency demands for extended periods? What might cause it to respond eventually? In particular, what role might state action have in the evolution of boilerplate contract terms and in contract transition generally? In the realm of international finance, these inquiries demand urgent analysis: Can the market be expected to facilitate efficient transition in contracts with significant boilerplate elements, or is regulatory mandate essential to such change? Challenging a dichotomous choice between market and mandate, this Article proffers a third way toward efficient contract transition. While the market may not always produce efficient transition, ordinary public regulation may be no better. Instead, this Article identifies state action grounded in noncoercive regulatory cues as the mechanism of efficient transition in standardized contract terms. In the face of growing reliance on boilerplate contract terms and standard-form contracts, public intervention in the form of regulatory cues may, paradoxically, help to facilitate meaningful choice in contract design, and hence a true freedom of contract. The role of regulatory cues in sovereign debt contracts, moreover, may suggest a potential role in international regulation generally, given the limits of hard power within a community of sovereign states.
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