The Promise and Perils of Credit Derivatives

In this Article, we begin what we believe will be a fruitful area of scholarly inquiry: an in-depth analysis of credit derivatives. We survey the benefits and risks of credit derivatives, particularly as the use of these instruments affect the role of banks and other creditors in corporate governance. We also hope to create a framework for a more general scholarly discussion of credit derivatives. We define credit derivatives as financial instruments whose payoffs are linked in some way to a change in credit quality of an issuer or issuers. Our research suggests that there are two major categories of credit derivative. First, a credit default swap is a private contract in which private parties bet on a debt issuer’s bankruptcy, default, or restructuring. For example, a bank that has loaned $10 million to a company might enter into a$10 million credit default swap with a third party for hedging purposes. If the company defaults on its debt, the bank will lose money on the loan, but make money on the swap; conversely, if the company does not default, the bank will make a payment to the third party, reducing its profits on the loan. Second, a collateralized debt obligation (CDO) is a pool of debt contracts housed within a special purpose entity (SPE) whose capital structure is sliced and resold based on differences in credit quality. In a “cash flow” CDO, the SPE purchases a portfolio of outstanding debt issued by a range of companies, and finances its purchase by issuing its own financial instruments, including primarily debt but also equity. In a “synthetic” CDO, the SPE does not purchase actual bonds, but instead enters into several credit default swaps with a third party, to create synthetic exposure to the outstanding debt issued by a range of companies. The SPE finances its purchase by issuing financial instruments to investors, but these instruments are backed by credit default swaps rather than any actual bonds. In the Article’s first substantive part, we discuss the benefits associated with both types of credit derivatives, which include increased opportunities for hedging, increased liquidity, reduced transaction costs, and a deeper and potentially more efficient market for trading credit risk. We then discuss the risks associated with credit derivatives, such as moral hazard and other incentive problems, limited disclosure, potential systemic risk, high transaction costs, and the mispricing of credit. After considering the benefits and risks, we discuss some of the implications of our findings, and make some preliminary recommendations. In particular, we focus on the issues of disclosure, regulatory licenses associated with credit ratings, and the special treatment of derivatives in bankruptcy

The Promise and Perils of Credit Derivatives

In this Article, we begin what we believe will be a fruitful area of scholarly inquiry: an in-depth analysis of credit derivatives. We survey the benefits and risks of credit derivatives, particularly as the use of these instruments affect the role of banks and other creditors in corporate governance. We also hope to create a framework for a more general scholarly discussion of credit derivatives. We define credit derivatives as financial instruments whose payoffs are linked in some way to a change in credit quality of an issuer or issuers. Our research suggests that there are two major categories of credit derivative. First, a credit default swap is a private contract in which private parties bet on a debt issuer’s bankruptcy, default, or restructuring. For example, a bank that has loaned $10 million to a company might enter into a$10 million credit default swap with a third party for hedging purposes. If the company defaults on its debt, the bank will lose money on the loan, but make money on the swap; conversely, if the company does not default, the bank will make a payment to the third party, reducing its profits on the loan. Second, a collateralized debt obligation (CDO) is a pool of debt contracts housed within a special purpose entity (SPE) whose capital structure is sliced and resold based on differences in credit quality. In a “cash flow” CDO, the SPE purchases a portfolio of outstanding debt issued by a range of companies, and finances its purchase by issuing its own financial instruments, including primarily debt but also equity. In a “synthetic” CDO, the SPE does not purchase actual bonds, but instead enters into several credit default swaps with a third party, to create synthetic exposure to the outstanding debt issued by a range of companies. The SPE finances its purchase by issuing financial instruments to investors, but these instruments are backed by credit default swaps rather than any actual bonds. In the Article’s first substantive part, we discuss the benefits associated with both types of credit derivatives, which include increased opportunities for hedging, increased liquidity, reduced transaction costs, and a deeper and potentially more efficient market for trading credit risk. We then discuss the risks associated with credit derivatives, such as moral hazard and other incentive problems, limited disclosure, potential systemic risk, high transaction costs, and the mispricing of credit. After considering the benefits and risks, we discuss some of the implications of our findings, and make some preliminary recommendations. In particular, we focus on the issues of disclosure, regulatory licenses associated with credit ratings, and the special treatment of derivatives in bankruptcy

Negative Activism

Shareholder activism has become one of the most important and widely studied topics in law and finance. To date, popular and academic accounts have focused on what we call “positive activism,” where activists seek to profit from positive changes in the share prices of targeted firms. In this Article, we undertake the first comprehensive study of positive activism’s mirror image, which we term “negative activism.” Whereas positive activists focus on increasing share prices, negative activists take short positions to profit from decreasing share prices. We develop a descriptive typology of three categories of negative activism and use a private database of activist activity and other hand-collected information to provide empirical evidence about the frequency and manner with which each category occurs. First, informational negative activism seeks to uncover and then communicate the truth about companies whose shares the activists believe are overvalued. We show that the announcement of this kind of activism is associated with a statistically significant abnormal decline in share prices. Second, operational negative activism involves dismantling or disabling sources of value at companies. We document a range of actual and potential instances of operational negative activism and associated abnormal share price declines. Third, unintentionally negative activists are failed positive activists: their announcements of ownership stakes in companies they target are met with immediate negative abnormal returns. Using this typology and the related evidence, we explore the policy and regulatory implications for each category of negative activism. We show a range of areas where policy and regulatory goals either conflict with or seemingly ignore the effects from negative activism. We also offer several ways that existing regulatory approaches could be improved to account for negative activism. In general, we advocate less regulation, and even subsidization, of informational negative activism; tighter regulation of operational negative activism; and a more nuanced approach to unintentional negative activism

Negative Activism

Shareholder activism has become one of the most important and widely studied topics in law and finance. To date, popular and academic accounts have focused on what we call “positive activism,” where activists seek to profit from positive changes in the share prices of targeted firms. In this Article, we undertake the first comprehensive study of positive activism’s mirror image, which we term “negative activism.” Whereas positive activists focus on increasing share prices, negative activists take short positions to profit from decreasing share prices. We develop a descriptive typology of three categories of negative activism and use a private database of activist activity and other hand-collected information to provide empirical evidence about the frequency and manner with which each category occurs. First, informational negative activism seeks to uncover and then communicate the truth about companies whose shares the activists believe are overvalued. We show that the announcement of this kind of activism is associated with a statistically significant abnormal decline in share prices. Second, operational negative activism involves dismantling or disabling sources of value at companies. We document a range of actual and potential instances of operational negative activism and associated abnormal share price declines. Third, unintentionally negative activists are failed positive activists: their announcements of ownership stakes in companies they target are met with immediate negative abnormal returns. Using this typology and the related evidence, we explore the policy and regulatory implications for each category of negative activism. We show a range of areas where policy and regulatory goals either conflict with or seemingly ignore the effects from negative activism. We also offer several ways that existing regulatory approaches could be improved to account for negative activism. In general, we advocate less regulation, and even subsidization, of informational negative activism; tighter regulation of operational negative activism; and a more nuanced approach to unintentional negative activism

Sustainable Finance Ratings as the Latest Symptom of “Rating Addiction”

Using the widely accepted but rarely articulated concept of ‘rating addiction’, this piece aims to examine the recent entrance of the credit rating agencies into the sustainable finance field against the backdrop of ‘rating addiction’. Once the concept of ‘rating addiction’ is positioned, the effects of the addiction can be witnessed by even just a cursory glance at the history of the credit rating agencies, particularly their recent history. On that basis, this article provides a warning for regulators and the field with regards to the potentially negative effect that credit rating agencies can have upon the ever-growing and socially-important sustainable finance sector. Additionally, assessing the aptitude of the agencies in this sector, in comparison to the sector’s utilisation of their products, may provide further evidence of a system addicted to ratings

A hard nut to crack : regulatory failure shows how rating really works

Credit rating agencies such as Moody’s and Standard & Poor’s are key players in the governance of global financial markets. Given the very strong criticism the rating agencies faced in the wake of the global financial crisis 2008, how can we explain the puzzle of their survival? Market and regulatory reliance on ratings continues, despite the shift from a light-touch to a mandatory system of agency regulation and supervision. Drawing on the analysis of rating agency regulation in the US and the EU before and after the financial crisis, we argue that a pervasive, persistent and, in our view, erroneous understanding of rating has supported the never-ending story of rating agency authority. We show how treating ratings as metrics, private goods, and independent and neutral third-party opinions contributes to the ineffectiveness of rating agency regulation and supports the continuing authoritative standing of the credit rating agencies in market and regulatory practices

Rules for Growth: Promoting Innovation and Growth Through Legal Reform

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus - deficit-spending and monetary stimulus - policymakers are understandably eager to find innovative no-cost ways of sustaining growth both in the short and long runs. In response to this challenge, the Kauffman Foundation convened a number of America’s leading legal scholars and social scientists during the summer of 2010 to present and discuss their ideas for changing legal rules and policies to promote innovation and accelerate U.S. economic growth. This meeting led to the publication of Rules for Growth: Promoting Innovation and Growth Through Legal Reform, a comprehensive and groundbreaking volume of essays prescribing a new set of growth-promoting policies for policymakers, legal scholars, economists, and business men and women. Some of the top Rules include: • Reforming U.S. immigration laws so that more high-skilled immigrants can launch businesses in the United States. • Improving university technology licensing practices so university-generated innovation is more quickly and efficiently commercialized. • Moving away from taxes on income that penalize risk-taking, innovation, and employment while shifting toward a more consumption-based tax system that encourages saving that funds investment. In addition, the research tax credit should be redesigned and made permanent. • Overhauling local zoning rules to facilitate the formation of innovative companies. • Urging judges to take a more expansive view of flexible business contracts that are increasingly used by innovative firms. • Urging antitrust enforcers and courts to define markets more in global terms to reflect contemporary realities, resist antitrust enforcement from countries with less sound antitrust regimes, and prohibit industry trade protection and subsidies. • Reforming the intellectual property system to allow for a post-grant opposition process and address the large patent application backlog by allowing applicants to pay for more rapid patent reviews. • Authorizing corporate entities to form digitally and use software as a means for setting out agreements and bylaws governing corporate activities. The collective essays in the book propose a new way of thinking about the legal system that should be of interest to policymakers and academic scholars alike. Moreover, the ideas presented here, if embodied in law, would augment a sustained increase in U.S. economic growth, improving living standards for U.S. residents and for many in the rest of the world