External debt audits and fair and transparent arbitration – the case of Ecuador

On the 15th of December 2008 Ecuadorian President Rafael Correa took the unprecedented step of declaring that Ecuador would stop paying interest on commercial bonds owed by the government on the basis that they were ‘obviously immoral and illegitimate’. The decision came as a result of a comprehensive debt audit for which Ecuadorian civil society had been campaigning for a number of years.

Concern was over debt incurred under previous governments and for which many Ecuadorians felt they suffered an undue burden. This unrest was based on the belief that this debt was the result of illegal practices under former regimes, and as it turns out, they were right. The audit which aimed to establish the origins and nature of Ecuador’s external debt concluded that owing to the conditions on which they were issued and restructured, much of the private debts owed by Ecuador were illegal under both Ecuadorian and international law.

What followed from this audit was a series of shrewd financial manoeuvres by President Correa. A full scale default would not have been in Ecuador’s best interests. The possibility of being ostracised from world financial markets and the risk of being sued presented serious consequences. The threat of default however was strong enough for President Correa to cut a restructuring deal which resulted in Ecuador paying back only 35 cents in the dollar. This was helped a great deal by the President announcing the default on the very day that the three large hedge-funds which held much of the debt were being forced to liquidise their holdings as a result of the financial crisis. This devalued the debt considerably, allowing Correa to then use a large Ecuadorian bank to buy the loans back at rates high enough to fragment the debt distribution sufficiently to allow an extremely favourable restructuring deal to be forged.

Perhaps most importantly was the response from the multilateral finance institutions who, in not lodging any formal objections, implicitly offered some degree of support for such a process. This was a surprise to many, much of the mainstream media and many financial commentators condemned Ecuador for not playing by the rules and portrayed the step as a political manoeuvring by a renegade president. Their concern was over the precedent this sets, a precedent which allowed Ecuador an effective debt default despite having the ability to pay, and the worry that this will create grey areas over when debt is and isn’t required to be repaid, therefore undermining the principles on which international financial lending was structured.

These opposing reactions has therefore created clear tension and uncertainty regarding illegitimate debt and default. It does however significantly strengthen the call for an international system of fair and transparent arbitration as is advocated by a wide network of organisations including the Jubilee Movement. The adoption of such a system would allow issues of illegitimate debt to be addressed while maintaining security and stability in the international financial system, working out compromises which acknowledge fairness and responsibility.

The call for such a system is continually being strengthened as a result of various countries signalling their intentions to follow the same path as Ecuador. On December the 30th 2009 Bolivian Parliament approved resolution to set up an commission for a review of the external debt of Bolivia. In Paraguay President Fernando Lugo similarly signalled his wish for such a process and in Zimbabwe, civil society has long been calling for an audit to identify the staggering amount of odious debt incurred as part of the post colonial burden. This is an issue of tremendous relevance not only for countries in the developing world, but in the developed world as well. Iceland and Greece are two examples of countries suffering heavily as a result of increasing external debt burdens. Fair and Transparent Arbitration is therefore poised to be an issue of much debate in times to come and an idea which may cement itself as an essential part of the post-crisis financial infrastructure. This would be good news for many, especially for the poor for whom the repayment of illegitimate debt has hampered their countries efforts at poverty reduction for decades.

Drew Ritchie, Jubilee Scotland

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