“Vulture fund”的意思、由来-开放百科全书

A vulture fund is a hedge fund, private equity fund or distressed debt fund, that invests in debt considered to be very weak or in default, known as distressed securities.^[1] Investors in the fund profit by buying debt at a discounted price on a secondary market and then using numerous methods to gain a larger amount than the purchasing price. Debtors include companies, countries, and individuals.

Vulture funds have had success in bringing attachment and recovery actions against sovereign debtor governments, usually settling with them before realizing the attachments in forced sales. Settlements typically are made at a discount in hard or local currency or in the form of new debt issuance. In one instance involving Peru, such a seizure threatened payments to other creditors of the sovereign obliger.^[2]^[3]

History

Sovereign debt collection was rare until the 1950s when sovereign immunity of government issuers started to become restricted.^[4] This trend developed from the long history of sovereign defaulting on commercial creditors with impunity. Accordingly, sovereign debt collection actions began in the 1950s. One example was the freezing of Brazil's gold reserves held by the Federal Reserve.^[5]

Investment in sovereign debt with the intent to recover was also restricted due to the laws of champerty and maintenance and by the fact that most sovereign debt was syndicated. Under the Doctrines of Champerty, it was illegal in England and the United States to purchase a debt with the sole intent of litigating it.^[6] The distinction was made that if the debt was purchased to effect a recovery or facilitate investment, the doctrine was not a bar. Most jurisdictions have now eliminated the doctrine as archaic.

Similarly, sovereign debt owed to commercial creditors in the late 1980s was principally held by bank syndicates. This was the result of the petrodollar crisis of the 1970s when oil earnings were recycled into bank loans. The syndication of debt among banks made recovery impractical, as a fund intending to litigate had to buy out the entire syndicate of holders or risk having the proceeds of litigation attached pursuant to sharing clauses in the loan agreements.

As the 1980s progressed, debt rescheduling efforts in Latin America created many new and easily traded instruments such as Brady bonds that brought new players into the market, including banks and hedge funds. The original creditors then wrote down their positions and sold the debt into the secondary market, which is a market consisting of banks and investment funds focused on buying at discounts to achieve above market returns on their investment.

In this process, much debt was repurchased and converted into local currency by the sovereign country issuers in official debt conversion programs designed to attract investment, and in severely indebted countries through World Bank funded buy-backs. The result is that the old syndicates were broken up and many unreconstructed syndicate "tails" were available for purchase at discounts exceeding 80% of the principal face value. That pricing encouraged funds to invest in recovery actions, which would not otherwise make financial sense due to their length and cost.

Corporation law and theory of finance

Businesses that need more capital than their founders can raise by personal contacts are enabled by this legal method of attracting investors to buy a portion of the business. Owners would invest capital and obtain common stock or equity in exchange for invested cash or other property like machines, factories, warehouses, patents or other interests. Then the owners would raise additional capital by borrowing from lenders in capital markets by selling bonds. In corporation law, the owners of these bonds come first in line for repayment so that if there is not sufficient funds to repay the bondholders, the stockholders get wiped out. The bondholders step into the shoes of the former shareholders. The shareholders own nothing because they, the owners, could not fully repay all the contractual promises, or loans. So like a bank (the mortgagee) that has lent money to a home buyer (the mortgagor) takes possession of the security (the home) when mortgage payments are not made (i.e. foreclosure), the bondholders of a corporation take possession of the business from the former owners (the shareholders) when the corporation falls into bankruptcy. Thus, when shareholders cannot repay bondholders, in principle, bondholders become the new shareholders. In practice, however, it is more complicated.^[7]^[8]

In the financial markets, the bonds of troubled public companies trade in a manner similar to common stock of solvent companies.

Viewpoints

Term "vulture fund"

The term "vulture fund" is a metaphor which is used to compare these particular hedge funds to the behaviour of vulture birds “preying” on debtors in financial distress by purchasing the now-cheap credit on a secondary market to make a large monetary gain, in many cases leaving the debtor in a worse state. The term is often used to criticize the fund for strategically profiting off of debtors that are in financial distress, and thus is frequently considered derogatory.^[9]^[10]^[11] However financiers dealing with vulture funds argue that "their lawsuits force accountability for national borrowing, without which credit markets would shrivel, and that their pursuit of unpaid commercial debt uncovers public corruption."^[12] A related term is "vulture investing", where certain stocks in near bankrupt companies are purchased upon anticipation of asset divestiture or successful reorganization.^[13]

The term has gained wide acceptance from governments, newspapers, academics and international organizations such as the World Bank, Group of 77, Organisation of American States and Council on Foreign Relations, among others.^[14]^[15]^[16]^[17]^[18]

Legislation

In 2009, bipartisan legislation in the US Congress was introduced aimed to prevent Vulture funds from profiting on defaulted sovereign debt by capping the amount of profit that a secondary creditor can win through litigation based on those debts. The Stop VULTURE Funds Act was introduced, but not passed, in the United States.^[14] A non-profit financial reform organization, Jubilee USA Network, supported the legislation citing the impact that vulture funds have on poor countries.^[15] Similar legislation was passed in the United Kingdom,^[16] Belgium,^[17]^[18] Jersey,^[19] the Isle of Man,^[20] Australia.{{failed verification|date=August 2015}}^[21] The States of Guernsey debated legislation in 2012.^[22]

Financial institutions

The International Monetary Fund and World Bank noted that Vulture funds endanger the gains made by debt relief to poorest countries. "The Bank has already delivered more than $40 billion in debt relief to 30 of these countries...thanks to this, countries like Ghana can provide micro-credit to farmers, build classrooms for their children, and fund water and sanitation projects for the poor," wrote World Bank Vice President Danny Leipziger in 2007. "Yet the activities of vulture funds threaten to undermine such efforts... the strategies adopted by vulture funds divert much needed debt relief away from the poorest countries on earth and into the bank accounts of the wealthy."^[23]

Governmental and non-governmental organisations

The conduct of the vulture funds blocking payments to other creditors to Argentina was denounced by the Organisation of American States, with the exception of the United States and Canada.^[24] The G77+China also criticised the funds and stated: "Some recent examples of the actions by vulture funds before international courts show their highly speculative nature. These funds pose a danger for all the future process of debt swaps, for developing countries and for developed nations as well".^[25]

The US-based Council on Foreign Relations questioned the US Supreme Court for rejecting Argentina's appeal in its legal dispute with the so-called vulture funds. The organization claimed that such actions make it "more difficult for countries to free themselves from the burden of over-indebtedness" and are " very bad for international capital markets", as well as being a huge blow to national sovereignty. The organization described Thomas Griesa's ruling against Argentina in favour of vulture funds as "punishing the innocent" and "turning the natural order of debt on its head".^[26]

United Kingdom

In 2002, the British Chancellor (and later Prime Minister) Gordon Brown told the United Nations that when vulture funds purchase debt at a reduced price, and make a profit from suing the debtor country to recover the full amount owed, the outcome is "morally outrageous".^[27] Legislation passed in 2010 removed the ability of vulture funds to use UK courts to enforce contested debts.^[28]

United Nations

On 9 September 2014, the United Nations General Assembly voted to support a new bankruptcy process for sovereign nations, which would promote debt restructuring by excluding so-called "vulture funds" from the process. The vote was 124-11 in favor, with 41 abstentions. The United States voted against the measure.^[29]^[30]

Ireland

In October 2016, the Irish State closed tax loopholes that U.S. distressed debt funds (labeled "vulture funds" in the Irish media),^[31]^[32] advised by IFSC tax-law firms (e.g. Matheson),^[33] had exploited to avoid Irish taxes (capital gain, withholding tax and VAT/duty)^[34]^[35]^[36]^[37] on over €80 billion of Irish distressed assets.^[38] The affair caused a national scandal in Ireland,^[39]^[40] and led to public backlash against the activities of US distressed debt funds,^[41]^[42] and particularly when it was discovered that they had used children's charities controlled by Irish tax-law firms to mask their Section 110 SPV tax vehicles.^[43]^[44]

The Irish State did not prosecute the "vulture funds" for tax avoidance, and in February 2018 the Central Bank of Ireland created a new structure the L-QIAIF, which does not file public accounts, which was how the scandal was uncovered, into which the "vulture funds" transferred over €55 billion of assets (one-quarter of Irish 2018 GNI*).^[45] On 28 December 2018, the Irish Taoiseach, Leo Varadkar, praised the activity of "vulture funds" in Ireland to the Irish Times newspaper.^[46]

See also

References

1. ^{{cite journal |title=The Evolution of Modern Sovereign Debt Litigation: Vultures, Alter Egos, and Other Legal Fauna |journal=Law and Contemporary Problems |year=2010 |last=Blackman |first=Jonathan I. |last2=Mukhi |first2=Rahul |volume=73 |pages=47–61 |url=http://scholarship.law.duke.edu/lcp/vol73/iss4/6/ |accessdate=19 July 2014 }}
2. ^{{cite news |last=Ebrahimi |first=Helia |last2=Blackden |first2=Richard |url=https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/privateequity/8469785/Paul-Singers-Elliott-Management-takes-the-fight-to-National-Express.html |title=Paul Singer's Elliott Management takes the fight to National Express |work=The Daily Telegraph |date=24 April 2011 |accessdate=21 July 2014 }}
3. ^{{cite news|title=A victory by default? |url=http://www.economist.com/node/3715779|accessdate=4 March 2013|newspaper=The Economist|date=3 March 2005}}
4. ^{{cite journal |last=Choi |first=Stephen |author2=Mitu Gulati |author3=Eric Posner |title=The Evolution of Contractual Terms in Sovereign Bonds|journal=Journal of Legal Analysis |date=31 May 2012 |volume=4 |issue=1 |pages=131–179 |url=http://jla.oxfordjournals.org/content/4/1/131.full |accessdate=4 March 2013 |doi=10.1093/jla/las004}}
5. ^{{cite news|last=Szulu|first=Tad|title=HARD CURRENCIES SHORT IN BRAZIL; Nation Is Nearly Out of Such Reserves--Coffee Crop May Replenish Funds Debt Payments Due Reserves Were Low|url=https://www.nytimes.com/1957/07/15/archives/hard-currencies-short-in-brazil-nation-is-nearly-out-of-such.html |accessdate=4 March 2013|newspaper=The New York Times|date=15 July 1957}}
6. ^{{cite web|last=FEI NG|first=JERN|title=The Role of the Doctrines of|url=http://clients.squareeye.net/uploads/essex2011/documents/JERN-FEI%20NG.pdf|work=Chartered Institute of Arbitors|accessdate=4 March 2013}}
7. ^{{cite web|last1=Huang|first1=Peter|last2=Knoll|first2=Michael|title=Corporate Finance, Corporate Law and Finance Theory|url=http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2140&context=faculty_scholarship|accessdate=3 August 2014|year=2000}}
8. ^{{cite web|last1=Tirole|first1=Jean|title=The Theory of Corporate Finance|url=http://press.princeton.edu/tirole/front.pdf|accessdate=3 August 2014|year=2006}}
9. ^{{cite book |last=Pesendorfer |first1=Dieter. |url=https://books.google.com/books?id=TUZ5u8dVK-4C&pg=PA426 |title=Research Handbook on International Financial Regulation |chapter=Good-Bye Neoliberalism? Contested Policy Responses to Uncertain Consequences of the 2007-2009 Financial Crisis |editor-last=Alexander |editor-first=Kern |editor2-last=Dhumale |editor2-first=Rahul |location=Cheltenham |publisher= Edward Elgar |year=2012 |page=426 |accessdate=19 July 2014 }}
10. ^{{cite book|last1=Moles|first1=Peter|last2=Terry|first2=Nicholas|title=The Handbook of International Financial Terms|date=10 June 1999|publisher=Oxford University Press|isbn=9780191727245|url=http://www.oxfordreference.com/view/10.1093/acref/9780198294818.001.0001/acref-9780198294818-e-8300?rskey=jYoY4t&result=8|accessdate=21 July 2014}}
11. ^{{cite journal|last1=Cone|first1=Sydney|title=The International Review|journal=New York Law School|date=Fall 2010|volume=13|issue=1|page=17|url=http://www.nyls.edu/center_for_international_law/wp-content/uploads/sites/132/2013/08/CIL_Newsletter_Fall2010.pdf|accessdate=22 July 2014}}
12. ^{{cite news|last1=Moore|first1=Jina|title=The end of vulture funds?|url=http://america.aljazeera.com/articles/2014/3/22/the-end-of-vulturefunds.html|accessdate=19 July 2014|publisher=AlJazeera|date=22 March 2014}}
13. ^{{cite news| url=http://www.bloombergview.com/quicktake/vulture-investing |title=Vulture Investing: Why a Hedge Fund Chased an Argentine Frigate |quote=The most benign version of vulture investing involves buying liabilities of struggling companies, such as American Airlines or the Motors Liquidation Co. spun off from General Motors, sometimes for a few cents on the dollar, with the hope that the investments will regain some of their lost value as the companies restructure or sell assets to repay creditors.}}
14. ^{{cite web|url=http://www.govtrack.us/congress/bills/110/hr6796/text |title=The Stop VULTURE Funds Act |publisher=Govtrack.us |date=1 August 2008 |accessdate=28 July 2014}}
15. ^{{cite web|title=Vulture Funds: A Threat to the Poorest Countries and U.S. Foreign Assistance|url=http://www.jubileeusa.org/fileadmin/user_upload/Resources/Vulture_Funds/Stop_Vulture_Funds_JEFSAA_Fact_Sheet.pdf|publisher=Jubilee USA|accessdate=23 July 2014|date=June 2009}}
16. ^¹{{cite news| url=https://www.theguardian.com/business/2010/apr/08/vulture-funds-developing-nations-debt | location=London | work=The Guardian | first=Richard | last=Wray | title=Bill to stop vulture funds using UK courts gets royal assent | date=8 April 2010}}
17. ^{{cite news| url=https://www.theguardian.com/politics/2010/apr/11/vulture-funds-banned-uk-courts | location=London | work=The Guardian | first=Richard | last=Wray | title=Parliament's last virtuous act: to stop vulture funds picking off the poor | date=11 April 2010}}
18. ^{{cite web |url=http://eurodad.org/vulture-funds-belgium |title=Vulture fund takes the Belgian government to court - and Belgian NGOs join the defence team |author=Antonio Gambin |date=5 March 2018 |website= |publisher= |accessdate=14 March 2018}}
19. ^{{cite news| url=https://www.bbc.co.uk/news/world-europe-jersey-21627406 | work=BBC News | title=Jersey law to stop 'vulture funds' comes into force | date=1 March 2013}}
20. ^{{Cite news|url=http://www.gov.im/lib/news/cso/isleofmanintrodu.xml|title=Isle of Man introduces legislation to outlaw vulture funds (press release)|author=Chief Secretary's Office|publisher=Government of the Isle of Man|date=12 December 2012|archiveurl=https://web.archive.org/web/20130303130403/http://www.gov.im/lib/news/cso/isleofmanintrodu.xml|archivedate=3 March 2013|quote=LEGISLATION ... has this week received Royal Assent. The Heavily Indebted Poor Countries (Limitation on Debt Recovery) Act 2012 outlaws a practice that undermines international debt relief efforts. The legislation prevents vulture funds from buying up poor nations’ debts for a fraction of their original amount and then using the courts to sue for the full value, plus interest and penalty charges.|accessdate=6 August 2015}}
21. ^{{cite web|author=|url=http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber/hansardr/7503935a-ef9f-47a5-9ab8-7a228d52f809/0283;query=Id:%22chamber/hansardr/7503935a-ef9f-47a5-9ab8-7a228d52f809/0283%22 |title=ParlInfo - Federation Chamber : PRIVATE MEMBERS' BUSINESS : Heavily Indebted Poor Countries Initiative |publisher=Parlinfo.aph.gov.au |date=25 June 2012 |accessdate=28 July 2014}}
22. ^{{cite news| url=https://www.bbc.co.uk/news/world-europe-guernsey-20015952 | work=BBC News | title=Guernsey government targets 'vulture funds' | date=20 October 2012}}
23. ^¹{{cite web|url=http://www.dannyleipziger.com/documents/LetsStopVultureFund.pdf|title=Fonds vautours contre pays pauvres : 26 June 2007 |publisher=Dannyleipziger.com |accessdate=15 October 2013}}
24. ^¹{{cite web|url=http://www.cepr.net/index.php/blogs/the-americas-blog/us-on-its-own-once-again-at-oas-meeting-on-argentinean-sovereign-debt|author=Alexander Main|title=U.S. on Its Own, Once Again, at OAS Meeting on Argentine Sovereign Debt|work=CEPR|date=9 July 2014}}
25. ^¹{{cite web|url=http://www.telam.com.ar/english/notas/201406/2556-unified-support-of-g77china-summit-to-argentina-on-malvinas-and-vulture-funds.html|title=Unified support of G77+China Summit to Argentina on Malvinas and vulture funds|work=Telam|date=15 June 2014|access-date=31 July 2014|archive-url=https://web.archive.org/web/20140808044435/http://www.telam.com.ar/english/notas/201406/2556-unified-support-of-g77china-summit-to-argentina-on-malvinas-and-vulture-funds.html|archive-date=8 August 2014|dead-url=yes}}
26. ^¹{{cite web|url=http://en.mercopress.com/2014/06/26/us-council-of-foreign-affairs-supports-argentina-blasts-judge-griesa|title=US Council of Foreign Affairs supports Argentina, blasts Judge Griesa|work=MercoPress|date=26 June 2014}}
27. ^{{cite web|url=http://www.hm-treasury.gov.uk/speech_chex_100502.htm |archive-url=http://webarchive.nationalarchives.gov.uk/20100407194022/http://www.hm-treasury.gov.uk/speech_chex_100502.htm |dead-url=yes |archive-date=7 April 2010 |title=[ARCHIVED CONTENT] Speech by the Chancellor of the Exchequer, Gordon Brown, at the United Nations General Assembly Special Session on children, New York - HM Treasury |publisher=Webarchive.nationalarchives.gov.uk |accessdate=15 October 2013}}
28. ^{{cite news | url=https://www.theguardian.com/business/2010/apr/08/vulture-funds-developing-nations-debt | title=Bill to stop vulture funds using UK courts gets royal assent | work=The Guardian | date=8 April 2010 | accessdate=11 September 2014 | author=Wray, Richard}}
29. ^IndyBay International, UN Votes for Process to Enact Bankruptcy Treaty and Stop Vulture Funds, 9 September 2014
30. ^IndiaBlooms, UN rights expert welcomes new Assembly resolution on debt structuring, 11 September 2014
31. ^{{cite web|url=https://www.independent.ie/business/irish/loophole-allowing-vulture-funds-to-pay-almost-no-irish-profit-tax-shut-35026753.html|title=Loophole allowing Vulture Funds to pay almost no Irish profit tax shut|publisher=Irish Independent|date=16 September 2016}}
32. ^{{cite web|url=https://www.rte.ie/news/2016/0906/814471-revenue-nama-foi/|title=Government moves to amend Section 110 to close tax loophole used by vulture funds|publisher=RTE News|date=6 September 2016}}
33. ^{{cite web|url=https://www.irishtimes.com/business/commercial-property/how-do-vulture-funds-exploit-tax-loopholes-1.2832688?mode=sample&auth-failed=1&pw-origin=https%3A%2F%2Fwww.irishtimes.com%2Fbusiness%2Fcommercial-property%2Fhow-do-vulture-funds-exploit-tax-loopholes-1.2832688| title=How do vulture funds exploit tax loopholes?| publisher=Irish Times|date=17 October 2016}}
34. ^{{cite web|url=https://www.irishtimes.com/news/politics/oireachtas/loophole-lets-firms-earning-millions-pay-250-tax-d%C3%A1il-told-1.3145769|title=Loophole lets firms earning millions pay €250 tax, Dáil told|publisher=Irish Times|date=6 July 2016}}
35. ^{{cite web|url=http://www.thejournal.ie/vulture-funds-2-3176030-Jan2017/|title=Vulture funds pay just €8,000 in tax on €10 billion of assets|publisher=TheJournal.ie|date=8 January 2017}}
36. ^{{cite web|url=https://www.businesspost.ie/news/revealed-vulture-funds-paid-e20k-tax-assets-e20bn-375290|title=Revealed: How vulture funds paid €20k in tax on assets of €20bn|publisher=The Sunday Business Post|date=8 January 2017}}
37. ^{{cite web|url=https://www.irishtimes.com/business/commercial-property/cerberus-paid-1-900-tax-on-77m-project-eagle-profits-1.2885720?mode=sample&auth-failed=1&pw-origin=https%3A%2F%2Fwww.irishtimes.com%2Fbusiness%2Fcommercial-property%2Fcerberus-paid-1-900-tax-on-77m-project-eagle-profits-1.2885720|title=Cerberus paid €1,900 tax on €77m Project Eagle profits|publisher=Irish Times|date=29 November 2016}}
38. ^{{cite web|url=http://stephendonnelly.ie/wp-content/uploads/2016/10/Closing-Down-Section-110-for-Vulture-Funds.pdf | title=WHY LETTING SECTION 110 SPVS OPERATE IN THE IRISH DOMESTIC ECONOMY WILL DAMAGE OUR TAX BASE AND OUR REPUTATION AS A ‘LOW-TAX’ ECONOMY | publisher=Stephen Donnelly (Dail Submission)|date=September 2016}}
39. ^{{cite web|url=https://www.bbc.com/news/world-europe-37287182|title=Forget Apple: Ireland's other taxing issue|publisher=BBC News|date=6 September 2016}}
40. ^{{cite web|url=https://www.ft.com/content/619c9bde-74f3-11e6-bf48-b372cdb1043a|title=Ireland confronts another tax scandal closer to home|publisher=Financial Times|date=11 September 2016}}
41. ^{{cite web|url=https://www.independent.ie/business/irish/vultures-minimise-their-tax-bills-as-state-now-appears-to-have-delivered-the-sale-of-the-century-34981270.html|title='Vultures' minimise their tax bills - as State now appears to have delivered the sale of the century|publisher=Irish Independent|date=21 August 2016}}
42. ^{{cite web|url=http://www.davidmcwilliams.ie/vulture-funds-rub-salt-into-the-carcass-of-this-country/|title=Vulture funds rub salt into the carcass of this country|author=David McWilliams|publisher=The Sunday Business Post|date=1 August 2016}}
43. ^{{cite web|url=https://www.irishtimes.com/news/politics/oireachtas/vulture-funds-using-charities-to-avoid-paying-tax-says-donnelly-1.2722370?mode=sample&auth-failed=1&pw-origin=https%3A%2F%2Fwww.irishtimes.com%2Fnews%2Fpolitics%2Foireachtas%2Fvulture-funds-using-charities-to-avoid-paying-tax-says-donnelly-1.2722370|title=Vulture funds using charities to avoid paying tax, says Donnelly|publisher=Irish Times|date=14 July 2016}}
44. ^{{cite web|url=http://stephendonnelly.ie/why-would-a-so-called-vulture-fund-be-owned-by-a-childrens-charity/|title=Why would a Vulture Fund own a Children's Charity|publisher=Dail Eireann|date=24 November 2016}}
45. ^{{cite web|url= https://www.irishtimes.com/business/economy/tax-free-funds-once-favoured-by-vultures-fall-55bn-1.3546101|title=Tax-free funds once favoured by ‘vultures’ fall €55bn: Regulator attributes decline to the decision of funds to exit their so-called ‘section 110 status’|publisher=Irish Times|date=28 June 2018}}
46. ^{{cite web|url=https://www.irishtimes.com/news/politics/leo-varadkar-defends-vulture-funds-and-criticises-practices-of-irish-banks-1.3742477|title=Leo Varadkar defends ‘vulture funds’ and criticises practices of Irish banks|date=28 December 2018|author=Jennifer Bray|publisher=Irish Times|quote=}}