The Law of China’s Local Government Debt:: Local Government Financing Vehicles and Their Bonds

• Autores: Donald C. Clarke, Fang Lu
• Localización: American journal of comparative law, ISSN 0002-919X, Nº. 4, 2017, págs. 751-798
• Idioma: inglés
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• Resumen

  • Local government financing vehicles (LGFVs)—companies capitalized and owned by local government and established for the purpose of raising funds for municipal infrastructure construction—emerged in China in the 1980s as a response to the severe constraints on indebtedness by local governments themselves. The mushrooming of their number and indebtedness has sparked fears about their ability to repay the debt and the consequences of a default. In addition to taking on bank debt, a number of LGFVs have also issued bonds. While observers have questioned the value of collateral typically offered as security for the bonds, we know of no extensive analysis to date of the legal quality of the collateral: what exactly are the bondholders being promised, and what is the status of those promises in the Chinese legal system? This Article is an attempt to answer that question, using data from two hand-collected samples of LGFV bond prospectuses from different regions in China in two different time periods. We find that current collateralization practices vary a great deal across bond issues and have changed over time, and we discuss the legal and other problems attendant upon each type of backup. Remarkably, we find that, unlike our initial sample of bond issues, recent bond issues virtually all state explicitly in the prospectus that they carry no security. Thus, the popular image of local governments wildly overpromising with guarantees they are not legally empowered to give seems, at least as far as recent bond issues are concerned, to be wholly wrong. This in turn calls into question the figures commonly provided for local government debt, since they often include LGFV debt that local government is neither legally nor morally obligated to pay. To be sure, they may wish to pay creditors voluntarily, but it is misleading to label as “debt” soft obligations of this nature. Creditors who have tried to force local governments to make good on their guarantees have uniformly failed, at most receiving half of what they sought. The argument that local governments have some politically enforceable obligation to pay on their guarantees does not seem supported by the evidence.