With the legal world (and the rest of it) combating the Covid 19 and its effects, there is a development that is likely to substantially disrupt existing contracts and loan arrangements world over: LIBOR Retirement.
This blog discussed index rate indexing in commercial contracts about a decade back: (See, Interest Rate Indexing in Commercial Contracts: Part I) where we discussed about Prime Lending Rate. (PLR) Thereafter, several developments had taken place, the main development being replacement of the PLR with the concept of Base Rate (see, here). This post is about the most commonly used international index in commercial contracts: the London Inter-Bank Offered Rate or the LIBOR. Some mistakenly refer to LIBOR as London Inter-Bank Offer Rate; it is “Offered Rate” and not “Offer Rate”.
What then is LIBOR?
LIBOR is the average rate at which an empanelled bank “could obtain unsecured funding for a given period in a given currency.”
How is LIBOR Calculated?
The LIBOR is calculated vis-à-vis business days in London for five currencies with seven maturity periods ranging from overnight to 12 months, producing 35 rates each business day. It is calculated by the Waterfall methodology. For further details, see here.
Why is LIBOR Important?
About US$ 350 trillion worth contracts world-over are indexed to LIBOR. Even in India, LIBOR is commonly used in high value commercial transactions. Numerous Joint Operating Agreements between various Petroleum companies use the LIBOR as interest rate index; so do various international agreements.
What was the LIBOR Scandal About?
On 27 July 2012, The Financial Times published an op-ed piece by Douglas Keenan about LIBOR manipulation since 1991 (here). The bankers were understating or overstating the rates and profiting from trades. This was not the first time the credibility of the LIBOR was questioned. See, for instance, this paper titled “Does the LIBOR Reflect Banks’ Borrowing Costs” by Snide & Youle which argues:
The London Interbank Offered Rate (LIBOR) is a vital benchmark interest rate to which hundreds of trillions of dollars of financial contracts are tied. Recently observers have raised concerns that the Libor may not accurately reflect average bank borrowing costs, it's ostensible target. In this paper we provide two types of evidence that this is the case. We first show that bank quotes in the Libor survey are difficult to rationalize by observable cost measures, including a given bank's quotes in other currency panels. Our second type of evidence is based on a simple model of bank quote choices in the Libor survey. The model predicts that if banks have incentives to affect the rate (as opposed to simply reporting costs), we should see bunching of quotes around particular points and no such bunching in the absence of these incentives. We show that there is strong evidence of the predicted bunching behavior in the data. Finally, we present suggestive evidence that several banks have large portfolio exposures to the Libor and have recently profited from the rapid descent of the Libor. We conjecture that these exposures may be the source of misreporting incentives.”
The manipulation was done to the tune of billions of dollars.
Aftermath of the LIBOR Scandal
Subsequent news reports and investigations led to transfer of administration from the British Bankers' Association to the Intercontinental Exchange (ICE) Benchmark Administration (IBA) in 2014. The LIBOR rates are regulated by the UK Financial Conduct Authority (UKFCA). Fines were imposed on several banks which were involved in the manipulation. LIBOR was upgraded with new technology and surveillance tools to ensure credibility. See, the publication of IBA, Roadmap for ICE LIBOR (18.03.2016), for details of the reforms undertaken.
Retirement of the LIBOR
Notwithstanding the investigations and the reforms undertaken, the credibility of the LIBOR took a severe hit. On 26 July 2017, nearly five years after the Financial Times op-ed, the UKFCA stated that it was not sustainable to prolong the LIBOR beyond 2021 for the reason that the banks were not lending to each other as much as they had previously and that there were not enough transactions in certain currencies so as to make a good estimate of the rates. Thus began the steps to retire the LIBOR rate.
In April 2017, a working group, known as the Risk Free Rate Working Group in UK selected SONIA (Stering Over Night Index Average) as the replacement for the LIBOR. In the US, SOFR (Secured Overnight Financial Rate) is being used. There have been many alternatives proposed but all these options, including SONIA, are specific currency based. Further, the SONIA is an “overnight rate” while LIBOR used to, and still, publishes a three month rate as well. Both are not comparable. LIBOR will be maintained as a shadow benchmark rate till 2021.
Impact of COVID 19 and the LIBOR Transition
There has been a consistent view that the current plans of LIBOR Retirement are continued, it could create further destabilise the already unstable market (whose cause if the Covid 19 pandemic)(see, here, for instance).
LIBOR Retirement and Impact on International Transactions
LIBOR retirement would not have substantial impact on current transactions whose duration will end prior to LIBOR retirement (2021). It will affect future transactions and transactions whose duration would extend beyond 2021.
For instance, if an agreement, say, a Joint Operating Agreement, extending beyond, and up to 2025, uses LIBOR as the index rate for interest, what should the parties do?
It is rare that parties would have opted in their contracts for an alternative in case LIBOR is not applied. Therefore, there are two options left for them:
The first option is for the parties to renegotiate the contract and replace LIBOR with an alternative index rate. While choosing such a rate, the parties should take care to employ a credible index rate.
In case LIBOR is retired after 2021, the clause choosing LIBOR as the index rate would become void and the applicable interest rate will be dealt with by the applicable law. The rate of interest will be governed either by the law governing the arbitration or the substantive law of contract.
It is also theoretically possible that UK might adopt a legislative measure to provide that any reference to LIBOR in contracts would be interpreted to mean a new benchmark rate but such measures will create uncertainties, especially where the applicable law is not English law.
It is certain that the LIBOR retirement will affect trillions of dollars’ worth transactions. If the parties feel that LIBOR should no more be used, it is important for them to sit on the negotiating table to agree on the new index. If not, they run the risk of being bound by an interest rate index that could be highly unfavourable for them.