The other transition deal, stage set for surge of sovereign lawsuits and the man reshaping Treasury’s tools
Policy Preview: The UK’s other transition deal
On 14 December, the UK Government released its much-awaited Energy White Paper, laying out a simultaneous pledge to seek a net-zero basin for the UK Continental Shelf by 2050 and the pioneering of “a new British industry dedicated to (carbon) capture and return under the North Sea”. No mean feat by any measure, and the debates on how to achieve this remains very much under wraps. Yet, the paper did give the Government one deadline, agreeing a ‘North Sea Transition Deal’ in the first half of 2021.
A more bankable date arguably is 1 November 2021, when the UN Climate Change Conference in Glasgow kicks off – a key event that Prime Minister, Boris Johnson, believes can be used to recast his global image. Regardless of timing, however, what the White Paper and other recent government statements have made clear is that the transition – deal or no deal – will be painful.
One area of hope has been the Government’s spending plans, particularly the £1 billion fund Johnson announced last month for establishing carbon capture, utilisation, and storage (CCUS) facilities in four “SuperPlaces” (the Government’s term). However, only one will be in Scotland, the hub of the UK’s existing offshore energy industry. The outlook for support for legacy industries there is poor. The White Paper explicitly states that, “Government support is in the context of our net zero target”. The only policy directly tied to the offshore fields is Government’s commitment to seeking the North Sea Transition Deal include an end all routine flaring by 2030.
The sole opportunity it discusses in depth, is making the UK oilfield services sector a leader in the decommissioning of offshore facilities, positively spinning the expectation the UK will “become the largest decommissioning market globally over the next decade”. Greenfield development is not on the cards, and just two days prior to the paper’s launch Johnson laid out plans to end state export financing for new crude oil developments. Nonetheless, the paper claims to recognise that any North Sea Transition deal will be a ‘quid pro quo’ between industry and Government.
Previous Conservative governments have already cut oil and gas taxes, including effectively eliminating the petroleum revenue tax and slashing the supplementary charge (SR) in 2015 and 2016, but there is little room to go. Cutting the SR would be ineffective at stimulating investment in the current environment. The white paper indicates that only non-fiscal support will be on offer, and that this will only be for those transitioning heavily away from their previous area of business. Whether the Government can extract such a hefty quo for such a potentially meagre quid, remains to be seen, however.
Dollars and sense: stage set for surge of sovereign lawsuits
The difficulty of pursuing foreign governments in domestic courts has long been a major hindrance to developing hard currency capital markets for emerging markets. But the idea of sovereign immunity in such spats has been steadily eroded – while over the last eight years, ever-riskier countries have been able to borrow dollars, euros and pounds out of London and New York. Infamously recalcitrant Argentina even issued a 100-year dollar bond in 2017, only to default again earlier this year. Sovereign credit markets have nonetheless remained frothy, with investors scouring opportunities for any real yield as Western interest rates are expected to remain at or near zero.
Advances in the enforceability of funds owed by uncooperative government creditors are rare, but often quite meaningful. The intervention of the late Judge Thomas Griesa in a group of hedge funds attempts to secure payment from Argentina following a previous dispute kept Buenos Aires frozen out of Western markets for years.
Many bond investors argued that the ruling strengthened emerging country debt markets. However, for non-bond investors, the ability to recover funds from governments when financing agreements go awry is more limited. Such investment disputes are typically heard by arbitration panels rather than by New York State and UK judges, as is the case with most bond spats.
Yet a recent legal settlement involving Guatemala has likely shifted matters slightly in such investors’ favour. On 3 November Guatemala missed a payment on a US$700m bond. Although it transferred funds for the payment to its custodian, Bank of New York Mellon, the bank told bondholders it was barred from making payment due to a restraining notice issued by the New York State Supreme Court. The court issued the order in response to a request from Florida-based firm TECO Energy, which secured a US$35.5 million judgement in its favour from the World Bank’s arbitration institute.
Guatemala protested the court’s order but by 24 November agreed to pay TECO, although it has not exhausted all appeals, even with the spat in its eleventh year. Put simply, Guatemala wished to avoid any blot on its heretofore spotless bond payment record lest it affect its ability to tap capital markets in the future. The process TECO took was rather simple by the standards of sovereign litigation. It secured an order from a D.C. court upholding its arbitral victory, then registering that with New York State Supreme Court, resulting in the restraining notice.
While there are very few countries in default on their foreign bonds at present, Guatemala is one of many countries entangled in lengthy arbitration disputes. We expect the New York State Supreme Court will soon face a barrage of applications for restraining notices from investors hoping to mimic TECO’s success.
Power play: the man reshaping Treasury’s tools
US President-elect Joe Biden’s nomination of Adewale ‘Wally’ Adeyemo as Deputy Treasury Secretary signals the agency’s international role is only likely to grow more activist. Adeyemo has a low public profile, but is a stalwart of the Democratic elite. He most recently served as the first President of the Obama Foundation. Before that as Deputy Chief of Staff to Treasury Secretary, Jack Lew, before concurrently serving as Elizabeth Warren’s Chief of Staff at the Consumer Financial Protection Bureau and as Deputy National Security Advisor, holding the International Economics Brief. Towards the end of the Obama Administration, he also served as lead negotiator for the Trans-Pacific Partnership and as presidential representative to the G7 and G20.
Adeyemo is tasked with overseeing a review of sanctions policy and will oversee the elements of the US Treasury that relate to its role in international affairs. If confirmed by the Senate, Adeyemo will essentially be the Biden Administration’s point man for ‘geo-economic’ policies, or the use of economic policies to affect geopolitical goals.
Adeyemo’s experience and writings provide an indication of the course he is likely to take. In the negotiations for the TPP, it was Adeyemo who focused on the inclusion of currency manipulation rules, though this was largely abandoned even before US President, Donald Trump withdrew the US from the negotiations. He was a key figure in shaping sanctions both while serving under Lew at the Treasury and in liaising the effort to respond to Russia’s invasion of Ukraine in 2014 in his dealings with the G7 and G20.
Both in and out of the White House, he has also focused on China, and been an advocate of the argument that the biggest threat to Beijing’s rise is its still-maturing financial market. During his 2016 Senate confirmation hearing, he took a relatively soft line on China when asked about his view on the role of the Committee on Foreign Investment in the United States (CFIUS). But the Trump Administration has since thrown up far more barriers to Chinese investment, and it is unlikely the Biden Administration will reverse many of these, if any. Biden’s nominee for US Trade Representative, Katherine Tai, further supports the belief that the Biden Administration will continue to take a hard line on Chinese investment. Adeyemo will ultimately determine how the Treasury supports such policies.
Do not expect any major surprises from Adeyemo’s sanctions review. The new Administration is not going to reverse the Trump Administration’s acceleration of sanctions. It will instead adjust its focus, from unilaterally blacklisting individual firms to working with allies to target China’s relations with the global financial system. Policy will be slow to emerge, and measured, but Adeyemo’s focus will be on limiting China’s ability to become a lynchpin of the global financial system. Given Beijing’s expansive lending abroad in recent years, however, the effort will prove extremely challenging.
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