Sigrún Davíðsdóttir's Icelog

In a heavily staged appearance, prime minister Sigmundur Davíð Gunnlaugsson told Icelanders that ISK850bn, ca 45% of Icelandic GDP would fall into the state coffers, used to reduce the public debt, not for pet projects as earlier announced. With

The size of the problem to solve amounts to ISK1200bn, i.e. this is the sum of ISK, in the estates of the banks and Glacier bonds etc., that cannot be converted to FX and therefore cannot be paid out to creditors right now. What amounts to ISK850bn, or 39% of the assets of the estates at the end of this year will have to be paid off in a stability “contribution” if composition is negotiated and then this amount will be reduced – or tax and bankruptcy if no composition, to fulfil what the government calls “stability conditions.”

Glacier bond-holders and others will either be able to take part in auctions in autumn or buy long-term bonds. All of this is done under the auspice of a phrase repeated over and over again: “National interests takes precedence over interests of private parties.” Here is the English press release, carefully worded and not very clear.

After dealing with this amount, pension funds and ordinary Icelanders will have greater movement. Some quick thoughts on some of the topics du jour:

Size of the problem:

It is clear that the ISK300bn (actually ISK290bn) of the remains of the old overhang (see my last blog before this one on the barest essentials) cannot be paid out in FX – so this amount is clearly a part of the problem. But this is already being dealt with and that action will now continue: the CBI will hold auctions in autumn and those ISK-owners can also buy long-term bonds to come, either in ISK of FX.

That leaves ISK900bn – and this is a more questionable size: ISK500bn (ISK507bn exactly) is the number I have been posting earlier as the size of the problem because these are ISK assets. The remaining ISK400bn are FX assets in Iceland, i.e. assets in Iceland paid off in FX, which I would think was a more debatable size but this is how the government defines the size of the problem.

Stability “conditions” – contributions and tax:

So the problem that needs to be solved amounts to ISK1200 – and by reducing it by 39% the rest can be paid out. Or that seems to be the calculation.

The conditions, i.e. the numbers, are non-negotiable, as was repeated again and again. If the estates negotiate a composition by the end of the year they do not pay a tax but a “contribution”: in fact the same numbers, i.e. 39% or ISK850 but – as far as I understand this will be some reduction so the amount will be ISK500-600bn.

If they do not negotiate a composition the estates go into bankruptcy and pay the full amount: 39%.

This leaves some angles since the ISK850 is well above the ISK500bn but not quite the ISK900bn and well, the ISK300bn is outside of this equation. How these numbers were found I do not know but well, this is how the non-negotiable numbers look like.

The non-mentioned dates

Apart from foreign creditors smarting from controls there are the Icelanders: here, pension funds will be able to invest for ISK10bn a year, more or less what they have asked for, until 2020, unclear from when. And ordinary people will at some non-mentioned date be able to feel liberalisation on certain transactions.

What will creditors do?

Some creditors have already been negotiating with representatives of the government so the plan is indeed not quite out of the blue. According to a Glitnir announcement today, 25% of their creditors agree to this.

Kaupthing’s situation is different, less ISK assets, which might mean that Kaupthing creditors will be less happy to pay. However, no chance to tell until there is an announcement. Everyone might be happy to see an end to this and possible payout in sight.

Either this will all go well, composition beckon and much good will. Or not and the future is legal wrangling in multiple jurisdictions for a decade, like in Argentina. Today, the Icelandic government has taken the country on a journey along a very narrow road above a precipice. If all goes well, everyone reaches the final destination on the other side and there will be much rejoice.

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There are many misconceptions floating around regarding Iceland and capital controls. Here are the barest essentials:

Iceland introduced capital controls on November 29, seven weeks after the official collapse date October 2008. The reason was not money flowing out of banks, as in Cyprus but because foreigners, mostly those who had invested in Icelandic bonds, so called “Glacier bonds”, were converting their Icelandic funds into foreign currency, rapidly draining the none-too large currency reserves. At the time, these holdings amounted to 44% of GDP.

Over time, this original overhang of 44% of GDP has been reduced and now amounts to 16%. This is a process overseen by the Central Bank of Iceland, CBI, which has held auctions to match in- and outflows. The original overhang is further being worked on; the Central Bank of Iceland recently announced measures and more will come as part of a plan to lift capital controls.

The controls are on CAPITAL, meaning that capital, i.a. for investment can not be moved in our out of the country. This means that Iceland no longer adheres to the four freedoms of European Economic Area, EEA, i.e. freedom on goods, services, people and capital.

However, the controls are NOT on goods and services, meaning that money to pay for goods and services can move freely.

With time however another reserve of foreign-owned ISK has formed, i.e. ISK in the estates of the three failed banks. Since foreign creditors hold ca. 95% of the claims to these three estates the ISK assets of the estates are another pool of foreign-owned ISK, now ca. 25% of GDP. FX assets of Glitnir amount to 63% but the FX ratio in Kaupthing is 72%.**

These two pools of foreign-owned ISK holds the controls in place, which is why a plan needs to tackle both of them. As said earlier, the old overhang is already part of a process. What now needs to be tackled is the ISK pool within the estates of the three banks.

The simple and classic way to solve this kind of a problem (Iceland certainly is not the first country to face this problem) would be to negotiate with creditors on a haircut of the ISK assets in the estates. This is what the creditors have been hoping for and this is what the Icelandic government has not been willing to do.

The government’s reasoning has been that engaging with creditors was none of their business and could expose the government to legal risk. After all, the estates are of private companies, no relation to the state. However, the estates cannot be resolved unless it is clear how to deal with their ISK assets and since they cannot be taken out of the country the creditors cannot be paid out, i.e. the estates cannot be resolved. Which means that really, the government holds the threads, i.e. because it has put legislation in place regarding the estates and so, the government is already part of this equation.

Now it seems that the creditors will get some sort of an offer – maybe with a scope to negotiate, maybe only a take-it-or-leave-it offer. Remains to be seen until all the government’s cards are on the table, probably Monday afternoon.

What complicates matters is that the government seems to want not only to get a cut of the ISK assets but of the foreign assets as well. There is no balance-of-payment reason for taking foreign funds though the government refers to “stability tax.”

Further, the Icelandic capital controls are NOT a sovereign debt problem, such as lie at the core of the Argentinian dispute with creditors nor is it parallel to the Greek situation, another sovereign debt problem. And the Icelandic capital controls are not comparable to the Cypriot controls, which were put in place to keep money in the banks and prevent them from collapsing as funds flowed out.

*For data regarding the estates and capital controls see the latest CBI Financial Stability report.

**UPDATE: sorry, I wrote earlier that this was the ISK ratio – it is of course the FX ratio!

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The Icelandic government, or some parts of it, keep on its game of leaking key information always to the same journalist. Now it is the first big step towards lifting capital controls. As could be expected, this seems more about political posturing than a convincing solution. The coming measures may however provide creditors with their long awaited break to negotiate. If not, Iceland faces the same as Argentina: years of wrangling with ever more aggressive creditors – as the chief foreign adviser to Iceland should be able to inform the government on, from first hand experience.

In March, the Ministry of Finance published three links to regulation and documents regarding duty of silence of advisers, parliamentarians and civil servants who might be in possession of information related to the lifting of capital controls. This was part of a concerted effort to keep under wraps anything related to the lifting of the capital controls – until that day came when the government announced its plans. Whatever the source, DV’s journalist Hörður Ægisson, who over the last few years has been a diligent receiver of government information, published on Friday the outline of this plan, introduced at a cabinet meeting that day, most likely to be made public at a press conference on Monday. The question is if the Ministry of Finance will now look into this leak, considering the measures it took in March.

The Icelandic media landscape is a sorry sight: independent media is weak, the money is where the special interests are. This will no doubt be made clear yet again in the coming weeks as the details of the capital controls plan-to-come will be discussed and debated.

The estates will now have a few weeks to negotiate a composition agreement. If creditors do not accept the parameters the government has in mind the estates will be put into bankruptcy proceedings. So far, the estates and their creditors have been hoping for a composition, since creditors can then run the estates and resolve it when they deem best contrary to bankruptcy proceedings, which are time-limited. Both proceedings do though have the same aim: to maximize the creditors’ recovery.

The problem at the core of this is the foreign-owned ISK: assets worth ISK320bn in Glitnir, ISK160bn in Kaupthing, which means that the size of the ISK problem is different for the two banks – also making it respectively a different case for the two estates for find a solution. The Icelandic government seems to want to get hold of these ISK assets, remains to be seen how it goes. An expected stability tax of 40% can hardly be on priority claims, because that would then hit the UK claims, not the intention. It is difficult to see that the tax could be put in place sooner than 2017, which means no lifting of controls for Icelandic entities until after that, which means still years of capital controls. However, this is speculation until the plan is published.

Among themselves, the hardliners have been talking about getting creditors with their back to the wall facing a gun, i.e. with no options but to follow the government’s diktat. However, Iceland has a rule of law and creditors have legal options in Iceland and abroad. It remains to be seen, as the Icelandic saying goes, who laughs last.

The worrying thing for Iceland is if protracted legal dispute keeps going for years, hindering the lifting of the capital controls. The government seems to be taking the risk of just kicking the process off, in this way, then seeing where it leads to.

Lee Buchheit, advising the government on these issues as on Icesave earlier, brings with him experience, which hopefully will not be relevant. Cleary Gottlieb, the firm he represents, is adviser to the Argentinian government (not Buchheit though but his colleagues). At a conference in Buenos Aires recently, Buchheit foresaw that Argentina’s dispute with creditors might run for at least a decade. Probably not what Cleary envisaged for its stubborn Argentinian client – and hopefully not what is in spe for Iceland.

It certainly has to be kept in mind that Argentine’s problem is sovereign debt and a mismanaged restructuring whereas Iceland has a balance-of-payment problem vs estates of failed private banks. It would take quite a few wrong steps to put the Icelandic government in the situation where it would be directly in dispute with creditors, as is the Argentinian government. So far, no one has really believed the government could end there.

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Icelanders have been drip-fed with promises of an almost-there plan to lift capital controls, so far nothing but the question is if this plan is now about to be introduced. A plan will most likely need to be supported by a new Bill, on much-mentioned tax, either exit tax or recently mentioned stability tax, which means it should first be presented to the government, which would mean either any Tue. or Fri., the two days the government holds its regular meetings.

However, this government does not always follow the normal route, remains to be seen if a plan will emerge at all, how it will be presented and, most of all, what it will contain.

There is indeed still a plan in place, from 2011, as I have pointed out before but what is needed is i.a. how to deal with ISK assets in the estates of the failed banks. A tax on the estates will not solve the underlying issue of the foreign-owned ISK, which are holding the controls in place. But it will fulfill promises made by prime minister Sigmundur Davíð Gunnlaugsson, at least if it will not end in legal wrangling in various jurisdictions and hinder the easing of the controls.

As I have often outlined earlier, it seems that Gunnlaugsson and minister of finance Bjarni Benediktsson have not been looking into the same direction for a solution: Gunnlaugsson has underlined the moral necessity of the banks paying for the harm caused and that there would, unavoidably, be a windfall for the state; Benediktsson has stressed the need for an orderly process that should take as little time as possible and not incur a legal risk.

Given that the prime minister’s party now hovers at 8% in the opinion polls, after harvesting 25% in the elections two years ago the question is whether he will be prone to panic politics, i.e. instigating a conflict with creditors he would try to orchestrate as a victory. After all, he has very little to lose – the party can hardly sink further. It is always a dangerous situation when politicians have little to lose and much to gain. Close to him is ex-PM and ex-governor of the CBI Davíð Oddsson, who is adamant that his legacy especially of his time at the CBI is without a blemish. Oddsson has often shown that he prefers a hard line against creditors, no matter what.

As I have said time and again (after all, most things have been said regarding the capital controls, now it is just waiting to see what there is to come…) Benediktsson’s leadership will be seriously tested by the big Plan to-come. Although leading the same party Oddsson led, the Independence Party, Benediktsson seems further from Oddsson on these issues than the PM. If Gunnlaugsson’s – and Oddsson’s – view prevails it means that Benediktsson is literally powerless in this government. After all, capital controls are his remit, not the PM’s and he would lose all credibility as a leader in his sphere.

The topic of capital controls is muddled in the debate. Very few seem to remember that the problem, which holds them in place is foreign-owned ISK, the old over-hang (now much reduced and already being worked on by the CBI; further steps awaited) and the ISK in the estates of the old banks. Any action that does not solve this problem is no solution at all. Taxing the estates clearly does not solve the problem – after all, this is not a problem of debt but of currency shortage, not enough to convert the foreign-owned ISK. Iceland does not lack funds but funds – the estates are failed private companies, unconnected to the state – and the easiest way would be a haircut of some sort.

The effect for Iceland of a plan will not only be on the economy but very much a political effect. If Benediktsson loses this battle his party – or at least the more sensible part of it – must ask itself if the Independence party is only in government to promote policies of the coalition party. Certainly a role, which would have been unthinkable in earlier times, for example at the time Oddsson was the party leader and PM.

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Austria was one of the eleven founding members of the Eurozone in January 1999 but the Austrians never quite put their money where their mouth was: Austria is the only euro country where households flocked to take out foreign currency loans. About three quarters of these loans are coupled with repayment vehicles. Unfortunately, the Austrian authorities have known for more than a decade that the repayment vehicles add risk to the already risky FX loans: the crunch time for domestic foreign currency loans will be in 2019 and later when 80% of these loans mature. – This is the saga of authorities that knew full well of the risks and yet allowed the banks to turn households into carry traders.

Foreign currency loans are “… not suitable as a mass market product” – This was the lesson that the Austrian Finance Market Authority, FMA, had already in 2008 drawn from the extensive foreign currency, FX, lending to Austrian households; only in 2013 did the FMA state it so clearly. Long before these risky loans shot up by 10-15%, following the dramatic Swiss decap from the euro in January 2015, the risks were clear to the authorities.

From 1995, Austrian banks had turned a finance product, intended only for specialised investments, into an everyman mass-market product. Contrary to other founding euro countries, the euro did not dampen the popularity of the FX loans, mostly in Swiss francs, CHF. Austrian banks expanded into the neighbouring emerging markets, offering the same product there. Consequently, Austrian banks have turned households at home and abroad into carry traders.

From the beginning, the FMA and later also the Austrian Central Bank, ÖNB had been warning the fast-growing financial sector, with kind words and kid-gloves, against FX loans to unhedged households. The warnings were ignored: the banks raked in fees, FX lending kept rising until it topped (on unadjusted basis) in 2010, not in 2008 when the FMA claimed it banned FX lending.

FX loans in Austria are declining: in 2008 270.000 households had FX loans, 150.000 in March 2015. In February 2015 the FX loans to households amounted to €26bn, ca 18% of household loans. With maturity period of ten to 25 years serious legacy issues remain.

Further, three quarters of these loans, ca. €19.5bn, are coupled with repayment vehicle, sold as a safety guarantee to pay up the loans at maturity. Ironically, they now risk doing just the opposite: according to FMA the shortfall by the end of 2012 (the latest available figure) stood at €5.3bn. An FMA 2013 regulation to diminish this risk will only be tested when the attached FX loans mature: 80% of them are set to mature in or after 2019.

Added to the double risk of the domestic FX loans and the repayment vehicles are FX loans issued by small and medium-sized Austrian banks in the Central European and South-Eastern European, CESEE (the topic of the next article in this series). All this risk is susceptible to multiple shocks, as the IMF underlined as late as January 2014: “Exchange rate volatility (e.g., CHF) or asset price declines associated to repayment vehicles loans (RPVs) could increase credit risk due to the legacy of banks’ FCLs to Austrian households.”

Consequently, as stated by the ÖNB in April this year, seven years after the 2008 crisis FX loans “continue to constitute a risk for households and for the stability of the Austrian financial system” – a risk well and clear in sight since Austria became one of the founding euro countries in 1999. There are still significant challenges ahead for Austrian Banks. Nonperforming loans are rising – Austrian banks are above the European average, very much due to Austrian banks’ operations in CESEE.

Add to all of this the Hypo Alpe Adria scandals and the Corinthia guarantees and the Austrian hills not alive with the sound of music but groaning with well-founded worries, to a great extent because Austrian authorities did not react on their early fears but allowed banks to continue the risky project of turning households into carry traders – yet another lesson that soft-touch regulation does work well for banks but not for society.

Kid-gloves against a mighty and powerful banking (and insurance) sector

There are over 800 banks in Austria, but the three largest, Erste, Raiffeisen and UniCredit Bank Austria, “account for almost half of total bank assets” according to the IMF, which in 2013 pointed out that the financial system, “dominated by a large banking sector,” faces “significant structural challenges, especially the smaller banks.”

Six Austrian banks, three of which are Raiffeisenbanks in different parts of Austria, were included in the ECB Asset Quality Review in October 2014. As expected, the Österreichische Volksbank, partially nationalised, did not pass but the others did. However, the Austrian banks require an additional loan provisioning of €3bn.

The size of the banking sector as a ratio of GDP has been rising, at 350% by mid 2014. The expansion of small Austrian banks in CESEE, where non-covered non-performing loans in these banks’ operations are high, is a serious worry. As is the sector’s low profitability, seen as a long-term structural risk, as is a domestic market dominated by a few big banks and large CESEE exposures.

Theoretically, unhedged borrowers alone bear the risk of FX loans but in reality the risk can eventually burden the banks if the loans turn into non-performing loans en masse, which make these loans significant in terms of financial stability as the IMF has been warning about for years.

Intriguingly, already in 2013 the IMF pointed out that Austria needed to put in place a special bank resolution scheme and should not await the formal adoption of the EU Directive on bank recovery and resolution. It should also pre-empt the coming EU Deposit Guarantee Scheme Directive and the Basel Committee on Banking Supervision (BCBS) Core Principles for Effective Deposit Insurance Schemes as minimum standards. However, the progress in this direction has been slow.

Austrian FX loans: from a specialised product to everyman mortgage

In the mid 1990s Austrian households cultivated an appetite for FX loans, unknowing that they were indeed turning into carry traders without the necessary sophistication and knowledge. The trend started in the 1980s in Vorarlberg, the Bundesland in Western Austria where many commute for work to neighbouring Switzerland and Liechtenstein.

At the end of the 1980s 5% of household loans in Vorarlberg were in FX, compared to the Austrian average of 0.2%. From 1995 there was a veritable Austrian boom in FX lending, with borrowers preferring the CHF, and to a lesser degree, the Japanese yen, to the Austrian Schilling. This trend only got stronger as the interest rate differential between these currencies and the Schilling widened.

Quite remarkably, the introduction of the euro January 1 1999 did not dampen the surge: the Austrians kept their faith to the currency of their Swiss neighbours. At the end of 1995 FX loans to individuals amounted to 1.5% of total lending; in 2000 this had risen to 20%. The popularity of the FX loans was clear: in December 2000 82% of household loans issued that month were in FX. Even though the CHF appreciated by over 6% in 2000 it did not affect the popularity of the FX loans. The FX selling machine was well-oiled.

Since household debt in Austria was fairly low, Austria being among the lower middle group of countries as to the debt-to-equity ratio, the ÖNB was relatively relaxed about these changes – but not quite: already in its first Financial Stability report, published in 2001, it underlined the risk of FX lending and borrowing.

FX loans issuance to Austrian households continued to increase. In 2004, 12% of households reported a mortgage in FX. The trend topped in 2006, after which the demand fell. By the end of 2007 the FX loans, measured in euro, amounted to €32bn, i.e. almost 30% of the volume of loans issued. Here it is interesting to keep in mind that with the exception of few months annual growth rates of FX loans to households have always exceeded the growth of household loans in the domestic currency, until late 2006.

FX loans in Austria are declining: 2008 270.000 households had FX loans, 150.000 in March 2015 but the size of the problem is by no means trivial: in December 2014 “18.9% of the total volume of loans extended to Austrian households was still denominated in foreign currency;” in February 2015 the FX loans to households amounted to €26bn.

There are also indications that because the FX loans seemed cheaper than the euro loans households tended to borrow more. The ÖBN has pointed out that the growth in household borrowing in 2003 to 2004 “can to a large part be attributed to foreign currency loans.” As I have mentioned earlier, the fact that FX loans seem cheaper than loans in the domestic currency, lends them the characteristics of sub-prime lending, i.e. leads to households borrowing more than sensible, thus yet fuelling the FX risk.

This FX lending boom did not only signify borrowers’ taste for carry trade but also that financial products, earlier only on offer for large-scale investments had now become an everyman product, as was ominously pointed out in the first ÖBN Financial Stability report 2001.

Why did (only) Austrians turn into a nation of carry traders?

Nowhere in Europe were FX loans to households as popular as in Austria, as the ÖBN noted in its first Financial Stability report in 2001. At the introduction of the euro, FX loans had been popular in various European countries. Around 2000 Austria stood out but so did Germany where FX loans were being issued at the same rate as in Austria. But only in Austria did the trend continue.

The question is why Austrian households favoured FX over euro loans.

A study in the December 2008 Financial Stability report sketched a profile of Austrian household borrowers, based on an Austrian 2004 wealth survey of 2556 households. The outcome suggested “that risk-loving, high-income, and married households are more likely to take out a housing loan in a foreign currency than other households. Housing loans as such are, moreover, most likely taken out by high-income households. These findings may partially assuage policy concerns about household default risk on foreign currency housing loans.” – This profile only tells who was most likely to choose FX loans over domestic loans, not why this group in Austria differed from the same social groups in the other euro countries.

As I have explained earlier, FX loans often characterise emerging markets, as in the CESEE, where Austrian banks have indeed promoted them, or in Asia in the 1980s and the 1990s. FX tend to gain ground in newly liberalised markets, as in Australia in the 1980s. Then there is Iceland where the banks, fully privatised in 2003, expanding and borrowing abroad, hedged themselves by issuing FX loans, also to households.

FX loans are often an indication of instability where people try to bypass a fickle domestic currency, the apparition of bad policies and feeble politicians. In addition, there are interest rate margin, which may look tempting, if one ignores the fact that currencies rarely have a stable period of more than a few years, making them risky as an index for mortgages, normally runnig for ten to twenty years or more.

None of this is particularly fitting for Austria or any more fitting for Austria than the other mature European economies.

As always when FX loans turn into a problem, the banks blame the borrowers for demanding these highly risky products. If this were the case it could only happen because banks do not fulfil their duty of care, of fully informing the clients of the risks involved. As an Australian banker summed up the lessons of the Australian FX lending spree in the 1980s: “…nobody in their right mind, if they had done a proper analysis of what could happen, would have gone ahead with it (i.e. FX loans).”

According the ÖNB’s December 2008 Financial Stability report banks did claim there was so much demand for these loans that in order to be competitive they had to issue FX loans. But Peter Kolba from the Austrian Consumers Association, Verein für Konsumentinformation, VKI, disagrees that the demand came from the customers: in an information video he claims the loans were very much peddled by the banks, which reaped high fees from these loans.

It is indeed interesting that from 1995 to 2000 Austrian banks experienced a veritable fee surge of 75%, part of which the ÖNB attributed to the increase in FX lending. For the banks there was an extra sugar coating on the increased FX lending profits: “the interest rate and exchange rate risks are borne largely by the borrowers. However, the risk of default by debtors has increased the risk potential of such operations” – the possibility of a default did of course expose the banks to a growing FX risk.

There is one aspect of the Austrian FX lending, which seems to have greatly underpinned their popularity: the loans were widely sold by agents, paid directly for each loan, thus with no incentive to inform clients faithfully about the risk. In addition, the same agents often sold the repayment vehicles, thus reaping profits twice from the same customer.

As summed up by ÖNB’s spokesman Christian Gutlederer (in an e-mail to me) there were specific Austrian structural weaknesses: “Presumably, the interplay of the role of financial service providers, extensive media coverage and rational herding behaviour would offer the most plausible explanation for the popularity of such products in Austria. Tax incentives provided one additional layer: payments of life insurance premiums (the most important kind of repayment vehicle loans) and, in some cases, interest payments for mortgages can be deducted from the tax base.”

The above caused an Austrian FX loans surge, contrary to other euro countries. In addition, the fact that the authorities were so timid in clamping down on the risky behaviour of the banks is worth keeping in mind: the lesson for policy makers is to act decisively on their fears.

Lessons of domestic FX loans: “not suitable as mass product”

Being so aware of the risk the ÖNB and the FMA, have over the years taken various measures to mitigate the risk stemming from the FX lending, though timidly for the first many years.

Already in 2003 the FMA issued a set of so-called “Minimum Standards” in FX lending to households but this did little to dampen rise in FX loans to Austrian households. In 2006, the FMA and the ÖNB jointly published a brochure for those considering FX loans, warning of the risk involved. At the time, businesses were less inclined to take out FX loans: whether the brochure or something else, there was a decline in FX loans 2006 but only temporary.

Andreas Ittner, ÖBN’s Director of Financial Institutions and Markets worried at the time that “private borrowers in particular are unaware of all of the risks and consequences.” FMA Executive Director Kurt Pribil found it particularly worrying that “people seem to be unaware of the cumulative risks involved and of the implications this might have, especially if you consider the length of the financing.”

Though contradicted by the rise in FX lending to households, the two officials emphasised that restrictions put in place in 2003 were working. There was though a clear unease at the state of affairs: “At the end of the day, any foreign currency loan is nothing more than currency speculation.”

On October 10 2008, during turbulent times on the financial markets, the FMA “strongly recommended” that banks to stop issuing FX loans to households. The FMA has since repeatedly claimed FX loans were “banned” in 2008 but that was not the wording used at the time. Funnily enough there is no press release in the ÖBN web archive from this date related to the October restrictions. In its 2014 Annual Report it talks of the autumn 2008 measures “de facto ban” on issuance of new FX loans to households.

According to the IMF, in 2013, the measures “introduced in late 2008 to better monitor and contain FC liquidity risks, by encouraging banks to diversify FC funding sources across counterparties and instruments, and lengthen FC funding tenors.”– There was no ban, not even a “de facto ban.”

FMA’s 2003 “Minimum Standards” for FX lending were revised in 2010. By then, the FMA and the ÖNB had been warning about the FX loans for a decade or longer. In spite of the “non-ban” 2008 measures, it was only in 2010 that Austrian banks “made a commitment to stop extending foreign currency loans associated with high levels of risk, in line with supervisory guidance provided to this effect (“guiding principles”).” In January 2013 the FMA revised the “Minimum Standards,” also taking into account recommendations by the European Systemic Risk Board, ESRB.

All of these warnings are in tip-toeing and kid-glove central bank and regulator speak: there is no doubt that behind these Delphic utterances there were real concern. All along, Austrian authorities have underlined that these standards were not rules and regulations, more a kind advice to the banks to act more sensibly.

The IMF has over the years voiced concern in a much stronger tone and language than the Austrian authorities. As late as January 2014 the IMF underlined the possibility of multiple shock: “Exchange rate volatility (e.g., CHF) or asset price declines associated to repayment vehicles loans (RPVs) could increase credit risk due to the legacy of banks’ FCLs to Austrian households.”

It was not until 2013, five years after the crisis hit and, counting from 2000 when the FX lending had soared, numerous currency fluctuations later that the FMA finally had a clearly worded lesson for the banks and their household FX borrowers: “foreign currency loans to private consumers are not suitable as a mass product…”

Another dimension of FX lending risks: other shocks accompany exchange volatility

In the FMA’s latest regular FX lending overview, from December 2014 it points out that following initiatives to limit the risk on outstanding FX loans, as well as what it there (as elsewhere) calls ban in 2008 on new loans, the volume of borrowings has been falling: outstanding FX loans to private individuals, as a share of all outstanding loans end of September 20014 is now at 19.1%; 95% of these loans are denominated in CHF, the rest mostly in Japanese yen.

Correctly stated, the FX lending is declining but the devilish nature of FX loans is that the principal is affected by chancing rates of the currency the loans are linked to. The number of loans issued may have been declining – the ÖNB points out FX loans to Austrian borrowers have indeed been declining since autumn 2008 but the real decline in the FX lending has been “offset by the appreciation of the Swiss franc.” As seen from ÖNB data the loans did indeed not top until 2010 (see Table A11).

The ceiling set by the Swiss National Bank, SNB, in late summer 2011 helped stabilise the exchange rate – but this stability ended spectacularly in January this year.

What further adds to the risk of FX lending is that it is easy to envisage a situation where banks and borrowers are not hit only by a single shock wave stemming from currency fluctuations but by other simultaneous shocks, such as a slump in asset prices; again something that the ÖNB has underlined, i.a. as early as in the bank’s Financial Stability report April 2003.

If several private borrowers would become insolvent due to rising exchange rates, “the simultaneous and complete realization of the above-mentioned collateral would considerably dampen the price to be achieved.” Thus, banks with a high percentage of foreign currency loans incur a concentration risk, which would endanger financial stability in the region, if the collaterals needed to be sold. It is an extra risk that the banks with the highest share of FX lending were small and medium-sized regional banks in Western Austria; in some cases up to 50% of total assets were FX loans.

Repayment vehicles = no guarantee but an even greater risk

The fact that the majority of Austrian domestic FX loans comes with a repayment vehicle has often been cited as a safety net for FX borrowers and consequently for the banks. This is however a false safety and both the ÖNB and the FMA, as well as foreign observers such as the IMF have, again for a long time, understood this risk.

In order to gauge the risk it is necessary to understand the structure of the FX loans: almost 80% of the FX loans are balloon loans, i.e. the full principal is repaid on maturity: interest rates, according to the LIBOR of the currency and repriced every three months, are paid monthly. The FX loans can normally be switched to euro (or any other currency) but at a fee; another aspect in favour of the bank is a forced conversion clause, allowing the bank to convert the loan into a euro loan without the borrower’s consent.

The repayment vehicle is usually a life insurance contract or an investment in mutual fund, paid into the scheme in monthly instalments. The majority of those who have taken out the FX loans coupled with repayment vehicle have done so via an agent, clearly an added risk as mentioned above.

Consequently, for borrowers there is a twofold risk attached to FX loans with repayment vehicle: firstly, there is the currency risk related to the loans themselves; second there is the real risk of a shortfall in the repayment vehicle, clearly born out by the volatility in 2008. As pointed out in the ÖNB’s Financial Stability October 2008 report the repayment vehicles “in addition to other risks, are exposed to exchange rate risk.”

The ÖNB had however been aware of the repayment vehicle risk much earlier than 2008. Already in its Financial Stability October 2002 report, the risk was spelled out very clearly: the repayment vehicles “usually do not serve to hedge against exchange rate or interest rate risk; rather, they add risk to the entire borrowing scheme.”

If the repayment vehicle does not perform well enough to cover the principal of the FX loan one may try to switch to other investments but at a cost. “If the performance of these repayment vehicles cannot keep up with the assumptions used in the provider’s model calculations, the borrower, who is already exposed to high exchange rate and interest rate risk, becomes exposed to even greater risk.”

In short: on maturity, there is high risk that the repayment investment will not cover the loan, i.e. the alleged safety net has a hole in it. In the present environment of low interest rates it is a struggle to avoid this gap.

Following a 2011 survey there was already a growing shortfall in sight, according to an FMA statement in March 2012. At the time, FX loans with repayment vehicle amounted to €28.6bn. By the end of 2008 the shortfall had been €4.5bn, or 14% of the loan volume. End of 2011 the shortfall in cover amounted to ca. €5.3bn, at the time 18% of the outstanding loans; the increase between 2011 and 2012 had been €800m, an increase in the shortfall by 22%.

In 2013 the FMA put in place regulation, which obliges the insurance companies to create provisions from their own profits should these repayment vehicles fail. This will however only be tested when the attached FX loans mature: 80% of them are set to mature in or after 2019; a “significant redemption risks to Austrian banks” according to the ÖNB in December 2014.

The ÖNB and the FMA are indeed paying extra attention to the interplay between FX loans and the repayment vehicles: the two authorities are conducting a survey in the first quarter of 2015 to uncover the risks posed by these two risk factors, the FX loans and the repayment vehicles. Somewhat wearily, the ÖNB points out that the two authorities have been warning against these loans for more than ten years. Though reined in and declining FX loans still “continue to constitute a risk for households and for the stability of the Austrian financial system.”

Austrian consumer action in sight

Following the Swiss decap in January the Austrian Consumer Association, VKI, has taken action to inform FX borrowers on their options.

The Austrian FX loan agreements normally have a “stop-loss” clause, seemingly a protection for the borrower to limit sudden losses because of currency appreciation. Sadly, following the Swiss decap in January many FX borrowers have discovered that this clause did not limit their losses. These clauses have been the cause of many queries made at the VKI. The FMA, claiming it can not act on this, has advised borrowers to bring the matter to the attention of the banks, but gave the end of February 2015 as a deadline; a remarkably short time.

VKI is also advising FX borrowers to try to negotiate with the banks regarding coast of converting CHF into euro loans or loss incurred from the FX loans compared to euro loan, arguing that these costs should not be carried by the borrowers alone but shared with the bank.

As elsewhere, the Austrian banks have taken fees for administering the FX loans, typically 1 to 2%, as if they had incurred costs by going into the market to buy CHF in connection to the FX loans. However, as elsewhere, the Austrian loans are CHF indexed, not actual lending in FX. In the Árpad Kásler case the European Court of Justice, ECJ, ruled that this cost was illegal since there were no actual services carried out. Consequently, this might be of help to Austrian FX borrowers; also that part of the ruling, which obliges banks to inform clients properly.

If these actions take off this could mean a considerable hit for the banks. After all, 150.000 households have FX loans of €25bn in total, not a trivial sum.

Given the fact that so many of these loans and the repayment vehicles were sold through agents their responsibility for informing clients has to be tested at some point: it is inconceivable that important intermediaries between banks and their clients bear no responsibility at all for the products they arrange to be sold.

As in other countries, Austrian FX borrowers have already been heading for the courts. So far, the cases are few but have at least in some cases been positive for the borrowers.

The question is whether Austrian politicians will be firmly on the side of the banks or if they will come to the aid of FX borrowers. But there really is good reason for political attention, given that the problem certainly is still lingering. It should also be of political concern that the ÖNB and the FMA chose to treat banks with kid-gloves lightly – though full well knowing that the products being sold to consumers were highly explosive and hugely risky both to the borrowers and the country.

* This is the second article in a series on FX lending in Europe: the unobserved threat to FX unhedged borrowers – and European banks.The next article will be on Austrian banks and FX lending abroad. The series is cross-posted on Fistful of euros.

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Will they or won’t they? That is the question regarding how, if and when the Icelandic government will take the long-announced decisive action on easing the capital controls.

The news keeps seeping out in Iceland is that the Icelandic government is just about to present a plan for lifting capital controls. That would then, most likely and uncontroversially, entail the second part of the CBI action from earlier, when investment opportunities for offshore ISK were reined in. Seems, as I mentioned in a blog on earlier CBI action, that this would then be bonds, most likely in FX, with long maturity.

The main interest for foreign creditors will be what measures are chosen regarding the estates of the failed banks, most notably what form of levy or tax will be chosen. Stability tax is the latest jargon to circulate whereas minister of finance Bjarni Benediktsson mentioned an ISK haircut in his March report on capital controls progress.

As often mentioned on Icelog there is “sky and ocean between” (this is an “Icelandicism”) cutting foreign-owned ISK assets or targeting the entire assets – the former is a classic way under similar circumstances, the latter would be an all-Icelandic solution.

What the government is really struggling with here is how to tax only foreigners without touching Icelandic entities. If such discrimination were simple it would have been done long ago but it clearly is not: a whiff of discrimination would unleash the litigation hounds. This is the main issue and also the main reason for it taking so looong to come up with a solution: the government has, I am told although this is staunchly denied, been looking for a solution that does not exist. And that is famously very time-consuming – a grand “sprecatura” as the Italians would say.

As before, the Icelandic economy is slowly being starved of oxygen – and as before, qui vivra verra.

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The latest is… that there is nothing much to report on how the Icelandic government is progressing on lifting the capital controls. For the best part of last year Bjarni Benediktsson minister of finance said there would be a holistic plan by the end of the year; none was seen. Now prime minister Sigmundur Davíð Gunnlaugsson has said action will be taken before the end of this parliament, i.e. by the end of May. However, in addition to capital controls the government is dealing with strikes and contentious issues like fishing quotas.

Bankruptcy route, exit tax and stability tax – these have been the ideas flickering in the Icelandic media and among those following the arduous course of lifting capital controls in Iceland. And as spelled out earlier, both the Central Bank of Iceland, CBI, the International Monetary Fund, IMF and minister of finance Bjarni Benediktsson have been advocating for an orderly consensual solution, which should include the assets for foreign creditors.

After so many unfulfilled announcements by the government leaders it seems difficult to believe that this government is ever going to take any decisive steps towards lifting capital controls. Indeed some long time observers of Icelandic politics have repeatedly told me that this government will take no such steps. But lifting now seems the plan, according to recent announcement by prime minister Sigmundur Davíð Gunnlaugsson, who has otherwise been quiet on the controls for some while, after big words earlier on the money that could be made.

The circle to square: levying foreigners but not discriminating

According to Icelandic media a Bill of law has been drafted and is just waiting to be presented to parliament. Such a draft has existed for a long time, I believe, but has not been presented because the two government leaders do not agree on fundamental issues. Though firmly denied by the two leaders I hear from all directions that this disagreement has been there from the beginning. Whether they are now any closer to a common solution remains to be seen.

Part of the impossibility of deciding on a plan is the strife to slam a levy on creditors without hitting Icelandic pension funds, other Icelandic entities and last but not least the UK Treasury, which holds claims stemming from Icesave. Whatever the measure it has to, or should, fulfill some legal parameters such as not discriminating between domestic and foreign entities. This has proven to be the real hindrance, as far as I understand.

At the behest of Glitnir Winding up Board, two Icelandic academics recently published a report outlining possible solutions. It has been clear for a long time that there are sensible solutions to be found. Unfortunately, the sensible solutions to not include a massive transfer of money to the state, which seems to be what some are seeking. I have earlier pointed out that looking for a solution, which does not exist, might take a long time. The feeling is that a lot of time has been wasted on exactly that though Benediktsson staunchly denied this following the new report.

Political storm and strange behaviour

One reason some observers remain doubtful on any action regarding capital controls is that the government is struggling with many thorny issues. Like wood fires in dry weather strikes are springing up all over Iceland and in different sectors. And as so often with this government there seems remarkable bewilderment as to how to proceed. Yet, the strikes were of course announced months ago – already in autumn it was clear what was coming.

In addition there are several politically seriously divisive topics up in Alþingi, the Icelandic Parliament. Just today, proposals for new power plants was introduced, with some unexpected additions, which caused a hefty debate and angry words from the opposition. Recently presented changes to fishery management and quotas, mackerel quotas in particular, led the opposition to accuse the government of handing out Icelandic resources to the few against the general interest of all Icelanders. The government is introducing a new housing Bill, presented by a Progressive minister, but only part of it has been presented so far, allegedly because Benediktsson opposes his coalition partner’s plan on how to finance it.

The prime minister’s behaviour keeps drawing attention. It was noted that he did not show up at the CBI’s annual meeting earlier this year. And he made the disappearing act during a recent Alþingi question time: he showed up at the beginning only to leave unannounced before it ended, much to the anger of opposition MPs who feel they rarely get to debate with him in person.

The rising cost to Iceland of inaction

In a nut shell this is the political situation in Iceland: topics that touch a raw political nerve, such as power plants and fishing quotas, strikes, a prime minister whose erratic behaviour is much noted and an alleged disagreement between the two government leaders on the capital controls and other key issues. Under these circumstances it remains to be seen if this long awaited plan on lifting capital controls, i.e. how to deal with the estates of the failed banks, will indeed see the light of day any time soon.

While all of this is going on creditors can just quietly sell their claims. In general, as the price of claims goes down the litigation appetite goes up; so far this market is still thin and no great changes visible. As oft repeated here on Icelog the sad thing is that yes, there are indeed viable solutions to lifting the capital controls. While politicians postpone viable solutions Iceland is living with the unavoidably rising cost of capital controls: there is a cost to doing nothing.

*For earlier Icelogs on capital controls see here. I don’t think there is any angle of this issue I haven’t covered earlier so for those who are looking for particular issues do use the “search” option.

*UPDATE – forgot to mention: for the latests data on economy and the estates of the failed banks relevant for capital controls see the CBI’s latest Financial Stability report, published  in April, especially the governor’s introduction and chapter VII.

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The ongoing case against nine Kaupthing managers and staff gives an intriguing insight into the bank’s extensive buying and selling of own shares, which the Office of the Special Prosecutor claims involves market manipulation and breach of fiduciary duty. Witness statements by foreign employees have been especially informative.

In a witness statement today Jan Petter Sissener former head of Kaupthing Norway said he had not had faith in Kaupthing’s annual accounts for 2007. Irked by the bank’s reporting on buying and selling of own shares he asked a law firm in London to look at the bank’s activities from the point of view of international business ethics.

The firm concluded the bank’s behavior was entirely unacceptable. Sissener said that following heated conversation with Kaupthing’s CEO Hreiðar Már Sigurðsson, one of the nine charged now, and the bank’s chief legal officer Helgi Sigurðsson these trades had been stopped for a while but then later resumed again. Sissener left Kaupthing in February 2008 because of these differences of opinion regarding Kaupthing’s reporting on proprietary trading in own shares, which the bank funded to a large extent as shown extensively in the SIC report in 2010.

Another foreign employee, Nick Holton, an international compliance officer with Kaupthing, resigned at the end of July 2008, following a disagreement with senior management. Holton wanted to make some changes but failed to secure support. He said he had had serious doubts about what was going on and wondered at the time whether it was due to negligence or lack of organization. In addition, he worried about his own reputation after working for Kaupthing. He said he had pointed out to the chief legal officer that trading in own shares was illegal in many countries. Holton said it had come as a surprise when he realized that Kaupthing owned 4% of own shares but he did not know at the time that Kaupthing had funded big purchases of its shares for clients nor was he aware of losses stemming from these transactions.

Niels de Connick-Smith, a Danish business man, who sat on the board of Kaupthing, said that as far as he knew Kaupthing’s purchase of own shares had not been discussed on the board.

Senior Kaupthing managers now charged – Sigurður Einarsson, Hreiðar Már Sigurðsson and Magnús Guðmundsson, all of them already in prison following a judgment in the al Thani case – have all been questioned. They deny all charges. The same goes for Ingólfur Helgason, formerly the CEO of Kaupthing Iceland.

The five employees, charged in this case, who carried out the trades said they did so on orders, mostly from Ingólfur Helgason. Helgason denies having operated on his own but would have taken orders, mostly from Sigurðsson. Einarsson claims that being the chairman of the board meant he had no direct involvement in transactions of this type and consequently they would have been outside of his horizon.

Parking shares

The prosecutor has played informative recordings from phone tappings. In one of them the bank’s chief legal officer is talking about transactions in 2008 where the bank lent over ISK10bn, to an offshore company, Desulo Trading owned by an Icelandic business man, Egill Ágústsson. Desulo Trading then bought Kaupthing shares; over a few months it bought 2% of the bank. According to the legal officer the bank was “literally parking the shares” in what he called quite “clearly fictive trades.”

The owner of Desulo Trading has said in an earlier witness statement that he was not told of these transactions and was quite shocked when he saw the substantial loans issued to his company. One Kaupthing Luxembourg employee said the company was, in the end, quite obviously “just like a dustbin” in the bank. Apart from loans to Desulo Trading two other companies are involved in this case, also belonging to big Kaupthing clients, Holt Investment owned by Luxembourg investor Skúli Þorvaldsson and Mata Investments, owned by Gísli V. Einarsson and his family.

Þorvaldsson is charged in another case regarding embezzlement from Kaupthing, together with Sigurðsson, Guðmundsson and Guðný Arna Sveinsdóttir Kaupthing’s chief financial officer, seen to have been very close to the Kaupthing management.

In total, Kaupthing sold almost 18% of the bank’s share in seven large transactions shortly before it collapsed, in all cases funding the share purchase with Kaupthing loans. The largest transaction was when a Qatari sheikh bought 5,1% for which the three above mentioned managers and Ólafur Ólafsson, the bank’s second largest shareholder, are now serving 3 to 5 1/2 years in prison in the so-called al Thani case.

I have earlier stated that I wonder if anything like this was going on in other banks up to the crisis. Here, some Irish banks come to mind re loans to ten shareholders in Anglo Irish. An Irish Court found two bankers guilty but they were not sent to prison because the judge found regulators had failed to warn the bankers of the illegal activity. Icelandic senior bankers have been less lucky.

*This report is based on Rúv reporting on the ongoing case, found here, in Icelandic.

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The Swiss Franc unpegging from the euro 15 January this year brought the risk of foreign currency borrowing for unhedged borrowers yet again to the fore. In Central, Eastern and South-Eastern Europe lending in Swiss Franc and other foreign currency, most notably in euros, has been common since the early 2000s, often amounting to more than half of loans issued to households. The 2008 crisis put some damper on this lending, did not stop it though and in addition legacy issues remain. Now, actions by foreign currency borrowers in various countries are also unveiling a less glorious aspect: mis-selling and breach of European Directives on consumer protection. Senior bankers involved in foreign currency lending invariably claim that banks could not possibly foresee FX fluctuation. Yet, all of this has happened earlier in different parts of the world, most notably in Australia in the 1980s.

“The 2008-09 financial crisis has highlighted the problems associated with currency mismatches in the balance sheets of emerging market borrowers, particularly in Emerging Europe,” economists at the European Bank of Reconstruction and Development, EBRD, Jeromin Zettelmeyer, Piroska Nagy and Stephen Jeffrey wrote in the summer of 2009.*

In the grand scheme of Western and Northern European countries this mismatch was a little-noticed side-effect of the 2008 crisis. But at the EBRD, focused on Central, Eastern, South East European, CESEE, countries, its chief economist Erik Berglöf and his colleagues worried since foreign currency, FX, lending was common in this part of Europe. FX lending per se was not the problem but the fact that these loans were to a great extent issued to unhedged borrowers, i.e. borrowers who have neither assets nor income in FX. This lending was also partly the focus of the Vienna Initiative, launched in January 2009 by the EBRD, European and international organisations and banks to help resolve problems arising from CESEE countries mainly being served by foreign banks.

In Iceland FX lending took off from 2003 following the privatisation of the banks: with the banks growing far beyond the funding capacity of Icelandic depositors, foreign funding poured in to finance the banks’ expansion abroad. Icelandic interest rates were high and the rates of euro, Swiss Franc, CHF and yen attractive. Less so in October 2008 when the banks had collapsed: at the end of October 2007 1 euro stood at ISK85, a year later at ISK150 and by October 2009 at ISK185.

After Icelandic borrowers sued one of the banks, the Supreme Court ruled in a 2010 judgement that FX loans were indeed legal but not FX indexed loans, which most of household loans were. It took further time and several judgements to determine the course of action: household loans were recalculated in ISK at the very favourable foreign interest rates. Court cases are still on-going, now to test FX lending against European directives on consumer-protection.

In all these stories of FX loans turning into a millstone around the neck of borrowers in various European countries senior bankers invariably say the same thing: “we couldn’t possibly foresee the currency fluctuations!” In a narrow sense this is true: it is not easy to foresee when exactly a currency fluctuation will happen. Yet, these fluctuation are frequent; consequently, if a loan has a maturity of more than just a few years it is as sure as the earth revolving around the sun that a fluctuation of ca. 20%, often considerably more, will happen.

Interestingly, many of the banks issuing FX loans in emerging Europe did indeed make provisions for the risk, only not on behalf of their clients. According to economist at the Swiss National Bank, SNB, Pinar Yeşin “banks in Europe have continuously held more foreign-currency-denominated assets than liabilities, indicating their awareness of the exchange-rate-induced credit risk they face.”

Indeed, many of the banks lending to unhedged borrowers took measures to hedge themselves. Understandably so since it has all happened before. Recent stories of FX lending misery in various European countries are nothing but a rerun of what happened in many countries all over the world in earlier decades: i.a., events in Australia in the 1980s are like a blueprint of the European events. In Australia leaked documents unveiled that senior bankers knew full well of the risk to unhedged borrowers but they kept it to themselves.

It can also be argued that given certain conditions FX lending led to systematic lending to CESEE clients borrowing more than they would have coped with in domestic currency making FX lending a type of sub-prime lending. What now seems clear is that cases of mis-selling, unclear fees and insufficient documentation now seem to be emerging, albeit slowly, in European FX lending to unhedged borrowers.

FX lending in CESEE: to what extent and why

A striking snapshot of lending in Emerging Europe is that “local currency finance comes second,” with the exception of the Czech Republic and Poland, as Piroska Nagy pointed out in October 2010, referring to EBRD research. With under-developed financial markets in these countries banking systems there are largely dominated by foreign banks or subsidiaries of foreign banks.

This also means, as Nagy underlined, that there is an urgent need to reduce “systemic risks associated with FX lending to unhedged borrowers” as this would remove key vulnerabilities and “enhance monetary policy effectiveness.”

Although action has been taken in some of the European countries hit by FX lending, “legacy” issues remain, i.e. problems stemming from prolific FX lending in the years up to 2008 and even later. In short, FX lending is still a problem to many households and a threat to European banks, in addition to non-performing loans, i.e. loans in arrears, arising from unhedged FX lending.

The most striking mismatch in terms of banks’ behaviour is evident in the operations of the Austrian banks that have been lending in FX at home in Austria the euro country, but also abroad in the neighbouring CESEE countries. In Austria, FX loans were available to wealthy individuals who mostly hedged their FX balloon loans (i.e. a type of “interest only” loans) with insurance of some sort. Abroad however, “these loans in most cases had not been granted mostly to relatively high income households,” as somewhat euphemistically stated in the Financial Stability report by the Austrian Central Bank, OeNB in 2009.

There is plenty of anecdotal evidence to conclude that during the boom years banks were pushing FX loans to borrowers, rather than the other way around. Thus, it can be concluded that the FX lending in CESEE countries was a form of sub-prime lending, that is people who did not meet the requirements for borrowing in the domestic currency could borrow, or borrow more, in FX. This would then also explain why FX loans to unhedged borrowers did become such a major problem in these countries.

Where these loans have become a political issue FX borrowers have often been met with allegations of greed; that they were trying to gain by gambling on the FX market. In 2010 Martin Brown, economist at the SNB and two other economists published a study on “Foreign Currency Loans – Demand or Supply Driven?” They attempted to answer the question by studying loans to Bulgarian companies 2003-2007. What they discovered was i.a. that for 32% of the FX business loans issued in their sample the companies had indeed asked for local currency loan.

“Our analysis suggests that the bank lends in foreign currency, not only to less risky firms, but also when the firm requests a long-term loan and when the bank itself has more funding in euro. These results imply that foreign currency borrowing in Eastern Europe is not only driven by borrowers who try to benefit from lower interest rates but also by banks hesitant to lend long-term in local currency and eager to match the currency structure of their assets and liabilities.”

In other words, the banks had more funding in euro than in the local currency and consequently, by lending in FX (here, euro), the banks were hedging themselves in addition to distancing themselves from instable domestic conditions. A further support for this theory is FX lending in Iceland, which took off when the banks started to seek funding on international markets. (The effect on banks’ FX funding is not uncontested: further on reasons for FX lending in Europe see EBRD’s “Transition Report” 2010, Ch. 3, esp. Box 3.2.)

The Australian lesson: with clear information “…nobody in their right mind… would have gone ahead with it”

Financial deregulation began in Australia in the early 1970s. Against that background, the Australian dollar was floated in December 1983. In the years up to 1985 banks in Australia had been lending in FX, often to farmers who previously had little recourse to bank credit. However, the Australian dollar started falling in early 1985; from end of 1984 to the lowest point in July 1986 the trade-weighted index depreciated by more then a third. Consequently, the FX loans became too heavy a burden for many of the burrowers, with the usual ensuing misery: bankruptcy, loss of homes, breaking up of marriages and, in the most tragic cases, suicide.

The Australian bankers shrugged their shoulders; it had all been unforeseeable. FX borrowers who tried suing the banks lost miserably in court, unable to prove that bankers had told them the currency fluctuations would never be that severe and if it did the bank would intervene. As one judge put it: “A foreign borrowing is not itself dangerous merely because opportunities for profit, or loss, may exist.” The prevailing understanding in the justice system was that those borrowing in FX had willingly taken on a gamble where some lose, some win.

But gambling turned out to be a mistaken parallel: a gambler knows he is gambling; the FX borrowers did not know they were involved in FX gambling. The borrowers got organised, by 1989 they had formed the Foreign Currency Borrowers Association and assisted in suing the banks. The tide finally turned in favour of the borrowers and against the banks; the courts realised that unlike gamblers the borrowers had been wholly unaware of the risk because the banks had not done their duty in properly informing the FX borrowers of the risk. But by this time FX borrowers had already been suffering pain and misery for four to five years.

What changed the situation were internal documents, two letters, tabled on the first day of a case against one of the banks, Westpac. The letters, provided by a Westpac whistle-blower, John McLennan, showed that when the loan in question was issued in March 1985 the Westpac management was already well aware of the risk but said nothing to clients. Staff dealing with clients was often ignorant of the risks and did not fully understand the products they were welling. When it transpired who had provided the documents Westpac sued McLennan – a classic example of harassment whistle-blowers almost invariably suffer – but later settled with McLennan.

As a former senior manager summed it up in 1991: “Let us face it – nobody in their right mind, if they had done a proper analysis of what could happen, would have gone ahead with it.” (See here for an overview of some Australian court cases regarding FX loans).

FX borrowers of all lands, unify!

“Probably like a lot of other people (.) I felt that the banks knew what they were doing, and you know, that they could be trusted in giving you the right advice,” is how one Westpac borrower summed it up in a 1989 documentary on the Australian FX lending saga.

This misplaced trust in banks delayed action against the banks in Australia in the 1980s and in all similar sagas. However, at some point bank clients realise the banks take their care of duty towards clients lightly but are better at safeguarding own interests. As in Australia, the most effective way is setting up an association to fight the banks in a more targeted cost-efficient way.

This has now happened in many European countries hit by FX loans and devaluation. At a conference in Cyprus in early December, organised by a Cypriot solicitor Katherine Alexander-Theodotou, representatives from fifteen countries gathered to share experience and inform of state of affairs and actions taken in their countries regarding FX loans. This group is now working as an umbrella organization at a European level, has a website and aims i.a. at influencing consumer protection at European level.

Spain is part of the euro zone and yet banks in Spain have been selling FX loans. Patricia Suárez Ramírez is the president of Asuapedefin, a Spanish association of FX borrowers set up in 2009. She says that since the Swiss unpegging in January the number of Asuapedefin members has doubled. “There is an information mismatch between the banks and their clients. Given the full information, nobody in their right mind would invest all their assets in foreign currency and guarantee with their home. Banks have access to forecasts like Bloomberg and knew from early 2007 that the euro would devalue against the Swiss Franc and Japanese Yen.”

As in Australia, the first cases in most of the European countries have in general and for various reasons not been successful: judges have often not been experienced enough in financial matters; as in Australia clients lack evidence; there tends to be a bias favouring the banks and so far, only few cases have reached higher instances of the courts. However, in Europe the tide might be turning in favour of FX borrowers, thanks to an fervent Hungarian FX borrower.

The case of Árpád Kásler and the European Court of Justice

In April 2014 the European Court of Justice, ECJ, ruled on a Hungarian case, referred to it by a Hungarian Court: Árpád Kásler and his wife v OTP Jelzálogbank, ECJ C‑26/13. The Káslers had contested the bank’s charging structure, which they claimed unduly favoured the bank and also claimed the loan contract had not been clear: the contract authorised the bank to calculate the monthly instalment on the basis of the selling rate of the CHF, on which the loan was based, whereas the amount of the loan advanced was determined by the bank on the basis of the buying rate of the CHF.

After winning their case the bank appealed the judgement after which the Hungarian Court requested a preliminary ruling from the ECJ, concerning “the interpretation of Articles 4(2) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29, ‘the Directive’ or ‘Directive 93/13’).”

In its judgment the ECJ partly sided with the Káslers. It ruled that the fee structure was unjust: the bank did not, as it claimed, incur any service costs as the loan was indeed only indexed to CHF; the bank did not actually go into the market to buy CHF. The Court also ruled that it was not enough that the contract was “grammatically intelligible to the consumer” but should also be set out in such a way “that consumer is in a position to evaluate… the economic consequences” of the contract for him. Regarding the third question – what should substitute the contract if it was deemed unfair – the ECJ left it to the national court to decide on the substitute.

Following the ECJ judgement in April 2014, the Hungarian Supreme Court ruled in favour of the Káslers: the fee structure had indeed favoured the bank and was not fair, the contract was not clear enough and the loan should be linked to interest rates set by the Hungarian Central Bank. – As in the Australian cases Kásler’s fight had taken years and come at immense personal pain and pecuniary cost.

Hungarian law are not precedent-based, which meant that the effect on other similar loan contracts was not evident. In July 2014 the Hungarian Parliament decided that banks lending in FX should return the fee that the Kásler judgement had deemed unfair.

The European Banking Authority, EBS is the new European regulator. The ECJ ruling in many ways reflects what the EBA has been pointing from the time it was set up in 2011. In its advice in 2013 on good practice for responsible mortgage lending it emphasises “a comprehensive disclosure approach in foreign currency lending, for example using scenarios to illustrate the effect of interest and exchange rate movements.”

Calculated gamble v being blind-folded at the gambling table

“Since the ECJ judgment in the Kásler case, judges in Spain have started to agree with consumers from banks,” says Patricia Suárez Ramírez. So far, anecdotal evidence supports her view that the ECJ judgment in the Kásler case is, albeit slowly, determining the course of other similar cases in other EU countries.

The FX loans were clearly a risk to unhedged borrowers in the countries where these loans were prevalent. If judgements to come will be in favour of borrowers, as in ECJ C‑26/13, the banks clearly face losses: in some cases even considerable losses if the FX loans will have to be recalculated on an extensive scale, as did indeed happen in Iceland.

Voices from the financial sector are already pointing out the unfairness of demands that the banks recalculate FX loans or compensate unhedged FX borrowers. However, it seems clear that banks took a calculated gamble on FX lending to unhedged borrowers. In the best spirit of capitalism, you win some you lose some. The unfairness here does not apply to the banks but to their unhedged clients, who believed in the banks’ duty of care and who, instead of being sold a sound product, were led blind-folded to the gambling table.

*The first draft was written in July 2009; published 2010 as EBRD Working Paper.

This is the first article in a series on FX lending in Europe: the unobserved threat to FX unhedged borrowers – and European banks.The next article will be on Austrian banks, prolific FX lenders both at home and abroad, though with an intriguing difference. The series is cross-posted on Fistful of Euros.

See here an earlier article of mine on FX lending, cross-posted on Fistful of Euros and my own blog, Icelog.

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Today, the Icelandic Supreme Court annulled the Reykjavík District Court acquittal in the Aurum case. This means that the District Court has to start all over again on the case. Those charged are Jón Ásgeir Jóhannesson and Lárus Welding who became Glitnir’s CEO when Jóhannesson and a group of investors bought over 30% in the bank in spring 2007. Two other Glitnir employees are also charged.

At the centre of the case is a loan from Glitnir to a shelf company, FS38 to buy a share in the retailer Goldsmith, owned by Aurum Holding, from Fons, owned by Pálmi Haraldsson, a business associate of Jóhannesson. Haraldsson was i.a. a co-investor in Glitnir with Jóhannesson, where the duo were close up and intimate with the management. So much so that Welding at some point, in an email to Jóhannesson, complained that he was being treated like a branch manager and not the CEO.

The particulars of this whole loan arrangement was that after various evaluations of Goldsmith, Glitnir lent ISK6bn to FS38; it so happened that of the 6bn ISK1bn landed on Haraldsson’s account with Glitnir and an equal amount landed on Jóhannesson’s personal account.

The FS38 loan saga was already familiar from the SIC report, published in April 2010, one of many SIC’s loan sagas related to the major shareholders of the three banks. The four were charged by the Office of the Special Prosecutor. When the case came up in the District Court it was presided over by two District Court Judges the third one being a Court-appointed external expert, Sverrir Ólafsson.

In June last year the Court acquitted all four charged in the Aurum case. Soon after, it transpired that Ólafsson was the brother of Ólafur Ólafsson, at the time already sentenced by the District Court in the so-called al Thani case. Ólafur is now serving a sentence of 4 1/2 years after the Supreme Court sentenced him last January (thereby adding a year to Ólafsson’s sentence in the District Court). Foreigners always think that in Iceland everyone knows everybody, which definitely was not the case with the Ólafsson brothers – special prosecutor Ólafur Þ. Hauksson denied he had known about the relationship (and yes, Ólafsson is a very common name in Iceland and the two brothers are not at all similar) nor had the Icelandic media picked this up.

Following the revelation, Sverrir Ólafsson said in an interview with Rúv that it was inconceivable Hauksson and the OSP had not been aware of whose brother he was. According to Sverrir the fuss was only to undermine the judgement. In this interview Ólafsson used harsh words about Hauksson, seen by many as somewhat unsuited for a judge, even a lay one.

Following the District Court ruling in the Aurum case the state prosecutor (a different authority from the OSP) demanded that the judgement should be annulled because of doubt of the impartiality of one of the judges. Today, this is exactly what the Supreme Court did, which means that now the case must start anew, probably adding at least another year and probably more to the story of this case.

In addition to this the Glitnir Winding up Board has sued Jóhannesson and others for damages caused by the FS38 loan. In connection to that case, and at the demand of Glitnir, Jóhannesson’s assets were subjected to an international freezing order by a London Court in May 2010 (see here, here and here). The Glitnir case is resting until a final judgement in the criminal case; as far as is known the freezing order is still standing. However, Jóhannesson is again an active investor, i.a. in the UK but investing on behalf of his wife.

Recently, there have been articles in Icelandic on the website Vísir and in the newspaper (distributed for free) Fréttablaðið owned by 365 Media, under the ownership of Ingibjörg Pálmadóttir, wife of Jóhannesson. These articles have been insinuating lies on behalf of the Special Prosecutor regarding Ólafsson, i.e. stating that Hauksson and others at the OSP did indeed know whose brother Sverrir Ólafsson was. Earlier, the paper had also sought to sow doubt of the al Thani judgement; the sentence in one of its articles, saying that when the Courts fail the media must take over, was much noted. No doubt, Jóhannesson and his allies will fight their case ferociously, not only in the Courts but also in the media in the Jóhannesson’s sphere of influence.

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