Should Derivatives Be Privileged in Bankruptcy?

Authors

  • PATRICK BOLTON,

  • MARTIN OEHMKE

    Search for more papers by this author
    • Patrick Bolton is at Columbia University, NBER, and CEPR. Martin Oehmke is at Columbia University. For helpful comments and suggestions, we thank two anonymous referees, an Associate Editor, Viral Acharya, Jun Kyung Auh, Ulf Axelson, Ken Ayotte, Mike Burkart, Doug Diamond, Darrell Duffie, Yaniv Grinstein, Oliver Hart, Gustavo Manso, Ed Morrison, David Scharfstein, Ken Singleton (Editor), Jeremy Stein, Suresh Sundaresan, Vikrant Vig, Jeff Zwiebel, and seminar participants at Columbia University, the UBC Winter Finance Conference, Temple University, University of Rochester, the Moody's/LBS Credit Risk Conference, LSE, LBS, Stockholm School of Economics, Mannheim, HEC, INSEAD, CEU, the 2011 ALEA meetings, the 4th annual Paul Woolley Conference, the 2011 NBER Summer Institute, ESSFM Gerzensee, the 2011 SITE Conference, ESMT Berlin, Harvard Law School, Harvard Business School, Chicago Booth, University of Amsterdam, EPF Lausanne, Stanford GSB, Berkeley, the NY Fed workshop on the automatic stay, the 2012 WFA meetings, Wharton, and Boston University. Both author have no conflicts of interest with respect to The Journal of Finance disclosure policy.


ABSTRACT

Derivatives enjoy special status in bankruptcy: they are exempt from the automatic stay and effectively senior to virtually all other claims. We propose a corporate finance model to assess the effect of these exemptions on a firm's cost of borrowing and incentives to engage in derivative transactions. While derivatives are value-enhancing risk management tools, seniority for derivatives can lead to inefficiencies: it transfers credit risk to debtholders, even though this risk is borne more efficiently in the derivative market. Seniority for derivatives is efficient only if it provides sufficient cross-netting benefits to derivative counterparties that provide hedging services.

Ancillary