"Worst trade of all time" pits Santander against Portuguese client
Dealers settled a crop of disputed derivatives trades with Portuguese state-owned entities last year, with one exception – Santander is set for a court battle with the country’s state-backed rail operator, over a trade that critics describe as “nonsensical”. Tom Osborn reports
"This is a contender for the worst trade of all time,” says one London-based corporate hedging adviser. It sounds harsh until you look at the numbers.
The counterparty stuck on the wrong end of the trade is Portuguese state-backed rail operator Metro do Porto (MdP), which entered into the €89 million amortising fixed-for-floating interest rate swap in 2007. Halfway through the contract’s life, the firm is now out-of-the-money to the tune of €459 million and desperately hoping for Euribor to climb back above 2%.
MdP decided to stop making quarterly payments to its dealer, Banco Santander Totta (BST) – a local subsidiary of the Spanish bank – in September 2013, by which time the coupon had hit an annualised rate of 40.6%. At the time, the swap notional had amortised down to roughly €74.3 million, meaning the company’s quarterly coupon payments would have been €7.7 million.
Banks involved in a crop of other contentious trades with Portugal’s state-owned companies settled privately last year, resulting in a claimed €500 million saving for the country’s taxpayers, although not before a number of officials, including one government minister, had been forced from their posts. A journalist at one broadsheet, Diário Económico, offers a snapshot of the political fallout (see box, Scandal was a baptism of fire for Portuguese finance minister).
But the MdP trade is said to be the biggest mark-to-market blow-up of the lot, and Santander has chosen to meet its counterparty in court rather than settling. After attempts to renegotiate the terms of the trade fell through, the bank filed a claim at the High Court in London in May 2013, to assert the validity of the contract and its supporting documentation.
This kind of pre-emptive strike is standard practice in cross-border disputes, says one London-based lawyer. “If a bank is concerned about people litigating in a jurisdiction other than that mandated by the contract – generally England or New York – they will issue a claim that effectively seeks a declaration that the contract is valid, as a way of ensuring it is an English court hearing the substantive dispute,” he says. “Santander is obviously trying to ensure the litigation does not take place in Portugal.”
At the end of November 2013, after BST had updated its original claim to include a demand for the missed September coupon payment plus interest, MdP filed its defence, and a counter-claim. It sought to have the trade declared null and void under Portuguese law, and called for €42 million in net coupon payments to be reimbursed.
According to the defence documents – seen by Risk – it all started innocuously enough. MdP took out the trade on the advice of government auditors, who in 2005 urged it to find a way of reducing the 4.76% fixed-rate coupon it was paying on a swap with another dealer, Banco Comercial Português (BCP). That trade was a straightforward fixed-for-floating, 20-year rate swap; a hedge against six-month Euribor exposure, resulting from a 2002 sale-and-leaseback deal for rolling stock.
MdP engaged Santander to provide analysis of its past interest rate hedging strategies, and then sought advice from a number of other banks, including BCP, Barclays, HSBC and BST. The swap MdP chose, one of several solutions proposed by BST, is the one at the centre of the current dispute.
According to the claim form, Santander agreed to pay MdP a fixed coupon of 4.76% semi-annually. In return, MdP was to pay BST a fixed coupon of 1.76%, also semi-annually, as well as an extra quarterly floating-rate coupon, based on a spread tied to three-month Euribor.
For the first eight coupon payments – the first two years of the swap’s 14-year lifetime – this spread was fixed at 0%, equating to a saving of 3 percentage points on MdP’s fixed-rate payments to BCP. But, from the ninth quarter – the first quarter of 2009 – the following formula was used to calculate the spread:
Spread = Max [0.00%, Previous spread +
2 x Max (2.00% – Euribor3M set in advance; 0) +
2 x Max (Euribor3M set in advance – 6.00%; 0) – DigiCoupon]
DigiCoupon = 0.50% if 2.00% < Euribor3M set in advance < 6.00%
Otherwise = 0.00%
As MdP explains in its counterclaim, this meant it had to pay the bank two times the difference between three-month Euribor and 2% for every quarter the rate is below that level, or two times the difference between three-month Euribor and 6% for every quarter the rate is above it.
So long as rates stayed range-bound between 2% and 6%, MdP was in the money. In the first quarter of 2009, however, with the crisis in full swing and central banks slashing base lending rates, three-month Euribor was in freefall (see figure 1). From its peak of just under 5.4% on October 9, 2008, it fell to 3.33% on December 11 – the reference date for the following coupon period.
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