Economics 02/09/2009: ECB legal eagles picking at the NAMA carcass

The ECB  legal opinion note on Nama provides some interesting reading.

Per ECB (§1.1) Nama is designed to “expeditiously deal with the assets acquired by it and protect or otherwise enhance the long-term economic value of those assets, in the interests of the Irish State”. Several things are going on here.

1. the ‘expeditious’ nature of Nama is referred to in Part 1 §2 (b) line (viii) of the draft bill and Part 2, Chapter 1, §10 (1)(b). However, §2 page 21 states: “
2. So far as possible, NAMA shall, expeditiously and consistently with the achievement of  the purposes specified in subsection (1), obtain the best achievable financial return for the State…” Has anyone spotted a slight contradiction? Assets will be disposed expeditiously, Nama will act expeditiously, but asset pricing will be based on long-term valuations. This is known as a maturity mismatch risk – the objectives are ‘expeditiously’ short-medium term, pricing is long-term.
3. As the ECB states, repeating Nama legislation language correctly, Nama will aim to guard the interest of the Irish state. Now, the State does not have the existent allocated means for such an undertaking, so to pay for Nama, it has to use taxpayers’ money in an emergency draw on resources. Since the Irish State is not spending on Nama the money that belongs to it, why should the State interests be protected by Nama and not those of the payee, i.e the taxpayer? Of course, the only way that Nama legislation makes sense from the point of view of protecting our property rights and liberty is if State interest = Taxpayer interest. This is, alas, not so. Irish State under the current Government has been run as a thiefdom of public sector unions and vested interest groups. This, of course, is not and should not be of concern to the ECB. But it should be of concern to ourselves, the taxpayers, and to the opposition.

Further per ECB §1.1: “As noted by the Minister, replacing property related loans with Irish Government bonds will strengthen the balance sheets of the banks”. So this is it, then, the ECB has clearly agreed that Nama bonds will not be off-balancesheet for the Exchequer, but will be ‘Government bonds’ and thus countable into the overall:

• Public debt;
• Future public bonds risk premia;
• Future demand for public bonds issued by the Irish Exchequer

Now, note that consistent with what minister Lenihan told the Oireachtas committee yesterday – something that the Government evaded saying out loud – the bonds will have to be ‘marketable’ in the open market, so their pricing cannot bear artificially low interest rates. This validates my (and other’s) earlier assumptions on long-term Irish bonds pricing for Nama at a coupon of 5-6%pa in 2021.

ECB §1.3 recognizes that Nama is planning to purchase a wide range of assets, including “any other class of assets” (other than loans and collateralized products). This, of course, opens Nama to political favouritism with the banks (in exchange for no layoffs and for not skinning their customers) and with the specific developers. It also, potentially, allows Nama to expand its mandate to cover mortgages and other loans. In the end, this little clause opens up a possibility to a wholesale redrawing of the already blurred boundaries between Irish businesses and the State.

The same paragraph in the ECB note also acknowledges that Nama will cover rolled up interest and re-financed products – a land mine when it comes to overall portfolio pricing and quality.

§1.10 states that “NAMA (or a NAMA group entity) may, with the  Minister’s  approval, borrow, with or without the Minister’s guarantee, such sums as it determines to be necessary for the performance of its functions (including debt securities borrowed from the Minister or NTMA and debt securities issued by NAMA or a NAMA group entity to provide consideration for the acquisition of bank assets).” What does it mean? Well, the first part (before the brackets) means that Nama can borrow funds on its own. The liability for such borrowing will fall on Nama or on the taxpayers. Care to tell what happens if Nama cannot meet its liabilities on borrowings not guaranteed by the State? Yes, right, the Minister will have to rescue Nama from Nama… using the taxpayers funds! Why would we allow a state-owned entity with defined remit an open access to borrowing?!

The bit in the brackets is also telling. It shows that Nama will be able to issue its own bonds (debt securities) and that it will be able to ‘borrow’ bonds from the Government. The latter, of course, means that the following scheme to finance Brian Cowen’s egregious public sector payoffs (oh, sorry – deficits) can be run:

Step 1: Nama, with a permission of Brian Lenihan, ‘borrows’ from NTMA freshly issued bonds.

Step 2: Nama ‘lends’ these bonds to the banks who then monetize them through the ECB;

Step 3: Banks ‘repay’ Nama with cash;

Step 4: Nama ‘repays’ the Exchequer;

Step 5: end game is: Brian Lenihan gets Mr Cowen more dosh to waste on public sector expenditures; Nama is clear, and the banks got a shave off the transaction. The taxpayers are, without being informed, soaked for the amount of bonds issued by NTMA.

§2.1 of the Note clearly is extremely guarded when it comes to assessing the potential effectiveness of Nama on liquidity markets and on the Irish banking sector. It does not show full credence of the ECB in the scheme’s ability to repair our broken banking sector. This, in itself, is understandable, as ECB is always reluctant to go out of its comfort zone endorsing adventurous member states’ plans. But it is a serious concern, given that the Government has no plan B should Nama fail to repair credit flow or inter-bank funding in the Irish economy. In addition, §2.1 is not really dealing with the issue of credit flow, but rather with the ability of Irish banks to access funding. So ECB is being cautious in endorsing Nama as a tool for clearing banks’ balance sheets, not as a tool for repairing the overall credit flows.

§2.4.3 is worth quoting in full: “Third, regarding the valuation of eligible assets, asset-specific haircuts on the eligible assets’ book values appear to be contemplated, and independent third-party expert opinions play a role in the valuation process for the NAMA scheme. The detailed provisions of the draft law regarding valuation issues reflect the fact that the pricing of eligible assets is a crucial and complex issue that is likely to determine the overall success of the NAMA scheme. Although the measures contemplated by the draft law should restore confidence in the Irish banking system, the ECB considers it important, in line with previous opinions that the pricing of acquired assets is mostly risk-based and determined by market conditions. The preference expressed in the draft law for the long-term economic value of assets, rather than current market values, requires careful consideration in this context. In particular, it should be ensured that the assumptions to determine the long-term economic value of bank assets will not involve undue premium payments to the participating financial institutions to avoid creating inappropriate incentives from their side as regards the use of the scheme.”

Several things worth noting here:

1. Unlike in the case of Nama effectiveness on economy and inter-bank credit, the ECB is clear that “the measures contemplated by the draft law should [not ‘might’] restore confidence in the Irish banking system”. This, of course, simply means that banks’ shareholders and bond holders will win unambiguously from Nama. And the economy and the taxpayers, well, they just might see some improvements… Any questions, anyone, as to who benefits?
2. The ECB is clearly unhappy about the ‘long-term economic value’ being used as a basis for pricing. The ECB is also clearly concerned that Nama pricing will provide an ‘undue premium payments’ to the banks – in other words, a pay off at the expense of the taxpayers. Now, per ECB remark, the entire process hinges on whether we can trust Nama (i.e Irish Government) not to skin the taxpayers to give a helping subsidy to its cronies (national banks). You be the judge if you can extend them this trust.
3. The ECB, alongside myself and other critics of Nama, and in contrast with the Government position, clearly states that ‘assumptions’ are crucial. Assumptions that go into pricing models are, of course, of preeminent importance for they will determine exactly the level of pricing deployed. The Government, to date, has not produced any basic assumptions to be used in pricing, other than those contained in overly optimistic statements by the Taoiseach and other members of the Cabinet. These, of course, have ranged from calling the end of Irish recession back in May this year, to a ridiculously uninformed estimates of the speed of property prices adjustments post bust in other countries (7-8 years estimate by the Government officials and consultants), 15 years plus estimated by academics (my own estimate based on IMF and OECD data for past busts since 1970 through 2003 is that for the serious busts similar to the one experienced by Ireland today, the correction takes on average 18 years and in some instances can take more than 20 years).

 To repeat here a simple mathematical exercise. If our current values are at 50% of the 2006-2007 peak, and we are to get back to the same peak values in 8 years, the required rate of growth in property prices to achieve this feat will be 9.1% per annum on average. To get to 80% of the peak price in 8 years requires over 7.6% annual average growth rate from 2010 on.

Oh, and as I’ve said before, this is before you factor in the cost of financing. At, say 5% pa, we are looking at double digit growth required annually on average for the next 8 years to get us to within 60% of the peak value in 2006-2007, let alone to 80%!

You be the judge if we can get such growth stats out of the property market, especially with Nama sitting on a pile of surplus properties, but to put it into perspective – the craze of 2003-2007 have not seen such rates of price inflation.

§2.4.4. clearly states ECB’s dislike of the levy idea as being potentially destabilizing to the banking sector. It is also hinting at possible illegality of such a levy as being a challenge to the need to provide a ‘level playing field’ for participating institutions.

§2.4.6 refers to the risk of political interference in Nama and the potential impact of Nama under political tutelage on banks in the longer term. This is related to the fact that the ECB is cautious about endorsing Nama’s economic effects. And the same is confirmed in §2.4.7, but this time around from the point of the banks themselves. Here the ECB is noting that Nama might lead to credit markets remaining tight as banks might focus on “preserving and rebuilding their own equity, instead of lending into the economy”. But, of course, the ECB’s note on this is not an accident – Nama legislation, that is allegedly designed explicitly to ensure restoration of functioning banking system in Ireland has absolutely nothing to say about this crucial factor. 

So on the net, I wouldn’t count the ECB note as a sound endorsement of the Nama plan as outlined so far by the Government. And I am not surprised – the entire idea of Nama, inclusive of the proposed legislation leave more questions unanswered and more concerns unaddressed than a first year undergraduate paper on how to manage the economy.