Commentators have raised concerns about the empty creditor problem that arises when a debtholder has obtained insurance against default but otherwise retains control rights in and outside bankruptcy. We analyze this problem from an ex-ante and ex-post perspective in a formal model of debt with limited commitment, by comparing contracting outcomes with and without credit default swaps (CDS). We show that CDS, and the empty creditors they give rise to, have important ex-ante commitment benefits: By strengthening creditors' bargaining power they raise the debtor's pledgeable income and help reduce the incidence of strategic default. However, we also show that lenders will over-insure in equilibrium, giving rise to an inefficiently high incidence of costly bankruptcy. We discuss a number of remedies that have been proposed to overcome the inefficiency resulting from excess insurance. One of the most signi…cant changes in the debtor-creditor relationship in the past few years has been the creation and subsequent exponential growth of the market for credit insurance, in particular credit default swaps (CDS). An important aspect of this development is that credit insurance with CDS does not just involve a risk transfer to the insurance seller. It also signi…cantly alters the debtor-creditor relation in the event of …nancial distress, as it partially or fully separates the creditor's control rights from his cash- ‡ow rights. Legal scholars (Hu and Black (2008a,b)) and …nancial analysts (e.g. Yavorsky (2009)) have raised concerns about the possible consequences of such a separation, arguing that CDS may create empty creditors-holders of debt and CDS-who no longer have an interest in the e¢ cient continuation of the debtor, and who may push the debtor into ine¢ cient bankruptcy or liquidation:
Patrick Bolton"Even a creditor with zero, rather than negative, economic ownership may want to push a company into bankruptcy, because the bankruptcy …ling will trigger a contractual payo¤ on its credit default swap position.", Hu and Black (2008a), pp.19.We argue in this paper that while a creditor with a CDS contract may indeed be more reluctant to restructure debt of a distressed debtor, it does not necessarily follow that the presence of CDS will inevitably lead to an ine¢ cient outcome. In a situation where the debtor has limited ability to commit to repay his debt, a CDS strengthens the creditor's hand in ex-post debt renegotiation and thus may actually help increase the borrower's debt capacity. The relevant question is thus whether the presence of CDS leads to debt market outcomes in which creditors are excessively tough even after factoring in these ex-ante commitment bene…ts of CDS.In a CDS, the protection seller agrees to make a payment to the protection buyer in the event of a credit event on a prespeci…ed reference asset. In exchange for this promised payment, the protection seller receives a periodic premium payment from the buyer. The credit event may be the bankruptcy …ling of the debtor, non-payment of the d...