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RMB exchange rate causing distress: Recent depreciation risks significant losses under exotic currency derivatives

25 March 2014. Published by Jonathan Cary, Partner

The renminbi (RMB) appreciation over the last several years appears to have halted for now (at least in the short-term), which has taken much of the market by surprise.

RMB depreciation - background

Indeed, the RMB's recent accelerated depreciation towards 6.20 to the US$ has already wiped out any appreciation from last year.  Some market analysts are calling this a "danger zone" for the many Chinese businesses and exporters that bought billions of US$ worth of exotic currency derivative products in an effort to "hedge" their position against an appreciating RMB.

As the RMB depreciates, many businesses and investors are facing considerable losses.  Once again, attention is being directed to the financial institutions that sold these currency derivatives.

Currency hedging

Currency hedging is important to businesses in the export market because their income is partly dependent on an exchange rate and not only on sales in their own currency.  As their own currency appreciates, there is a need to protect the value of their income and mitigate the commercial impact of their exports becoming more expensive.

As a result, many Chinese businesses have purchased complex currency derivative products. These products have rather grand or exotic sounding names, such as: "Target Redemption Forwards" (TRFs), "Knock-in, Knock-outs" (KIKOs) or "Target Redemption Notes" (TARNS).  There are subtle differences between them, but, in essence, the parties nominate a notional sum in a particular currency (for example, the RMB), agree a benchmark exchange rate between that currency and another currency (for example, the US$) and agree that on pre-determined dates (fixing dates) they will make payments to one another through put and call options, the payments being calculated by applying the market exchange rate on that fixing date. In practice, the two sums are netted off against each other and the party who is "out of the money" (i.e. who loses on the exchange rate) pays the other on each fixing date. 

The attraction of such products is that they are generally zero-premium products (which means no upfront cost to the customer) and offer a better than market exchange rate.  The problem with such products for customers is primarily that:

(i)  there is an element of gearing; if they are on the "wrong side" of the trade they have to pay the bank a sum based on a multiple of the original sum; and

(ii) as with "forward accumulator" share trades (that have recently been the subject of high-profile disputes in the courts in Hong Kong), the customer's potential gains (and the bank's losses) are capped by a "knock out" provision, which terminates the transaction if a certain "trigger" point is reached (for example, a certain level of profit has been earned by the customer or the base currency hits a certain level). However, if a customer is on the "wrong side" of the trade there is no "knock out" provision to protect the customer. Accordingly, the potential losses are unlimited.

These types of currency derivatives have already caused widespread economic misery in a number of jurisdictions, in particular in emerging economies in South East Asia and South America in 2008 and 2009. Indeed, they have been described as "products from hell" and the International Monetary Fund [1] concluded that they do not function as a hedge, nor even were they a sound option for currency speculation. 

In Hong Kong, Citic Pacificsuffered massive losses in 2008 resulting from TRFs entered into with the intention of managing its US$ / Australian dollar exchange rate exposure.

Potential for disputes

In circumstances where customers are now exposed to significant losses under these currency derivative products, they will be asking tough questions about how the products were sold, whether they were suitable for their purposes and whether the banks made them fully aware of all of the significant risks; particularly, given that it is highly questionable whether such products can ever function as a hedge.

Of course, liability turns on the facts of each case.

In these sorts of disputes, the banks usually turn to their contractual disclaimers for protection and/or claim that they are not acting in an "advisory" capacity.  While it is correct that circumventing these types of contractual disclaimers and/or demonstrating an advisory duty is by no means easy, it is also becoming apparent that many of the banks' customer-facing staff did not understand certain of the complex products that their banks sold and/or had little or no regard for the suitability of such products for their customers.

Some of these customers will now be looking at their options and potential remedies in the relevant jurisdictions and dispute resolution venues. Given the choice of law and jurisdiction clauses generally included in these types of contracts, this is likely to include England and Hong Kong.  We would also expect many of the relevant contracts to specify that disputes be resolved by arbitration rather than litigation given the issues surrounding the enforcement of foreign Court judgments in the PRC.

[1] IMF Working Paper – Exotic Derivative Losses in Emerging Markets: Questions of Suitability, Concerns for Stability - Randall Dodd, July 2009