scholarly journals Opening Pandora’s Box: Sovereign Bonds in International Arbitration

2007 ◽  
Vol 101 (4) ◽  
pp. 711-759 ◽  
Author(s):  
Michael Waibel
Keyword(s):  
Public Policy ◽  
International Law ◽  
Sovereign Debt ◽  
Great Success ◽  
International Arbitration ◽  
Sovereign Bonds ◽  
National Courts ◽  
Debt Crises ◽  
Sovereign Defaults

In recent years, sovereign debt crises have received much attention from the perspective of international public policy, but an effective legal solution to sovereign defaults has yet to coalesce within international law. Over the last two decades, private creditors have increasingly resorted to litigation in national courts, though without great success, in an effort to obtain payment on defaulted sovereign debt. Another, emerging option is arbitration —in particular, before the International Centre for Settlement of Investment Disputes (ICSID). Will ICSID be the new venue of choice for recovering on sovereign bonds? The conclusion reached here is that attempts to take defaulting countries to ICSID arbitration are unlikely to succeed.

Features of ILM for the 1960's

1969 ◽  
Vol 8 (I1) ◽  
pp. xi-xii
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Developed Countries ◽  
Military Force ◽  
International Arbitration ◽  
National Courts ◽  
The Developed Countries

The contents of ILM for the period from 1962 to 1969 reflect several significant developments: (1) the entry on the international scene of many new countries and their establishment of relations with the developed countries, particularly in the fields of commerce and trade and of investment; (2) the prevalence of armed conflict and the use of military force in the unsettled conditions resulting from the decolonization process and from continued antagonisms between the superpowers; (3) the pervasive role of international organizations, both global and regional, general and specialized; and (4) the continued predominance of national courts in the judicial consideration of questions of international law and the shift from general to specialized tribunals in the resolution of disputes by international arbitration and adjudication.

The Right to Unilateral Repudiation of Odious, Illegal, and Illegitimate Sovereign Debt as a Human Rights Defence

2018 ◽  
pp. 536-554
Author(s):  
Ilias Bantekas
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Law ◽  
Sovereign Debt ◽  
Debt Management ◽  
Audit Committees ◽  
Bilateral Investment Treaties ◽  
National Debt ◽  
Investment Treaties ◽  
The Right

States enjoy the right to unilaterally denounce sovereign debt that is odious, illegal and illegitimate under strict circumstances. This entitlement does not exist where the debt(s) was/were incurred lawfully. A particular form of denunciation is sovereign insolvency, whose unilateral manifestation, is treated in practice by similar principles and responses as those apply mutatis mutandis to other forms of debt management. This chapter identifies, in addition to insolvency, five forms of unilateral debt denunciation that arise from the limited practice of states, which are moreover consistent with general international law. These are: (a) repudiation or non-enforcement of arbitral awards on public policy grounds; (b) denunciation on grounds of executive necessity and/or the right to fiscal/tax sovereignty; (c) direct unilateral repudiation on the basis of reports by national debt audit committees; (d) repudiation of contracts when creditor/investor violates human rights and of unconscionable concession contracts; (e) re-negotiation of bilateral investment treaties and concessions.

Introduction

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
Sovereign Debt ◽  
Debt Crises ◽  
Sovereign Defaults

The introduction sets the scene for the examination of sovereign defaults. It sets the structure of and the methodology employed in the book. It provides a summary overview of sovereign debt crises, ensuing restructurings, and litigation. It also introduces the reader to the debate about the legitimacy of litigation against impecunious sovereign debtors.

Sovereign Defaults Before Domestic Courts

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
New York ◽  
Sovereign Debt ◽  
Relative Ease ◽  
Sovereign Bond ◽  
Sovereign Bonds ◽  
State Immunity ◽  
Domestic Courts ◽  
Sovereign Defaults ◽  
Governing Law

The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.

Introduction

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
Sovereign Debt ◽  
Debt Crises ◽  
Sovereign Defaults

The introduction sets the scene for the examination of sovereign defaults. It sets the structure of and the methodology employed in the book. It provides a summary overview of sovereign debt crises, ensuing restructurings, and litigation. It also introduces the reader to the debate about the legitimacy of litigation against impecunious sovereign debtors.

Sovereign Defaults Before Domestic Courts

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
New York ◽  
Sovereign Debt ◽  
Relative Ease ◽  
Sovereign Bond ◽  
Sovereign Bonds ◽  
State Immunity ◽  
Domestic Courts ◽  
Sovereign Defaults ◽  
Governing Law

The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.

Substance and procedure in international arbitration

2020 ◽  
Vol 36 (1) ◽  
pp. 3-66
Author(s):  
Saar A Pauker
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Basic Theme ◽  
Material Points

Abstract The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.

Visualizing Indicators of Debt Crises in a Lower Dimension

2012 ◽  
pp. 414-431
Author(s):  
Peter Sarlin
Keyword(s):  
Sovereign Debt ◽  
Developed Countries ◽  
The Self ◽  
Financial Data ◽  
Visualization Tool ◽  
Self Organizing Map ◽  
Warning Signals ◽  
Debt Crises ◽  
Sovereign Defaults ◽  
Som Model

Since the 1980s, two severe global waves of sovereign defaults have occurred in less developed countries (LDCs): the LDC defaults in the 1980s and the LDC defaults at the turn of the 21st century. To date, the topic is contemporary, while the forecasting and monitoring results of debt crises are still at a preliminary stage. This chapter explores whether the application of the Self-Organizing Map (SOM), a neural network-based visualization tool, facilitates the monitoring of multidimensional financial data. Thus, this chapter presents a SOM model for visualizing the evolution of sovereign debt crises’ indicators. The results of this chapter indicate that the SOM is a feasible tool for visualization of early warning signals of sovereign defaults.

3 The Nature of Abuse of Rights in International Arbitration

2020 ◽  
Author(s):  
El Far Ahmed
Keyword(s):  
Public Policy ◽  
International Law ◽  
General Principle ◽  
Decision Makers ◽  
Compelling Evidence ◽  
Legal Systems ◽  
Legal Basis ◽  
International Arbitration

This chapter explores the nature of abuse of rights in international arbitration. It determines the legal basis of abuse of rights, questions the transnational nature of the principle, and examines whether it comprises a principle of transnational public policy. A scrutiny of the principle’s application in international arbitration not only demonstrates the omnipresence of the principle in most legal systems as well as under international law, but provides compelling evidence that a general principle of abuse of rights has emerged in international arbitration. Moreover, a review of different legal systems testify that the principle is recognized as a general substantive and procedural principle of law. This is further confirmed by the views of renowned scholars and by the constant application of abuse of rights as a general principle of law. However, while the principle reflects fundamental interests that decision makers should uphold, its depiction as part of transnational public policy is controversial.

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