Restructuring Sovereign Debt by Incorporating Soft Law as Governing Law or by Reference

2020 ◽  
Author(s):  
Steven L. Schwarcz
Keyword(s):  
Sovereign Debt ◽  
Soft Law ◽  
Governing Law

Soft Law as Governing Law

2018 ◽  
Author(s):  
Steven L. Schwarcz
Keyword(s):  
Soft Law ◽  
Governing Law

The Quest for a European Safe Asset—A Comparative Legal Analysis of Sovereign Bond-Backed Securities, E-Bonds, Purple Bonds, and Coronabonds

2020 ◽  
Vol 6 (2) ◽  
pp. 233-269 ◽  
Author(s):  
Sebastian Grund
Keyword(s):  
Sovereign Debt ◽  
Dispute Settlement ◽  
Debt Crisis ◽  
Legal Analysis ◽  
Design Elements ◽  
Sovereign Bond ◽  
Legal Perspective ◽  
Policy Objectives ◽  
Legal Constraints ◽  
Governing Law

Abstract The European sovereign debt crisis and, more recently, the COVID-19 pandemic have revealed the European Economic and Monetary Union’s fragility, which essentially emanates from the inherent tension between a single monetary policy and decentralized fiscal policies. To cushion economic and financial shocks and sever the sovereign-bank doom loop, different proposals to create a common public debt security have been put forward, although none of them has so far seen the light of day. Building on pertinent economic and finance scholarship, this article reviews four promising safe asset proposals from a legal perspective: Sovereign bond-backed securities (SBBS), E-bonds, Purple bonds, and Coronabonds. Rather than focusing on their feasibility under EU law or national constitutional law, this article compares the proposals from an investor perspective against the backdrop of the following formal and functional legal characteristics that render assets ‘safe’: governing law, dispute settlement forum, investor protection, and investor representation in sovereign debt restructurings. Against this backdrop, targeted recommendations on critical design elements of safe assets, with the aim of reconciling the economic policy objectives with the pertinent legal constraints, are advanced.

4 Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

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.

Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

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.

scholarly journals Governing Sovereign Debt Restructuring Through Regulatory Standards

2015 ◽  
Vol 6 (2) ◽  
Author(s):  
Skylar Brooks ◽  
Domenico Lombardi
Keyword(s):  
Financial Stability ◽  
Sovereign Debt ◽  
Soft Law ◽  
Debt Restructuring ◽  
The Core ◽  
Hard Law ◽  
Regulatory Standards ◽  
Debt Crises ◽  
Further Development ◽  
The International Monetary Fund

AbstractIn recent years, a number of costly and destabilizing sovereign debt crises – from Argentina and Greece to Ukraine – have served as a forceful reminder that the international community lacks an agreed-upon framework for resolving debt crises and, when necessary, restructuring sovereign debt in a timely, orderly, and equitable manner. To help address this apparent governance gap, the paper argues that there is an important but underutilized role for the Financial Stability Board (FSB) in governing sovereign debt restructuring. More specifically, in a governance domain that is relatively fragmented between uncoordinated, even sometimes competing, rules and rule-makers, the FSB could serve as the focal institution responsible for overseeing the coordination and further development of soft law regulatory standards for sovereign debt restructuring. The reasons for FSB governance in this domain are simple and compelling, relating to both the nature of the debt restructuring regime and its evolution to date, as well as the specific institutional features of the FSB and the core tasks it performs. Although there remains room for treaty-based organizations like the International Monetary Fund (IMF) and United Nations (UN) to develop a hard law approach to sovereign debt restructuring, the FSB, we argue, is best positioned to strengthen and oversee the existing soft law approach, which currently prevails as the modus operandi of the present debt restructuring framework.

scholarly journals A Soft Law Mechanism for Sovereign Debt Restructuring Based on the UN Principles

2018 ◽  
pp. 446-457 ◽  
Author(s):  
Martin Guzman ◽  
Joseph E Stiglitz
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Sovereign Debt ◽  
Soft Law ◽  
Sovereign Immunity ◽  
Debt Restructuring ◽  
Private Practices ◽  
The Face ◽  
The United Nations ◽  
Critical Overview

This chapter provides a critical overview of the steps and measures taken by the United Nations and other multilateral organizations and actors to resolve chronic sovereign indebtedness and contrasts these with private practices that distort any multilateral outcomes, chiefly vulture funds and holdout creditors. These practices are further reinforced by the courts of jurisdictions willing to entertain suits against sovereigns, notwithstanding the human rights implications and the existence of debt restructuring processes, as well as the demise of sovereign immunity in the face of such suits.

The World Economic Forum Principles on "Climate Governance on Corporate Boards": can soft law help to face climate change around the world?

2020 ◽  
pp. 37-55
Author(s):  
Sabrina Bruno
Keyword(s):  
Climate Change ◽  
South Africa ◽  
Comparative Analysis ◽  
Boards Of Directors ◽  
Soft Law ◽  
Corporate Boards ◽  
World Economic Forum ◽  
Financial Factor ◽  
The World ◽  
World Economic

Climate change is a financial factor that carries with it risks and opportunities for companies. To support boards of directors of companies belonging to all jurisdictions, the World Economic Forum issued in January 2019 eight Principlescontaining both theoretical and practical provisions on: climate accountability, competence, governance, management, disclosure and dialogue. The paper analyses each Principle to understand scope and managerial consequences for boards and to evaluate whether the legal distinctions, among the various jurisdictions, may undermine the application of the Principles or, by contrast, despite the differences the Principles may be a useful and effective guidance to drive boards' of directors' conduct around the world in handling climate change challenges. Five jurisdictions are taken into consideration for this comparative analysis: Europe (and UK), US, Australia, South Africa and Canada. The conclusion is that the WEF Principles, as soft law, is the best possible instrument to address boards of directors of worldwide companies, harmonise their conduct and effectively help facing such global emergency.

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