Edited by Christian J. Tams, Professor of International Law, University of Glasgow, UK, Stephan W. Schill, Professor of International and Economic Law and Governance, University of Amsterdam, the Netherlands and Rainer Hofmann, Professor of Public Law, Public International Law and European Law, University of Frankfurt, Germany
This book addresses how international investment law interacts with the (re-)regulation of financial and capital markets, in particular in the sovereign debt and banking sectors. It considers where the line should be drawn between legitimate regulation and undue interference with investor rights and, equally importantly, who draws it.
The global crises of the early 21st century have tested the international financial architecture. In seeking to ensure stability, governments have regulated financial and capital markets. This in turn has implicated international investment law, which investors have invoked as a shield against debt restructuring, bail-ins or bail-outs. This book explores whether investment law should protect against such regulatory measures, including where these have the support of multilateral institutions. It considers where the line should be drawn between legitimate regulation and undue interference with investor rights and, equally importantly, who draws it.
Across the diverse chapters herein, expert international scholars assess the key challenges facing decision makers, analyse arbitral and treaty practice and evaluate ways towards a balanced system of investment protection in the financial sector. In doing so, they offer a detailed analysis of the interaction between investment protection and financial regulation in fields such as sovereign debt restructuring and bank rescue measures.
Combining high-level analysis with a detailed assessment of controversial legal issues, this book will provide guidance for both academics and legal practitioners working in international economic law, international arbitration, investment law, international banking and financial law.
‘The first book on the evolving panorama between the legal worlds of finances and of investment: new topics, new cases, new ideas. Timely, comprehensive, full of details embedded in the grander picture.’
– Rudolf Dolzer, University of Bonn, former Director of the Institute of International Law, Germany
‘This timely book examines how investment law rubs up against the global financial architecture. The tension between state regulatory autonomy and the review of states' measures by investment tribunals is often acute. For policymakers the stakes are particularly high. The book offers an admirable and comprehensive exploration of how these two regimes with very different rationales interact.’
– Michael Waibel, University of Cambridge, UK
‘This book closes a serious gap in the writings on international investment law. It explores the complex relationship between investment law and international finance, dealing with sovereign debt restructuring, bank rescues, monetary transfers and related topics. In doing so, it addresses the competing goals and divergent methodologies of the two fields and the potential tension between investment protection and broader macroeconomic concerns. A must in every library on international investment law and international finance.’
– Christoph Schreuer, University of Vienna, Austria
Contributors: A. Asteriti, P. Athanassiou, C.N. Brower, A. De Luca, A. Goetz-Charlier, M. Goldmann, A. Gourgourinis, R. Hofmann, H. Kupelyants, Y. Li, M. Mendelson, M.W. Müller, C. Ohler, M. Paparinskis, P. Ranjan, S.W. Schill, M. Sudreau, C.J. Tams
Part I Overarching Perspectives
1. International Investment Law and the Global Financial Architecture: Identifying Linkages, Mapping Interactions
Christian J. Tams, Stephan W. Schill and Rainer Hofmann
2. International Investment Arbitration and the Global Financial System: Are They ‘Yin’ and ‘Yang’ or Like Oil and Water?
Charles N. Brower and Alexandra Goetz-Charlier
3. International Investment Law and Financial Regulation: Towards a Deliberative Approach
Part II Sovereign Debt Restructurings
4. Police Powers of the State in Sovereign Debt Restructurings
5. Restructuring Sovereign Debt on the Basis of Collective Action Clauses
6. Sovereign Bond Disputes Before Investment Treaty Tribunals: Safeguarding the Exercise of Collective Action Clauses With a Single-Limb Voting Mechanism
7. Bilateral Investment Treaties and the Principles on Responsible Sovereign Lending and Borrowing: Working Together Towards the Provision of an International Legal Framework Addressing Sovereign Debt Issues?
Part III Bank Rescue Measures
8. Bail-Ins and International Investment Law: In and Beyond Cyprus
Maurice Mendelson QC and Martins Paparinskis
9. Bank Rescue Measures Under International Investment Law: What Role for the Principle Of Causation?
Anna De Luca
10. BITs and Pieces: Reflections on the Relevance of BITs in Resolution-Related Litigation
Part IV Alternative Claims and Defences, New Actors
11. Capital-Flow Management Measures and International Investment Law – Never the Twain Shall Meet?
12. Crisis as Force Majeure Under International Law and Eu Law: Defending Emergency Measures, À La Européenne, In Investment Arbitration Under Intra-EU BITs
13. International Financial Institutions in Investment Law and Arbitration
Michael Wolfgang Müller