Reconciling the Irreconcilable? Sovereign Debt Restructuring and the Principles of International Law. A Law and Economics Perspective

This Thesis focuses on the principles of international law relevant to the resolution of legal disputes arising from sovereign insolvency conflicts. It attempts to contribute to the “incremental” approach literature by identifying principles, justifying their application in litigation and assessing whether they may help to reconcile the trade-offs prevalent in that context. For that purpose, this Thesis distinguishes between two different types of principles. First, it investigates the “Principles of Public International Law” (henceforth, “PIL principles”). Said category refers to norms of the law of nations which can be considered functionally and structurally similar to domestic constitutional principles (i.e., that can be regarded as “optimization” or “prima facie” requirements). This Thesis underscores the PIL principles protecting the interests of the creditors and citizens as well as the “public interest”, arguing that decision makers face a trade-off between these principles in the context of restructurings. Secondly, this Thesis inquires into the “general principles of domestic law” (henceforth, “GPDs”) which can be applied in sovereign debt restructuring. Two GPDs are identified: a “stay” on litigation and a “cram down” on dissenting creditors’ claims. Although both principles have been identified by the prior literature, this work advances a small but significant “twist” in the methodology used for that purpose: it relies exclusively on functional and comparative analysis. Moreover, this work justifies the application of said GPDs for two jurisdictions: New York and Germany. Finally, it posits that those GPDs can help to mitigate the trade-offs between PIL principles, thus reconciling the interests at stake.

Escaping the debt trap: peripheral countries in prolonged debt crises and how to exit

This thesis is an interdisciplinary piece of academic research, situated within Critical Theory but engaging with other disciplines, mainly Political Economy and Politics, to tackle the topic at hand; sovereign debt crises. The thesis deals with the Problem of Debt and, more specifically, the Problem of Prolonged Sovereign Debt Crises, which is described in this thesis as the phenomenon of the “Debt Trap”. The specific question that will occupy us in this thesis is why countries appear unable to exit these prolonged debt crises. By exiting a debt crisis, we mean here a state of affairs in which a country has managed to render its debt sustainable, regain its democratic sovereignty, achieve economic recovery and, what is more, mitigate adverse effects of the crisis, especially in what human development, social inequality and poverty rates are concerned. This question is tackled through the use of an interdisciplinary approach that combines critical theory perspectives -which are grouped in two paradigms, the Subjectivity paradigm and the genealogies of Capitalism paradigm- with financialisation literature. The purpose is to form an interdisciplinary intellectual framework that will allow us to analyse with a critical perspective the two case studies of the Greek crisis from 2009 to 2015 and the Argentinean crisis from 1983 to 2005. The aim of the thesis is to develop a theoretical framework that allows us to deconstruct the various ideological approaches to these two particular cases of Debt traps, including neoclassical and neoliberal approaches, Conservative and Keynesian approaches and uncover the political, economic and class relation that underpin the prolonged crises that the two countries have experienced.

Sovereign wealth funds and state immunity

The study sheds light on the application of the rule of state immunity to sovereign wealth funds (SWFs). SWFs are Janus-faced investment vehicles established by their parent states to invest public resources in financial markets, with the aim of increasing long-term returns and pursuing macroeconomic goals. The ultimate purpose of the study is to assess if the hybrid nature of SWFs results in changes to the rule of state immunity when applied to them, and whether a generally accepted standard in this regard can be deduced from state practice. The research is conducted through a comparative analysis. It is based on the provisions of the UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI), as well as on six domestic jurisdictions (US, UK, France, Germany, Italy and China) among those that have contributed most significantly to the international debate on state immunity and which host the largest amount of SWF investments.