Sovereign Insolvency and International Legal Order

Author: Malaguti, Maria Chiara

Source: International Community Law Review, Volume 11, Number 3, September 2009 , pp. 307-326(20)

Publisher: Martinus Nijhoff Publishers, an imprint of Brill

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Abstract:

The rescue of States in a financial crises has been classically managed by way of official lending, mainly managed by the IMF, where international law played the major role. In most recent cases, to the contrary, this has mainly become a private law issue: since debtors, including sovereign, undertake exposure on a contractual basis, repayment or negotiation of the debt is governed by such same contract. These present a number of pitfalls and shortcomings which have been tried to be solved by a number of solutions. Each of them, however, not only is not fully satisfactory, but cannot take into account all interests at stake. To this end, a number of projects have been elaborated, to regulate the matter at the international level, starting from the Sovereign Debt Restructuring Mechanism of the IMF to other proposals of international bankruptcy codes, none of which has been adopted. The present contribution analyses the consequences of these proposals on sovereignty and how alternative approaches could better respond to international stances while respecting private tools.

Keywords: SOVEREIGN INSOLVENCY; HOLDOUT CREDITORS; COLLECTIVE ACTION CLAUSES; IMF SOVEREIGN DEBT-RESTRUCTURING MECHANISM; INTERNATIONAL SOVEREIGN BANKRUPTCY CODE

Document Type: Research article

DOI: http://dx.doi.org/10.1163/187197309X460564

Affiliations: 1: Professor of International Law, University of Salento, Italy

Publication date: 2009-09-01

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