Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring

Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for... Whereas investment treaties and arbitration rules do not usually provide any explicit provision for mass claims in investment treaty arbitration, the Tribunal in Abaclat v Argentina established a landmark jurisprudence that allowed a massive 60,000 investors to bundle and bring their claims before a single arbitral tribunal. However, its reasoning has been severely criticised for its conclusion, which apparently favours bondholder protection at the expense of financial policy leeway of defaulted sovereigns: investment arbitration may adversely affect the orderly implementation of sovereign debt restructuring. This article attempts to take a more balanced approach towards this issue, by focusing on regulatory aspects of arbitral proceedings. A ‘regulatory’ investment treaty arbitration will not only provide creditor protection by opening the door for mass claims, but will also show a deference to an orderly restructuring by closing the door if circumstances so require. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring

Journal of World Investment and Trade, Volume 19 (2): 40 – Apr 6, 2018

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/22119000-12340071
Publisher site
See Article on Publisher Site

Abstract

Whereas investment treaties and arbitration rules do not usually provide any explicit provision for mass claims in investment treaty arbitration, the Tribunal in Abaclat v Argentina established a landmark jurisprudence that allowed a massive 60,000 investors to bundle and bring their claims before a single arbitral tribunal. However, its reasoning has been severely criticised for its conclusion, which apparently favours bondholder protection at the expense of financial policy leeway of defaulted sovereigns: investment arbitration may adversely affect the orderly implementation of sovereign debt restructuring. This article attempts to take a more balanced approach towards this issue, by focusing on regulatory aspects of arbitral proceedings. A ‘regulatory’ investment treaty arbitration will not only provide creditor protection by opening the door for mass claims, but will also show a deference to an orderly restructuring by closing the door if circumstances so require.

Journal

Journal of World Investment and TradeBrill

Published: Apr 6, 2018

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