Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring
In: The Journal of World Investment & TradeSearch for other papers by Kei Nakajima in
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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.
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Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring
In: The Journal of World Investment & TradeSearch for other papers by Kei Nakajima in
Current site
Google Scholar
PubMed
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.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 999 | 74 | 3 |
| Full Text Views | 434 | 2 | 0 |
| PDF Views & Downloads | 277 | 7 | 0 |
