Download this Paper Open PDF in Browser

Arbitration as a Means of Resolving Sovereign Debt Disputes

17(3) American Review of International Arbitration 335 (2006)

50 Pages Posted: 17 Sep 2007 Last revised: 20 Aug 2008

Karen Halverson Cross

John Marshall Law School in Chicago

Abstract

In September 2006, a group of Italian holders of Argentine defaulted debt submitted a request for arbitration to the International Centre for Settlement of Investment Disputes (ICSID), claiming that Argentina's actions in connection with debt issued by it and held by the Italian claimants breached Argentina's obligations under a bilateral investment treaty (BIT) between Argentina and Italy. Although arbitration of sovereign debt disputes is not unprecedented, it is unusual. Contracts with sovereign debtors typically provide, not for arbitration of disputes, but rather submission to the jurisdiction of courts of the creditors' choosing.

This article considers several questions. The narrow question, which is implicated by the Italian bondholders' claim, is whether ICSID has jurisdiction to resolve a dispute brought by holders of defaulted sovereign debt pursuant to a BIT. The more general question, however, is why the Italian bondholders are attempting to invoke arbitration rather than litigating the dispute in New York court. This article suggests that in the sovereign debt context, arbitration is potentially a more attractive dispute resolution mechanism than litigation. The persistent absence of arbitration clauses from sovereign debt contracts may be attributable to the lock-in effects of standardized contract terms, and not to the relative merits of arbitration versus litigation.

Keywords: arbitration, sovereign debt, ICSID

Suggested Citation

Cross, Karen Halverson, Arbitration as a Means of Resolving Sovereign Debt Disputes. 17(3) American Review of International Arbitration 335 (2006). Available at SSRN: https://ssrn.com/abstract=1014833

Karen H. Cross (Contact Author)

John Marshall Law School in Chicago ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Paper statistics

Downloads
854
Rank
22,234
Abstract Views
3,318