International Investment Law and Financial Regulation: Towards a Deliberative Approach
20 Pages Posted: 11 Feb 2015 Last revised: 7 Jan 2017
Date Written: January 10, 2016
The paper analyzes conflicts between investment law and other fields of financial regulation, namely sovereign debt, bank regulation, and monetary law. While international (and domestic) economic law had long been based on the theory of functional separation according to which each segment of economic law and policy should pursue its objectives irrespective of the others, the financial crisis has cast serious doubts on this approach as it revealed their interdependence. Applying a deliberative approach to interpretation, the existing legal framework is capable of taking such interdependence into account. The paper uses holdout litigation in case of sovereign debt restructurings, bail-ins in case of bank insolvencies, and unconventional monetary policies as examples to demonstrate the deliberative approach.
Keywords: international investment law, financial regulation, deliberation, monetary policy, sovereign debt
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