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The Conundrum of Public and Private Interests in Sovereign Debt: the Who, What, When, Where, and How of the Sovereign Loan from Russia to Ukraine
IRYNA ZAVERUKHA 3.24.20 FINAL (DO NOT DELETE) 3/24/2020 12:31 PM THE CONUNDRUM OF PUBLIC AND PRIVATE INTERESTS IN SOVEREIGN DEBT: THE WHO, WHAT, WHEN, WHERE, AND HOW OF THE SOVEREIGN LOAN FROM RUSSIA TO UKRAINE Iryna Zaverukha “Neither a borrower nor a lender be; for loan doth oft lose both itself and friend.” - William Shakespeare I. THE INVISIBLE PARTY IN SOVEREIGN LOAN AGREEMENTS ..................... 86 II. THE PARTIES, THE DECISION-MAKERS, AND INTERESTED SUBJECTS ..... 87 III. THE SOVEREIGN BORROWER ................................................................. 87 IV. CREDITORS OF SOVEREIGN BORROWERS .............................................. 91 V. THE CONUNDRUM OF PUBLIC AND PRIVATE INTERESTS ........................ 94 VI. THE FIDUCIARY SOVEREIGN, JUS COGENS, AND WHAT WENT WRONG IN UKRAINE .......................................................................................... 96 Professor of Law, Ukrainian Catholic University, L’viv, Ukraine, and Professor of Law, Kujawy and Pomorze University in Bydgoszcz, Poland; B.S., L’viv Banking College; J.D., Ivan Franko L’viv National University; LL.M., University of Southern California School of Law; Ph.D. Taras Shevchenko Kyiv National University; S.J.D., The Institute of Legislation of the Verkhovna Rada of Ukraine. The author thanks Professor Mitu Gulati, who introduced her to the concept of a fiduciary theory of jus cogens, as developed by Evan J. Criddle and Evan Fox- Decent, while she was an LL.M. student at the University of Southern California. 85 IRYNA ZAVERUKHA 3.24.20 FINAL (DO NOT DELETE) 3/24/2020 12:31 PM 86 Gonzaga Journal of International Law Vol. 22:2 I. THE INVISIBLE PARTY IN SOVEREIGN LOAN AGREEMENTS While a government loan is considered to be on behalf of the people and for their welfare, sovereign debt, the ultimate result of it, has tremendous potential to compromise the constitutional and international rights of the people. -
The Bretton Woods Debates : a Memoir / Raymond F
ESSAYS IN INTERNATIONAL FINANCE ESSAYS IN INTERNATIONAL FINANCE are published by the International Finance Section of the Department of Economics of Princeton University. The Section sponsors this series of publications, but the opinions expressed are those of the authors. The Section welcomes the submission of manuscripts for publication in this and its other series. Please see the Notice to Contributors at the back of this Essay. The author of this Essay, Raymond F. Mikesell, is Profes- sor of Economics at the University of Oregon. He was an economic advisor at the Bretton Woods conference in 1944 and a member of the staff of the President’s Council of Economic Advisors from 1955 to 1957. He was a senior research associate at the National Bureau of Economic Research from 1970 to 1974 and a consultant to the World Bank in 1968-69 and 1991-92. He has published a number of books and articles on international finance. This is his seventh contribution to the Section’s publications. PETER B. KENEN, Director International Finance Section INTERNATIONAL FINANCE SECTION EDITORIAL STAFF Peter B. Kenen, Director Margaret B. Riccardi, Editor Lillian Spais, Editorial Aide Lalitha H. Chandra, Subscriptions and Orders Library of Congress Cataloging-in-Publication Data Mikesell, Raymond Frech. The Bretton Woods debates : a memoir / Raymond F. Mikesell. p. cm. — (Essays in international finance, ISSN 0071-142X ; no. 192) Includes bibliographical references. ISBN 0-88165-099-4 (pbk.) : $8.00 1. United Nations Monetary and Financial Conference (1944: Bretton Woods, N.H.)—History 2. International Monetary Fund—History. 3. World Bank—History. I. -
Nine Lives of Neoliberalism
A Service of Leibniz-Informationszentrum econstor Wirtschaft Leibniz Information Centre Make Your Publications Visible. zbw for Economics Plehwe, Dieter (Ed.); Slobodian, Quinn (Ed.); Mirowski, Philip (Ed.) Book — Published Version Nine Lives of Neoliberalism Provided in Cooperation with: WZB Berlin Social Science Center Suggested Citation: Plehwe, Dieter (Ed.); Slobodian, Quinn (Ed.); Mirowski, Philip (Ed.) (2020) : Nine Lives of Neoliberalism, ISBN 978-1-78873-255-0, Verso, London, New York, NY, https://www.versobooks.com/books/3075-nine-lives-of-neoliberalism This Version is available at: http://hdl.handle.net/10419/215796 Standard-Nutzungsbedingungen: Terms of use: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Documents in EconStor may be saved and copied for your Zwecken und zum Privatgebrauch gespeichert und kopiert werden. personal and scholarly purposes. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle You are not to copy documents for public or commercial Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich purposes, to exhibit the documents publicly, to make them machen, vertreiben oder anderweitig nutzen. publicly available on the internet, or to distribute or otherwise use the documents in public. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, If the documents have been made available under an Open gelten abweichend von diesen Nutzungsbedingungen die in der dort Content Licence (especially Creative -
From Bretton Woods to the Information Age
CHAPTER 17 From Bretton Woods to the Information Age The general evolution of the international monetary system since the Bretton Woods conference has been a movement away from rules and toward cooperation. Increased information has played the role previously occupied by a legal or quasi-legal framework. This development constitutes the funda- mental challenge, and opportunity, faced by international financial institu- tions. The satisfaction of this demand for the reliable provision of information and analysis will become their principal raison d'etre. The Historical Argument The construction of the postwar international monetary system came as a result of a general agreement that a repetition of the economic and political nationalism of the 1930s could and should be avoided. The interwar experi- ence had provided a vivid and terrifying demonstration of how the collapse of the economic order could bring political and social fragmentation. In the new order, a commitment to keep stable but adjustable exchange rates would eliminate the temptation to engage in competitive devaluation. Controls on capital movements would eliminate the big speculative flows that had de- stroyed the exchange rate regime of the interwar period. The essential insight of the new vision was that harmonious interstate relations involved a willing- ness to agree on the surrender of some aspects of national sovereignty. The agreements produced at Bretton Woods combined a vision of a liberal world economy with a rule. The rule's primary purpose was to constrain 586 "I seem to be without any small change. Would you accept a 'Special Drawing Rights' voucher?" 588 INTERNATIONAL MONETARY COOPERATION national economic policies in cases where otherwise the interaction of differ- ent national strategies might cause disaster for the world as a whole (in currency policy, competitive devaluations; in trade policy, the application of protectionism). -
Who Cares for the Future
WHO CARES FOR THE FUTURE: FINANCE GENDER RESPONSIVE PUBLIC SERVICES! FULL REPORT There is an expanded 24 page summary with the key findings of this report available on ActionAid’s website – which you can access HERE. You can also find on our website the key country data we collated from IMF documents and a detailed methodological note for our research on progressive tax. Cover Photograph: Nurse Margaret Kasolo, 57, at Kawala Health Center IV in Kampala, Uganda. Sexual and reproductive health facilities are overstretched and under-resourced. Esther Mbabazi/ActionAid CONTENTS ACKNOWLEDGMENTS 2 1 WHY UNPAID CARE AND DOMESTIC WORK MATTERS 3 1.1 Making injustice visible 3 1.2 Understanding unpaid care and domestic work 6 1.3 Reframing the economy 8 2 HOW GENDER RESPONSIVE PUBLIC SERVICES REDUCE 10 UNPAID CARE AND DOMESTIC WORK BURDENS 2.1 Introduction 10 2.2 Education and Early Childcare 11 2.3 Health and SRHR 17 2.4 Water and sanitation 22 2.5 How to achieve gender responsive public services: towards a common framework 26 3 THE IMPACT OF THE NEW DEBT CRISIS ON PUBLIC SERVICES 31 3.1 A look back 31 3.2 Why are we back in crisis mode? 33 3.3 The magnitude of the new crisis 35 3.4 The impact on public services 42 3.5 What can be done? 43 3.6 What action on debt could pay for in public services 47 4 THE IMPACT OF THE IMF ON PUBLIC SERVICES 49 4.1 The IMF’s history and functions 49 4.2 Our research methodology on IMF policy advice 51 4.3 The nature of IMF conditionality today 52 4.4 The IMF adjusting to the 21st century 54 4.5 Findings from our -
Just Before Bretton Woods: the Atlantic City Conference, June 1944
JUST BEFORE BRETTON WOODS: THE ATLANTIC CITY CONFERENCE, JUNE 1944 Just Before Bretton Woods: The Atlantic City Conference, June 1944 Edited by Kurt Schuler and Gabrielle Canning CENTER FOR FINANCIAL STABILITY NEW YORK Copyright 2019 by Kurt Schuler and Gabrielle Canning. All rights reserved. Until 2030, no part of this book may be reproduced or transmitted in any form without written permission from the authors. Send requests to Kurt Schuler, <[email protected]>. Starting in 2030, the authors permit anyone to reproduce the electronic edition of the book and the online companion files, provided that there is no alteration to the original content and that distribution to readers is free. The authors continue to reserve all other rights, including the rights to the print edition and translation rights. E-book and print editions published 2019 by the Center for Financial Stability, 1120 Avenue of the Americas, 4th floor, New York, NY 10036 Cover by Laneen Wells, Sublation Studio; front cover design inspired by the Claridge Hotel, Atlantic City Online companion files to this book are available at the Web site of the Center for Financial Stability, <www.centerforfinancialstability.org> Cataloging data will be available from the Library of Congress ISBN 978-1-941801-04-8 (e-book), 978-1-941801-05-5 (hardcover) The Center for Financial Stability (CFS) is a private, nonprofit institution focusing on global finance and markets. Its research is nonpartisan. This publication reflects the judgments of the authors. It does not necessarily represent the views of members of the Center’s Advisory Board or Trustees, or their affiliated organizations. -
Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes
01__BACKER.DOC 3/14/2008 12:57:53 PM ODIOUS DEBT WEARS TWO FACES: SYSTEMIC ILLEGITIMACY, PROBLEMS, AND OPPORTUNITIES IN TRADITIONAL ODIOUS DEBT CONCEPTIONS IN GLOBALIZED ECONOMIC REGIMES LARRY CATÁ BACKER* I INTRODUCTION In the early 1980s, the People’s Republic of China (PRC) resisted a lawsuit filed in U.S. federal court seeking to enforce obligations to pay on defaulted bearer bonds issued by the Chinese Imperial government in 1911.1 The PRC maintained, in part, that it had no obligation to pay because “the Chinese view the bonds as an improper part of the Western powers’ domination of China at the beginning of this century and as a direct cause of the Revolution of 1911.”2 This political reality, China argued, had a substantive legal consequence: “the PRC maintains that under the principle of non-liability for ‘odious debts’ China bears no responsibility for the bonds.”3 The case was ultimately dismissed on other grounds.4 After the overthrow of Iraq’s leader Saddam Hussein, Perweez Mohammed of the Patriotic Union of Kurdistan urged the repudiation of Iraq’s sovereign debt incurred under the Hussein regime for the purpose of maintaining itself in power and invading Iran. He argued that the “creditors’ cooperation enabled Saddam to preside over atrocities such as Halabja. Saddam never spent money for the benefit of the Iraqi people, but just for himself and his followers.”5 Copyright © 2007 by Larry Catá Backer. This Article is also available at http://www.law.duke.edu/journals/lcp. * Professor of Law, Pennsylvania State University. The author may be contacted at [email protected]. -
Odious Debt: the Terms of the Debate
NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 32 Number 4 Article 1 Summer 2007 Odious Debt: The Terms of the Debate Jeff A. King Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Recommended Citation Jeff A. King, Odious Debt: The Terms of the Debate, 32 N.C. J. INT'L L. 605 (2006). Available at: https://scholarship.law.unc.edu/ncilj/vol32/iss4/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Odious Debt: The Terms of the Debate Cover Page Footnote International Law; Commercial Law; Law This article is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol32/ iss4/1 Odious Debt: The Terms of the Debate Jeff A. King t TABLE OF CONTENTS I. Introduction ....................................................................... 606 II. The Rule of Repayment in State and Government S uccession ......................................................................... 608 A. The Nature of the Burden of Proof ............................. 608 B. The Rule of Repayment in State Succession .............. 609 C. The Rule of Repayment in Government Succession ..614 D. Expediency and the Opinio Juris of the Rule of R epaym ent .................................................................. 6 15 III. Definitions of Odious Debt ................................................ 621 A. A Brief Legal History of the Doctrine ........................ 621 B. Earlier Legal Definitions ............................................. 623 1. Sack's D efinition ................................................... 623 2. Feilchenfeld's Definition ....................................... 625 3. Bedjaoui's Definition ............................................ 627 4. Established Types of Odious Debt ....................... -
Restructuring the Odious Debt Exception
\\server05\productn\B\BIN\25-2\BIN202.txt unknown Seq: 1 12-MAR-08 15:40 RESTRUCTURING THE ODIOUS DEBT EXCEPTION Bradley N. Lewis* I. INTRODUCTION ............................................ 297 R II. THE ODIOUS DEBT “DOCTRINE”.......................... 300 R A. Origins ................................................ 301 R B. Critiques .............................................. 305 R III. THE ODIOUS EXPENDITURE DOCTRINE .................... 307 R A. Odious Expenditure Analysis .......................... 308 R 1. Definition ......................................... 309 R 2. Challenges to Tractability ......................... 314 R a. False Negatives and False Positives ............. 314 R b. Internationally Illegal Acts ..................... 316 R c. The Peer State Standard ....................... 318 R d. The Public Benefit Exception .................. 319 R e. Intractability by Volume ....................... 320 R B. Cancellation Analysis .................................. 322 R 1. Filtering the Eligible Claims ....................... 322 R 2. Justifying Redundancy............................. 329 R IV. IMPLEMENTATION ......................................... 330 R A. The Case For a Separate Doctrine ..................... 331 R B. Options in International Law .......................... 333 R 1. Multilateral Treaty ................................ 333 R 2. Bilateral Investment Treaties ...................... 335 R 3. The Sovereign Debt Restructuring Mechanism .... 337 R V. CONCLUSION ............................................. -
Insolvency Principles and the Doctrine of Odious Debts: The
INSOLVENCY PRINCIPLES AND THE ODIOUS DEBT DOCTRINE: THE MISSING LINK IN THE DEBATE ∗ A. MECHELE DICKERSON Abstract: The mounting costs associated with the War in Iraq has intensified the international human rights community’s attention to the staggering amount of debt that any future Iraqi government will confront. Some politicians in this country, as well as many members of the international human rights community, argue that it is fundamentally unfair to force the Iraqi people to repay funds that Saddam Hussein’s brutal regime used – at least in some instances – to oppress them and violate their basic human rights. Moreover, many suggest that rich (creditor) countries have a moral duty or obligation to protect citizens of poor (debtor) countries and that richer nations should forgive the debts of poorer nations to help reduce existing inequalities between developed and developing countries. Until recently, arguments that successor governments should not be forced to repay the debts of former leaders or regimes relied almost exclusively on philosophical or humanitarian grounds. This Article seeks to shift the discussion from the human rights, to the insolvency, arena. The Article does not attempt to outline a framework that should be used to determine whether a debt should be declared odious nor does it propose any specific entity that should have the authority to determine the odiousness of a debt. Instead, the Article evaluates the doctrine of odious debts using the insolvency framework found in the United States Bankruptcy Code. In considering what obligations a sovereign should have to repay a former regime’s debts, the Article emphasizes that even sovereigns who refuse to repay their debts cannot be liquidated and that even leaders who refuse to repay the sovereign’s debts cannot be replaced by lenders (at least not without military assistance). -
The Evolving Nature of Developing Country Debt and Solutions for Change by Bodo Ellmers • July 2016
The evolving nature of developing country debt and solutions for change By Bodo Ellmers • July 2016 A Eurodad discussion paper 1 Contents Executive summary 3 Introduction 4 Part 1: The evolving nature of developing country debt 5 Chapter 1: Debt is on the rise again 5 Chapter 2: The risk of new debt crises 7 Chapter 3: New debt crises will be different from the last ones 8 Chapter 4: Implications for debt crisis management 12 Chapter 5: The new landscape makes debt crisis prevention and resolution even more difficult 16 Part 2: Ending debt crises: Towards effective prevention and resolution 17 Chapter 6: Putting people first: Ensuring the primacy of human rights over debt service 18 Chapter 7: Preventing debt crises: Promoting responsible lending and borrowing 21 Chapter 8: Resolving debt crises: An international debt workout mechanism 24 Conclusion 30 References 31 With financial support from: Executive summary This Eurodad discussion paper is being published at a time Some lenders introduced safeguards to prevent harm when the impacts of the last global financial crisis that – examples include the World Bank’s safeguards or the started almost ten years ago are still being felt in many International Monetary Fund (IMF)’s debt sustainability countries. At the same time, a new debt crisis triggered framework. However, these lenders are providing a by falling commodity prices and volatile capital flows has decreasing share of finance. The main institution for debt already hit some countries in the developing world. crises resolution today is the Western bilateral official creditors’ Paris Club, but this type of debt represents a The debt burden of developing countries has reached the decreasing share of total debt, and of the total contemporary highest level ever seen. -
Incorporating the Fresh Start Into Sovereign Debt Restructuring Through Odious Debt
Cornell Law Review Volume 104 Issue 6 September 2019 Article 5 9-2019 Incorporating the Fresh Start into Sovereign Debt Restructuring through Odious Debt Matthew B. Masaro Cornell Law School Follow this and additional works at: https://scholarship.law.cornell.edu/clr Part of the Bankruptcy Law Commons Recommended Citation Matthew B. Masaro, Incorporating the Fresh Start into Sovereign Debt Restructuring through Odious Debt, 104 Cornell L. Rev. 1643 (2020) Available at: https://scholarship.law.cornell.edu/clr/vol104/iss6/5 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE INCORPORATING THE FRESH START INTO SOVEREIGN DEBT RESTRUCTURING THROUGH ODIOUS DEBT Matthew B. Masarot INTRODUCTION .......................................... 1644 1. THE FRESH START IN CONSUMER BANKRUPTCY ........ 1645 A. (Socio)Economic Policy Rationales ............ 1647 B. Morality-Based Policy Rationales ............. 1650 1. Debts Exempt from Discharge............ 1652 II. SOVEREIGN DEBT, INSOLVENCY, AND DEFAULT ........ 1653 A. What is Sovereign Debt? ..................... 1653 B. Sovereign Default and Recourse? ............ 1655 1. Sovereign Debt Dischargeability.......... 1658 III. THE FRESH START AS A POLICY OBJECTIVE FOR SOVEREIGNS ................................... 1659 A. Economic Policy Rationales for a Sovereign Fresh Start Policy .......................... 1660 B. Morality-Based Policy Rationales for a Sovereign Fresh Start Policy ................. 1664 1. InternationalLaw and Sovereign Debt..... 1665 IV. THE ODIOUS DEBT DOCTRINE ..................... 1667 A. The Odious Debt Doctrine as a Moral Obligation ................................... 1668 1. The U.S. Bankruptcy Code and Odious Debt....................................