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Sovereign Immunity, Insolvent States and Private Bondholders: Recent National and International Case Law

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Abstract This article deals with issues of sovereign immunity from foreign jurisdiction and enforcement, with respect to attempts by private bondholders to recover judicially their credit against a foreign State defaulting on its sovereign debt. It seeks to clarify these issues also in the broader context of cases where a foreign State relies on its insolvency situation as a plea to escape from recovery actions brought by private creditors on the basis of State contracts. In the case where the bonds may qualify as an “investment” under the relevant investment treaties, ICSID and other investor-State tribunals’ awards and their follow-up become relevant too, as shown in the Argentinian crisis and its moratorium on foreign debt. The article reviews recent case law issued by national courts where creditors have brought a claim or tried to have their judgment enforced. In the light of this, it critically highlights the recent bondholders’ practice of refusing the offer made by the ‘insolvent’ State under its debt restructuring plan while seeking to recover their outstanding debt through judicial means.

Affiliations: 1: University of Turin Italy


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