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8 - Checks and Balances at the Stage of Merits

from Part II - Regulation through Treaty and Arbitration

Published online by Cambridge University Press:  15 September 2022

Kei Nakajima
Affiliation:
University of Tokyo
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Summary

Finally, the checks and balances of sovereign debt restructuring by investment tribunals are also implemented as a matter of the interpretation of the substantive provisions. Given that investment arbitral jurisprudence has incorporated the doctrine of margin of appreciation, the study has concluded that a deferential review of policy decision-making by debtor sovereigns is available and appropriate for arbitral tribunals. Concretely, the arbitral jurisprudence on the provisions providing standards of protection and defence on merits may afford a balancing exercise that enables safeguarding the legitimate policy of debt restructuring without sacrificing bondholder protection.

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Publisher: Cambridge University Press
Print publication year: 2022

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