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States, Debt, and Power'Saints' and 'Sinners' in European History and Integration$
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Kenneth Dyson

Print publication date: 2014

Print ISBN-13: 9780198714071

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780198714071.001.0001

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Law, Public Debt, and the Paradoxes of Power

Law, Public Debt, and the Paradoxes of Power

(p.237) 8 Law, Public Debt, and the Paradoxes of Power
States, Debt, and Power

Kenneth Dyson

Oxford University Press

This chapter examines the framework of legal ideas and practices governing sovereign debt, notably default and debt restructuring. It looks at their basis in social contract theory with reference to Thomas Hobbes, John Locke, and Immanuel Kant. Particular attention is paid to the evolution of thought about property rights and about sovereign immunity, with reference to US and European case law. The chapter also looks at attempts to develop a framework of international law with reference to the ICSID Convention and bilateral investment treaties and to the attempts of the IMF and other international bodies to embed the notion of fairness in debt restructuring. The chapter then addresses the role of the EU and the role of soft law. It examines the use of the ‘bail-in’ of creditors and of collective-action clauses to hedge creditor power. The chapter closes by exploring some of the paradoxes of power revealed by an examination of law.

Keywords:   social contract, property rights, sovereign immunity, default, debt restructuring, bail-in, collective-action clause, EU, soft law, IMF

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