The chapter analyses conflicts between investment law and other fields of financial regulation, namely sovereign debt, bank regulation, and monetary law. 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 other segments. However, the financial crisis has cast serious doubts on this approach, revealing their interdependence. Applying a deliberative approach to the interpretation of international law, the existing legal framework is capable of taking such interdependence into account and of reaching more holistic solutions. The chapter discusses three examples – holdout litigation in case of sovereign debt restructurings, bail-ins in case of bank insolvencies, and unconventional monetary policies – to demonstrate and test the deliberative approach. Keywords: international investment law, financial regulation, deliberation, monetary policy, sovereign debt, legal interpretation
This chapter first explains the epistemological underpinnings that make constitutional pluralism a paradox defying unitary solutions such as monism or primacy. The paradoxical nature of constitutional pluralism in the European Union does not, however, inevitably lead to instability in the relations between different legal orders, or to assaults on legal certainty. Reconstructing the vertical and horizontal relationships between different legal orders or spheres of competence in the European legal space, the chapter argues that the actors involved frequently seek to stabilize them by ‘mutually assured discretion’. This designates a relationship between two legal orders (or two actors) organized by interdependent legal concepts which are often deliberatively vague and grant actors in each legal order (or sphere of competence) a fair amount of discretion, while their decisions remain subject to contestation through rational discourse. This entices self-discipline within actors in both legal orders (or spheres of competence).
This chapter critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the chapter argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the chapter shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the end of the nineteenth century and the beginning of the twentieth, with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the reemergence of relative normativity. This has prompted a theoretical debate in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The chapter concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law and human rights are therefore more necessary than ever.
This chapter sets out the social rights obligations of both public financial institutions such as the World Bank and the IMF, and private financial institutions such as banks. Moving beyond doctrinal analysis, it traces how the World Bank and the IMF have in practice over time improved their compliance with social rights. By contrast, the private sector has made little progress. Initiatives such as the Equator Principles turned out to be underwhelming, and the project of a binding treaty might yield modest results only. Nevertheless, there are inherent limitations to social rights in relation to financial institutions. Judicial review faces structural limitations and may only filter the most egregious cases. It is therefore necessary to make social rights an integrated part of decisionmaking in international organizations and include social risks in the calculation of regulatory capital for private financial institutions. This might prepare financial institutions for the possible transition to a postgrowth society.