Edited by Christian J. Tams, Stephan W. Schill and Rainer Hofmann
Chapter 3: International investment law and financial regulation: Towards a deliberative approach
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
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