International Investment Law and the Global Financial Architecture
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International Investment Law and the Global Financial Architecture

Edited by Christian J. Tams, Stephan W. Schill and Rainer Hofmann

This book explores whether investment law should protect against such regulatory measures, including where these have the support of multilateral institutions. It considers where the line should be drawn between legitimate regulation and undue interference with investor rights and, equally importantly, who draws it.
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Chapter 9: Bank rescue measures under international investment law: What role for the principle of causation?

Anna De Luca

Abstract

This chapter highlights the relevance of investment law as a potential limit to State measures for securing financial stability, as well as the features of investment disputes brought in response to bank rescue measures. Contrary to what occurs in a typical investment case, in arbitration proceedings brought against rescue measures it is by no means certain whether the claimants actually suffered losses. The chapter begins by asking whether economic loss is a necessary element of a BIT breach (section II). Having concluded in the affirmative, the analysis turns to questions of causation proper, which is first addressed in general terms (section III), and then with a particular focus on intervening causes potential breaking the causal link between State conduct and economic loss (section IV). The final section (section V) concludes and highlights the possible relevance of newly emerging prudential standards on bank resolution and recovery for investment disputes. Keywords: investment arbitration, financial stability, bank rescue measures, economic losses, causation, newly emerging prudential standards

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