The doctrine of odious debt in international law : a restatement / by Jeff King.
2016
K4450 .K56 2016 (Map It)
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Details
Author
Title
The doctrine of odious debt in international law : a restatement / by Jeff King.
Published
Cambridge, United Kingdom : Cambridge University Press, 2016.
Call Number
K4450 .K56 2016
ISBN
9781107128019 (hardback)
1107128013 (hardback)
1107128013 (hardback)
Description
xvii, 222 pages ; 24 cm.
Other Standard Identifiers
40026118974
System Control No.
(OCoLC)926106086
Summary
"There has been a considerable amount of recent writing in civil society, legal academia, among commercial lawyers, and in UN agencies and the World Bank about the doctrine of odious debt. The surge in interest arose after the fall of Saddam Hussein's Iraq in 2003, and the claims by senior members of US President George W Bush's administration that Iraq's debt might be regarded as odious. The core idea of the doctrine as traditionally presented is that some sovereign debt claims are not binding or enforceable on account of the creditor's awareness of the fact that the proceeds of the loan would be used to oppress the population of the debtor state, or would be used for personal enrichment rather than public purposes. As this article will show, there has also been a substantial degree of skepticism about the legal status of the doctrine. The precedents are regarded as meager. Courts and tribunals have avoided ruling on its existence. Provisions on odious debt were deliberately omitted in the one relevant treaty on state succession to public debts. And the picture has been complicated by the existence of a widely diverging range of understandings of the doctrine, and especially of the putative requirement that public debts be for public purposes"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 198-212) and index.
Record Appears in
Table of Contents
List of figures
xii
Acknowledgements
xiii
List of abbreviations
xvi
ch. 1
Introduction
1
I.
Key Issues and an Outline of the Book
1
II.
Law and Policy of External Sovereign Debt: A Primer
6
A.
Early History: Banks, Gunboats and Reputation
7
B.
Lending in the Post-War Period: Banks, Brady and Bonds
11
C.
Growing Role of the Multilateral System
16
D.
Bilateral Element
19
E.
Restructuring, Holdouts and Bankruptcy
21
F.
Difference between Odious and Illegitimate Debt
27
G.
Conclusion
28
ch. 2
International Law, Sovereign Debt and Odious Debt
30
I.
Relevance of International Law
30
II.
Obligation to Repay Sovereign Debts
34
A.
State Succession
34
B.
Change of Government
39
C.
Domestic Law of Another State
44
III.
Odious Debt: A Brief Introduction
48
A.
Brief Legal History of the Doctrine
48
B.
Definitions of Odious Debt
51
1.
Sack, Bedjaoui and the `three criteria' approach
51
2.
need for a fresh start: types of odious debt
56
C.
Odious Debt in the Vienna Convention
57
ch. 3
Status of Odious Debts in International Law
62
I.
War Debts
64
A.
Practice and Treaties
64
B.
Opinions of Writers and General Principles of Law
66
C.
Illegal War Debts
68
II.
Subjugation Debts
69
A.
Opinions of Writers, Treaties and General Principles
70
B.
Precedents Concerning State Succession
72
1.
Mexican repudiation of European debts (1883)
72
2.
non-apportionment of debts relating to Cuba (1898)
73
3.
non-apportionment of the Baltic portion of imperial Russian debts (1920)
76
4.
non-apportionment of debts relating to Poland (1919)
78
5.
Various decolonisation debts (1761--1960s)
79
6.
Debts relating to Dutch administration of Indonesia (1949)
80
7.
Debts relating to French administration of Algeria (1962)
81
C.
Precedents Concerning Changes of Government
82
1.
Mexican repudiation (1883)
82
2.
Soviet repudiation and cancellation of Tsarist debts and loans (1918)
82
3.
Chinese repudiation of Hukuang railroad debts (1952)
84
4.
Subjugation debt write-downs? Argentina (2001), Iraq (2004) and Ecuador (2009)
87
D.
Negative Precedents
92
1.
non-assumption of certain pre-Anschluss Austrian debts (1938)
92
2.
Iran--United States tribunal award (1996)
93
E.
Defining `Subjugation': Jus Cogens, Human Rights and the High Threshold
95
III.
Illegal Occupation Debts
100
A.
Opinions of Writers
101
B.
Yugoslavia's Responsibility for World War II Croatian Debts (1956)
102
C.
Ethiopia's Responsibility for Italy's Debts (1957)
102
D.
Baltic Republics after the Dissolution of the USSR (1991)
103
E.
Eritrea's Responsibility for Ethiopia's Debts (1993)
104
F.
Namibia's Responsibility for South Africa's Debts (1994)
106
G.
Timor-Leste's Responsibility for Indonesian Debts (1999)
108
H.
Illegal Occupation Debts and Public Benefit
109
IV.
Corruption Debts
109
A.
Conventions and Declarations
110
B.
Opinions of Writers and General Principles of International Law
111
C.
Illustrations
113
1.
Ultra vires debts: Southern US States (1836--1880)
113
2.
Personal enrichment: the Tinoco arbitration (Costa Rica v Great Britain) (1923)
116
3.
Bribery or contracts procured through bribery
119
V.
Dispute Settlement and Unilateral Repudiation
123
VI.
Summary and Conclusion on Odious Debts in International Law
124
ch. 4
Enforceability of Odious Debts in Domestic Law
127
I.
`Public Policy' and International Law
128
A.
Three Types of `Public Policy'
128
B.
Domestic Public Policy
130
1.
Illegal contracts in English and American law
130
2.
Odious debts, international law and domestic public policy
132
C.
International Public Policy
133
1.
English law
133
2.
American law
135
3.
Other European jurisdictions
137
D.
Foreign Sovereigns in Domestic Courts: Act of State and Cognate Doctrines
139
II.
Lending for an Unlawful Purpose in the Law of Contract
146
A.
English Law
147
B.
American Law
153
C.
Note on German Private Law
157
III.
Non-Contractual Obligations
161
A.
Unjust Enrichment
161
B.
Good Faith and the Abuse of Rights
164
C.
Law of Agency and the Fiduciary Obligations of Government
167
1.
Obligations of agents to act for the benefit of the principal
168
2.
government as fiduciary
171
IV.
Summary and Conclusion on Odious Debts in Domestic Law
176
ch. 5
Conclusion
179
I.
Some Difficult Questions about the Application and Merit of a Restated Odious Debt Doctrine
181
A.
Destabilising Effects of an Odious Debt Doctrine
181
B.
Creditor Awareness and Dispersed Bondholders
183
C.
Restructured Odious Debt
186
D.
Fungibility Problem
188
E.
Ex Ante Proposal: Designating Odious Regimes
191
F.
Odious Debt Proof Lending
194
II.
Doctrine of Odious Debt: Pious or Possible?
195
Bibliography
198
Index
213