International law on sovereign defaults is underdeveloped because
States have largely refrained from adjudicating disputes arising
out of public debt. The looming new wave of sovereign defaults is
likely to shift dispute resolution away from national courts to
international tribunals and transform the current regime for
restructuring sovereign debt. Michael Waibel assesses how
international tribunals balance creditor claims and sovereign
capacity to pay across time. The history of adjudicating sovereign
defaults internationally over the last 150 years offers a rich
repository of experience for future cases: US state defaults,
quasi-receiverships in the Dominican Republic and Ottoman Empire,
the Venezuela Preferential Case, the Soviet repudiation in 1917,
the League of Nations, the World War Foreign Debt Commission,
Germany's 30-year restructuring after 1918 and ICSID arbitration on
Argentina's default in 2001. The remarkable continuity in
international practice and jurisprudence suggests avenues for
building durable institutions capable of resolving future sovereign
defaults.
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