International Investment Law and the Global Financial Architecture (Edward Elgar), C. J. Tams, S. Schill, R. Hofmann (eds.), pp. 57-89, 2017

International Investment Law and Financial Regulation: Towards a Deliberative Approach

The paper analyzes conflicts between investment law and other fields of financial regulation, namely sovereign debt, bank regulation, and monetary law. While 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 others, the financial crisis has cast serious doubts on this approach as it revealed their interdependence. Applying a deliberative approach to interpretation, the existing legal framework is capable of taking such interdependence into account. The paper uses holdout litigation in case of sovereign debt restructurings, bail-ins in case of bank insolvencies, and unconventional monetary policies as examples to demonstrate the deliberative approach.