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3 - Sovereign Immunities and Other Statutory Mechanisms Regulating Holdout Litigation

from Part I - Regulation through Contract and Litigation

Published online by Cambridge University Press:  15 September 2022

Kei Nakajima
Affiliation:
University of Tokyo
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Summary

Given that modern sovereign bonds usually contain the choice of forum clause designating domestic courts to enforce the contractual terms of such instruments, sovereign immunities are among the foremost options for debtor sovereigns to forestall bondholder litigation. This study has concluded that contractual arrangements and statutory provisions on the waiver of immunities represent a fair balance between bondholders’ access to judicial remedies and respect for sovereign debt restructuring. In general, the broad waiver of jurisdictional immunity maintains the option for a holdout, whereas immunity from measures of constraint may prevent eventual enforcement against the assets held by defaulting sovereigns. Such a consequence does not unduly undermine the interests of bondholders, insofar as holdout strategies are envisaged in practice to gain leverage in a debt restructuring negotiation rather than to enforce contractual rights through litigation. In addition, an option of a stay of proceedings available in some jurisdictions may provide a basis for the courts to indirectly regulate the progress of sovereign debt restructuring by imposing and lifting a stay of proceedings.

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Publisher: Cambridge University Press
Print publication year: 2022

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