Financial Disputes in International Courts

Federico Lupo-Pasini

Journal of International Economic Law, 2018, vol. 21, issue 1, 1-30

Abstract: The question of adjudication in international financial law has rarely been analysed comprehensively in the legal literature. This can probably be explained with the fact that, unlike in other areas of international economic law, there is no international financial court specifically designed to adjudicate international disputes between financial regulators, or between governments and financial institutions or investors. Moreover, the informality of regulatory cooperation through Transnational Regulatory Networks (TRNs), the use of soft laws to regulate international financial relations, and the presence of prudential carve-outs in international treaties was supposed to keep financial supervisory and regulatory authorities free from international scrutiny and to limit the judicial review of regulatory measures to a purely domestic exercise. Yet, financial measures are increasingly challenged in international investment tribunals, human rights courts, and regional courts. From 1995 to 2016, there have been more than 100 known international disputes on financial services, of which roughly two-thirds involved a supervisory measure such as the resolution or bankruptcy of an insolvent bank or the imposition of supervisory fines. The remaining claims mostly included violation of sovereign debt contracts, or emergency legislation affecting financial services. Investment arbitrations, in particular, are considerably on the rise. The increased number of regulatory disputes represents fundamental implications for the financial regulatory community in terms of domestic governance, regulatory cooperation, and global financial stability. This essay empirically investigates and maps for the first time the patterns of international adjudication in financial law, and comments on what the rise of international litigation means for the global financial architecture.

Date: 2018
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