Legal Implications of the Euro Zone Crisis

Name: Legal Implications of the Euro Zone Crisis | Debt Restructuring, Sovereign Default and Euro Zone Exit
Brand: Kluwer Law International
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Debt Restructuring, Sovereign Default and Euro Zone Exit

Tolek Petch(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 14. Juli 2014

456 Seiten

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Cover
Half Title Page
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
Introduction
CHAPTER 1 The Origins of the Crisis
CHAPTER 2 The EFSM, EFSF and the ESM
§2.01 THE MAASTRICHT TREATY
[A] Treaty Provisions
[B] Default and the EU Treaties
§2.02 THE GREEK BAIL-OUTS
[A] The First EU/IMF Package
[B] The Second EU/IMF Package
[C] Private Sector Involvement
[D] Introducing Collective Action Clauses
[E] Towards the Third Memorandum
§2.03 THE EUROPEAN FINANCIAL STABILISATION MECHANISM
[A] Legal Basis
[B] Procedure for Borrowing
§2.04 THE EUROPEAN FINANCIAL STABILITY FACILITY
[A] EFSF Framework Agreement
[B] Procedure for Borrowing
[C] Guarantees by Member States
[D] Decision Making
[E] Default by a Borrower
[F] Leveraging the EFSF
§2.05 THE PACKAGES FOR IRELAND, PORTUGAL, SPAIN AND CYPRUS
[A] Ireland
[B] Portugal
[C] Spain
[D] Cyprus
§2.06 THE EUROPEAN STABILITY MECHANISM
[A] Legal Basis
[B] Membership
[C] Private and Official Sector Burden Sharing
[D] IMF Practice: Conditionality
[E] IMF Practice: The LIA Framework
[F] The Paris Club
[G] ESM Lending Capacity
[H] Procedure for Borrowing
[I] Types of Assistance
[J] Preferred Creditor Status
[K] ESM Borrowing and the Allocation of Losses
CHAPTER 3 The Role of the European Central Bank and Banking Union
§3.01 INTRODUCTION
§3.02 THE ECB AND SOVEREIGN DEBT RESTRUCTURING
§3.03 THE LEGAL FRAMEWORK OF THE ECB
§3.04 LEGAL ANALYSIS OF OMTS
§3.05 OTHER POLICY CHOICES FOR THE ECB
§3.06 TRANSFORMING THE ESM INTO A CREDIT INSTITUTION
[A] TARGET 2 Loans
§3.07 DIRECT ESM RECAPITALISATIONS OF BANKS
§3.08 SINGLE SUPERVISORY MECHANISM
[A] Non-Euro Area Member States
[B] ECB Powers
[C] Conflicts of Interest
[D] Review
[E] Voting Procedures in the EBA
§3.09 FURTHER STEPS TOWARDS BANKING UNION?
[A] A Single Resolution Mechanism
[B] Common Deposit Guarantee Arrangements
[C] Banking Union and the Single Market
CHAPTER 4 Legal Implications of Member State Default
§4.01 WHY WOULD DEFAULT OCCUR?
§4.02 IMPLICATIONS OF DEFAULT FOR CREDITORS
§4.03 LEGAL FRAMEWORK FOR SOVEREIGN DEFAULT AND DEBT RESTRUCTURING
[A] Sovereign Default and the Pari Passu Clause
[B] Exit Consents
§4.04 MODIFYING THE TERMS OF SOVEREIGN BONDS THROUGH LEGISLATION
[A] Possible Challenges under Domestic Law
[B] Challenge under EU Law
[C] Challenge under International Law
[D] Challenge under the ECHR
§4.05 BONDS GOVERNED BY DOMESTIC LAW
§4.06 BONDS GOVERNED BY ENGLISH OR OTHER FOREIGN LAW
[A] Bonds Governed by Other Foreign Law
§4.07 JURISDICTION AND SOVEREIGN IMMUNITY
[A] Sovereign Immunity
[B] Establishing Jurisdiction over a Sovereign Defendant
§4.08 ENFORCEMENT OF JUDGMENTS AGAINST A SOVEREIGN DEFENDANT
[A] Immunities from Enforcement
§4.09 IMPACT OF SOVEREIGN DEFAULT ON OTHER CONTRACTS
[A] Frustration
[B] Member State Default and Frustration
[C] Legal Consequences of Frustration
[D] Law Reform (Frustrated Contracts) Act 1943
[E] Force Majeure
[F] Material Adverse Change
[G] Events of Default
CHAPTER 5 Euro Zone Exit and Redenomination of Obligations
§5.01 INTRODUCTION
§5.02 PATHS TO EURO ZONE EXIT
§5.03 LEGAL ANALYSIS OF EURO ZONE EXIT
[A] Withdrawal from the European Union
[B] Euro Zone Exit within the European Union
[C] Euro Exit in Accordance with Treaty Provisions
[D] Treaty Amendment to Give Effect to Euro Zone Exit
[E] Unilateral Exit from the Euro Zone
[F] Expulsion from the Euro Zone
§5.04 SOME PRACTICAL ASPECTS OF EXIT
[A] Planning for Exit
[B] Redenomination
[C] Introducing a New Currency
§5.05 REDENOMINATION AND THE EXITING MEMBER STATE
§5.06 REDENOMINATION IN THE COURTS OF OTHER EU STATES
§5.07 ILLEGALITY AND THE PLACE OF PERFORMANCE
[A] Ralli Brothers
[B] Foster v. Driscoll
[C] Regazzoni v. K.C. Sethia (1944) Ltd.
[D] The Two Principles
[E] What Is Illegality?
[F] Place of Performance in England
[G] Illegality if a Contract Is Governed by Foreign Law
[H] The Rome 1 Regulation
[I] Conclusion
§5.08 SOME FURTHER LEGAL CONSEQUENCES
[A] Terms of the Contract
[B] Rating Agencies
[C] Variation
[D] Currency Losses
[E] Frustration
§5.09 EXIT BY A CORE MEMBER STATE
[A] Implementing Exit: Legal and Practical Issues
§5.10 EURO ZONE FRAGMENTATION OR COLLAPSE
§5.11 SOME REFLECTIONS ON UNILATERAL EURO ZONE EXIT
[A] The Legality of Unilateral Euro Zone Exit
[B] The Defence of Necessity under International Law
[C] Article 347 TFEU
[D] General Legal Consequences of an Unlawful Euro Zone Exit
[1] The Position of Local Courts
[2] Position of English Courts
[a] Sovereign Immunity
[b] The Foreign Act of State Doctrine
[c] Would EU Law Require the English Court to Exercise Jurisdiction?
[d] The Position if an English Court Exercises or Is Required to Exercise Jurisdiction
[e] Would EU Law Require Member Sates to Treat Unilateral Exit as a Nullity?
[E] English Public Policy
CHAPTER 6 The Role of the Lex Monetae
§6.01 INTRODUCTION
[A] The Currency of Damages for Breach of Contract
§6.02 NOMINALISM AND THE LEX MONETAE
[A] Nominalism
[B] The Lex Monetae
§6.03 IDENTIFYING THE LEX MONETAE
[A] Contractual Interpretation under English Law
§6.04 THE LEX MONETAE AND THE EURO
[A] Would Euro Obligations Remain Payable in Euro?
§6.05 FACTORS IN IDENTIFYING THE LEX MONETAE
[A] Domestic Transactions
[B] Consumer, SME and Employment Contracts
[C] Other Contracts Closely Connected to an Exiting Member State
[D] Relevance of the Place of Payment
[E] International Contracts
[F] Contracts that Are Closely Linked with a Contract that Is Redenominated
[G] Are Governments and Public Sector Bodies in a Special Situation?
[H] Factors Unlikely to Be Relevant
[I] A Balancing Process
[J] Some Special Cases
[K] Conclusion
APPENDIX: THE OLD CASES ON IDENTIFYING THE LEX MONETAE
CHAPTER 7 Capital and Exchange Controls
§7.01 INTRODUCTION
§7.02 THE ROLE OF CAPITAL AND EXCHANGE CONTROLS
[A] Capital and Exchange Controls in a Default Scenario
[B] Controls May Be Imposed before Default
[C] Capital and Exchange Controls May Be Imposed by Other Member States
[D] Capital and Exchange Controls Following Euro Zone Exit
§7.03 THE IMF, GATT, GATS AND THE OECD
[A] Capital Movements and the IMF Agreement
[B] Capital Movements under the GATT and WTO
[C] Capital Movements and GATS
[D] OECD Code of Liberalisation of Capital Movements
§7.04 EU LAW OF CAPITAL AND EXCHANGE CONTROLS
[A] Treaty Provisions
[B] Public Policy and Public Security
[C] Capital Controls in Iceland
[D] Capital Controls in Cyprus
[E] General Conclusion
[F] Possible Relevance of Articles 143 and 144 of the TFEU
[G] Article 347 of the TFEU
§7.05 ENFORCEMENT OF CAPITAL AND EXCHANGE CONTROLS BY THE MEMBER STATE IMPOSING CONTROLS
§7.06 ENFORCEMENT IN ENGLAND OF CAPITAL AND EXCHANGE CONTROLS IMPOSED BY ANOTHER MEMBER STATE
[A] Exchange Controls Imposed under the Governing Law of the Contract
[B] Capital or Exchange Controls Imposed by EU Law
[C] The Bretton Woods Agreements Order in Council 1946
[D] Application to Existing Contracts
[E] Practical Examples
§7.07 EXCHANGE CONTROLS AS A DEFENCE BASED ON EXISTING OR SUPERVENING ILLEGALITY
[A] Relationship with the Bretton Woods Order
[B] Practical Examples
§7.08 SOME FURTHER REFLECTIONS
CHAPTER 8 Sovereign Default and State Liability under Investment Treaties
§8.01 INTRODUCTION
§8.02 RELATIONSHIP WITH EU LAW
[A] Exclusive EU Competence
[B] Conflict with EU Law
[C] Intra-EU Bilateral Investment Treaties
[D] Eastern Sugar
[E] Eureko B.V.
[F] Oostergel & Laurentius
[G] Electrabel
§8.03 UNITED KINGDOM BILATERAL INVESTMENT TREATIES
§8.04 DEFINITION OF INVESTMENT
[A] Investments Defined under BITs
[B] Article 25 of the ICSID Convention
[C] Loans and Sovereign Bonds as Investments
[D] Secondary Market Transactions
[E] Territorial Link
§8.05 FAIR AND EQUITABLE TREATMENT
§8.06 FULL PROTECTION AND SECURITY
§8.07 ARBITRARY OR DISCRIMINATORY MEASURES
§8.08 NATIONAL TREATMENT/MOST FAVOURED NATION TREATMENT
[A] National Treatment
[B] Most Favoured Nation Treatment
§8.09 THE UMBRELLA CLAUSE
§8.10 EXPROPRIATION
§8.11 CAPITAL MOVEMENTS
§8.12 WHO CAN CLAIM UNDER A BILATERAL INVESTMENT TREATY
§8.13 DEFENCES
[A] Necessity
[B] ICSID Cases Following Argentina's Default
[C] Force Majeure
[D] Waiver
[E] Causation and Damage
§8.14 ENFORCEMENT OF ARBITRAL AWARDS
CHAPTER 9 Conclusion
Bibliography
Table of Cases
Table of Legislation
Index
Back Cover

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