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CONTENTS Acknowledgements CHAPTER 1: Introduction CHAPTER 2: Argentina¿s debt in its historical and political context 1 The military regime of 1976-1983 2 Return to democracy under Alfonsín (1983-1989) 3 The Menem era 4 The explosion of the financial crisis under De la Rúa 5 Crisis management under Duhalde 6 The Kirchner administration from 2003 7 Social implications 8 Concluding remarks CHAPTER 3: The doctrine of odious debts 1 Does international law recognize the doctrine of odious debts? 1.1 State practice 1.2 Case law 1.3 Academic recognition of the doctrine 1.4 General principles of international law 1.5 The position of the International Law Commission 1.6 Conclusions as to the recognition of the doctrine under international law 2 The doctrine of odious debts and regime change 3 How can it be determined whether a debt is odious? 3.1 Absence of consent 3.2 Absence of benefit 3.3 Creditor awareness of the odious nature of the debt 3.4 Burden of proof 4 Odiousness of restructured debts and of debts traded on the secondary markets 5 Mechanisms to implement the doctrine of odious debts 6 Common objections to the doctrine of odious debts 6.1 Drying up of funds for developing countries 6.2 Complexity of the procedure 7 Conclusion CHAPTER 4: Redefining the Doctrine of Odious Debts 1 Introduction 2 Odiousness of debts because of a violation of ius cogens 2.1 Content and scope of ius cogens 2.2 Establishing a link between a loan contract and a ius cogens violation 2.2.1 Criteria applied in international criminal proceedings 2.2.2 Criteria applied in tort cases under the US Alien Tort Claims Act (ATCA) 2.2.3 Approach of the International Law Commission in the context of state responsibility 2.2.4 Consequences for the validity of loans 2.3 Implementing the ius cogens based approach 3 Odiousness of debts because of violations of international law principles that are not part of ius cogens 4 Application of the doctrine of odious debts to the case of Argentina 4.1 Odiousness under the traditional odious debts doctrine 4.2 Odiousness because of a violation of ius cogens 5 Conclusion CHAPTER 4: (Un)Constitutionality of debts taken up by unconstitutional regimes 1 Introduction 2. The debt taken up by the military regime 2.1 De facto doctrine and acquired rights 2.2 Recognition of the debt by the democratic successor government 3 Constitutional competence with regard to sovereign debt 3.1 What does it mean to settle the payment of the debt? 3.2 Delegation of powers 3.2.1 General principles of delegation of powers 3.2.2 Restructuring of bonds under Alfonsín 3.2.3 Debt restructuring under Menem ¿ the Brady bonds 3.2.4 Mega swap under de la Rúa/Cavallo in 2001 3.2.5 Debt management under Kirchner (a) Debt restructuring (b) Cancellation of the debt with the IMF 3.2.6 Concluding remarks 4 Summary and conclusion CHAPTER 6: Substantive constitutional limits with regard to sovereign debt 1 Purposes for which debt can be contracted 2 Economic and social rights considerations 2.1 Debt policies as violation of international economic and social rights obligations 2.2 Constitutional dimension of the relationship between sovereign debt and economic and social rights 3 Impact of substantive considerations on debt related acts and policies CHAPTER 7: Impact of the unconstitutionality of loans on creditor rights 1 Effects of unconstitutionality under domestic Argentinean law 1.1 Original debt 1.2 The factually recognized debt 1.2.1 Validity of the loan contracts 1.2.2 Criteria for retrospectively recognizing or rejecting the debt 1.3 Summary 1.4 Non-contractual claims for debt repayment 2 International dimension 3 Conclusion CHAPTER 8: Conclusion Bibliography Index
Library of Congress Subject Headings for this publication:
Debts, Public -- Law and legislation.
Debts, External -- Law and legislation.
Debts, Public -- Law and legislation -- Argentina.
Debts, External -- Law and legislation -- Argentina.
Debt -- Argentina -- History.
Jus cogens (International law).
Debt relief.
Debtor and creditor.