Unsustainable sovereign debt is a serious problem for nations, as well as their citizens and creditors, and a threat to global financial stability. The existing contractual approach to restructuring unsustainable debt is inadequate and no treaty or other multilateral legal framework exists, or is currently likely to be adopted, that would enable nations to restructure unsustainable debt. Because a significant percentage of sovereign debt is governed by English law, there is an opportunity to modify the law to fairly and equitably facilitate the restructuring of unsustainable sovereign debt. This policy brief proposes a novel legal framework, focusing on governing law, for doing that. This framework would legislatively achieve the equivalent of the ideal goal of including perfect collective action clauses in all English-law-governed sovereign debt contracts. It therefore should ensure the continuing legitimacy and attractiveness of English law as the governing law for future sovereign debt contracts. Even absent the legislative proposal, the analysis in this policy brief can contribute to the incremental development of sovereign debt restructuring norms.
Steven L. Schwarcz is a CIGI senior fellow and the Stanley A. Star Professor of Law & Business at Duke University. At CIGI, Steven leads research on systemic risk and financial regulation, corporate governance of systemically important firms, cross-border resolution measures and sovereign debt restructuring.