The Challenge of Legitimacy in Sovereign Debt Restructuring

57 Harvard International Law Journal 151-214 (2016) Since the emergence of the post-World War II international economic system, policymakers have lamented the absence of a global sovereign debt restructuring mechanism. This disappointment has only intensified in recent years, as the failure to provide prompt, comprehensive, and lasting debt relief becomes even more apparent. As a result, scholars and key international actors have argued for the development of a more coherent global approach to debt workouts. But to date this discussion lacks a sustained focus on questions of legitimacy — a fact that is exceptionally puzzling in light of the voluminous scholarship on the legitimacy deficits of international economic institutions once they have been established. This Article bridges that gap, arguing that serious attention should be paid to these questions in advance of negotiating a possible debt workout mechanism, and considering what such attentiveness might mean in practice. It highlights the political complexity and distributional ramifications of legitimacy arguments, and develops an analytical framework for understanding the concept along with a preliminary application to the debt restructuring context. It then analyzes the institutional and historical background of debt restructuring in light of this typology, and assesses how domestic insolvency regimes and investment treaty arbitrations incorporate features purported to advance legitimacy. Finally, the Article considers how a future debt workout institution might respond to calls for legitimacy — based on its initial establishment, ongoing processes, and final outcomes — and briefly discusses existing proposals and likely political obstacles in light of these themes. In foregrounding these concerns, this Article draws attention to issues and controversies that will likely be relevant for some time, and contends that the tensions, distributional issues, and power dynamics implicated in questions of legitimacy should inform negotiations on any sovereign debt workout mechanism going forward.