Pietro Ortolani

Are Bondholders Investors? Sovereign Debt and Investment Arbitration after Poštová

As a result of the 2010 sovereign debt crisis and the subsequent restructuring operations, bondholders have pursued different dispute resolution strategies. Litigation before US courts has proved to be a viable option, as demonstrated by Argentine cases. State court litigation, however, is not the only available forum: in some cases, bondholders have commenced arbitration proceedings against the issuing State. Arbitral case-law so far seemed to be consistent in concluding that the holders of sovereign bonds issued by the host State qualify as investors and thus have standing to bring investment treaty-based claims. The recent Postova award, however, casts doubts as to whether holders of sovereign bonds qualify as investors for the purposes of international investment law.This article illustrates the main problems revolving around the qualification of sovereign bond as investments for the purposes of international investment law. The article summarises the relevant legal framework and the solutions adopted by arbitral case-law so far. Subsequently, the contents of the Postova decision are addressed in detail and the consequences of this decision are scrutinised.

The Public Perception of Investment Arbitration

This paper examines the controversies around the incorporation of investment arbitration into the Transatlantic Trade and Investment Partnership (TTIP). It was drafted to be read by a non-specialist audience, and addresses the primary arguments made regarding the use of arbitration in the TTIP. For each argument it offers a clear explanation of the opposing positions, and then presents an accessible analysis of the issue on the basis of the available evidence.The paper was originally prepared at the request of the Legal Affairs Committee of the European Parliament, and was produced under a grant from the Parliament for a study on arbitration in the European Union. It was supplied to the Parliament in late 2014.