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Duke Law

Journal

2007

External debt relief

Articles 1 - 14 of 14

Full-Text Articles in Law

Judicial Discretion And The Bankruptcy Abuse Prevention Act, Lauren E. Tribble Dec 2007

Judicial Discretion And The Bankruptcy Abuse Prevention Act, Lauren E. Tribble

Duke Law Journal

Generally, Chapter 7 bankruptcy is available to only the most desperate individual debtors who do not have the means to pay their creditors back over time. Before 2005, the Bankruptcy Code gave judges discretion to decide which debtors were eligible for Chapter 7. The Bankruptcy Abuse Prevention Act, however, curtails this discretion, mandating that judges use a rigid means test to determine when a debtor is allowed to file. This Note argues that it was a poor decision to foreclose judicial discretion with the means test. It then proposes a compromise between the means test approach and the old standard.


The Odious Debt Doctrine After Iraq, Jai Damle Oct 2007

The Odious Debt Doctrine After Iraq, Jai Damle

Law and Contemporary Problems

The odious debt doctrine has experienced renewed popularity in the past few years; it has been heralded by academics, political commentators, economists, and politicians as a mechanism to alleviate burdens imposed by illegitimate rulers. In its classic formulation, the doctrine provides that a regime's debt is odious, and thus unenforceable, if the state's people did not consent to the debt, the proceeds from the debt were not used for the benefit of the people, and the regime's creditors had knowledge of the first two conditions. In 2003, the newly instated Iraqi regime began negotiations to restructure that country's debt, much …


Odious Debt In Retrospect, Daniel K. Tarullo Oct 2007

Odious Debt In Retrospect, Daniel K. Tarullo

Law and Contemporary Problems

In the eighty years since Alexander Sack coined the phrase "odious debt," academics and activists have periodically rediscovered Sack's idea, often arguing for its application or extension-to this point, in vain. Here, Tarullo reveals the degree to which current interest in the problem of odious debt is intertwined with other problems that strike more critically at the well-being of developing-and emerging-market countries. He reasons that the necessarily complex effort needed to institutionalize a doctrine of odious debt is a potentially effective organizing principle for generating the political will to address these other persistent, debilitating problems.


Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen Oct 2007

Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen

Law and Contemporary Problems

Odious debt is more of a literature than a doctrine. Going back to at least the 1920s, one can find arguments that countries should not have to pay back debts that are labeled "odious." The central intuition is that the citizens of a country should not have to pay for the debts incurred by a prior "odious" regime when those funds did not benefit these citizens. It is simply not right to ask people to pay for funds from which they did not benefit, especially when the lender knew of this fact when it made its loan. Here, Rasmussen comments …


Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer Oct 2007

Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer

Law and Contemporary Problems

Once upon a time, sovereign debts were just that-debts or the entitlement to be repaid fully, including interest. During the 1970s it was thought unnecessary to make any distinctions between debts, based on the assumption that sovereigns might possibly become illiquid, but could never become insolvent. Commercial banks disregarded the most elementary rules of prudent banking, including their duty of due diligence as lenders, laboring on the assumption that whatever flowed into developing countries would eventually flow back with fees and interest. Here, Raffer discusses the international dchapter nine debt arbitration.


Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel Oct 2007

Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel

Law and Contemporary Problems

Odious regimes have always been there. That there is no silver-bullet solution that will prevent odious regimes from arising, or stymie them once they do, is evident from the plethora of responses employed by the international community once a regime's odiousness becomes clear. Current odious debt doctrine dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. The Sack definition contemplates a debt-by-debt approach to questionable borrowing. If a loan is used to benefit the population--to build a highway or water-treatment plant, for instance--the obligation would be fully enforceable, no matter how pernicious the borrower regime. …


Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman Oct 2007

Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman

Law and Contemporary Problems

In a sense, all debts are odious; that is, to use dictionary definitions, "hateful; disgusting; offensive." Yet insofar as international economic law today is concerned, only a certain few debts can be considered "odious debts" in order to contest and perhaps eventually to repudiate them. Here, Feinerman examines the concepts of odious debt and related international legal phenomena, in both historical and contemporary context, with a view of determining the role that denomination of certain debts as odious may play in the overall process of sovereign debt rescheduling.


Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen Jul 2007

Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen

Law and Contemporary Problems

When a country signs an international treaty, it is not the government but the state that is bound, and the obligation will stand until a subsequent government formally exits the treaty. Exit is presumed to be costly: a government that "repudiates" earlier treaty obligations will suffer reputational harm in its international relations. Moreover, this general background norm of international law applies as well to debt: a government can announce that it is renouncing debt, but it will suffer severe reputational harm in the debt marketplace, much as a government that repudiates public international law obligations suffers a reputational harm. Here, …


Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray Jul 2007

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

Law and Contemporary Problems

Several issues relating to odious debt and contemporary efforts to expand the odious debt doctrine to cover all debts of odious regimes are maddeningly complex, implicating difficult issues in areas ranging from the international law of state succession to the law of commercial paper--itself a source of biannual trauma for thousands of bar aspirants. However, the scope of the debate as it has been developed in the literature is too narrow and, therefore, the questions posed too simple. In particular, any analysis of odious debt must account for issues that inhere to transitions and transitional justice. Here, Gray make some …


Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng Jul 2007

Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng

Law and Contemporary Problems

Following the United States' invasion and subsequent occupation of Iraq,' the US government argued that the successor government in Iraq was not responsible for Iraq's Saddam-era debt under the purported doctrine of odious-regime debt. This purported doctrine apparently excused--by operation of law--all successor regimes from repaying debts that were incurred by oppressive predecessor regimes. Here, Cheng presents three-part response regarding the purported rule that oppressive debts of a predecessor government do not bind its successor.


A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner Jul 2007

A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner

Law and Contemporary Problems

Choi and Posner indicate that it is unclear whether the doctrine will improve the welfare of the population that might be subject to a dictatorship in terms of the odious debt doctrine. The traditional backward-looking defense of the odious debt doctrine, which suggests that the doctrine is costless because it releases a suffering population from an unjust debt, is seriously incomplete. Although in specific cases the benefits of loan sanctions may exceed the costs, the defenders of the doctrine have not made the empirical case that the net benefits are sufficiently high in the aggregate as to warrant routine application …


Odious, Not Debt, Anna Gelpern Jul 2007

Odious, Not Debt, Anna Gelpern

Law and Contemporary Problems

The US invasion of Iraq in 2003 revived public and academic debate about a wobbly old doctrine of international law: the Doctrine of Odious Debt. This doctrine allows governments to disavow debts incurred by their predecessors without the consent of or benefit for the people, provided creditors knew of the taint. It has roots in nineteenth century jostles over colonial possessions. However, for the past eighty years, Odious Debt's rhetorical appeal has vastly outstripped its "legal vitality." Here, Gelpern argues that the Doctrine of Odious Debt frames the problem of odious debt in a way that excludes a large number, …


Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson Jul 2007

Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson

Law and Contemporary Problems

Politicians as well as many members of the international human-rights community, view the odious debt doctrine as fundamentally unfair that the Iraqi people may be saddled with the debts Saddam Hussein's brutal regime incurred. Furthermore, some in the human-rights community generally argue that rich (creditor) countries have a moral duty or obligation to protect citizens of poor (debtor) countries and that richer nations should forgive the debts of poorer nations to help reduce existing inequalities between developed and developing countries. Here, Dickerson evaluates the doctrine of odious debts using the insolvency framework found in the United States Bankruptcy Code.


The Dilemma Of Odious Debts, Lee C. Buchheit, G. Mitu Gulati, Robert B. Thompson Mar 2007

The Dilemma Of Odious Debts, Lee C. Buchheit, G. Mitu Gulati, Robert B. Thompson

Duke Law Journal

When a corrupt governmental regime borrows money in the name of the state, and then steals or squanders the proceeds, must the future citizens of that country repay the loan? The law says yes, but the moral instinct of most people says no.